State v. Gonzalez, A-4063
| Decision Date | 14 February 1992 |
| Docket Number | No. A-4063,A-4063 |
| Citation | 825 P.2d 920 |
| Parties | STATE of Alaska, Petitioner, v. The Honorable Rene GONZALEZ, Jeffrey S. DeGrasse, Carl Jahnke-Leland, and Jill Jahnke-Leland, Respondents. |
| Court | Alaska Court of Appeals |
Eric A. Johnson, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for petitioner.
Margi Mock, Ray Brown, Asst. Public Defenders, and John B. Salemi, Public Defender, Anchorage, for respondent Jeffrey S. DeGrasse.
Michael A. Thompson, Juneau, for respondent Carl Jahnke-Leland.
Jeffrey F. Sauer, Juneau, for respondent Jill Jahnke-Leland.
Before BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge. *
In this case, we review a superior court order deciding that Alaska's witness immunity statute violates the Alaska Constitution's privilege against self-incrimination. We affirm the superior court's order.
Jill Jahnke-Leland, Carl Jahnke-Leland, Peter H. Leland, and Jeffrey DeGrasse were jointly charged with first-degree murder, attempted first-degree murder, and related offenses stemming from a shooting incident near Ketchikan. The superior court ordered separate trials for the defendants. Jill Jahnke-Leland was tried first. The jury acquitted her of murder and attempted murder, but convicted on the lesser-included offenses of manslaughter and assault.
Peter Leland and Jeffrey DeGrasse elected to proceed jointly and were tried next. Their jury acquitted them of first-degree murder and attempted murder but deadlocked as to lesser-included offenses and the remaining charges. The superior court declared a mistrial and scheduled a retrial on the unresolved charges.
Prior to the retrial, the state issued a subpoena for Jill Jahnke-Leland to appear as a prosecution witness against Leland and DeGrasse. The state sought to compel Jahnke-Leland's testimony by offering her immunity in compliance with Alaska's witness immunity statute, AS 12.50.101(a), which assures that "no testimony or other information compelled under ... [an] order [of immunity], or information directly or indirectly derived from that testimony or other information, may be used against the witness in a criminal case...."
Jahnke-Leland moved to quash the subpoena. Asserting her constitutional privilege against compulsory self-incrimination, Jahnke-Leland claimed that the statutory prohibition against use of her testimony or information derived therefrom--"use and derivative use immunity"--was constitutionally deficient and that she could adequately be protected against self-incrimination only by a broader grant of immunity categorically precluding her from being prosecuted for any transaction as to which she was compelled to testify--"transactional immunity."
Superior Court Judge Rene J. Gonzalez granted Jahnke-Leland's motion to quash the subpoena. Judge Gonzalez found the witness immunity statute's provision for use and derivative use immunity to be insufficient and concluded that "only transactional immunity is adequate to protect an individual's right against self-incrimination under Article I, § 9 of the Alaska Constitution."
The state then applied to this court for review of Judge Gonzalez's order. 1 Because the case presents an important legal issue of first impression, the immediate resolution of which would further public interest, we granted the state's application and directed briefing on the merits. 2
The issue presented in this case is whether the Alaska Constitution will permit the state to compel potentially self-incriminatory testimony from a witness by an offer of use and derivative use immunity, or, conversely, whether a broader form of immunity--transactional immunity--is required. 3 Although this issue is one of state constitutional law, decisions construing the federal constitution's privilege against self-incrimination provide the backdrop against which the state constitutional issue must be decided.
The fifth amendment to the United States Constitution guarantees that "[n]o person ... shall be compelled in any criminal case to be a witness against himself...." The importance of this constitutional privilege would be difficult to exaggerate: "[T]he American system of criminal prosecution is accusatorial, not inquisitional, and ... the Fifth Amendment privilege is its essential mainstay." Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964). In Ullmann v. United States, 350 U.S. 422, 426-27, 76 S.Ct. 497, 500-01, 100 L.Ed. 511 (1956), the Court described the privilege as "an important advance in the development of our liberty--'one of the great landmarks in man's struggle to make himself civilized.' "
Viewed literally, the language of the privilege would appear only to preclude compelling the accused in a criminal case to testify. However, it is now well settled that the privilege:
can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.
