Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, in order that corrections may be made
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THE COURT OF APPEALS OF THE STATE OF ALASKA
ROBIN J. HAAS, )
) Court of Appeals No. A-4703
Appellant, ) Trial Court No. 3AN-S91-193CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1416 - June 23, 1995]
Appellee. )
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Milton M. Souter, Judge.
Appearances: Thomas A. Ballantine, III, Anchorage, for
Appellant. John A. Scukanec, Assistant Attorney General, Office
of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and Mannheimer,
Judges.
COATS, Judge.
Robin J. Haas was convicted, following a jury trial, of
three counts of murder in the first degree, two counts of
attempted murder in the second degree, and robbery in the first
degree. AS 11.41.100(a)(1)(A); AS 11.41.110(a)(1); AS 11.31.100;
AS 11.41.500(a)(1). Superior Court Judge Milton M. Souter
sentenced Haas to 249 years of imprisonment. Haas appeals,
arguing that Judge Souter erred in denying Haas' motions to
suppress statements which he made to the police and other
evidence which was based on those statements. Haas also appeals
his sentence. We conclude that Judge Souter erred in denying
Haas' suppression motion, and accordingly remand the case to the
trial court for further proceedings.
In the early morning hours of January 8, 1991, an
unknown assailant shot five people in a room at the Mush Inn in
Anchorage. The police responded to a report of the shooting and
found that three of the victims were dead and two others were
severely injured. In the room where the shooting occurred, the
police found shell casings from a .9 millimeter semiautomatic
pistol and concluded that this was the weapon used in the
shooting.
Leslie Piland, one of the victims who survived the
shooting, told the police that the assailant's name was "Rocket."
She described him as a white male with curly hair who looked like
a "fat or chubby Richard Simmons." She was able to give the
police a telephone number for the assailant. The police also
talked to a cab driver who told them that he believed that the
particular room where the shooting took place was being used to
sell crack cocaine. The cab driver told the police that he had
previously picked up a male passenger by the name of "Rocky" who
had talked about doing violence in that room. The cab driver
recalled that Rocky was accompanied by a woman. At this point in
the investigation, the police concluded that the perpetrator
might be an individual by the name of Roscoe H.
The police used the telephone number which Leslie
Piland gave them to obtain a particular address on Jennifer
Street. The police immediately stationed several officers
outside of this address. At about eight o'clock that same
morning, several police officers knocked on the door. Robin Haas
answered the door and identified himself. When the police stated
that they were looking for "Rocket," Haas told them that he
sometimes went by that name. Haas also generally fit the
description which Piland had given the police. Haas invited the
officers into his house and agreed to go down to the police
station with them. At the time that the police contacted Haas,
Haas' girlfriend and another person were also at the residence.
Police Investigator Michael Grimes asked Haas if Haas
would drive his own truck down to the station so that he would be
able to drive himself back home after the police interviewed him.
Investigator Grimes later testified that at this point he was
only following up on a lead and that Haas was not a suspect. He
stated that the information connecting Haas with the scene of the
crime came from a severely wounded victim and he was not sure
what the information meant. He considered Haas to be very open,
cooperative, and disarming. Grimes contacted Investigator Bill
Reeder at the police station to set up the interview room with
video and audio equipment.
At the police station, Grimes and Reeder interviewed
Haas; Reeder was the principal interviewer. Although neither
officer was in uniform, both were armed. However, Grimes
testified that his weapon would have been covered by his
clothing. According to Grimes, Haas appeared to understand the
questions asked of him and his answers made sense. Haas also did
not appear to be under the influence of any drugs or alcohol.
Grimes left the interview room several times and sat in on the
interview of Haas' girlfriend who was also at the station talking
to another officer.
At the onset of the interview, Reeder told Haas that he
was not under arrest, that he was there of his own free will, and
that he was free to leave at any time. Haas told the police that
he was at the Mush Inn with the victims and bought a gram of
cocaine from them. Initially, Haas denied any involvement in the
shooting. However, as the interview progressed, Haas stated that
he strongly disliked the people at the Mush Inn because they were
drug dealers. He said that he disliked the individuals because
they had gotten his girlfriend "doped up." Haas began talking
with Reeder about what might happen, hypothetically, if he
admitted to being involved in the shootings. Haas indicated his
belief that "a guy would still go to jail for that." Reeder
responded that he could not say that "it would never happen" and
that he was not in a position to make any promises. He told Haas
that it was in Haas' interest to be truthful and to give his side
of the story. In response to Haas' question whether Reeder was
going to put him in jail "today," Reeder assured him, "I'm not
going to arrest you today. That is not to say you won't be
arrested." Haas then hypothetically suggested his involvement in
the homicides and asked, "[A]re you gonna take me to jail right
now . . . arrest me?" Reeder did not give him a direct answer.
Eventually, Haas admitted that he did the shooting and
stated that he was doing the police a favor because the people he
shot were "scum." After Haas made this statement, he once again
asked if he could walk out of the station and go home. Reeder
responded, "I really don't . . . know, I'm just a peon, okay?"
Reeder told Haas that his supervisors would make that decision
but that he personally had no problem with Haas leaving.
