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Wynne v. State (8/31/2018) ap-2615

Wynne v. State (8/31/2018) ap-2615

                                                                                NOTICE
  

              The text         of   this opinion can be corrected before the opinion is published in the                             

             Pacific Reporter              .   Readers are encouraged to bring typographical or other formal                                

              errors to the attention of the Clerk of the Appellate Courts:    



                                                    303 K Street, Anchorage, Alaska  99501  

                                                                    Fax:  (907) 264-0878  

                                                         E-mail:  corrections@ akcourts.us  



                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                      



LATRELL  DONEL  WYNNE,  

                                                                                                                                                  

                                                                                                       Court of Appeals No. A-11540  

                                                                                                                                                                

                                                      Appellant,                                    Trial Court No. 3AN-11-6228 CR  



                                         v.  

                                                                                                                        O P I N I O N  

                                                                                                                                               

STATE  OF  ALASKA,  



                                                      Appellee.                                          No. 2615 - August 31, 2018  

                                                                                                                                                        



                           Appeal   from  the   Superior   Court,  Third  Judicial   District,  

                                                                                                                                   

                           Anchorage, Philip R. Volland, Judge.  

                                                                                      



                           Appearances:                  Ben  Crittenden,  Attorney  at  Law,  Anchorage,  

                                                                                                                               

                           under  contract  with  the  Office  of  Public  Advocacy,  for  the  

                                                                                                                                               

                           Appellant.  Kenneth M. Rosenstein, Assistant Attorney General,  

                                                                                                                                     

                           Office of Criminal Appeals, Anchorage, and Craig W. Richards,  

                                                                                                                                   

                           Attorney General, Juneau, for the Appellee.  

                                                                                                                



                           Before:  Mannheimer, Chief Judge, Allard, Judge, and Suddock,  

                                                                                                                                    

                           Superior Court Judge.*  

                                                          

                                                                         



                                                                          

                           Judge MANNHEIMER.  



       *      Sitting   by    assignment   made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  



Constitution and Administrative Rule 24(d).                              


----------------------- Page 2-----------------------

                                  Under Alaska's pattern jury instructions, jurors are told that they should                                                                                                



                                                                                                                                                                1  

distrust the testimony of any accomplice to the charged crime.                                                                                                      



                                  The present case involves two co-defendants - Troy Williams and Latrell  

                                                                                                                                                                                                             



Donel Wynne - who were charged with jointly committing two robberies.   (The two  

                                                                                                                                                                                                                   



men were charged with  robbing the occupant of one apartment, and soon thereafter  

                                                                                                                                                                                                    



robbing the occupants of a second apartment in the same building).  

                                                                                                                                                                              



                                  Williams and Wynne were tried together.  Williams decided not to testify,  

                                                                                                                                                                                                            



but Wynne took the stand at  trial.   In his testimony, Wynne asserted that he had no  

                                                                                                                                                                                                                      



connection to any robbery committed in the second apartment.                                                                                                               With regard  to  the  

                                                                                                                                                                                                                    



robbery committed in the first apartment, Wynne asserted that he had been an innocent  

                                                                                                                                                                                                        



bystander - that his co-defendant Williams was solely responsible for that robbery.  

                                                                                                                                                                                                                         



                                  At the end of the trial, at the request of Williams's attorney, the trial judge  

                                                                                                                                                                                                                



gave Criminal Pattern Jury Instruction 1.21 - an instruction which told the jurors that,  

                                                                                                                                                                                                                  



if they concluded that Wynne was likely a participant in the robbery, then they should  

                                                                                                                                                                                                            



view Wynne's testimony with distrust.  

                                                                                                     



                                  The jury acquitted both Wynne and Williams of the robbery committed in  

                                                                                                                                                                                                                         



the second apartment.  With regard to the robbery committed in the first apartment, the  

                                                                                                                                                                                                                     



         1       See  Alaska Criminal Pattern Jury Instructions 1.20 and 1.21.                                                                                         Both of these pattern                 



instructions tell the jurors that the testimony of any "participant" in the charged crime should                                                                                                              

be viewed with distrust.                                  The two instructions then clarify:                                                 "This does not mean that you may                                       

arbitrarily   disregard   such   testimony,   but   you   should   give   it   the   weight   you   consider  

appropriate after examining it with care and caution and in light of all the evidence."                                                                                                                     



                 We   note   that   these   instructions   use   the   word "participant" rather                                                                                          than the               word  

