State v. Gonzalez

• Decision Date: 04 June 1993
• Docket Number: No. S-5003,S-5003
• Citation: 853 P.2d 526
• Parties: , 29 A.L.R.5th 747 STATE of Alaska, Petitioner, v. The Honorable Rene J. GONZALEZ, Judge of the Superior Court, Jill Jahnke-Leland, Peter H. Leland, and Jeffrey S. DeGrasse, Respondents.
• Court: Alaska Supreme Court

Page 526

853 P.2d 526

61 USLW 2786, 29 A.L.R.5th 747

STATE of Alaska, Petitioner, v. The Honorable Rene J. GONZALEZ, Judge of the Superior Court Jill Jahnke-Leland, Peter H. Leland, and Jeffrey S. DeGrasse, Respondents.

No. S-5003.

Supreme Court of Alaska.

June 4, 1993.

Eric A. Johnson, Asst. Atty. Gen., Anchorage, Charles E. Cole, Atty. Gen., Juneau, for petitioner.

Margi Mock, Ray Brown, Asst. Public Defenders, John B. Salemi, Public Defender, Anchorage, for respondent Jeffrey S. DeGrasse.

Jeffrey F. Sauer, Juneau, for respondent Jill Jahnke-Leland.

Before MOORE, C.J., and RABINOWITZ, BURKE, MATTHEWS and COMPTON, JJ.

OPINION

MATTHEWS, Justice.

Article I, section 9 of the Alaska Constitution states that "[n]o person shall be compelled in any criminal proceeding to be a witness against himself." This section does not prohibit compelling a person to testify in a criminal case against another person, even though the testimony may show that the witness was guilty of a crime. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981); State v. Serdahely, 635 P.2d 1182 (Alaska 1981) (per curiam). However, a witness who is compelled to testify must be granted some type of immunity from prosecution.

There are two types of immunity from prosecution in current usage. Transactional immunity, the more protective type, prohibits prosecution of a compelled witness for a crime concerning which the witness is compelled to testify. The narrower form, use and derivative use immunity, allows prosecution of the witness for the crimes referred to in the compelled testimony, but prohibits the use of the compelled testimony and its fruits in such prosecutions. Surina, 629 P.2d at 971, n. 2. In Surina and Serdahely, pursuant to our supervisory powers, we approved of transactional immunity as a matter of practice but expressed no view as to whether use and derivative use immunity might also be constitutionally permissible.

Alaska Statute 12.50.101, enacted after Surina and Serdahely were decided, authorizes an order compelling testimony based on a grant of use and derivative use immunity. In the present case this statute has been challenged as unconstitutional under article I, section 9 of the Alaska Constitution. The superior court and the court of appeals have concluded that the statute is unconstitutional. We granted the state's petition and now affirm the decision of the court of appeals.

FACTS AND PROCEEDINGS

On the evening of May 8, 1990, Jill Jahnke-Leland, Carl Jahnke-Leland, Peter Leland, and Jeffrey DeGrasse were arrested for the murder of Rick Zaug and the attempted murder of Tom Moore. Earlier that day Zaug and Moore had sailed from Ketchikan to Thorne Arm to go fishing. That evening the two men tied their boat to a public mooring buoy to which another boat was already tied. Soon thereafter a tragic dispute arose over use of the buoy. After angry words were exchanged, Moore and Zaug were fired upon from the shore; Zaug was killed and Moore was seriously injured.

Leland, DeGrasse, and Carl and Jill Jahnke-Leland all gave taped statements to the police. Leland and DeGrasse admitted that each had shot at Zaug and Moore from the shore. Jill Jahnke-Leland stated that after she had words with Zaug and Moore, she headed toward shore and fired a gun shot in the air to scare Zaug and Moore. Jill Jahnke-Leland also stated that soon after she fired that shot into the air, DeGrasse and Leland began firing.

Leland, DeGrasse, and Carl and Jill Jahnke-Leland were each indicted for first-degree murder, attempted first-degree murder, and first-degree assault. Jill Jahnke-Leland was convicted of manslaughter and assault. She appealed to the court of appeals. Her appeal was pending during the proceedings hereinafter described and during the presentation and consideration of this case by this court. ¹

In the subsequent trial against Leland and DeGrasse, the state moved to compel Jill Jahnke-Leland to testify under AS 12.50.101. ² Alaska Statute 12.50.101 allows the state to compel a witness to testify in exchange for immunity from use or derivative use of the compelled testimony in a criminal prosecution. The trial court denied the state's motion, ruling that AS 12.50.101 violates article I, section 9 of the Alaska Constitution, which protects individuals against compelled self-incrimination. ³ Leland and DeGrasse were then tried without Jill Jahnke-Leland's testimony. The trial ended with a hung jury. On retrial, the state renewed its motion to compel Jill Jahnke-Leland to testify. The trial court again denied the motion on constitutional grounds. The state sought review and the court of appeals affirmed the trial court's decision. State v. Gonzalez, 825 P.2d 920 (Alaska App.1992). We granted the state's petition for hearing from this decision.

