McCracken v. Corey

RABINOWITZ, J., C. Before CON- BOOCHEYER, NOR, BURKE and MAT- THEWS, JJ.

OPINION

CONNOR, Justice. appeal

This is an a denial of a writ corpus. of habeas charged McCracken was arrested and being with of a fire- possession a felon in arm, a law1 violation of both Alaska parole A revo- parole.2 conditions hearing was scheduled to his cation charges.3 trial on the criminal McCracken restraining applied temporary for a order injunction staying the rev- preliminary proceeding ocation until after the criminal claimed that failure to reverse trial. He the order of would force him to hearing pre- stand mute at the order the criminal trial. serve his defenses superior court decided that the revoca- proviso with the hearing proceed, persons closed to all “essentially necessary” and other than those on “any testimony given behalf the de- defense shall not be used . any way whatsoever fendant testify under oath at did not McCracken present any the revocation witnesses. After state, by the the board presented witnesses had violat- found that McCracken parole by unlawfully ed his conditions of release and remanded him to possessing a firearm arrest, day petitioner-appel- of his 1. AS 11.55.030. 3.On two count lant’s officer filed a charge activi- the criminal violation probation- categorized 2. Petitioner himself as a Shortly ty was arrested. er, McCracken parolee. but fact he is a thereafter, by grand indicted McCracken January specifically parole on 1976 was weapon possession jury counts of for three non-possession firearm. conditioned by a felon. imprisonment lawless that fundamentally sen- serving original custody to continue later, pursuant merely is not erroneous them months the trial Four tence.4 Hence, principle the familiar on all void. acquittal but ended inapplicable in habeas judicata is that res counts. really ... corpus proceedings of habeas a writ petition McCracken’s principle the larger an instance but process of due claiming denial corpus collaterally judgments void that He now was denied. impeached.” omitted] [citations appeals. Supreme with the Court’s agree We also Burford, v. I. in statement Darr 214-15, 70 94 L.Ed.2d First, argues that the low petitioner (1950): 772-73 the denial of that court erred in er agree judica- res the authorities that judicata “AH is in res injunction preliminary applications for habe- apply not to ta does agree. We corpus proceeding. habeas open kept must be corpus. as The courts operate as judicata res did not Historically, through judi- injustice guard against to As the corpus.5 bar to a habeas Noia, cial error.” v. Fay omitted]6 372 U.S. [footnote stated in Court II. (1963): that, Second, petitioner claims notwith- essence of habeas “It is of the historical immunity bestowed standing to test so corpus proceedings' it lies that ground original two on the conviction on viction for the sale of narcotics 4. McCracken’s solely upon shooting two with intent to kill and was based counts of that indictment assault, during hearsay. firearm an court counts of use of a contended that this The State part part jurisdiction in in and reversed in affirmed hear claim because lacked appellant to that State, already presented v. 521 P.2d 499 McCracken this claim had twenty 1974), corpus. left two consecutive him with application an unsuccessful for habeas year time At the sentences. Appellant appealed denial writ but of that revoked, thirty-five approximately was had he appellant to file a dismissed for failure of we original years remaining sentence. on the Taggard represents reverse of brief. thus corpus application instant case—a habeas application At the denial of an common law by appeal appellant’s from convic- followed upon corpus for habeas was not conclusive tion. Parting subsequent applications. parte See Ex by Taggard the rule We resort resolved ton, (Ex. Eng.Rep. M. & W. appeal does that dismissal of a criminal Abbot, 1845); Burdett v. East necessarily preclude appeal. In so a second Suddis, 1811); King Eng.Rep. (K.B. v. that, doing implied we had we reached (K.B. Eng.Rep. 1 East appeal, Taggard’s corpus merits of habeas very principle country adopted was in this Taggard’s would have been a decision subsequent appeal. bar Burford, early See, parte g., 7 U.S. time. e. Ex light In of our decision (Cranch) 2 L.Ed. 495 today, expressly disapprove such now applies only present implication. inapplicable to suc- AS 12.75.230 6. AS 12.75.230 is part: provides pertinent applications corpus. case. That This statute cessive for habeas State, Perry with v. upon conclusion is consistent question finally “No once determined (Alaska 1967), upon corpus which proceeding by 429 P.2d be re-ex- habeas shall Taggard upon subsequent proceed- case did involve succes- relied. That amined ing another applications corpus. [emphasis for habeas of the kind." sive added] same emphasized unnecessary, portion purposes indi- for the AS 12.75.230 It is only apply opinion, cates that intended it was whether AS 12.75.230 decide corpus applications depart successive not, rule habeas law intended to common here, applica- judgment corpus. to a followed applications for habeas as to successive tion for concern, however, habeas relief. that such We reiterate our State, Taggard (Alas- v. “serious constitutional conclusion would raise by enacting ka AS we indicated that 242; State, questions.” Taggard P.2d legislature may 12.75.230 have intended Perry State, See Sanders 429 P.2d at depart judi- law from the common rule that res States, 11-12, United inapplicable corpus proceed- cata is to habeas ings. case, appellant appealed his con- court, is also clear that scheduling permitting parolee’s It at a revocation to be hearing prior to the trial on the against him subsequent used in a forced him to make an for the very trial conduct which forms the unconstitutional election between his due potentially basis revocation is incrimina- process right a defense at the ting. In Scott v. hearing7 against compulsory (Alaska 1974), we reaffirmed that “[t]he Although self-incrimination.8 we were not fundamental not to incriminate one’s then, to address the self . ‘extends not to answers DeVoe, (Alaska 1977), 560 P.2d 12 State support would in themselves a convic- concurring opinion Justice Rabinowitz might but also to furnish a those wrote: leading link in evidence to a the chain of proceed- “When the ” quoting conviction.’ [footnote omitted] ing alleged criminal con- 823, McConkey from v. 504 P.2d 826 probationer’s duct as to which the inno- (Alaska 1972). guilt adjudicated cence or remains to be The United has States Court proceeding, pos- in a criminal there is the held that an individual has a constitutional probationer’s of dilution of the sibility right any “proceeding, to remain silent in privilege against self-incrimination . informal, criminal, civil or formal or where problem view this is a of some my him in fu might the answers incriminate which calls significance for solution.” proceedings.” Lefkowitz v. ture presented with an 316, Id. at 16. We are now 70, 77, 322, Turley, 414 94 38 U.S. S.Ct. opportunity 274, (1973), to address this issue. Palmigi L.Ed.2d 281 Baxter v. 1551, ano, 308, 316, 1557, 425 96 U.S. S.Ct. parolee It is clear that the is entitled 47 L.Ed.2d 820 Petitioner process rights to certain due at a exercising right his maintains that hearing, including “opportu by virtue of penalized remain silent “he was person heard in and to nity to be process rights” put of his due the loss documentary witnesses and evidence.” hearing. a defense at The the revocation Brewer, 471, 489, Morrissey v. 408 U.S. repeated Supreme Court has United States (1972); S.Ct. 33 L.Ed.2d imposing a ly practice condemned the Gagnon Scarpelli, also v. 411 U.S. exercise of the penalty substantial for the 93 S.Ct. against self-incrimination. privilege hearing); (probation area is Lefkow most recent decision in this Stevens, McGinnis Cunningham, itz v. U.S. S.Ct. (Alaska 1975) hearing).9 (prison disciplinary case, In that an process requirements are de These due political party was told that officer of a fact-finding signed to insure an accurate grand jury before a he refused to process as well as the informed use of dis use of his waive from the later board, Gagnon cretion Scar York Election testimony under the New at at pelli, U.S. S.Ct. party removed from his Law he could be 663, for it neither L.Ed.2d at would serve holding office prohibited office and the state of the the interest of nor that five The Court held that years. liberty prohibits on the a state from to revoke conditional Fifth Amendment threatening in- testimony “by compelling basis of erroneous information. Brewer, McGinnis, Morrissey Alaska that the Consti- 7. 9.In we held Const, (1972); greater process 33 L.Ed.2d 484 art. inmate due Alaska tution affords an protections prison disciplinary 7.§ than the United States Constitution. compulsory 8. The to refrain from self-in- at 1236. guaranteed the fifth amend- crimination is ment to the United States Constitution art. I, 9, of the Alaska § Constitution. waive claim or ... Amendment the constitu- unless sanctions potent flict self- privilege Fifth Amendment . is surrendered privilege tional “intolera- found it the Court L.Ed.2d at 7. incrimination” at Id. at S.Ct. should that one ble teaching of a affirmed Lefkowitz to assert in order surrendered to be the state cannot of cases long line Id. at another.” privilege exercise condition the L.Ed.2d at self-incrimination against compulsory decision, constitutionally Supreme Court subsequent another A the forfeiture cases, California, these In all of right.10 McGautha protected (1971), has cast for the assertion L.Ed.2d 711 imposed “penalty” was the lan- validity self-incrimination of this continued privilege against on the doubt benefit, such as tangible case involved That loss guage automatic Simons.11 here is having contract. job procedure or a challenge to Ohio’s a revoca- forcing guilt pun- the defendant whether issues of trial on the single producing to choose between con- rejecting the defendant’s ishment. at la- him may incriminate evidence which procedure presented tention foregoing a remaining silent process ter trial or between his due tension intolerable defense, penalty constitutes privi- valuable sentencer and his right to address against self-in- privilege exercise of self-incrimination, the Court lege against crimination. analogous choice was noted criminal choices many other difficult cases, Supreme of In another line routinely attorneys their and defendants of wheth- problem has addressed Court the Court question,” face. “The threshold right constitutional of one er the surrender the elec- concluded, compelling “is whether im- imposes an of another for the exercise exercise of constitutional (between the tion v. United Simmons permissible penalty. extent appreciable to an rights) impairs 967, 377, 19 States, 88 S.Ct. 390 U.S. rights in- behind the policies of held that (1968), the Court 1247 L.Ed.2d 12 1470, 212, 28 at Id. at S.Ct. volved.” suppression testifies when a defendant Brooks v. year later in at 729. One L.Ed.2d object to to standing of hearing on the issue 1891, Tennessee, S.Ct. U.S. may not thereafter evidence, held that a (1972), the Court of L.Ed.2d him on the