Mike SMILOFF, Appellant, v. STATE of Alaska, Appellee
No. 859.
Supreme Court of Alaska.
April 19, 1968.
Edmund W. Burke, Asst. Dist. Atty., and Robert N. Opland, Dist. Atty., Anchorage, for appellee.
Before NESBETT, C. J., DIMOND and RABINOWITZ, JJ.
RABINOWITZ, Justice.
Appellant questions the lower court‘s administration of
Appellant was tried in the lower court upon a three-count indictment in which he was charged with the separate crimes of assault with a dangerous weapon, assault with intent to rape, and attempted rape.1 Some three weeks prior to trial, appellant‘s court-appointed counsel moved under
The court or a judge thereof may order at any time that a subpoena be issued upon motion or request of an indigent defendant. The motion or request shall be supported by affidavit in which the defendant shall state the name and address of each witness and the testimony which he is expected by the defendant to give if subpoenaed, and shall show that the evidence of the witness is material to the defense, that the defendant cannot safely go to trial without the witness and that the defendant does not have sufficient means and is actually unable to pay the fees of the witness.
The grounds stated in appellant‘s motion were “that defendant is indigent and that said witnesses are necessary to the defense * * *.” In his affidavit in support of the motion, appellant asserted that the five potential witnesses would provide “testimony necessary to [his] defense,” and that his indigency prevented him from paying “the travel expense, witness fees, or service fees to require and enable the listed witnesses to appear for the defense.”3
Appellant‘s motion then came before the superior court. At the outset of the hearing the trial judge indicated to appellant‘s counsel that
counsel answered affirmatively and the court then stated that it would rule on the merits of appellant‘s motion after the written statement had been furnished and counsel had had the opportunity to explore the possibility of agreement along the lines suggested by the district attorney. Later that same day, appellant‘s counsel filed a memorandum containing a brief summary of the testimony of the persons sought to be subpoenaed.
The matter was then again argued and at the conclusion of this second hearing, the court denied appellant‘s request for subpoenas as to Peterson, Osterback, and Mobeck but offered appellant the choice of Bjornstad or Rudolph.6 Counsel for appellant selected Bjornstad. At the conclusion of the trial which was held a short time thereafter, appellant was found guilty of the crime of assault with intent to rape and was sentenced to fifteen years’ imprisonment.
Before discussing the merits of the trial court‘s rulings under
This is the first occasion we have had to decide issues involving application of
It is well settled that Rule 17(b) * * * does not vest an absolute right to the issuance of such subpoenas and that the trial court is granted a wide latitude in order to prevent abuses. We will not disturb the exercise of such discretion unless exceptional circumstances compel it. There was no such abuse of discretion here. Reistroffer v. United States, 8 Cir., 258 F.2d 379, 396 (1958), cert. denied, 358 U.S. 927, 79 S.Ct. 313, 3 L.Ed.2d 301.10
We adopt the federal rule and hold that the right to have a witness subpoenaed at state expense is not absolute. In administering
Of further importance is the circumstance that the original counts of the indictment focused on the crime of attempted rape. In crimes of this nature the prosecutrix‘s testimony is usually crucial. Measured against these basic circumstances, we believe that appellant‘s showing, under
In his brief appellant argues that the trial judge applied “too rigid a standard” in ruling on his motion. Nowhere did the trial judge articulate precisely what criterion had been employed in deciding whether or not to allow the subpoenas. Although at one point during the hearings on the motion, it appears that the trial judge stated he would issue a subpoena only if the witness could show that he was with appellant during the entire time in question, and thus prove that appellant had not committed the crimes charged.11 The foregoing indicates that the trial judge applied too rigid a standard in administering
As we have indicated previously, we believe that appellant‘s showing was sufficient as to prospective witnesses Mobeck, Peterson, and Osterback to justify the issuance of
Regarding prospective witness Johnny Peterson, appellant contemplated that the witness would testify he was his roommate and would offer character testimony in appellant‘s behalf. It was further anticipated that the witness would impeach the credibility of Mrs. Kalmakoff who had testified at the preliminary hearing that she did not like appellant because he had raped her once before. As to this event, appellant anticipated that Peterson would testify that what occurred was an act of consensual intercourse.18 We hold that appellant‘s showing was sufficient as to this witness on both grounds. In light of the nature of the crimes charged in the indictment, evidence as to appellant‘s character was undoubtedly relevant and material. Further, evidence of a prior act of consensual sexual intercourse between the prosecutrix and appellant was relevant and material in regard to the issue of appellant‘s intent concerning the charges of rape and assault to commit rape, and was also relevant and material regarding the issue of the prosecutrix‘s consent.19
We hold that the superior court‘s denial of subpoenas for the attendance of these witnesses deprived appellant of the opportunity adequately to defend against the serious crimes with which he was charged and was therefore prejudicial error.
