Opinion
A-12570
06-30-2021
SHANE DANIEL HEIMAN, Appellant, v. STATE OF ALASKA, Appellee.
Cynthia L. Strout, Law Office of Cynthia Strout, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Trial Court No. 3KN-13-01997 CR, Kenai, Charles T. Huguelet, Judge.
Cynthia L. Strout, Law Office of Cynthia Strout, Anchorage, for the Appellant.
Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, Harbison, Judge, and Dickson, District Court Judge.[*]
MEMORANDUM OPINION
HARBISON, Judge.
Shane Daniel Heiman was charged in a single indictment for sexual offenses against two separate victims, E.L. and J. Y. At his request, the charges involving E.L. were severed for trial from the charges involving J. Y., and the court conducted two jury trials. But, relying on Alaska Evidence Rule 404(b), the trial court allowed the State to introduce evidence of both sets of charges at both of the trials.
Following Herman's first trial, for the charges relating to E.L., Heiman was convicted of attempted first-degree sexual assault, first-degree burglary, third-degree assault, and resisting arrest. This trial garnered significant media attention, and several newspaper articles were published about the trial.
AS 11.41.410(a)(1) & AS 11.31.100(a), AS 11.46.300(a)(1), AS 11.41.220(a)(1)(A), and AS 11.56.700(a)(1), respectively.
Heiman's second trial, for the charges relating to J.Y., started just three days after the first trial concluded. After the second trial, Heiman was convicted of first-degree sexual assault, second-degree sexual assault, kidnapping, and third-degree assault.
AS 11.41.410(a)(1), AS 11.41.420(a)(1), AS 11.41.300(a)(1)(C), and AS 11.41.220(a)(1)(A), respectively. The jury acquitted him of first-degree burglary. AS 11.46.300(a)(1).
On appeal, Heiman raises three arguments. Specifically, he contends that: (1) the trial court erred by admitting the Rule 404(b) evidence in each trial; (2) the trial court erred by denying his motion for a change of venue for his second trial; and (3) the trial court erred by denying his motion to suppress statements he made to the police.
For the reasons explained here, we conclude that none of these claims of error require reversal of Heiman's convictions.
Factual background
In November 2013, J.Y. was living alone in an apartment above a warehouse in Kenai. One night, J.Y. was awoken by a man standing at the foot of her bed. According to J.Y.'s trial testimony, the man held a knife to J.Y.'s throat, tied her hands behind her back, and put her into the bed of a pickup truck. He drove her to a secluded area where he parked, placed J. Y. in the truck cab, and sexually assaulted her over the course of approximately two hours. After the assault, the man began driving again with J.Y. in the cab. When the truck stopped, J.Y. was able to escape.
J. Y. underwent a sexual assault exam and was interviewed by the Alaska State Troopers, but the troopers were initially unable to identify the man who attacked her.
The incident involving E.L. occurred a month later, in December 2013. At that time, E.L. was living in a secluded cabin on her parents' property in Soldotna. The cabin was under construction, and Heiman was working on the construction.
One night, E.L. woke up to find a man standing over her, shining a headlamp on her and holding a knife in one hand. He was making grunting, sexual noises and fidgeting with his other hand. When the man realized E.L. was awake, he placed the knife to her throat, but E.L. fought him off and ran to her parents' house.
E.L.'s family called 911, and the troopers responded to the call. E.L. told the troopers that she thought that the man who attacked her was Shane Heiman, the handyman working on her cabin. The troopers put out an alert, requesting assistance in the search for Heiman's pickup truck.
The troopers searched the cabin and found a trash bag and a roll of black tape that did not belong to E.L. behind her bed. The troopers also searched the area around E.L.'s cabin. On the porch, they found a Carhartt hat that did not belong to E.L. They also found and photographed shoe tracks leading down the driveway to a set of tire tracks on a brushy trail. During the search, they discovered that the power to E.L.'s cabin had been shut off.
Approximately an hour after the attack on EX., a Soldotna police officer located and stopped Heiman's truck in response to the troopers' alert. The officer told Heiman that the troopers wanted to speak to him, and a trooper arrived on scene to question Heiman a short time later.
