Smiloff v. State

• Decision Date: 19 April 1968
• Docket Number: No. 859,859
• Citation: 439 P.2d 772
• Parties: Mike SMILOFF, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 772

439 P.2d 772

Mike SMILOFF, Appellant, v. STATE of Alaska, Appellee.

No. 859.

Supreme Court of Alaska.

April 19, 1968.

Brian J. Brundin, of Hughes, Thorsness & Lowe, Anchorage, for appellant.

Edmund W. Burke, Asst. Dist. Atty., and Robert N. Opland, Dist. Atty., Anchorage, for appellee.

Before NESBETT, C. J., DIMOND and RABINOWITZ, JJ.

OPINION

RABINOWITZ, Justice.

Appellant questions the lower court's administration of Criminal Rule 17(b) which provides for the issuance, at state expense, of subpoenas in behalf of indigent defendants. We hold that the superior court's rejection of appellant's request for the issuance of subpoenas pursuant to Criminal Rule 17(b) was error. We further hold that the court's ruling affected appellant's substantial rights and, therefore, the judgment and commitment which was entered below should be set aside and a new trial held.

Appellant was tried in the lower court upon a three-count indictment in which he was charged with the separate crimes of assault with a dangerous weapon, assault with intent to rape, and attempted rape. ¹ Some three weeks prior to trial, appellant's court-appointed counsel moved under Criminal Rule 17(b) that subpoenas be issued for the attendance of five witnesses, all of whom resided at Sand Point, Alaska, at the time of the motion. ² Our Criminal Rule 17(b) provides in part that:

The court or a judge thereof may order at any time that a subpoena be issued upon motion or request of an indigent defendant. The motion or request shall be supported by affidavit in which the defendant shall state the name and address of each witness and the testimony which he is expected by the defendant to give if subpoenaed, and shall show that the evidence of the witness is material to the defense, that the defendant cannot safely go to trial without the witness and that the defendant does not have sufficient means and is actually unable to pay the fees of the witness.

The grounds stated in appellant's motion were 'that defendant is indigent and that said witnesses are necessary to the defense * * *.' In his affidavit in support of the motion, appellant asserted that the five potential witnesses would provide 'testimony necessary to (his) defense,' and that his indigency prevented him from paying 'the travel expense, witness fees, or service fees to require and enable the listed witnesses to appear for the defense.' ³

Appellant's motion then came before the superior court. At the outset of the hearing the trial judge indicated to appellant's counsel that Criminal Rule 17(b) contemplated that counsel had 'to give the nature of the testimony.' The court then asked whether counsel was in a position to indicate what the witnesses 'might testify to.' After appellant's counsel had outlined the expected testimony of four of the five witnesses, ⁴ the trial judge suggested to the State's attorney that perhaps the matter could be put in writing and an agreement reached between counsel as to the witnesses' testimony. The district attorney then informed the court that if appellant's counsel would furnish him with a brief written statement as to the witnesses' expected testimony, his office would 'see if we'll stipulate to it, or indicate that we feel they won't testify to that, and then leave the witnesses in question for you to decide.' The court then inquired of appellant's counsel whether he would furnish such a written outline of the witnesses' anticipated testimony. ⁵ Appellant's counsel answered affirmatively and the court then stated that it would rule on the merits of appellant's motion after the written statement had been furnished and counsel had had the opportunity to explore the possibility of agreement along the lines suggested by the district attorney. Later that same day, appellant's counsel filed a memorandum containing a brief summary of the testimony of the persons sought to be subpoenaed.

The matter was then again argued and at the conclusion of this second hearing, the court denied appellant's request for subpoenas as to Peterson, Osterback, and Mobeck but offered appellant the choice of Bjornstad or Rudolph. ⁶ Counsel for appellant selected Bjornstad. At the conclusion of the trial which was held a short time thereafter, appellant was found guilty of the crime of assault with intent to rape and was sentenced to fifteen years' imprisonment.