"accomplice".    "Participant" is conceivably broader than "accomplice", because the word                                                                                                                        

"participant" potentially includes people who did not act with a culpable mental state, and                                                                                                                          

who therefore could not                                       be   held criminally liable for the events they participated in.                                                                                     The  

present case does not require us to inquire further into this matter.                                                                                             



                                                                                                         - 2 -                                                                                                     2615
  


----------------------- Page 3-----------------------

jury found Wynne guilty of this crime, but the jury was unable to reach a verdict with                                                                                                                                                                                                                                                                                                                                                               



 respect to Williams.                                                                                         



                                                                        Wynne (the sole defendant convicted of anything at the trial) now appeals                                                                                                                                                                                                                                                                                     



 his robbery conviction.                                                                                                      He argues that the trial judge committed error when the judge                                                                                                                                                                                                                                                   



 instructed the jurors to evaluate whether Wynne was a participant in the robbery, and to                                                                                                                                                                                                                                                                                                                                                                         



 view Wynne's testimony with distrust if they found that he was a participant.                                                                                                                                                                                                                                                                                                                                              



                                                                        For the reasons explained in this opinion,                                                                                                                                                                                      we   hold that the "distrust the                                                                                                                   



 testimony of an accomplice" jury instruction should not have been given under the                                                                                                                                                                                                                                                                                                                                                                        



  circumstances   of   this   case.     But   though   we   conclude   that   it   was   error   to   give   this  



 instruction, we conclude that the error was harmless under the facts of Wynne's case.                                                                                                                                                                                                                                                                                                                                                                                         



 We therefore affirm Wynne's conviction.                                                                                                                                                                                         



                                      The rationale of the jury instruction on distrusting the testimony of an                                                                                                                                                                                                                                                                                                            

                                     accomplice  



                                                                         The jury instruction                                                                                    directingjurors                                                                  to view the testimony of an accomplice                                                                                                          



 with distrust has been a feature of Alaska law since territorial days.                                                                                                                                                                                                                                                                                        This instruction was                                                                    

                                                                                                                                                                                       2            Then, in 1975 (as we shall explain), our supreme  

 mandatory from 1887 until 1975.                                                                                                                                                                                                                                                                                                                                                                                              



                   2                 When a civil                                                         government   was   first   established for                                                                                                                                                          the   Alaska Territory in 1887,                                                                                                 



  Congress decreed that the then-current laws of Oregon would apply in Alaska.                                                                                                                                                                                                                                                                                                                        See  23 United   

  States Statutes 26 (1887).                                                                                                           At that time, Oregon law mandated that juries be instructed that                                                                                                                                                                                                                                                  

 the testimony of an accomplice should be viewed with distrust.                                                                                                                                                                                                                                                                     See  Hill's Annotated Laws                                                                                     

 of Oregon,  845 (1887).                                                                                                           This provision was included in Alaska's first compilation of laws,                                                                                                                                                                                                                                              

 the Carter Code of 1900.                                                                                                         See  Thomas H. Carter,                                                                                                 The Laws of Alaska                                                                                     (1900),  673.                                                               It was   

 carried forward in every subsequent compilation of Alaska law until statehood.                                                                                                                                                                                                                                                                                                                                        See   1913  

  Compiled Laws of Alaska,  1505; 1933 Compiled Laws of Alaska,  4263, and 1949 Alaska                                                                                                                                                                                                                                                                                                                                                    

  Compiled Laws Annotated,  58-5-1.                                                                                                                                                        After statehood, this provision was no longer included                                                                                                                                                                                

 in the Alaska Statutes.                                                                                         Instead, it was incorporated in the Alaska Criminal Rules.                                                                                                                                                                                                        



                                                                                                                                                                                                                            - 3 -                                                                                                                                                                                                                       2615
  


----------------------- Page 4-----------------------

                                                                                                                                

court amended Alaska Criminal Rule 30(b) so that judges were authorized to give this  



                                                                                    

instruction, but they were no longer required to do so.  