The trooper removed Heiman from his truck and performed a pat-down search for weapons. The trooper then asked Heiman a number of accusatory questions about where he was going and where he was coming from. When Heiman claimed that he was coining from the house he shared with his spouse, the trooper implied that Heiman was lying by referring to a protective order Heiman's spouse had against Heiman. The trooper also confronted Heiman regarding his shoes, his unzipped pants, the tire tracks and scratches on his truck, all of which the trooper asserted could be matched to the scene of the alleged assault. Heiman denied that he had been at E.L.'s residence, and he denied owning a Carhartt hat.
After the trooper completed his questioning of Heiman, he placed Heiman under arrest. Heiman responded by trying to pull away from the trooper. Heiman was later charged with attempted first-degree sexual assault, first-degree burglary, third-degree assault, and resisting arrest for E.L.'s case.
The day after his arrest, Heiman called his spouse from jail. The phone call was recorded. In the recording, Heiman admitted to having been at E.L.'s cabin the previous evening. Heiman told his spouse that he was "liquored" and "spiced up" at the time, and he had thought the cabin was empty. He told his spouse that his hat had fallen off when he was running out of the cabin and that he had shut off the power to the cabin before going inside.
The troopers also impounded Heiman's pickup truck and searched it pursuant to a warrant. Inside the truck, they found a knife and two headlamps, among other things. During the investigation, the Alaska State Crime Lab conducted DNA testing on the Carhartt hat and the sexual assault kit collected from J. Y. The same DNA profile was found on both, and Heiman could not be excluded as the source of the DNA. J.Y. later picked out Heiman's photograph from a photographic line-up.
Based on this investigation, Heiman was charged with first-degree sexual assault, kidnapping, second-degree sexual assault, third-degree assault, and first-degree burglary in J.Y.'s case.
Procedural history
Prior to trial, Heiman filed a motion to sever the charges relating to the incident involving J.Y. from the charges relating to the incident involving E.L. Heiman contended that he wanted to testify about the charges involving E.L. but did not intend to testify about the charges involving J.Y. The trial court granted the motion, finding that while Heiman had a "benign explanation for one of the alleged victim's accusations," he did not have a similar explanation for the charges involving the other victim. The court also ruled, however, that evidence of both sets of charges could be admitted under Alaska Evidence Rule 404(b) at each of the trials.
Heiman also filed a motion to suppress the statements he made during the traffic stop, arguing that his statements were the result of a custodial interrogation and were taken in violation of his Miranda rights. The trial court denied this motion in a written order, concluding that Heiman had not been subjected to custodial interrogation in violation of Miranda.
See Miranda v. Arizona, 384 U.S. 436 (1966).
The two trials were held in the opposite order of when the incidents had occurred. The charges involving E.L. went to trial first, and the charges involving J.Y. were tried almost immediately after. Heiman did not testify at either trial.
Heiman's defense at the first trial was that he had entered the cabin believing it to be empty and he had no intent to assault E.L. The jury rejected this defense and found Heiman guilty of attempted first-degree sexual assault, first-degree burglary, third-degree assault, and resisting arrest.
The first trial generated significant publicity, but the trial court nevertheless ruled that it would conduct the second trial three days after the first trial ended. Citing the extensive media coverage of the first trial, Heiman moved for either a change of venue or a continuance. The trial court denied these requests.
At the second trial, Heiman's defense was that J.Y. consented to sex with him. The jury rejected this defense and found Heiman guilty of first-degree sexual assault, second-degree sexual assault, kidnapping, and third-degree assault. It acquitted him of first-degree burglary.
Heiman's argument that the trial court erred when it ruled the evidence of both incidents could be admitted at both trials
Alaska Evidence Rule 404(b)(3) provides:
In a prosecution for a crime of sexual assault in any degree, evidence of other sexual assaults or attempted sexual assaults by the defendant against the same or another person is admissible if the defendant relies on a defense of consent. In a prosecution for a crime of attempt to commit sexual assault in any degree, evidence of other sexual assaults or attempted sexual assaults by the defendant against the same or another person is admissible.
