Opinion
A-13569 7112
06-12-2024
ESTATE OF PAUL ALLEN HARRIS, Appellant, v. STATE OF ALASKA, Appellee.
Emily Jura, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Hazel C. Blum, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Trial Court No. 3AN-16-05133 CR Third Judicial District, Anchorage, Erin B. Marston, Judge.
Emily Jura, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Hazel C. Blum, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
MEMORANDUM OPINION
TERRELL, JUDGE
Paul Allen Harris was convicted, following a jury trial, of two counts of first-degree sexual abuse of a minor for engaging in sexual penetration with a seven-year-old girl from his apartment complex. Harris appealed his conviction but died following the completion of briefing. His estate now appears before this Court as the appellant.
AS 11.41.434(a)(1).
See State v. Carlin, 249 P.3d 752, 754 (Alaska 2011) (concluding that if a criminal defendant dies after filing an appeal, their estate may continue to pursue the appeal).
On appeal, Harris challenges two aspects of his trial, arguing that on-scene statements he made to the police should have been suppressed because he was not given Miranda warnings and that the jury was improperly instructed on the defense of involuntary intoxication. He also challenges the superior court's denial of his requests for substitution of counsel. We conclude that any error in failing to suppress Harris's statements to the police or in improperly instructing the jury was harmless beyond a reasonable doubt and that the superior court did not abuse its discretion in denying his requests for substitution of counsel.
Background facts and proceedings
On the evening of June 13, 2016, seven-year-old M.S. was playing in the driveway of the apartment where she lived. M.S. asked her father if Harris, who lived in a neighboring apartment, could give her a ride on his scooter. Harris relied on the scooter for his mobility issues. Her father agreed, watching Harris and M.S. drive around in circles in the parking lot from inside his apartment. The father looked away briefly, and when he looked up, M.S., Harris, and the scooter were gone. He began looking for his daughter, but was unable to find her.
Thirty to forty-five minutes later, Harris and M.S. returned back to the driveway on the scooter. The father took M.S. into their apartment and asked her what had happened. M.S. told her father that Harris had touched her and kissed her private areas. The father confronted Harris, and although Harris initially denied that anything had occurred, he ultimately apologized to the father and said that he had not done anything like that before. The father called the police. Harris also called 911, expressing fear that the father was "going to kill [him]." Harris confessed to touching M.S. during his 911 call.
When officers arrived, they found Harris outside on his porch. One officer attended to the father, while a second officer attended to Harris. This officer had a short conversation with Harris in which Harris confessed to sexually abusing M.S.
M.S. was taken to the child advocacy center, where she stated in an interview that Harris drove her on his scooter to a place "near the woods," laid her down in the grass, and sexually penetrated her with his fingers and mouth. A medical examination was conducted, revealing "significant evidence of trauma on her genital exam," including dried blood, swelling, abrasions, and bruising. A swab found M.S.'s DNA on Harris's right finger and found male DNA in M.S.'s genitals.
Harris was indicted on two counts of first-degree sexual abuse of a minor and one count of second-degree sexual abuse of a minor. At trial, the jury heard testimony from M.S. and M.S.'s father, as well as recordings of M.S.'s father's and Harris's 911 calls, Harris's interview with the officer who responded to the 911 calls, and M.S.'s child advocacy center interview. The jury also saw and heard testimony about crime scene photographs, the crime lab's DNA testing report, and a diagram of M.S.'s genital injuries.
He was also initially charged with one count of kidnapping, but the State dismissed this charge before trial. AS 11.41.300(a)(1)(F).
At trial, Harris conceded that he sexually abused M.S. but argued that he did not act voluntarily because he was hallucinating. Harris claimed the hallucinations were either caused by alcohol withdrawal (after his doctors told him that he had to abstain from alcohol ahead of a necessary surgery) or a side effect from taking the prescription medication amitriptyline. He characterized this defense as an "involuntary intoxication" defense. The jury rejected this defense and found Harris guilty on all three counts. The superior court merged the guilty verdict for the second-degree sexual abuse of a minor count into one of the first-degree sexual abuse of a minor counts and entered convictions on two counts of first-degree sexual abuse of a minor.
The superior court's denial of Harris's Miranda motion
Prior to trial, Harris moved to suppress the statements he made to the officer who contacted him in response to the 911 call, Officer Hall. The superior court held an evidentiary hearing, at which the court heard testimony from Officer Hall. The court also reviewed audio recordings of M.S.'s father's and Harris's 911 calls and of Officer Hall's conversation with Harris.
