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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@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| JAMES HARMON, | ) |
| ) Court of Appeals No. A-9513 | |
| Appellant, | ) Trial Court No. 1JU-04-671 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2184 September 19, 2008 |
| ) | |
Appeal from the Superior Court, First Judi
cial District, Juneau, Trevor N. Stephens,
Judge.
Appearances: Marjorie Allard, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Timothy W. Terrell, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
James Harmon was convicted of second-degree murder and
first-degree sexual assault for his attack on M.W. in Tenakee
Springs in March 2003. On appeal, Harmon challenges his
convictions on two grounds. First, he argues that his trial
should not have been held in Juneau because of the extensive pre-
trial publicity surrounding M.W.s death and, one year later,
Harmons arrest and the procedural events leading up to his trial.
Second, Harmon argues that the fairness of his trial was
prejudiced by the joinder of a charge alleging that he committed
an earlier attempted sexual assault against the same victim. In
addition, Harmon contends that his composite sentence is
excessive.
For the reasons explained here, we conclude that it was
proper to hold Harmons trial in Juneau, and we further conclude
that it was proper to join the earlier attempted sexual assault
with the other charges against Harmon. Finally, we conclude that
Harmons sentence is not excessive.
The venue of Harmons trial
We first turn to the issue of whether,
because of pre-trial publicity, Harmons trial should
have been moved from Juneau.
The next section of this opinion, which
describes this pre-trial publicity in the context of
the events leading up to Harmons trial, is quite
detailed. Readers should be aware, before they begin,
that Harmons main contention i.e., his primary
argument as to why this pre-trial publicity prejudiced
the fairness of his trial is based on the fact that
some of the newspaper articles reported that Harmon
made self-incriminatory statements to an undercover
officer working for the Alaska State Troopers. The
public dissemination of this information had the
potential for prejudicing the fairness of Harmons trial
because the State ultimately agreed that evidence
concerning these supposed self-incriminatory statements
should not be introduced at the trial.
The course of the criminal investigation, and the media
publicity surrounding that investigation
M.W. was a 19-year-old woman living in
Tenakee Springs, a community of some one hundred
residents located fifty miles southwest of Juneau on
Chichagof Island. M.W. and her dog Souk lived in a
cabin by themselves.
James Harmon, who was then 24 years old, had
lived off and on in Tenakee Springs for several years.
In early 2003, he was living in an old boat moored in
the Tenakee Springs harbor.
Harmon and M.W. had acquaintances in common,
but they did not know each other well. Harmon had gone
to M.W.s cabin once in 2002 to participate in a card
game, and they had gone hunting together once in the
winter of 2002.
On December 31, 2002, M.W. and her friend
D.W. went to a New Years Eve party where they
encountered Harmon. M.W. and D.W. both became
intoxicated at the party, and after the party Harmon
accompanied the two women back to M.W.s cabin. When
D.W. indicated that she wanted to return to the party
for one more drink, Harmon said that he would help the
intoxicated M.W. up the stairs to the cabin. D.W. told
Harmon to be honorable, and she also told him that she
would be back in fifteen minutes.
Shortly thereafter, D.W. returned to M.W.s
cabin. She found Harmon with his pants off, straddling
M.W., who was lying on the floor with her pants pulled
almost completely off. M.W. was saying no and telling
Harmon to get off her. Upon observing this scene, D.W.
yelled at Harmon to get dressed and get out, and Harmon
complied.
A short time later, D.W. went outside to
smoke a cigarette. She found Harmon sitting on a chair
in the arctic entry. Harmon grabbed D.W. by the waist
and sat her on his knee. Then he tried to kiss her and
touch her breast. D.W. bit Harmon, and he threw her to
the floor, where he tried to spread her legs. D.W.
continued to fight, and Harmon ultimately desisted when
D.W. managed to get up off the floor. Harmon threw a
chair at D.W. and then left.
On February 22, 2003, M.W. departed Tenakee
Springs to visit her mother in Juneau. During this
visit, M.W.s mother gave her $1400 in cash for living
expenses and to buy a share in a non-profit farm in
Belize. M.W. spent approximately $400 of this cash
while she was still in Juneau buying food for herself
and dog food for Souk and then she took the ferry back
to Tenakee Springs on March 21st.
M.W. was last seen alive on the afternoon of
March 25, 2003, walking her dog Souk towards the
Tenakee Springs town area. That evening, residents of
Tenakee Springs became concerned after Souk was
discovered alone and M.W. could not be located.
The next afternoon (March 26th), Harmon went
to the house of his cousin Jason Carter, wanting to
play poker. As a general rule, Harmon did not have
much money, and he had complained only a few days
before that he did not have enough money to buy soy
sauce. So when Harmon announced that he wanted to play
poker, Carter replied that he did not wish to play and
he jokingly added that Harmon probably had no money to
gamble with. In response, Harmon showed Carter a wad
of cash, including several $100 bills.
On March 26th and 27th, various Tenakee
Springs residents observed Harmon walking from the
direction of M.W.s cabin. On Friday, March 28th, some
of M.W.s neighbors and M.W.s mother (who had flown to
Tenakee Springs from Juneau) entered M.W.s cabin to
look for clues concerning her whereabouts. They found
dirty dishes containing half-eaten food, as well as
empty food containers that had not been discarded both
uncharacteristic of M.W.. They also discovered a pair
of large gloves and a cassette player that was playing
music in the cabin.
On March 28th, the mayor of Tenakee Springs
called the Alaska State Troopers to report that M.W.
was missing, and residents began a search for M.W..
The first state trooper arrived later that day to
investigate.
During this initial investigation, a state
trooper contacted and interviewed Harmon. Harmon told
the trooper that he had spent several hours working at
the earthen dam near M.W.s cabin the previous weekend
(i.e., the weekend of March 22nd-23rd), and that he saw
M.W. while he was there, but did not talk to her.
Harmon also told the trooper that he had not been
inside M.W.s cabin since the previous summer.
The following day (March 29th), a fingerprint
expert working for the Department of Public Safetys
Crime Laboratory arrived in Tenakee Springs to examine
M.W.s cabin. He was able to lift twenty-three latent
prints from various locations and items in the cabin.
Of these twenty-three fingerprints, nineteen were later
identified as Harmons. Many of Harmons prints were
lifted from items that had obviously been handled
recently, such as an unwashed plate and two unwashed
bowls (all containing food residue), a pretzel bag with
some pretzels still in it, and an opened can of olives.
On March 30th, a trooper investigator re-
interviewed Harmon. During this interview, Harmon told
the investigator that there was no reason why his
fingerprints, or any of his possessions, would be found
in M.W.s cabin. Later that day, Harmon left Tenakee
Springs, traveling on the state ferry to Sitka. He
paid cash for his ticket. In Sitka, Harmon purchased a
one-way airplane ticket to Juneau again paying cash.
On April 1, 2003, M.W.s body was found buried
in the earthen dam near her cabin. An autopsy revealed
that she had been sexually assaulted and then
strangled.
On April 4th, the troopers executed a search
warrant for Harmons person. He was found to be
carrying a bank deposit slip showing a $500 deposit
into his account on April 1st, as well as receipts for
various cash purchases in Juneau (totaling slightly
over $166) and another $109 in cash.
Related investigation revealed that the only
money Harmon received during this period was $35 for
his work on the dam, plus a $100 check that he received
from his mother. The bank employee who cashed this
check remembered that Harmon received $10 and $20 bills
for the check, rather than a single $100 bill.
