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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CHRISTOPHER L. LONG, )
) Court of Appeals No. A-3996
Appellant, ) Trial Court No. 2BA-90-331 Cr
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
) REVISED
Appellee. )
________________________________) [No. 1239 - July 31, 1992]
Appeal from the Superior Court, Second Judi
cial District, Barrow, Michael I. Jeffery,
Judge.
Appearances: Marvin Hamilton, Assistant
Public Defender, Barrow, and John B. Salemi,
Public Defender, Anchorage, for Appellant.
John A. Scukanec, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Christopher L. Long was convicted of second-degree
burglary, AS 11.46.310(a), following a court trial in the Barrow
superior court. He appeals his conviction, asserting that his
confession to this crime should have been suppressed because he
was in custody and the police failed to inform him of his rights
under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966). We remand for further proceedings.
On September 15, 1990, Long and an accomplice named
Herman Oyagak burglarized the Nuiqsut Trading Post, a general
store in the village of Nuiqsut. Three days later, the police
questioned Oyagak about the burglary; Oyagak confessed that he
and Long had committed the crime. In the early afternoon of
September 18, Officer Earl Bresette went to interview Long. Long
confessed to having committed the burglary, and he returned the
stolen money to the police.
After Long was indicted for this crime, he asked the
superior court to suppress his statements to the police,
asserting that these statements had been taken in violation of
Miranda. The State conceded that Long had never been advised of
his Miranda rights, but the State contended that no advisement of
rights had been necessary because Long had not been in custody
during the interrogation. Superior Court Judge Michael I.
Jeffery ruled that Long had not been in custody and therefore
Long's statements were admissible against him. The correctness
of this ruling is the main issue on appeal.
Long was the sole witness at the suppression hearing.
Because Long provided the only sworn account of the events being
litigated, Judge Jeffery relied solely on Long's testimony in
deciding the suppression motion. In reviewing Judge Jeffery's
decision, we have done likewise.
Long was working as a carpenter at a construction site
just across the street from the burglarized building. On the
afternoon when Officer Bresette came to question him, Long was
on the second story, putting up plywood panels. From this
vantage point, Long saw Bresette approaching the work site. Long
knew that Bresette was probably coming to see him, so he went
downstairs to meet Bresette.
Bresette told Long that he was a suspect in a burglary
and that he wished to speak to Long about this crime. Bresette
then asked Long to come with him to the police station, which was
located about one-half block down the street. Long did not want
to lose any pay from his job, so he asked Bresette if the matter
could wait until after work. Bresette responded that the matter
was important and could not wait. Long decided to accompany the
officer.
Long's precise reasons or motives for leaving work and
going to the police station were hotly disputed in the superior
court. On direct examination, Long described his decision this
way:
DEFENSE ATTORNEY: Did you want to leave
work?
LONG: No, I didn't.
DEFENSE ATTORNEY: Did you tell the
officer that you didn't want to leave work?
LONG: Yes, I did.
DEFENSE ATTORNEY: And what did he say
to that?
LONG: He told me that it was important,
and we got to go to the station, so he's got
to question me. So I said, "Fine - let's go
to the station." So I followed him to the
station.
DEFENSE ATTORNEY: Did you think you had
a choice?
LONG: No, not really.
DEFENSE ATTORNEY: What do you think
would have happened if you [had] said, "No,
I'm staying at work."?
LONG: Well, I thought, "If I stay at
work and he wants to question me, I might get
in trouble." So I thought, "Well, if this is
so important, I'll dock myself an hour for
work." So I did. So I followed him ... to
the station.
On cross-examination, Long described the encounter this way:
PROSECUTOR: [Y]ou say he asked you to
come to the station, right?
LONG: Yes, to ask some questions.
PROSECUTOR: Right. But he actually
asked you, "Will you come to the ...
LONG: Yes.
PROSECUTOR: ... station?" Okay. And,
at first, you didn't want to go, right?
LONG: I said, "Can't this wait till
after work?" And he goes, "No, this is impor
tant."
PROSECUTOR: He said it was important?
LONG: Yes.
PROSECUTOR: So is that why you decided
to go, because you thought it was important?
LONG: Yes.
PROSECUTOR: So you decided to go
because you thought it was important, not
because Officer Bresette was making you go?
LONG: I decided to go because it was
important and ...
PROSECUTOR: That's ...
LONG: ... I thought ...
