Harris v. State, 6580

CourtCourt of Appeals of Alaska
Writing for the CourtBefore BRYNER; COATS; Our dissenting colleague; It is possible that the rule which Judge Singleton suggests would be appropriate. However, we believe that the best way to evaluate such a suggestion would be to propose an amendment to the criminal rul
Citation678 P.2d 397
PartiesMalcolm Scott HARRIS, Appellant, v. STATE of Alaska, Appellee.
Docket NumberNo. 6580,6580
Decision Date24 February 1984

Steven P. Oliver, Anchorage, for appellant.

Charles M. Merriner, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.



COATS, Judge.

On the evening of December 11, 1980, Bob Mitchell, Malcolm Harris, and Richard Farmer drove to Clark Garvin's home in Anchorage in order to buy cocaine. Since Garvin was not at home, Mitchell kicked in the door. Mitchell and Farmer returned to the car after a few minutes with about two pounds of marijuana, some cocaine, a set of scales, and $14,000 worth of traveler's checks.

In order to cash the traveler's checks, Harris obtained a birth certificate form which he completed in the name of Clark Garvin. He then obtained a State of Alaska identification card in the name of Clark Garvin. He forged Garvin's name on the traveler's checks. Mitchell and Harris then flew to Seattle, where Harris forged Garvin's name to the checks. Mitchell and Harris cashed thousands of dollars worth of checks in Seattle. After returning to Anchorage, Harris's brother cashed about $2,000 worth of the checks.

On November 4, 1981, a jury found Harris guilty of theft in the second degree and forgery in the second degree. Judge Ripley sentenced Harris to an aggregate term of eight years with five years suspended. Harris was also ordered to pay restitution in an amount not to exceed $7,000. Harris has appealed to this court raising several issues concerning his conviction and sentence. We affirm.


Harris first contends that the grand jury which returned the indictment against him was improperly constituted and therefore the indictment should have been dismissed. Before trial, Harris's counsel filed an affidavit in which he stated that he had been informed by court personnel that one grand juror resided 176 miles from the Anchorage courthouse and that two other grand jurors were from Palmer. 1 Harris claims that at least one of the grand jurors and perhaps all three served in violation of Alaska Rule of Criminal Procedure 6(c)(1) which requires grand jurors to be "selected from the population within a fifty-mile radius of the place where the grand jury is convened...." We conclude that even if the three jurors were selected from beyond a fifty-mile radius of the Anchorage courthouse, this is not the sort of error which should lead to the dismissal of an indictment. There is no showing that there was any systematic exclusion of any class or group from the grand jury or that Harris was prejudiced in any conceivable way. Peterson v. State, 562 P.2d 1350, 1366 (Alaska 1977). See AS 9.20.040.


Harris next argues that the trial court erred in failing to suppress two inculpatory statements.

The Anchorage Statement

Harris was arrested in Anchorage on a fraud warrant and taken to the Anchorage police station where he was interviewed by Detective Starr Campbell of the Anchorage Police Department. Harris was interviewed for about one-half hour, but only the last seven minutes of the statement were recorded. Harris contends that he originally refused to talk to the police but that after the police made certain promises and threats he made an initial inculpatory statement. He claims that only then was he warned of his rights and made the tape recorded statement. Detective Campbell testified that before he asked Harris any questions, he read Harris his rights from a form and that Harris signed the form and acknowledged that he understood his rights. Detective Campbell testified that he told Harris he would inform the District Attorney of any cooperation. He also stated that he might have told Harris that the

                District Attorney would take Harris's cooperation "into consideration."   Detective Campbell also testified that he tells most of the suspects he interviews that those with no prior convictions usually get deferred prosecutions
The Homer Interview

About one month after the Anchorage interview, Harris was arrested in Homer and was interviewed by Homer Police Chief Michael Daugherty. The arrest was on an unrelated misdemeanor charge. A major portion of this interview was videotaped. Harris claims that the statement which he made was the product of threats and coercion. Harris claims that he was threatened with a sexual assault charge and that Daugherty promised to help him if he confessed. The following are some critical statements which took place in the interview:

Q: (Daugherty) You have a problem with a felony sexual assault. That's what it's called.

A: (Harris) Am I being charged with it?

Q: (Daugherty) I don't know if you're going to be charged with it at this point or not. It's got to be run by the D.A. There's a good chance of it.

