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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
GABRIEL EDWARDS, )
) Court of Appeals No. A-4117
Appellant, ) Trial Court No. 4BE-90-118 Cr
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1266 - December 11,
1992]
________________________________)
Appeal from the Superior Court, Fourth Judi
cial District, Bethel, Dale O. Curda, Judge.
Appearances: Scott Jay Sidell, Anchorage,
for Appellant. John A. Scukanec, Assistant
Attorney General, Office of Special Prosecu
tions and Appeals, Anchorage, and Charles E.
Cole, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Gabriel Edwards was convicted of two counts of first-
degree murder, AS 11.41.100(a), and one count of first-degree
arson, AS 11.46.400(a), following a jury trial in the Bethel
superior court. He appeals both his convictions and his
sentences. We reverse the superior court's ruling on Edwards's
suppression motion, and we remand for further proceedings.
In the early morning of February 7, 1990, Bethel Police
Officers John Bilyeu and Steve Brunger were called to investigate
a fire that had occurred in a freezer van being used as a
residence at 161 Seventh Avenue. Two bodies were found in the
freezer van. At this point, the police did not know whether the
fire had started from natural causes or had been set by an
arsonist. The police also did not know whether the two people
whose bodies had been found in the van had died of natural
causes, had died accidentally in the fire, or had been the
victims of homicide.
On the evening of February 8, Bethel resident Brenda
Evans called the police and told them that Gabriel Edwards had
visited the freezer van shortly before the fire. As a
consequence of this telephone call, Officer Brunger interviewed
Evans the next day (February 9). At this interview, Evans said
that she had been socializing with Edwards on the night of the
fire when Charlie Gregory arrived and told them that two bodies
had been found in a freezer van. According to Evans, when
Edwards heard this news, he accompanied Gregory to the freezer
van to check the bodies - again, before the fire started.
Brunger and Bilyeu decided to interview Edwards that
same day. They contacted him in another freezer van residence.
Brunger and Bilyeu asked Edwards if he would be willing to talk
to them; he agreed. The officers thought that the van was too
crowded, (there were five people in the van, including the
officers), so they suggested that Edwards come to the police
station for the interview; Edwards again agreed.
Brunger and Bilyeu drove Edwards to the police station
in their police car. The officers directed Edwards to an
interview room, gave him some coffee, and then began the
interview. At the commencement of the interview, the officers
told Edwards that they wanted to speak to him about the fire.
They explicitly told Edwards that he was not under arrest and
that he could leave at any time.
However, the interview quickly became confrontational
when Edwards claimed to have no memory of the fire; indeed,
Edwards claimed to have no memory of anything other than being at
Brenda Evans's house that night. The following conversation
ensued:1
BRUNGER: You don't [remember anything
after being at Brenda's house]?
EDWARDS: I don't know.
BRUNGER: You see, Gabe, we saw you at
the fire that night, you got out of a cab.
EDWARDS: Oh, okay.
BRUNGER: And you weren't that fucked
up.
BILYEU: I talked to you, Gabe. So
right now, I'm going to read you your ...
EDWARDS: Okay.
BILYEU: ... rights, because right now,
with the story ...
EDWARDS: Okay, now, now I remember ...
BILYEU: ... (indiscernible) arrest you
for murder.
EDWARDS: What the fuck, man, I was
with, uh, Chris.
BILYEU: You'd better start talking.
EDWARDS: Well, he just, I just ...
BILYEU: Don't give us this "blacked
out" bullshit.
EDWARDS: You just reminded me [that] I
was with Chris.
BILYEU: ... stone-cold sober when I saw
you.
EDWARDS: I was with Chris what's-his-
name, Native dude, long hair, looks like a
Chinaman.
. . .
BILYEU: [Did] you forget [about]
talking to me at the fire?
EDWARDS: You just reminded me of that.
BILYEU: ... We know and have testimony
[from] two people [that you were at] 161,
[the scene of] the fire.
