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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Graham v. Durr (10/26/2018) sp-7311
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
STACEY ALLEN GRAHAM, )
)
Supreme Court No. S-16554
Petitioner, )
)
Superior Court Nos. 3AN-14-07194,
v. )
3AN-14-07195, 3AN-15-08741 CI
) (Consolidated)
DAYNA DURR, individually and in )
her capacity as Personal Representative ) O P I N I O N
of the Estate of Jordyn L. Durr; )
JAMEY DURR; MARKUS DURR; ) No. 7311 - October 26, 2018
JACK DURR; SHANNA )
McPHETERS, individually and in her )
capacity as Personal Representative of )
the Estate of Brooke Christina )
McPheters; GARY McPHETERS; )
PUGET SOUND PIPE & SUPPLY )
COMPANY; and ARAMARK )
SERVICES, INC., )
)
Respondents. )
)
Petition for Review from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage, Erin B. Marston,
Judge.
Appearances: Renee McFarland, Assistant Public Defender,
Quinlan Steiner, Public Defender, and Kimberlee A. Colbo,
Hughes White Colbo Wilcox & Tervooren, Anchorage, for
Petitioner. Christine S. Schleuss, Law Office of Christine
Schleuss, and Colleen A. Libbey, Libbey Law Offices,
Anchorage, for Respondents Dayna Durr, individually and in
----------------------- Page 2-----------------------
her capacity as Personal Representative of the Estate of
Jordyn L. Durr; Jamey Durr; Markus Durr; Jack Durr;
Shanna McPheters, individually and in her capacity as
Personal Representative of the Estate of Brooke Christina
McPheters; and Gary McPheters. No appearance by
Respondents Puget Sound Pipe & Supply Co. and Aramark
Services, Inc. Susan Orlansky, Reeves Amodio LLC,
Anchorage, for Amicus Curiae Alaska Association of
Criminal Defense Lawyers. Nancy R. Simel, Assistant
Attorney General, Anchorage, and Jahna Lindemuth,
Attorney General, Juneau, for Amicus CuriaeStateofAlaska.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
BOLGER, Justice.
I. INTRODUCTION
Stacey Graham pleaded guilty to second-degree murder after striking and
killing two pedestrians while driving intoxicated. He is now being sued by the victims'
families. Graham, who is currently appealing his sentence, argues that he may assert the
privilege against self-incrimination in response to the families' discovery requests based
on (1) his sentence appeal and (2) the possibility that he might file an application for
post-conviction relief if his sentence is upheld. We conclude that Graham may assert the
privilege against self-incrimination in the civil proceeding based on the possibility that
the decision on his pending sentence appeal may require a new sentencing proceeding
where his compelled testimony in the civil proceeding could be used to his disadvantage.
We decline to decide whether Graham is entitled to assert the privilege based on the
possibility that he might eventually file an application for post-conviction relief because
that issue is not ripe for review.
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----------------------- Page 3-----------------------
II. FACTS AND PROCEDURAL HISTORY
A. Facts
In August 2013 Stacey Graham struck and killed pedestrians Jordyn Durr
and Brooke McPheters after losing control of his vehicle. Graham was charged with two
counts of second-degree murder, two counts of manslaughter, and one count of driving
under the influence.
In May 2014 the families of Durr and McPheters (Durr) filed suit against
Graham and his alleged employer Puget Sound Pipe & Supply Company (Puget Sound).
Graham refused to respond to a portion of Durr's complaint, asserting his Fifth
1 In October Graham pleaded guilty to
Amendment privilege against self-incrimination.
two counts of second-degree murder under a negotiated plea agreement. Shortly
thereafter Graham provided initial disclosures to the Durrs.2 But he refused to provide
the factual basis for his defenses or the identity of persons potentially responsible for the
accident, again asserting his privilege against self-incrimination.
Graham was sentenced in February 2015. Durr asserts that, prior to
sentencing, Graham prepared a written statement for the sentencing judge and
participated in an interview with a probation officer in which he admitted that he had
caused the accident. Durr further contends that the oral and written statements were
included in a presentence report. In a statement presented at the sentencing hearing,
1 U.S. Const. amend. V ("No person . . . shall be compelled in any criminal
case to be a witness against himself . . . .").
