Surina v. Buckalew

• Decision Date: 02 January 1981
• Docket Number: Nos. 5205,5462,s. 5205
• Citation: 629 P.2d 969
• Parties: Andrea SURINA, Appellant, v. The Honorable S. J. BUCKALEW, Judge of the Superior Court and State of Alaska, Appellee. STATE of Alaska ex rel. SUPPLEMENTAL GRAND JURY FOR MAY 1980, Petitioner, v. The Honorable Allen T. COMPTON, Judge of the Superior Court for the State of Alaska, First Judicial District, Respondent. John Doe, Real Party in Interest.
• Court: Alaska Supreme Court

Page 969

629 P.2d 969

Andrea SURINA, Appellant, v. The Honorable S. J. BUCKALEW, Judge of the Superior Court and State of Alaska, Appellee.

STATE of Alaska ex rel. SUPPLEMENTAL GRAND JURY FOR MAY

1980, Petitioner,

v.

The Honorable Allen T. COMPTON, Judge of the Superior Court

for the State of Alaska, First Judicial District,

Respondent.

John Doe, Real Party in Interest.

Nos. 5205, 5462.

Supreme Court of Alaska.

Jan. 2, 1981.

As Amended April 6, 1981.

William L. Choquette, Artus & Choquette, Anchorage, for appellant. Robert C. Bundy, Asst. Dist. Atty., Larry Weeks, Dist. Atty., Anchorage, for appellee, in No. 5205.

Timothy J. Petumenos, Asst. Atty. Gen., Anchorage, Daniel Hickey, Chief Prosecutor, Wilson L. Condon, Atty. Gen., Juneau, for petitioner, in No. 5462.

Before RABINOWITZ, C. J., and CONNOR, BURKE and MATTHEWS, JJ., and COOKE, Superior Court Judge.

OPINION

RABINOWITZ, Chief Justice.

The issue presented by these proceedings is whether, in the absence of any authorizing statute on the subject, a promise of immunity by a state prosecutor and court may be used to compel testimony from a witness in a criminal proceeding, despite the witness's claim of the privilege against self-incrimination. We conclude that under proper circumstances, the testimony so immunized may be compelled.

In regard to the Surina appeal, one Rick Greenwell was charged with the robbery of a gas station, allegedly committed with an unidentified black individual on October 14, 1979. In the course of the police investigation, it was learned that appellant Andrea Surina, an employee of a bar across the street from the gas station, could place Greenwell in the immediate vicinity of the robbery in the company of a black individual at the time of the robbery, and that she had seen in Greenwell's possession a firearm matching the description of that used in the robbery.

At the preliminary hearing in Greenwell's prosecution, Surina appeared as a witness for the state. After responding to several preliminary questions, Surina refused to answer, on the grounds of her privilege against self-incrimination, ¹ the question, "Did you have occasion to discuss the subject of guns or weapons of any kind with (Greenwell and his companion)?"

The state then moved the superior court for an order compelling appellant's testimony. The state submitted an affidavit from the state district attorney to the effect that the state was granting appellant use and derivative use immunity from her testimony, and transactional immunity as to the robbery. ² The state also submitted a letter from the United States Attorney for Alaska, binding the federal government to a grant of use and derivative use immunity for appellant's testimony. Additionally, the state agreed to file various complaints and motions to dismiss those complaints with prejudice, in order to further protect Surina.

A hearing was held on this motion at which appellant was called to the witness stand. Again, the preliminary questions posed by the prosecutor were answered; but again, this time on cross-examination, appellant refused to answer defense counsel's inquiries on various matters pertaining to her conversations with Greenwell concerning the gun. The superior court found that the immunity offered was sufficient to protect appellant, and ordered her to answer the questions. Although appellant obeyed the court's order to answer a few of defense counsel's questions, appellant's attorney finally prevailed upon her to absolutely refuse to answer the question, "Did you ever possess (the gun allegedly used by Greenwell in the robbery) before?"

The superior court held appellant in contempt and ordered her incarcerated until such time as she agreed to testify, setting bond in the amount of $1,000. An Emergency Stay was granted by a justice of this court and the case thereafter came up to this court on a petition for review.

The procedural history of the second case, State of Alaska v. Compton, is somewhat different, although the same basic issue is posed. This case is an original application for relief under former Appellate Rule 25(f), involving an application to compel testimony of a witness (John Doe) in connection with a grand jury investigation. The superior court denied the application.