Before discussing the merits of the trial court's rulings under Criminal Rule 17(b), we consider it appropriate to dispose of appellee's argument that 'The court's ruling should * * * be tested only on the basis of the averments made by (appellant) in his sworn affidavit.' ⁷ In light of the portions of the record we have set out heretofore, we find no merit in the state's position. At no time during the two hearings, which were held in regard to appellant's Criminal Rule 17(b) motion, did the prosecution object to counsel for appellant's oral or written statements as to what testimony the witnesses would give. Here the initial requests, both for oral and written statements from defense counsel, came from the court, and it is clearly demonstrated that the state acquiesced in the court's suggestion that these statements be furnished. In view of such circumstances we consider the state's argument unfortunate. Further, Criminal Rule 53 provides that any of our rules of criminal procedure may be relaxed or dispensed with by the trial court where it is apparent to the court that strict adherence thereto would result in injustice. In the case at bar we believe that the trial judge correctly dispensed with Criminal Rule 17(b)'s requirement that the showing in support of the motion must be made by affidavit. This ruling was particularly appropriate in the case at bar where it appears that appellant was illiterate and that linguistic and cultural barriers existed between appellant and his counsel.

This is the first occasion we have had to decide issues involving application of Criminal Rule 17(b). Until 1966 our rule and Fed.R.Crim.P. 17(b) were virtually identical. ⁸ Representative of the federal authorities decided under the original text of Rule 17(b), Fed.R.Crim.P., is the following language from United States v. Zuideveld: ⁹

It is well settled that Rule 17(b) * * * does not vest an absolute right to the issuance of such subpoenas and that the trial court is granted a wide latitude in order to prevent abuses. We will not disturb the exercise of such discretion unless exceptional circumstances compel it. There was no such abuse of discretion here. Reistroffer v. United States, 8 Cir., 258 F.2d 379, 396 (1958), cert. denied, 358 U.S. 927, 79 S.Ct. 313, 3 L.Ed.2d 301. ¹⁰

We adopt the federal rule and hold that the right to have a witness subpoenaed at state expense is not absolute. In administering Criminal Rule 17(b), the trial court is vested with discretion in order to prevent abuses. Our review of the record has left us with the firm conviction that the trial judge abused his discretion in the case at bar. Appellant's showing (which properly encompassed not only his affidavit but also the memorandum and oral statements of his counsel in support of the rule 17(b) motion) warranted issuance of the subpoenas. We believe it of significance that at the time the motions were made seeking issuance of the subpoenas appellant stood charged with three serious felony offenses, each of which carried potentially severe separate penalties. Also of importance is that appellant was brought to trial in a community some five hundred air miles from his home-the situs of the alleged crimes; that appellant was uneducated; and that linguistic and cultural difference were present between appellant and his attorney. Ant judgment with respect to whether the showing made by appellant's counsel that a prospective witness' testimony was material to the defense should have taken into account the barriers to effective communication which here existed between appellant and his attorney. The degree of precision with which defense counsel was able to allege facts in support of his motion for rule 17(b) subpoenaes must necessarily have been affected by quality and clarity of the communications from client to attorney.

Of further importance is the circumstance that the original counts of the indictment focused on the crime of attempted rape. In crimes of this nature the prosecutrix's testimony is usually crucial. Measured against these basic circumstances, we believe that appellant's showing under Criminal Rule 17(b) warranted the issuance of subpoenas at government expense.

In his brief appellant argues that the trial judge applied 'too rigid a standard' in ruling on his motion. Nowhere did the trial judge articulate precisely what criterion had been employed in deciding whether or not to allow the subpoenas. Although at one point during the hearings on the motion, it appears that the trial judge stated he would issue a subpoena only if the witness could show that he was with appellant during the entire time in question, and thus prove that appellant had not committed the crimes charged. ¹¹ The foregoing indicates that the trial judge applied too rigid a standard in administering Criminal Rule 17(b) in view of the significant circumstances appearing in this record. ¹²

As we have indicated previously, we believe that appellant's showing was sufficient as to prospective witnesses Mobeck, Peterson, and Osterback to justify the issuance of Criminal Rule 17(b) subpoenas. ¹³ As to George Osterback, it was expected that he would testify he was with appellant at a bar in Sand Point until just before the alleged crimes took place. Appellant's counsel further asserted that he believed that the state had a witness who would testify that he observed two men at the spot where the victim was lying on the ground, and 'it was probable that Mr. Osterback is this mysterious person who ran.' ¹⁴ From a reading of the record, it appears that the trial...