Opinion
A-13862 7123
07-24-2024
AARON PATRICK HIRATSUKA, Appellant, v. STATE OF ALASKA, Appellee.
Jay A. Hochberg, Attorney at Law, Kapolei, Hawaii, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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 District Court, Third Judicial District, Dillingham, Trial Court No. 3DI-20-00460 CR Christina L. Reigh, Judge.
Jay A. Hochberg, Attorney at Law, Kapolei, Hawaii, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, 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
WOLLENBERG, JUDGE
Aaron Patrick Hiratsuka was convicted, following a jury trial, of fourthdegree assault for headbutting his wife, Rose Marie Hiratsuka, and causing an injury to her forehead. On the second day of trial, prior to opening statements, the prosecutor informed the court that Rose Marie had asked whether she could invoke the Fifth Amendment to avoid testifying. The court conducted an in camera colloquy with Rose Marie, and Rose Marie asserted that she had injured her head by falling and was worried she had committed a crime in her initial report to the police.
AS 11.41.230(a)(1).
See AS 11.56.800.
Without appointing counsel to assist Rose Marie, the court found that Rose Marie did not have a valid Fifth Amendment privilege to refuse to testify. Rose Marie subsequently testified, recanting her initial statements to the police and denying that Hiratsuka had assaulted her. The jury convicted Hiratsuka of fourth-degree assault.
On appeal, Hiratsuka argues that the court erred when it did not appoint an attorney to assist Rose Marie, and when it found she did not have a valid claim of privilege. Hiratsuka further argues that these errors violated his due process rights and require reversal of his conviction.
We agree with Hiratsuka that the court erred in its handling of Rose Marie's claim of privilege. But the privilege against self-incrimination is "personal in nature - it pertains only to the person from whom a statement is obtained." Because there is no reason to depart from that rule in this case, we conclude that the trial court's errors do not require reversal of Hiratsuka's conviction.
Dimmick v. State, 473 P.2d 616, 619 (Alaska 1970).
Underlying facts
On the morning of December 16, 2020, Rose Marie Hiratsuka called the Dillingham Police Department to report that her husband, Aaron Hiratsuka, had assaulted her. Rose Marie told the 911 operator that Hiratsuka had woken her up, accused her of cheating, headbutted her, drenched her with water, and kicked her out of the house.
The police were dispatched to the residence, and Rose Marie repeated a similar set of facts to a responding officer. One of the officers noted a red, swollen cut on Rose Marie's forehead. Rose Marie requested a ride to her sister's house, and during the ride, she again repeated the version of events noted above. Hiratsuka was arrested and charged with fourth-degree assault.
Hiratsuka's case proceeded to a jury trial. After jury selection, but before opening statements, Rose Marie asked the prosecutor whether she could invoke her Fifth Amendment right against self-incrimination. The prosecutor informed the court and defense counsel of the issue, and suggested that the court determine if Rose Marie had a valid Fifth Amendment privilege.
The court addressed Rose Marie, explaining that she had "the right not to incriminate" herself, but that she did not have the right to decline to testify simply "based on trying to protect someone else." The court asked Rose Marie whether she was concerned that "something . . . [she] did might be a crime," or whether she was "worried about something else." Rose Marie responded that she was concerned she might have committed a crime.
At defense counsel's urging, the court then excused the parties and conducted an in camera colloquy with Rose Marie. During the colloquy, Rose Marie did not directly reference her prior allegations, but she told the court a new version of events that differed significantly from the version she had provided to the police on the day of the incident. In particular, Rose Marie asserted that she injured her head when she slipped and hit her head on a log, and that although she thought Hiratsuka had been "pouring water" on her, he had actually just splashed her with water while doing the dishes. Rose Marie also asserted that there had a been "a couple boys from Togiak staying at the house," that they had some heroin, and that she and Hiratsuka got into an argument about the boys.
The court asked Rose Marie if there was anything that made her think she had committed a crime, to which Rose Marie replied, "Well, yeah, I was like lack of information or false information." The court asked, "So you're worried that you might get in trouble because you didn't tell the police officers the truth?" Rose Marie responded in the affirmative. The court explained to Rose Marie that she was not under oath at the time she spoke to the police officers and concluded that nothing she had said would trigger Fifth Amendment protections. The court told Rose Marie that she would need to testify and that there was no need to appoint her an attorney.