For the next twelve months, no one was
arrested for M.W.s murder, and the investigation into
her death had seemingly come to a standstill. There
was considerable sentiment among the public that the
state troopers were derelict in failing to pursue this
matter. Several individuals wrote letters to the
editor of the Juneau Empire, complaining of this
apparent inaction and this seeming lack of concern on
the part of law enforcement officials. The Empire also
carried stories about the murder on March 1, 2004 (with
the headline Tenakee looks for justice) and on April 4,
2004 (with the headline A year later: a murder
unsolved).
But, in fact, the state troopers were
actively investigating the case. As part of this
investigation, Trooper Eric Lorring went undercover,
posing as a sex offender who was hiding in Juneau from
a criminal investigation in Kodiak. In this guise,
Lorring befriended Harmon and, over time, encouraged
him to speak about what had happened to M.W.. These
conversations were secretly recorded pursuant to a
Glass warrant.1
In his conversations with Lorring, Harmon
initially denied responsibility for M.W.s death. But
in later conversations, Harmon admitted that he
sexually assaulted M.W. and that, during their
struggle, M.W. died although Harmon declared that he
did not remember exactly how M.W. had died: it ...
happened so quick, I dont know, just she fell over the
couch, hit her head on something.
On Thursday afternoon, May 20, 2004, as a
result of this investigation, the state troopers
arrested Harmon. The following day (May 21st), the
State filed murder and sexual assault charges against
him. That same day, an article appeared in the Juneau
Empire, reporting Harmons arrest but quoting a trooper
spokespersons statement that he could not say what
information led to the arrest.
Two days later, on Sunday, May 23rd, the
Juneau Empire published the first two in a series of
articles describing the criminal charges against
Harmon, describing some of the evidence against Harmon,
and reporting some of the procedural aspects of the
court case.
The headline of the first May 23rd article
was DA: Accused [man] talked about killing [M.W.].
The text of this article contained the following:
James D. Harmon said the wrong things to
the wrong man not long before his arrest
Thursday on charges he murdered [M.W.] in
Tenakee Springs more than a year ago,
according to the Juneau district attorney.
... In an affidavit filed with the court,
[District Attorney Patrick] Gullufsen said
[that] Harmon talked with an undercover
officer earlier this month about raping and
killing [M.W.].
This same article also reported that the
State had asked the court to set Harmons bail
at $750,000 cash, and that [i]n support of
[this] bail request, Gullufsen told [the
magistrate] that Harmon had talked to an
undercover officer this month about leaving
Alaska to avoid the heat surrounding the
[M.W.] investigation.
However, the second article that
appeared in the Empire that same day (May
23rd) portrayed Harmon in a more favorable
light. The headline of this article was
Former boxer kept to himself , and the text
of the article contained several quotes from
Harmons family and friends, who described him
as a kind and gentle young man someone who
had a hard time making friends and who kept
to himself [but] seemed polite enough. The
president of the Ketchikan fight club
apparently, a boxing and martial arts
association that organized fights in which
Harmon had sometimes competed as a boxer was
quoted as saying that he had never known
[Harmon] to do anything violent.
On Friday May 28th, a Juneau grand
jury indicted Harmon on alternative charges
of first- and second-degree murder (under a
felony murder theory), alternative charges of
completed and attempted first-degree sexual
assault, and second-degree theft (for taking
M.W.s money and property). The indictment
also contained two charges of attempted first-
degree sexual assault stemming from Harmons
alleged attacks on M.W. and D.W. in the early
morning hours of January 1, 2003.
The issuance of this indictment was
reported in the Juneau Empire on Sunday, May
30th (Harmon indicted in Tenakee killing).
This article reported that Harmon left
Tenakee Springs on an Alaska Marine Highway
ferry before [M.W.s] body was found, and that
[c]ourt records show [that the] troopers
considered him a suspect early in the
investigation. The article further reported
that, during the execution of the search
warrant for Harmons person, [the] authorities
seized cash and receipts that the state
alleges shows [sic] he took money from
[M.W.].
The following week, the Empire ran
two articles (dated June 3rd and June 4th)
reporting that the Public Defender Agency had
been appointed to represent Harmon, that
Harmon had pleaded not guilty to the charges
against him, and that Harmons trial was
tentatively scheduled for August 2004. These
two articles reiterated the charges against
Harmon, but they contained no description of
the evidence against him.
On June 29th, the Empire ran a
short article reporting that Harmons defense
attorneys had told the superior court that an
August trial date would not give them
sufficient time to prepare, and that they
were proposing a trial date of February or
March 2005. And on July 18th, the Empire
reported that the superior court had granted
the defense attorneys request for a March
trial date. Again, these articles briefly
reiterated the charges against Harmon, but
they did not describe the evidence against
him.
On July 29, 2004, the Empire
reported that the superior court had denied
Harmons request for reduced bail. In
explaining the attorneys arguments for and
against the modification of bail, the Empire
described District Attorney Gullufsen as
having told the court that an undercover
officer recorded Harmon talking about leaving
for Canada the night before his May 20
arrest. The Empire also reported that, when
Harmons mother was cross-examined by
Gullufsen concerning any instances in the
previous five years when her son had checked
out in terms of reality, Harmons mother
admitted that (in the reporters words) there
was one such incident in Tenakee Springs in
2000 in which she had to go there to assist
him.
On the other hand, this same
article reported that Harmon had no prior
criminal history. And, concerning Harmons
statement that he was thinking of leaving for
Canada, the article reported the defense
attorneys response: that Harmon made this
statement more than a year after the
homicide, and that the topic of Canada was
initiated by the undercover officer who
befriended Harmon.
The next time that the Juneau
Empire mentioned this case was in its year-
end wrap-up of the news. In the thirty-sixth
paragraph of a forty-three-paragraph article
that appeared in the newspaper on December
31, 2004, the Empire reminded its readers
that Harmon had been arrested for the murder
of M.W. in Tenakee Springs. This same
paragraph noted that Harmon was arrested
after he allegedly made statements to an
undercover officer, but Harmons statements
were not described.
The next stage in the media
coverage of this case commenced in mid-
January 2005, when Harmons lawyers sought
another delay of his trial.
On January 14th, the Empire carried
a story, Defense seeks postponement of [M.W.]
murder trial. In addition to describing the
defense request for a continuance, this story
contained the assertions that (1) Harmon had
made incriminating statements to the
undercover state trooper, and that (2)
Harmons attorneys would be asking the
superior court to suppress some of those
statements:
In court, Juneau District Attorney
Patrick Gullufsen alleged that Harmon made
incriminating statements to a trooper working
undercover. [Harmons defense attorney said]
that he is still waiting for recordings of
[the] wired conversations between the trooper
and his client. ... [The defense attorney]
hopes to suppress some statements from being
used as evidence against his client ... .
On January 26, 2005, the Empire
reported that the superior court had granted
the defense request for a postponement of the
trial, and that Harmons trial was now
scheduled to begin on April 4, 2005. ([M.W.]
murder trial rescheduled defense [attorney]
hopes to have charges against his client
dismissed).
This article contained the
following description of the defense
attorneys reasons for seeking a continuance:
In his motion to postpone the trial,
[the defense attorney] wrote that he plans to
argue to keep statements his client allegedly
made to officers from being used against him.
The next paragraph of the article explained
what statements the defense attorney was
talking about:
The affidavit showing [the] foundation
for Harmons arrest by state troopers alleges
he made incriminating statements to a trooper
who was working undercover.