2 See Alaska R. Civ. P. 26(a)(1) (requiring a party to make certain initial
disclosures without awaiting a discovery request).
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----------------------- Page 4-----------------------
Graham described the accident and expressed his remorse. He was sentenced to 20 years
3
with 4 years suspended on each count, for an active term of imprisonment of 32 years.
In early March Graham filed a notice of appeal. He argued that the
sentencing judge had committed several evidentiary errors, that the court should have
either deferred to recommendations in the presentence report or provided a rationale for
failing to do so, and that the sentence imposed was excessive. Graham asked the court
of appeals to vacate his sentence and remand the case for resentencing.4
At about the same time Durr served a series of discovery requests on
Graham. Graham refused to answer some of the questions in these requests, explaining
that he had appealed his sentence and asserting his Fifth Amendment privilege against
self-incrimination. In an April email to Durr, Graham's attorney stated that she "fully
anticipate[d] that Mr. Graham will be asserting his 5th Amendment privileges" at an
upcoming deposition. She asked whether Durr would prefer to "proceed with the
deposition" or "postpone it and perhaps stay the civil case until the criminal proceedings
have completely played out." The deposition did not occur.
In February 2016 Puget Sound served discovery requests on Graham.
Graham refused to respond to these requests, again asserting his Fifth Amendment
privilege against self-incrimination.
B. Procedural History
In March 2016 Puget Sound moved to compel Graham to participate in
discovery and to preclude Graham from asserting a privilege against self-incrimination.
Durr joined in the motion.
3 Under his plea agreement, Graham had agreed to a sentencing range of 13
to 20 years of incarceration per count for a total range of 26 to 40 years.
4 The court of appeals heard oral argument on June 27, 2017.
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----------------------- Page 5-----------------------
In its memorandum in support of the motion, Puget Sound argued that
Graham no longer retained a Fifth Amendment privilege. The company contended that
"[a] risk one's testimony could increase criminal penalties is a necessary condition
precedent to the assertion of the privilege . . . ." It noted that Graham was "only
appealing his sentence," and that in Alaska a sentence imposed on resentencing cannot
exceed the original sentence.5 Puget Sound argued in the alternative that Graham had
waived his privilege by making statements at the sentencing hearing and had not
contested most of the facts in the presentence report. It lastly argued that even if Graham
retained a privilege, he "should be compelled to testify to the extent the Court concludes
he can be ordered to do so without placing himself at risk of penalty in his criminal
case."
Graham responded that he "retains the right to invoke the privilege until he
has exhausted his appeals and his right to seek post-conviction relief." He also argued
that his comments at the sentencing hearing could not support a conclusion that he had
waived his Fifth Amendment privilege in a subsequent judicial proceeding.
The superior court granted Puget Sound's motion to compel. The court
ruled that "Mr. Graham's Fifth Amendment privilege against self-incrimination does not
apply in the circumstances presented in this case."6 It explained that Graham was only
appealing his sentence, and that Graham could not be subjected to additional penalties
5 Shagloak v. State , 597 P.2d 142, 145 (Alaska 1979).
6 The order did not address the privilege against self-incrimination under the
Alaska Constitution. See Alaska Const. art. I, § 9 ("No person shall be compelled in any
criminal proceeding to be a witness against himself."). But in its motion to compel,
Puget Sound had asked the court to rule that Graham could not assert the privilege
"under the Fifth Amendment . . . [or] Article I, Section 9 of the Alaska Constitution . . . ."
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----------------------- Page 6-----------------------
7
under Alaska law even if his appeal were successful. Because Graham could not "face
further criminal penalties" as a consequence of his appeal, the court concluded that the
case law he had cited in his opposition was "inapposite."
The court also ruled that the possibility Graham might pursue post-
conviction relief was "too speculative for the privilege against self-incrimination to
apply." It explained that Graham had "not indicated the basis upon which he would
likely file for post-conviction relief." And it again emphasized that he "simply cannot
be punished more harshly than he already has been."