issue against be admitted testify, defendant requiring the statute placed the de- Reasoning guilt. witnesses all, any other defense at before obliged “was where he position in a fendant unconstitutionally infringed on believed, testify with what he give up either making its “by silent right to remain Fourth counsel, be a valid of advice accordingly: qualified Broderick, Simmons The court 392 U.S. 10.See Gardner (1968) (police offi- 20 L.Ed.2d 1082 S.Ct. question the we have no occasion “While immunity and to waive cer fired refusal and do the result in Simmons soundness of against privilege before self-incrimination so, its rationale was to the extent that not do corruption jury investigating bribery grand and constitutional a ‘tension’ between based on force); police them, within the Uniformed Sanitation policies the valid- rights behind and the Sanitation, 392 Men Ass’n v. Commissioner of regarded ity reasoning now be must of that U.S. 88 S.Ct. 20 L.Ed.2d 1089 question open . .” employees (Sanitation Dept, fired for refusal at 729. at 28 L.Ed.2d 91 S.Ct. Id. at jury testify grand and before before administra- may investigating corruption); proceedings be in McGautha tive choice 12. The defendant’s Jersey, Garrity distinguishable decision 385 U.S. 87 L.Ed. the defendant’s v. New (1967) (police testify officers at a revocation whether to testify protections procedural for failure to threatened with dismissal of the fewer because fixing hearing investigating proof revoca- afforded at a ticket convicted at lower burden Klein, Note, testimony); Spevack of Con- proceeding. 385 U.S. Revocation (1967) (attorney Liberty of a Crime: 17 L.Ed.2d 574 for the Commission ditional incriminating Limita- Jeopardy to furnish and Self-Incrimination disbarred failure Double records). tions, 74 Mich.L.Rev. probation- at on the same violates the at costly.” Id. assertion rights Amendment parolee’s er or Fifth 1894, 32 L.Ed.2d at 363. decide the constitutional declined to most recent Court’s their decision issue and have instead based conflicting con- nouncement on the issue supervisory powers.14 on their The Califor- Palmigiano, is in Baxter v. rights stitutional supreme nia People court 47 L.Ed.2d 810 S.Ct. Cal.Rptr. Cal.3d prison disciplinary (1976). In the context (1975), identical facing the implicitly the Court found that proceedings, whether revocation of on the ba- against inferences an in- drawing adverse the trial on charge, sis a criminal impose for failure to does not mate charge, violated the defendant’s penalty on the exercise of impermissible self-incrimination, stated: si- Amendment to remain one’s Fifth actually abridged “Whether or not it dictum, however, held, The Court lent.13 rights, defendant’s required should immunity that use would be upon choice him at his revocation forced criminal later instituted unnecessarily inconsistent hearing was against the inmate: values. with constitutional hearings are not disciplinary “Prison we [RJegardless of whether are consti- are but if inmates proceedings; so, compelled to do in the inter- tutionally proceedings to furnish compelled in those justice ests of in the exercise of our might evidence that incrimi- testimonial powers over supervisory inherent proceedings, nate them in later state, should alleviate courts of this they must be offered ‘whatever proba- facing the hard testimonial choice supplant privilege’ required loss subject tioners to ‘waive such im- not be they may also be liable conduct for which ” munity.’ prosecution.” to criminal Id. at 47 L.Ed.2d at S.Ct. 390, 533 P.2d at 1030. Cal.Rptr. Id. 120 Turley, from Lefkowitz v. quoting court concluded that The Coleman 316, 326, a revocation practice crime commission of another apparent analysis is of the above It charge ad- disposition of that prior cases that there is no clear standard many at least two of “the versely affects determining pen- what choices constitute a privilege policies underlying the and varied alty Id., the assertion of a constitutional 120 Cal. against self-incrimination.” First, opposed 392, a mere tactical per- decision. at 1032. Rptr. at 533 P.2d courts which a revocation mitting For this reason most state to conduct the estate trial offends the hearing prior have faced the of whether revoca- to a criminal against privilege underlying tion to the criminal trial notions of Note, Marshall, (1977); Brennan, joined by Law—Prison Dis- Constitutional Justice Justice 13. dissenting, Proceedings ciplinary Amend- wrote: and the Fifth Self-Incrimination, Privilege Against 55 compulsion upon Palmigiano ment “The is as obvi- Comment, (1977); compulsion upon v. Baxter ous as the the individuals N.C.L.Rev. 254 Garrity-Lefkowitz. Palmigiano: Crippled He was told that criminal Priv- Fifth Amendment A charges might brought against He Disciplinary be him . ilege Pro- in Prison for Inmates anything in the was also told that he said (1976). ceedings, L.Rev. 1976 Utah disciplinary against hearing could be used Thus, pos- proceeding. 867, him in a criminal People 13 120 v. Cal.3d See 14. sibility just of as real People self-incrimination 384, (1975); Cal.Rptr. 1024 penalty just and the threat of a as coercive.” 497, Rocha, Mich.App. 272 N.W.2d 699 86 [footnote omitted.] public policy (1978) (basing on their at 96 at 425 U.S. at S.Ct. grounds); State v. rather than constitutional 830. (1977); DeLomba, R.I. 370 A.2d 1273 117 great a deal The Baxter decision has received Evans, 664 252 N.W.2d State v. 77 Wis.2d Note, Rights in a of criticism. See Prisoner (Wis.1977). Baylor Disciplinary Proceeding, L.Rev. 620 29 996 Amendment, poses the mainte- an unfair dilemma by disrupting