Heiman concedes that the evidence from both cases was cross-admissible under this rule. Because Heiman was charged with attempted sexual assault in the E.L. case, evidence of the sexual assault on J.Y. was admissible in the E.L. trial, subject to a Rule 403 balancing test under Bingaman v. State Similarly, because Heiman claimed that the sexual contact with J. Y. was consensual, evidence of the attempted sexual assault on E.L. was admissible in the J.Y. trial, again subject to a Rule 403 balancing test under Bingaman.
Bingaman v. State, 76 P.3d 398, 415 (Alaska App. 2003).
Heiman nevertheless argues that the trial court erred when it allowed the evidence to be admitted at both trials. According to Heiman, the trial court's ruling infringed on his right to testify, and he claims that he chose not to testify in E.L.'s case because of the court's ruling.
However, because Heiman did not testify, he has not preserved this claim for appeal. Both this Court and the Alaska Supreme Court have declared that a defendant who declines to testify after receiving an unfavorable ruling on the admissibility of evidence will be deemed to have abandoned any resulting claim of error. The logic underlying this rule is that the admission of impeachment evidence, like most evidentiary rulings, is subject to harmless error analysis. Without a fully developed record of a defendant's testimony and subsequent cross-examination by the State, any attempt by this Court to "divine the likely effect of the alleged error ... would amount to pure speculation."
State v. Wickham, 796 P.2d 1354, 1358 (Alaska 1990); see also Wagner v. State, 2>A1 P.3d 109, 113-14 (Alaska 2015); Williams v. State, 214 P.3d 391, 392-93 (Alaska App. 2009); Sam v. State, 842 P.2d 596, 598-99 (Alaska App. 1992).
Sam, 842 P.2d at 599; see also Wickham, 796 P.2d at 1358 n.6 ("[The] rule has not been held to be violative of the federal constitutional right against self-incrimination, and we perceive no conflict with the Alaska Constitution. We also point out that the defendant's apparent predicament is, to at least some extent, ameliorated by the availability of a petition for review of the in limine ruling in the court of appeals.").
In any event, on appeal, Heiman has provided no authority to support his assertion that the trial court's correct evidentiary ruling violated his right to testify on his own behalf. And in the trial court, Heiman primarily argued it was the failure to sever the charges - rather than admission of Rule 404(b) evidence - that would have had a chilling effect on his right to testify.
Because Heiman failed both to preserve this claim of error for appeal and to provide authority supporting it, we reject the claim.
Heiman's argument that the trial court erred when it denied Heiman's motion for change of venue
Heiman argues that the trial court erred by denying his motion to change venue for the second trial. Heiman notes that a large number of prospective jurors had been exposed to the pretrial publicity about the case. He argues that, as a result, there was a substantial likelihood that an impartial jury could not be impaneled, and the trial court accordingly should have presumed that there was hidden prejudice on the jury panel. As evidence of hidden bias, Heiman also asserts that one of the prospective jurors (who was later excused for cause) lied about her knowledge of the case during voir dire in an attempt to be seated on the jury. According to Heiman, this record demonstrates that the community as a whole had already been tainted by the media coverage during the first trial. Thus, in Heiman's view, conducting the second trial immediately after the first was presumptively prejudicial.
See Mallott v. State, 608 P.2d 737, 748 (Alaska 1980) (quoting ABA Standards Relating to the Administration of Criminal Justice Fair Trial, and Free Press § 8-3.3(c) (1978)).
In Mallott v. State, the supreme court stated that unrevealed prejudice as the result of pretrial publicity may not be apparent in voir dire. Accordingly, the following standard applies:
Id. at 746-47.
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 juror's testimony as to state of mind.
Id. at 749-50 (quoting ABA Standards Relating to the Administration of Criminal Justice, Fair Trial and Free Press § 8-3.5(b) (1978)).
Thus, 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 juror's exposure to the prejudicial material makes that claim suspect.
