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THE COURT OF APPEALS OF THE STATE OF ALASKA
BILLY M. FLYNN, )
) Court of Appeals No. A-4052
Appellant, ) Trial Court No. 4BE-S90-445CR
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1288 - March 12, 1993]
________________________________)
Appeal from the Superior Court, Fourth Judi
cial District, Bethel, Dale O. Curda, Judge.
Appearances: Andrew Haas, Assistant Public
Defender, Bethel, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Cynthia
L. Herren, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Following a trial presided over by Superior Court Judge
Dale O. Curda, Billy Flynn was convicted by a jury of one count
of sexual abuse of a minor in the first degree, in violation of
AS 11.41.434(a)(1). Flynn appeals, alleging, among other things,
that the superior court erred in allowing a police officer to
express his opinion about the truthfulness of Flynn's confession.
We reverse.
Flynn's conviction stemmed from his alleged abuse of
C.N., the six-month-old child of E.N. Some time in November of
1989, Flynn babysat at E.N.'s home in Bethel while E.N. played
bingo. E.N. claimed that, when she changed C.N.'s diaper the
next morning, C.N.'s vagina appeared to be bruised; a drop of
blood and some gray, "skin-like" matter were on C.N.'s diaper.
E.N. claimed that she told a friend what she had observed, but
she took no further action at the time. Approximately one month
later, E.N. spoke about the incident to another friend, who
advised her to take C.N. to the hospital for examination. The
examinations indicated that C.N. may have been sexually
penetrated: the child's vaginal opening was larger than usual and
her hymen was absent. The police were contacted and informed
that Flynn was suspected of sexually abusing C.N.
Several months later, on March 4, 1989, Bethel Police
Sergeant John Bilyeu learned that Flynn was being held at the
jail for a twelve-hour period of protective custody due to
intoxication. Near the end of the twelve-hour holding period,
Bilyeu contacted Flynn and drove him to the police station; in
the presence of another officer, Bilyeu advised Flynn of his
Miranda1 rights and questioned him about the alleged abuse.
Bilyeu recorded the questioning. During the initial stages of
the interrogation, Flynn repeatedly denied abusing C.N. Bilyeu
eventually interrupted the questioning, evidently to take a break
for coffee. He turned his recorder off during the break. When
questioning resumed approximately ten minutes later, Flynn
confessed. He told Bilyeu that he had inserted his finger and
his penis into C.N.'s vagina.
Flynn's prosecution for first-degree sexual assault followed.
Flynn did not testify at trial. His defense counsel,
however, adopted a strategy aimed at convincing the jury that
Flynn had confessed falsely due to the coercive circumstances
surrounding his interrogation. On cross-examination of Bilyeu,
Flynn's counsel attempted to further this strategy by pointing
out Flynn's initial denial of abuse and by emphasizing that
Flynn's change of heart had occurred during the unrecorded break
in the interrogation.
In response, on redirect examination, the state sought
to establish that nothing coercive or unusual had occurred during
Flynn's interrogation. As part of this line of inquiry, the
state asked Bilyeu if it was unusual for suspects who initially
deny committing a crime to confess eventually. Flynn did not
object to the question, and Bilyeu responded that it was not
unusual.
The state then sought to follow up by asking Bilyeu
whether, in his experience, such confessions were reliable or
unreliable. Flynn objected, arguing that the question called for
an opinion on the truthfulness of Flynn's confession and was
beyond the scope of Bilyeu's expertise. The court overruled
Flynn's objection. After calling on the state to lay a
foundation as to Bilyeu's expertise in interrogating suspects,
the court allowed the state to inquire how reliable such
confessions were. Over Flynn's renewed objection, Bilyeu
ultimately testified that, "In my experience, as to date, I have
yet to have an innocent person confess."
Flynn contends on appeal that the trial court erred in
admitting this testimony. Flynn argues that Bilyeu was in effect
allowed to tell the jury, as an expert witness, that Flynn's
confession was truthful. We agree that the admission of this
testimony amounted to error.
In cross-examining Bilyeu about Flynn's interrogation,
Flynn's attorney evidently attempted to suggest that Flynn's
initial denial of guilt was an unusual occurrence -- an
occurrence that rendered his subsequent confession unreliable.
To refute this suggestion, the state was certainly entitled to
establish, on redirect examination, that it is not unusual for a
confession to follow an initial denial of responsibility. Cf.
