State v. Gieffels
554 P.2d 460
Alaska
1976
Check Treatment

*1 pots. Fish When the officers of the pots Department approached

Game

July 31 search, to conduct the Nathanson present, attending pots.

was not to his crab “person being

There no control

property object searched,” ‍​​‌​​‌‌​​​​​​‌‌‌‌​‌‌‌​‌‌‌‌‌‌‌​‌‌‌​‌‌​​​​​​‌​‌​‌‌‍to be the of- give required

ficers were unable to him the think that it frustrate

notice. We governmental purpose regu- behind

lation require hold officers to

abeyance the search order to discern the

whereabouts of the fisherman in control or arrange with him in advance for con-

venient time to conduct the do search. To promote

so would not enforce- effective regulation that the doors of secured, pots open

the crab fully pots

bait and containers removed

are stored in water 72 hours in ad- opening

vance of the of the season.14 find, then,

We that the notify failure to

Nathanson was not a statute violation of

under the facts of case.15

The decision is affirmed. Alaska, Appellant,

STATE of

v.

Timothy GIEFFELS, Appellee. Leroy

No. 2846.

Supreme Court of Alaska.

Aug. 27, 1976. Biswell, apply United v. States 406 U.S. would not stances to the search of a Cf. 311, 316, building vessel, 92 S.Ct. 32 L.Ed.2d or other effects in which the (1972), involving expectation search warrantless owner would have a reasonable federally regulated industry, privacy. in a where the stated, inspection is to be effective .. do nоt reach ‍​​‌​​‌‌​​​​​​‌‌‌‌​‌‌‌​‌‌‌‌‌‌‌​‌‌‌​‌‌​​​​​​‌​‌​‌‌‍We deterrent, appellant having impliedly serve as credible unan- consented to the nounced, frequent, inspections by accepting operate are even es- search a license to crab gear registration People sential. See area. leading White, Supp. 936, Cal.App.2d The considerations conclude us to 65 Cal. required, Rptr. (1968). that no notice was under the circum- *2 properly

