Dennis Ray ANTHONY, Appellant, v. STATE of Alaska, Appellee.
No. 1774.
Supreme Court of Alaska.
April 1, 1974.
Monroe Clayton, Dist. Atty., Fairbanks, John E. Havelock, Atty. Gen., Juneau, for appellee.
Before RABINOWITZ, Chief Justice, and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, Justices.
BOOCHEVER, Justice.
Appellant Dennis Ray Anthony was convicted by a jury of first degree murder1 after a trial lasting five days. From multiple assignments of error we find controlling an issue pertaining to the failure to give a cautionary instruction with reference to the testimony of an alleged accomplice.2
La Wayne Hofhines died in the late evening hours of January 21, 1972, the victim of seven gunshot wounds. Two of the seven bullets entered from the front, one piercing his chest and the other, his right forehead. The remaining five entered from the rear at the base of the skull. All seven shots were fired at close range.
Verna Louise Hofhines “discovered” her husband‘s death and reported it to a neighbor who called the police. Evidence developed at trial indicated that on the night of the murder Anthony was in possession of a .22 caliber Colt automatic pistol which the ballistics tests of the Federal Bureau of Investigation demonstrated was the weapon used to fire the empty shell casings found at the scene of the death.
A complaint was filed against the appellant and Verna Louise Hofhines and a joint preliminary hearing was held. Six witnesses were called, and the FBI ballistics reports were introduced. The state‘s theory at the time of the hearing was that Verna Hofhines killed her husbаnd with a weapon procured for her by Anthony. Based upon the testimony at the hearing, Verna Hofhines was held for trial, and Anthony was discharged, the district judge finding insufficient evidence of guilt to bind him over for trial as an aider or abettor.
Grand jury proceedings against Anthony were commenced March 17, 1972. The only witness before the grand jury was one Cpl. Swackhammer of the Alaska State Troopers. His testimony amounted to a summary of the same evidence which had been adduced at the preliminary hearing;3 he added only a statement that one Katie Williams told him that she saw a brief meeting between Anthony and Verna Hofhines in a bar on the night before the killing. During the grand jury proceedings, the state persisted in its theory that Anthony aided and abetted Verna Hofhines in the murder of her husband. The grand jury returned murder indictments against both Hofhines and Anthony.
A joint jury trial of the two defendants commenced on June 12, 1972. Soon after the selection of the jury, Verna Hofhines entered a plea of guilty to the murder
Verna Hofhines said she saw Anthony again in the French Quarter Bar approximately two days before her husband died, at which time he told her to “leave everything to him.” She saw Anthony again at approximately 5:30 p. m. at her home on the evening of her husband‘s death. When her husband came home, Anthony left. Verna Hofhines testified that she then met Officer Clements of the Fairbanks Police Department, with whom she worked as a narcotics agent. She and Officer Clements went to the Flame Lounge where a “buy” was supposed to occur. When the seller did not arrive, she left the Flame Lounge and arrived home at 8:34 p. m. She discovered upon entry that her husband was not dead as she had thought he would be. She returned to the Flame, where she met Anthony at around midnight, at which time he advised her that she was a widow. She said that she remained at the Flame Lounge until approximately 2:30 a. m., when she returned home to find her husband dead on the living room floor. She testified that upon arriving home she saw some shell casings near her husband‘s body, and she picked one up and put it into her diaper bag.
The state adduced considerable evidence in corroboration of Hofhines’ testimony. Katie Williams confirmed that Hofhines and Anthony had conversed together in the French Quarter Bar. Steve Carlin testified that he loaned a .22 caliber sеmi-automatic Colt pistol to Anthony at 4:30 or 5:00 p. m. on the day of the murder because Anthony said he wanted to go rabbit hunting. Carlin said that when the weapon was returned at about midnight, there were only one or two shells in it, but that there had been eight at the time of the loan. An FBI ballistics expert testified that he had conducted tests which indicated that Carlin‘s pistol was the weapon which had fired the six empty shell casings found by the police in the Hofhines’ living room. A neighbor was able to identify as gunshots two “cracks” heard between 8:00 and 9:30 p. m. on the evening of the killing, thus establishing a probable time of death.
