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THE COURT OF APPEALS OF THE STATE OF ALASKA
RAYMOND CARR, )
) Court of Appeals No. A-4040
Appellant, ) Trial Court No. 4FA-S90-764CR
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
) [No. 1256 - October 16, 1992]
Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Niesje J. Steinkruger, Judge.
Appearances: Susan M. Carney, Assistant
Public Defender, Fairbanks, and John B.
Salemi, Public Defender, Anchorage, for
Appellant. Kenneth M. Rosenstein, 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.
BRYNER, Chief Judge.
Raymond Carr was convicted by a jury of three counts of
sexual abuse of a minor in the first degree. AS 11.41.434(a)(1).
Carr appeals, contending that Superior Court Judge Niesje J.
Steinkruger erred in failing to suppress certain statements
obtained from him in violation of his privilege against
self-incrimination and his right to counsel. U.S. Const., amend.
V, VI; Alaska Const., art. I, 9, 11. We affirm.
Carr and Sandra Y. lived together for many years and
had two children, K.Y. and T.Y. Sandra Y. also had a daughter,
S.Y., from a previous relationship. Sometime in 1988, Carr and
Sandra Y. were imprisoned for unrelated crimes -- Carr for
assault and sale of simulated controlled substances; Sandra Y.
for forgery. Because Carr and Sandra Y. were incarcerated, the
state placed K.Y., T.Y., and S.Y. in foster care and filed child-
in-need-of-aid (CINA) proceedings to obtain formal custody of
them. As the father of K.Y. and T.Y., Carr was a party to the
CINA case. Carr's attorney in his assault and controlled
substance cases assisted Carr in maintaining contact with his two
children and was eventually appointed to represent Carr in the
CINA case.
In February of 1990, while the CINA case was still
pending, S.Y. reported to one of her foster parents that Carr had
sexually abused her on numerous occasions between approximately
July 1987 and July 1988 (when S.Y. was six and seven years old).
S.Y. repeated her accusations to a physician and to various
counselors; the matter was ultimately referred to Alaska State
Trooper Daniel Hickman.
When Hickman received this information, Carr was
incarcerated at the Fairbanks Correctional Center and Sandra Y.
was at the Hiland Mountain Correctional Facility. Hickman
contacted Sandra Y. and persuaded her to cooperate in obtaining
information from Carr concerning the reported abuse. On March
15, Sandra made a telephone call to Carr, which Hickman monitored
electronically.1 During the call, Carr admitted sexually abusing
S.Y. The next day, Hickman met with Carr; after advising Carr of
his Miranda rights,
Hickman interviewed him and elicited further incriminating
statements.
Prior to trial, Carr moved to suppress his March 15
statement to Sandra Y. and his March 16 statement to Hickman. As
to the March 15 statement, Carr contended that, because he was
incarcerated and because Sandra Y. was acting on behalf of the
troopers, her telephone conversation with him amounted to
custodial interrogation and should therefore have been preceded
by a Miranda warning. Alternatively, Carr claimed that, since he
was represented by counsel in the pending CINA case, Sandra Y.'s
trooper-instigated telephone call to him amounted to a violation
of his right to counsel. Carr similarly claimed a violation of
his right to counsel as a result of Hickman's interview with him
the next day, March 16. Superior Court Judge Niesje J.
Steinkruger denied Carr's motion, and Carr's incriminating
statements of March 15 and 16 were thereafter introduced against
him at trial.2
On appeal, Carr reasserts his self-incrimination and
right-to-counsel claims. We first consider Carr's self-
incrimination claim. "[A] necessary element of compulsory self-
incrimination is some kind of compulsion." Hoffa v. United
States, 385 U.S. 293, 304 (1966). In Miranda v. Arizona, 384
U.S. 436 (1966), the United States Supreme Court recognized such
compulsion to be inherent in the coercive setting that exists
when the police conduct a custodial interrogation.