The judgment and commitment entered below is set aside and the case remanded for a new trial.20
NESBETT, Chief Justice (dissenting).
I dissent from the majority holding that denial of the subpoenas was an abuse of discretion which substantially prejudiced appellant‘s defense. In my opinion, a new trial is not warranted.
Subpoenas for five witnesses were requested by court appointed counsel for appellant approximately three weeks before trial. The irregular piecemeal justification for their production was not completed until approximately one week before trial. The witnesses resided at or near the community of Sand Point, which is located on the Alaska Peninsula approximately 500 air miles from the place of trial in Anchorage. The estimated total cost to the state of producing each witness appears from the record to have been in the neighborhood of $400.00. After the somewhat confused showing of justification for the subpoenas described in the majority opinion had been completed, the court granted the request as to one of the witnesses and denied it as to four.
Counsel obviously had not had the opportunity to interview any of the requested witnesses, all of whom resided in an area remote to the place of trial and appellant‘s place of detention prior to trial. What we learn in hindsight from our experience in this case is that in similar circumstances it would be advisable for the court to suggest that counsel request funds for the purpose of visiting the community where the crime is alleged to have occurred to interview potential witnesses for the defense. The testimony that each witness would give could then be definitely determined. The affidavit of justification as to each requested witness would be affirmative and accurate. This would permit the court to intelligently weigh the justification against the requirements of
The majority opinion holds that the trial judge abused his discretion in refusing to issue subpoenas for the witnesses George Osterback, Agnes Mobeck and Johnny Peterson. The opinion states in part:
Nowhere did the trial judge articulate precisely what criterion had been employed in deciding whether or not to allow the subpoenas.
and then, in a footnote, proceeds to quote the judge where he inquires of counsel whether a person financially able would spend $2000 of his own money to bring in witnesses about whose testimony he knew so little.
The fact is that the trial judge was applying the criterion established by the Supreme Court of the United States in Griffin v. People of State of Illinois1 where it was held that destitute defendants must be afforded as adequate appellate review as defendants with money to pay for such services. In order to equate appellant‘s right to subpoena the witnesses at state expense, according to the established standard, the judge was properly attempting to determine, with the assistance of counsel, whether a person with personal funds would be willing to spend them to bring witnesses such a distance at unusual expense, who could offer only the testimony represented in the justification.