Shepard v. State, ___ P.2d ___, Op. No. 1283 (Alaska App.,
February 19, 1993); Rodriguez v. State, 741 P.2d 1200, 1203-05
(Alaska App. 1987). Hence, the trial court did not err in
allowing the state to ask Bilyeu whether such confessions were
unusual -- and, indeed, Flynn did not object to the state's
inquiry in this regard.
The state entered far more dangerous territory,
however, when it went on to elicit expert testimony from Bilyeu
concerning the truthfulness of the confessions he had heard
throughout his career. Bilyeu's testimony that he had "yet to
have an innocent person confess" was tantamount to a statement of
his professional opinion that Flynn had confessed truthfully and
was therefore guilty as charged. Although Bilyeu may not have
said in so many words that he believed Flynn guilty, we find it
inconceivable that reasonable jurors listening to Bilyeu's
testimony in the context of Flynn's trial would have understood
him to mean anything else.
By allowing this testimony to be admitted, the trial
court effectively enabled Bilyeu to perform the role of a "human
polygraph." This court has consistently noted the inappropriate-
ness of such evidence. See, e.g., Thompson v. State, 769 P.2d
997, 1003-04 (Alaska App. 1989) (citing cases); see also Shepard,
Op. No. 1283 at 13 n.2 & 14-15; Cox v. State, 805 P.2d 374, 376-
78 (Alaska App. 1991); Haakanson v. State, 760 P.2d 1030, 1035-37
(Alaska App. 1988). Having reviewed the record, "we are left
with a definite and firm conviction . . . that the trial court
erred in its ruling." Dura Corp. v. Harned, 703 P.2d 396, 409
(Alaska 1985). The court thus abused its discretion in admitting
the disputed testimony. Id.
Flynn's confession was central to the prosecution's
case at trial; yet the circumstances surrounding the confession
rendered Flynn's claim of coercion at least arguably plausible.
Bilyeu's improperly admitted testimony could thus have had a
tremendous effect on the jury's verdict. Under the
circumstances, we are unable to conclude that the error was
harmless. Love v. State, 457 P.2d 622, 629-32 (Alaska 1969).
Accordingly, Flynn's conviction must be reversed.
Flynn has also argued that the trial court erred in
denying his motion for a judgment of acquittal based on
insufficient evidence. Even though we have decided that reversal
is necessary on other grounds, we must resolve the claim of
insufficient evidence, since a retrial would be barred if Flynn
prevailed on this issue.
Flynn's claim of insufficient evidence was based on the
contention that the state had failed to present evidence
establishing his age. To prove Flynn's guilt of sexual abuse of
a minor in the first degree under AS 11.41.434(a)(1), the state
was required to establish, among other elements, that Flynn was
"16 years of age or older[.]" In its case-in-chief, the state
failed to present any specific evidence of Flynn's age. Flynn
argued below, and he argues here, that the state's failure should
have resulted in a judgment of acquittal.
The Alaska Supreme Court's decision in Torres v. State,
521 P.2d 386, 388 (Alaska 1974), establishes that, when the age
of the accused is at issue, the jury need not hear direct
evidence of age but may instead rely on the appearance of the
accused at trial, in combination with reasonable inferences
arising from testimony on other issues. Torres is consistent
with rulings from courts of many jurisdictions. Some have found
that the jury's ability to observe the accused at trial is in
itself a sufficient basis for denial of a motion for a judgment
of acquittal. See, e.g., Weaver v. State, 568 So.2d 309, 311-12
(Ala. Crim. App. 1989) (accused's age may be established by
either direct or circumstantial evidence even when accused's age
is a material element of the crime charged); Jewell v.
Commonwealth, 382 S.E.2d 259, 261 (Va. App. 1989) (physical
appearance alone may be used to conclude that a defendant is
older than the minimum age required to be proven if the trial
court determines that the fact finder can make this determination
beyond a reasonable doubt).
Others have held that the jury may properly rely on its
observation of the accused in combination with other
circumstantial indicators of age. See, e.g., State v. Zihlavsky,
505 So.2d 761, 765 (La. App. 1987) (lack of direct evidence did
not preclude conviction when defendant was open to jury view and
additional circumstantial proof of defendant's age was present in
the record); Commonwealth v. Pittman, 514 N.E.2d 857, 859 (Mass.