It is undisputed that Sandra Y. placed her telephone
call to Carr at the behest of the troopers and that her
conversation with Carr was calculated to elicit incriminating
statements from him. Thus, for purposes of this decision, we may
assume that Carr's incriminating statements resulted from police
interrogation. See, e.g., Rhode Island v. Innis, 446 U.S. 291,
301-302 (1980); Beagel v. State, 813 P.2d 699, 706 (Alaska App.
1991). The precise issue here is whether this interrogation was
custodial, that is, whether it occurred under circumstances
amounting to Miranda custody.
Just as compulsory self-incrimination presupposes "some
kind of compulsion," Hoffa, 385 U.S. at 304, "custody," for
Miranda purposes, presupposes at least some minimal element of
coercive-ness. We have said that Miranda custody "exists when
there are `inherently compelling pressures which work to
undermine the individual's will to resist and to compel him to
speak where he would not otherwise do so freely.'" State v.
Murray, 796 P.2d 849, 850 (Alaska App. 1990) (quoting Miranda,
384 U.S. at 467). The standard for determining Miranda custody
is objective: Miranda warnings are required for police
interrogation conducted under circumstances in which a
"reasonable person would feel he was not free to leave and break
off the questioning." Hunter v. State, 590 P.2d 888, 895 (Alaska
1979).
No single factor is determinative when this standard is
applied; rather, the standard demands consideration of the
totality of the circumstances in each case. Quick v. State, 599
P.2d 712, 717 (Alaska 1979); State v. Murray, 796 P.2d at 850.
Accordingly, it is broadly recognized that incarceration, in and
of itself, will not automatically trigger the Miranda-warning
requirement. See, e.g., United States v. Willoughby, 860 F.2d
15, 23-24 (2nd Cir. 1988); Cervantes v. Walker, 589 F.2d 424, 428
(9th Cir. 1978); People v. Williams, 751 P.2d 901, 910 (Cal.
1988). See generally Kochutin v. State, 813 P.2d 298, 309 & n.2
(Alaska App. 1991) (Bryner, C.J., dissenting). As the United
States Supreme Court emphasized recently in Illinois v. Perkins,
496 U.S. 292, 297 (1990), "the premise of Miranda" is the need to
eliminate "the danger of coercion result[ing] from the
interaction of custody and official interrogation." Even when a
suspect is incarcerated, unique circumstances may arise in which
there is no reasonable possibility that coercive interaction of
this kind might occur; such circumstances will preclude a finding
of Miranda custody:
When the suspect has no reason to think that
the listeners have official power over him,
it should not be assumed that his words are
motivated by the reaction he expects from his
listeners.
Id.
The "official interrogation" in the present case
involved neither formal questioning nor a personal confrontation
with a law enforcement officer; instead, it consisted of the
March 15 telephone call that Carr received from his girlfriend,
Sandra Y. Nothing concerning the nature or timing of the call
appears to have been unusual. Carr was evidently entitled to
receive or reject telephone calls from outside the Fairbanks
Correctional Center. The record contains nothing to indicate
that he was under any degree of compulsion in electing to accept
Sandra Y.'s call or that he was in any way inhibited from
terminating the call after accepting it. Moreover, since Carr
was unaware that Sandra Y. was calling at the behest of the
troopers, he had "no reason to think that . . . [she might] have
official power over him." Id.
Furthermore, although Carr was incarcerated when Sandra
Y. called him, he was not being held as the suspect of a crime or
on pending, unresolved charges. Rather, he was serving a
sentence for a wholly unrelated crime. Given Miranda's
underlying ration-ale, these circumstances are highly
significant:
When a person is confined in custody
solely as a sentenced prisoner, with no
charges pending, the issue of guilt resolved
by a final verdict, and the terms and
conditions of confinement clearly defined in
a written judgment that is a matter of public
record, the anxiety and uncertainty that
support Miranda's finding of inherent
coercion simply cease to exist.
Kochutin v. State, 813 P.2d at 309 (Bryner, C.J., dissenting).
