McConkey v. State

504 P.2d 823, 1972 Alas. LEXIS 230

• Court: Alaska Supreme Court
• Decided: December 29, 1972
• Docket: 1464
• Status: Published

Opinions

OPINION

CONNOR, Justice.

Clarence McConkey appeals from a conviction for criminal contempt. The finding of contempt was based on his refusal to answer a question propounded on direct examination by the district attorney in the criminal trial of one Joseph Anthony. Appellant contends that the trial court erroneously rejected his invocation of the privilege against compulsory self-incrimination. This raises several troublesome issues about the proper scope of the priv-liege m the particular factual setting of this case.

In the early afternoon of August 31, 1970, a house in Sutton, Alaska, was broken into and approximately $750 was taken from it. Appellant and Joseph Anthony later were arrested near Glennallen and charged with burglary in a dwelling house, a violation of AS 11.20.080. On November 3, 1970, appellant pleaded guilty to the above offense. At the request of the prosecutor, the court then permitted examination of appellant concerning Anthony’s participation in the burglary.

The district attorney stated that this questioning was for the purpose of preparing for possible trial of the charge against Anthony. Neither the appellant nor his counsel objected to such questioning. In part the testimony included the following:

“Q. All right. Now, Mr. McConkey, on or about the 31st of August were you in the vicinity of Sutton, Alaska?

Yes, I was. >

And were you in the company of any other person ? ©

Anthony was with me. >

Q. Now, would you just state for the record please with regard to this burglary, what happened?

A. We went up to the house and I went in to use their bathroom and was looking around the house, found a purse with money in it, had close to Seven Hundred and Fifty, Sixty Dollars ($760.00), something like that. Took the money and left.

Q. And when you found the money, you say we were looking around the house, did Mr. Anthony look around in the house too ?

A. I was in the bathroom.

Q. And he was the one that was looking around the house. Did he find the money?

A. Yes he did.

Q. Did you know what you were doing, Mr. McConkey, when you went in the house?

A. Well, I know I was going in to use the bathroom, I didn’t know. Joe asked me if we was going in to look for money. When he found that, I took some too.”

On January 6, 1971, appellant was called by the state to testify at Anthony’s trial. At this point, on the advice of his counsel, appellant refused to answer questions propounded by the district attorney about the August 31st burglary. The court excused the jury and heard argument of counsel as to whether appellant should be required to answer such questions. Appellant’s counsel contended that “any question that relates in any way to this incident places Mr. Mc-Conkey in jeopardy of being charged with the crime of inciting the commission of a crime” under AS 11.10.070.¹ The state responded with arguments that by his guilty plea appellant had “placed himself beyond the protection of the fifth amendment as to facts relating to . . . the August 31st, 1970, burglary” and that, in any event, constitutional prohibitions against double jeopardy would prevent prosecution under AS 11.10.070.

After argument, the court directed appellant to testify responsively² and recalled the jury. Appellant did answer a series of general questions regarding the indictment to which he had previously pled guilty.³ However, he refused to answer the following question:

a[I]sn’t it true that on the 31st of August, 1970, while you were in the Sutton area, that man to my left in the white shirt seated beside Mr. Coryell, Mr. Joseph Anthony was with you in the Sutton area?”

The jury was again excused and the district attorney, upon request by the court, summarized appellant’s testimony during the November 3rd plea hearing. The court then asked appellant’s counsel how his client could further incriminate himself, given the prior disclosures. Counsel replied that in testifying at his plea hearing appellant had waived his privilege against self-incrimination as to that proceeding only. The court rejected this argument, recalled the jury, and directed appellant to answer the above-quoted question. Appellant refused, and the court found him in criminal contempt. In sentencing appellant to 45 days in j ail,⁴ the court stated:

“ . . . Mr. McConkey could not further incriminate himself by testifying to anything that he has already testified to under oath on the record and in open court.”

On appeal appellant argues that no continuing waiver of the privilege against self-incrimination arose either from his plea of guilty to the burglary charge, or from his prior testimony at the plea hearing, and that a sufficient basis for his claim of jeopardy had been demonstrated.

One of us, the writer of this opinion, concludes that if appellant had answered the question he could not have incriminated himself in any conceivable prosecution under AS 11.10.070. Given this conclusion it is not necessary to reach the question of whether the privilege was waived when appellant testified at the November 3rd plea hearing. Another of us rests his decision on the conclusion that the privilege had been waived. The third member of this panel concludes that the appellant’s apprehension of self-incrimination may have been real, but that he inadequately demonstrated the basis of such fear to the trial court. As a result the conviction for contempt is affirmed, but for differing reasons.⁵

Analysis should start from the proposition that “[t]he witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself . . . .”⁶ The court must evaluate the hazard, the witness somehow showing enough to indicate a basis for fear of incrimination while withholding facts which would prove it.⁷ The burden is not great:

