State v. Echols

• Decision Date: 01 June 1990
• Docket Number: No. A-2818,A-2818
• Citation: 793 P.2d 1066
• Parties: STATE of Alaska, Petitioner, v. Melvin J. ECHOLS, Respondent.
• Court: Alaska Court of Appeals

Page 1066

793 P.2d 1066

STATE of Alaska, Petitioner, v. Melvin J. ECHOLS, Respondent.

No. A-2818.

Court of Appeals of Alaska.

June 1, 1990.

Cynthia M. Hora, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Douglas B. Baily, Atty. Gen., Juneau, for petitioner.

James H. McComas, Anchorage, for respondent.

OPINION

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

COATS, Judge.

The grand jury indicted Melvin J. Echols for three counts of sexual abuse of a minor, Echols' daughter W.E., and two counts of attempted sexual abuse against W.E. The grand jury also indicted Echols on charges for sexually and physically abusing another daughter, T.E., and indicted Echols' wife, Arthur, on charges that she had physically abused T.E. All of the charges were consolidated for trial. During the trial, Superior Court Judge Mark C. Rowland ordered two of the counts which charged Melvin Echols with sexually abusing W.E. to be dismissed in the interest of justice after the state refused to grant use immunity to a critical witness. See Alaska R.Crim.P. 43(c). The state petitioned for review, asking this court to reverse Judge Rowland's decision dismissing the two counts. We granted review and now affirm.

It is necessary for us to set forth an extensive factual background to explain our decision in this case. In June 1987, W.E., who was fifteen years old at the time, told her mother, Arthur Echols, that her father, Melvin Echols, had sexually abused her. On September 6, W.E. reported the abuse to Pearl Bingham, a woman who had experience as a foster parent. When W.E. spoke to Bingham, she was accompanied by her sister, R.E. Bingham testified at trial that W.E. was crying and upset and told her that Echols had engaged in sexual touching and sexual intercourse with her. Bingham called the police and Officer Thomas Oels responded. Oels took statements from W.E. and R.E. Oels testified at trial that W.E. cried during the interview and was uncomfortable talking about the sexual acts. He testified that R.E. helped W.E. remember some of the specific facts such as dates. He stated that W.E. clearly wanted to stay at Bingham's home. Oels tape-recorded W.E.'s statement. In the taped statement, Oels explained to W.E. that he was a police officer who was there to investigate a charge of sexual abuse of a minor. W.E. told Oels that her last sexual contact with Melvin Echols was on June 7. She stated that Echols had intercourse with her three separate times and that the first time had been in February 1987. Echols was arrested on September 30, 1987, following the investigation of W.E.'s charges.

On October 3, 1987, W.E. went to the office of her father's attorney. She was again accompanied by her sister, R.E. W.E. made a sworn statement that her father had never sexually abused her. W.E. said that she made the earlier charges so that she could live in a foster home and have more independence than she had at her parents' home. W.E. stated that she had made the allegations of sexual abuse based on the experiences of her friend, V.S. V.S. had previously made charges that her father had sexually abused her, and based on these charges, V.S. had been placed in a foster home. W.E. stated that V.S. had accompanied her to Bingham's house on September 6 when W.E. told Bingham that her father had sexually abused her. W.E. said that V.S. had impersonated R.E.

W.E. testified before the grand jury on October 9, 1987. W.E. denied that her father, Melvin Echols, had intercourse with her. She stated that she had lied to Bingham, Oels, and her social worker. She testified that she had fabricated the allegations against her father in order to be like her friend V.S., who was living in a foster home.

W.E. later returned to the grand jury and recanted her earlier testimony. She testified that Echols had intercourse with her once in February or March. W.E. testified that R.E. told her to say that the abuse had not occurred and encouraged her to tell the "V.S." story to Echols' attorney. W.E. stated that she wanted to live in a foster home like her friend V.S. because she was being molested at home.

R.E. also testified before the grand jury on October 9. R.E. testified that she had been subjected to beatings by both of her parents and that the beatings by her father had left permanent scars on her body. She also testified that she witnessed Melvin Echols beat T.E. on November 4, 1983. However, when the prosecutor asked R.E. whether she told Officer Oels that her father had sexually molested her and asked her about having gone to see Bingham with W.E., R.E. stated, "I don't recall." At that point the prosecutor excused R.E. because R.E.'s lawyer was not available. The prosecutor indicated that she did not want to put R.E. in a position of facing perjury charges by putting further questions to her before the grand jury.