court dismissed the indictment brought against appellee Timothy Gieffels.1 23, 1975, July On Gieffels was indicted degree first murder and armed rob bery. In a dated subsequent indictment 23, 1975, August was Gieffels theory felony the alternative murder. February dis On the trial court prosecutor- missed both indictments due exculpatory ial omissions of evidence re garding weapon the calibre this which the deceased was killed.2 After dismissal informed the trial court the State days that it had to reindict. days Nine later the State resubmitted Testimony indictment Gieffels. February disclosed that the accused carrying a Pines calibre firearm the .38 Anchorage bar) only (an hours before the decеased, Pines, at the a bartender Further, found dead in that establishment. open register the cash area bar money was strewn about counter. hair evidence consisted of Additional shooting that found the scene Gross, Gen., Atty. Juneau, Avrum M. Gieffels’; de- might be the fact that the Jo- seph Balfe, Atty., Hawley, shortly Dist. H. D. W. flight fendant took California Lawner, Attys., homicide; and Ivan Asst. Dist. аlleged and a suitcase after Jr. Anchorage, appellant. that was seized California of Gieffels’ shortly shooting and after the contained Defender, Phillip Shortell, Brian Public connecting the purportedly items certain Weidner, Defender, An- P. Asst. Public main the crime scene. accused with appellee. chorage, presented to non-hearsay evidence BOOCHEVER, Justice, Before Chief against the defendant was CONNOR, RABINOWITZ, ERWIN Turner, testified Larry who mony of BURKE, Justices. night statements on that hé effect shooting to the OPINION kill if he had to the Pines going to rob ERWIN, could obtain that he Justice. do it so someone to wit- Washington. The final appeal In this we are child testify before of whether the trial ness called legal questions suffi- that Gieffels Because Gieffels ciency noted the outset evidentiary questions right basis for our review this matter. AS jurisdiction part: dictment, over 22.05.010(a) pertinent court Johnson, appeal appeal. supreme See also . An right, except 533-34 is matter of state right appeal shall have no in criminal carry .38; alleged cases, except sufficiency test 2. Gieffels a .44. indictment shot with .... victim was Clemens, was Investigator an Anchorage was stated on the rec- police officer. ord attorney. the district of transporting witnesses, the absent all In reviewing the record note thát Cle- whom state, were outside the was advanced mens’ contains substantial using reason for Specifically, amount hearsay. he relat- *3 purported ed eight the statements of wit- being presented After foregoing the (1) by Sergeant nesses: statements Ybar- evidence, the returned a true rando, Diego policeman, a San to the ef- bill charge to Gieffels the of first fect avoiding that the defendant arrest degree theory murder based the of fel- California; in (2) by statements made ony murder. resident, brother, Diego defendant’s a San timely A to motion dismiss the indict- Sergeant Stout, to police a California offi- ment subsequently by filed the defend- cer, to effect had indicat- ant; and on March the trial court ed that he had in fact been involved in a granted on the grounds the motion that the homicide; by Jodges, statements (3) Jinx compelling justifica- State had not shown California, a resident of corroborating tion utilizing hearsay Larry Turner’s as to incriminat- and, addition, in had not demonstrated the ing by comments night made Gieffels the reliability hearsay declarants. of the alleged homicide; (4) statements thereupon appeal.3 State filed this by Benicia, Ellis of Officer Cali- fornia, Deрartment Sergeant Police interpreta- The case at bar concerns the Stout, relating by an admission the defend- pro- tion of Rule 6(r), Criminal which ant to Ellis which would indicate vides : shooting; volvement (5) statements legally would be admis- Evidence which Thomas, Investigator made to an Alaska sible shall be admissible before at trial Trooper Washington, by statiоned cases, appropriate In a defense investigator to the effect that presented to witnesses the latter had over turned the “murder summarize evidence if the ad- admissible weapon,” (i.e. implied by an admission missible will be available evidence defendant); (6) a statement bail by a Hearsay trial. evidence shall not be Washington bоndsman in Sergeant presented absent com- Thomas that Gieffels had remarked that pelling justification its introduction. shooting occurred outside the Pines presented hearsay If evidence a fight; Captain (7) statements Mark grand jury, reasons for its use shall Hogan of Anchorage Depart- Police be stated on the record. regard transportаtion pro- issue whether Alaska; suitcase from California to “compelling ducing absent is a witnesses (8) statements made the owner of the justification” indicating Pines money that certain in the mony jury. before the custody of the night deceased In a case decided Burkholder v. State4 shooting subsequently missing. prior Rule to the enactment Criminal