I. THE ACCOMPLICE CAUTIONARY INSTRUCTION.
We first consider Anthony‘s contention that the failure to give the mandatory instruction that the testimony of an accomplice ought to be viewed with distrust was an error which we must consider on appeal despite the failure of trial counsel to request the instruction or object to the trial court‘s omission of it.
Based upon her testimony, Hofhines was an accomplice in the killing of her husband. Accordingly, the failure to give the instruction constitutes error.5
[D]espite the fact that an instruction as to the weight to be given an accomplice‘s testimony was not requested, it is not necessary for such a request to have been made.8
Despite our disinclination to reverse where counsel for the defense has not aided the trial judge in properly applying the law to the facts of his client‘s case, we reluctantly conclude that the failure of the court to give the cautionary instruction is an error which we must notice on appeal.
We must now consider whether the omission of the cautionary instruction was a prejudicial error requiring reversal or was merely harmless еrror.9 We look first to those cases interpreting similar mandatory accomplice instruction rules. Construing a territorial statute similar to Rule 30(b), two pre-statehood cases held that wherever the primary evidence supporting conviction is the testimony of an accomplice, the failure to give the instruction is prejudicial error.10 Here, where
Recent federal decisions have held that failure to give a сautionary instruction where an accomplice gives testimony crucial to conviction is prejudicial error.11 The state in its brief all but concedes that reversible error was committed, stating:
In cases involving accomplice testimony the jury is unaware of all the deals, prejudice and distrust between the criminal parties and it becomes necessary to instruct the jury concerning an accomplice, the necessary corroboration required of such accomplice testimony and the weight to be afforded it by the jury.
It is therefore, the logical purpose of
Rule 30(b) , and other instructions pertaining to accomplice testimony, to inform the jury of such intrigue, contrivance, distrust and prejudice to afford fundamental fairness to the parties consistent with due process of law.
The state seeks to avoid the impact of the concededly applicable rule by arguing that the cross-examination of Verna Hofhines and defense counsel‘s closing argument sufficiently apprised the jury of the lack of reliability of accomplice testimony,12 so that the failure of the court to give the accomplice instruction was harmless. Although the state relies upon the questions asked on cross-examination, Verna Hofhines’ answers are material in assessing its impact. For instance, in response to a general question regarding her reasons for changing her plea and testifying for the state, Verna Hofhines was allowed to relate at length a story of her own contrition and feeling that Anthony was “more animalistic than human“, “need[ed] to be punished as well as myself” and was a substantial contributing cause of her own criminal behavior. These responses made the need for the cautionary instruction manifest. But even supposing cross-examination and closing argument to have been devastating, the purpose of the rule is to raise the issue of accomplice credibility above mere adversary colloquy. The giving of the instruction to view the testimony of an accomplice with distrust clothes the issue with the cloak of the judge‘s impartial authority and thus mandates application of that criterion in the jury‘s deliberation. For this reason alone, the failure to give the accomplice instruction cannot be regarded as harmless under the circumstances of this case.
The state also suggests that sufficient corroborating evidence was adduced so that the error was harmless under the test enunciated in Love v. State.13 Only if we can fairly say that the error “did not appreciably affect the jury‘s verdict”14 can we conclude that infringement of the right to the instruction was harmless. We must therefore compare the effect that Verna Hofhines’ testimony probably had upon the jury with the impact it probably would have had under proper instructions.15 In
II. SUFFICIENCY OF THE EVIDENCE
Anthony further argues that we should order his acquittal because the evidence at trial was insufficient to support conviction as a matter of law. Viewing the evidence, as we must, in the light most favorable to the state,17 we conclude that no serious challenge may be made to its sufficiency with respect to the defendant‘s conviction either as the perpetrator or as an aider and abettor.18 The only challenge оf substance urged by appellant is the contention that Verna Hofhines’ testimony is inherently unreliable. The assessment of witness credibility is exclusively within the province of the jury.