EDWARDS: Uh-huh. Before the fire start
ed.
BILYEU: About one o'clock, one in the
morning, and you went over there to see if
somebody was dead. Now, Charlie Gregory gave
you a name of somebody he thought was dead.
Now what was it?
EDWARDS: I don't, I don't really remem
ber.
BILYEU: Now, (tape cut off) going to be
a witness or you're going to be a defendant.
EDWARDS: Fuck!
BILYEU: Because we saw you at the fire,
Gabe. (Tape cut off) seen you sober, we've
seen you drunk. (Tape cut off) sober side
when we saw you at the fire, and that was
about 3:30. ...
BRUNGER: You weren't that drunk; you
might have been drinking, but you weren't
that drunk, Gabe.
BILYEU: Two hours prior to that, you
were leaving Brenda's, going over to 161,
which is where the fire [was].
EDWARDS: I don't fuckin' know.
BILYEU: You went over to check a pulse.
(Tape cut off) else did you check?
BRUNGER: Don't forget about checking a
dead body; we're talking murder here.
BILYEU: Right now, Gabe, right now I'm
not looking at you as a defendant.
EDWARDS: Well, fuck, I don't know, man;
I can't fuckin' remember.
BILYEU: But unless you start talking to
me ...
EDWARDS: Been drinking for a fuckin'
few days, I don't fuckin' know ...
BILYEU: ... then I, well, I know you
were sober that day and I also know that you
don't like to cooperate with the police.
(Tape cut off) also know and it's documented,
that you were in a fight with Jimmy Joe [one
of the people found dead in the freezer van].
At this point, Edwards began to speak freely with the officers
about going to the van with Charlie Gregory and Brenda Evans,
finding the bodies, and checking them for a pulse. Edwards did
not, however, tell the officers that he had had any involvement
in causing the deaths of the two people or in starting the fire.
Following the interview, Edwards surrendered the clothes he had
been wearing on the night of the fire so that the police could
subject them to laboratory analysis.
Five days later, on February 14, the police
reinterviewed Edwards. Edwards had been arrested on an unrelated
charge and he was being housed at the Yukon-Kuskokwim
Correctional Center. In the intervening five days, the police
had received the autopsy results; the autopsy indicated that the
two people had been murdered before their bodies were burned.
The police had also discovered two eyewitnesses to the killing;
these witnesses named Edwards as the murderer. The police
informed Edwards of his Miranda rights, and Edwards consented to
be interviewed. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,
16 L.Ed.2d 694 (1966). Confronted with the newest results of the
investigation, Edwards confessed to the murders at this February
14 interview.
After he was indicted for murder, Edwards asked the
superior court to suppress the statements he made to the Bethel
police on February 9, as well as the results of the laboratory
testing of his clothes and the confession he gave on February 14.
Edwards asserted that he had been in custody for Miranda purposes
during the February 9 interview, and thus his statements should
be suppressed because the police did not give him the required
advice of rights. Edwards also contended that his February 9
statement had not been voluntary.
Following an evidentiary hearing, the superior court
denied Edwards's suppression motion in a one-page written order.
That order reads, in pertinent part:
[T]he motion is hereby DENIED. The court
finds that the statement given by the Defen
dant on February 9, 1990, was voluntary and
that the Defendant was not in custody at the
time the statement was made. Therefore, the
subsequent statements made on February 14 and
15, 1990, were not improperly tainted and are
not suppressed.
On appeal, Edwards renews his claims that his
February 9 statement was involuntary and that it was taken in
violation of Miranda. We agree with the superior court that
Edwards's statement was voluntary, but we find that the police
violated Edwards's Miranda rights.
A person who is questioned by the police while in
custody must receive Miranda warnings. The test for custody is
an objective one: would a reasonable person in the suspect's
position have felt free to break off questioning and, depending
on the location of the interview, either leave or ask the police
to leave? Hunter v. State, 590 P.2d 888, 895 (Alaska 1979).