One month later, on February 27,
2005, the Empire carried a story entitled
Defendant in [M.W.] case will dispute
evidence, statements. This article again
reported the States assertion that Harmon
confessed to the undercover officer that he
sexually assaulted and killed M.W.. The
article also suggested that Harmons attorneys
planned to argue that Harmons statements were
the product of improper police interrogation:
The attorney for James D. Harmon ...
gave notice last week that he plans to call
expert witnesses to dispute scientific
evidence and question statements his client
allegedly made to state troopers. ... In
justifying the charges for [Harmons] arrest,
[District Attorney] Gullufsen wrote that
Harmon had told an undercover state trooper
that he killed [M.W.] and sexually assaulted
her, court records show. ... [Harmons
defense attorney] gave notice last week that
he plans to call Richard J. Ofshe, a
professor emeritus at the University of
California - Berkeley[.] ... Ofshe ... is
an expert on improper influence in police
interrogation, [the defense attorney] wrote.
A week later, on March 6, 2005, the
Empire again reported that Harmons attorneys
intended to rely on expert testimony to
establish that Harmons statements to the
undercover trooper were the product of
improper interrogation: Defense in [M.W.]
killing slaps troopers. This article
reported that Harmon appeared in court,
flanked by attorneys fighting to keep his
alleged confession from being used against
him. The article continued:
The undercover trooper last year
recorded Harmons statement, in which he
lamented he was not well-liked. [In the
motion to suppress Harmons statements, the
defense attorney wrote that] Harmon was the
man everyone assumed killed [M.W.] in Tenakee
Springs two years ago and they pressured
[the] troopers to get him[.]
. . .
In her motion ... , [the defense
attorney] argued that [the] troopers
improperly used psychological pressure and an
offer of money to get what they needed to
arrest [Harmon].
On the other hand, the article
offered a potentially exculpatory explanation
for Harmons decision to leave Tenakee Springs
on the state ferry at the end of March 2003:
Harmon caught the Sitka-bound ferry out
of Tenakee Springs on March 30, 2003, after
people allegedly harassed him and threatened
his life during the search for the missing
woman.
The article then offered the
defense attorneys description of the
undercover investigation that led to Harmons
arrest:
[The defense attorney asserted that]
Trooper Eric Lorring befriended Harmon on
March 10, 2004, in Juneau. [Lorring] told
Harmon [that] he was on the run from Kodiak
as the target of a sexual assault
investigation ... .
[The defense attorney asserted that,
d]uring their three-month friendship, Trooper
Lorring repeatedly cooked dinner for ...
Harmon, watched movies with him, denigrated
women with him, took him drinking[,] and went
out with him looking for hotties ... .
[The defense attorney asserted that the
Glass warrant] recordings show that Lorring
asked Harmon on April 21, 2004, about what
happened at Tenakee Springs, and Harmon said
[that] he couldnt say anything on the advice
of his attorney ... . [The] [t]roopers
[then] orchestrated an incident on May 9 at
which Lorring took Harmon to ... an outdoor
boat show ... [and another] investigator who
posed as the best friend of [M.W.s] mother
confronted Harmon, accusing him of killing
[M.W.].
[Afterwards,] Lorring drove Harmon to a
parking lot ... to talk. ... Harmon said
three times that he couldnt talk about it on
the advice of his attorney, but Lorring said
[that Harmons] lawyer was not your friend,
man. He told Harmon he wanted to help.
[According to the defense attorney, Lorring
told Harmon,] if you need money, ... I got
money. ... I dont have a lot, but I got
some to help you. I got friends that can
help you out[, but] I need to know whats
going on.
The article quoted the defense
attorney as arguing that [all of Harmons]
statements made after Trooper Lorring
promised him money for telling him what was
going on must be suppressed. The article
also quoted the defense attorney as asserting
that Harmons will was clearly overborne as a
result of the intense and relentless
psychological pressure and unconstitutional
promises made to him by [the] troopers, and
that Harmon lacked sophistication, had low
intelligence[,] and was psychologically
vulnerable.
On March 13, 2005 (i.e., one week
after the article just described), the Empire
carried an article describing the States
response to the defense motion to suppress
Harmons statements: Prosecutors say Harmon
not coerced. In this article, the Empire
again reported that Harmons attorneys had
filed a motion seeking to keep statements
[Harmon] made to an undercover trooper from
being used at his trial. The article then
described the arguments presented in that
defense suppression motion:
[According to the defense attorneys,]
the Tenakee Springs community considered
Harmon the logical suspect [in the murder],
making him the focus of unfair investigative
tactics. [The defense attorneys] compared
[Harmon] to a misunderstood character in
Harper Lees novel, To Kill a Mockingbird, and
argued that he was coerced into making a
possibly false confession to a false friend.
. . .
The defense argued that incriminating
statements Harmon allegedly made from May 9
through May 12, 2004, came after he insisted
he couldnt talk about Tenakee Springs on the
advice of his attorney.
The article also described the
States response to the defense suppression
motion. The article quoted the prosecutor as
asserting that Harmons statements to his
false friend were not coerced, and [Harmons]
free will was not overborne by any words or
conduct.
In the end, the defense motion to
suppress Harmons statements was never
litigated to conclusion. Instead, on March
21st, the parties stipulated that, so long as
Harmon did not take the stand at his trial,
there should be no testimony or evidence from
either party regarding the undercover
operation from February 2004 until
Mr. Harmons arrest in May 2004; [or
regarding] Trooper Lorrings role with Mr.
Harmon, or statements Lorring made to James
Harmon, or the staged confrontation with [the
other trooper investigator] at the used boat
show on May 9, 2004; [or any] statements
James Harmon made to Trooper Lorring.
The following day, this stipulation
was reported in the Juneau Empire in an
article entitled State wont use Harmon
disclosures. This March 22nd article
contained the following description of the
controversy and its resolution:
Prosecutors have agreed not to use
statements that James Harmon allegedly made
to an undercover state trooper when they try
Harmon next month for the 2003 killing of
Tenakee Springs resident [M.W.]. That
evidence will not be part of the trial,
Juneau District Attorney Patrick Gullufsen
told Ketchikan Superior Court Judge Trevor
Stephens Monday at a hearing scheduled for
[the] attorneys to argue the admissibility of
the statements.
Harmons defense [attorneys] charged ...
that troopers improperly used psychological
pressure to coerce statements they needed to
arrest him. ... Monday, [the] attorneys
presented an agreement [to the court which]
excludes evidence or testimony from the
undercover officer at [Harmons] trial, [but]
adds that the defense will not contest the
introduction of possibly incriminating
statements Harmon ... made on videotape after
his May 20, 2004 arrest.
The article also provided this background
information about the parties stipulation:
Less than two weeks before Harmon was
arrested, he allegedly incriminated himself
while talking to a trooper he believed to be
a Kodiak man who was in Juneau avoiding a
sexual assault investigation. [The defense
attorney] planned to call an expert on false
confessions to dispute Harmons alleged
statements to the undercover officer.
On April 4, 2005 i.e., two weeks
after the publication of this article the
court and the parties began jury selection
for Harmons trial.
The test for whether trial venue should be changed
because of pre-trial publicity: the Alaska Supreme
Courts decision in Mallott v. State
As just explained, there was a substantial
amount of pre-trial publicity in Harmons case. This
media coverage took place in three stages. The first
stage took place in 2003, after M.W.s body was found.