III. ISSUES WHICH MAY ARISE ON RETRIAL
Because retrial of this case will necessarily result in the presentation of several issues here assigned as error, we consider three issues which would not otherwise be dispositive.
A. The “Accomplice-as-a-Matter-of-Law” Instruction.
The trial court‘s instruction 10 stated in pertinent part:
You are instructed that an accomplice is one who, being of mature age and in possession of her natural faculties, cooperates with or aids or assists another in the commission of a crime. You are instructed that the witness Verna Louise Hofhines is an accomplice.
Appellant claims this instruction to be erroneous because the jury could infer from the word “accomplice” that the crime was perpetrated by more than one person, thus defeating the defense argument that Verna Hofhines was the sole perpetrator. In the context of this case, appellant argues, the accomplice-as-a-matter-of-law instruction does not help the defendant, but in fact defeats his most credible defense. Trial counsel specifically refused the opportunity to object to this instruction, and ordinarily for that reason we would not entertain appellant‘s argument.
There are no Alaska cases precisely in point. The failure to give an accomplice-as-a-matter-of-law instruction was an аlternative ground of reversal in Mahle v. State.19 There one Ahern testified that the sole defendant, Mahle, and two others planned a burglary in the presence of Ahern. Ahern did not participate in the actual burglary of a Sears store, but he subsequently did help pry open a stolen safe and dispose of its contents. He also received part of the money. The trial judge instructed the jury as to whom the law regards as an accomplice and explained what kind of corroboration was necessary. He refused to instruct that Ahern was an accomplice as a matter of law. We held this to be error. But Mahle is distinguishable from Anthony because in Mahle the testimony of one of the two non-defendant perpetrators as well as Ahern‘s own testimony made Ahern an accomplice in an indisputedly multi-party crime, and led to no inference of the defendant‘s participation in the crime.20 We note, however, that the trial judge in Anthony probably framed his instruction in understandable reliance on Mahle.
Likewise Flores v. State21 is not in point because participation of the three perpetrators other than the defendant insulated the defendant from the improper judicial implication that the defendant was involved, and, moreover, the accomplice question was held on the facts to be one for the jury.
The Oregon Supreme Court stated in State v. Gibson22 that the giving of the accomplice-as-a-matter-of-law instruction was error because of the inference of the guilt of the defendant which arises when the defendant is the only other person impliсated in the commission of the crime. There two persons beat and robbed a third. One perpetrator, previously convicted, testified against the other. The court found that instructing the jury that the testifying perpetrator was an accomplice was erroneous. However, the error was harmless because the defendant was admittedly a co-perpetrator of the beating, and only the question of complicity in the robbery was at issue.
In two California cases, the defendants have argued that the failure to give an accomplice-as-a-matter-of-law instruction was erroneous. In one, the California Supreme Court concluded that the requested instruction would have prejudicеd the defendant because of the inference of complicity arising therefrom. The court said:
However, where a codefendant has made a judicial confession as to crimes charged, an instruction that as a matter of law such codefendant is an accomplice of other defendants might well be construed by the jurors as imputing the confessing defendant‘s foregone guilt to the other defendants.23
In a similar vein, a California District Court of Appeals panel has more recently written:
Generally, when it appears that a witness is an accomplice as a matter of law, it is error for the trial court to refuse to so instruct the jury, thus leaving to the jury the determination of the question. The case at bench, however, presents a unique, but not unprecedented, situation with respect to this issue. If the trial court instructed the jury that the codefendant was an accomplice as a matter of law, he would, in effect, be instructing the jury that the codefendant was guilty of the offenses charged, thereby
invading the province of the jury with respect to the determination of her guilt or innocence. Under these circumstances, the trial judge was compelled to leave the matter to the jury, and there was no error in refusing to instruct that the codefendant was an accomplice as a matter of law.24
Nothing in the California or Oregon cases is inconsistent with any of the accomplice doctrines expounded in Mahle or Flores. We believe the Oregon and California courts correctly concluded that the risk that the jury would infer from the accomplice-as-a-matter-of-law instruction that the defendant was to be presumed guilty outweighs the risk that the jury would not properly discredit accomplice testimony. On retrial, therefore, rather than instructing that Verna Hofhines is an accomplice as a matter of law, the jury should be instructed as to the definition of “accomplice,” and should be told to view Verna Hofhines’ testimony with distrust if it finds her to be an accomplice.