Reeder did not check with his supervisors immediately.
He encouraged Haas to give him more information about the details
of the shooting. Haas then asked if he needed a lawyer. Reeder
responded that it was up to Haas, that a lawyer would tell him
not to say anything, and that if Haas wanted a lawyer then Reeder
would stop the questioning. Reeder told Haas that although Haas
was initially told he was free to leave, Reeder would have to
check and make sure that Haas could go home.
Reeder and Haas continued talking about the gun, Haas'
girlfriend, and Haas' making a telephone call. Reeder then went
out to check if Haas' girlfriend was still at the police station.
When he returned, he stated that he had talked to the district
attorney who was at the station that morning and told Haas that
he was free to leave. Reeder explained to Haas that he was going
to get a search warrant for his house and truck. Therefore, Haas
could not return to his house or drive away in his truck,
although he was free to leave the police station. Reeder gave
Haas a pager number so that he could get in touch with the police
officers, and ended the interview.
After Haas left the station, the police obtained
warrants to search Haas' house and truck, for Haas' arrest, and
for Haas to submit to a forensic examination. The police
arranged to meet Haas at his residence and arrested him there. A
grand jury later indicted Haas for murder, attempted murder, and
robbery.
On June 21, 1991, Haas moved to suppress the statements
which he made to the police at the police station on January 8,
1991, and all of the evidence derived from those statements. In
his suppression motion, Haas contended that he was in custody at
the police station and that therefore the police were required to
give him Miranda warnings. He contended that since the police
had not given him Miranda warnings, Judge Souter was required to
suppress all of the statements which Haas made to the police and
all evidence derived from the statements. Following an
evidentiary hearing, Judge Souter denied Haas' motion. Judge
Souter concluded that Haas was not in custody when the police
questioned Haas at the police station on January 8, 1991.
The United States Constitution requires that a suspect
be advised of his fifth and sixth amendment rights before
"custodial interrogation":
By custodial interrogation, we mean questioning
initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action
in any significant way.
Miranda v. Arizona, 384 U.S. 436, 444 (1966).
The leading case in Alaska for determining whether a
person is in custody is Hunter v. State, 590 P.2d 888 (Alaska
1979), in which the supreme court articulated an objective
reasonable person standard. Under Hunter, a person is in custody
when the police say or do something "such that a reasonable
person would feel he was not free to leave and break off police
questioning." Id. at 895. The court stated:
At least three groups of facts would be relevant
to this determination. The first are those facts intrinsic to
the interrogation: when and where it occurred, how long it
lasted, how many police were present, what the officers and the
defendant said and did, the presence of actual physical restraint
on the defendant or things equivalent to actual restraint such as
drawn weapons or a guard stationed at the door, and whether the
defendant was being questioned as a suspect or as a witness.
Facts pertaining to events before the interrogation are also
relevant, especially how the defendant got to the place of
questioning -- whether he came completely on his own, in response
to a police request, or escorted by police officers. Finally,
what happened after the interrogation -- whether the defendant
left freely, was detained or arrested -- may assist the court in
deter-mining whether the defendant, as a reasonable person, would
have felt free to break off the questioning.
Id. at 895 (footnotes omitted).
Judge Souter found that Haas was not in custody when he
came to the police station. The testimony of the police
officers, which Judge Souter found credible, established that
Haas volunteered to come to the station and be interviewed. Haas
drove his own truck to the police station. At the beginning of
the interview, Investigator Reeder told Haas that he was not
under arrest and that he was free to leave at any time. Based on
this evidence, Judge Souter could properly conclude that Haas was
not in custody at that time.
However, during the course of the interview, Haas began
to broadly hint that he was the one who had committed the
homicides. While he did not at first explicitly confess to the
killings, he posed "hypothetical" situations which strongly
suggested his guilt. After Haas had made several inculpatory
statements, he asked the officer, "[A]re you gonna take me to
jail right now . . . arrest me?" Officer Reeder refused to
answer Haas directly. A few minutes later, Haas repeated his
question. This time, Reeder replied, "I really don't know. I'd
have to check . . . with my sergeant [and] with the district
attorney."
We believe that the superior court erred in determining
that a reasonable person in Haas' position would have felt free
to leave at this point. Haas was therefore in custody for
Miranda purposes. Although the police ultimately told Haas that
he was free to go, there was a substantial period of time when
Haas was subjected to custodial interrogation without being
advised of (and waiving) his Miranda rights. That portion of the
interview was obtained illegally. Judge Souter should have
suppressed all of Haas' statements from the point when Haas asked
the question, "[A]re you gonna take me to jail right now . . .
arrest me," and all fruit of these illegally obtained statements.
We therefore REMAND this case to the superior court.
Judge Souter must now determine what additional evidence, if any,
should be suppressed as the fruit of the illegally obtained
statements. After determining what evidence should be
suppressed, the superior court must decide whether Haas is
entitled to a new trial -- that is, whether the use of the
illegally seized evidence at trial amounted to harmless error
beyond a reasonable doubt. After making these determinations,
the trial court should make findings and forward them to this
court. We retain jurisdiction of this appeal.
