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THE COURT OF APPEALS OF THE STATE OF ALASKA
JACOB B. KOCHUTIN, JR., )
) Court of Appeals No. A-2714
Appellant, ) Trial Court No. 3AN-S86-
5875CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1350 - June 10, 1994]
Appellee. )
________________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Victor D.
Carlson and Karen L. Hunt, Judges.
Appearances: Blair McCune and Linda
Wilson, Assistant Public Defenders, and John
B. Salemi, Public Defender, Anchorage, for
Appellant. William H. Hawley and Robert D.
Bacon, Assistant Attorneys General, Office of
Special Prosecutions and Appeals, Anchorage,
and Charles E. Cole, Attorney General,
Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats,
Judge, and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
In Kochutin v. State, 813 P.2d 298 (Alaska App. 1991),
this court reversed murder and sexual abuse convictions that the
superior court had entered against Jacob B. Kochutin, Jr.; we
also remanded a separate sexual abuse conviction to the superior
court for further proceedings. This court's decision was based
in large part on the conclusion that the state had secured a
confession from Kochutin in violation of the rule of Edwards v.
Arizona, 451 U.S. 477 (1981). Our finding of an Edwards
violation was in turn based on stipulated facts indicating that
Kochutin had been in continuous custody from August 15, 1985,
when he initially invoked his Miranda1 right to remain silent,
until August 13, 1986, when he was interviewed by the police.2
The state petitioned for hearing to the Alaska Supreme
Court. While the petition was pending, the state received
information indicating that Kochutin may not have remained in
continuous custody in the interim between his invocation of the
right to silence and his police interview. Accordingly, the
state requested the supreme court to remand the case to this
court to enable the state to file a petition for rehearing based
on the new information. The supreme court granted the request
and remanded to us.
On remand, we granted the state's petition for
rehearing and, in turn, remanded to the superior court, directing
that court to ascertain Kochutin's custodial status in the
interim between August 15, 1985, and August 13, 1986, and to
redetermine the suppression issue if it concluded that Kochutin
had not been in continuous custody. In addition, we requested
the superior court to investigate the circumstances surrounding
the parties' failure to bring the correct facts to its attention
and to determine whether any lack of diligence in this regard
warranted issue-preclusive, monetary, or other sanctions against
either party. We retained jurisdiction pending completion of
proceedings on remand.
Superior Court Judge Karen Hunt conducted proceedings
in compliance with our order of remand and subsequently entered
written findings and conclusions determining that Kochutin had
not remained in continuous custody during the period in question,
that suppression was not warranted in light of the break in
continuous custody, and that, despite a lack of diligence on the
part of both parties, no sanctions should be imposed.
Thereafter, the parties completed an additional round of briefing
and presented oral argument to this court addressing the
appropriate disposition of the case in light of the proceedings
on remand.
Before this court, Kochutin does not dispute the
superior court's determination that he did not remain in
continuous custody between August 15, 1985, and August 13, 1986.
Instead, he maintains that continuous custody should not be a
precondition of an Edwards violation. Kochutin acknowledges the
substantial body of federal case law supporting the proposition
that the Edwards rule requires continuous custody, see, e.g.,
Kochutin, 813 P.2d at 308 n.1 (Bryner, C. J., dissenting), but
points out that the United States Supreme Court has not itself
endorsed the continuous custody requirement and argues that his
case is factually distinguishable from prior cases in which the
requirement has been upheld.
We find Kochutin's continuous custody argument unpersua
sive. The continuous custody requirement has been universally
recognized by federal courts of appeal and appears to be a well-
established feature of the Edwards rule. Kochutin offers no
cogent legal or factual reasons warranting rejection of the
requirement in his case. Given the now undisputed break in
custody that occurred in this case, Kochutin's August 1986 police
interviews did not violate the Edwards rule.
Kochutin alternatively requests this court to adhere to
its view that his Miranda waiver was involuntary, despite the
break in custody. Kochutin correctly notes that this court's
original opinion found his August 1986 Miranda waiver involuntary
and concluded that the involuntariness would warrant suppression
even if no Edwards violation had been found. Kochutin, 813 P.2d
at 306-07. Kochutin is mistaken, however, in asserting that his
continuous custody played no significant role in our ruling on
the voluntariness issue.
In concluding that the state had failed to establish
the voluntariness of Kochutin's statements to the police, this
court relied on the "totality of the circumstances" in his case.
Id. at 306. One prominent circumstance we expressly relied on
was that the August 1986 police interviews occurred "while
Kochutin remained incarcerated." Id. (emphasis added). In our
view, the recently disclosed break in custody that occurred
between August 15, 1985, and August 13, 1986, and the period of
liberty Kochutin enjoyed during that break, militate strongly
against the presumption that he was incapable of voluntarily
waiving his Miranda rights when the authorities interviewed him
in 1986. Given the break in custody, we conclude that the
circumstances as a whole support the conclusion that Kochutin
voluntarily waived his Miranda rights.
Kochutin advances a perfunctory argument that the state
should have been precluded from relying on evidence of the break
in continuous custody, given the state's failure to apprise the
court in a timely manner of the true circumstances surrounding
Kochutin's custodial situation. In our view, however, Judge
Hunt's factual findings on remand concerning the circumstances
surrounding disclosure of Kochutin's custodial status are not
clearly erroneous. Based on those findings, Judge Hunt could
properly conclude that issue-preclusive sanctions would be
unwarranted under the circumstances of this case.
Kochutin lastly reminds us that our original decision
reversing his convictions left unresolved a number of alternative
arguments and points raised in his appeal. For the reasons
expressed by the dissent to the original opinion, Kochutin, 813
P.2d 311-12 at nn.5 & 6, we find no merit to Kochutin's remaining
arguments.
Accordingly, upon rehearing, we VACATE our original
opinion, and we AFFIRM the judgments of conviction entered below.
_______________________________
*Sitting by assignment made pursuant to article IV, section
16 of the Alaska Constitution.
1. Miranda v. Arizona, 384 U.S. 436 (1966).
2. The facts surrounding Kochutin's offense and subsequent
interrogation are elaborated in our earlier
opinion, see Kochutin, 813 P.2d at 300-02.