The court then returned to the parties and announced that Rose Marie did not have a valid Fifth Amendment privilege not to testify. Defense counsel requested an opportunity to provide additional information in an ex parte hearing about a line of potential questioning. In a brief ex parte hearing, defense counsel informed the court that she planned to ask Rose Marie about her heroin use on the night of the incident (which Rose Marie had previously disclosed to the police). The court conducted a second in camera colloquy with Rose Marie, at which Rose Marie indicated that she was comfortable answering defense counsel's questions. The court again declared to the parties that there was no Fifth Amendment issue that required appointment of counsel or consideration of immunity.
Defense counsel objected and for the first time cited to AS 12.50.101(e), which requires that the court notify a witness of the right to be represented by counsel if the "witness refuses, or there is reason to believe the witness will refuse, to testify." The court replied, "Okay, understood," and moved forward with the trial.
Rose Marie's testimony on the witness stand was consistent with her colloquy with the judge: she denied that Hiratsuka had acted violently, and she claimed that she had lied to police on the day of the incident. She also testified that the injury to her head had occurred when she slipped while carrying wood and was not caused by Hiratsuka headbutting her, as she had previously told the police.
The jury convicted Hiratsuka of fourth-degree assault. This appeal followed.
Why we conclude that the court erred in its handling of the witness's claim of Fifth Amendment privilege
On appeal, Hiratsuka argues that the trial court erred in failing to appoint an attorney to represent Rose Marie and in finding that Rose Marie had no valid privilege under the Fifth Amendment to the United States Constitution and Article I, Section 9 of the Alaska Constitution. Hiratsuka further argues that these errors violated his right to due process and require reversal of his conviction.
We agree with Hiratsuka that the court failed to follow the proper procedures in investigating Rose Marie's claim of privilege - in particular, by failing to appoint an attorney to represent Rose Marie in presenting her claim of privilege to the court. Under AS 12.50.101(e), "If a witness refuses, or there is reason to believe the witness will refuse, to testify or provide other information based on the privilege against self-incrimination, . . . the court shall inform the witness of the right to be represented by an attorney, and that an attorney will be appointed for the witness if the witness qualifies for counsel under AS 18.85." Although Alaska caselaw does not specify at what point in the proceedings AS 12.50.101(e) is triggered, it appears to be triggered as soon as the witness asserts a privilege.
The State agrees that "[t]he immunity statute appears to contemplate the appointment of counsel as soon as a witness asserts a privilege." But the State asserts that "to the extent that Hiratsuka is now arguing that the failure to appoint counsel for [Rose Marie] at the beginning of the process violated his own due process rights, he is in no position to assert this error because he invited it" by agreeing that the court should conduct a colloquy before deciding whether to appoint counsel. See Barrett v. State, 772 P.2d 559, 568 n.10 (Alaska App. 1989) (explaining that the doctrine of invited error applies when a trial court "takes erroneous action at the express request of the defendant, and then the defendant urges reversal on that basis on appeal"). We agree that Hiratsuka arguably invited the court's error with respect to failing to appoint counsel at the beginning of the process, as defense counsel urged the court to conduct an in camera colloquy with Rose Marie directly. But Rose Marie was entitled to counsel at the beginning of the process, regardless of the defense attorney's position. And ultimately, Hiratsuka's argument is that the court failed to appoint counsel at all - even after defense counsel flagged the applicable statutory provision (AS 12.50.101(e)) following the court's colloquy with Rose Marie. We need not resolve the issue of invited error, however, because we hold that any violation of Rose Marie's Fifth Amendment rights does not require reversal of Hiratsuka's conviction.
In fact, the next statutory subsection - AS 12.50.101(f) - directs the court to "hold a hearing to determine the validity of the claim of privilege by the witness" only after the witness has had an opportunity to consult with counsel (if the State has not yet granted immunity). At this hearing, it is counsel for the witness who describes - "in the form of a proffer" - the testimony or other information that the witness claims is privileged.
AS 12.50.101(g). If the court finds that the witness's claim of privilege is valid, the court must notify the Attorney General or the designee tasked with making immunity decisions. The Attorney General or designee then decides whether to grant immunity to the witness. AS 12.50.101(h).