Even though Edwards was interviewed at the police
station and was transported there in a police vehicle, the
superior court could properly conclude that, when the interview
began, Edwards was not in custody. See Henry v. State, 621 P.2d
1, 2-4 (Alaska 1980). Soon after the interview began, however,
the officers threatened Edwards with arrest on a murder charge if
he did not become more cooperative:
BRUNGER: You don't [remember anything
after being at Brenda's house]?
EDWARDS: I don't know.
BRUNGER: You see, Gabe, we saw you at
the fire that night, you got out of a cab.
EDWARDS: Oh, okay.
BRUNGER: And you weren't that fucked up
[intoxicated].
BILYEU: I talked to you, Gabe. So
right now, I'm going to read you your ...
EDWARDS: Okay.
BILYEU: ... rights, because right now,
with the story ...
EDWARDS: Okay, now, now I remember ...
BILYEU: ... (indiscernible) arrest you
for murder.
EDWARDS: What the fuck, man, I was
with, uh, Chris.
BILYEU: You'd better start talking.
EDWARDS: Well, he just, I just ...
BILYEU: Don't give us this "blacked
out" bullshit.
Although the superior court concluded that Edwards was
not in custody during this February 9 interview, we find that the
superior court's conclusion is clearly erroneous. Ridgely v.
State, 705 P.2d 924, 928-930 and n.3 (Alaska App. 1985), rev'd on
other grounds, 732 P.2d 550 (Alaska 1987). Under the test
announced in Hunter, the issue is whether a reasonable person in
Edwards's position, upon hearing these words from Officer Bilyeu,
would have believed that he was still free to leave if he wished
to terminate the conversation.
We are mindful that interviews between police and
witnesses or suspects often become tense, angry, confrontational,
or antagonistic. Such an atmosphere alone does not make the
interview custodial for Miranda purposes. Compare Thompson v.
State, 768 P.2d 127, 131 (Alaska App. 1989), holding that a
defendant's statement was not rendered involuntary when the
interviewing officer warned him that the district attorney's
office might later interpret his silence as evidence of guilt.
But Officer Bilyeu was more than merely
confrontational. Bilyeu informed Edwards, in unmistakable terms,
that he would immediately arrest Edwards on a murder charge
unless Edwards became more forthcoming about his activities on
the night of the fire. At that point, a reasonable person in
Edwards's position would have concluded that he "was not free to
leave and break off police questioning." Hunter, 590 P.2d at
895. Bilyeu had plainly told Edwards that his freedom to leave
the police station was conditioned on his willingness to answer
the officers' questions.
We therefore find that Edwards was in custody during
this February 9 interview. Because Edwards was in custody and he
did not receive Miranda warnings, his February 9 statement must
be suppressed.
Edwards also argues that his February 9 statement was
involuntary. A suspect's confession is involuntary for constitu
tional purposes when law enforcement officials use such coercive
methods that they "overbear [the suspect's] will to resist and
bring about confessions not fairly self-determined". Rogers v.
Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 741, 5 L.Ed.2d 760
(1961). Traditionally, these outlawed methods include police
threats to the safety or welfare of the suspect or other people
the suspect holds dear. See, for example, Lynumn v. Illinois,
372 U.S. 528, 529-535; 83 S.Ct. 917, 918-921; 9 L.Ed.2d 922
(1963) (police officers threatened that, if the suspect did not
confess, she would lose the income she currently received under
the aid to dependent children program and, moreover, the child
welfare authorities would take her children from her). The
police are also barred from promising benefits such as immunity
from prosecution that would cause a suspect to put aside normal
efforts at self-preservation. Smith v. State, 787 P.2d 1038
(Alaska App. 1990).
Edwards argues that his statement of February 9 was
involuntary because the police officers threatened him with
immediate arrest on a murder charge if he failed to talk to them.
