*1 brought question.34 Assessing into attor- or otherwise seek information which would in ney’s against Douglases for their claim. fees this case develop a factual basis legitimate pro- deter other suits to would appears Douglases It thus rights against abusive taxa- tect citizens’ burden of would have failed to meet their private citizens tion. No one besides those demonstrating genuine issue of fact had a taxes can be improperly who are assessed opportunity to they given express been an rights these in court.35 expected protect to 12(b)(6) do so at the time the motion was superior grant partial The sum- court’s granted to and that their Glacier against Douglases on mary judgment ability inappropriately was not do so Borough tax has issue of whether impaired by discovery limitations on efforts. interborough validly applied Treating 12(b)(6) motion as one for phone the commerce interstate calls under summary judgment, superi- we conclude the is Affirmed. The dismissal of the clause granting in or court did not err the motion. against Douglases’ complaint Glacier State Attorney’s Fees IV. Awarded to The dismissal of the is also Affirmed.
Glacier State Douglases’ complaint against Borough remanded for is Reversed and the matter The last contention in accordance with this proceedings further Douglases appeal is superior in this that the opinion. assessing attorney’s court erred in fees against them in favor of Glacier State. argument agree.
With this It is an attorney’s
abuse of discretion to award fees
against losing party good a who has in faith
litigated question genuine public inter
est. Gilbert v. Douglases The in this class Melody PRESTON, Appellant, presented action least one substantial claim, properly to which Glacier State was Alaska, Appellee. STATE of joined party, genuine public as a that is of No. 3757. importance constitutionality apply —the ing a long-distance phone local sales tax to Supreme Court of Alaska. calls. Although superior court criticized Aug. 1980. performance representing of counsel Douglases, good Doug- faith of the attorneys conducting lases and their joining
suit or in Glacier State was not superior following get Honor, finding, 34. The court offered the ex- faith. If we can Your planation attorney’s definitely for the award of fees to it was—a not —if there’s finding you Glacier say State: don’t we were in bad faith in our conduct. plaintiffs failed to research the law on THE I COURT: haven’t talked about that at questions the merce, of taxation of interstate com- And I all. don’t—it’s not before the court levy of taxes and failure a munici- you good whether pal corporation were faith or bad faith. to collect some taxes levied [Hearing rulings, filing on I clarification of Vol. at this case which resulted in the 21] Telephone Company Glacier State and other having expend great defendants effort in McCabe, Anchorage their defense. The customers and stockhold- (Alaska 1977), we cited as indicia Telephone Company three factors ers of State Glacier public litigation: interest plain- should not have bear the cost of the tiffs’ actions. (1) strong public policies; the effectuation of following exchange Doug- between the (2) people the fact that received numerous judge lases’ counsel and the trial also took success; plaintiffs’ litigation benefits from place: (3) private party the fact that could thought MR. JEFFRIES: . . . But I Your expected bring have been this action. good Honor that it meant felt we were not
597 *3 direct evidence at trial adduced in the burglary
of Preston’s involvement
presented by
accomplice,
an
itself
at trial
Clay.2
testified
9, 1977, he,
morning
of March
that on
Preston,
gave
Clay
Franklin’s
and Robert
job
her
at
the Fairbanks
wife a ride to
Clay’s sug-
At Robert
Hospital.
Memorial
gestion, they then drove
the residence
“rip
in order to
Charles “Chico” Williams
staying
Preston’s sister had been
him off.”
short
residence for a
time
the Williams’
departing
key
Mr. Williams the
she failed to return to
*4
using
she
to his house.3
had
they
when
arrived at
Franklin stated that
home,
produced a set of
Williams’
Robert
door,
Robert went
to the front
keys;
knocked,
returned,
suggesting
then
and
forget
burglary.
they
Nave,
David C. Steward and Thomas G.
was scared. Rob-
commented that Robert
Defenders, Fairbanks, and Bri-
Asst. Public
Franklin,
to
who
keys
over
ert handed
Defender,
Shortell,
Anchorage,
an
Public
Williams’
proceeded
open the door to
to
for appellant.
proceeded
The three entered and
home.
equipment,
of stereo
remove several items
Butterfield,
Atty.,
F.
Asst. Dist.
Rhonda
(cid:127)
sets,
a
When
Fairbanks,
gun.
television
and
Davis,
two
Harry
Atty.,
L.