* * *

* * *

Q: Now, I'm willing to help you out, you know, I've been twenty-one myself, and just like I told you, I'm willing to help you out, but in order to do that you're going to have to come clean with me. You're going to have to be square with me. You see, I've been in this business a long, long time, you know, you were in grade school when I first started in this business, so I've talked to lots of people, I'm very experienced at what I do, I know what I'm doing, you don't, and right now you're not telling me the truth.

A: About what?

Q: About the checks. The checks have been examined by experts--the traveler's checks. ...

A: Uh-huh.

Q: [A]nd they have positively identified the signatures on those as your handwriting.

A: It's not my handwriting.

Q: It has to be, the expert said it was yours.

A: I had signed a couple of those checks. I had signed a couple of those checks before they went into the bank, but Bob signed most of those checks.

Q: Well, how many did you sign?

A: I--I don't even remember. Maybe a hundred of them.

Q: You signed--you forged Clark Garvin's name to a hundred of the checks is all? You're sure that's all?

A: Yeah.

Q: Okay. How many did--did--did Bob Mitchell sign?

A: The rest of them. My brother signed some of them when he cashed in on them.

Q: He also forged Garvin's signature.

A: I don't know--I don't know if my brother forged Clark Garvin's signature. I think Bob had written them in and then put pay to the order.

Q: Scott, let me tell you something. It doesn't make any difference if you signed one or a thousand, you know. What I'm trying to tell you is be completely honest, let's get this thing out in front. Get it off your chest because it doesn't make any difference if--as long as you signed one--and you told me you'd signed a hundred--so it doesn't make any difference if you signed all the rest of them. Why don't you just be honest and let's get it out forward and just admit it because you did it, didn't you?

A: I signed half of them, yeah.

Q: You signed them all.

A: I didn't sign all of them.

Q: The experts say that you signed them all--all of the signatures are yours.

A: I didn't sign them all, I signed at least half of them.

Q: Probably more than half. There are a few checks that they don't have back yet. Okay? Now, come on, I've been playing fair with you, you play fair with me, all right? Now, you signed at least eighty-percent of them, didn't you?

A: (Indiscernible)

Q: Okay. And maybe even more, is that not right?

A: About eighty percent of them.

(Emphasis added.)

Daugherty said that Harris's "only hope" was to tell him everything he knew about the Garvin case.

Q: Well, your only hope right now is to tell me everything you know about it. Now, how can I impress upon you to do that? I'm not your enemy, I'm trying to help you. All right? I've seen a hundred--I've seen a thousand young men in the same shape that you're in right now and let me tell you, the only thing that's going to help you right now is honesty. Because we have a lot of evidence on you. Now, I'm willing to help you on the other things. I'm not going to be trying to really put it to you on the credit cards. And on the--you know, on this thing--of course, I'm going to run a thing about the sexual relations with the minor by the district attorney, but I'm not going to be standing strong on one side of the fence or the other. Now, I can help you on here by just--and I will do that. I'll tell them that you've been completely honest with me and that I think that--that you're a real good candidate for rehabilitation which means that--that--you know, that their primary concern should be about your future welfare, making a productive citizen out of you. But for crying out loud, you're going to have to be at least honest with me. How am I going to help you if you don't help me? Okay? Do you believe me?

A: Yeah.

(Emphasis added.)

Later in the interview, Harris asked whether he was going to be charged in relation to his alleged forgery of traveler's checks.

A: Are they charging me with that (indiscernible).

Q: I don't know. That's an Anchorage case. I don't know. You mean the checks? I don't know, that's an Anchorage case. I don't know on that, Scott. All I'm trying to do is--is to get you to become completely honest and get this whole thing off your chest and out front. Because, you know, the people up in Anchorage are also experts, you know. Those people have been in that business in the big leagues. So the only way out--you're caught, let's just admit that. Okay? Just--just say, hey, I'm caught that's it. Because by--by not telling us the truth, or telling us only partial truths, it's only going to look bad on you. Because, you know, your only hope at this point is to be honest with us and say, look I'm sorry, you know, it happened. I--you know (indiscernible) it's not going to happen again. And I think that's how you feel about it.

A: (Indiscernible) I cashed the goddam checks, Clark owes me money, I was brainwashed by Bob Mitchell over $14,000. I was broke at the time and I needed...

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