                                                                                                                            

                     The rationale behind this jury instruction is explained by Dean John Henry  



                                                                                                                   

Wigmore in his treatise on evidence, Evidence in Trials at Common Law  (Chadbourn  



                                                                  

revision, 1978),  2057, Vol. 7, page 417:  



                       

                                                                                                             

                               The  reasons  which  have  led  to  this  distrust  of  an  

                                                                                                              

                     accomplice's testimony are not far to seek.  He may expect to  

                                                                                                              

                     save himself from punishment by procuring the conviction of  

                                                                                                           

                     others.  It is true that he is also charging himself, and in that  

                                                                                                            

                     respect  he  has  burned  his  ships.                  But  he  can  escape  the  

                                                                                               

                     consequences of this acknowledgement,  if  the prosecuting  

                                                                                                              

                     authorities choose to release him, provided he helps them to  

                                                                                                   

                     secure the conviction of his partner in crime[.]  ...  



                                                                                              

However, Wigmore also points out the limit of this rationale:  



                       

                                                                                                               

                     The essential element, however, it must be remembered, is  

                                                                                              

                     this     supposed         promise         or    expectation         of     conditional  

                                                                                                                  

                     clemency.  If that is lacking, the whole basis of distrust fails.  



           

Ibid.  



                                                                                   

           The modern history of this jury instruction in Alaska  



                                                                                                                              

                     From the time of statehood until1975, whenever an accomplice to the crime  



                                                                                                                                  

testified at a  defendant's trial, Alaska Criminal Rule 30(b) required the trial judge to  



                                                                                                                              

instruct  the  jury  that  the  testimony   of  an  accomplice  should  be  viewed  with  



                                                               - 4 -                                                          2615
  


----------------------- Page 5-----------------------

                        3  

distrust.    This duty was imposed on trial judges regardless of whether either party asked                                                                                                                                               



for the instruction.                                    



                                       But this                  aspect   of the law began to change in 1974,                                                                                           when the Alaska               



Supreme Court decided                                                Anthony v. State                                 , 521 P.2d 486 (Alaska 1974).                                                            



                                       The defendant in                                 Anthony  was charged with committing a murder for hire.                                                                                                             



Verna Hofhines, the woman who allegedly hired Anthony to kill her husband, ultimately                                                                                                                                        



reached a plea agreement with the State:                                                                            she pleaded guilty to murder, and she testified                                                                



                                                                                4  

against Anthony at his trial.                                                       



                                       Anthony's jury received the standard jury instructions  on weighing the  

                                                                                                                                                                                                                                                



credibility  of  witnesses  -  i.e.,  instructions  embodying the  principle  that  jurors  are  

                                                                                                                                                                                                                                               



entitled to consider a witness's potential bias and their potential interest in the outcome  

                                                                                                                                                                                                                                 



                                     5  

of  the  case.                               And  Anthony's  attorney  apparently  thought  that  these  standard  jury  

                                                                                                                                                                                                                                            



instructions  gave  him  sufficient  scope  to  attack  Hofhines's  testimony  -  because  

                                                                                                                                                                                                                                 



Anthony's attorney did not ask the trial judge to give a "distrust the testimony of an  

                                                                                                                                                                                                                                                  

                                                                       6     But on appeal, Anthony argued that his conviction should be  

accomplice" instruction.  

                                                                                                                                                                                                                                                   



reversed because CriminalRule 30(b) made the "distrust the testimony of an accomplice"  

                                                                                                                                                                                                                       



                                                                                                                                                                                                      7  

instruction mandatory, even when the instruction was not requested.  

                                                                                                                                                                                                           



          3        Before 1975, Criminal Rule 30(b)(2) provided that, "whether or not requested to do                                                                                                                                              



so, [the court] shall give the following basic instructions on all proper occasions: ... (2) That                                                                                                                                             

the testimony of an accomplice ought to be viewed with distrust ... ."                                                                                                                          (Quoted in                       Anthony  

v.  State, 521 P.2d 486, 488 n. 2 (Alaska 1974).)                                                                                    



          4        Anthony ,  521 P                            .2d  at  488.   



          5        Id.  at  497.   



          6        Id.  at  490.   



          7        Ibid.   



                                                                                                                       - 5 -                                                                                                                  2615
  


----------------------- Page 6-----------------------

                                                        In   a   three-to-two   decision,   the   supreme   court   concluded   that   the   trial  



judge's failure to give a "distrust the testimony of an accomplice" instruction required                                                                                                                                                                                                                                         



 reversal of Anthony's conviction.                                                          