The court acknowledged that there was one way Graham's participation in
discovery could present a risk of incrimination: if he had lied during the criminal
proceedings, he could face perjury charges. Accordingly, the court stated that it would
"hold an ex-parte hearing with Mr. Graham . . . to determine the basis for [his] claimed
privilege and whether Mr. Grahamcould incriminate himself if he is forced to participate
in discovery." If the court found "no basis for claiming the privilege," he would be
compelled to "answer interrogatories and discovery requests already served to which he
objected on Fifth Amendment grounds, appear and testify at deposition[,] and respond
to further discovery requests."
Graham'smotionforreconsiderationwasdeemedmoot. In December 2016
Graham attempted to initiate an action for post-conviction relief. The paperwork was
filed in the Alaska Court of Appeals, but did not result in a case being opened.
Graham then petitioned for interlocutory review. We granted his petition
and directed the parties to address two questions in their briefing:
a. Was Graham entitled to assert the privilege against self-
incrimination based on the possibility that he may file an
7
Shagloak,597 P.2d at 145 (holdingthatasentenceimposed on resentencing
ordinarily cannot exceed the original sentence).
-6- 7311
----------------------- Page 7-----------------------
application for post-conviction relief?
b. Was Graham entitled to assert the privilege based on the
possibility that the decision on his pending appeal may
require a new sentencing proceeding?
Durr and Graham submitted briefs; Puget Sound declined to do so. We also invited the
State of Alaska and the Alaska Association of Criminal Defense Lawyers to participate
as amici curiae. Both the State and Association of Criminal Defense Lawyers submitted
briefs.
III. DISCUSSION
A. Graham Retains His Privilege Against Self-Incrimination Until His
Sentence Appeal Becomes Final.
The superior court's ruling on Puget Sound's motion to compel would limit
Graham's ability to invoke his privilege against self-incrimination. Graham first
challenges this order on the grounds that the privilege extends through the direct appeal
8
process. While a trial court's ruling on a discovery motion is reviewed for abuse of
discretion,9 the scope of the privilege against self-incrimination "is a question of
constitutional law which [we] decide de novo."10
The privilege against self-incrimination is guaranteed by both the Fifth
Amendment of the United States Constitution and by article I, section 9 of the Alaska
8 During oral argument Durr's counsel "conced[ed] that Mr. Graham . . . can
invoke his Fifth Amendment privilege through the completion of his sentence appeal."
She asserted however that the plaintiffs could "still take a deposition and inquire into
things that are not covered by the privilege" even if he retained the privilege. We
acknowledge that the privilege may be invoked only when certain conditions are met.
See infra note 12 and accompanying text.
9 See Armstrong v. Tanaka, 228 P.3d 79, 82 (Alaska 2010).
10 State v. Gonzalez, 853 P.2d 526, 529 (Alaska 1993).
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----------------------- Page 8-----------------------
Constitution. The privilege "can be asserted in any proceeding," including civil
11
proceedings.
But as Durr notes, the privilege does not confer a right to remain silent
at all times or under all circumstances. Rather a speaker may assert the privilege against
self-incrimination only when directed to provide answers that would pose a "real and
12 Accordingly we must determine
substantial hazard" of incriminating the speaker.
whether Graham's testimony during the pendency of his sentence appeal could expose
him to a real and substantial hazard of incrimination.
In State v. Gonzalez we indicated that a defendant who had appealed a
conviction retained the privilege against self-incrimination until the conviction became
final.13 Most state and federal courts have likewise concluded that a convicted
defendant's testimony may present a "real and substantial hazard" of incrimination
14 The rationale for this approach
during the pendency of an appeal from a conviction.
