McConkey v. State

¶1(concurring).

¶2I join in my colleagues’ affirmance of McConkey’s conviction for contempt. My analysis of the record has led me to conclude that although McConkey’s apprehension of self-incrimination may have been real, he failed to adequately demonstrate the basis of such fear to the superior court at Anthony’s trial.

¶3In the course of the change of plea proceedings which were held prior to Anthony’s trial, McConkey testified in part as follows:

I went up to the front door which was the door I was supposed to have entered.

¶4Later during redirect examination, McCon-key answered in part:

Well, I knew I was going in to use the bathroom, I didn’t know. Joe asked me if we was going in to look for money.

¶5In my view these portions of McConkey’s testimony suggest that McConkey may have reasonably believed that any further testimony on his part in the Anthony trial could have been used against him in a subsequent prosecution for inciting the commission of a crime under AS 11.10.070. A ■reading of McConkey’s testimony leads to the reasonable inference that Anthony and McConkey may have discussed burglarizing the Sutton dwelling prior to their actual entry and that Anthony looked to McCon-key for instructions before their commission of the burglary. Thus, I find no grounds for the court’s characterization of McConkey’s claim of privilege as “fanciful” or of the burglary as the “result of impulse.”

¶6I conclude, however, that McConkey’s fear of self-incrimination was inadequately demonstrated to the trial court. McConkey simply did not show the trial court “by argument how conceivably a prosecutor, building on the seemingly harmless answer, might proceed step by step to link the witness with some crime . . . . ” United States v. Coffey, 198 F.2d 438, 440 s(3d Cir. 1952). McConkey did not produce a transcript of his change of plea hearing at Anthony’s trial, nor did he explain by way of summary how his answers could have furnished “a link in the chain of evidence” leading to a conviction. The only explanation offered by counsel for McCon-key was the following one:

My position for the record is that any question that relates in any way to this incident places Mr. McConkey in jeopardy of being charged with the crime of inciting the commission of a crime, which is section 11.10.070 of the Alaska statutes. I realize that these preliminary questions are of a foundational nature and at first blush would not appear to be dangerous questions to whether Mr. Mc-Conkey might later be prosecuted and convicted of the crime I’ve just cited, but my position as his attorney is that I cannot afford to gamble and guess as to how far Mr. McConkey might go- and then safely stop without opening the door to extensive cross examination and to complete disclosure of information that might tend to incriminate him

In my view, this explanation was inadequate to demonstrate to the court a reasonable basis for a fear of self-incrimination. A trial court need not be left to speculate over the nexus between a witness’s seemingly innocent answer and some possible subsequent prosecution. Thus, I agree with my colleague’s conclusion that, “Appellant simply did not demonstrate a reasonable basis” for the invocation of the privilege against self-incrimination.1