                                                        The  Anthony  majority acknowledged that Anthony's attorney had focused                                                                                                                                                                                                     



 the defense case on attacking Hofhines's credibility.                                                                                                                                                             But the majority declared that even                                                                                          



 if the defense attorney's                                                                         cross-examination and closingargument                                                                                                                            had been "devastating",  



 the purpose of Criminal Rule 30(b) would not have been fulfilled.                                                                                                                                                                                                             The majority stated                                         



 that the purpose of the rule was to emphasize to the jurors that distrust of an accomplice's                                                                                                                                                                                                                 



 truthfulness was not merely something that could be argued by an advocate; rather, it was                                                                                                                                                                                                                                                      



 a rule of law "cloak[ed] [with] the judge's impartial authority".                                                                                                                                                                                                 Id. , 521 P.2d at 491.                                                                      



                                                        The two dissenting members of the court, on the other hand, rejected the                                                                                                                                                                                                                       



 majority's premise that the law required a trial judge to set a judicial imprimatur on the                                                                                                                                                                                                                                                           



 concept that an accomplice's testimony should be viewed with distrust.                                                                                                                                                                                                                               



                                                        The dissenters pointed out that the "sole issue" in Anthony's case was the                                                                                                                                                                                                                    



 credibility of the State's chief witness, Hofhines.                                                                                                                                                 As described in the dissent, "The entire                                                                                                



 closing argument of both parties was basically directed to either building up or attacking                                                                                                                                                                                                                                   



 her credibility",                                                 and "the fact that she had been charged with the [murder] and had                                                                                                                                                                                                               



 entered   a   plea   of   guilty   was   the   basic   starting point                                                                                                                                                               for   evaluating her                                                            motive   for  



                                               8  

 testifying."     



                                                        The  dissenters  pointed  out  that  the  jurors  had  received  the  standard  

                                                                                                                                                                                                                                                                                                                              



 instructions on evaluating a witness's testimony based on the witness's "bias and interest  

                                                                                                                                                                                                                                                                                                                                     



 in  the  outcome  of  the  case",  as  well as  an  instruction  on  the  rule  that  a  criminal  

                                                                                                                                                                                                                                                                                                                                



                                                                                                                                                                                                                                                                                                                9  

 conviction cannot rest on the uncorroborated testimony of an accomplice.  

                                                                                                                                                                                                                                                                                                                     



               8            Id.  at 497.                             



               9  

                                                

                            Ibid.  



                                                                                                                                                                          - 6 -                                                                                                                                                                    2615
  


----------------------- Page 7-----------------------

                            Under   these   circumstances,   the   dissenters   concluded,   the   trial judge's   



 failure to expressly instruct the jurors that an accomplice's testimony should be viewed                                                                              



with distrust did not rise to the level of plain error -                                                   i.e., it did not constitute "such basic                         



 and fundamental unfairness [as] to call for the intervention of this court [when there was                                                                                  

no] objection in the trial court."                                 10  



                            Ayear and a half later, in Supreme Court Order No. 222, the supreme court  

                                                                                                                                                                           



 effectively adopted the dissenters' position.  

                                                                                             



                             Supreme Court Order No. 222 amended Criminal Rule 30(b) by eliminating  

                                                                                                                                                                



the  provision  that  required  trial  judges  to  give  the  "distrust  the  testimony  of  an  

                                                                                                                                                                               



 accomplice" instruction in all circumstances,  even when neither party requested that  

                                                                                                                                                                             



 instruction.  

                           



                            This change to Rule 30(b) was an implicit rejection of the position taken  

                                                                                                                                                                          



by the Anthony majority: the position that, whenever an accomplice testifies at a criminal  

                                                                                                                                                                    



trial, the trial is fundamentally unfair unless the jury receives an instruction in which the  

                                                                                                                                                                               



judge expressly endorses the principle that the testimony of an accomplice should be  

                                                                                                                                                                                



viewed with distrust.  

                                              



                            Instead, under the amended version of Rule 30(b), Alaska law reflects the  

                                                                                                                                                                               



position of the Anthony dissenters: When an accomplice testifies, and when neither party  

                                                                                                                                                                           



requests a "distrust the testimony of an accomplice" instruction, the trial can still be fair  

                                                                                                                                                                              



 so long as the judge instructs the jurors that  they are entitled to consider a witness's  

                                                                                                                                                                 



potential bias, a witness's potential motive for testifying, and a witness's interest in the  

                                                                                                                                                                              



 outcome of the case -instructions that allow the lawyers full scope to attack and defend  

                                                                                                                                                                       

the credibility and weight of the accomplice's testimony. 11  

                                                                                                                           



        10    Ibid.   



        11     See Alexander v. State , 611 P.2d 469, 479 (Alaska 1980), where the supreme court  

                                                                                                                                                                           

                                                                                                                                                           (continued...)  