self-incrimination “runs counter to our historic aversion at which state-individual balance” nance “fair against cruelty privilege reflected in the trial, where the burden the criminal Id., at Cal.Rptr. 120 self-incrimination.” must be of the defendant proving guilt The is P.2d at 1034. dilemma Id., 533 entirely by the state.15 shouldered by Court decision Commission, enhanced v. Waterfront quoting Murphy Baxter, may silence now be more because 12 84 S.Ct. proceeding than at a costly at a revocation (1964). is the dan- L.Ed.2d There trial.17 will the revoca- that the use ger prosecution hearing, with its lower standard conclude this di- authorities Some gain the criminal proof, evidence by requiring resolved lemma can be trial, respon- investigatory thus its slighting postpone the revocation the state Second, forcing sibilities.16 disposition after until between his to choose faced charge.18 prob- Most courts with the opportunity to be remain silent and it be suffi- can lem concluded heard, rising while to the level possibly ciently by granting use resolved Sard, In Melson v. Fifth prohibited by the later trial.19 “compulsion” 113-14, Florida, bility in the context. It not certain 15. In is Williams v. U.S. (1970) hearings applies Baxter to revocation L.Ed.2d whether (concurring dissenting prison opinion), Justice be drawn since and a distinction could hearings, disciplinary constitution, Black observed: at least under the federal require the minimum part do not same “A for truth. criminal trial is search Brewer, Morrissey process rights protect system designed due it is But also a 33 L.Ed.2d 484 by insuring U.S. S.Ct. criminal- ‘freedom’ ly punished that no one is Gagnon Scarpelli, U.S. first suc- unless State has (1973). admittedly Wolff v. McDon con- 36 L.Ed.2d 656 ceeded vincing difficult task of nell, jury guilty. defendant Stevens, That task more the Bill of See McGinnis v. is made difficult (Alaska 1975). may Rights, be and the Fifth be one The distinction Amendment however, meaningless, said sur- since it the most difficult barriers to process rights mount. Framers the bene- that the absence of due prison decided that testimo fits to be derived from the kind quired trial re- makes defendant’s important Rights ny the Bill of were well worth more than at revocation hear Rocha, ‘efficiency’ People Mich.App. ing. loss in that resulted.” 272 N.W.2d Scott v. P.2d 774 requiring we held that a defendant Judge dissent in Flint v. 18. See Chief Coffin’s comply pre-trial discovery with a order to fur- Mullen, (1st F.2d Cir. potential de- nish names and addresses of Advisory Bar American Association Committee fense witnesses and certain information relat- Sentencing and Review recommends ing violative use of an alibi defense was solely “[a] rights compulsory self- of the accused’s ordinarily crime commission another should incrimination under the Alaska Constitution. disposition prior that not be initiated of holding, that form of so we note “[o]ur Comm, Advisory Sentencing charge.” ABA on government extraordinary imposed an bur- has Review, Probation, Relating and Standards litiga- proof upon den of state in criminal 1970). (Approved at 62 Draft The Model 5.3§ tions.” Id. at 784. require go further a Penal Code would even and probation may conviction be Sills, before or (3d 17. See 422 DeVita v. F.2d 1172 Cir. revoked for crime. Model 1970), that Penal Code postpone sought a where a defendant (Proposed 301.3 Official Draft § inquiry disposi- state disbarment until after proceedings arising of tion criminal from the Sard, alleged rejected (D.C.Cir. same Melson v. misconduct. The court 402 F.2d 655 Henderson, 1968); argument F.Supp. defendant’s that violated Tinch v. 430 Coleman, against (M.D.Tenn.1977); grounds People v. 13 969 self-incrimination on guilt Cal.Rptr. wrong-doing that no P.2d inference of Cal.3d Rocha, attorney’s light (Cal. 1975); People be drawn from the silence. Mich.App. (1978); of the that Court’s in Baxter 272 N.W.2d Clifford, may in- adverse be from an Avant v. 67 N.J. 341 A.2d inferences drawn hearing, immunity prison disciplinary (requiring mate’s use in the silence at a 653-57 prison hearing); reasoning applica- disciplinary State of DeVita is of context of a dubious postponement court viewed of the revocation (D.C.Cir.1968), the F.2d 653 trial, until after the criminal on the reason- of whether “dilemma petitioner’s ing “the unfairness of the current hearing and seek his re- that revocation at the not so severe as to practice, even if rise lease, incriminatory state- uttering but risk deprivation, the level of a constitutional against him at his could be used ments that substantial it nevertheless so real and trial,” posing an issue Id. at as criminal public policy us on calls action values: competing grounds responsi- in furtherance of our lies in establish- “We think the solution enlightened to assure sound and bility a safeguards by pa- certain which the ing justice.” Id. at 1275. administration lessened at the revoca- rolee’s dilemma is parolee’s feel that hearing. We tion true, asserts, that, petitioner It is de- fear of handicap significant most grant immunity, a use he