The second stage took place in the spring and summer of
2004, after Harmon was arrested and charged with the
murder. The third stage took place in the early months
of 2005, when Harmons attorneys began their efforts to
suppress his statements to the undercover officer.
Based on this publicity, Harmon asked the
superior court (both before jury selection and after
jury selection was complete) to move his trial from
Juneau to another city where these events had not
received the same amount of media attention.
The Alaska Supreme Courts decision in Mallott
v. State, 608 P.2d 737 (Alaska 1980), is the seminal
Alaska appellate decision on pre-trial publicity and
its potential effect on jury selection in criminal
trials. In Mallott, the supreme court adopted the
recommendation of the American Bar Association
regarding the standards that courts should apply when
deciding motions to change venue in criminal cases that
have received substantial pre-trial publicity:
A motion for change of venue or
continuance shall be granted whenever it is
determined that, because of the dissemination
of potentially prejudicial material, there is
a substantial likelihood that, in the absence
of such relief, a fair trial by an impartial
jury cannot be had. ... A showing of actual
prejudice shall not be required.
Mallott, 608 P.2d at 748.
When the supreme court stated that
a showing of actual prejudice [is] not ...
required, the court meant that if the pre-
trial publicity is sufficiently prejudicial,
a defendant will not be required to
affirmatively demonstrate that the particular
people selected to serve on the jury actually
harbor prejudice or bias. Rather, in such
cases, the intensive dissemination of
prejudicial pre-trial publicity may itself
provide a substantial reason to doubt the
impartiality of the jurors even those who
successfully pass through a normal selection
process. As the supreme court explained in
Mallott, the question is whether there is a
likelihood that, despite voir dire, the jury
panel harbor[s] unrevealed prejudices as a
result of the publicity. Mallott, 608 P.2d
at 748; see also Sever v. Alaska Pulp Corp.,
931 P.2d 354, 360 (Alaska 1996) (applying the
Mallott standard to civil litigation).
In Mallott, the supreme court also
adopted the American Bar Associations
standards for evaluating the acceptability of
a prospective juror who has been exposed to
prejudicial pre-trial publicity:
A prospective juror who has been exposed
to and remembers reports of highly
significant information, such as the
existence or contents of a confession, or
other incriminating matters that may be
inadmissible in evidence, or substantial
amounts of inflammatory material, shall be
subject to challenge for cause without regard
to the prospective jurors testimony as to
state of mind.
Mallott, 608 P.2d at 749 (quoting the ABA
Standards Relating to the Administration of
Criminal Justice, Fair Trial and Free Press,
8-3.5(b) (1978).
As this Court explained in
Stavenjord v. State, 66 P.3d 762, 768 (Alaska
App. 2003), under the Mallott standard, (1) a
prospective juror who concedes that they are
unable to set aside preconceptions developed
about the case must be excused; and (2) a
prospective juror who has been exposed to
material that is highly inflammatory or
highly incriminating must be excused even if
the juror claims the ability to decide the
case impartially because the jurors exposure
to the prejudicial material makes that claim
suspect.
On the other hand, a prospective
juror is not automatically disqualified
simply because they have acquired some
knowledge of the facts of the case through
the media, or even if they have formed an
opinion about the case, so long as that
opinion is not based on exposure to
inadmissible evidence or other highly
inflammatory material. Id. In such
instances, the trial judge must individually
assess the credibility of the prospective
jurors claim that they can decide the case
impartially. Id.
The jury selection in Harmons case
The jury selection for Harmons trial began on
April 4, 2005 just two weeks after the final
newspaper article discussed above. The judge
presiding over Harmons trial was Superior Court
Judge Trevor N. Stephens.
All told, seventy-five prospective jurors
were called to court and personally questioned
during the jury selection in Harmons case. In
addition to this in-court questioning, each
prospective juror was asked to fill out a
questionnaire before they came to court. In this
questionnaire, the prospective jurors were asked
(among other things) to describe what, if
anything, they had read or heard about the case.
The issue of the effect of the pre-trial
publicity in Harmons case was raised and litigated
during the individual questioning of the very
first prospective juror. This prospective juror,
M.J., indicated in her questionnaire that she had
read a few newspaper articles about the case and
that, based on these articles, she knew that
Harmon supposedly admitted [that] he committed the
murder to an undercover officer who befriended
him.
During individual questioning, M.J.
elaborated on what she wrote in her questionnaire. In
response to questions by one of Harmons defense
attorneys, M.J. stated:
M.J.: I read the articles in the paper
that [M.W.] was murdered ... and that I dont
remember all the details, but ... I guess the
main things that I remember are: she was
murdered near her cabin, and some people
found her body ... buried in the ground, and
that there was an investigation; it took
quite a while. And then it supposedly Mr.
Harmon confessed to some undercover detective
that he did it. Thats pretty much what Ive
heard read ... in the [Juneau] Empire.
Defense Attorney: And so you have read
that [Harmon] confessed ... that he did these
things to an undercover trooper ... ?
M.J.: Thats what I read in the paper.
Defense Attorney: So what do you think
about that?
M.J.: I guess I dont really know that
whats you know, the paper was pretty one-
sided, in my opinion. They did you know,
there was no statements from Mr. Harmon or
anything. So I dont really know. ... I
dont really know whether he did it or not.
Im not privy to any of the facts or anything.
And just from what Ive experienced in my life
with the newspapers, theyre wrong quite a
bit.
During questioning by the
prosecutor, M.J. declared that she did not
believe everything she read in the newspaper.
She further stated that she understood that
her decision as a juror had to be based
solely on the evidence presented in court,
and not on what she might have read or heard
outside of court. She also responded
affirmatively when asked whether she presumed
Harmon to be innocent, and whether she would
hold the State to its burden of proving guilt
beyond a reasonable doubt.
Thus, the voir dire of this first
prospective juror, M.J., vividly presented
the issue of whether to seat a juror who (1)
was aware of the newspaper report that Harmon
had incriminated himself in conversation with
the undercover officer, but who
(2) repeatedly declared that she could keep
an open mind, and that she would make her
decision based solely on the evidence
presented in court.
At the conclusion of this
individual questioning, the defense
challenged prospective juror M.J. for cause
under Mallott, based on her exposure to the
media publicity concerning Harmons self-
incriminating statements to the undercover
officer (because these statements were not
going to be admitted at trial). The
prosecutor opposed the challenge noting that
M.J. had repeatedly stated that she would
keep an open mind, that she would base her
decision solely on the evidence presented in
court, and that she would be fair.
As explained above, this Court held
in Stavenjord that a prospective juror who
has been exposed to material that is highly
inflammatory or highly incriminating must be
excused even if the juror claims the ability
to decide the case impartiality. Judge
Stephens concluded that, in Harmons case, the
media reports of Harmons supposed confession
to the undercover trooper were the kind of
information that required application of this
rule. Accordingly, Judge Stephens concluded
that any prospective juror who remembered
that Harmon had made self-incriminating
statements to the undercover officer would
have to be excused from jury duty:
The Court: [When there has been
substantial pre-trial publicity about a
criminal prosecution, the court must pay
close attention to a] prospective juror who
has been exposed to and remembers reports of
highly significant information, such as the
existence or contents of a confession or
other incriminating matters that may be
inadmissible, or substantial amounts of
inflammatory material. Its not enough that
the person has been exposed to it; ... they
would have to remember it. ... [But if that
is the case, then] it doesnt matter under
Mallott whether the person says they can set
it aside or not. They have to be excused.
