McCracken v. State
| Decision Date | 08 April 1974 |
| Docket Number | No. 1498,1498 |
| Citation | 521 P.2d 499 |
| Parties | Jack Jeffrey McCRACKEN, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Jack Jeffrey McCracken, in pro. per., and H. John DeNault, III, Anchorage, for appellant.
Douglas B. Baily, Sp. Prosecutor, Anchorage, for appellee.
Before RABINOWITZ, C. J., and CONNOR and BOOCHEVER, JJ.
Jack McCracken appeals from his conviction and sentencing on two counts of shooting with intent to kill and two counts of use of a firearm during an assault.
Prior to trial, McCracken submitted a motion to peremptorily disqualify the trial judge, but the court denied this motion as being untimely made. McCracken also submitted a motion to retain an expert witness on paraffin tests with costs to be borne by the State of Alaska. The State filed opposition to this motion and, following a hearing, the court determined that McCracken had not demonstrated sufficient need for an expert witness. The trial court thus denied McCracken's motion without prejudice, inviting McCracken to make a further showing as to how the testimony of an expert witness would contribute to his defense. No such further showing was made.
McCracken was tried on the charges of shooting with intent to kill and assault with a firearm. At trial the State presented the testimony of the two victims of the shooting at the Polar Bar in Anchorage, both of whom made in-court identifications of McCracken as their assailant. The State also introduced physical evidence connecting McCracken with the charged offenses. 1
The jury returned verdicts of guilty on all four counts. The superior court imposed 20-year sentences on each count of shooting with intent to kill and ordered the sentences to run consecutively. The court further imposed 10-year sentences for each count of use of a firearm during an assault, these sentences to run concurrently with the 20-year sentences.
In this appeal McCracken submits five specifications of err: 2 (1) that a post-indictment confrontation with the victims of the shooting that took place at a parole revocation hearing violated both the right to counsel and the due process guarantee of the United States and Alaska Constitutions; (2) that the superior court's denial of the pre-trial motion to employ an expert witness at the State's expense violated both his right to compulsory process to secure witnesses and his right to effective assistance of counsel; (3) that he was deprived of the effective assistance of counsel; (4) that the trial court abused its discretion in denying a pre-trial motion to peremptorily disqualify the trial judge, thereby depriving him of a fair trial; and (5) that the sentence imposed by the trial court violated the prohibition against double jeopardy found in both the United States and Alaska Constitutions.
McCracken's initial specification of error is that a post-indictment identification during a parole revocation hearing violated the right to counsel and due process guarantees found in both the United States and Alaska Constitutions, 3 and that this violation mandates reversal of his conviction.
The fundamental guidelines for assessing the propriety of post-indictment identifications are delineated in United States v. Wade 4 and Stovall v. Denno. 5
In Wade, the Supreme Court of the United States was confronted with a situation where, prior to the courtroom identification of defendant, the accused had been exhibited, without notice to or presence of counsel, to witnesses in a post-indictment lineup for identification purposes. The Supreme Court concluded that a post-indictment lineup 6 was a 'critical stage' of the prosecution at which the accused was entitled to the aid of counsel.
The Wade court discussed in considerable detail the vagaries of eye-witness identifications. 7 Since a 'confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially derogate from a fair trial', the court concluded that conducting such a confrontation without notice to and in the absence of an accused's counsel was a denial of the Sixth Amendment right to counsel, and called into question the admissibility at trial of the in-court identifications of the accused by witnesses who attended the lineup. 8
In Stovall v. Denno, Justice Brennan acknowledged a second ground of attack on post-indictment identifications-a ground independent of any right to counsel claim. A confrontation between an accused and witnesses might be so unnecessarily suggestive and conducive to irreparable mistaken identification, said Justice Brennan, that the accused is thereby denied due process of law. The application of this due process test is not as automatic as the denial of right to counsel test presented in Wade. A violation of the due process of law guarantee in the conduct of a confrontation 'depends on the totality of the circumstances surrounding it . . .' 9
In the case at bar, the issue of an improper post-indictment identification was not raised in the trial court. The issue appears for the first time in McCracken's points on appeal. 10
The record reveals the following facts with regard to the allegedly improper post-indictment identification. At the time of his arrest on the morning of February 12, 1969, for the shootings at the Polar Bar, McCracken was on parole from a previous criminal conviction for assault with intent to kill. A parole warrant was issued on February 12, and a hearing for parole revocation was set for February 14. McCracken appeared at this hearing with counsel, and counsel's request the Parole Board promised McCracken a bill of particulars on the specific charges of parole violation. The Board then granted a continuance to enable McCracken and his counsel to adequately prepare for the hearing. 11
On February 24, 1969, the grand jury returned an indictment against McCracken in connection with the incident at the Polar Bar on the morning of February 12.
On February 25, the Parole Board published the requested bill of particulars, and issued a notice addressed to McCracken and his attorney that a parole revocation hearing would be held the following day. 12 The purpose of this second hearing was for the hearing officer to make a temporary decision as to whether there was reasonable ground to believe that McCracken had violated his parole, pending a final decision by the full Parole Board.
On February 26, the second parole revocation hearing was held, and it was at this hearing that the improper post-indictment identification is alleged to have taken place. 13
The record available to us is sparse as to exactly what transpired at this parole revocation hearing on February 26. McCracken asserts that he was transported from the jail to the McKay Building on February 26. Richard Lauber, Chairman of the Parole Board, then conducted an evidentiary hearing to decide if there was reasonable ground to conclude that McCracken had violated his parole conditions. McCracken alleges that he was without counsel despite a request for representation, dressed in jail clothes, and handcuffed during the course of this hearing. McCracken further states that the two alleged victims of the shooting were led into the hearing room and asked if McCracken was their assailant. It was these two victims who subsequently made in-court identifications at trial of McCracken as their assailant.
The record reflects conditions that augur the strong possibility that not only was McCracken's right to counsel at a 'critical stage' of his trial violated, but also that the limitations set by due process requirements were exceeded here. 14 Our normal procedure in such a situation would be to remand the case to the lower court for a hearing and findings of fact as to the existence of, and circumstances surrounding, any post-indictment identification of McCracken by the two victims on February 26. 15 Such a course of action, however, is unwarranted in the case at bar. Even assuming that there was a post-indictment identification conducted without the presence of counsel for the accused and in violation of due process of law, we find that such an unconstitutional confrontation would, in the particular circumstances of this case, mandate neither the exclusion of any testimony admitted into evidence by the trial court nor the reversal of McCracken's convictions. We hold that the courtroom identifications by the two victims in the present case derived from a source independent of the allegedly tainted parole revocation confrontation. 16
We find it of significance that the case at bar does not involve any in-court testimony concerning the allegedly unconstitutional confrontation at the parole revocation hearing. 17 The two victims, who were allegedly present at the hearing and who later testified in court, simply identified McCracken at trial as their assailant, making no mention of any prior identification.
The Supreme Court in Wade devised the following inquiry to judge the legitimacy of such in-court identifications: 18 did the in-court identification have a source independent from the tainted confrontation, or was the introduction of the in-court identification testimony, in any event, harmless. 19 If the record reveals an independent source for the in-court identification of the accused by the victims, then there is no sound basis for excluding those identifications. 20 Alternatively, if there were conclusive independent evidence, apart from the identification testimony of the witnesses who attended the February 26 confrontation, that identified McCracken as the assailant, then the introduction of the in-court identifications would be harmless, even if improper. 21
In United States v. Johnson, 22 the court was faced with the question of whether an extrajudicial photographic identification...
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