In Harris's 911 call, Harris requested assistance because he had "done something - something wrong" and was afraid the father was "going to kill [him]." He also confessed to touching a child. Two officers arrived on the scene in marked police cars, without their lights or sirens on. When they arrived, they discovered M.S.'s father "pacing around" and found Harris sitting on his porch speaking with dispatch on the phone. The officers split up to attend to each of the men. Right before Officer Hall reached Harris, he was informed by dispatch that Harris had admitted to sexually abusing a child.
Officer Hall initiated the conversation with Harris by saying, "How we doing sir?" to which Harris responded, "I'm good. How are you?" Officer Hall asked Harris if he was on the phone with police dispatch and, when he said yes, told him, "Okay. We can hang up on them." Officer Hall next asked, "So what's going on today, sir?" Harris hesitated and then asked, "Can I just have a couple puffs off the cigarette before you take me in?" Officer Hall responded, "Well, why don't we talk first. Do you have an ID? Do you have an ID on you, first? Let's start with that." Harris then volunteered, "Oh god. It got carried away. I've never done anything like that before in my life. I don't blame him for wanting to kill me." Officer Hall disregarded this statement and asked Harris for his phone number, which Harris then provided to the officer.
There are some small discrepancies between the transcript of the recording of this conversation and the recording itself. We defer to the audio recording to resolve them.
Officer Hall then asked Harris questions to figure out what had occurred. Harris told him that he had been driving children around on his scooter and that he had driven one child away into the woods, taken off her pants, and touched her vaginal area. He stated that he had never done anything like this before and never had any thoughts like this before. At points during this questioning, Harris interjected that he "never wanted this to ever fucking happen"; asked Officer Hall to "[p]lease take [him] away"; said that he understood if M.S.'s father wanted to kill him; said that he was sick of himself; asked, "The fuck happened?"; and stated that he hated himself.
This part of the conversation between Harris and Officer Hall lasted approximately ten minutes. Officer Hall testified that he was the only officer present during the questioning. The conversation occurred outdoors on the front porch of Harris's home around 7:30 p.m. Officer Hall testified that while speaking to Harris, he stood "to the side of him," standing a "couple feet" apart from Harris. Officer Hall testified that Harris "wasn't being detained, he wasn't under arrest for anything at that point. We're still just trying to figure out what had happened." Officer Hall also said that he was not doing anything to physically block off the area or prevent Harris from leaving or moving. On cross-examination, Officer Hall conceded that if Harris had tried to go into his apartment or walk to the other side of the building, Officer Hall "would have at least walked with him into his apartment at that point."
At the end of the conversation, Officer Hall asked Harris to stand up, pat-searched him, placed him in handcuffs, and walked him to Officer Hall's patrol car. As they walked to the patrol car, Officer Hall asked Harris how much he had to drink that day, and Harris responded he had drunk a fifth of liquor and four or five beers. Officer Hall then asked, "Is that a normal amount for you or above average?" and Harris replied, "No. Way above average."
Harris moved to suppress the statements he made to Officer Hall on-scene. He argued that the on-scene questioning by Officer Hall amounted to a custodial interrogation and therefore should be suppressed because he was not informed of his Miranda rights before he made the statements.
Harris also moved to suppress statements he made to a detective at the police station. The State conceded that his statements made to the detective were inadmissible, and the court granted Harris's motion as to these statements.
After an evidentiary hearing, the superior court denied the motion to suppress. The court found that Harris himself called 911 and requested that officers come to his location; that the interview occurred at Harris's house at a reasonable time of day and did not last long; and that the interview was a one-on-one conversation between just Officer Hall and Harris. The court also noted that Officer Hall had "a very calm demeanor and a conversational tone of voice" throughout the conversation; that Officer Hall never told Harris that he was under arrest or became accusatory; and that Harris was not restrained throughout the conversation. The court acknowledged that Officer Hall treated Harris like a suspect - "ask[ing] a number of direct questions about [Harris's] actions with M.S. in order to gather specific details about the sexual abuse" - and that Harris was "immediately handcuffed, arrested, and driven to the police station." But the court concluded that, under the totality of the circumstances, a reasonable person in Harris's position would not feel as if they were in custody.
