State v. Gieffels, 2846

• Decision Date: 27 August 1976
• Docket Number: No. 2846,2846
• Parties: STATE of Alaska, Appellant, v. Timothy Leroy GIEFFELS, Appellee.
• Court: Alaska Supreme Court

Page 460

554 P.2d 460

STATE of Alaska, Appellant, v. Timothy Leroy GIEFFELS, Appellee.

No. 2846.

Supreme Court of Alaska.

Aug. 27, 1976.

Avrum M. Gross, Atty. Gen., Juneau, Joseph D. Balfe, Dist. Atty., W. H. Hawley, Jr. and Ivan Lawner, Asst. Dist. Attys., Anchorage, for appellant.

Brian Shortell, Public Defender, Phillip P. Weidner, Asst. Public Defender, Anchorage, for appellee.

Before BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, ERWIN and BURKE, Justices.

OPINION

ERWIN, Justice.

In this appeal we are presented with the question of whether the trial court properly dismissed the indictment brought against appellee Timothy Gieffels. ¹

On July 23, 1975, Gieffels was indicted for first degree murder and armed robbery. In a subsequent indictment dated August 23, 1975, Gieffels was charged on the alternative theory of felony murder. On February 2, 1976, the trial court dismissed both indictments due to prosecutorial omissions of exculpatory evidence regarding the calibre of the weapon with which the deceased was killed. ² After this dismissal the trial court informed the State that it had 10 days to reindict.

Nine days later the State resubmitted an indictment against Gieffels. Testimony presented to the grand jury on February 11, 1976, disclosed that the accused was carrying a .38 calibre firearm in the Pines (an Anchorage bar) only hours before the deceased, a bartender at the Pines, was found dead in that establishment. Further, the cash register in the bar area was open and money was strewn about the counter. Additional evidence consisted of hair found at the scene of the shooting that might be Gieffels'; the fact that the defendant took flight to California shortly after the alleged homicide; and a suitcase of Gieffels' that was seized in California shortly after the shooting and contained certain items purportedly connecting the accused with the crime scene. The main non-hearsay evidence presented to the grand jury against the defendant was testimony of Larry Turner, who testified that Gieffels made statements on the night of the shooting to the effect that he was going to rob the Pines if he had to kill someone to do it so that he could obtain his child in Washington. The final witness called to testify before the grand jury was Investigator Clemens, an Anchorage police officer.

In reviewing the record we note that Clemens' testimony contains a substantial amount of hearsay. Specifically, he related the purported statements of eight witnesses: (1) statements by Sergeant Ybarrando, a San Diego policeman, to the effect that the defendant was avoiding arrest in California; (2) statements made by the defendant's brother, a San Diego resident, to Sergeant Stout, a California police officer, to the effect that Gieffels had indicated that he had in fact been involved in a homicide; (3) statements by Jinx Jodges, a resident of California, corroborating Larry Turner's testimony as to incriminating comments made by Gieffels the night of the alleged homicide; (4) statements made by Officer Ellis of the Benicia, California, Police Department to Sergeant Stout, relating an admission by the defendant to Ellis which would indicate his involvement in the shooting; (5) statements made to Investigator Thomas, an Alaska State Trooper stationed in Washington, by a defense investigator to the effect that the latter had turned over the 'murder weapon,' (i.e. an implied admission by the defendant; (6) a statement by a bail bondsman in Washington to Sergeant Thomas that Gieffels had remarked that the shooting occurred outside the Pines in a fight; (7) statements by Captain Mark Hogan of the Anchorage Police Department with regard to transportation of the suitcase from California to Alaska; and (8) statements made by the owner of the Pines indicating that certain money in the custody of the deceased on the night of the shooting was subsequently missing.

Before or after each absent witness' testimony was presented, the justification for the use of hearsay was stated on the record by the district attorney. The expense of transporting the absent witnesses, all of whom were outside the state, was advanced as the reason for using hearsay before the grand jury.

After being presented with the foregoing evidence, the grand jury returned a true bill against Gieffels to the charge of first degree murder based on the theory of felony murder.