There are sound reasons for ensuring that a witness consults with an attorney about the validity of a Fifth Amendment claim and that the attorney then makes the proffer on the witness's behalf. "The privilege against self-incrimination applies where the answers elicited could support a conviction or might furnish a link in the chain of evidence leading to a conviction." The procedure employed here required Rose Marie to directly testify under oath about the factual basis for her claim of Fifth Amendment privilege. Although this testimony occurred at a confidential ex parte hearing with the judge, Rose Marie's testimony is now part of the record of this appeal and available to the parties.
E.L.L. v. State, 572 P.2d 786, 788 (Alaska 1977) (citing McConkey v. State, 504 P.2d 823, 825-26 (Alaska 1972)).
The court designated the in camera hearing as "confidential," intending to preclude the parties from having access to it. But "confidential" records are accessible to the parties. Compare Alaska R. Admin. P. 37.5(c)(4) (defining "confidential" records as those in which access is restricted to "the parties to the case," "counsel of record," "individuals with a written order from the court authorizing access," and "court personnel for case processing purposes only"), with Alaska R. Admin. P. 37.5(c)(5) (defining "sealed" records as those in which access is "restricted to the judge and persons authorized by written order of the court").
In contrast, when facts are disclosed to an attorney representing the witness, the disclosure is covered by the attorney-client privilege. The attorney can then make a proffer to the court regarding the potential Fifth Amendment claim without violating the witness's Fifth Amendment right against self-incrimination. Indeed, AS 12.50.101(g) specifically provides that the proffer presented by the attorney is "privileged and inadmissible for any other purpose."
Here, after the court learned that Rose Marie asked the prosecutor about invoking the privilege, the court should have informed Rose Marie of her right to counsel. Instead, the court spoke with Rose Marie directly in camera, inquired about the factual basis for her invocation of the privilege, and concluded that Rose Marie did not articulate anything that would trigger Fifth Amendment protections. This procedure was improper.
The State nonetheless contends that the court's ruling that Rose Marie did not have a valid claim of Fifth Amendment privilege was correct because, during her colloquy with the court, Rose Marie did not "explicitly contradict" her allegation that Hiratsuka headbutted her. The State relies on the fact that Rose Marie did not discuss her prior allegations during the colloquy; she simply described a version of events in which she slipped and fell, and then expressed concern that she may have provided "lack of information or false information" to the police. The State argues that, although Rose Marie's recantation became clear at trial, this would not have been apparent to the court when it ruled on the applicability of the privilege.
But even though Rose Marie did not state expressly that she was recanting her prior allegations, the colloquy occurred on the second day of trial, and the court was already well aware - from prior litigation - that the State was alleging that Rose Marie's injury was caused by Hiratsuka headbutting her, consistent with Rose Marie's original statements to the police. In particular, the court had previously ruled that the State could present images of Rose Marie's head injury during its opening statement, and had also, in conjunction with another evidentiary issue, reviewed a video recording of Rose Marie's statements when she was in the police car, which included Rose Marie's allegation that Hiratsuka had headbutted her. Given Rose Marie's assertion during the colloquy that her head injury was instead caused by a fall, and her concern that she may have provided "false information" which "made [Hiratsuka] look like the criminal," there was easily enough information at the time of the colloquy for the court to conclude that Rose Marie was recanting her original allegations.
The court's conclusion that Rose Marie did not have a valid claim of privilege appeared to rest not on its lack of awareness about the facts, but instead on the mistaken belief that Rose Marie could not have committed the crime of false information because she was not "under oath" when she spoke with police officers. But this is not correct; Alaska's false information statute does not require proof that the person was under oath at the time they provided the false information to the police.
See AS 11.56.800. Pursuant to AS 11.56.800(a), a person commits the crime of false information or report if, in relevant part, the person knowingly "gives false information to a peace officer . . . with the intent of implicating another in an offense," or knowingly "makes a false report to a peace officer that a crime has occurred or is about to occur." AS 11.56.800(a)(1)(A), (a)(2).
Ultimately, the burden of establishing a valid claim of Fifth Amendment privilege is "not great"; the claim of privilege must be allowed unless it is "perfectly clear" that the testimony will not incriminate the witness. Rose Marie's colloquy with the court was likely sufficient to meet this low burden. And, even if the court was not sufficiently aware of the full scope of Rose Marie's claim of privilege - i.e., even if the court believed that Rose Marie was simply providing additional information regarding the assault and was not disavowing her prior statements to the police as to the cause of her injury, as the State suggests - that would only emphasize the importance of providing counsel in these situations.