A subpoena to testify before a grand jury was served on the real party in interest. The prosecutor formally notified Doe's attorney that Doe was a target of the grand jury investigation, and proposed a consensual immunity agreement under which Doe would be given use and derivative use immunity for the testimony given. The prosecutor also indicated that, if Doe did not agree, the prosecution would seek an order compelling testimony based on a grant of use and derivative use immunity. Doe's attorney was made aware of the pending Surina v. Buckalew case and given copies of the pleadings.

Thereafter, Doe's attorney informed the prosecutor that Doe intended to rely upon his privilege. On the same day, the foreman of the grand jury requested the Attorney General to confer upon Doe a "grant of immunity sufficient to protect his privilege against self-incrimination." The Attorney General then signed an affidavit granting Doe use and derivative use immunity for responsive testimony given to the grand jury. This was included in a letter from the prosecutor to Doe's attorney advising him of the grant, and also of the state's intention to obtain an order compelling Doe's testimony and, in the event of non-compliance with the order, an order of civil contempt. The prosecutor also filed an application to compel testimony and a memorandum in support thereof. The superior court thereafter filed an order and opinion denying the state's application to compel testimony. It was from this order that the state filed its original application for relief to this court. The case was then consolidated with the Surina v. Buckalew case.

I. Appealability.

Although neither party addresses the issue of the appealability or finality of the superior court's contempt citation in Surina v. Buckalew, we think this an issue which must be addressed in light of some confusion possibly caused by our prior cases. ³

In accordance with our interpretation of federal law on the subject, ⁴ we have decided that where a party refuses to abide by court orders issued in connection with pending litigation, civil contempt orders against that party will be subject only to discretionary review on our part (i. e., by a petition for review). All criminal contempt sanctions, whether against a party or a non-party, and a contempt citation of either kind (civil or criminal) against a non-party, will be deemed appealable orders.

We think this policy will best ensure that the course of litigation is not impeded by a party's tangential objections, while still protecting the legitimate rights of all concerned. Our discretionary review power remains available where there is good reason for departing from the general rule. Since Surina v. Buckalew involves a non-party, the proper form of review is by appeal. Although filed as a petition for review, we will treat the case as an appeal and reach the merits. ⁵

As to the Compton case, we agree with the state's position that in view of the fact that there is no formal proceeding in the trial court against the witness John Doe, the real party in interest, a petition for review pursuant to former Alaska R. App. P. 23 and 24 is inappropriate. Further, the type of relief requested is that formerly categorized under the writ of mandamus. As such, the proper procedure to obtain our discretionary review is, under former Alaska R App. P. 25 (now Alaska R. App. P. 404), an original application for relief.

II. The Merits: Inherent Authority.

We begin by noting aspects of these cases which are not at issue here. ⁶ It is uncontested that, were the subject offers of immunity authorized by and made pursuant to statute, they would be constitutionally sufficient to compel testimony despite a Fifth Amendment claim. ⁷ It is also uncontested that there is no Alaska statutory provision authorizing such promises of immunity. Thus, we deal here not with a constitutional question, nor with one of statutory interpretation. Rather, it is our task to explicate the common law which we will apply in these situations unless and until the Alaska legislature acts to modify it. ⁸

Initially, we note that we have recently emphasized the wide discretion afforded to prosecutors under our system in making the critical decision whether to institute criminal proceedings in a particular case. Burke v. State, 624 P.2d 1240, 1246 (Alaska 1980). ⁹ This same observation applies, of course, to a decision not to bring action in a particular case. Also, we note that the ability of prosecutors to offer immunity in exchange for testimony has generally been regarded as a necessary and beneficial aspect of our criminal justice system. Those courts which have prohibited non-statutorily authorized grants of immunity have lamented the fact that their conclusion greatly hobbles the criminal justice system:

Situations such as that with which the prosecution is faced in cases like the present demonstrate the crying need of appropriate enabling legislation, either in and of itself affording the immunity in question as to prosecution for all crimes in which his testimony tends to incriminate him; or, perhaps better still, authorizing the district attorney and the court, under proper safeguards, to extend immunity whenever the proper administration of the criminal law demands it.

Apodaca v. Viramontes, 53 N.M. 513, 212 P.2d 425, 430 (1949). Commentators have also emphasized the salutary effect of allowing prosecutors to exchange immunity for testimony:

As indicated, the main reason for refusing enforcement of non-statutory promises of immunity is the judicial fear that the government's right and duty to prosecute would be bargained away. But this attitude seems...