Before or 6(r), after each witness’ tes- this court had the deal opportunity timony presented, justification for with the issue of State, In McKinnon v. the trial determined that (Alaska 1974), and Webb v. at issue not cumulative ‍​​‌​​‌‌​​​​​​‌‌‌‌​‌‌‌​‌‌‌‌‌‌‌​‌‌‌​‌‌​​​​​​‌​‌​‌‌‍of other evidence (Alaska 1974), we held that where but was fact essential justify there was other evidence which would to the indictment. bill, a true the mere use of evidenсe in (Alaska 1971). violation of Criminal Rule would not 4. 491 P.2d 754 vitiate the indictment. In the instant case ruling must covert and his statements have been re- jury. that the indictment corded and can be dismissed, stated in Burkholder we prose jury in regarding the sufficient detail to the ABA warrant Standards5 jury “appear indictment.9 cutor’s role before standard, pertinent appropriate.”6 Thе § a subsequent opinion, Tag gar d v. State,10 approved specifically 3.- § 6(a) Bar American Association’s prosecutor present to the A Standards to the Prosecution believes only evidence he again and once forth the set admissible at trial. would be commentary in a footnote. prosecutor appropriate сases the admissi- Taggard, to summarize After the present witnesses decision he provide him which went on to ble available be able sentences in rule believes will were derived from § *4 However, 3.6(a) trial.7 ABA Standards. provide rule went on to that commentary addition, forth we set noting that dealing [hjearsay present- with standard evidence shall not be 8 re- persuasive.” commentary grand jury compelling The ed to the absent “seems justification : (Em- ferred to for introduction. phasis added) of sec- principle, the use general As a Johnson11 first case State v. was jury grand ondary before dealt which this court co- unless there are should be avoided compelling justification what constitutes presentаtion gent justifying reasons for the introduction of such evi- of matter on basis grand jury. In that case hand, juris- some dence. the other On Johnson grand only larceny. was rest on allow an indictment to dictions grand jury witness that testified before the not be admissible evidence which would States, employee an al- of the store where the trial, g., at e. Costello v. United lеged Although crime occurred. had 397 350 100 L.Ed. U.S. 76 S.Ct. had actually not seen take summary to use a [1956], need Johnson items, employee had participated the store in cases available evidence arise appar- apprehension. It was an volving or where voluminous records Johnson’s ently an to call intention given absent witness has a written stаte- security additional witness—the store at and but not available the time guard allegedly who saw remove justify prompt grand jury circumstances Johnson goods the secur- from store. Similarly, victim of a action. where the present ity guard when the was not seriously injured criminal act left two jury met because she had the state unavailable, therefore is sоmeone days dying her father. earlier to have been relat- whom the relevant facts employee who did consequence, As a permitted ed to relate to only grand jury testify described to the A third what been told. saw, also testified as state- what he but exists illustrative situation where security guard him the ments made to safety important witness reasonа- regarding the incident. identity bly that his remains warrants 1971). (Alaska Project Relating 491 at n. 14 8. P.2d 5. A.B.A. Standards and the Defense Function the Prosecution Relating Project 9. on Standards A.B.A. 1971). (Approved Draft, Function Func- the Defense Function and Prosecution 1971). (Alaska 6. 491 n. tion, Draft, 1971). (Approved at 89 Project 7. on Standards A.B.A. 1972). 238, 242 n. 500 P.2d the Defense Function the Prosecution 1974). Draft, (Approved at 88 subsеquently filed a motion to sons introducing Peter’s Johnson dismiss ground the indictment on the mony, we observed that: Calling Peter before the judge granted insufficient. The trial led have to the introduction of di- appealed. the motion and the State In re- only rect evidence if Peter incriminated versing the trial court we noted that: Concern himself. for Peter’s substantive rights сonstituted a reason improper to allow this under Criminal Rule for the use of his hearsay statement at the jury.16 The reason security guard’s] [the proceed With the foregoing in mind we explained absence was jury, in our review of the case at bar. As not- some assurance that she ed, Officer eight Clemens ab- testified would be trial of the case. witnesses, sent relating damaging most light security [the evidence against means guard’s] day, absence hearsay. Each of the absent witnesses was justifiable.12 met, out of state when the subsequent opinion13 In a we character- they sole reason were not called was ized the involving Johnson case as an “un- the fact that the State wished to avoid the avоidably declarant.” expense of transporting to and from them Alaska. The State submits this con- again This court reached the issue of compelling justification stitutes *5 for the use what compelling justification constitutes a of hearsay testimony. hearsay testimony grand the use of jury in Galauska v. The facts dis State.14 As this court previously has ob close that in thаt and a case Galauska man served, “hearsay probative has Roger named Peter were with Indeed, force.”17 Judge as in Hand stated murdering a third indict man. the When Costello,18 United States v. sought against and Pe Galauska conduct our most ‍​​‌​​‌‌​​​​​​‌‌‌‌​‌‌‌​‌‌‌‌‌‌‌​‌‌‌​‌‌​​​​​​‌​‌​‌‌‍serious affairs [W]e ter, prosecutor the he intended stated that upon strength [hearsay]; the of it it to made a writtеn statement Pe impossible carry would day’s to aon prosecu opinion, ter. As in noted the the business without it. tor Because of this fact we have determined bring chose to Peter before the of hearsay grand the use the before grand jury prejudice could because that was, nevertheless, proper. is un- However, rights.

his constitutional derstood was en- when Criminal Rule grand jury carry acted that the was to if the in advised the event it out the the protection vital function of presented, wished that Peter be he would unjust against oppression innocent request public Pe- defender allow prosecution, hearsay only ter to a make statement to the circumstances; spe- be аllowed in certain jury.15 cifically, there a where response In to Galauska’s contention that purposes of inter- reason for its use. For present compelling preting equate failed to rea- com- 12. Id. at 536. 16. Id. (Alas- Parks, McKinnon State v. 1974). 1968). ka 1955). (2d

14. 527 P.2d 459 18. 221 F.2d Cir. 15. Id. at 465.

