State v. Schwin
| Decision Date | 30 May 1997 |
| Docket Number | No. A-5925,A-5925 |
| Citation | 938 P.2d 1101 |
| Parties | STATE of Alaska, Appellant, v. Peter A. SCHWIN, Appellee. |
| Court | Alaska Court of Appeals |
Eric A. Johnson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Margi Mock, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.
In November 1992, an Alaska grand jury charged Peter A. Schwin with first-degree murder, robbery, and various other crimes stemming from a drug related homicide committed in January 1991. Schwin moved to dismiss, claiming that his state prosecution was barred by a federal grant of use and derivative use immunity he received in April 1992, when he was compelled to testify in a federal drug conspiracy prosecution arising from the January 1991 homicide. Following an evidentiary hearing, Superior Court Judge Karen L. Hunt found Schwin's prosecution barred by Alaska's constitutional guarantee against compulsory self-incrimination. Alaska Const. art. I, § 9. Accordingly, Judge Hunt dismissed Schwin's charges. The state appeals the superior court's dismissal order. We reverse.
On January 22, 1991, the Anchorage Police Department began investigating the recent disappearance of William E. Koch. Early on, it became clear that Koch had likely been the victim of a homicide arising from a cocaine transaction involving seven or eight conspirators. Suspicion focused on two members of the conspiracy as the persons responsible for the homicide: Peter Schwin and Tim Donnelly.
The Alaska State Troopers soon joined the Anchorage Police Department in investigating the case; the Federal Bureau of Investigation also began to participate; and ultimately, the investigation took shape as a federal-state task force headed by prosecutors from the offices of the Anchorage District Attorney and the Alaska United States Attorney. By June 1991, Schwin had confessed to a federal investigator that he and Donnelly had murdered Koch. Schwin's description of the murder, and a map he drew for the investigator, led to the discovery of Koch's body.
Even before this, state and federal prosecutors had determined to focus initially on developing and prosecuting federal drug conspiracy charges, then on pursuing state homicide charges. 1 A federal grand jury convened on the case in October 1991 and indicted Schwin and Donnelly on conspiracy charges on January 28, 1992. An attorney was appointed to represent Schwin on the federal charge; by March 1, 1992, Schwin had entered into a plea bargain with the United States Attorney's office.
Under the terms of the bargain, the government promised certain sentencing concessions in return for Schwin's plea of guilty to the federal conspiracy charge and his agreement to testify truthfully against his codefendant, Donnelly. At Schwin's insistence, the plea agreement included a provision stipulating that his testimony against Donnelly would be compelled by a formal grant of use and derivative use immunity. 2
Donnelly stood trial in federal district court in April 1992. Schwin appeared as a prosecution witness; after invoking his privilege against self-incrimination, he was formally granted use and derivative use immunity, and, in accordance with 18 U.S.C. § 6002, the court ordered him to testify. 3 Schwin testified pursuant to that order.
Seven months later, in November 1992, the state indicted Schwin for murder, robbery, and related charges arising from the Koch homicide. Schwin moved to dismiss the charges, claiming that they were barred by his federal immunity grant.
Schwin based his motion to dismiss primarily on State v. Gonzalez, 853 P.2d 526 (Alaska 1993), in which the Alaska Supreme Court interpreted the Alaska Constitution's privilege against self-incrimination to require that transactional immunity be given before the state can compel an unwilling witness to testify. In Gonzalez, the court expressed "doubt that workaday measures can, in practice, protect adequately against use and derivative use" of the compelled testimony, id. at 530 (emphasis in original), and concluded that use and derivative use immunity "cannot meaningfully safeguard against nonevidentiary use of compelled testimony." Id. at 531. 4
In moving to dismiss, Schwin argued that, under Gonzalez, the federal immunity he had been given to testify against Donnelly should be treated as a grant of transactional immunity, since only transactional immunity could shelter him from the dangers of nonevidentiary use of his testimony.