11 Kastigar v. United States, 406 U.S. 441, 444 (1972).
12 E.L.L. v. State, 572 P.2d 786, 788 (Alaska 1977).
13 853 P.2d 526, 529 n.1 (Alaska 1993). Persons convicted of a crime in
Alaska may generally appeal to the Alaska Court of Appeals. See AS 22.07.020(a)(1),
(c), (d). If the Alaska Court of Appeals affirms a trial court's judgment, "that judgement
becomes final (1) when the time for petitioning the supreme court expires (if no petition
for discretionary review is filed) or (2) when the supreme court resolves the petition for
discretionary review (by either granting the petition and ruling on the merits, or by
denying the petition outright)." Alex v. State , 210 P.3d 1225, 1227 (Alaska App. 2009);
see Gonzalez, 853 P.2d at 529 n.1 (conviction not yet final where court of appeals had
affirmed conviction and remanded sentence).
14 See, e.g., United States v. Kennedy, 372 F.3d 686, 691 (4th Cir. 2004);
United States v. Duchi, 944 F.2d 391, 394 (8th Cir. 1991); Holsen v. United States,
392 F.2d 292, 293 (5th Cir. 1968); State v. Gretzler, 612 P.2d 1023, 1051 (Ariz. 1980);
State v. Johnson, 287 P.2d 425, 429-30 (Idaho 1955); State v. Linscott, 521 A.2d 701,
703-04 (Me. 1987); Ellison v. State, 528 A.2d 1271, 1278 (Md. 1987); Johnson v.
(continued...)
-8- 7311
----------------------- Page 9-----------------------
is straightforward: while direct appeal fromaconviction is pending or remains available,
there is a significant possibility that the conviction might be reversed - and that "any
disclosures [a defendant] makes would be used to incriminate him upon any retrial that
15
follows."
Unlike the defendant in Gonzalez, Graham appeals only his sentence, not
his conviction.16 But in Mitchell v. United States the United States Supreme Court
clarified that a defendant may invoke the Fifth Amendment privilege against self-
incrimination when the defendant's testimony might adversely affect the defendant's
sentence - even when the defendant's conviction is no longer at issue.17 Furthermore
14 (...continued)
Fabian, 735 N.W.2d 295, 310 (Minn. 2007); Myers v. State, 154 P.3d 714, 714-15
(Okla. 2007); State v. Ducharme, 601 A.2d 937, 945 (R.I. 1991).
15 1 KENNETH S. B ROUN, M CCORMICK ON EVIDENCE § 121 (7th ed. 2013);
see also Ellison , 528 A.2d at 1277 ("While a majority of appeals by defendants in
criminal cases may not result in reversals and further proceedings, a criminal defendant's
chance of overturning a verdict or sentence on appeal certainly does not fall into the
category of a mere remote possibility.").
16 Alaska appellate procedure distinguishes between "sentence appeals" and
"merit appeals." A sentence appeal challenges only the excessiveness of the sentence.
See Coffman v. State, 172 P.3d 804, 808 (Alaska App. 2007). A merit appeal considers
"the legality of a sentence, or the lawfulness of the procedures under which the sentence
was imposed, or the sufficiency of the evidence to support the findings that affected the
judge's sentencing authority . . . ." Id. Thus in some instances - as in the present case
- a defendant might file a merit appeal even if he is appealing only his sentence.
17 526 U.S. 314, 327 (1999); see also id. at 326 ("Where the sentence has not
yet been imposed a defendant may have a legitimate fear of adverse consequences from
further testimony."); Estelle v. Smith, 451 U.S. 454, 462 (1981) ("The essence of [the
privilege against self-incrimination] is 'the requirement that the State which proposes to
convict and punish an individual produce the evidence against him by the independent
labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.' "
(continued...)
-9- 7311
----------------------- Page 10-----------------------
the few courts that have expressly considered whether defendants appealing only their
sentences retain the privilege have concluded that they do. In Ellison v. State the
Maryland Court of Appeals concluded that "during the pendency of [a sentence appeal],
the criminal judgment is not so finalized that the possibility of future proceedings on the
18 And in People v. Villa a Colorado appellate court reached a similar
charges is remote."
conclusion: because the privilege against self-incrimination "protects one from being
subject to the risk of greater punishment by evidence furnished from his own lips," the
privilege "cannot rationally be limited to situations in which . . . only the conviction is
being appealed."19
We find the Villa and Ellison courts' reasoning persuasive. Mitchell and
related cases establishthatadefendant may assert theprivilegeagainst self-incrimination
when faced with a real and substantial hazard that the defendant's testimony could
adversely affect the defendant's sentence.20 If Graham's appeal from his sentence is
successful, thereis asignificant possibility thatcompelled testimonymight beconsidered
21 Accordingly the rationale for the approach followed in
by a resentencing court.
