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THE COURT OF APPEALS OF THE STATE OF ALASKA
ROBERT D. EWERS, )
) Court of Appeals No. A-3547
Appellant, ) Trial Court No. 1KE-S88-291CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1453 - January 19, 1996]
Appellee. )
______________________________)
Appeal from the Superior Court, First
Judicial District, Sitka, Thomas E. Schulz,
Judge.
Appearances: James W. McGowan, Sitka,
for Appellant. James L. Hanley, 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.
BRYNER, Chief Judge.
After a bench trial conducted before Superior Court
Judge Thomas E. Schulz, Robert D. Ewers was convicted in May 1990
of misconduct involving weapons in the first degree (knowing
possession of a concealable weapon by a felon). AS 11.61.200
(a)(1). Ewers appealed, but fled the state shortly thereafter;
this court dismissed his appeal in October 1990. Almost two and
one-half years later, in February 1993, Ewers was arrested out of
state and extradited to Alaska. Upon returning, he petitioned
this court to reinstate his appeal. We ordered the appeal
reinstated. We now affirm.1
In March 1988, Gerald O. Gwillim contacted Alaska State
Trooper Richard Roberts. Gwillim said that in August of the
previous year, Ewers had given Gwillim a Smith and Wesson pistol
to keep for him, because, as a felon, Ewers was not allowed to
have a concealable firearm. Gwillim turned the gun over to
Roberts.
Upon receiving the gun from Gwillim, Roberts performed
a records check and learned that it had been reported stolen the
previous summer. He then decided to take the gun to Ewers, who
was living aboard a fishing boat. Sometime around midnight,
Roberts went to the boat. He was in uniform. Roberts described
the encounter as follows:
I went on the boat and knocked
on the door to the boat. It was
dark inside. I waited for a minute
or so, but no one answered. I then
opened the door about 3-4 inches
and asked if anyone was there. I
saw a man, who was awakened in a
bunk near the door, and he said
"yeah." I identified myself as a
State Trooper and said that I need
to talk. He turned on a light. .
. . I said that I needed to talk
to Bob Ewers. He called "Bob" and
I heard a response of "yeah." The
man in the bunk then said something
like "someone here to see you,
State Trooper." I stepped into the
door way.
The Defendant [Ewers] came up
out of the bow of the boat. He
says "yeah, what's up." I asked
the Defendant if I could step in
out of the weather. I said that
Mr. Gwillim had property he wished
returned to the Defendant but Mr.
Gwillim did not want to face the
Defendant personally. I also
advised the Defendant that I was
responsible for his arrest in
Anchorage the year before and that
I had a handgun to return to the
Defendant if it belonged to him.
The Defendant said, "Yeah, come
in," and asked me if I wanted
coffee. I declined the offer for
coffee. The galley is located near
the door I had just entered, and so
the Defendant turned a light on
over the table. He asked me to sit
at the table, and so the Defendant
and I then sat down.
Without reading Ewers his Miranda rights, Roberts
proceeded to converse with him about the gun. During the
conversation, Ewers admitted he had bought the gun the previous
summer, and had left it with Gwillim. Following this admission,
Roberts arrested Ewers for being a felon in possession of a
concealable firearm and for theft (for receiving the stolen gun).
Before trial, Ewers moved to suppress the statements he
made on the boat. Ewers argued that Roberts' warrantless entry
of the boat violated the Fourth Amendment and that the officer's
failure to read him the Miranda warnings violated the Fifth
Amendment. Judge Schulz rejected both arguments. As to the
Fourth Amendment claim, Judge Schulz concluded that, even if
Roberts' warrantless entry of the boat was unlawful, the
illegality "was cured when Ewers came up from the fo'c'sle and
either at the table or by the back door invited the officer to
sit down and have a cup of coffee and talked to him." As to the
Fifth Amendment claim, the judge found that Ewers was not in
custody when Roberts questioned him on the boat.
The judge subsequently found Ewers guilty on the felon
in possession charge; the state dismissed the theft charge. On
appeal, Ewers renews the unlawful search and Miranda arguments he
raised below. Neither argument requires extensive discussion.