Dist.
and
prop-
sell the stolen
Gen., Juneau,
attempted to
Gross,
Atty.
M.
for
Avrum
discovered its location and
erty, Williams
appellee.
police. A search warrant
informed the
RABINOWITZ,
J.,C.
Before
and CON-
Preston,
for the residence where
issued
BOOCHEVER,*
NOR,
BURKE, and MAT
lived,
Robert,
police found
and Franklin
and
THEWS, JJ.
in
items scattered
a number of the stolen
the field behind
house.
OPINION
appeal
of error on
first claim
Preston’s
RABINOWITZ, Chief Justice.
argu-
Preston’s
relates to the indictment.
she con-
appeals
emphasize
ments
two factors which
Melody Preston
from her convic-
is
indictment
burglary
dwelling1
tion
in
and the
tends demonstrate that
of
a
first,
before the
superior
eight years im-
the admission
court’s sentence of
defective:
statements;
grand jury
hearsay
certain
prisonment,
years suspended.
with three
of
*
punishable by im-
nighttime, it is
for
to the court
mitted at
case was submitted
This
year nor
resigna-
prisonment
one
for not less than
to Justice Boochever’s
decision
years.
being
more
a
than 15
If
human
is
tion.
dwelling
burgla-
within the
at the time of the
offense,
pro-
AS 11.20.080
1.At
the time of
ry during
nighttime
daytime,
pun-
it
is
vided:
by imprisonment
ishable
not
for
less than
person
dwelling
Burglary
who
house. A
in
year
years.
one
nor more than 20
dwelling
with in-
house
enters
breaks and
it,
having
Clay
2. Franklin
is
en-
the brother of
one-
in
a crime
to commit
tent
boyfriend,
Clay.
dwelling
intent,
time
Robert
breaks
with that
tered
weapon
dangerous
awith
or is armed
house
appears
sis-
lawfully
3. It
from
that Preston’s
the record
it,
person
is
or assaults
expected
pay
had been
rent to Williams
upon
ter
burglary,
is
conviction
guilty
him,
during
stay
peniten-
do
her
with
but had refused to
imprisonment
punishable
tiary
on
year
Williams and Preston’s sister were not
more than
so.
nor
than one
for not less
departure.
However,
best of terms
the time of her
years.
com-
if the
second,
privilege
prosecution
granted by
the failure of the
the fifth amendment
grand jury
to the
each of three
not
of the United States Constitution
inconsistent
statements made
testify
grand jury.7
In order to
Clay
police.
burgla
of the direct
grand jury
inform the
against appellant,
prosecu
ry evidence
presentation
to a
tor elected to have Franklin’s
confession
grand jury
governed by
Alaska Rule of
jury by one
repeated
before the
6(r).4
6(r),
Criminal
Under Rule
Procedure
investigators
gave
to whom Franklin
“compelling justification”
for the introduc
incriminating
Ordinarily,
statement.8
hearsay
tion of otherwise
evi
inadmissible
such evidence would be inadmissible hear
dence before the
must be dem
and, therefore,
say
competent
for use in
Frink v.
See
onstrated
on the record.5
Gieffels,
State
jury hearing.
162-63
1976).9
463-65
Gieffels,
In State v.
attorney recognized
state’s
the offered
(Alaska 1976), we
purposes
held that “[f]or
testimony
hearsay
subject
which is
interpreting
6(r)
Criminal Rule
6(r)
justification
compelling
the Rule
test.