See Hunter v. State, 590 P.2d 888, 895 (Alaska 1979). Hunter sets forth "at least three groups of facts" that are relevant to determining whether a person is subject to a custodial interrogation:
The first are those facts intrinsic to the interrogation: when and where it occurred, how long it lasted, how many police were present, what the officers and the defendant said and did, the presence of actual physical restraint on the defendant or things equivalent to actual restraint such as drawn weapons or a guard stationed at the door, and whether the defendant was being questioned as a suspect or as a witness. Facts pertaining to events before the interrogation are also relevant, especially how the defendant got to the place of questioning - whether he came completely on his own, in response to a police request, or escorted by police officers. Finally, what happened after the interrogation - whether the defendant left freely, was detained or arrested - may assist the court in determining whether the defendant, as a reasonable person, would have felt free to break off the questioning.Id.
During trial, Harris renewed his motion to suppress as it applied to the statements he made while being led to the police car in handcuffs about how much he had to drink. The superior court declined to reconsider its prior order, and the audio of the full conversation between Officer Hall and Harris, including after Harris was handcuffed, was played to the jury.
On appeal, Harris renews his argument that his interview with Officer Hall should have been suppressed. The State responds by arguing that the conversation that occurred on the porch before Officer Hall placed Harris in handcuffs was noncustodial in nature. With respect to Harris's statements while he was walked to the police car in handcuffs discussing how much he had to drink, the State argues that Officer Hall's questions to Harris about his drinking were not an "interrogation" for purposes of Miranda. We take each contention in turn.
In Miranda v. Arizona, the United States Supreme Court held that the subject of an "in-custody interrogation" must be fully advised of their rights. For purposes of Miranda, "custodial interrogation" means "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of [their] freedom of action in any significant way."
Miranda v. Arizona, 384 U.S. 436, 467 (1966).
Id. at 444.
The Alaska Supreme Court has explained that "two discreet inquiries are essential to the determination of custody" for Miranda purposes: "(1) the circumstances surrounding the interrogation; and (2) given the totality of those circumstances, whether a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave." "In the first step, the [reviewing] court generally defers to the factual findings of the trial court. Once the facts are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest."
State v. Smith, 38 P.3d 1149, 1154 (Alaska 2002).
Id. (cleaned up).
Harris argues that the superior court gave insufficient weight to the fact that he confessed to sexually abusing M.S. when he called 911 and that he therefore would have believed he would be arrested when police arrived. He argues that this belief was reinforced by Officer Hall starting the conversation with him by telling him that he could end the call with 911, which he characterizes as a show of authority; by Officer Hall's failure to state expressly that he was not under arrest; and by the fact that he was arrested at the conclusion of the conversation.
But both this Court and our supreme court have concluded that a defendant's initiation of a police interview weighs against a finding of custody. We also disagree that Officer Hall purported to exercise authority over Harris when he said that Harris could end the 911 call. This statement was not phrased as an order, and the superior court found that Officer Hall was calm throughout the interaction. Officer Hall also testified that he was "still just trying to figure out what had happened" at this point. Finally, our supreme court has long cautioned that whether a defendant was arrested at the conclusion of an interview is "of limited weight" because "a court must determine whether the defendant was in custody when he made the incriminating statements" and it would be "illogical to rest that judgment primarily on something that occurs after the defendant has made the statements."
See id. at 1155-56 (concluding that an interview was noncustodial in part because the defendant initiated contact with the police by calling them and providing them with a false alibi); Beltz v. State, 895 P.2d 513, 520 (Alaska App. 1995) (concluding that an interview was noncustodial in part because it began with the defendant walking into the police station and reporting that his daughter had accused him of sexual abuse); State v. Murray, 796 P.2d 849, 851 (Alaska App. 1990) (concluding that an interview was noncustodial in part because the police made an appointment in advance to meet with the defendant and the defendant, on his own initiative, came out of his house, sat down in the police car, and immediately began talking about the accusations).
Smith, 38 P.3d at 1159 (quoting Hunter v. State, 590 P.2d 888, 895 n.23 (1979)).
We have independently reviewed the record and the findings of the superior court, and we agree with the court that Harris was not in custody prior to being handcuffed.
As explained above, the State does not argue that Harris was not in custody when he was handcuffed and walked to the police car, implicitly conceding that he was in custody for Miranda purposes at this point. We agree that at this point the interview was custodial in nature.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to independently assess any concession of error by the State in a criminal case).
The State instead argues that the questions Officer Hall asked about Harris's alcohol consumption after Harris was handcuffed were not an "interrogation" for purposes of Miranda because they were "words or actions on the part of the police" that were "normally attendant to arrest and custody."
See Rhode Island v. Innis, 446 U.S. 291, 301 (1980) ("[T]he term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.").