And Ms. [J.] falls into that category.
. . .
I think, under the case law, ... I have
to excuse Ms. [J.], although everything [the
prosecutor] said is true about her
statements [that she had the] ability to set
[the pre-trial publicity] aside.
When the prosecutor objected that
Judge Stephenss interpretation of the Mallott
decision was too broad, and that prospective
jurors should be allowed to sit if they were
prepared to set aside the pre-trial
publicity, Judge Stephens responded:
The Court: I feel bound by Mallott.
... Thats how I read Mallott, and I have to
apply it, no matter what the juror says. ...
Its not just simply exposure [to prejudicial
pre-trial publicity]. Its exposure and
remembering it and [with regard to Ms. J.],
that [is] the case.
(Emphasis added.)
The remaining seventy-four
prospective jurors were individually
questioned over the course of the next four
days (April 4th through April 7th).
Of these, twenty-four prospective
jurors basically, one-third of them had
essentially no knowledge of the media
coverage. In the order in which they were
questioned, these prospective jurors were:
W.S. C
.
T
.
M
.
C
.
A
m
.
M
.
L
.
C
.
G
.
C
.
2
C
.
L
.
M.S.M. J.
J.V.W. E.H. K.H.
L.J. I.C.
Al.M. Jo
.L
. G.M. A.C. Mi.M.
F.O.M. J.Y.
C.D.3 J.H.4 Jo.T.
Another thirty-four prospective
jurors that is, 45 percent of the selection
pool knew the basic facts of the case, but
did not know that Harmon had made statements
to an undercover trooper. In the order in
which they were questioned, these prospective
jurors were:
W.B. H.
D.
5 J.R.6 D.S.W.
Pe.M. Su.C.
J.F.7
J.D.8 Du
.R
.9F.H.10 L.M. L.H.
Ma.M. N.L.
An.R.11 A.
W.D.L. E.M. S.H.
M.S. J.S.G.
Ju.L.12 R.
R.A.P.13 Pa.M.
T.G. Di.C.14 R.M.
B.P.15 Ja.M.16 Al.R. Ja.T.
St.C.17 M.Y.
Finally, sixteen prospective jurors
that is, slightly more than one-fifth knew
that Harmon had supposedly made statements to
an undercover trooper. In the order in which
they were questioned, these prospective
jurors were:
K.B. M.
J.C.E. Jo.M.
C.B. L.M.18 W.J.
Da.R. D.
S.P.H. L.W.19
D.K. R.B. F.E.
Da.C. S.S.
Of these sixteen prospective
jurors, Judge Stephens granted Mallott
challenges to all but one: L.W.. Harmons
attorneys later exercised a peremptory
challenge against L.W..
The superior courts ruling on Harmons post-jury
selection request for a change of venue
On the morning of April 8, 2005, with jury
selection complete, Harmons attorneys asked Judge
Stephens to move Harmons trial out of Juneau
because of the extensive pre-trial publicity in
the case. Judge Stephens denied this motion.
Although Judge Stephens agreed that Harmons
case generated extensive pre-trial publicity, the
judge disagreed with the defense attorneys
concerning the nature of this publicity. The
judge stated that, even though newspaper articles
reported that Harmon had made statements to the
undercover trooper, the substance of [these]
conversations [was not] reported or revealed, or
really even characterized in any great detail.
On this issue, having reviewed the record, we
agree with Harmon that the judge was wrong. The pre-
trial publicity did communicate the fact that, at least
according to the States allegations, Harmon had
confessed to the undercover trooper.
As we explained earlier in this opinion, on
May 23, 2004, three days after Harmon was arrested, an
article appeared in the Juneau Empire bearing this
headline: DA: Accused [man] talked about killing
[M.W.]. And the text of this article contained the
following:
James D. Harmon said the wrong things to
the wrong man before his arrest Thursday on
charges he murdered [M.W.] in Tenakee Springs
more than a year ago, according to the Juneau
district attorney. ... In an affidavit
filed with the court, [District Attorney
Patrick] Gullufsen said [that] Harmon talked
with an undercover officer earlier this month
about raping and killing [M.W.].
Similar assertions were contained
in the series of articles that appeared in
January, February, and March 2005 in other
words, during the three months preceding
Harmons trial. These articles described the
defense attorneys attempts to suppress the
statements that Harmon had made to the
undercover trooper.
On January 14, 2005, in an article
describing a defense request for a
postponement of Harmons trial, the following
information was presented:
In court, Juneau District Attorney
Patrick Gullufsen alleged that Harmon made
incriminating statements to a trooper working
undercover. [Harmons defense attorney said]
that he is still waiting for recordings of
[the] wired conversations between the trooper
and his client. ... [The defense attorney]
hopes to suppress some statements from being
used as evidence against his client ... .
On January 26, 2005, the Empire
published another article which referred to
the States allegation that Harmon had made
incriminating statements to a trooper who was
working undercover.
And one month later, on February
27, 2005, the Empire carried a story entitled
Defendant in [M.W.] case will dispute
evidence, statements. This article again
reported the States allegation that Harmon
had confessed to sexually assaulting and
killing M.W. and the article also suggested
that Harmons attorneys planned to argue that
Harmons statements were the product of
improper police interrogation:
The attorney for James D. Harmon ...
gave notice last week that he plans to call
expert witnesses to dispute scientific
evidence and question statements his client
allegedly made to state troopers. ... In
justifying the charges for [Harmons] arrest,
[District Attorney] Gullufsen wrote that
Harmon had told an undercover state trooper
that he killed [M.W.] and sexually assaulted
her, court records show. ... [Harmons
defense attorney] gave notice last week that
he plans to call Richard J. Ofshe, a
professor emeritus at the University of
California - Berkeley[.] ... Ofshe ... is
an expert on improper influence in police
interrogation, [the defense attorney] wrote.
A week later, on March 6, 2005, the
Empire reported that Harmon had appeared in
court, flanked by attorneys fighting to keep
his alleged confession from being used
against him. This article quoted the defense
attorney as arguing that [all of Harmons]
statements made after Trooper Lorring
promised him money for telling him what was
going on must be suppressed. The article
also quoted the defense attorney as asserting
that Harmons will was clearly overborne as a
result of the intense and relentless
psychological pressure and unconstitutional
promises made to him by troopers, and that
Harmon lacked sophistication, had low
intelligence[,] and was psychologically
vulnerable.
On March 13, 2005 (i.e., one week
after the article just described), the Empire
carried an article describing how Harmons
attorneys were arguing that incriminating
statements Harmon allegedly made from May 9
through May 12, 2004, came after he insisted
he couldnt talk about Tenakee Springs on the
advice of his attorney.
It is true that the newspaper
articles never asserted that it was a proven
fact that Harmon had confessed. Rather, the
newspaper was careful to characterize this
matter as the States allegations that Harmon
had confessed. However, the news articles
repeatedly characterized Harmons statements
to the undercover trooper as allegedly
incriminating or as an alleged confession
and, in two instances, the Empire reported
that, according to the State, Harmon had
directly admitted sexually assaulting and
killing M.W..
However, as explained above, only
sixteen of the prospective jurors
(approximately one-fifth of the total) knew
that Harmon had said anything to an
undercover investigator. Moreover, the
superior court granted Harmons Mallott
challenge to fifteen of these sixteen, and
Harmon later exercised a peremptory challenge
against the remaining one.