equate compelling
necessity.6
with
in the case of Galauska
instigation
ruling
Our
Prior
proceedings against
Clay
(Alaska 1974)
is con
brothers
Preston also contends that indictment simply not justice, seek prosecutor’s introduction of the third state- “should P.2d Frink v. withholding ment made Franklin while conviction.” prosecu- his earlier statements violated the long court has 154, (Alaska This duty tor’s exculpatory to evidence.15 to “dis- obligated prosecutor held that the particular, Clay. Melody following In and knew Preston and Robert noted the facts in support Melody hearsay of She testified that Preston and Robert statements: residence, parents’ Clay living noted, at her were As we have tes- using She brother’s room. jury together presented and were her when taken day home from she came tified that one work, as to war- detailed account of the crime so equipment was stereo and there a conviction if the evidence is unex- rant Clay’s room. and Robert plained at trial. Peter’s or uncontradicted say anything Clay about didn’t and Robert itself outlined a detailed account statement equipment. they gotten the had where activity participation and the the criminal something caught glimpse of also Christina re- and Peter. The statement both Galauska gun. became like a Christina that looked concerning specific the manner lated details belong property to did aware that subsequent abandon- of the assault and the Clay, and she told them Robert Preston and injured in ravine. ment of the victim a leave, with them. and to take the stuff to the state to Peter’s statement In addition Clay Henry he knew the testified that Willie brothers, produced testimo- considerable corroborative residence on and was at their Testimony given ny Jury. at the Grand Wednesday, he saw some March when Galauska, seen Peter and Charlie were that driving equipment at the resi- in a bedroom stereo highway in toward the Galauska’s say where the brothers did not dence. The assault, shortly truck before the and that from, Clay Robert had had come but stuff morning truck was found the next in Galaus- Germany, and had was his stuff from said it driveway. Police testified to the ka’s officers $5,000. Henry Robert for offered to sell it to Clay presence truck. The of bloodstains in the belonged Henry equipment told officers further testified to Galauska’s admis- (Clay). Henry also testified he saw him having sion of seen Charlie in the bar on there, Henry gun Robert said was his. evening killing, of the and related Galauska’s Clay that Franklin owned also testified loaning party on truck to a third claim of his gray Officer or silver Trans Am. drove a evening. party The third testified stopped he testified that Frank Colletta addition, falsity ac- day claim. Galauska’s when silver Trans Am the of the testimony, proba- cording police it would dispatcher him that someone his had told carry following bly required the inert someone he have two men to with a CB radio was house, it, breaking suspected edge into his As we see of the ravine. Peter sufficiently had Am. Mr. Williams described the Trans corroborative this evidence vehicle, Col- story and he and Officer followed the to enable the of Peter’s Bar- vehicle at 10th and hearsay letta contacted the weigh properly the worth Peter’s occupants were of the vehicle nette. The statement and was sufficient. Preston, Clay, Melody Clay, Robert aspect With the consent of and a Mr. Hamilton. occupants, 6(q) forth one Alaska sets R.Crim.P. through looked Mr. Williams exculpatory standard: property. A his vehicle but did not find Sufficiency When the of Evidence. less than one was executed search warrant availa- that other has reason to believe premises where Preston week later on the away charge, explain ble evidence will residing, Clays the'stolen were produced and shall order such evidence to be property was recovered. prosecuting purpose may require the for that McKinnon v. attorney 14. Cf. subpoena . witnesses. hearsay (Alaska 1974) (evidence declar- of a requirement previously have held “[a] exculpatory We may justify professional the intro- status ant’s prosecutor present evi- hearsay appropriate statement duction of implicit in the man- dence Johnson, circumstances); State v. 6(q).” Frink date of Criminal Rule 1974) (validity upheld when in this Patent security guard and was a store the declarant *8 recognition the fact that “[t]he is assertion grand jury police were statements trained substantially officer whose expected evi- to call for cannot be eye- testifying a corroborated 165, kept ignorant.” Id. at of which it is dence witness). Court, Superior quoting 15 Cal.3d Johnson v. 459, State, (Alas- 527 P.2d 465 In Galauska v. 792, 248, 32, 34, Cal.Rptr. 794 539 P.2d 124 omitted), 1974) (footnote we also found ka (1975). support the indictment. sufficient to evidence 602 charac agree with Preston’s that we cannot any which jury evidence grand close as second statement of Franklin’s terization negate he knows to The guilt.”16 will tend that state in so far as evidence exculpatory requirement reason for from our stems incon mere fact of The concerns her. ment any view that suffers “before accused all automatically convert does sistency not grave apt inconveniences which are If exculpatory material. such evidence into felony to ensue the return indict- of a reading broad adopt to we were ment, there should be a determina- reliable rule, ac such exculpatory probability guilt.” tion made as to the of his turning way toward go long a tion would Gieffels, 460, (Alaska v. P.2d State 554 465 proceedings stage of the [grand jury] “this 1976). The as functions to intention It is our mini-trial.”20 into a justice,17 “shield” as well as a “sword” of must, appro we such a result and avoid and to operate “should control abuses degree to cases, a reasonable defer to priate government protect and the interests of in evaluat prosecutor the discretion of the accused.”18 he which the evidence ing the breadth of argues Preston that the second grand jury.21 present to the will