Harmon v. State, 193 P.3d 1184, 1193 (Alaska App. 2008) (citing Stavenjord v. State, 66 P.3d 762, 768 (Alaska App. 2003)).
But 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." In short, even when a criminal case has received intensive pretrial publicity, the number of biased prospective jurors identified and excused is not the relevant inquiry: "rather, the question is whether there is substantial reason to doubt the impartiality of the jurors who remained after the selection process was complete."
Id.
Id. at 1198 (internal quotation marks omitted) (quoting Cheely v. State, 861 P.2d 1168, 1175 (Alaska App. 1993) amended on reh g (Nov. 2, 1993)).
In the present case, the trial court issued a case-specific juror questionnaire that included questions about the various news sources covering the case. It then excused almost all of the prospective jurors who knew anything about the case - even those who gave no indication of potential bias. After this, the parties conducted a thorough questioning of the remaining prospective jurors, and the trial court empaneled what it found to be a fair jury. Although Heiman identifies one juror who he claims lied during her individual voir dire, the trial court excused this juror, along with any others who gave any indication of potential for bias.
In other words, the record shows that the court and the trial attorneys "recognized the problem posed by pre-trial publicity [and 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 court."
Cheely, 861 P.2d at 1175.
Because the trial court is in the best position to evaluate the jury selection process, we will affirm its denial of a motion for change of venue unless, after an independent review, we find an abuse of the trial court's discretion. Having reviewed the record in this case, we conclude that the trial court did not abuse its discretion when it denied Heiman's motion for change of venue.
Id.
Heiman 's argument that his statements were taken in violation of his Miranda rights
Heiman's final argument is that the statements he made to law enforcement officers after they stopped his truck should have been suppressed because the trooper failed to administer a Miranda warning. Heiman argues that the trial court erred in denying his motion to suppress these statements.
See Miranda v. Arizona, 384 U.S. 436 (1966).
In support of this argument, Heiman renews his claim that he was detained under circumstances substantially more coercive than the average traffic stop. According to Heiman, the trooper's questioning of him prior to his arrest amounted to a custodial interrogation under Miranda. As evidence of this contention, Heiman points to the accusatory nature of the trooper's questions and the aggressive interrogation techniques that the trooper repeatedly used during the encounter.
Id.; see also Berkemer v. McCarty, 468 U.S. 420, 437-39 (1984); Blake v. State, 763 P.2d 511, 514 (Alaska App. 1988).
Although we agree with Heiman that his detention may have ripened into custody for purposes of Miranda, we conclude that the trial court's error in denying Heiman's motion to suppress was harmless.
As we have explained, the police began looking for Heiman's truck after E.L. identified Heiman as the person who had assaulted her. A short time later, a Soldotna police officer located a truck driving at a high rate of speed on the highway near the turnoff to E.L.'s cabin. The officer stopped the truck and identified Heiman as the driver. The officer asked Heiman where he was heading, and Heiman responded that he was traveling from the home he shared with his spouse to his work. The officer then informed Heiman that the troopers wanted to speak to him and instructed Heiman to "hang tight."
While Heiman waited in his truck, the officer returned to his patrol vehicle to contact the troopers. During this time, the officer kept Heiman's driver's licence. A trooper arrived a short time later, and he removed Heiman from the truck and patted him down for weapons. After finding a knife in Heiman's pocket, the trooper asked Heiman if he could look at the bottom of Heiman's shoes and commented that the zipper to Heiman's pants was down. The trooper then questioned Heiman while the officer observed from a short distance away.
The trooper asked Heiman a number of accusatory questions regarding his travel and activities that night. When Heiman claimed that he was coming from the house he shared with his spouse, the trooper implied that he knew Heiman was lying. The trooper also confronted Heiman regarding his shoe tracks, the tire tracks, and scratches on his truck - all of which the trooper asserted could be matched to the scene of the alleged assault. Although the trooper repeatedly accused Heiman of being at E.L.' s cabin and claimed that he could prove this accusation, Heiman denied that he had been at the cabin that night.