McConkey, 504 P.2d at 825-26 (quoting Hoffman v. United States, 341 U.S. 479, 488 (1951)).
It is clear that the State did not believe that Rose Marie had made a false statement to the police, and in practical terms, it was very unlikely that the State would pursue such a prosecution against her. But "the right to assert one's privilege against self-incrimination does not depend upon the likelihood, but upon the possibility of prosecution." In re Master Key Litig., 507 F.2d 292, 293 (9th Cir. 1974) (emphasis added).
Why we conclude that these errors do not require reversal of Hiratsuka's conviction
Although the court failed to properly handle Rose Marie's claim of privilege, we nonetheless conclude that the court's errors do not require reversal of Hiratsuka's conviction. In general, "a litigant lacks standing to assert the constitutional rights of another." And as the Alaska Supreme Court has acknowledged, the privilege against self-incrimination guaranteed by the Fifth Amendment "is personal in nature - it pertains only to the person from whom a statement is obtained."
Keller v. French, 205 P.3d 299, 304 (Alaska 2009) (quoting State ex rel. Dep'ts of Transp. & Lab. v. Enserch Alaska Constr., Inc., 787 P.2d 624, 630 n.9 (Alaska 1989)).
Dimmick v. State, 473 P.2d 616, 619 (Alaska 1970).
There is an exception to this general rule when the witness's statements "were involuntary because of the use of a kind of coercion which would repel civilized and decent [people]." Hiratsuka argues that his case falls within this exception - that Rose Marie's testimony was not only improperly compelled but also coerced in a manner that implicated his due process rights.
Id.
Cases on this topic typically involve allegations of coercion by law enforcement officials, not judges. But the Alaska Supreme Court has also applied this rule to coercive judicial conduct.
See Giel v. State, 681 P.2d 1364, 1366 (Alaska App. 1984); see also Waring v. State, 670 P.2d 357, 360-63 (Alaska 1983) (discussing this exception in the context of Fourth Amendment violations).
In Raphael v. State, the prosecutor asserted in an ex parte hearing that the complaining witness was intoxicated and might not be sober enough to testify over the next few days. Without seeking input from defense counsel, the court incarcerated the witness and placed her children in protective custody; the court told the witness that it would revisit the custody issue once her testimony was complete. The witness remained in jail for three days and was not released from custody until the defense closed its case.
Raphael v. State, 994 P.2d 1004, 1006 (Alaska 2000).
Id. at 1006-07.
Id. at 1007.
On appeal, the supreme court held that "the trial court's near-total denial of [the witness's] due process rights sent the message that she 'was at the mercy of the power of the State' and that [she] thus did not feel free to testify unfavorably to the State." The supreme court explained that "when a witness can reasonably interpret a trial court's decision to imprison her as an attempt to influence the substance of her testimony, . . . the risk that the witness may not testify freely and truthfully is too great." The court therefore concluded that the admission of this testimony at the defendant's trial violated the defendant's own constitutional right to due process.
Id. at 1008.
Id. at 1010.
Id.
Analogizing his case to Raphael, Hiratsuka argues that his due process rights were violated by the superior court's mishandling of Rose Marie's claim of privilege. But Rose Marie was not subject to the type of extreme measures to which the witness was subject in Raphael, and nothing about the trial court's conduct suggested that Rose Marie "was at the mercy of the power of the State." This is not the sort of case where the witness could reasonably interpret the court's decision as an attempt to influence the substance of her testimony.
Id. at 1008.
To the contrary, the court insisted that Rose Marie would not face any negative consequences if she provided testimony that contradicted her initial statements to the police and undermined the State's case. The court's resolution of Rose Marie's claim of privilege was mistaken, but it did not involve "a kind of coercion which would repel civilized and decent [people]."
Dimmick v. State, 473 P.2d 616, 619 (Alaska 1970); see also Akelkok v. State, 475 P.3d 1136, 1140-42 (Alaska App. 2020).
Accordingly, while we agree with Hiratsuka that the trial court erred in failing to appoint an attorney to represent Rose Marie and in its ruling rejecting her claim of privilege, we conclude that these errors do not require reversal of Hiratsuka's conviction.
Conclusion
The judgment of the district court is AFFIRMED.