statement given by investiga Franklin to tors inculpating only and Robert Our evaluation of the evidence
Clay was sufficiently inconsistent with appellant contends exculpatory Franklin’s eventual confession to be con convinces us single that the as deviation be exculpatory sidered evidence. In Frink tween State, Franklin’s second and third state 154, 165(Alaska 1979), v. 597 P.2d we ments concerned his own involvement in quoted approval with language from a Cali the criminal transaction. The consistent opinion fornia stating that “when district thrust of these two statements was that attorney seeking an indictment aware of Preston and Clay had Robert been immedi reasonably tending negate guilt to ately involved in the burglary. The excul obligated he is ... to inform the patory quality only in grand lay the fact that he jury of its nature and existence had made inconsistent statements as to his Thus, . .”19 we must determine and, participation own thereby, somewhat whether the evidence is rea exculpatory, lessened his general own sonably credibility. Given tending negate to guilt, merely incriminating effect of admitting to present case, inconsistent. In the we find State, 154, (Alaska develop 16. Frink P.2d not v. 597 165 does have evidence for the de- Association, 1979), quoting every possibly Bar Stan- American fendant and lead favor- Relating dards Function Prosecution See able defendant.” also Cassell v. .to 3.6(b), (Approved Texas, 282, 302, 629, 639, § Defense Function at 89 339 U.S. 70 94 S.Ct. State, 1971); generally 839, J., v. (1950) (Jackson, dissenting) Draft see Coleman L.Ed. 855 40, (Alaska 1976). P.2d 553 stated view of the wherein Justice Jackson his jury function: See, Cox, g., F.2d e. United States v. 342 accuse, grand jury’s] power only [The 167, (Wisdom, J., concurring), (5th Cir.) 186 n.1 even not to convict. Its indictment does not 935, 1767, denied, 14 cert. 381 U.S. S.Ct. 85 guilt; presumption create all (1965). L.Ed.2d 700 charges proved be the trial must later 40, (Alaska jury, beyond 18. Coleman v. 553 P.2d and then a reasonable doubt. omitted). 1976) (footnote not be It need unanimous. prose- but does hear both sides 248, Court, Superior 19. Johnson v. 15 Cal.3d evidence, prob- cution’s and does not face the 32, 36, (Cal. Cal.Rptr. of a two Its lem choice between adversaries. 1975); see 590 P.2d also Gieffels evidence, duty prosecution’s is to if the indict unsupple- unexplained, uncontradicted mented, so, would a conviction. If warrant Gieffels, (Alaska 20. State merely puts its indictment accused 1976). trial. difference between the function jury 21. See Frink v. trial function of the Frink, prose- that “the deciding concluded is all the difference between obligation present exculpatory cutor’s evi- merely deciding case and case should that a pros- dence does not turn be tried. attorney; prosecutor ecutor a defense into
603 Clay, following exchange oc- inconsistency this participation, we find curred: veracity of Franklin’s minimally probative Q. day you What was that that took it thoroughly
or lack thereof.
property]
out
in the
stolen
[the
prior
questioned
regarding
at
trial
woods?
police.22
he made to
We
statements which
Well, whatever
days
A. A few
after.
to in-
prosecutor’s
that
failure
believe
day
proba-
it was that her [Preston’s]
grand jury Franklin’s
troduce before the
tion officer came out.
duty
earlier
did not violate his
statements
immediately
counsel
moved for a
Preston’s
evidence;23 the evi-
present exculpatory
mistrial,
The court
in-
which was denied.
was rea-
presented by
prosecutor
dence
formed Preston’s counsel he could “either
in the context of
sonably complete and fair
rest,
can draft a
you
let
the matter
or
proceeding.24
a
I’ll instruct
cautionary instruction and
assignment
of error on
third
He
jury with reference
to the matter.”
judge’s refusal
appeal concerns the trial
“Well,
replied,
point
imagine
I
it’s
mistrial.
Prior to
grant her motion for a
just hope
it rest and
better
to let
trial,
of the trial
picked up
Preston secured an order
on it.”
nobody
from in-
preventing
prosecution
court
this denial.
find no error in
We
Pre-
troducing
before the
evidence of
granted discretion
ad
judge
The trial
is
receiving stolen
ston’s recent conviction for
rejecting evidence of a defend
mitting or
property
probationary
and her
resultant
proper purp
ant’s
convictions
for
order
purpose
protective
of the
During
status.25
the direct examination
ose.26
clearly
present
sistent
cannot be
delineated.