B. The Corroboration Instruction.
The remaining portion of instruction 10, after quoting
The provision of Alaska law which is quoted means that the corroborating evidence required to be given before conviction can be hаd, must, in itself, and independent of all accomplice testimony, tend to connect the defendant with the commission of the crime charged against him . . . .
This law does not mean that the corroborative evidence alone must be sufficient to justify conviction, but it does require that unless in your judgment the corroborative evidence alone and by itself tends to connect the defendant with the crime charged, the defendant should be acquitted, no matter how convincing the accomplice testimony may be.
If you find that the corroborative evidence alone, if any, does tend to connect the defendant with the commission of the crime charged against him, then you should consider all of the evidencе against such defendant, including all accomplice testimony, and if all of the evidence, including both that of the accomplice and that of the corroborative testimony, convinces you beyond a reasonable doubt of the guilt of the defendant, you should render a verdict accordingly; otherwise, the defendant should be acquitted [emphasis added].
From this lengthy instruction, Anthony assigns the words, “against such defendant“, as error, asserting that this clause encouraged the jury to consider only evidence against the defendant and to ignore evidence adduced in his favor. Upon reading the whole of the instruction, we find this contention to be without merit, even if proper objection had been raised. We suggest, however, that to аvoid any risk of improper inferences the above quoted phrase should be deleted from future instructions.
We note, however, that the instruction errs in favor of the defendant by requiring the corroborating evidence independently of all accomplice testimony, to lead to an inference of guilt. We have several times held that corroborating evidence need only be sufficient to “induc[e] in the minds of the jurors a rational belief that the accomplice was speaking the truth when he implicated the defendant in the criminal event.”26 Our view that such is
C. The Aiding and Abetting Instruction.
A defendant need not commit every element of an offense to be guilty аs a principal under our law, so long as the state proves commission of the whole offense by someone and the aiding or abetting of the offense by the defendant.27 The trial judge‘s eleventh instruction explained this principle to the jury and concluded:
Thus it is not incumbent upon the state to prove beyond a reasonable doubt that a defendant committed every element of a crime alleged to sustain a conviction if you believe beyond a reasonable doubt that the offense was committed and that the defendant aided and abetted in its commission.
Appellant claims that the above language permitted the jury to find him guilty of murder even if it did not find that every element of the crime had been сommitted by someone. He derives this interpretation from the language “a defendant” in a case where only one defendant remained.
We find appellant‘s construction of the language to be strained and, taking into account the full text of the 29 jury instructions, so unreasonable that no juror could have received such an impression. However, to avoid confusion in a case where other instructions are not so carefully drawn by the trial judge, we suggest addition of the portion of the aiding and abetting instruction used by federal courts set out as follows:
You of course may not find any defendant guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons and that the defendant participated in its commission.28
IV. CIRCUMSTANCES FROM WHICH A JURY MAY DRAW IMPROPER INFERENCES OF GUILT
We do not anticipate that the defendant‘s courtroom status and appearance will present any difficulty upon retrial; nevertheless, we will discuss an error arising from the unfortunate timing of the retraction of his “own recognizance” release in this case.
