Gomez v. State, A-13169

CourtCourt of Appeals of Alaska
Writing for the CourtWOLLENBERG Judge
PartiesERIC GOMEZ, Appellant, v. STATE OF ALASKA, Appellee.
Docket NumberA-13169
Decision Date12 August 2022

ERIC GOMEZ, Appellant,


No. A-13169

Court of Appeals of Alaska

August 12, 2022

Appeal from the Superior Court, Third Judicial District, Anchorage, Jack W. Smith, Judge. Trial Court No. 3AN-15-02989 CR

Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.

Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde "Ed" Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.




Following a jury trial, Eric Gomez was convicted of attempted first-degree sexual assault of C.H.[1] Although C.H. did not testify at trial, the trial court allowed the State to introduce recordings of her prior statements-first, the initial portion of her 911 call, and second, the initial portion of her interview with a police officer who responded to the scene. The primary question presented in this appeal is whether the admission of these statements violated Gomez's constitutional right to confrontation.

For the reasons explained in this opinion, we conclude that the introduction of the initial portion of C.H. 's 911 call did not violate Gomez's right of confrontation. However, we conclude that the introduction of C.H. 's later on-scene statements to the police officer, describing past events from a position of remove and safety, did violate Gomez's right of confrontation, and that the admission of these statements was not harmless beyond a reasonable doubt. We therefore reverse Gomez's conviction.

Underlying facts

In April 2015, Eric Gomez had just moved to Anchorage and was living in a two-bedroom apartment with his sister, her husband and children, and a man named Salvador. On the evening of April 7, Gomez and Salvador met C.H. at a bus stop and invited her back to their apartment to drink. C.H. agreed, and the three took a taxi together. They purchased liquor along the way and, when they reached the apartment, they began drinking in one of the bedrooms.

Several hours later, at around 3:30 a.m., 911 dispatch received a call from C.H., asking officers to come to the apartment building because "the guy downstairs is pulling a knife out on everybody." C.H. said that the man had "just pulled [her] pants off, and he held a knife to [her] neck and tried to rape [her]." C.H. explained that the


incident had occurred in a different apartment, Apartment # 1 and-after another person had intervened and she was able to escape - she fled to an apartment upstairs, Apartment #4, where the residents had let her in.

Several Anchorage police officers responded to the 911 call. The first officers to arrive on the scene went to Apartment #1, the reported scene of the incident.

Officer Jean Mills arrived on the scene a short time later. After observing multiple officers already outside Apartment # 1, Mills proceeded to the upstairs apartment to make contact with C.H.

Upon entering the upstairs apartment, Mills observed C.H. sitting on the floor, partially dressed and crying. Mills asked C.H., "[C]an you give me a description of what happened?" C.H. stated that she had met Gomez and Salvador downtown, and that they had invited her to their apartment. C.H. reported that, at some point, after they began drinking, "Eric" held a knife to her neck and "was trying to rape me," but Salvador came into the bedroom, confronted Gomez, and began fighting with him. At that point, C.H. fled to the neighbor's apartment. Mills asked C.H. if she was injured, and C.H. replied, "I don't know. He held [a knife] to my neck, and I just told him to take what he wanted because I was scared."

Just as Mills starting talking with C.H., she heard some commotion in the hallway. Mills briefly stepped outside of the apartment and observed several officers placing a man - later identified as Gomez - in handcuffs.

Pursuant to warrants, the police searched both Gomez and his apartment. The police found C.H.'s identification and cell phone on Gomez's person, C.H.'s boots in the entryway of the downstairs apartment, and other forms of C.H.'s identification in the bedroom.

After the interview, Mills took C.H. to a facility for a sexual assault examination, during which a nurse observed a red bruise on C.H.'s neck.