But "[e]ven a purely administrative question may constitute custodial interrogation if, under the circumstances, a reasonable person would know that the question was likely to elicit an incriminating response." And an "'incriminating response' . . . refer[s] to any response - whether inculpatory or exculpatory - that the prosecution may seek to introduce at trial." Because Harris's alcohol consumption was evidence that the State was likely to present at trial, Officer Hall's questions about Harris's alcohol consumption amounted to custodial interrogation under Miranda, and Harris's responses to these questions should have been suppressed at trial due to the absence of a Miranda warning.
Klemz v. State, 171 P.3d 1169, 1172 (Alaska App. 2007).
Innis, 446 U.S. at 301 n.5.
Why we conclude that failure to suppress the statements Harris made while handcuffed and walking to the patrol car was harmless beyond a reasonable doubt
Because we conclude that it was error to admit the portion of Harris's conversation with Officer Hall that occurred while Harris was in handcuffs and walking to the patrol car, we must determine whether this error was harmless beyond a reasonable doubt. In order to do this, we must examine Harris's defense and its evidentiary basis in further detail.
Harris's defense at trial was that he sexually abused M.S. while hallucinating due to involuntary intoxication. Harris argued that the hallucinations were either caused by alcohol withdrawal (after his doctors told him that he had to abstain from alcohol ahead of a necessary surgery) or a side effect from taking the prescription medication amitriptyline. Harris argued that, because of the involuntary intoxication, "he was in such a state of disorientation, confusion, hallucination, and disturbance that he was not acting voluntarily."
But we conclude that there is no reasonable possibility that the verdict would have been different if Harris's admission about his alcohol consumption had been suppressed. In support of his involuntary intoxication defense, Harris introduced medical records from before the incident in which he self-reported to medical providers that he had experienced hallucinations. He also presented the testimony of a caregiver and his son, who both testified that they saw him experience hallucinations. Both testified that Harris was hallucinating bugs and rats. And Harris's son further testified that Harris had hallucinated seeing "demonic" dead people that "were abusing themselves in front of him" and that he had seen Harris stick his finger into the sofa during one of these hallucinations. Harris's son testified that when Harris experienced hallucinations, he experienced tremors and would not be able to drive his mobility scooter. He testified that, after the fact, Harris sometimes remembered what he hallucinated and sometimes did not.
See Berezyuk v. State, 282 P.3d 386, 398 (Alaska App. 2012).
Harris's son also testified that Harris was experiencing alcohol withdrawals because he had to stop drinking in preparation for surgery. And he testified that he gave Harris amitriptyline the night before the sexual abuse in order to help him sleep.
Harris also presented the testimony of an expert witness on the psychiatric effects of alcohol and prescription drug side effects. The expert witness testified that alcohol withdrawal can cause hallucinations, with common subjects being bugs and animals. And he testified that hallucinations can persist even after tremors subside. He testified that hallucinations could be a side effect of amitriptyline, although this was rare and he personally had never seen it. And he testified that alcohol and amitriptyline should not be mixed and that he would provide a warning not to do so if he were to prescribe amitriptyline.
On cross-examination, the expert stated that he did not have enough information to be able to form an opinion as to what occurred in this case. He also said that he knew of no instances in medical research where amitriptyline had caused a person to sexually abuse a child and that he knew of no reason the drug would cause that reaction. And he gave the same response when asked about the possibility that alcohol withdrawal could cause sexual abuse of a child.
"Although the voluntariness of a defendant's conduct is rarely disputed, it remains an implicit element of all crimes. If voluntariness is actively disputed, the government must prove it." "The criminal law's concept of involuntariness includes instances where a defendant is rendered unconscious by conditions or circumstances beyond the defendant's control, if the defendant neither knew nor had reason to anticipate this result."
State v. Simpson, 53 P.3d 165, 169 (Alaska App. 2002); see also AS 11.81.600(a) ("The minimal requirement for criminal liability is the performance by a person of conduct that includes a voluntary act or the omission to perform an act that the person is capable of performing."); AS 11.81.900(b)(68) ("'[V]oluntary act' means a bodily movement performed consciously as a result of effort and determination[.]").
Wagner v. State, 390 P.3d 1179, 1182 (Alaska App. 2017) (citing 2 Wayne R. LaFave, Substantive Criminal Law § 9.4, at 32-37 (2nd ed. 2003)).