Immediately after the testimony of Verna Hofhines, the trial judge became aware that Anthony had been released on his own recognizance since the time of the preliminary hearing. The trial judge ordered substantial bail imposed, and when Anthony was unable to post bond he was incarcerated. On the following morning, with the jury already in the courtroom, Anthony was brought into court under guard and unshaven. It is not clear whether Anthony was wearing his own, or jail, clothing; neither can we determine whether the presence of the guard was noticeable. Trial counsel moved for a mistrial upon the ground that the manifest change in Anthony‘s appearance and custodial status would lead to a jury inference that the trial judge had determined Anthony to be guilty.
A defendant is presumed innocent throughout the trial, and he should be permitted to face the jury with the appearance and dignity of a free and innocent man.29 Convictions have been reversed upon the ground that a defendant was
It is inherently unfair to try а defendant for crime while garbed in his jail uniform, especially when his civilian clothing is at hand. No insinuations, indications or implications suggesting guilt should be displayed before the jury, other than admissible evidence and permissible argument.31
Aside from being allowed his own attire, the defendant upon retrial should also be permitted to make himself clean and presentable. He should be allowed to shave and to shower before appearing in court. In the courtroom, guards should remain outside the observation of the jury, and should deliver the defendant to the counsel table before the jury‘s arrival if necessary; manacles, shackles and other physical restraints are, of course, to be avoided.32 Deviation frоm these standards is justified only to protect the safety and decorum of the court, to prevent a threatened escape, or to respond to some other manifest necessity.33 Such measures should be taken only after the defendant has been given an opportunity for a hearing, and the restraints imposed should be the least intrusive which will accomplish the desired result.34
Since we remand upon another issue, we need not scrutinize the record to determine whether prejudicial error was committed here. Our comments are in no manner intended as criticism of the trial judge for imposing substantial bail upon learning that a defendant in a murder trial who possessed a felony record was free on his оwn recognizance.
V. SUFFICIENCY OF THE INDICTMENT
Appellant makes a two-pronged attack against the indictment charging him with the murder: the evidence presented was both insufficient and incompetent. We decline to consider the sufficiency question since appellant did not raise any objection to the indictment before trial35 and since no excuse for this failure appears.36
The question of competency of evidence may be subdivided into two arguments again, the hearsay nature of the evidence and prejudicial misconduct of the prosecutor. Again we decline to consider these questions because of the failure to raise them in timely fashion.37
We do not discuss other assignments of error, finding them to be without merit or, if error, to be non-recurring events in a рroceeding already remanded for retrial. Due to the failure to give the mandatory cautionary instruction regarding the credibility of accomplice testimony, the judgment of conviction must be reversed.
Reversed and remanded.
ERWIN, Justice, with whom FITZGERALD, Justice, joins (dissenting).
In Bakken v. State, 489 P.2d 120, 127 (Alaska 1971), I dissented from the decision which found plain error in failing to give an instruction under
I adhere to the position I took in Bakken and would find that under the facts of this case basic prejudice does not clearly appear and thus the doctrine of plain error is not applicable.
The sole issue in this case, as in Bakken, was the credibility of the chief witness. The entire closing argument of both parties was basically directed to either building up or attacking her credibility. The fact that she had been charged with the crime and had entered a plea of guilty wаs the basic starting point for evaluating her motive for testifying. The standard instructions on evaluation of testimony of witnesses on the basis of bias and interest in the outcome of the case were given. Specific instructions were given to the jury on the need to corroborate her testimony in the event the jury found she was an accomplice.
Under such circumstances I am unable to hold that the failure to give the cautionary instruction that accomplice testimony should be viewed with distrust constituted such basic and fundamental unfairness to call for the intervention of this court without requiring objection in the trial court.
I agree with the decision of the majority as to the other issues raised by appellant and would affirm thе decision of the trial court.