In view of this, it is not consistent for the majority to state that this inquiry “indicates that the trial judge applied too rigid a standard in administering
In Reistroffer v. United States4 the defendant requested permission to subpoena at government expense a handwriting expert, stating that he fully expected the expert to testify that in his expert opinion the handwriting contained on the purchase orders introduced into evidence was not the handwriting of the defendant. The appellate court stated:
It appeared to the trial court that since Norris chose not to take the witness stand and produce samples of his handwriting and in the court‘s long experience, experts on handwriting could not be expected to give an opinion without laboratory tests and sure bases for comparisons, there was too much uncertainty to justify the expense of bringing the expert witness from St. Louis, where he lived, to the place of trial at Waterloo. It is also pointed out for the government that proof that the particular signatures referred to were not in the handwriting of Norris even if established would not have constituted a complete defense to the charges and the evidence against Norris. (emphasis supplied)
It is well settled that
The question to be decided with respect to the denial of each subpoena is whether the trial judge abused the discretion placed in him by
This discretion, of course, is not absolute in the sense of “no review under any circumstances,” but does leave a large degree of freedom of decision to the trial judge to determine the materiality of the evidence which the defend-
Abuse of discretion has been defined as arbitrary action as contrasted with the exercise of conscientious judgment;6 and as, “when the action of the trial judge is clearly contrary to reason and not justified by the evidence.”7
With respect to the request that a subpoena issue for the production of George Osterback, appellant‘s memorandum stated:
1. George Osterback, Sand Point, Alaska, will testify he was with the defendant at the bar in Sand Point from early evening till just before the alleged crime occurred. Further he is expected to testify that he purchased a drink for Mrs. Kalmakoff, the alleged victim and should support that defendant had no contact with Mrs. Kalmakoff in the bar that evening prior to the alleged crime.
Even if it is assumed that Osterback would testify in all respects as indicated, it is apparent that the testimony would not be “material to the defense“. The fact that Osterback may have been with the defendant at the bar prior to the time the alleged crime was committed and purchased a drink for the complainant, with nothing more to show how it would assist the defense, does not make a satisfactory showing of materiality.
The memorandum in support of the request for a subpoena for George Osterback, in a second paragraph, stated:
The defendant has reason to believe that Mr. Osterback may have further testimony extremely relevant to the case. Defendant believes that the State has a witness, one Thomas Joseph Yates, who will testify he saw Mrs. Kalmakoff lying on the ground with two men, one of which ran whom he cannot identify and the second of which was the Defendant. It is probable that Mr. Osterback is this mysterious person who ran. Further, Mr. Osterback was carrying a hunting knife in his belt on the night of the alleged crime.
The trial judge denied the sufficiency of the above allegations as support for the issuance of a subpoena at state expense, stating that if the defendant intended to prove that Osterback committed the crime, then the court would be obligated to warn him of his right not to incriminate himself under the 5th amendment and that it would be unlikely that he would testify. The allegation that the defendant “has reason to believe” that Osterback might have “further testimony extremely relevant to the case” does not in any manner comply with
Appellant‘s memorandum justified the request that Agnes Mobeck be subpoenaed by stating:
3. Agnes Mobeck, Sand Point, will testify that she came into the bar earlier that evening with Mrs. Kalmakoff and that they were both later joined by Mr. Kalmakoff. She should also be able to testify as to what was said between Mr. Osterback and Mrs. Kalmakoff. Mrs. Kalmakoff testified at the preliminary hearing that she was not in the company of any other person in the bar other than her husband and Mr. Osterback.
The court denied this request on the ground that it could not see that it made any difference to appellant‘s defense whether Mrs. Kalmakoff was in the bar earlier that evening with Agnes Mobeck or whether she was not. Appellant‘s memorandum in support of the request failed to point out to the court wherein the testimony of Agnes Mobeck would be material to the defense and why appellant could not safely go to trial without such testimony. The most that can be said for the expected testimony is that it might contradict complainant on an unimportant aspect of her testimony before the grand jury.
Appellant requested that Johnny Peterson be subpoenaed so that he could testify that an earlier rape, alleged to have been mentioned by the complainant to the grand jury, was not a rape, but a consensual act. The court denied the request and entered an order directing the district attorney to advise the complainant that no testimony would be admitted concerning any previous act of alleged rape since it was not an issue in the case.
The majority opinion holds that evidence of a prior act of consensual intercourse was relevant and material to the issue of appellant‘s intent and to the issue of prosecutrix‘s consent. Wigmore is cited as authority for this holding.8 Wigmore personally believes, as does the majority of this court, that evidence of particular acts of a woman‘s unchastity should be admitted to show the likelihood of consent, but is careful to point out that no question of evidence has been more controverted and that such evidence is excluded in the greater number of jurisdictions.9
In my opinion, we should not proceed to commit this court on a question of law which has not been briefed as an issue, but that we should first determine whether the trial judge‘s denial of the subpoena was clearly contrary to reason, i. e. an abuse of discretion.