IMMUNITY AND THE PRIVILEGE AGAINST SELF-INCRIMINATION

This case presents two issues: (1) What is the scope of the Alaska Constitution article I, section 9 privilege against self-incrimination? and (2) Does AS 12.50.101 provide immunity which adequately matches the protection of the constitutional privilege? We address each issue in turn.

Scope of the Privilege

The issue of the scope of article I, section 9 is a question of constitutional law which we decide de novo. Constitutional interpretation follows the "rule that the intent underlying ... constitutional language should first be gathered from the plain meaning of the language itself." Baker v. City of Fairbanks, 471 P.2d 386, 397 (Alaska 1970). As the court of appeals recognized, this inquiry is not controlled by any one source of authority, such as United States Supreme Court precedent or an appeal to the intent of the framers of the Alaska Constitution. Rather, such authority is considered and, when appropriate, followed when helpful in discerning the "intention and spirit of our local constitutional language and [whether the right invoked is] necessary for the kind of civilized life and ordered liberty which is at the core of our constitutional heritage." Id. at 402 (emphasis added).

In the present case, our inquiry is controlled by Alaska precedent. The state and DeGrasse acknowledge that the scope of article I, section 9 is set forth in E.L.L. v. State, 572 P.2d 786 (Alaska 1977):

The privilege against self-incrimination applies where the answers elicited could support a conviction or might furnish a link in the chain of evidence leading to a conviction. But, a witness may not refuse to testify where there is no real or substantial hazard of incrimination....

Id. at 788 (citations omitted). Thus, in Surina v. Buckalew, 629 P.2d 969, 977 (Alaska 1981), we stated: "where the hazard of incrimination has been removed, the privilege against self-incrimination is no longer required." Surina, however, left open the question of what type of immunity would "remove" "the hazard of incrimination." From these authorities we can piece together the scope of the article I, section 9 protection against self-incrimination: (1) an individual may not be compelled to give testimony unless the state has taken measures to remove the hazard of incrimination; and (2) an individual faces a hazard of incrimination whenever "the answers elicited could support a conviction or might furnish a link in the chain of evidence leading to a conviction." ⁴

AS 12.50.101 and the Scope of the Privilege

We now reach the question at the center of this case: does a grant of use and derivative use immunity remove the hazard of incrimination? We do not doubt that, in theory, strict application of use and derivative use immunity would remove the hazard of incrimination. See Kastigar v. United States, 406 U.S. 441, 468, 92 S.Ct. 1653, 1668, 32 L.Ed.2d 212 (1972) (Marshall, J., dissenting). In a perfect world, one could theoretically trace every piece of evidence to its source and accurately police the derivative use of compelled testimony. In our imperfect world, however, the question arises whether the judicial process can develop safeguards to prevent derivative use of compelled testimony that satisfy article I, section 9. Because we doubt that workaday measures can, in practice, protect adequately against use and derivative use, we ultimately hold that AS 12.50.101 impermissibly dilutes the protection of article I, section 9. Our conclusion rests on two bases.

First, we are persuaded that problems of proof and ordinary human frailties combine to pose a potent threat to an individual compelled to testify. The accused faces proof problems because all evidence regarding use of compelled testimony necessarily rests in the hands of the state. Human frailty presents a further obstacle because the accused is reduced to probing the faded memories and incomplete recollections of the state's agents in tracing the path of the compelled testimony from the point where it is given to the point where it is used. Justice William Brennan expressed these twin concerns in his dissent in Piccirillo v. New York, 400 U.S. 548, 552, 91 S.Ct. 520, 522, 27 L.Ed.2d 596 (1971) (Brennan, J., dissenting). According to Justice Brennan: all the relevant evidence will obviously be in the hands of the government--the government whose investigation included compelling the individual involved to incriminate himself.... [T]his argument does not depend upon assumptions of misconduct or collusion among government officers. It assumes only the normal margin of human fallibility. [People] working in the same office or department exchange information without recording carefully how they obtained certain information; it is often impossible to remember in retrospect how or when or from whom information was obtained.

Id. at 568, 91 S.Ct. at 530-531; see also Kastigar, 406 U.S. at 469, 92 S.Ct. at 1669 (Marshall, J., dissenting).

For this important reason, we also reject the state's proffered analogy between compelled testimony and coerced confessions. In a case involving a coerced confession, the facts...