PROSECUTOR: ... fine.
LONG: ... that I really had to go.
The parties agree that Bresette made no statement to
Long indicating whether Long was under arrest or not. However,
Long was neither frisked nor handcuffed. He seated himself in
the front seat of Bresette's police vehicle (not in the back,
where prisoners are generally transported), and they drove the
short distance to the station. At the hearing, Long admitted
that, if he had to be interviewed, he preferred having it done in
the warmth of the police station rather than exposed to the
arctic September weather at the construction site.
Long was interviewed in the main room of the Nuiqsut
police station. This room is open to the public and functions as
office and reception area. Bresette and the other officer
participating in the interview were seated behind desks, while
Long sat in a chair with the entrance to the police station at
his back. The door remained unlocked, and no officer guarded the
door. Long testified that he did not feel nervous or afraid, and
that the police station was a "pretty laid-back place".
From the outset, Long understood that the police knew
he had participated in the burglary. He gave somewhat ambiguous
and conflicting testimony concerning whether he felt free to
leave the interview. Long testified that he feared he would be
in worse trouble if he did not go through with the interview. A
little later in the hearing, Long testified that he thought the
police might have arrested him if he had left the interview.
But, on cross-examination, Long apparently conceded that he knew
he could have left the police station if he had wanted to, and
that he chose to stay so that he could get the matter over with.
At the end of the questioning, the police asked Long if
he would return the money stolen during the burglary. Long
replied, "Sure, let's go get the coins." Bresette and Long went
to Long's house (which was just down the street). While Bresette
waited in the "konuchuk" (a small entry porch that insulates the
true front door from the outside arctic air), Long went into the
house proper, retrieved the money from upstairs, and then
returned to where Bresette was waiting.
Bresette and Long went back to the police station with
the money. Long asked if he could leave then, but the police
insisted that Long stay and watch the counting of the money so
there would be no dispute later about how much was returned.
After the money was counted, the police offered to drive Long
back to his work site, but Long declined, preferring to walk.
Long was not arrested until one month later, after the Barrow
grand jury indicted him for the burglary.
Based on the foregoing testimony, Judge Jeffery
concluded that Long had not been in custody when he was
interviewed by the police in Nuiqsut. Judge Jeffery listened at
least twice to the tape recording of that interview, and he found
that the tone of the interview had been low-key, not heavy-
handed. He also noted that Long had freely left to return to
work when the interrogation was over. Judge Jeffery acknowledged
that Long had been under some pressure to cooperate with the
police by going with them and submitting to their questions.
But, analogizing Long's case to the circumstances presented in
Henry v. State, 621 P.2d 1 (Alaska 1980), Judge Jeffery found
that the pressure Long had experienced was the normal pressure
any other citizen would experience when confronted with a police
officer pursuing a criminal investigation.
Judge Jeffery concluded:
Long made the call. He could have taken
care of it right then, or he could have
waited till later. He decided to take care
of it right then. I don't think we've got
anything more here than what the Henry case
says [is not custody]. So, looking at the
objective facts from the [view]point of a
reasonable person, I find that he was not in
custody.
Judge Jeffery also interpreted Long's testimony as fully
supporting this conclusion. Judge Jeffery found, as a factual
matter, that Long thought he was free to walk out the door of the
police station rather than continue the interrogation - that is,
that Long did not believe he was in custody.
Custody exists when police actions create "inherently
compelling pressures which work to undermine the individual's
will to resist and compel him to speak [when] he would not
otherwise do so freely." Miranda v. Arizona, 384 U.S. at 467, 86
S.Ct. at 1624, 16 L.Ed.2d at 719. In Hunter v. State, 590 P.2d
888, 895 (Alaska 1979), the Alaska Supreme Court established an
objective test for determining whether a person is in custody:
under the circumstances of the police interaction with the
suspect, would a reasonable person have felt free to break off
the interrogation and, depending on the location, either leave or
ask the police to leave?
This question is to be answered, not by reference to
the subjective intentions or suspicions of the police, but by
examining the objectively manifested circumstances of the
interview: "the events which took place before the interrogation,
including those which explain how and why the defendant came to
the place of questioning", "the manner and scope of the actual
interrogation", "and, where relevant, what happened after the
interrogation." Quick v. State, 599 P.2d 712, 717 (Alaska 1979).