“To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.”⁸

The claim must be allowed unless it is “ ‘perfectly clear . . . that the witness is mistaken, and that the answer [s] cannot possibly have such tendency’ to incriminate.” ⁹

The privilege extends not only to answers that would in themselves support a conviction but also to those which might furnish “a link in the chain of evidence” leading to a conviction.¹⁰ Yet the apprehension must be shown to be real.¹¹ Thus a problem arises as to apparently innocuous questions when the court has no facts before it which would suggest that a responsive answer might result in incrimination of the witness. The proper analytical scheme is set out in United States v. Coffey, 198 F.2d 438, 440-441 (3d Cir. 1952):

“It is enough (1) that the trial court be shown by argument how conceivably a prosecutor, building on the seemingly harmless answer, might proceed step by step to link the witness with some crime . , and (2) that this suggested course and scheme of linkage not seem incredible in the circumstances of the particular case ....

Finally, in determining whether the witness really apprehends danger in answering a question, the judge cannot permit himself to be skeptical; rather must he be acutely aware that in the deviousness of crime and its detection incrimination may be approached and achieved by obscure and unlikely lines of inquiry.”

Applying these criteria to the case at bar, it is plain that the privilege was improperly invoked. Any fear of self-incrimination was unfounded. Appellant, called to testify at the criminal trial of another, refused to state whether the defendant then on trial was with him in an area in which appellant had committed burglary. The peril asserted is incrimination under AS 11.10.070, soliciting another to commit a crime. Yet no responsive answer could have directly established any element of that offense. Nor is it perceivable how such an answer might have yielded information useful to the state in a prosecution, however improbable, for violation of AS 11.10.070. The state already had knowledge through appellant’s previous testimony that the burglary was a concerted effort between himself and Mr. Anthony. The gist of the offense under AS 11.10.070, however, is not conspiracy, but solicitation, incitement or inducement. In his previous testimony appellant described a burglary which was the result of impulse. He does not now claim that by testifying at Anthony’s trial he might have revealed perjury in his former testimony. It follows that appellant’s claimed hazard of incrimination is fanciful.

It should be stressed that this opinion rests on the particular factual setting of this case. Further legal developments in this sensitive area must be left to case-by-case determinations.

The trial court correctly overruled the claim of privilege, but not because the privilege was waived. Appellant simply did not demonstrate a reasonable basis for its recognition.

Affirmed.

BOOCHEVER, J., did not participate.

1 . Under AS 11.10.070 a person who “wil-fully and knowingly solicits, incites or induces another to commit a felony or a misdemeanor in the state” is guilty of a crime.

2 . The court stated:

“It is my intention to again direct this witness to answer the question that was put to him. If he fails to answer that question I will hold him in contempt of court. ... I don’t intend to go beyond first refusal.”

3 . Appellant’s counsel continually advised him that he could refuse to testify.

4 . Appellant had previously been sentenced to eighteen months imprisonment on the burglary conviction. The court ordered that the two sentences run consecutively.

5 . Because of this disposition we do not reach the state’s argument that prosecution of appellant for violation of AS 11.10.070 would be barred by constitutional prohibitions against double jeopardy. Of. Mead v. State, 489 P.2d 738, 743 (Alaska 1971); Robinson v. State, 484 P.2d 686, 687-688 (Alaska 1971); Whitton v. State, 479 P.2d 302, 312-314 (Alaska 1970). Nor do we decide whether it would be statutorily permissible to punish both for violation of AS 11.10.070 and for participation in the commission of the crime solicited, incited, or induced.

6 . Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951).

7 . “[I]f the witness, upon interposing his claim, were required to prove the hazard . . . he would be compelled to surrender the very protection which the privilege is designed to guarantee.” Id. at 486, 71 S.Ct. at 818.

8 . Id. at 486-487, 71 S.Ct. at 818.

9 . Hoffman v. United States, supra, n. 6, at 488, 71 S.Ct. at 819.

10 . Malloy v. Hogan, 378 U.S. 1, 11, 84 S.Ct. 1489, 1495, 12 L.Ed.2d 653 (1964) ; Hoffman v. United States, supra n. 6, 486; Blau v. United States, 340 U.S. 159, 161, 71 S.Ct. 223, 95 L.Ed. 170 (1950).

11 . The fear that the claim of privilege may be spurious is not academic. Because of bribe, threat, or purpose to aid another, a witness who speaks once may later assert the privilege in order to cloak nothing but a refusal to speak the truth. The United States Supreme Court has consistently held that a witness may not refuse to testify when there is no real or substantial hazard of incrimination. See, e. g., Marchetti v. United States, 390 U.S. 39, 53, 88 S.Ct. 697, 19 L.Ed. 2d 889 (1968); Rogers v. United States, 340 U.S. 367, 374, 71 S.Ct. 438, 95 L.Ed. 344 (1951); Brown v. Walker, 161 U.S. 591, 600, 16 S.Ct. 644, 40 L.Ed. 819 (1896).