Only one person who sat on Harmons
jury Juror Ju.L. knew that Harmon had made
pre-arrest statements about the case. And,
at least according to Ju.L.s answers on the
questionnaire and during individual
questioning in court, she did not know that
these statements were made to an undercover
officer, nor did she know any of the details
of these statements, or whether these
statements could be characterized as a
confession.
Of the other fifteen jurors who sat
on Harmons case, four had absolutely no prior
knowledge of the case,20 and the other eleven
knew only minimal facts about the case.21
As this Court explained in Cheely
v. State, 861 P.2d 1168, 1175 (Alaska App.
1993), even when a criminal case has received
intensive pre-trial publicity, the question
[under the Mallott test] is not how many
biased prospective jurors were identified and
excused. Rather, the question is whether
there is substantial reason to doubt the
impartiality of the jurors who remained after
the selection process was complete.
The Cheely case involved one of two
co-defendants, Cheely and Gustafson, who were
accused of murder arising from a highway
shooting. (Cheely and Gustafson believed
that another car had cut them off; in
response, Cheely maneuvered their vehicle so
that Gustafson could fire a rifle bullet into
the other car.)22
The case received widespread media
attention in Anchorage, and most of the media
coverage was distinctly unfavorable to Cheely
and Gustafson.23
Moreover, the media attention was renewed
just before Cheely went to trial because
Gustafsons case went to trial first, and
Gustafson was convicted just two weeks before
Cheelys trial began.24 At the conclusion of
the jury selection process, Cheely asked the
superior court for a change of venue, but
that request was denied.25
On appeal, Cheely renewed his
argument that the extensive pre-trial
publicity made it impossible for him to get a
fair trial in Anchorage, but this Court
upheld the superior courts ruling.
We agreed with Cheely that, because
of the intense pre-trial publicity, his
motion for change of venue was governed by
the Mallott standard. However, after
reviewing the record, we concluded that
Cheelys trial judge had not abused his
discretion when he denied the request for a
change of venue:
Under Mallott, when prospective jurors
have been exposed to intensive, prejudicial
pre-trial publicity, judges need not take
those jurors protestations of impartiality at
face value. However, as the facts of Mallott
illustrate, no change of venue is required
when, despite the dissemination of pre-trial
publicity, a substantial portion of the
prospective jurors have not been exposed to
the publicity or, at least, not exposed to
its prejudicial aspects. In Mallott itself,
the supreme court upheld the trial courts
refusal to change venue because it appeared,
from individual voir dire, that, despite
potentially prejudicial pre-trial publicity,
more than half of the prospective jurors and
all but two of the jurors ultimately selected
to try the case had not been exposed to the
worst aspects of that publicity and had heard
only a basic description of the alleged
crime. [Mallott,] 608 P.2d at 748.
Cheely, 861 P.2d at 1175.
The questioning of the prospective
jurors in Harmons case yielded results
similar to the results described in Mallott.
Of the seventy-five prospective jurors who
came to court and were subjected to
individual questioning, twenty-four had
essentially no knowledge of the media
coverage, and thirty-four had read or heard
only a basic description of the alleged
crime. In other words, a substantial
majority of the seventy-five prospective
jurors knew nothing about the evidence
linking Harmon to the homicide and, in
particular, nothing of what Harmon had
purportedly said to an undercover trooper.
In Cheely, we noted that the
superior court and the parties were aware of
the pre-trial publicity problem from the
beginning, and that they therefore engaged in
probing, individual questioning of the
prospective jurors, aided by an extensive pre-
voir dire questionnaire that each prospective
juror filled out before coming to court26 in
other words, the same procedure that was
followed in Harmons case.
As we noted in Cheely, the result
of this probing jury selection process was
that
only one member of the jury panel knew much
more about the case than a general
description of the crime. Several members of
the jury were not aware of the allegations
against Cheely until they heard the
indictment read in court at the beginning of
the selection process. And ... many other
prospective jurors were equally untainted by
pre-trial publicity. The great majority of
Cheelys peremptory challenges (9 of 11) were
exercised against prospective jurors who had
no more exposure to pre-trial publicity than
the twelve jurors ultimately selected.
Cheely, 861 P.2d at 1175.
These same things are true in
Harmons case. Several members of Harmons
jury were not aware of the allegations
against [him] until they heard the indictment
read in court, and the remaining jurors [did
not know] much more about the case than a
general description of the crime. Only one
member of the jury, Juror Ju.L., knew that
Harmon had made statements before his arrest,
and Ju.L. was unaware of the nature of these
statements or that these statements had been
made to an undercover trooper. Finally, as
in Cheely, the majority of Harmons peremptory
challenges were exercised against prospective
jurors who had no more exposure to [the] pre-
trial publicity than the [sixteen] jurors
ultimately selected.27
Because decisions regarding a
proposed change of venue are based on a
weighing of competing factors (some of them
intangible), and because there are often
times when reasonable judges might come to
differing conclusions based on the same
underlying facts, an appellate court uses an
abuse of discretion standard when it reviews
a trial judges decision regarding a proposed
change of venue.28
Despite the intense pre-trial
publicity surrounding this case, Judge
Stephens could reasonably conclude based on
the process and the results of the jury
selection that the jurors ultimately
selected to decide Harmons case did not
harbor unrevealed prejudices against Harmon.
We therefore find that Judge Stephens did not
abuse his discretion when he denied Harmons
motion for a change of venue.
The admissibility of evidence pertaining to Harmons
earlier assault on M.W.
As explained above, M.W.s friend, D.W.,
witnessed Harmon attempting to sexually assault M.W.
after a party on New Years Eve 2002-03. One of the
counts of the indictment (Count VI) charged Harmon with
this attempted sexual assault.
In the superior court, Harmons attorneys
argued that the trial of this count should be severed
from the trial of the other counts, and that evidence
of this crime should not be presented at Harmons
separate trial on the murder and sexual assault charges
arising from the events of late March 2003. Judge
Stephens rejected these arguments. He agreed with the
State that evidence of Harmons earlier assault on M.W.
was relevant to the issues of motive and, thus,
identity i.e., this evidence tended to prove that
Harmon was the person who attacked M.W. in late March
2003. The judge concluded that, even if Harmon were
tried separately for the March 2003 crimes, evidence of
Harmons New Years Eve attempted sexual assault would be
admissible at trial. Accordingly, Judge Stephens
declined to order a separate trial on this count of the
indictment.
(Judge Stephens did, however, grant Harmons
motion to sever the trial of Count VII of the
indictment the count that charged Harmon with
attempting to sexually assault D.W. later that same
evening (New Years Eve 2002-03). The State ultimately
dismissed this count of the indictment.)
On appeal, Harmon challenges Judge Stephenss
conclusion that the evidence of the New Years Eve
assault of M.W. was admissible at Harmons murder trial.
When the government proposes to introduce
evidence of a defendants other crimes, two questions
must be answered. First, is the proposed evidence
relevant for a non-propensity purpose? If the evidence
has no relevance other than to prove propensity, it is
barred by Alaska Evidence Rule 404(b)(1). Second,
assuming that the evidence is relevant for one or more
non-propensity purposes, is the probative value of the
evidence outweighed by its potential for unfair
prejudice? If so, then it should be excluded under
Alaska Evidence Rule 403.