spite —the readily be elimi- self-incrimination —can divulge his defense necessarily have to Accordingly, . we hold nated. . hearing strategy prior at a revocation held self-incriminatory statements any to the criminal trial. For this reason hearing shall made in a revocation agree supreme with the California court against pa- affirmatively used method of han- not be that “the most desirable proceed- any subsequent criminal concurrent criminal dling problems rolee proceedings may ing.” omitted] [footnotes even well be for revocation Id. at 655. disposition of the to be initiated until after fashioned an Similarly, the Coleman court proceedings.” criminal Cal. related timely exclusionary whereby “upon rule ob- 533 P.2d at 1046.20 The state’s Rptr. jection at a testimony initiating prompt interest in held probation revocation of a criminal upon the occurrence ceedings charges arising disposition however. We ignored, cannot be offense alleged of the conditions out of the violation immunity use can think use and derivative evidence derived probation, of his parolee at a revoca- adequately protect the testimony, from such is inadmissible infringement of his con- subsequent proceed- probationer during sacrifice to the rights stitutional without . .” ings on the related state’s interest. at 1042. In Cal.Rptr. approach DeLomba, persuaded by A.2d are 117 R.I. We State In the and DeLomba. (1977), supreme adopted Island in Coleman the Rhode fairness, court, should not part adopted interests of relying remaining mute grant of use forced to choose between requirement either thereby surren proceeding, at a revocation immunity and derivative use defense, or hearing, dering given Randall, DeLomba, Or.App. 1389- R.I. 370 A.2d Evans, (1977); State v. Wis.2d Note, N.W.2d 668-69 Revoca Liberty, supra, tion of Conditional note 15 at course, can, require bail or 20. The state Contra, Montana, Ryan v. F.2d 553-54. 988, disposition pending detain the individual (9th 1978) (finding Cir. charge. Bar Associa- The American criminal tion, constitutionally required and that the was not Probation, Relating its Standards supervisory power had no im courts “upon showing supra, recommends law); munity Taylor, under Montana Roberts v. probable crime has been cause that another (1st cert. de 540 F.2d Cir. by probationer, the the committed 1076, 819, nied, 429 U.S. 50 L.Ed.2d S.Ct. discretionary authority to have court should Mullen, 100, (1977); Flint v. 499 F.2d 796 (1st pending bail the without detain 1974), concluding that there no Cir. was charge.” new criminal of the determination “compulsion” involved in this dilemma and Comm, Sentencing Advisory Re- and ABA view, on prosecution need not hold the criminal thus the trial first or given Probation, Relating 5.3 at § to Standards testimony immunity grant use 1970). (Approved Draft 62-63 Carr, People hearing; v. at the revocation 293, (1974); State v. 524 P.2d 301 185 Colo. “anticipated because and revocation he revocation the testifying at incriminating prosecuting Mr. incurring Attorney possibility the that the District our inherent exercise of In the infor- himself. access to all McCracken would have the administration over supervisory powers would presented be may mation which state,21 we this hold by justice courts pre- utilized of such information all with both is faced parolee where that Thus, felony for trial of the case.” paring upon criminal trial revocation and a to a de- present reluctance McCracken’s conduct, timely objection same the assump- his primarily was based on fense presented by testimony or any evidence22 order did not extend tion that court’s hearing is inad- parolee at a revocation testimony at any presented he the fruits subsequent criminal by state in missible hearing. revocation exclusionary applies rule This proceedings. con- expressed has Court prior the parolee’s equally to the fruits granted that a witness who has been cern “in remove hearing,23 order to answer a immunity be “not incentive to completely illegitimate any basis is some rational question there hearings in advance schedule revocation will him believing that it incriminate Cal.Rptr. at People trial.” 449, Meyers, 419 . .” Maness v. U.S. We that 1043. also hold 533 P.2d at 584, 598, 42 L.Ed.2d 95 S.Ct. revoca- advised must be (White, J., concurring). And Ste- any testi- evidence or proceedings that Marks, 86 S.Ct. vens 383 U.S. at the revocation mony by offered him 788, 794, (1966), the L.Ed.2d him admitted ceedings may not be stated: Court underlying at a trial subsequent think, has, “A witness we a constitutional offense. privilege against to stand on case, in- present petitioner fairly until it been self-incrimination has he would formed court that immunity, that demonstrated to him subsequent at given re- scope privilege as the it as broad offered at any testimony applicable is to him.” places, available hearing. Despite omitted] [footnote ex- attorney immunity, McCracken’s affidavit, Palmigiano, also 425 U.S. plained, that he did not Baxter through n.8, n.8, at the 47 L.Ed.2d present advise his a defense S.Ct. client Const, IV, presenta- also There 21. Alaska art 15. See is little