In short, in light of the totality of the circumstances
surrounding Carr's telephone conversation with Sandra Y., it
seems virtually inconceivable that Carr's incriminating
statements were in any realistic sense the product of "coercion
result[ing] from the interaction of custody and official
interrogation."3 Illinois v. Perkins, 292 U.S. 297.
Carr nevertheless argues that Tarnef v. State, 512 P.2d
923 (Alaska 1973), is controlling and that, under that case,
Sandra Y. was required to give him Miranda warnings. However,
the facts in Tarnef are readily distinguishable. There, Timlin,
a professional arson investigator with a police background,
interrogated Tarnef, an arson suspect who was evidently in jail
awaiting disposition on other charges. Timlin was working
closely with the police and had promised to furnish them with any
information Tarnef provided. The police arranged for Timlin to
gain access to Tarnef in jail in order to interrogate him. When
Timlin met with Tarnef, Tarnef was aware of Timlin's role in the
investigation; Tarnef had already been questioned concerning the
arson by other persons, including a former district attorney and
the victim of the crime. In moving to suppress, Tarnef claimed
that he had been assured that he would not be prosecuted if he
cooperated.
Given the factual circumstances in Tarnef, a finding of
Miranda custody seems fully justified: a reasonable person in
Tarnef's position may well have felt that he was not free to
terminate the contact with Timlin. Moreover, the issue of
Miranda custody does not appear to have been disputed in Tarnef.
The precise question considered by the court was not whether
Tarnef was in custody for Miranda purposes but rather whether
Timlin acted as a private citizen or as a police agent. See
Tarnef, 512 P.2d at 934.
We conclude that the superior court did not err in
finding that Carr was not in Miranda custody when he spoke with
Sandra Y. and that he need not have been informed by her of his
Miranda rights.4
We next consider Carr's claim that Sandra Y.'s
telephone call of March 15 and Trooper Hickman's interview of
March 16 violated Carr's right to counsel. Article I, section
11 of the Alaska Constitution guarantees that "[i]n all criminal
prosecutions, the accused shall have the right . . . to have the
assistance of counsel for his defense." By its own terms, this
constitutional right applies only when persons are "accused" in
"criminal prosecutions." For this reason, the right to counsel
is not triggered by purely investigative police efforts; before a
person may claim the right, the state must take some type of
formal adversary action, changing the person's status from that
of a suspect to that of an "accused" in a criminal prosecution.
Thiel v. State, 762 P.2d 478, 482-83 (Alaska App. 1988). At
least in the absence of some form of "active incursion into or
impairment of" an existing attorney-client relationship, no
violation of the right to counsel can occur before the right has
attached. Id. at 483.
Moreover, the right to counsel is case-specific: the
fact that it has attached in a particular case does not entitle
the accused to demand representation in connection with factually
and legally unrelated matters in which the state has made no
accusation and taken no adversary action. See McLaughlin v.
State, 737 P.2d 1361, 1364 (Alaska App. 1987). See also Maine v.
Moulton, 474 U.S. 159, 180 & n.16 (1985).
In the present case, when Sandra Y. and Hickman spoke
with Carr on March 15 and 16, the state was still in the early
stages of investigating S.Y.'s report of sexual abuse. The
state's efforts had been purely investigative; it had made no
accusation and taken no formal adversary action against Carr in
relation to the sexual abuse claim. Carr nevertheless points out
that, when the March 15 and 16 contacts occurred, he was already
a party in the CINA proceeding -- a case in which the state was
an adversary party and in which the court had appointed counsel
to represent him. Carr asserts that a close relationship existed
between the CINA proceeding and the child abuse investigation.
According to Carr, the nexus between the already-existing CINA
proceeding and the newly commenced criminal investigation
entitled him to counsel for purposes of the criminal
investigation and, in effect, extended the scope of his court-
appointed counsel's duties beyond the CINA case, to include
representation in the criminal investigation. Carr reasons that,
by allowing Sandra Y. and Hickman speak with him on March 15 and
16 without notice to or approval of Carr's attorney, the state
interfered with his established attorney-client relationship and
violated his constitutional right to counsel.