We agree with Judge Stephens that there was a
plausible non-propensity relevance for the challenged
evidence. The State was not relying simply on evidence
that Harmon had sexually assaulted another woman in the
past. Rather, the States evidence tended to prove that
Harmon had earlier assaulted the same woman, M.W., and
that this sexual assault was interrupted by a
bystander. These circumstances tended to prove Harmons
identity as the one who attacked M.W. twelve weeks
later.
(As noted above, Judge Stephens excluded
evidence of Harmons contemporaneous sexual assault on
M.W.s friend, D.W., because the judge concluded that
this second assault had no plausible non-propensity
purpose.)
Turning, then, to the weighing of probative
value versus potential for unfair prejudice under
Evidence Rule 403, Harmon argues that the probative
value of this evidence was weak and its potential for
unfair prejudice great. But Harmons arguments are
premised on viewing the evidence in the light most
favorable to him; he accentuates the arguable
weaknesses in the evidence, and he downplays its
probative force.
The weighing of probative value versus
potential for unfair prejudice is the type of decision
where reasonable judges can (and do) differ. For this
reason, an appellate courts review of these decisions
is conducted under an abuse of discretion standard. We
are to uphold the trial judges assessment unless we are
convinced that the trial judges decision is clearly
untenable or unreasonable.29
In Harmons case, Judge Stephens carefully
assessed the challenged evidence using the balancing
test prescribed by Evidence Rule 403, and he concluded
that the evidence should be admitted. After reviewing
the record, we conclude that his decision does not
constitute an abuse of discretion.
Harmons sentence
At the conclusion of Harmons trial, the jury
was unable to reach a verdict on the most serious
charge contained in the indictment, first-degree
murder, but the jury convicted Harmon of the remaining
charges: second-degree murder, first-degree sexual
assault, second-degree theft, and attempted first-
degree sexual assault.
Based on forensic evidence that M.W.
sustained substantial physical trauma during the March
2003 attack, Judge Stephens concluded (1) that Harmon
attacked M.W., (2) that she tried to fight him off, and
(3) that Harmon then intentionally killed her by
strangling her. In other words, Judge Stephens
concluded that, as a factual matter, Harmon committed a
first-degree murder, and thus his conduct was among the
most serious included within the definition of second-
degree murder.
Judge Stephens also noted other disturbing
aspects of Harmons behavior. After he raped and killed
M.W., and while the community of Tenakee Springs was
looking for her, Harmon took up residence in M.W.s
cabin, ate her food, and used her money to play poker.
Based on these factors, Judge Stephens
concluded that Harmons sentence should exceed the Page
benchmark range of 20 to 30 years to serve for a first
felony offender convicted of second-degree murder.30
The judge sentenced Harmon to serve 65 years in prison
for this offense. The judge imposed a concurrent
sentence of 10 years in prison for the accompanying
sexual assault (the March 2003 assault). The judge
imposed a total of 7 consecutive years for Harmons two
other offenses (the theft and the New Years Eve
attempted sexual assault). Thus, Harmons composite
sentence is 72 years to serve.
On appeal, Harmon challenges Judge Stephenss
finding that Harmon acted with an intent to kill when
he strangled M.W.. Harmon argues that this conclusion
is overly speculative, because some strangulation
deaths can be unintended, and because even an intended
strangulation death can sometimes be mitigated (by heat
of passion, for example).
The question of Harmons mental state when he
killed M.W. is an issue of historical fact.
Accordingly, we must uphold Judge Stephenss finding
that Harmon intended to kill M.W. unless that finding
is shown to be clearly erroneous.31 In this case,
Judge Stephenss finding is amply supported by the
evidence. We also note, as Judge Stephens did, that
there is absolutely no evidence that M.W. engaged in
any conduct that would amount to legal provocation
sufficient to trigger a heat of passion defense. In
sum, we uphold Judge Stephenss conclusion that Harmon
(as a factual matter) committed first-degree murder.
Harmon also challenges Judge Stephenss
conclusion that Harmons potential for rehabilitation
was poor. Harmon points out that he is a relatively
young first offender, with no prior criminal record,
and that various people who knew him attested that he
has a gentle nature and that these crimes [are] wholly
uncharacteristic [of him].
It is true that Harmon has no prior record.
And, as Judge Stephens acknowledged in his sentencing
remarks, Harmon received the support of family members
and friends. But Judge Stephens noted other, more
troubling aspects to Harmons life history. Harmon had
never had a permanent job, and (in Judge Stephenss
words) he kind of bounced back and forth between
Ketchikan, Juneau, Tenakee Springs, and Colorado.
Harmon enlisted in the military, but he lasted only one
month before being discharged for repeatedly provoking
fights and failing to adapt. In addition, as noted
above, Harmon moved into M.W.s cabin after he killed
her, and he proceeded to eat her food and spend her
money conduct that Judge Stephens characterized as
profoundly disturbing as far as [evaluating] Mr. Harmon
as a person [and] his prospects for rehabilitation.
The question on appeal is whether Judge
Stephenss sentencing decision is clearly mistaken.32
After examining the sentencing record as a whole, we
conclude that Judge Stephens was not clearly mistaken
when he imposed a sentence of 65 years imprisonment for
the offense of second-degree murder, and a composite
sentence of 72 years to serve for all of Harmons
crimes.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 See State v. Glass, 583 P.2d 872 (Alaska 1978) (holding
that, under the Alaska Constitution, the police need a
warrant to secretly electronically monitor or record
conversations with criminal suspects, even when one
participant to the conversation consents).
2G.C. admitted that he looked at one article: an article
that appeared following Harmons arrest because the
article mentioned Harmons name, and G.C. had a former
supervisor whose name was Harmon. But as soon as G.C.
saw that the Harmon named in the article was not his
former supervisor, [he] just put the paper down.
3C.D. stated that he did not subscribe to the Empire, and
that he had not heard anything about the case [except]
gossip.
4J.H. stated that he had read a single article about the case
an article that appeared following Harmons arrest
because J.H.s name was so similar to the defendants.
But J.H. stated that he remembered nothing specific
from reading the article.
5H.D. was not asked about any details of what she remembered
about the coverage; instead, she was successfully
challenged for cause by the defense because she had
previously been the victim of a violent crime. In its
challenge, the defense made no mention of pre-trial
publicity.
6J.R. was challenged for cause by both sides, but not because
of exposure to the pre-trial publicity. Seemingly, the
grounds for the joint challenge were that J.R. had
already concluded that the proper verdict in the case
was manslaughter, and also that he was friends with
Harmons father and brother. The joint challenge was
granted.
7J.F. was excused not for cause, but because her adoptive
aunt was terminally ill and was not expected to live
more than a few more days.
8The defense challenged J.D. under Mallott, but even the
defense attorney conceded that this challenge was [not]
necessarily automatic because, although J.D. recalled
that the investigation had involved an undercover
officer, J.D. had no recollection that Harmon had made
self-incriminatory statements to the undercover
officer. The court denied the Mallott challenge. The
defense later exercised a peremptory challenge against
J.D..
9The defense challenged Du.R. for cause, but not under
Mallott. Rather, Du.R. stated that he believed that
Harmon was guilty, and that he could not presume him to
be innocent. The court granted the challenge.
10 F.H. was excused, but not because of what he learned from
the media coverage of the case. Rather, F.H. informed
the court that he had a number of friends who were
police officers, and these officers had told him that
they were fairly sure that the right person had been
arrested and charged. F.H. declared that he would have
a hard time setting his friends opinion aside.