                                                                                      - 7 -                                                                                 2615
  


----------------------- Page 8-----------------------

                                Situations in which it may be inappropriate to give                                                                                                                                                                                                                 the "distrust the                                                   

                                testimony of an accomplice" instruction                                                                                                    



                                                               Because Alaska law no longer takes the view that an explicit "distrust the                                                                                                                                                                                                                                                               



testimony of an accomplice" instruction is a mandatory component of a fair trial, Alaska                                                                                                                                                                                                                                                                                               



trial judges must actively consider whether this instruction should be given, even when                                                                                                                                                                                                                                                                                                      



 one of the parties affirmatively asks for the instruction.                                                                                                                                                                                                         



                                                               As   we   have   explained,   the   rationale   behind   this   jury   instruction   is   the  



possibility that an                                                                   accomplice to a crime will falsely incriminate another person in an                                                                                                                                                                                                                                                 



 effort to obtain clemency from the government - in Wigmore's words, "to save himself                                                                                                                                                                                                                                                                                                



 from    punishment    by    procuring    the    conviction    of    others",    thus   prompting    "the  



prosecuting authorities [to] choose to release him".                                                                                                                                                                                             As our own supreme court stated in                                                                                                                           



Fresneda v. State                                                                    ,   458   P.2d 134, 144 (Alaska 1969), "An accomplice's testimony is                                                                                                                                                                                                                                                     



viewed with distrust, because the accomplice usually believes he has a personal interest                                                                                                                                                                                                                                                                                            



 in aiding the prosecution."                                                                                                 



                                                               But as Wigmore explains, this rationale does not                                                                                                                                                                                           apply if the "supposed                                     



promise or expectation of conditional clemency ... is lacking".                                                                                                                                                                                                                                In such cases, "the whole                                                                   



basis of distrust fails", and the instruction is no longer supported.                                                                                                                                                                                                                                             



                                                               Many times,                                                   of   course,   a defense attorney will request a "distrust the                                                                                                                                                                                                            



testimony of an accomplice" instruction in the traditional circumstances that gave rise                                                                                                                                                                                                                                                                                                              



to   the instruction:                                                                    circumstances where an accomplice to the crime testifies for the                                                                                                                                                                                                                                             



 government in exchange for favorable treatment.                                                                                                                                                                                      But accomplices sometimes testify at                                                                                                                                    



 criminal trials under other circumstances.                                                                                                                                                        



                 11             (...continued)  



held that  a trial  was  fair  even though  the  trial  judge  declined to  give  one  of  the  other  

                                                                                                                                                                                                                                                                                                                                                                                             

 instructions that were formerly mandated by Criminal Rule 30(b) - the instruction to view  

                                                                                                                                                                                                                                                                                                                                                                                                  

 a defendant's out-of-court verbal admissions with caution.  

                                                                                                                                                                                                                                                                    



                                                                                                                                                                                                  - 8 -                                                                                                                                                                                              2615
  


----------------------- Page 9-----------------------

                                     For   instance,   this   Court   has   acknowledged   that,   from   time   to   time   in  



prosecutions for physical or sexual abuse of a child, there will be a significant possibility                                                                                                                      



that the spouse of the defendant is an uncharged accomplice to the acts of abuse.                                                                                                                                                 See  



State v. Morris                           , 680 P.2d 1190, 1194 n. 3 (Alaska App. 1984).                                                                                    In such cases, there will                               



be times when the defendant's spouse takes the stand and denies that the acts of abuse                                                                                                                                        



occurred, or minimizes the                                                   seriousness of those acts.                                                In these instances, if the judge                                       



gives   a   "distrust   the   testimony   of   an   accomplice"   instruction,   the   jurors   may   well  



perceive this instruction as a judicial directive to distrust the exculpatory testimony of                                                                                                                                             



the spouse.                      