I think that it was not an abuse of discretion. The admissibility of such evidence had not been passed upon by this court. Most jurisdictions exclude it. Where such evidence is admissible it is generally on the ground that it is relevant to the question of consent. Appellant did not take the stand and made no attempt to state or establish the defense of consent. In view of this, appellant could not have been prejudiced by not having the benefit
In my opinion the trial court did not abuse its discretion in denying the subpoenas for Osterback, Mobeck and Peterson.
We now know from the uncontradicted testimony of the complainant and the witnesses Lena Choquette and Thomas Yates that the complaining witness and her husband were physically assaulted and knocked to the ground by appellant as they walked home from the bar. While her husband sought assistance, the complainant resisted appellant who was struggling to remove her clothes. As the complainant‘s brother-in-law, Tom Yates, approached the scene in response to her husband‘s request for assistance, he heard complainant shouting for help. Upon his arrival at the scene he found complainant on the ground with a part of her clothing removed. Appellant was arising from the ground and zippering up his trousers. Complainant‘s testimony was that she had not been raped, but that appellant was attempting to do so. The witness Yates testified that on the Monday following the Saturday on which the rape was attempted he was berating appellant for his act when appellant admitted that “I might have done the other, but I did not cut her“.
By the time the case was submitted to the jury two of the three indictment counts against appellant had been dismissed. Only the count charging assault with intent to commit rape remained.
On the uncontradicted testimony recited above the jury found appellant guilty. At the sentencing the district attorney advised the court that he had received more than one telephone call from Sand Point describing appellant as “the terror from Sand Point“. The judge reviewed appellant‘s record of criminal violence dating back to 1948 and sentenced him to serve fifteen years in prison.
The majority believe that appellant was deprived of the opportunity to adequately defend against charges of serious crimes and should be given a new trial. At a retrial the only charge which appellant will be required to face will be the one remaining count of the indictment on which he has already been convicted, that of assault with intent to commit rape. The new trial has been granted on the theory that appellant would be enabled to place before the jury the testimony of the three witnesses for whom subpoenas were denied. The granting of a new trial for any other reason would not be justified. For example, it would not be proper to grant a new trial on the possibility that the requested witnesses would give testimony favorable to appellant in addition to that set out in the justification, or on the possibility that appellant might in the interim locate other witnesses favorable to his defense. Yet, if all three of the witnesses were produced and testified fully as represented, none of the testimony upon which appellant was convicted would be contradicted. The evidence of appellant‘s guilt of assault with intent to commit rape was overwhelming and uncontradicted—in fact, admitted by appellant in his conversation with the witness Tom Yates.
Under the circumstances no interest of justice will be furthered by ordering a new trial. The concept of equal and im-
On the other hand, there is the distinct possibility that before the case can be retried, evidence essential to the state‘s case will be lost.
The majority emphasizes the fact that appellant was tried a long distance from his home and that his defense may have suffered because of cultural and linguistic barriers between he and his counsel. In my opinion these supposed disadvantages are more imaginary than real. Many experienced Alaska defense counsel will verify that it is quite as likely that appellant gained an advantage in having his actions judged by an Anchorage jury, as compared with a jury drawn from the area of his residence, because of the frequent tendency of a predominantly white-man‘s jury to be more sympathetic and lenient of actions committed in a frontier or primitive habitat by persons of a supposedly more primitive culture. Linguistic and cultural barriers between appellant and his counsel will not be eliminated or improved by another trial.
One effect of the granting of a new trial might very well be to shock the concept of justice of those of appellant‘s culture who are familiar enough with the evidence upon which appellant was convicted, who would be unable to understand or rationalize and would have little patience with what appears to be a rigid observance of form over substance.
I would affirm the judgment.
NESBETT
CHIEF JUSTICE