11 An.R. had read some of the media coverage, but she also
conceded that, based on conversations with co-workers,
she had come to an opinion about the case that she
would be unable to set aside. The defense challenged
An.R. for cause but not under Mallott and the court
granted this challenge.
12 Ju.L. remembered that someone had befriended Harmon, and
that Harmon had told this friend something, and that
whatever it was [that Harmon said] led ... the friend
to think that [Harmon] was guilty of this crime. But
Ju.L. did not remember anything about who this friend
was, nor did Ju.L. remember any details about what
Harmon had said to the friend to make the friend think
that Harmon was guilty. On this basis, Judge Stephens
denied the defense attorneys Mallott challenge. The
judge pointed out that the jurors would hear evidence
at trial of other statements that Harmon made to
various friends.
Later, when the defense attorneys had the opportunity to
exercise a peremptory challenge against Ju.L., they
declined to do so. Instead, they allowed Ju.L. to sit
as one of the members of the jury.
13 A.P. was excused for cause, but not on Mallott grounds.
Rather, he declared that he would hesitate to convict
anyone of so serious a charge, even if the State proved
the case beyond a reasonable doubt although he also
declared that he would probably vote the same way the
other jurors would, just to get it over with.
14 The defense challenged Di.C. for cause but not on
Mallott grounds. Rather, the challenge was based on
the fact that Di.C. appeared to have a fixed opinion
about the case. The court denied this challenge for
cause.
15 B.P. was excused because she was nursing an infant.
16 The defense challenged Ja.M. for cause, but not on
Mallott grounds. Rather, they challenged Ja.M. because
he appeared unable to focus fully on the case. The
court denied this challenge.
17 The defense challenged St.C. for cause, but not on
Mallott grounds. Rather, the challenge was based on
his friendship with various police officers. The court
denied this challenge.
18 The court initially took the Mallott challenge of L.M.
under advisement, but the court later granted the
challenge.
19 L.W. remembered that Harmon had made statements to the
undercover officer, and he also remembered that there
was some question as to whether these statements were
going to be allowed into court, but L.W. never
characterized these statements as incriminatory. On
this basis, Judge Stephens denied the defense attorneys
Mallott challenge.
20 Jurors K.H., L.J., A.C., and J.Y..
21 Here is what these eleven jurors said respecting their
prior knowledge of the case. The reader should be
aware that some of the information stated by these
jurors is wrong. That is, several of the jurors
assertions about the specific facts of the case are at
variance with the evidence. We quote these assertions,
not for the truth of these matters, but only for the
purpose of evaluating Harmons claim that the jury pool
was prejudiced by the pre-trial publicity.
Juror W.B.: [I read just] an article in the newspaper when it
first came out. Q: Okay. Do you remember the content
of the article at all? A: No, not not really. ...
I just briefly read, like, the main parts, and [then]
just kind of kept reading the paper. Q: [When did you
read this article?] A: When it first came out. Its
been I was going to say years. Months ago. I mean,
when it ... . And thats the only time Ive seen
anything [about the case.]
Juror M.C.: [T]he only thing I know about I know that when I
was in Tenakee, there were little posters up saying
anxious about them finding somebody ... you know,
solving the case. And then I know that they did make
an arrest.
Juror Su.C.: I remember when this happened, but I dont
remember any details or anything, because Im not much
of a Im not a news person. I do remember reading it,
but nothing stuck with me. ... I dont listen to the
news [and] I dont watch the news on TV. ... I
remember when it happened. ... I remember the news
saying that they had found a body. I remember the
[victims] name; the name stuck with me. [But] I didnt
remember Mr. Harmons name. It didnt ring a bell with
me until yesterday, when I read it on the [jury]
questionnaire. ... I remember it happened in Tenakee;
I remember [that] the Tenakee people were very
concerned.
Juror L.H: I remember the general ... situation, but its been
some time, so the details are somewhat vague in my mind
at this point. ... Boy, its been some time [since]
that coverage was taking place, and mainly the fact
that they had you know, first of all, that this young
woman was missing, and then the fact that, you know,
she was found, ... and that, you know, ... some time
had passed before they found the suspect. So that was
thats mainly about it. ... I seem to recall that ...
her body was found somewhere in the woods, I think, not
too far from where she had lived, perhaps. And that
... there was a time before they had arrested anyone in
the case.
Juror Ma.M.: I read something about a girl [who] was missing,
and then I read something about when they found her,
and then I think something about when they arrested
somebody for it. Q: Do you remember any details? A:
Not really. I dont subscribe to the paper, so I dont
read it every day. ... I dont remember any big
details other than possibly they were searching for her
for a long time and couldnt find her. I remember that,
but thats really about all I remember about all of it.
Juror N.L.: You know, [I remember reading an article] right
when it first happened, and all I remember is that a
womans body was discovered, and that they thought maybe
she had been jogging, ... and that she was attacked.
Thats really all I remember.
Juror A.W.: We do get the Juneau Empire daily, and I have
read about the case. I remember reading about the
person that was missing, and I remember reading about
somebody being arrested. But as far as details, I dont
remember a lot of details. ... About the only thing I
can remember is the person was missing and they didnt
find her for a while. And eventually [they] did, and
it was a while before someone was arrested. But not a
lot of other details. ... I just remember there was
an arrest. [But] how it happened, or where, I dont
have any idea.
Juror S.H.: I cant say that I read a whole lot about [the
case]. In her pre-trial questionnaire, S.H. wrote that
she remembered that [the] body [was] found in Tenakee;
[the] defendant was [the] boyfriend of [the] victim at
times; [the] defendant went to school in Ketchikan;
[and the] victim worked at Rainbow Foods.
Juror M.S.: Well, what was it? A year I dont even remember
how many years ago it was. A couple years ago, was it?
Or a year ago? I just heard ... on the news that it
had happened. ... There was a girl missing. And they
couldnt find her. And then I heard that they did find
her and suspected that it was murder. And basically,
you know basically, ... thats all I know, really.
Juror Pe.M.: What I understand is that [M.W.] lived in
Tenakee and she was found behind a building. Im not
sure of the exact amount of time a few days later or
weeks later. And Mr. Harmon was found in on the way
back up from California, and he was a suspect, I guess.
And thats all I know.
Juror Pa.M.: I recall reading about [M.W.], and that shed
worked here in Juneau at Rainbow Foods; that she was a
young lady that spent ... part of her time in Tenakee
and part here. I believe there was a long delay
between the murder and finding the body. Thats about
all I can think [of].
22 Cheely, 861 P.2d at 1169-1170.
23 Id. at 1170-73.
24 Id. at 1170 & 1172-73.
25 Id. at 1170 & 1174.
26 Id. at 1175.
27 Harmon exercised a total of twelve peremptory challenges.
Of these, five were exercised against prospective
jurors who had no prior knowledge of the case: Jurors
L.C., C.L., J.J., Al.M., and Jo.L.. Three more of
Harmons peremptory challenges were exercised against
prospective jurors who knew only the basic facts of the
case: Jurors H.D., D.S.W., and Am.M..
28 Cheely, 861 P.2d at 1175; Newcomb v. State, 800 P.2d 935,
937 (Alaska App. 1990).
29Gonzales v. State, 691 P.2d 285, 286 (Alaska App. 1984).
30Page v. State, 657 P.2d 850, 855 (Alaska App. 1983).
31See Nelson v. State, 68 P.3d 402, 406 (Alaska App. 2003).
32See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974)
(holding that an appellate court is to affirm a sentencing
decision unless the decision is clearly mistaken).
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