App. 1987) (when proof of age is necessary to establish the
offense and the record does not reflect that the person whose age
must be proved falls into a marked extreme, there must be some
evidence in addition to physical appearance).
Courts taking this latter approach have found a broad
array of circumstantial evidence minimally sufficient to avoid a
judgment of acquittal: evidence that the accused purchased beer
or cigarettes, was friends with another adult, or participated in
adult activities, and testimony referring to the accused as "a
man" or to the accused's advanced age. See, e.g., State v.
Thompson, 365 N.W.2d 40, 43 (Iowa App. 1985); Zihlavsky, 505
So.2d at 765; State v. Lauritsen, 261 N.W.2d 755, 757 (Neb.
1978); State v. Richey, 298 S.E.2d 879, 887 (W.Va. 1982).
In the present case, Flynn argues that his presence at
trial should not alone have justified submitting the issue of his
age to the jury. In advancing this argument, Flynn implicitly
asserts that his presence at trial amounted to the only
circumstantial evidence from which the jury could have inferred
that he was sixteen years of age or older. However, Flynn's
designation of a limited appellate record -- one that includes
only narrowly selected portions of the trial transcript --
renders it virtually impossible for this court to gauge the full
scope of the circumstantial evidence that might have supported
the conclusion that Flynn was at least sixteen years of age.
Nevertheless, even the limited portions of the
transcript included in the record disclose that the jury heard a
substantial amount of evidence implying that Flynn was an adult.
For example, Bilyeu testified that the day before the disputed
interrogation, Flynn was picked up by the authorities because he
was intoxicated; he was thereafter detained for a twelve-hour
period of protective custody. Bilyeu further testified that when
he questioned Flynn, he assumed Flynn had sobered up during his
twelve hours in protective custody, just like any other person
would have. Bilyeu also described Flynn as a "short statured
man," and he went on to provide details of Flynn's late night
interrogation at the police station, referring to Flynn as a
criminal suspect, not as a suspected juvenile delinquent.
Because this testimony, in its entirety, unmistakably
indicates that Flynn acted like an adult and was treated as such
by the authorities who dealt with him, it strongly supports the
inference that Flynn was sixteen years of age or older. Even
assuming no other circumstantial evidence reflecting on Flynn's
age was presented in the course of trial, Bilyeu's testimony,
coupled with Flynn's presence during the proceedings, was
sufficient to withstand Flynn's motion for a judgment of
acquittal and to warrant submission of his case to the jury.
For the foregoing reasons, the conviction is REVERSED.2
_______________________________
1. Miranda v. Arizona, 384 U.S. 436 (1966).
2. Since reversal is necessary, we need not decide Flynn's
remaining claims. However, because further prosecution is not
barred, we provide the following observations for guidance in the
event of a retrial. Flynn has claimed on appeal that the
superior court erred in denying his motion to suppress his
confession. One of the bases Flynn relied on in seeking
suppression was the claim that the police violated Stephan v.
State, 711 P.2d 1156 (Alaska 1985), by failing to record the
entirety of his interrogation. In its order denying Flynn's
suppression motion, however, the superior court did not expressly
rule on this issue.
Moreover, although the order denying Flynn's motion to
suppress stated the superior court's legal conclusions on Flynn's
other suppression arguments, the order made no factual findings.
Alaska Rule of Criminal Procedure 12(d) requires, in relevant
part, that "[w]here factual issues are involved in determining a
motion to suppress evidence, the court shall state its essential
findings on the record." Ordinarily, in the absence of express
findings, we simply rely on the assumption that the trial court
resolved all factual issues in favor of the prevailing party.
Beagel v. State, 813 P.2d 699, 704 (Alaska App. 1991). This
assumption, however, is problematic here.
The fact that the superior court ruled in Flynn's favor
rather than in favor of the state on the threshold issue of
whether Flynn's interrogation was custodial renders the accuracy
of the normal assumption questionable in the context of this
case. Furthermore, Flynn's suppression motion questioned the
voluntari-ness of his confession, an issue ultimately requiring
independent review on appeal; a lack of express findings
resolving all disputed factual issues relating to the
circumstances surrounding a confession substantially impairs this
court's ability to render a meaningful, independent decision on
the issue of voluntariness. See Johnson v. State, 631 P.2d 508
(Alaska App. 1981).
If the state seeks a retrial and Flynn renews his
motion to suppress, the superior court should enter express
findings of fact and conclusions of law resolving all disputed
issues.