As noted above, Officer Bresette made no direct state
ment to Long, one way or the other, whether Long was under
arrest. Long argues that Bresette's request for him to attend an
interview at the police station, coupled with Bresette's failure
to tell him that he was not under arrest, indicate that the
ensuing interview was custodial. The State argues the converse:
that, since Long was never told that he was under arrest, Long
would have believed that it was his choice whether or not to
attend the interview.
This court has previously held that a trial court
should take into account whether the police told the suspect that
he was under arrest, or told him that he was not under arrest, or
failed to clarify the suspect's status. However, this is but one
factor to be evaluated when determining whether an interview was
custodial, and this factor must be viewed in context. Even when
a suspect is assured that he is not under arrest, the
circumstances of his contact with the police may belie this
assurance and convince the suspect that he indeed is in police
custody:
In such a case, there will be a significant
risk that the detained person's consent to a
station house interview stems not from any
genuine desire to be interviewed but rather
from the impression that refusal to consent
would be futile - that custody already exists
and there is no power to decline the request
for a trip to the station.
Lowry v. State, 707 P.2d 280, 284 (Alaska App. 1985); see also
Hampel v. State, 706 P.2d 1173 (Alaska App. 1985). By the same
token, an officer's subjective intent to restrain the defendant
and not allow him to terminate the interview is irrelevant unless
that intent is objectively communicated (either expressly or
implicitly) to the defendant. Doyle v. State, 633 P.2d 306, 309-
310 (Alaska App. 1981), relying on Hunter, 590 P.2d at 897 n.35.
Long argues that a police station is, almost by defini
tion, "an oppressive and remote setting", and that therefore any
interrogation conducted at a police station must ordinarily be
preceded by Miranda warnings. This is certainly true when the
defendant is brought to the station following his arrest, but
questioning does not become custodial simply because it occurs at
a police station. California v. Beheler, 463 U.S. 1121, 1125;
103 S.Ct. 3517, 3520; 77 L.Ed.2d 1275, 1278 (1983).
Our supreme court recognized this same principle in
Henry v. State, 621 P.2d 1 (Alaska 1980). Henry was a suspect in
a burglary. The police affirmatively asked Henry to come to the
station for an interview, and they transported him to this
interview in a patrol car. The supreme court nevertheless upheld
the trial court's decision that Henry had gone to the station of
his own free will and, thus, the police had not been required to
advise Henry of his Miranda rights. Henry, 621 P.2d at 2-4.
The crucial factual issue in Long's case is why he
decided to accompany Bresette to the police station. Long
testified that, when he told Bresette that he would rather wait
until later to talk to the police, Bresette replied "that it was
important, and we have to go to the station, so he's got to
question me." This testimony portrays Bresette's "request" as a
form of command. While Long's testimony during cross-examination
tended to show the encounter in a different light, Long never
explicitly receded from his initial description of Bresette's
words or the tenor of the interaction between himself and
Bresette at the construction site.
It is true that Long conceded several times that he was
free to leave. However, it appears that Long was speaking from
an existential viewpoint - that is, Long was referring primarily
to his physical ability to leave. Each time, he qualified his
statement by adding that he believed he would be in worse trouble
if he exercised this physical power to break off questioning and
leave the presence of the officers. If Long's initial
description of his encounter with Bresette is accurate, we would
rule that Long was in custody when he went to the police station.
As the finder of fact, Judge Jeffery was entitled to
conclude that Long had exaggerated the coercive aspects of the
encounter and that Bresette did not order Long to come to the
station for questioning. However, Judge Jeffery did not directly
address this issue in his findings at the conclusion of the
hearing. Judge Jeffery found that Long had decided to accompany
Bresette to the police station and be questioned there. But
Judge Jeffery failed to make findings regarding the specific,
objective circumstances under which Long made his decision to
accompany Bresette.
Under the objective test adopted in Hunter, the issue
of custody is not resolved by Judge Jeffery's finding that Long
had subjectively believed himself free to disregard Bresette's
wishes. Instead, the question is whether a reasonable person in
Long's position would have felt free to choose whether or not to
accompany Bresette.1
Resolution of this question depends to a large extent
on precisely what Bresette said to Long. As noted above, Long
testified that, when he asked Bresette if the interview could be
postponed, Bresette answered, "it was important, and we got to go
to the station, so he's got to question me." If this is a true
rendering of Bresette's words to Long, we believe that a
reasonable person in Long's position would not have felt free to
decline Bresette's "offer". As reported by Long, Bresette's
statement amounts to an order for Long to accompany him to the
station.