that the §§ Davis, hearing may McCracken v. tion of evidence at a revocation by providing the incriminate the defendant leads. state with valuable information and applies 22. This rule defendant’s to the “compelled” Such evidence is in the sense testimony presentation own of other but to the by failing evi- either documents, evidence, such as witnesses and behalf, is virtu- dence on ally assuring own defendant “testimonial,” “incriminating” and which is parole. revocation of “compelled.” Scott v. Note, (Alaska 1974). See of Con- Revocation subsequent trial 23.We think Liberty, supra at stitutional 547-49. relating to same conduct as the revocation Scott, acknowledged evi- testimonial affirmatively proceeding, must show the state encompasses dence more individual’s than an from a inde- that it derived its evidence source testimony, properly state- own include pendent presented evidence ments or documents are “communica- hearing. the defendant Byers, tive” in Id. at 786. nature. California proof not limited 424, 432-33, “This burden of ... 402 U.S. taint; rather, California, negation imposes on the (1971); it Schmerber v. 763-64, 1831-32, duty prove prosecution the affirmative introducing proposes By 16 L.Ed.2d the evidence it use is derived evidentiary wholly legitimate independent of the items or witnesses at a revocation source a compelled testimony.” Kastigar hearing, implicitly “the defendant communi- v. United States, cates that such is relevant he believes evidence Note, being adjudicated.” Revo- matter Liberty, supra cation of Conditional note J., the (Brennan, joined by commentary ABA standards on n.8 J., dissenting). Marshall, concurring difficulty & in greater the point bation out defending such an action: court’s order Although the given on “any testimony informality probation states that The of a clearly relative [emphasis of the defense” compared behalf proceeding, added] revocation against the defendant “in could not be used original charge, trial an criminal un- of whatsoever,” we do not think that anyway, danger. the Relaxation of rules derlines demonstrated to McCracken clearly this evidence, admissibility of of the absence evidence or that the fruits of proof jury, a lesser burden of —fac- the revocation presented by him at tors such as these can lead to abuse trial. Had not be used at a later basing proceedings by knowledge full and aware McCracken had charge when upon a new criminal required by opin immunity ness of the in an ordi- proved offense could not be ion, but think that he would help we cannot nary criminal trial. de adequate conducted a far more Probation, 5.3, relating ABA § Standards hearing. at the fense Since To (Approved draft petitioner that had a rational basis for find defense, successful, may put forth a full being degree protection unsure of the while the victory. still be a hollow For actually grant court’s would may be successful in parolee probationer or trial, subsequent him at his criminal afford or the court persuading parole board proceed we reverse and remand for further parole probation or should not be re ings opinion. with this consistent voked, prosecution likely has most been and REMANDED. REVERSED given fairly comprehensive presentation defense. At parolee probationer’s or WITZ, Justice, concurring. RABINO Chief trial, prosecution will thus the criminal DeVoe, State prepared be better because the (Alaska 1977), I first addressed the the trial on the proceeding was held rights a defendant’s constitutional Part of the underlying criminal conduct. against self-incrimination the situation rationale or where the state seeks both is that the state against self-incrimination parole separate revocation and a criminal proof must bear the entire burden agree same conduct. I conviction for the and the state cannot guilt case in a criminal competing con- majority with to that to contribute require defendant issue here call for stitutional values testimony. own ini proof through his rule, adoption exclusionary of an under our at a revo of the accused’s defense tial view rendering any self-in- supervisory powers, inappropriately lessen hearing may cation or criminating statements made proof at trial at the the state’s burden hearing as well as probation revocation right against expense of the defendant’s any subsequent their inadmissible fruits Thus, agree I with the self-incrimination. However, this does proceeding. Supreme Court in of the California position not, mind, completely resolve the my 13 Cal.3d Cal. People v. probationer or difficult dilemma that (Cal. Rptr. parolee faces, still with a of such even solution in these preferable immunity. postpone is to circumstances when con- after the revocation until to a hearing prior fronted with a revocation As I prosecution. outcome of the several fac- weigh criminal trial still must my in DeVoe: noted in concurrence Not to deciding testify. tors whether to led the of such factors Consideration testify may mean recommend Bar Association to response will be no had American revoked because state’s evidence. The that: been made to the un- imposing without solely the state’s interests proceeding based revocation