17 (...continued)
(emphasis in original) (quoting Culombe v. Connecticut, 367 U.S. 568, 581-82 (1961))).
18
528 A.2d at 1278.
19 671 P.2d 971, 973 (Colo. App. 1983); see also Gretzler , 612 P.2d at 1051
("The Fifth Amendment privilege is available to a convicted person when his conviction
or sentence is being appealed." (emphasis added)).
20 See, e.g., Mitchell, 526 U.S. at 327.
21 See Tookak v. State, 680 P.2d 509, 511 (Alaska App. 1984); WAYNE R.
AFAVE,ET AL.,6CRIMINAL PROCEDURE § 26.5(a) (4th ed. 2015) ("Post-offense conduct
L
. . . is generally taken into account when setting a sentence. Should resentencing be
required, post-sentence conduct will be considered as well.").
-10- 7311
----------------------- Page 11-----------------------
Gonzalez and similar cases also applies to Graham's appeal of his sentence; during the
pendency of that appeal, compelled testimony could present a real and substantial hazard
of "adverse consequences" in a future proceeding. 22
As the superior court noted, our holding in Shagloak v. State would
preclude a resentencing court from imposing a higher sentence should Graham's appeal
23 This characteristic of Alaska law differentiates this case from Villa and
be successful.
Ellison; in both of those cases, the courts explicitly noted that if the defendants' appeals
were successful, they could face a higher sentence on resentencing.24 But this limitation
on resentencing courts' discretion does not justify departing from the approach
articulated in those cases. The privilege against self-incrimination protects convicted
defendantsfrom"adverseconsequences [thatcould]bevisited upon theconvicted person
25 Although Graham admittedly cannot face a
by reason of further testimony . . . ."
"greater punishment" than that imposed during his previous sentencing,26 his compelled
testimony during the pendency of his appeal could result in a "greater punishment" than
22 Mitchell, 526 U.S. at 326.
23 See 597 P.2d 142, 145 (Alaska 1979). As Graham notes on appeal, the
superior court also referenced the fact that Graham had entered a guilty plea. But on our
reading, the court does not appear to have concluded that Graham's guilty plea had any
bearing on whether he retained a privilege against self-incrimination; rather the court
noted this fact while explaining why Graham had declined to appeal his conviction. In
any event persuasive authority suggests that a convicted defendant who has entered a
guilty plea may assert the privilege during the pendency of an appeal. See Villa, 671
P.2d at 973; Ellison, 528 A.2d at 1278.
24 Villa, 671 P.2d at 972-73; Ellison, 528 A.2d at 1278.
25 Mitchell, 526 U.S. at 326.
26 See Villa, 671 P.2d at 973.
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----------------------- Page 12-----------------------
27
he would receive if he were permitted to invoke the privilege . The rule identified by
the superior court places an upper boundary on the "adverse consequences" Graham
could face during resentencing; it does not eliminate them altogether.
In light of our precedent, persuasive authority from other jurisdictions, and
the purpose of the privilege against self-incrimination, we conclude that defendants
appealing only their sentences - like defendants appealing their convictions - may
28 We
invoketheprivilegeagainst self-incriminationuntil their convictions becomefinal.
therefore hold that Graham may continue to exercise his privilege against self-
incrimination during the pendency of his direct appeal.29
27 Courts considering analogous issues have applied similar reasoning. See
Landeverde v. State , 769 So. 2d 457, 464 (Fla. App. 2000) ("Because [a defendant] had
a pending motion to reduce his sentence, his exposure to incrimination was readily
apparent under Mitchell ."); State v. Marks , 533 N.W.2d 730, 734 (Wis. 1995) ("[A]
witness who intends to or who has moved to modify his or her sentence may legitimately
fear that . . . but for [] additional incriminating testimony there is a strong likelihood the
sentencing court would reduce the sentence. The fear of the defendant in giving
incriminating testimony is just as real in this situation as [when] . . . [t]here [is] a
potential danger to [the witness] of an increased sentence resulting from his own
testimony." (emphasis and last alteration in original)).