Judge Jeffery did not make any specific finding concern
ing precisely what Bresette told Long. However, Judge Jeffery
never stated that he distrusted or rejected Long's charac
terization of this conversation. If Judge Jeffery accepted
Long's report of his initial conversation with Bresette but
nevertheless concluded that Long was not in custody for Miranda
purposes even after receiving this command to accompany Bresette
to the police station, then Judge Jeffery's conclusion would be
clearly erroneous.
On the other hand, it is possible that Judge Jeffery,
after evaluating the totality of Long's testimony and Long's
credibility as a witness, concluded that Long had exaggerated or
mischaracterized the tenor of that initial conversation with
Bresette. If so, Judge Jeffery's finding that Long voluntarily
accompanied Bresette to the police station would not be clearly
erroneous.
Under Alaska Criminal Rule 12(d), a trial judge ruling
on a suppression motion must explicitly state all findings of
fact essential to a determination of the issues raised. Here,
the determination of precisely what Bresette told Long appears to
be crucial to the decision of whether or not Long was in custody
for Miranda purposes. The superior court did not explicitly
address this key issue of fact. Because of the resulting
ambiguity of Judge Jeffery's ruling, and because Criminal Rule
12(d) requires explicit findings on essential factual issues, we
believe it would be inappropriate here to apply the normal
presumption that factual issues not specifically addressed by the
trial court were resolved in the manner most favorable to
upholding the trial court's ruling. See Johnson v. State, 631
P.2d 508, 513-14 (Alaska App. 1981). We therefore find it
necessary to remand this case for specific findings on this
issue.
If Judge Jeffery concludes that Long exaggerated the
coercive aspects of his initial encounter with Bresette at the
construction site, so that Long was not in custody when he
decided to accompany Bresette, we uphold Judge Jeffery's ruling
that Long's subsequent interaction with the officers at the
police station did not convert the interview into a custodial
interrogation. Long was neither handcuffed nor frisked on the
way to the station, and he rode in the front seat of the police
car. Upon arrival, Long was questioned in the public area of the
police station, a room that serves as both office and reception
area. The two police officers sat behind a desk, while Long took
a seat on the other side of the desk, toward the front door.
From this position, the exit from the station was accessible to
Long; this door was neither locked nor guarded. Moreover, the
police station was only one-half block from Long's work and just
as close to Long's house; he did not need police transportation
to return to his job or to go home. Finally, Judge Jeffery
found, from listening to the tape recording of the interview,
that the tone of the questioning was low-key and that Long began
to discuss the facts of the burglary after very little prompting.
Judge Jeffery's findings with regard to this aspect of the case
are not clearly erroneous.
Long's remaining arguments on appeal concern his motion
to dismiss the grand jury indictment. Long's primary reason for
seeking dismissal of the indictment is that the grand jury heard
his statements to the Nuiqsut police. We have just held that the
admissibility of these statements must be reconsidered.
Long, however, makes a second attack on the grand jury
indictment which can be resolved in this appeal. Long argues
that the indictment should be dismissed because Bresette, in his
grand jury testimony, told the grand jurors that Long had
committed another crime - that Long had slashed Bresette's tires.
Judge Jeffery ruled that, while there had been no reason for
Bresette to have mentioned this incident, the reference to this
other crime was made in passing and could not have influenced the
grand jury's decision. We agree. The grand jurors heard both
Long's and Herman Oyagak's confessions to the burglary; the brief
testimony about the tire slashing could not have affected the
outcome of their deliberations on the burglary indictment.
We therefore AFFIRM the superior court's ruling on this
aspect of Long's motion to dismiss the grand jury indictment.
However, with respect to Long's motion to suppress his statements
to the police, this case is REMANDED to the superior court for
further proceedings. We do not retain jurisdiction.
_______________________________
1 We note that, when judging custody under Hunter, we must
examine whether the circumstances were impermissibly coercive
from the point of view of a reasonable, innocent person. United
States v. Bengivenga, 845 F.2d 593, 596 (5th Cir. 1988)
(en banc); United States v. Corral-Franco, 848 F.2d 536, 543 (5th
Cir. 1988) (Hughes, J., dissenting); W. LaFave & J. Israel,
Criminal Procedure (1984), 6.6(c); Vol. 1, p. 493, n.25.