The evidence presented at trial undercuts Harris's assertion that he was hallucinating as a result of involuntary intoxication at the time he sexually abused M.S., even without the admission of Harris's statements that he had consumed more alcohol than average. No one who interacted with him reported tremors, and he was able to operate his mobility scooter. Although Harris's expert witness testified that hallucinations can occur without tremors, Harris's son testified that Harris experienced tremors and was not able to operate his mobility scooter while hallucinating. Harris also described in some detail what he had done in the admissible part of his conversation with Officer Hall.
For these reasons, we conclude that the failure to suppress Harris's statements while in handcuffs and walking to the patrol car was harmless beyond a reasonable doubt.
Why we conclude that the alleged error in the jury instructions on the involuntary intoxication defense was harmless beyond a reasonable doubt
Harris also challenges the instructions the jury was given on the involuntary intoxication defense. Specifically, the State successfully requested that the court instruct the jury that Harris had to be non-negligent about the possible effects of amitriptyline or alcohol withdrawal. Harris opposed, arguing that it was per se reasonable for a person to be following their doctor's prescribed course of treatment and that a jury should not be instructed to second-guess that person for doing so.
We conclude that we need not resolve this question because any purported error in instructing the jury was harmless beyond a reasonable doubt. There was no evidence presented at trial that Harris was following a prescribed course of treatment when he sexually abused M.S. Although we concluded above that Harris's statement to police about his alcohol consumption should have been suppressed, there was other evidence in the record establishing that Harris had consumed at least some alcohol on the night in question. But Harris's son testified that Harris's physicians had told Harris to stop drinking in preparation for upcoming surgery. Thus, the evidence at trial showing that Harris had consumed any alcohol in the time frame preceding his abuse of M.S. shows that he was not following medical advice.
Additionally, Harris presented no direct evidence of having a prescription for amitriptyline. And Harris's own expert witness testified that amitriptyline should never be mixed with alcohol and that he personally would provide a warning not to mix it with alcohol to anyone to whom he prescribed it. There is therefore no reasonable possibility that a jury would conclude from the evidence at trial that Harris was using amitriptyline as prescribed.
We therefore reject Harris's challenge to the jury instructions.
Why we reject Harris's claim that the superior court should have appointed him substitute counsel
Harris was represented by an assistant public defender in the superior court. Prior to trial, Harris made multiple requests for a different attorney. The superior court held four ex parte representation hearings, and ultimately denied each request. Harris now argues that the superior court erred by denying him a substitution of counsel.
Indigent defendants do not have a right to counsel of their choice nor do they have a right to a "meaningful relationship" with their appointed counsel. That said, animosity between counsel and a defendant may constitute cause for removing counsel if the attorney-client relationship has deteriorated to a point where the attorney is incapable of effective communication or objective decision-making. Requests by an indigent defendant for new court-appointed counsel are entrusted to the sound discretion of the trial court.
Monroe v. State, 752 P.2d 1017, 1020 (Alaska App. 1988).
Douglas v. State, 166 P.3d 61, 88-89 (Alaska App. 2007).
Moore v. State, 123 P.3d 1081, 1087 (Alaska App. 2005).
In the representation hearings, the court allowed Harris as long as he wanted to express his concerns about his attorney, and it asked pointed follow-up questions when Harris made general statements that could have been indicative of a serious breakdown in the attorney-client relationship. In every instance, Harris's concerns ultimately boiled down to a desire to have better communication with his attorney. And, while both Harris and his attorney expressed that communication could be better, each consistently indicated that they would be able to work with the other. The court therefore did not abuse its discretion when it denied Harris's requests for new counsel.
See id. at 1088-89 (concluding that there was no abuse of discretion when the court "listened to [the defendant's] complaints, allowing him to speak as long as he chose," and "asked about the reasons for [the defendant's] dissatisfaction with his attorney and probed for details").
Harris also argues that the superior court applied an incorrect legal standard in denying his requests. He notes that, in the third of four representation hearings, the court told him, "Well, basically unless there's a conflict, I can't appoint a new public defender to represent you." And he argues that this is incorrect because new counsel should be appointed if the attorney-client relationship has deteriorated to a point where the attorney is incapable of effective communication or objective decisionmaking so long as the defendant has not purposely frustrated the appointed counsel's efforts.
Douglas, 166 P.3d at 88-89.
But it is clear that the court was speaking informally. All the court's questions were geared towards delving into whether there was a breakdown in the attorney-client relationship, so it is clear that the court understood that basis for substitution of counsel. There is no reason to believe the court applied an improper standard to Harris's representation requests.
We therefore reject Harris's argument that he was entitled to substitute counsel.
Conclusion
The judgment of the superior court is AFFIRMED.