In our view, however, the CINA proceeding and the
sexual abuse investigation were not sufficiently related to vest
Carr with the right to counsel in the sexual abuse case. The
inception of the CINA proceeding was wholly unrelated to S.Y.'s
claim of sexual abuse by Carr. In fact, the CINA case was
commenced well before S.Y. had made any claim of abuse; it was
filed by the state in order to obtain custody over the children
of Carr and Sandra Y. because both Carr and Sandra Y. were
incarcerated and unable to care for their children.
Furthermore, S.Y.'s claim of abuse did not arise in the
context of the custody proceedings; rather, she simply told her
foster mother that Carr had molested her. At no time relevant to
his case were S.Y.'s accusations incorporated into or litigated
in the CINA case.
Finally, Carr's participation as a party in the CINA
case was wholly unrelated to S.Y.'s participation in the case or
to the issue of S.Y.'s custody. Carr was a party to the CINA
case only because he was the father of K.Y. and T.Y. Carr was
not related to S.Y., who was Sandra Y.'s daughter by a prior
relationship. Thus, Carr had no actual or legal claim to assert
in the CINA proceeding with regard to the issue of S.Y.'s
custody. To the extent that an adverse relationship existed
between the state and Carr in the CINA case, that relationship
had no connection to S.Y.
S.Y.'s claim of sexual abuse was certainly not
irrelevant to the pending CINA case. Because it reflected on
Carr's fitness to act as a parent, S.Y.'s accusation, if borne
out by the criminal investigation, could have had a significant
impact on Carr's custody rights with respect to his own children,
K.Y. and T.Y. In denying Carr's motion to suppress, Judge
Steinkruger expressly recognized this factual relationship
between the criminal investigation and the CINA proceeding but
concluded that it was insufficient to trigger Carr's right to
counsel with respect to the sexual abuse case. We agree with
Judge Steinkruger's conclusion. If the state had attempted to
introduce Carr's statements to Sandra Y. or Hickman as evidence
in the CINA case, Carr could plausibly have objected on the
ground that the statements had been obtained in violation of his
right to counsel in that case. We need not decide the issue
here. The relevant inquiry for present purposes is not what
potential impact the criminal investigation might have had on the
pending custody case -- in which Carr's right to counsel had
already attached -- but rather the extent to which the custody
action was related to the newly commenced criminal investigation.
As we have already indicated, the constitutional
right to counsel is not triggered by purely investigative
efforts, since such efforts do not render a suspect "the accused"
in a "criminal prosecution." Alaska Const. art. I, 11. Thus,
the state's investigation of S.Y.'s report of sexual abuse did
not, in itself, entitle Carr to representation in connection with
the allegation. Furthermore, in the specific factual setting of
this case, the existence of the CINA proceedings did not, in any
real sense, have the effect of converting Carr's status in the
criminal investigation from that of a suspect to that of an
"accused" in a criminal proceeding.
For this reason, we find the relationship of the CINA
case to the criminal investigation too tenuous to support the
conclusion that Carr's right to counsel in connection with the
criminal investigation had already attached when he spoke with
Sandra Y. and Hickman. The state's failure to give prior notice
of these contacts to Carr's CINA counsel did not violate Carr's
right to counsel in the criminal case.
Carr's final contention is that the trial court erred
in excluding evidence of Sandra Y.'s dishonesty. This claim
lacks merit. At trial, Carr attempted to impeach Sandra Y.'s
testimony by establishing that she was a dishonest person. To
this end, Carr proposed to call Superior Court Judge Richard D.
Savell, who had presided over Sandra Y.'s forgery trial. In
sentencing Sandra Y., Judge Savell had expressed the view: "Miss
[Y.], you're a thief, you're a crook and you can't be believed."
Carr offered to have Judge Savell testify to similar effect at
trial. After hearing Judge Savell's proposed testimony out of
the presence of the jury, however, Judge Steinkruger determined
it to be more prejudicial than probative and excluded it. See
A.R.E. 403.