Kastigar v. United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212 (1972) (footnotes omitted). Likewise, it is settled that the privilege extends to a party or a witness alike. Malloy v. Hogan, 378 U.S. at 11, 84 S.Ct. at 1495.
Although the privilege against self-incrimination stands as an absolute bar against compelled testimony, it does not attach in all situations. By its own terms, it cannot be claimed when a witness has no reasonable grounds to fear that an answer might be incriminatory. See Hoffman v. United States, 341 U.S. 479, 486-87, 71 S.Ct. 814, 818-19, 95 L.Ed. 1118 (1951); see also McConkey v. State, 504 P.2d 823, 826 (Alaska 1972). This principle has led to the view that a witness may be compelled to testify in exchange for immunity from future prosecution.
The first immunity case to reach the Supreme Court was Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892). In Counselman, the Court considered the validity of a federal immunity statute authorizing the testimony of a witness to be compelled, provided that no "evidence obtained from a party or witness by means of a judicial proceeding ... shall be given in evidence, or in any manner used against him ... in any court of the United States." Id. at 560, 12 S.Ct. at 197.
The Court found the challenged statute deficient because it protected the witness only from direct use of compelled testimony, and not from use of the fruits thereof. Id. at 586, 12 S.Ct. at 206.
The Court condemned the statute in broad terms:
We are clearly of opinion that no statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him, can have the effect of supplanting the privilege conferred by the Constitution of the United States.... In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the question relates.
Id. at 585-86, 12 S.Ct. at 206.
Soon after Counselman was decided, Congress enacted an immunity statute authorizing the testimony of witnesses to be compelled upon a grant of transactional immunity. In Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896), the Supreme Court reviewed the transactional immunity statute.
The issue in Brown was whether any form of immunity could displace the constitutional guarantee against compelling a witness to provide incriminatory testimony. The Court observed that its earlier ruling in Counselman v. Hitchcock raised the inference that, if a "statute does afford ... [absolute] immunity against future prosecution, the witness will be compellable to testify." Brown v. Walker, 161 U.S. at 594, 16 S.Ct. at 645. The Court found this inference supported by prior cases addressing the privilege against self-incrimination, which in its view established that "if the testimony sought cannot possibly be used as a basis for, or in aid of, a criminal prosecution against the witness, the rule [against compulsory self-incrimination] ceases to apply, its object being to protect the witness himself and no one else...." Id. at 597, 16 S.Ct. at 647. Finding that the transactional immunity statute amounted to a virtual grant of amnesty from future prosecution, the Court concluded:
While the constitutional provision in question is justly regarded as one of the most valuable prerogatives of the citizen, its object is fully accomplished by the statutory immunity, and we are, therefore, of opinion that the witness was compellable to answer....
Notably, four justices in Brown v. Walker dissented from the majority opinion, maintaining that, under the fifth amendment, even a broad grant of transactional immunity did not justify the government in compelling potentially self-incriminatory testimony from a reluctant witness. Id. at 610-28, 16 S.Ct. at 651-52 (Shiras, J., dissenting), 628-38, 16 S.Ct. at 652-56 (Field, J., dissenting).
Sixty years later, in Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956), the United States Supreme Court was asked to reconsider the decision in Brown v. Walker and to adopt the views of the dissenting justices. At issue in Ullmann was the federal Immunity Act of 1954, which provided for transactional immunity in much the same language as the 1893 act challenged in Brown v. Walker. See Ullmann, 350 U.S. at 423-24, 76 S.Ct. at 498-99. In refusing to alter its prior holding, the Ullmann Court, in an opinion authored by Justice Frankfurter, emphasized that
the Court's holding in Brown v. Walker has never been challenged; the case and the doctrine it announced have consistently and without question been treated as definitive by this Court.... Th...
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