This
a situation in
evidence
22.
case does not
grand jury”
by
protective
proceed
which “the
value of the
review must
on a case
case
Our
by
prosecutor’s presentation
State,
Compare
is so eroded
Frink v.
was to the from preclude submitted able recommendations character considering evidence of Preston’s con- However, the by superior her friends. bearing as viction for an unrelated offense these necessary to discount court found guilt in case. Al- present her the countervailing char- light of factors in though revealing evidence of substantive by ac- other provided acter information proof appellant’s earlier conviction as of her not- The court also quaintances of Preston. clearly violate disposition criminal would of sentencing the seriousness ed that at 404(b),27we cannot Alaska Rule of Evidence escalating, that a crimes is Preston’s say simple that reference trial in weapon present had involved viola- probation Preston’s was a substantial prior crime. appellant’s as in offense as well protective tion of the order. crimes, However, in both we note that also note this occurred in a We that weapons perpe- not used in involved were seemingly fashion. There is unintentional which Preston was trating the offenses of any prosecutorial no of misconduct prop- part but were of stolen convicted involve concerns on re which would other Thus, sentenc- erty we think the involved. However, we especially view. think that in ing unduly emphasized factor court outstanding protective an or when there is its decision. der, parties should instruct their wit con only was Preston’s second This topics. nesses forbidden any not to discuss viction, of involved use of a neither sta probationary The mention of Preston’s entry weapon any danger or to life. The tus informed of the sub neither an ex here not had was forcible. Preston underlying stance of the conviction nor so fa history, highly employment cellent to demand a mis prejudiced defense as from vorable character recommendations finding trial or a that the trial court abused people, two in people. numerous At least ruling its discretion in on the motion. brother, prob her cluding her attributed Finally, alleged that Preston to be overinfluenced tendency lems to her eight three years suspend sentence of with ignore We cannot by those around her. imposed upon ed her the trial court was by fact offense occurred that the instant permissible excessive. The maximum sen put pro was on four months after Preston upon a may imposed person tence which be property. But receiving bation for stolen circumstances convicted of under imprisonment years’ five believe case, such as those in ten period years’ proba three by followed of years.28 tion in this case. In our is not warranted sentencing proceeding, opinion, not be sentenced superi- At the should years, imprisonment Pre- for more than three reluctant to characterize court years’ probat five by period as followed of type ston the worst of offender. positive em- ion.29 court also considered. 29. Preston, black, suggests presentation who also in or needless of cumulative evi- vague length of However, dence. terms her sentence 404(b) appel Rule was motivated racial bias. reads: crimes, wrongs, allege any particularity Other or acts. Evidence lant fails to with crimes, wrongs, respect racially or acts is not admissi- other her discrim what inatory sentence person prove ble of a inspired prejudice. character John racial conformity in be State, order to show therewith. he acted (Alaska 947-48 son v. P.2d however, may, It admissible State, 1980); v. P.2d Bell motive, purposes, proof for opportunity, other such as any specificity With the absence intent, plan, preparation, knowl- bias, support appellant has of a claim of racial identity, edge, or absence of mistake or acci- establishing prima burden met the dent. Johnson facie case. (Alaska 1980); P.2d Bell v. 947-48 908, supra,
27. See note 26 for the text Alaska (Alaska 1979); Campbell 404(b). R.Evid. supra. See note 1 Affirmed, and the case The conviction is re- superior court for
is Remanded to with this
sentencing opinion. consistent Justice,
BOOCHEVER, concurring. *11 certain
I that under circumstances believe may of an informant furnish confession credibility
sufficient indicia of to meet Taggard v.
test set forth in
MATTHEWS, Justice, dissenting. superior
I do not believe the court imposing a
clearly mistaken in sentence
eight suspended. with three This was years
appellant’s felony, second com- she I probation while on for her first.
mitted entirety. judgment
would affirm the its OSNESS, Appellant
Patricia
Cross-Appellee, ESTATES, INC., Appellee
DIMOND Cross-Appellant.
Nos. 4193.
Supreme Court of Alaska.
Aug.