Following his arrest, Gomez was taken to the police station, where Detective Leonard Torres interviewed him in Spanish - Gomez's native language. During this interview, Gomez acknowledged that he had met C.H. at a bus stop, stating that "[f]rom the moment I took her home it was a bad decision." According to Gomez, he told C.H. upon meeting her that he wanted to have sex with her, but after arriving at his apartment, she wanted only to drink. When Torres asked how C.H. had gotten a red mark on her neck, Gomez replied that he did not know. Torres pressed Gomez, rejecting his explanation that he had "just grabbed her." When Torres asked Gomez whether he had grabbed a knife, Gomez responded, "I don't remember. It could be." In response to further questioning about the knife and whether Gomez had placed a knife against C.H.' s neck, Gomez first replied that he did not remember because he had been drinking, but ultimately answered, "Well, I think so. If she has a mark, well, then I guess so."

Prior proceedings

A grand jury indicted Gomez on one count of attempted first-degree sexual assault.[2] Prior to trial, the State informed the court that C.H. would likely be unavailable to testify at trial. (The record indicates that C.H. had moved out of Alaska while this case was pending and was not cooperative with the State.) Gomez filed a motion seeking to exclude the recordings of both C.H.'s 911 call and Officer Mills's subsequent interview with C.H. Gomez argued that the introduction of these statements would violate his confrontation rights under the United States and Alaska Constitutions because, according to Gomez, the statements were testimonial, and he had not had a prior opportunity to cross-examine C.H.


At a hearing, the prosecutor stated that he intended to play only the initial portions of the 911 call and C.H.' s interview with Mills. The prosecutor acknowledged that, even by the time of the 911 call, the emergency had "dissipated a little bit," and that the later portions of both of C.H. 's statements appeared more testimonial.[3] But he maintained that the initial portions of C.H. 's conversations with the 911 dispatcher and Officer Mills were non-testimonial: the 911 call because the dispatcher was trying to coordinate a police response to an "ongoing, volatile situation," and the statements to Mills because, although Gomez was detained by that point, the police were still trying to sort out what had happened and who was involved.

Gomez's attorney conceded that her argument with respect to the 911 call was "much weaker" than her argument about C.H.' s statements to Officer Mills, and she focused primarily on the admissibility of the latter statements. Emphasizing the nature of Mills's questioning and the fact that C.H. was in another apartment behind closed doors, the attorney argued that the primary purpose of Mills's interview with C.H. was "investigatory." In particular, the defense attorney argued that Mills was taking an "initial statement" from C.H. for purposes of litigation and that C.H.'s statements to Mills were therefore testimonial.

Before the court ruled, the prosecutor played excerpts of the initial portions of the 911 call and C.H.'s later statements to Officer Mills - those portions that the prosecutor intended to play at trial.[4] The court subsequently ruled that the proposed


excerpts were non-testimonial and that their admission did not violate Gomez's confrontation rights.

At trial, the State did not call as witnesses any of the individuals who were present at the time of the incident - C.H., Salvador, Gomez's sister, or her husband. Rather, the State relied on the excerpts from C.H.' s 911 call and her interview with Mills, as well as on the testimony of law enforcement witnesses, representatives from the crime laboratory, and the nurse who performed the sexual assault examination. The State also introduced the recording of Gomez's interview with Detective Torres, during which Gomez appeared to confess to some of C.H. 's allegations.

In his defense, Gomez sought to cast doubt on the reliability of his statements, with defense counsel cross-examining Torres about his interrogation technique and the fact that Torres and Gomez spoke different variants of Spanish.

Gomez also challenged C.H.'s credibility and her version of events. Past and present members of Gomez's defense team testified that, across a series of conversations, C.H. had reported that she suffered from bipolar disorder, was not taking her medication at the time of incident, and sometimes had difficulty distinguishing reality from fantasy. C.H. also stated that she did not want to participate in the grand jury proceeding - and ultimately, she did not testify before the grand jury - and that she did not want Gomez to be prosecuted (although she maintained that he had assaulted her).

As part of the defense case, three Anchorage police officers testified about their own prior encounters with C.H. One officer testified that he had previously responded to a call for assistance from C.H. and noted that she smelled of alcohol - indeed, she told the officer that she was "very intoxicated" at the time of the incident she had called to report - and he found her "difficult... to get information from." Another


officer testified that he had charged C.H. with making a false report after he stopped her in a closed park and she made up a story about someone nearby attempting suicide.

Additionally, Police Officer Alan Skaggs testified that...

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