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Harmon v. State (9/19/2008) ap-2184

Harmon v. State (9/19/2008) ap-2184

                             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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