Alaska Rule of Evidence 608 regulates the use of
character evidence to impeach witness credibility. The rule
provides, in relevant part, that "[t]he credibility of a witness
may be attacked . . . by evidence in the form of opinion or
reputation," but only if such evidence refers "to character for
truthfulness or untruthfulness[.]" A.R.E. 608(a). Except in
limited circumstances irrelevant to the present case, A.R.E.
608(b) expressly bars admission of evidence of specific instances
of untruthfulness.
Here, although Carr ostensibly sought to present
opinion evidence as to Sandra Y.'s dishonest character, Judge
Savell, responding to questioning by Carr out of the presence of
the jury, repeatedly testified that the only opinion he held was
that Sandra Y. had been dishonest in the forgery case and that
she "couldn't be believed in the matters then before me." This
is plainly not an opinion as to Sandra Y.'s "character for . . .
untruthfulness," A.R.E. 608(a), but is rather an opinion that
Sandra Y. actually conducted herself dishonestly on one specific
occasion. Though offered as "opinion" evidence, Judge Savell's
proposed testimony was tantamount to evidence of a specific
instance of dishonesty and, as such, was inadmissible under
A.R.E. 608(b).5
For these reasons, we AFFIRM Carr's conviction.
_______________________________
1. Hickman had secured a warrant in accordance with the
requirements of State v. Glass, 583 P.2d 872, 875 (Alaska 1978).
2. On March 17, 1988, Carr's court-appointed counsel left
a message with Hickman's office instructing the troopers to
refrain from any further contact with Carr. Carr thereafter
called Hickman; in response, Hickman interviewed Carr on two
further occasions. Judge Steinkruger granted Carr's motion to
suppress statements made by Carr after his attorney contacted the
troopers; those statements are not at issue here.
3. Carr suggests that the use of deception by Sandra Y.
deprived him of his right to due process under article I, section
7 of the Alaska Constitution. However, deceptive tactics are not
per se impermissible under Alaska law and will violate due
process only when they are coercive or tend to produce an
untruthful confession. Sovalik v. State, 612 P.2d 1003, 1007
(Alaska 1980); Marcy v. State, 823 P.2d 660, 665 (Alaska App.
1991). Here, nothing that Sandra Y. said to Carr during their
telephone conversation appears to have been calculated to take
advantage of or exploit Carr's position as a sentenced prisoner.
Given the lack of coercion and the absence of any tendency to
produce an untruthful confession, the deceptive tactics used by
the state did not run afoul of the Alaska Constitution.
4. This conclusion is not inconsistent with our recent
decision in Kochutin v. State, 813 P.2d 298 (Alaska App. 1991).
In Kochutin this court considered the rule of Edwards v. Arizona,
451 U.S. 477 (1981), which prohibits the police from reinitiating
contact with a suspect who has invoked the Miranda right to
silence during a custodial interrogation, as long as that suspect
remains in continuous custody. Kochutin was a sentenced
prisoner and was interviewed in jail after having previously
invoked his Miranda right. The state conceded that Kochutin was
in Miranda custody when he originally invoked his right to
silence. In that context, we decided that, once Kochutin had
validly invoked the Miranda right, his continued incarceration as
a sentenced prisoner qualified as continuous custody for Edwards
purposes. We did not hold that all sentenced prisoners are ipso
facto in Miranda custody.
5. Even assuming Judge Savell's testimony outside the
presence of the jury indicated that he had an opinion as to
Sandra Y.'s character for dishonesty rather than an opinion that
she was dishonest on the occasion when she appeared before him,
Judge Steinkruger did not abuse her discretion in ruling the
evidence more prejudicial than probative and excluding it under
A.R.E. 403. If viewed as evidence relating to Sandra Y.'s
character for dishonesty, Judge Savell's opinion would at best be
minimally probative, since the opinion was plainly based on a
single event -- Sandra Y.'s trial -- occurring under
circumstances in which Sandra Y. obviously had compelling reasons
to distort the truth in her own favor.