A parolee probationer’s or ordi- burdens on the of another crime due upon commission rights. be initiated not narily should How- charge. of that disposition the Stevens, 543 Further, P.2d McGinnis ever, showing of cause probable a noted (Alaska 1975), we has committed crime been that another hearings prison disciplinary the context of court probation the probationer, the that: authority to discretionary should have regulations The of Corrections’ Division bail without the detain involving major infractions pertaining to of the new determination pending a constituting provide for felonies conduct charge. criminal attorney, to- district referral the local by the adopted been position This has that he advise the gether request with a and, ar- at least American Law Institute working days five institution within legislatures. state guably, several will prosecution be undertaken. whether omitted). (footnotes attorney 560 P.2d informs the insti- If the district will be under- prosecution tution that that “the opinion states majority trial, goes to there taken and the case initiating revoca- prompt state’s interest disciplinary no action tak- will be further upon the occurrence tion by the the offender en institution be ignored.” criminal offense cannot particular the conduct. if there is concern suggests ABA Standard probationer will not parolee the or parole I am of view that either the the ac- or will commit further criminal appear board, Department of Health and Social the court should detain the defend- tivity, Services, legislature or should consider Alaska, ant without bail until trial. pro- adopting regulation a similar or statute is a constitu- possible is not since there probation this viding parole or officer when to bail criminal seeking tional consti- revocation based on conduct Constitution, art. under Alaska pending tuting are must refer the matter crime State, I, bringing 11. attorney sec. Martin to consider the district 1974).1 Although attorney, cannot be charges. bail criminal If the district constraints, denied, suggesting non- if there is evidence within stated time informs the will proba- probation or officer that he appearance or that community, charges, then the officer can poses danger tioner seek criminal proceeding. If proceed can take these factors into considera- with the revocation court plan fixing attorney bringing or terms of district does tion in the amount bail Id. 1397. I be- charges, conditional release.2 protects suspend any option adequately lieve that officer must society. (Alas- integration P.2d eventual more, into Further 1. In Martin v. expansion area the court concluded that the the recent in the ka probationer’s rights by there States Su bail did not extend to situations in which the United proba- preme Gagnon Scarpelli, is not a criminal but Court in However, (1973), proceeding. cases, suggests that, granting denial of bail. court noted even those bail is ill advised: People Cal.3d appellant Ray While hold that Max we Cal.Rptr. Martin entitled bail under was neither (citations omitted), similarly the court noted: Act, or the Alaska Constitution Alaska Bail pretrial custody Where of one suggest pending bail should be withheld crime, accused of the state has available it proceedings only in unusual requiring procedures for bail or otherwise judges cases. have wide latitude in Trial restraining render un- conduct would imposing prehearing suitable conditions for necessary machinery immediate resort to the release, of bail. The other than denial revocation in those instances dis- denial bail constitute a needless proba- happens to be a where the accused ruption probation process negating tioner. program’s objectives of rehabilitation ceedings until after the outcome prosecution.