The trooper then told Heiman that he was going to take pictures of Heiman's truck, and he asked for permission to search it. After Heiman declined to consent to the search, the trooper told Heiman that he was going to make a short phone call, and instructed him to wait. The officer stood near Heiman while the trooper made the call.
While Heiman was waiting with the officer, he asked the officer if he could retrieve a thicker jacket from his truck, but the officer did not permit this. When the trooper returned, he asked Heiman whether he owned a Carhartt hat. Heiman denied owning such a hat.
The following exchange then took place:
Trooper. [I]f I have that hat and we test that DNA and we get a sample from you, is that going to match?
Heiman: No.
Trooper. You don't have a Carhartt hat at all?
Heiman: No.
Trooper: Okay. All right. I'm going to ask you one more time, you know, what was going on at [E]'s tonight? I mean, is this a big misunderstanding that we got wrapped up in or is there something that's really going on here?
Heiman: I have no idea.
Trooper: You have no idea? Fair enough. Right now, you're under arrest for burglary, felony assault, and [other charges].
At that point, Heiman tried to pull away from the trooper. After a short struggle, Heiman was placed into the patrol vehicle.
The United States Supreme Court has explained that a person detained for a traffic stop is not necessarily entitled to & Miranda warning, even if the stop constitutes a seizure under the Fourth Amendment. This court has reached the same conclusion under the Alaska Constitution, and we have summarized the Supreme Court's reasoning as follows:
Berkemer, 468 U.S. at 437.
First, traffic [] stops are presumably temporary and brief and thus, do not impose the same coercive pressure on a
defendant to speak that interrogation at a police station would impose. Second, traffic [] stops take place in public and thus, the defendant is not isolated from friends, associates, etc., as [they] would be in a "police dominated" atmosphere.
Blake, 763 P.2d at 514-15 (citing Berkemer, 468 U.S. at 437-39).
We have also extended this rationale to other types of investigatory stops. But in doing so, we have stressed an important limitation of the analysis: if a suspect is "detained under circumstances substantially more coercive than the typical traffic stop, and [if] that coercion actually impairs the free exercise of the privilege against self-incrimination," a Miranda warning is required.
See, e.g., id. (investigating wildlife poaching); McNeill v. State, 984 P.2d 5, 6-7 (Alaska App. 1999) (investigating a domestic disturbance); McCollum v. State, 808 P.2d 268, 269-70 (Alaska App. 1991) (investigating damage to shopping carts).
Blake, 763 P.2d at 515.
Applying this test to Heiman's situation, we conclude that Heiman was entitled to a, Miranda warning. First, although not dispositive of Miranda's custodial interrogation question, we note the parties' agreement that, after Heiman's vehicle was stopped by the officer, he was not free to leave.
See Tagala v. State, 812 P.2d 604, 608 (Alaska App. 1991) (courts determine whether a person is in custody for Miranda purposes by considering whether a reasonable person would believe that they were not free to leave).
Next, in determining whether a reasonable person would feel free to terminate questioning, we look at three categories of facts. The first group are "facts intrinsic to the interrogation: when and where it occurred, how long it lasted, how many police were present, what the officers and the defendant said and did, the presence of actual physical restraint on the defendant or things equivalent to actual restraint such as drawn weapons or a guard stationed at the door, and whether the defendant was being questioned as a suspect or as a witness." The second group are "[f]acts pertaining to events before the interrogation": "how the defendant got to the place of questioning[:] whether he came completely on his own, in response to a police request, or escorted by police officers." Finally, the third group are facts about "what happened after the interrogation[] whether the defendant left freely [or] was detained or arrested."
Hunter v. State, 590 P.2d 888, 895 (Alaska 1979).
Id.
Id.
Id.
Based on the surrounding circumstances, an investigative stop thus ripens into a custodial interrogation when, in a reasonable person's view, the stop exerts pressures that impair free exercise of that person's privilege against self-incrimination to such a degree that a Miranda warning becomes necessary. Heiman was subjected to such pressure.
McNeill v. State, 984 P.2d 5, 7 (Alaska App. 1999).