Upon a preliminary consideration of Schwin's motion, the superior court decided that the Alaska Constitution applies in a limited number of cases involving grants of immunity by other jurisdictions--"only in those cases where the degree of cooperation between the two jurisdictions creates risks similar to [the risks of nonevidentiary use] outlined by the Gonzalez court." According to the superior court, "[u]nder this approach, the nature and scope of the interjurisdictional investigative contacts regarding an individual who was compelled to testify in the other jurisdiction would determine whether that individual would be entitled to transactional immunity in a subsequent Alaska prosecution."
By way of clarification, the superior court explained:
Where the state's contacts with the compelling jurisdiction are limited and at arms-length, the policy concerns of Gonzalez are not implicated and an individual's right against self-incrimination is adequately protected by use/derivative use immunity. Where the state's contacts with the compelling jurisdiction are more substantial, the concerns outlined by Gonzalez can only be addressed by affording an individual transactional immunity from state prosecution.
The superior court took pains to distinguish this inquiry into interjurisdictional contacts from a "taint" hearing of the kind traditionally held in cases involving use and derivative use immunity:
Unlike a Kastigar/Murphy[5] taint hearing, such a hearing would focus on the nature and scope of interaction between the two jurisdictions rather than on the source of the prosecuting state's evidence. In the course of such a hearing, the state would have to reveal, inter alia, the nature and scope of its joint activities, the identities of those participating, the number of meetings and/or other contacts, and the documents prepared and/or shared in the course of these activities.
The superior court went on to find that the burden of proving the nature of the interjurisdictional investigative contacts in any given case properly belonged to the state, and so ordered an evidentiary hearing at which the state was required "to establish by a preponderance of the evidence that its investigatory relationship with federal authorities did not compromise the defendant's right against self-incrimination."
Following an extensive evidentiary hearing into the state/federal investigation in Schwin's case, the superior court found that "the contacts between state and federal prosecutors, between state and federal investigators, and between state prosecutors and federal investigators were too numerous and too extensive for the higher constitutional protection of Gonzalez not to apply."
The court made clear that it based this finding "especially ... on the nature and extent of the interactions between the state and federal authorities after it became known that defendant was going to be compelled to testify and was going to be given immunity for his testimony." After considering and rejecting a number of legal arguments advanced by the state, the superior court concluded that, under Gonzalez, Schwin was entitled to transactional immunity and that dismissal of Schwin's charges was therefore required. 6
The state then filed this appeal. On appeal, the state renews the legal arguments it advanced below: that Schwin's case should be governed by the federal grant of use and derivative use he was actually given, that this level of immunity is adequate to protect Schwin's privilege against self-incrimination, that Schwin's federal testimony was not actually compelled, and that he has forfeited his right to claim anything more than he was expressly promised. In short, the state insists that the Alaska Constitution's guarantee of transactional immunity does not extend to Schwin's federal testimony. 7
In response, Schwin emphasizes the limited scope of his argument: he does not, strictly speaking, contend that the Alaska Constitution actually required that he be given transactional immunity instead of use and derivative use immunity in return for his federal testimony; rather, according to Schwin, Gonzalez establishes that he can never adequately be protected from nonevidentiary use of his compelled federal testimony, and so, to meet the demands of the Alaska Constitution's privilege against self-incrimination, dismissal is necessary to shield him from derivative nonevidentiary use of his federal testimony.
Schwin's argument chases its own tail; for it quickly circles back to its own point of origin: the question whether Alaska's broad constitutional privilege applies in any way to Schwin's federal testimony. However put, this question must be answered, no.
The answer is foreshadowed by the first two cases of the Hazelwood trilogy. 8 Hazelwood was convicted of negligent discharge of oil. The investigation that led to his conviction was launched by his own radioed report of an oil spill, a report that Hazelwood claimed was covered by a grant of use and derivative use immunity set out in a federal statute. On appeal to this court, Hazelwood claimed that virtually all of the prosecution's evidence at trial had derived from his immunized report and thus should have been excluded. The state responded, in relevant part, that even if its investigative evidence...
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