Lofquist v. State

656 P.2d 1218
Court of Appeals of Alaska·Decided January 21, 1983·No. No. 6030·Published·Cited by 1 cases

Opinion

OPINION

BRYNER, Chief Judge.

This case arises out of a series of drug-related arrests in Kodiak. On November 28, 1980, John Sherwood and David Glad were arrested and charged with selling cocaine. Sherwood and Glad were associates of Michael Balthazar, who was the focus of an on-going narcotics investigation. Sherwood and Glad were also acquainted with Lof-quist, who was a friend and former roommate of Balthazar. After his arrest, Glad agreed to assist the police in their investigation by purchasing cocaine from Balthazar. The next day, on November 29, 1980, Glad was taken to Balthazar’s residence where he purchased approximately two grams of cocaine from Balthazar. Shortly after this transaction Balthazar was arrested.

Later that evening, at approximately 9:00 p.m., Glad was visiting Sherwood when Sherwood received a telephone call from Lofquist. Lofquist asked Sherwood if he had heard what had happened to Balthazar and stated that he thought Balthazar had been “set up.”

On November 30, at approximately 8:00 p.m., Lofquist called Sherwood and asked Sherwood for $500 that Sherwood owed him. He stated that he needed the money to get Balthazar out of jail. During the conversation he told Sherwood that when he found out who had set Balthazar up he would kill them.

On December 1 at approximately 9:00 a.m., Lofquist called Sherwood for the third time. He stated that he had figured out that Sherwood’s “little friend with the beard” (referring to Glad) had set up Balthazar. When Lofquist asked Sherwood for the name of the friend with the beard, Sherwood gave him the name of “Brad VanDenter,” another associate of Sherwood’s. Lofquist told Sherwood that “they would look him up.”

Based on the three telephone calls which he had made to Sherwood, a proposed indictment against Lofquist for interference with an official proceeding, in violation of AS 11.56.510(a)(1)(A),1 was presented to the grand jury in the middle of December, 1980. Sherwood did not testify at the grand jury proceedings because he was undergoing drug rehabilitation in San Diego, California. Special Agent Ruble of the Coast Guard Intelligence unit testified that he spoke to the director of the drug rehabilitation center and to two of the director’s representatives, who informed him that it would be inadvisable and “detrimental to the program” to take Sherwood out of the drug rehabilitation center to testify before the grand jury. No affidavits of the director or his representatives were presented.

In lieu of Sherwood’s live testimony, the district attorney read a sworn statement [1220] made by Sherwood which outlined the November 30th and December 1st calls. In addition, Special Agent Ruble and a Kodiak police officer gave hearsay testimony concerning the telephone calls. After this testimony, Lofquist was indicted.

Prior to trial, Lofquist moved to dismiss the indictment; the motion was denied. Lofquist was subsequently convicted by a jury and received a three-year suspended imposition of sentence. This appeal followed.

Lofquist challenges the validity of the indictment. He contends that it must be dismissed because Sherwood’s written statement was hearsay and there was no compelling reason for its use. .He also asserts that the credibility of Sherwood, the hearsay declarant, was not established. The state concedes that if Sherwood’s hearsay statement was improperly presented to the grand jury, the other evidence was insufficient to support the indictment. However, it argues that Sherwood’s hospitalization in California for drug rehabilitation treatment constituted a compelling justification for the use of the written statement before the grand jury.

Rule 6(r) of the Alaska Rules of Criminal Procedure governs the admissibility of evidence before the grand jury. The rule provides:

Admissibility of Evidence. Evidence which would be legally admissible at trial shall be admissible before the grand jury. In appropriate cases, however, witnesses may be presented to summarize admissible evidence if the admissible evidence will be available at trial. Hearsay evidence shall not be presented to the grand jury absent compelling justification for its introduction. If hearsay evidence is presented to the grand jury, the reasons for its use shall be stated on the record. [Emphasis supplied.]

In State v. Gieffels, 554 P.2d 460, 463-65 (Alaska 1976), the Alaska Supreme Court equated “compelling justification” with “necessity” and held that the mere expense of transporting the absent declarant to the grand jury proceeding did not constitute a compelling reason to use hearsay. Compelling justification has been found, however, in cases where a witness is absent because she is visiting her dying father2 and where there was concern for the absent witness’ constitutional rights.3

We recognize that participation in a residential drug treatment program may constitute compelling justification for the use of hearsay under some circumstances. For example, it may not be wise to remove a patient from a program if he is undergoing physical withdrawal or if he is at a stage where contact with the outside world might seriously jeopardize his rehabilitation. However, the mere fact that a person is in a drug treatment program is insufficient to constitute compelling justification.

In this case, the only evidence regarding Sherwood’s absence was the following testimony of Special Agent Ruble:

[Ruble] On the 11th of December I called San Diego and talked with the drug rehab program director, Captain Taylor and ... two of his representatives, about getting John Sherwood up here and they requested that we not try to pull him out at this time being the condition he was in when he did arrive there, he was, you know, a heavy user of narcotics prior to going....
[D.A.] And they felt it was inadvisable to bring Mr. Sherwood here.
[Ruble] Right...
[D.A.] All right.
[Ruble] ... said it would be detrimental to the program.

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Lofquist v. State, 656 P.2d 1218 (Ala. Ct. App. 1983).

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656 P.2d 1218 (Court of Appeals of Alaska, 1983)