At a later session of the grand jury, T.E. testified that R.E. had told T.E. that T.E. had lied to the grand jury and that "if Daddy goes to jail I'm ... kicking those ... people's ... asses and yours too." T.E. testified that she considered this to be a threat and that R.E. did not want T.E. to testify against her father at trial.

The grand jury indicted R.E. on six counts of perjury and witness tampering. R.E. then entered into a plea agreement with the state. R.E. agreed to plead no contest to one count of witness tampering in violation of AS 11.56.540(a)(1); the state agreed to dismiss the remaining charges at the time of R.E.'s sentencing. As part of the plea agreement, R.E. agreed to give truthful testimony in any official proceeding involving her parents. R.E. signed a sworn statement that she had witnessed Melvin Echols beat T.E. with an extension cord, after which her parents sent her to California. R.E. claimed that her father had physically and sexually abused her and that the physical abuse had left marks. She admitted having gone with W.E. to Bingham's house. R.E. stated that she and W.E. and V.S. had concocted the "V.S." story because R.E. and W.E. did not want to get into trouble with their parents. Finally, R.E. claimed that Arthur Echols had told them to see Melvin Echols' attorney and tell the "V.S." story.

Melvin and Arthur Echols' trial began on December 5, 1988. In her opening statement, the prosecuting attorney told the jury that R.E. would be a witness for the state. The prosecutor stated that R.E. would testify about an extensive history of physical abuse which she and her sisters had suffered at the hands of Melvin and Arthur Echols. The prosecutor told the jury that R.E. had extensive scarring on her body where she had been beaten by her father. The prosecutor also indicated that R.E. would verify that her parents beat T.E. The prosecutor discussed with the jury the fact that R.E. had been convicted of witness tampering and would be testifying pursuant to an agreement with the state.

At the trial, the state called ten witnesses who testified regarding the charges of physical and sexual abuse of T.E. The state next called W.E., who recanted her accusations against Melvin Echols. She denied telling anyone except Bingham and Oels that Echols had sexually abused her. W.E. claimed that she had accused Melvin Echols of sexually abusing her so that she could move out of her parents' house and live in a foster home. W.E. stated that she did not think that she would get Melvin Echols in trouble by making these accusations. W.E. also asserted that she had been threatened by the prosecutor between her first and second grand jury appearances. Following W.E.'s testimony, the state presented several witnesses who testified that W.E. had told them that she had been sexually abused by Melvin Echols.

Two days after the start of the trial, a police investigator discovered from school records that R.E. had been in California at the time that R.E. claimed that she had witnessed Melvin Echols beat T.E. Further investigation revealed that R.E. did not have any scars on her body from the alleged beatings by Melvin Echols. The prosecutor informed the court of these discoveries but indicated that she still intended to call R.E. as a witness. However, it became clear that R.E. would claim her privilege against self-incrimination if called to testify. The prosecutor then stated that she would not call R.E. as a witness since R.E. was unavailable given her intent to exercise her privilege against self-incrimination. Melvin Echols' attorney then announced his intention to call R.E. and stated that her testimony was crucial to his case. The attorney asked Judge Rowland to direct the state to grant use immunity to R.E. or to dismiss the case.

The following day, the prosecutor indicated that the state would not grant immunity to R.E. because R.E. was a codefendant and because the state anticipated filing future charges against her arising from the recently discovered false statements. In fact, five additional perjury charges had apparently already been drawn up resulting from the recent discoveries, accordingly subjecting R.E. to a total of eleven counts since the state had also indicated that it would seek to cancel the immunity agreement. Melvin Echols made an offer of proof that if R.E. were called as a witness, she would testify that she and W.E. concocted W.E.'s accusations against him because W.E. wanted to live in a foster home, explaining that W.E. wanted to live in a foster home because her parents were very restrictive. R.E. would also testify that she and W.E. based their story on the experiences of their friend V.S. who was living in a foster home by virtue of making a similar complaint. Finally, Melvin Echols indicated that R.E. would testify that she had lied to Oels and the grand jury because she was pressured by the state because of the threat of perjury charges and the fact that she was on probation on charges in California.

Judge Rowland concluded that R.E.'s testimony was essential if Echols...