A timely motion to dismiss the indictment was subsequently filed by the defendant; and on March 15, 1976, the trial court granted the motion on the grounds that the State had not shown compelling justification for utilizing the hearsay testimony and, in addition, had not demonstrated the reliability of the hearsay declarants. The State thereupon filed this appeal. ³

The case at bar concerns the interpretation of Criminal Rule 6(r), which provides:

Evidence which would be legally admissible at trial shall be admissible before the grand jury. In appropriate cases, however, witnesses may be presented to summarize admissible evidence if the admissible evidence will be available at trial. Hearsay evidence shall not be presented to the grand jury absent compelling justification for its introduction. If hearsay evidence is presented to the grand jury, the reasons for its use shall be stated on the record.

The issue is whether the expense of producing absent witnesses is a 'compelling justification' for the use of hearsay testimony before the grand jury.

In Burkholder v. State, ⁴ a case decided prior to the enactment of Criminal Rule 6(r), this court had the opportunity to deal with the issue of hearsay before the grand jury. In ruling that the indictment must be dismissed, we stated in Burkholder that the ABA Standards ⁵ regarding the prosecutor's role before the grand jury 'appear appropriate.' ⁶ The pertinent standard, § 3.6(a), provides that

A prosecutor should present to the grand jury only evidence which he believes would be admissible at trial. However, in appropriate cases the prosecutor may present witnesses to summarize admissible evidence available to him which he believes he will be able to present at trial. ⁷

In addition, we set forth the commentary dealing with standard 3.6(a), noting that it 'seems persuasive.' ⁸ The commentary referred to provides that:

As a general principle, the use of secondary evidence before a grand jury should be avoided unless there are cogent reasons justifying the presentation of a matter on the basis of such evidence. On the other hand, some jurisdictions allow an indictment to rest on evidence which would not be admissible at trial, e. g., Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). The need to use a summary of available evidence may arise in cases involving voluminous records or where an absent witness has given a written statement but is not available at the time and circumstances justify prompt grand jury action. Similarly, where the victim of a criminal act is seriously injured and therefore is unavailable, someone to whom the relevant facts have been related should be permitted to relate to the grand jury what has been told. A third illustrative situation exists where the safety of an important witness reasonably warrants that his identity remains covert and his statements have been recorded and can be presented to the grand jury in sufficient detail to warrant an indictment. ⁹

In a subsequent opinion, Taggard v. State, ¹⁰ we specifically approved of § 3.6(a) of the American Bar Association's Standards Relating to the Prosecution Function, and once again set forth the commentary in a footnote.

After the decision in Taggard, Criminal Rule 6(r) went on the provide that sentences in the rule were derived from § 3.6(a) of the ABA Standards. However, rule 6(r) went on to provide that

(h)earsay evidence shall not be presented to the grand jury absent compelling justification for its introduction. (Emphasis added)

State v. Johnson ¹¹ was the first case in which this court dealt with the question of what constitutes compelling justification for the introduction of hearsay testimony to the grand jury. In that case Johnson was charged with grand larceny. The only witness that testified before the grand jury was an employee of the store where the alleged crime had occurred. Although he had not actually seen Johnson take any items, the store employee had participated in Johnson's apprehension. It was apparently the intention of the State to call an additional witness-the store security guard who allegedly saw Johnson remove goods from the store. However, the security guard was not present when the grand jury met because the had left the state two days earlier to be with her dying father. As a consequence, the employee who did testify not only described to the grand jury what he saw, but also testified as to statements made to him by the security guard regarding the incident.

Johnson subsequently filed a motion to dismiss the indictment on the ground that the evidence presented to the grand jury was insufficient. The trial judge granted the motion and the State appealed. In reversing the trial court we noted that:

It was not improper to allow this hearsay testimony before the grand jury. The reason for (the security guard's) absence was explained to the grand jury, and there was some assurance that she would be present at the trial of the case. In light of the necessity of (the security guard's) absence on that day, the use of the hearsay was justifiable. ¹²

In a subsequent opinion ¹³ we characterized the Johnson case as involving an 'unavoidably absent hearsay declarant.'

This court again reached the issue of what constitutes a compelling justification for the use of hearsay testimony at grand jury in Galauska v. State. ¹⁴ The facts disclose that in that case Galauska and a man named Roger Peter were charged with murdering a third man. When the indictment was sought against Galauska and Peter, the...