We have already ruled that this threat turned the interview into
a custodial interrogation. However, we cannot agree that it
rendered Edwards's statement involuntary. The main impediment to
such a finding is that Edwards, despite police pressure to talk,
said nothing to directly inculpate himself in either the fire or
the murders. He engaged in a calculated effort to assuage police
suspicions and to make it appear that he was reluctantly but
honestly cooperating with their investigative efforts.
In contrast to the Miranda test, which focuses on the
objective facts of the suspect's encounter with the police, the
test for whether a statement is voluntary rests in large measure
on the subjective effect of the police conduct on the suspect's
will. United States v. Leon-Guerrero, 847 F.2d 1363, 1365-66
(9th Cir. 1988); Sovalik v. State, 612 P.2d 1003, 1006-07 (Alaska
1980); Thompson v. State, 768 P.2d 127, 131-32 (Alaska App.
1989); W. LaFave & J. Israel, Criminal Procedure (1984),
6.2(d) and 6.5(d), Vol. 1, pp. 449-451 and 484-85. On this
record, we affirm the superior court's ruling that Edwards's will
was not overborne by what the police said to him.
In conclusion, Edwards's statements to the police on
February 9 were voluntary, but they must be suppressed because of
the Miranda violation. Both Edwards and the State urge us to
decide whether Edwards's February 9 interview tainted his
decision to allow the police to inspect his clothing and his
subsequent confession to the police five days later. However,
the superior court did not reach these issues, and their
resolution will require findings of fact that the superior court
has not yet made. Regarding the consent to search, see Frink v.
State, 597 P.2d 154, 167-69 (Alaska 1979). Regarding the subse
quent confession, see Oregon v. Elstad, 470 U.S. 298, 105 S.Ct.
1285, 84 L.Ed.2d 222 (1985); Dulier v. State, 511 P.2d 1058, 1060
(Alaska 1973); Ridgely v. State, 705 P.2d 924, 930 (Alaska App.
1985).
Moreover, the present record is insufficient to allow
us to judge whether the Miranda violation is harmless error or
whether it requires us to reverse Edwards's conviction. As the
State notes, Edwards does not explicitly argue that the admission
of the challenged evidence requires us to reverse his conviction,
and the record on appeal does not contain a transcript of
Edwards's trial. The absence of a trial transcript makes it
impossible to decide whether the challenged evidence might have
affected the outcome.
We therefore remand this case to the superior court.
The superior court should determine whether Edwards's clothing
and his February 14 confession must be suppressed on account of
the Miranda violation. The State bears the burden proving that
this evidence is not tainted. Alderman v. United States,
394 U.S. 165, 183; 89 S.Ct. 961, 972; 22 L.Ed.2d 176 (1969); see
Brown v. Illinois, 422 U.S. 590, 603-04; 95 S.Ct. 2254, 2261-62;
45 L.Ed.2d 416 (1975) (the government bears the burden of showing
that a defendant's illegal arrest did not taint his confession).
Upon completion of these proceedings on remand, the
issue of harmless error will be ripe for review. Whatever the
ultimate scope of suppression the superior court orders, Edwards
(as appellant) will bear the burden of providing this court with
an evidentiary record that allows us to determine whether the
suppressed evidence might have affected the outcome of his trial.
Edwards will need to supplement the record on appeal with tran
scripts of (a) his trial and (b) the proceedings on remand.
The superior court's ruling on the Miranda issue is
REVERSED. Its ruling on the voluntariness issue is AFFIRMED.
This case is REMANDED to the superior court for the further
proceedings described in this opinion. Once these proceedings
have been completed, it will be Edwards's responsibility to
notify this court and to file a supplemental designation of the
record on appeal. Upon certification of the supplemented record,
the parties shall brief the remaining issues. Briefing will
proceed in accordance with Appellate Rule 212, and either party
may seek oral argument under Appellate Rule 213(a).
We retain jurisdiction of this case.
_______________________________
1 The following transcription contains several
interruptions labeled "tape cut off": the police were using a
voice-activated tape recorder that, because of malfunction, would
sometimes cease recording in the middle of conversation.