I will ade- procedure believe that such a probationer’s quately protect rights against self-incrimina- adequate state offering tion while to deal with criminal conduct measures probationers. by parolees committed MATTHEWS, JJ., dissent BURKE on the basis that court’s order immunity unambiguously completely petitioner’s privilege against self- protected incrimination. Alaska, DEPARTMENT

STATE of OF REVENUE, Appellant, DEBENHAM ELECTRIC SUPPLY

CO., Appellee. Alaska, STATE of DEPARTMENT OF REVENUE, Appellant, BERKHEIMERS, INC., Appellee. Gen., Spengler, Atty. Teo Asst. Avrum C.

No. 2105. Juneau, Gross, Gen., Atty. appellant. M. Supreme Court of Alaska. Holland, Kenneth A. Norswor- H. Russel Anchorage, ap- thy, Trefry, Holland &

June Berkheimers, Inc. pellee Wadsworth, Yerbich, Stanley Thomas J. Yerbich, Anchorage, appellee, Deben- & Co., Inc. Supply ham Elec.

OPINION J., RABINOWITZ, C. and CON- Before BOOCHEVER, NOR, MAT- BURKE and THEWS, JJ.

MATTHEWS, Justice. we are called to deter-

In this case 43.70.010(a)(5),which ex- mine whether AS tax empts gross receipts from the certain

Case Details

Case Name: McCracken v. Corey

Court Name: Alaska Supreme Court

Date Published: May 30, 1980

Citation: 612 P.2d 990

Docket Number: 3503

Court Abbreviation: Alaska