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Graham v. Durr

Supreme Court of Alaska

October 26, 2018

STACEY ALLEN GRAHAM, Petitioner,
v.
DAYNA DURR, individually and in her capacity as Personal Representative of the Estate of Jordyn L. Durr; JAMEY DURR; MARKUS DURR; JACK DURR; SHANNA McPHETERS, individually and in her capacity as Personal Representative of the Estate of Brooke Christina McPheters; GARY McPHETERS; PUGET SOUND PIPE & SUPPLY COMPANY; and ARAMARK SERVICES, INC., Respondents.

          Petition for Review from the Superior Court Nos. 3AN-14-07194, 3AN-14-07195, 3AN-15-08741 CI of the State of Alaska, Third Judicial District, Anchorage, Erin B. Marston, Judge.

          Appearances: Renee McFarland, Assistant Public Defender, Quinlan Steiner, Public Defender, and Kimberlee A. Colbo, Hughes White Colbo Wilcox & Tervooren, Anchorage, for Petitioner.

          Christine S. Schleuss, Law Office of Christine Schleuss, and Colleen A. Libbey, Libbey Law Offices, Anchorage, for Respondents Dayna Durr, individually and in her capacity as Personal Representative of the Estate of Jordyn L. Durr; Jamey Durr; Markus Durr; Jack Durr; Shanna McPheters, individually and in her capacity as Personal Representative of the Estate of Brooke Christina McPheters; and Gary McPheters.

          No appearance by Respondents Puget Sound Pipe & Supply Co. and Aramark Services, Inc. Susan Orlansky, Reeves Amodio LLC, Anchorage, for Amicus Curiae Alaska Association of Criminal Defense Lawyers.

          Nancy R. Simel, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Amicus Curiae State of Alaska.

          Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

          OPINION

          BOLGER, Justice.

         I. INTRODUCTION

         Stacey Graham pleaded guilty to second-degree murder after striking and killing two pedestrians while driving intoxicated. He is now being sued by the victims' families. Graham, who is currently appealing his sentence, argues that he may assert the privilege against self-incrimination in response to the families' discovery requests based on (1) his sentence appeal and (2) the possibility that he might file an application for post-conviction relief if his sentence is upheld. We conclude that Graham may assert the privilege against self-incrimination in the civil proceeding based on the possibility that the decision on his pending sentence appeal may require a new sentencing proceeding where his compelled testimony in the civil proceeding could be used to his disadvantage. We decline to decide whether Graham is entitled to assert the privilege based on the possibility that he might eventually file an application for post-conviction relief because that issue is not ripe for review.

         II. FACTS AND PROCEDURAL HISTORY A. Facts

         In August 2013 Stacey Graham struck and killed pedestrians Jordyn Durr and Brooke McPheters after losing control of his vehicle. Graham was charged with two counts of second-degree murder, two counts of manslaughter, and one count of driving under the influence.

         In May 2014 the families of Durr and McPheters (Durr) filed suit against Graham and his alleged employer Puget Sound Pipe & Supply Company (Puget Sound). Graham refused to respond to a portion of Durr's complaint, asserting his Fifth Amendment privilege against self-incrimination.[1] In October Graham pleaded guilty to two counts of second-degree murder under a negotiated plea agreement. Shortly thereafter Graham provided initial disclosures to the Durrs.[2] But he refused to provide the factual basis for his defenses or the identity of persons potentially responsible for the accident, again asserting his privilege against self-incrimination.

         Graham was sentenced in February 2015. Durr asserts that, prior to sentencing, Graham prepared a written statement for the sentencing judge and participated in an interview with a probation officer in which he admitted that he had caused the accident. Durr further contends that the oral and written statements were included in a presentence report. In a statement presented at the sentencing hearing, Graham described the accident and expressed his remorse. He was sentenced to 20 years with 4 years suspended on each count, for an active term of imprisonment of 32 years.[3]

         In early March Graham filed a notice of appeal. He argued that the sentencing judge had committed several evidentiary errors, that the court should have either deferred to recommendations in the presentence report or provided a rationale for failing to do so, and that the sentence imposed was excessive. Graham asked the court of appeals to vacate his sentence and remand the case for resentencing.[4]

         At about the same time Durr served a series of discovery requests on Graham. Graham refused to answer some of the questions in these requests, explaining that he had appealed his sentence and asserting his Fifth Amendment privilege against self-incrimination. In an April email to Durr, Graham's attorney stated that she "fully anticipate[d] that Mr. Graham will be asserting his 5th Amendment privileges" at an upcoming deposition. She asked whether Durr would prefer to "proceed with the deposition" or "postpone it and perhaps stay the civil case until the criminal proceedings have completely played out." The deposition did not occur.

         In February 2016 Puget Sound served discovery requests on Graham. Graham refused to respond to these requests, again asserting his Fifth Amendment privilege against self-incrimination.

         B. Procedural History

         In March 2016 Puget Sound moved to compel Graham to participate in discovery and to preclude Graham from asserting a privilege against self-incrimination. Durr joined in the motion.

         In its memorandum in support of the motion, Puget Sound argued that Graham no longer retained a Fifth Amendment privilege. The company contended that "[a] risk one's testimony could increase criminal penalties is a necessary condition precedent to the assertion of the privilege . . . ." It noted that Graham was "only appealing his sentence," and that in Alaska a sentence imposed on resentencing cannot exceed the original sentence.[5] Puget Sound argued in the alternative that Graham had waived his privilege by making statements at the sentencing hearing and had not contested most of the facts in the presentence report. It lastly argued that even if Graham retained a privilege, he "should be compelled to testify to the extent the Court concludes he can be ordered to do so without placing himself at risk of penalty in his criminal case."

         Graham responded that he "retains the right to invoke the privilege until he has exhausted his appeals and his right to seek post-conviction relief." He also argued that his comments at the sentencing hearing could not support a conclusion that he had waived his Fifth Amendment privilege in a subsequent judicial proceeding.

         The superior court granted Puget Sound's motion to compel. The court ruled that "Mr. Graham's Fifth Amendment privilege against self-incrimination does not apply in the circumstances presented in this case."[6] It explained that Graham was only appealing his sentence, and that Graham could not be subjected to additional penalties under Alaska law even if his appeal were successful.[7] Because Graham could not "face further criminal penalties" as a consequence of his appeal, the court concluded that the case law he had cited in his opposition was "inapposite."

         The court also ruled that the possibility Graham might pursue postconviction relief was "too speculative for the privilege against self-incrimination to apply." It explained that Graham had "not indicated the basis upon which he would likely file for post-conviction relief." And it again emphasized that he "simply cannot be punished more harshly than he already has been."

         The court acknowledged that there was one way Graham's participation in discovery could present a risk of incrimination: if he had lied during the criminal proceedings, he could face perjury charges. Accordingly, the court stated that it would "hold an ex-parte hearing with Mr. Graham... to determine the basis for [his] claimed privilege and whether Mr. Graham could incriminate himself if he is forced to participate in discovery." If the court found "no basis for claiming the privilege," he would be compelled to "answer interrogatories and discovery requests already ...


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