Although the stop in this case began as an investigatory stop, Heiman did not arrive voluntarily, and he was detained as a suspect in a felony assault rather than for a traffic violation. The detention then ripened into a custodial interrogation once the trooper patted Heiman down for weapons, discovered a knife, and began asking accusatory questions. From that point forward, the questioning was entirely police-dominated and suspicion-driven, and the trooper made clear that he had sufficient evidence to establish Heiman had been at E.L.'s cabin and was a suspect. He also repeatedly accused Heiman of being at the cabin and repeatedly claimed he could prove this assertion. The trooper asked to inspect the bottom of Heiman's shoes, asked to search his vehicle, and questioned Heiman about his unzipped pants. During a pause in the interrogation, Heiman was not permitted to return to his truck to retrieve a thicker coat. Then, at the close of his questioning, the trooper arrested Heiman for felony assault.
Under these circumstances, we conclude that the officers' actions impaired Heiman's free exercise of his privilege against self-incrimination. Heiman was subjected to custodial interrogation for purposes of Miranda as soon as the trooper began asking Heiman accusatory questions after finding a knife in his pocket. Accordingly, the trial court should have suppressed Heiman's subsequent statements.
The trooper's discovery of the knife and his observation that Heiman's pants were unzipped both corroborated E.L.'s claims that Heiman attempted to sexually assault her. Notably, there is no evidence in the record that the trooper learned anything else during the stop that he did not know before he arrived on scene.
Why we conclude that the trial court's error was harmless beyond a reasonable doubt
Although the trial court erred by denying Heiman's motion to suppress, we conclude that this error was harmless beyond a reasonable doubt in the context of both trials.
Heiman argues that the admission of his statements denying that he owned a Carhartt hat prejudiced him because he subsequently admitted to his spouse that the hat was his, and DNA tests supported this. According to Heiman, his denial that he owned a Carhartt hat and his denial that he had not been at E.L.'s cabin and had instead been home with his spouse both demonstrated consciousness of guilt.
First, we note that Heiman was not in custody for Miranda purposes when he was initially stopped and questioned by the Soldotna police officer. Heiman's answers to the police officer's questions-which included Heiman's false claim that he was coming from the home he shared with his spouse and driving to work - were therefore properly admitted. Heiman's similar statements to the trooper, which should not have been admitted, merely repeated this false claim. The only other statement of worth Heiman made after he was in custody for Miranda purposes was his denial that the Carhartt hat was his - a statement that demonstrated consciousness of guilt because Heiman subsequently told his wife that the hat belonged to him and the DNA tests confirmed this.
Moreover, as the State points out, the evidence against Heiman at both trials was extremely strong. At the trial involving EX., Heiman did not deny that he had been in the residence. Instead, he claimed that he went to E.L.'s cabin for a benign purpose. But during the trial the State introduced evidence that discredited this claim. This included testimony that the police found tape and garbage bags that did not belong to E.L. behind her bed, and that Heiman admitted to his spouse that he had shut off the power to the cabin before he entered it. Additionally, when E.L. described the attack, she stated that her attacker shined a headlamp on her, held a knife in one hand, and made sexual noises while moving the other hand. When the police located Heiman a short time later, he was in possession of a knife and headlamps, and the zipper on his pants was down. This evidence overwhelmingly refuted Heiman's defense that he entered E.L.'s cabin for a benign purpose, thinking it was unoccupied.
Heiman separately argues that the trial court's error in admitting the statements also requires reversal of his convictions for the incident involving J.Y. But, our analysis applies with even greater force there: in that trial, the statements were entirely disconnected from the incident itself and were used only to show Heiman's inconsistencies on a collateral matter.
Having reviewed both trials, we conclude that there is no reasonable possibility that the admission of Heiman's statements to the trooper contributed to the jury's verdict. Accordingly, we conclude that any error in failing to suppress those statements was harmless beyond a reasonable doubt.
See Rockwell v. State, 215 P.3d 369, 374-75 (Alaska App. 2009).
Conclusion
We AFFIRM the judgment of the superior court.
[*]Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).