                                     Another non-traditional situation was presented to this Court in                                                                                                                Hohman  



v.  State, 669 P.2d 1316 (Alaska App. 1983).                                                                                    The defendant in                                   Hohman  was a state      



legislator who was accused of personally accepting a bribe, and                                                                                                                    of   offering a related      

                                                                            12       To prosecute Hohman, the State immunized two other  

bribe to another legislator.                                                                                                                                                                                                   

participants in the bribery scheme, Michael DeMan and Sigurd Larsen. 13                                                                                                                                   Both DeMan  

                                                                                                                                                                                                                         



and Larsen were unwilling recipients of  immunity  - and when they were forced to  

                                                                                                                                                                                                                                        

testify, they testified in favor of Hohman. 14  

                                                                                                                           



                                     At the conclusion of Hohman's trial, the judge instructed the jurors that  

                                                                                                                                                                                                                                   



they should examine the testimony of these immunized witnesses "with greater care than  

                                                                                                                                                                                                                                  

the testimony of an ordinary witness". 15   On appeal, Hohman argued that this instruction  

                                                                                                                                                                                                                 



          12      Hohman , 669 P.2d at 1318.
                                                



          13  

                                                  

                  Id. at 1322.
  



          14  

                                                                        

                  Id. at 1322 & 1323.
  



          15  

                                                   

                  Id. at 1322.
  



                                                                                                                 - 9 -                                                                                                             2615
  


----------------------- Page 10-----------------------

amounted   to   an   adverse   judicial   comment   on   DeMan's   and   Larsen's   exculpatory  

testimony, and that this judicial comment denied him due process of law.                                                   16  



                       In rejectingHohman's claim of error, this Court noted that there was a long  

                                                                                                                                            



line of judicial decisions holding that it is proper to give a "distrust the testimony of an  

                                                                                                                                              



accomplice" instruction when an accomplice to a crime testifies in favor of the defendant  

                                                                                                                                  



- because of the significant chance  that the accomplice will lie out of loyalty to the  

                                                                                                                                             

defendant. 17  

                       



                       (Indeed, MichaelDeMan was later convicted of perjury for the exculpatory  

                                                                                                                                



testimony he gave at Hohman's trial.  See DeMan v. State, 677 P.2d 903, 906 (Alaska  

                                                                                                                                      



App. 1984).)  

                        



                       Nevertheless, this Court stated that "a better practice" would have been for  

                                                                                                                                              



the trial judge to augment the standard instructions on evaluating witness credibility -  

                                                                                                                                              



by adding a clause which told the jurors that, in addition to the other factors bearing on  

                                                                                                                                              



witness credibility, the jurors  could consider the fact that a witness had been granted  

                                                                                                                                     

immunity  from prosecution. 18                          By handling the situation this way, we explained, the  

                                                                                                                                             



judge could "avoid any possible danger that the jury [would] conclude that the trial judge  

                                                                                                                                         



                                                                                                     19  

 [was] expressing an opinion on the weight of the evidence."  

                                                                                                         



      16   Ibid.   



      17  

                     

           Ibid.  



      18  

                                

           Id. at 1323.  



      19  

                     

           Ibid.  



                                                                    -  10 -                                                                2615
  


----------------------- Page 11-----------------------

                                                                 

          Application of this law to Wynne's case  



                                                                                                                                

                    Wynne's case presents yet another factual scenario that falls outside the  



                                                                                                                                   

traditional rationale  of  the  "distrust  the  testimony  of  an  accomplice"  instruction:                                      a  



                                                                                                                     

situation where two co-defendants are being tried together, and where one defendant  



                                                                                                                 

takes the stand in an attempt to lay all the blame on the other defendant.  



                                                                                                                              

                    As we have explained, Wynne testified at trial that any wrongdoing was  



                                                                                                                    

committed solely by his co-defendant Williams.   In response to Wynne's testimony,  



                                                                                                                                      

Williams's attorney requested the "distrust the testimony of an accomplice" instruction.  



                                                                                           

At that point, the trial judge was faced with a conundrum.  



                                                                                                                             

                    Because Wynne was charged with beinga participant in the robberies, there  



                                                                                                                                      

was reason to think that he might be motivated to falsely lay  the blame on Williams.  



                                                                                                                      

Thus,  Williams  was  seemingly  entitled  to  have  the  jury  instructed  that  Wynne's  



                                                                  

testimony should be viewed with distrust.  



                                                                                                                            

                    But under these circumstances, there was a significant risk that the jurors  



                                                                                                                       

might view a "distrust the testimony of an accomplice" instruction as a judicial comment  



                                                                                                      

on how they should evaluate Wynne's self-exculpatory testimony.  



                                                                                                                                 

                    We conclude that the proper course for trial judges in this situation is to  



                                                                                                                             

refrain from giving the "distrust the testimony of an accomplice" instruction.  We reach  



                                                  

this conclusion for two reasons.  



