Williams v. State

• Decision Date: 05 October 1979
• Docket Number: No. 4159,4159
• Citation: 600 P.2d 1092
• Parties: Michael Eugene WILLIAMS, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 1092

600 P.2d 1092

Michael Eugene WILLIAMS, Appellant, v. STATE of Alaska, Appellee.

No. 4159.

Supreme Court of Alaska.

Oct. 5, 1979.

Richard B. Collins, Collins, Inc., P. C., Anchorage, for appellant.

David Mannheimer, Asst. Dist. Atty., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before RABINOWITZ, C. J., and CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ.

OPINION

BOOCHEVER, Justice.

Michael Williams appeals his jury conviction for robbery, under AS 11.15.240, and the resulting six-year sentence. He and his brother, Dale, were tried jointly for the robbery of an all-night grocery in Anchorage just after midnight on July 27, 1977. The principal issue at trial was the identity of the robbers. The store clerk was able to identify Michael but not Dale. The state also planned to call Gary Prior, who lived with the Williams brothers, because Prior had told the police that he was outside of the store during the robbery and could identify both Michael and Dale. Prior, however, invoked his fifth amendment privilege against self-incrimination ¹ and refused to answer any questions at all beyond his name and address, even after being held in contempt for his refusal. ² Because the trial court knew in advance of Prior's intended refusal to answer questions, the attempted questioning occurred out of the jury's presence.

Ultimately, the jury convicted Michael and acquitted Dale. On appeal, Michael asserts only one error in his trial: the refusal of the judge to allow the jury to see Prior on the witness stand and to hear his fifth amendment invocations. ³ We affirm the trial court.

While no Alaska case has considered this precise issue, the overwhelming weight of authority from other jurisdictions holds that neither party may call a witness when it knows that that witness will refuse to answer questions put to him or her. ⁴ The reason for the prohibition was well stated in Bowles v. United States, 142 U.S.App.D.C. 26, 31-32, 439 F.2d 536, 541-42 (D.C. Cir. 1970), Cert. denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971) (citation omitted):

The jury may think it high courtroom drama of probative significance when a witness "takes the Fifth." In reality the probative value of the event is almost entirely undercut by the absence of any requirement that the witness justify his fear of incrimination and by the fact that it is a form of evidence not subject to cross-examination.

While we can imagine certain cases in which the defendant's constitutional right to call witnesses in his behalf ⁵ might arguably require that a witness refusing to testify nevertheless be called, ⁶ this is clearly not such a case. Any inference that the jury might draw from Prior's refusal to testify would be wholly speculative and unsupported by other evidence. ⁷ Williams claims that he wanted Prior placed before the jury so that the jury could see that Prior fitted the grocery clerk's description of the robber more closely than did Williams. There are other means, however, by which Prior's physical appearance could have been shown to the jury. ⁸ Williams' assignment of error, therefore, must be denied.

Williams also attacks as excessive his six-year sentence. We may not set that sentence aside unless we find it to be "clearly mistaken." ⁹ Although Williams was only eighteen, and had a relatively good juvenile record, we cannot find clear error in Judge Ripley's sentence, especially since he specifically imposed no minimum time to be served. ¹⁰ Our examination of the judge's sentencing remarks convinces us that he conscientiously considered and applied the Chaney ¹¹ criteria. We cannot, in reviewing this case, overlook Williams' unfavorable pre-sentence evaluation, nor the fact that Williams took part in an armed robbery, even if his partner carried the gun. ¹²

The judgment of conviction and the sentence are AFFIRMED.

1 U.S.Const. Amend. V states: "No person . . . shall be compelled in any criminal case to be a witness against himself." Art. I, sec. 9 of the Constitution of the State of Alaska states in part: "No person shall be compelled in any criminal proceeding to be a witness against himself."

2 Prior, at this time, was under indictment for murder jointly with a third Williams brother, Dennis. Prior's attorney advised him to refuse to answer any questions involving in any way his relationship with the Williams brothers.

3 Williams protested the judge's refusal to put Prior before the jury when he was called by the state, and later in the trial, he tried to call Prior as his own witness.

4 E. g., United States v. Bowles, 142 U.S.App.D.C. 26, 439 F.2d 536 (D.C. Cir. 1970) (en banc), Cert. denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971); People v. Dikeman, 555 P.2d 519 (Colo.1976); Commonwealth v. Greene, 445 Pa. 228, 285 A.2d 865 (1971).

5 U.S.Const. Amend. VI; Alaska Const. art. I, § 11.

6 Thus, for instance, in Bowles the defendant was seeking to prove that Smith had committed the charged murder, and had introduced testimony that Smith had admitted the killing. Two dissenting judges believed that the trial court erred in refusing to allow the jury to hear Smith's invocation of the fifth amendment, as they found Smith's silence corroborative of Bowles' other evidence. Cf. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (exclusion, on hearsay grounds, of reliable testimony regarding third...