28 See supra note 13. To the extent that this interpretation of the privilege is
more protective than federal constitutional law, we base our ruling on article I, section
9 of the Alaska Constitution. See Munson v. State, 123 P.3d 1042, 1049 n.48 (Alaska
2005).
29 Graham argues on appeal that he did not waive the privilege by providing
a statement for sentencing. Although the parties raised this issue in the trial court, the
court's order did not address it. We "may affirm the superior court on any basis
supported by the record, even if that basis was not considered by the court below . . . ."
Hodari v. State, Dep't of Corr., 407 P.3d 468, 472 n.15 (Alaska 2017) (quoting Gilbert
M. v. State, 139 P.3d 581, 586 (Alaska 2006)). However "[i]t is hornbook law that the
waiver [of the privilege] is limited to the particular proceeding in which the witness
(continued...)
-12- 7311
----------------------- Page 13-----------------------
B. The Question Whether Graham Would Retain His Privilege Against
Self-Incrimination During Post-Conviction Proceedings Is Not Ripe
For Review.
After granting Graham's petition for interlocutory review, we directed the
parties to address whether Graham has a privilege against self-incrimination pending
completion of post-conviction proceedings following his appeal. Graham contends that
he would retain aprivilegeagainst self-incrimination during his first application for post-
conviction relief and a conditional privilege during subsequent applications. However
he also notes that this issue may not be ripe for review. "Because we are 'the ultimate
arbiter' of issues such as . . . ripeness, we review de novo the question of whether a case
should be dismissed on prudential grounds." 30
"The ripeness doctrine requires a plaintiff to claimthat either [an] . . . injury
31
has been suffered or that one will be suffered in the future." There is "no set formula"
32 However we have noted that "the
for determining whether a case is ripe for decision.
central concern of ripeness 'is whether the case involves uncertain or contingent future
29 (...continued)
appears." State v. Roberts, 622 A.2d 1225, 1235 (N.H. 1993) (alterations in original)
(quoting United States v. Cain, 544 F.2d 1113, 1117 (1st Cir. 1976)); see also Martin v.
ROUN, supra note 15, § 133 n.18 (listing
Flanagan, 789 A.2d 979, 985 (Conn. 2002); B
cases). Accordingly, we decline to affirm the court's order on this basis.
30 Kanuk ex rel. Kanuk v. State, Dep't of Nat. Res., 335 P.3d 1088,
1092 (Alaska 2014) (quoting State v. Am. Civil Liberties Union of Alaska, 204 P.3d 364,
368 (Alaska 2009)).
31 Brause v. State, Dep't of Health & Soc. Servs., 21 P.3d 357, 359 (Alaska
2001).
32 Id .
-13- 7311
----------------------- Page 14-----------------------
33
events that may not occur as anticipated, or indeed may not occur at all.' " Graham has
notyet attempted to assert theprivilegeagainstself-incriminationduringpost-conviction
34
proceedings. Furthermore because we do not know whether Graham will pursue post-
conviction relief once his appeal is resolved, it is impossible to determine at this time
whether Graham will ever attempt to do so. Accordingly we conclude that the question
whether Graham may invoke his privilege against self-incrimination during post-
conviction proceedings is not ripe, and we decline to address it at this time.
IV. CONCLUSION
We REVERSE the trial court's order and REMAND for further
proceedings.
33 Id. (quoting 13A C HARLES ALAN WRIGHT, ET AL ., F EDERAL PRACTICE AND
PROCEDURE § 3532, at 112 (2d ed.1984)).
34 Although Graham apparently attempted to initiate an application for post-
conviction relief, he did so after the court had granted Puget Sound's motion to compel
and denied his motion for reconsideration.
-14- 7311
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