                                                                                                                               

                    First, the traditional rationale behind the instruction does not apply to this  



                                                                                                                               

situation.  There  is  no  suggestion  that  Wynne  had  received  or  was  negotiating for  



                                                                                                                        

clemency from the authorities when he gave his testimony.  And as Wigmore explains,  



                                                                                                                              

if the "supposed promise or expectation of conditional clemency ... is lacking", then "the  



                                                                                                                     

whole basis of distrust fails", and the jury instruction is no longer supported.  



                                                              -  11 -                                                         2615
  


----------------------- Page 12-----------------------

                         Second, the standard instructions on evaluating the credibility of witnesses                                             



already expressly direct the jurors to consider a witness's potential bias, their potential                                                         

                                                                                                                                      20    Under these  

motive for testifying,                     and   their interest in the outcome of the case.                                                               



standard instructions, when a case arises where one co-defendant takes the stand and  

                                                                                                                                                             



testifies that the other defendant is wholly to blame, the attorney who represents the non- 

                                                                                                                                                           



testifying defendant has full scope to attack the testimony of the testifying defendant.  

                                                                                                                                                                     



And the virtue of the standard instructions is that they offer no hint of the judge's view  

                                                                                                                                                           



of these matters.  

                                 



                         Although we conclude that it was error for the trial judge in Wynne's case  

                                                                                                                                                            



to give a "distrust the testimony of an accomplice" instruction, we nonetheless conclude  

                                                                                                                                                   



that the error was harmless.  We reach this conclusion for two reasons.  

                                                                                                                                        



                         First, given the facts of this case, it was obvious that Wynne had a potential  

                                                                                                                                                   



motive to lie about his participation in the robbery and to try to falsely shift the blame  

                                                                                                                                                        



to  his  co-defendant,  Williams.                               We  are  convinced  that  the  jury  instruction  about  

                                                                                                                                                        



distrusting the  testimony of an accomplice did not cause the jurors to be any more  

                                                                                                                                                          



skeptical of Wynne's testimony than they otherwise would have been.  

                                                                                                                                       



                         Second, the State's evidence that Wynne committed the first robbery was  

                                                                                                                                                             



quite strong.  

                          



                         Earlier on the day of the  robbery, Wynne asked his close friend, Jerika  

                                                                                                                                                         



Ratcliff, to pick him up at his residence, and then to pick up Williams.   Ratcliff drove  

                                                                                                                                                         



Wynne and Williams to the apartment building where the robbery occurred.  Wynne and  

                                                                                                                                                             



Williams went inside.                        Sometime later,  Wynne  returned to the car alone.                                                      He was  

                                                                                                                                                            



carrying a television set and a large hunting knife - items later identified as having been  

                                                                                                                                                           



stolen during the robbery.  

                                                   



      20     See  Alaska Criminal Pattern Jury Instruction 1.10 (2012).                                              



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----------------------- Page 13-----------------------

                                                            Ratcliff and Wynne then waited in the car for Williams to return.                                                                                                                                                                                                                                     When  



 Ratcliff   became   anxious   to   leave,   Wynne   went   back   into   the   building,   intending to   



 retrieve Williams.                                                             But almost immediately, Wynne returned to the car alone, and he told                                                                                                                                                                                                                            



 Ratcliff to start driving.                                                                               By this time, they could hear police sirens.                                                                                                                                                       



                                                             The police pulled them over a short distance from the apartment building.                                                                                                                                                                                                                                                              



 Inside the car, the police found a bag containing a holster, masks, gloves, a knife, duct                                                                                                                                                                                                                                                                                  



 tape, a walkie-talkie, and sanitary wipes.                                                                                                                                           



                                                             Given   the   fact   that   there   were   obvious   reasons   why   Wynne   might   be  



 motivated to testify falsely, and given the strength of the evidence tying Wynne to the                                                                                                                                                                                                                                                                                         



 robbery, we conclude that the challenged jury instruction did not appreciably affect the                                                                                                                                                                                                                                                                                         



                                                                                                                                                                                                                                                             21  

jury's verdict, and that the error was therefore harmless.                                                                                                                                                                                                            



                               Conclusion  



                                                             The judgement of the superior court is AFFIRMED.  

                                                                                                                                                                                                                                                                                                       



                21             See Love v. State                                                         , 457 P.2d 622, 631-32, 634 (Alaska 1969).                                                                                                                 



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