4( n necessity. In view their pelling our marize means of commentary consistent position before jury; which wе transportation the ABA Standard mere for the n past, as our to in the as well have' referred witnesses a is not reason which we n feel refer Specifically, we necessary in Johnson. makes it hearsay.22 decision to use provides that: commentary which restricting type available summary use need be introduced may arise cases jury, it is not our intention to turn this given an absent witness where stage proceedings irito a mini-trial. not available written statement but limiting rationale justify the time circumstances appears evident; before (Emphasis n action. prompt grand jury grave in suffers accused added) apt upon to ensue which are conveniences indictment, felony return of a states that Also, language our Johnson should be a reliable determination light justifiable Use This can probability guilt. of his ab- Of “the witnesses’] [the guaranteed best be witnesses day.” sence on appear in before person accused does not instant case The evidence panel view their so that the can for the “necessary” it indicate that subject demeanor them to cross-exami testimony, for use prosecutor to evidence, our nation. view possi- one, transporting expense of unchecked, protective val would erode the more, key witnesses would bly ue of so as make noth any serious impose a financial burden ing than an arm of more administrative magnitude to the State.21 attorney’s the district office.23 If process is to fulfill jury indictment crimes A number of witnesses functions, this must not be al intended outside or reside travel this státe happen.24 lowed to Alaska, instances, for vari many *6 reasons, necessary to sum- ety may ‍​​‌​​‌‌​​​​​​‌‌‌‌​‌‌‌​‌‌‌‌‌‌‌​‌‌‌​‌‌​​​​​​‌​‌​‌‌‍it be AFFIRMED. Project by since

19. A.B.A. on Standards the evidence compelling presumed reason Function and the Defense is a Prosecution inconvenience (Approved Draft, 1971). at 89 for such evidence. State, (Alaska opinion, v. 525 Coleman 20. P.2d 536 a recent 23. expressed 1976), 40 we 553 P.2d Furthermore, showing made no that the State is evidence that “There view may process longer that could at- the witnesses no indictment proceedings Thus, functions, fulfilling tend for some rec reason. intended be distinguishable from the case at bar is it been made that should have ommendations Johnson, (Alaska 1974), by hearing pro replaced preliminary v. P.2d be where the witness was unavailable because cedure.” dying her she was with father. case, expedite the of this trial In order stating: position previously 22. This is not inconsistent with the an order entеred State, expressed in McKinnon v. view of Alaska IT ORDERED the State IS re-present 1974), case a wherein we this mooting stated that is little the issues “There a technician’s reindietment without physical presence grand jury proceeding appeal. aat in this laboratory report could add to a ..” proposi- merely That decision stands re-indicted for the We note that' professional manslaughter by tion a that where submits tech- has been convicted report publication testimony simply nical time of the trial report, proper opinion. affirm that to introduce this BOOCHEVER, Justice, Chief meaning concurs. As in many “substantial”. so oth- judicial decisions,

er I believe that the best BOOCHEVER, (concur- Chief result be cоuld obtained here a balanc- Justice ring). ing test. Thus the par- of the importance testimony ticular involved would be bal- appropri- 6(r) provides Criminal Rule anced and inconven- ate cases for the of admis- summarization ience obtaining involved testimony. sable if that evidence will be avail- important The more testimony and the states, able at trial. The rule more vital it is to the determination to be shall “[h]earsay jury, stronger compel- reason for the use must be. ling justification for its introduction”. present case, In the it would seem to me portion difficulty at least one of

I have the witnesses who ob- opinion “compel- equates term tained admissions from Gieffels should ling” as “necessity” testify hаve been person. far Expense, however, hearsay is term concerned. The “necessi- should be a factor to be considered, ty” implies at all means can be the state should not be re- quired produced by transport whereby testimony used distant witnesses to witness, hearsay not be Alaska their testimony live utilized. is cumulative pertaining periрheral Certainly, was no sum- there matters. Such marizing technician’s capable of being sum- (Alas- specified McKinnon marized as 6(r). although 1974), Possibly ka majority opinion I believe is intended require pres- give reason not to that much leeway in the use of equate hearsay, ence I am filing separate of the witness. I would but con- “compelling” term my as used rule as currence to indicate views.