For purposes of deciding Ewers' Fourth Amendment claim,
we assume, as seems to be the case, that Roberts' initial
warrantless entry of the boat was unlawful. See, e.g., Milton v.
State, 879 P.2d 1031, 1034 (Alaska App. 1994) ("[A] warrantless
entry by police into a person's house is per se unreasonable and
violative of the state and federal constitutions unless it falls
within one of the limited exceptions to the warrant requirement."
(citing Harrison v. State, 860 P.2d 1280, 1283 (Alaska App.
1993))). Evidence Roberts obtained as a result of his unlawful
entry would thus be inadmissible unless it fell under an
exception to the warrant requirement. See Milton, 879 P.2d at
1034.
Here, however, the record supports the conclusion that
Ewers' statements were not the fruits of Roberts' unlawful entry.
As Judge Schulz correctly recognized, the taint of an unlawful
entry may be dissipated by a subsequent, voluntary consent. As
the Alaska Supreme Court said in Robinson v. State, 578 P.2d 141,
144 (Alaska 1978)(footnote omitted), "there are circumstances in
which an authorized person's valid consent to police presence
could supersede an initial" illegal entry.
In the present case, Judge Schulz found that, after
Roberts' initial unauthorized entry, Ewers expressly agreed to
speak with Roberts and invited the officer to be seated and have
some coffee. The trial court's factual findings are reversible
only for clear error. Fox v. State, 825 P.2d 938, 939 (Alaska
App. 1992) (citing State v. Bianchi, 761 P.2d 127, 129 (Alaska
App. 1988)). This finding is not clearly erroneous.
Judge Schulz's factual finding supports his conclusion
that Ewers' consent to Roberts' presence aboard the vessel was
freely and voluntarily given. We find nothing in the record
suggesting that Roberts' initial unauthorized entry had any
impact on the voluntariness of Ewers' subsequent consent --
indeed, when he invited Officer Roberts to sit down and have a
cup of coffee, Ewers appears to have had no way of even knowing
how the officer had come aboard. Given these circumstances,
Judge Schulz properly found that, assuming an unlawful entry by
Roberts, Ewers' statements were in no meaningful sense the
product of the illegality.
We next consider Ewers' Miranda argument. Miranda
warnings are required only when questioning is custodial -- that
is, only when "police actions would lead a reasonable defendant
to believe that he would not be allowed to leave or otherwise
terminate the police contact." G.R. v. State, 638 P.2d 191, 198
(Alaska App. 1981) (citing Hunter v. State, 590 P.2d 888, 895
(Alaska 1979)). Here, Judge Schulz was aware of the proper
standard and of the factors relevant to a determination of
custody, as set forth in Hunter. After considering the totality
of the evidence, the judge found that Ewers was not in custody
when interviewed aboard his vessel. Our independent review of
the record convinces us that the trial court correctly determined
that the interview was noncustodial and that Miranda warnings
were accordingly not required. Cf. G.R. v. State, 638 P.2d at
198; Doyle v. State, 633 P.2d 306, 309-10 (Alaska App. 1981).
The judgment is AFFIRMED.
_______________________________
1. Our order reinstating Ewers' appeal was entered in accordance with White v.
State, 514 P.2d 814 (Alaska 1973). There, White absconded from custody
following his sentencing; his appeal was dismissed. The supreme court
reinstated the appeal after White was returned to custody. Id. at 814-15.
In so doing, the court held that the right to a criminal appeal can be lost
only through knowing and voluntary waiver clearly established by the state,
and cannot be forfeited. Id. at 815. The court further found that, absent
a showing of prejudice to the state, the existence of potentially
meritorious grounds for appeal amounted to good cause for reinstatement.
Id. at 816.
While acknowledging that White requires reinstatement of Ewers' right to
appeal his conviction, the state urges us not to reach the merits of Ewers'
claims, since they involve only the exclusionary rule and do not go to the
fairness of Ewers' conviction. Given the straightforward nature of Ewers'
case, Judges Coats and Mannheimer prefer to decide this case on its merits;
they express no view on the state's procedural argument. For the following
reason, however, the author of this decision would affirm without deciding
the merits.
Implicit in the supreme court's disposition in White is its recognition
that the accused may suffer substantial prejudice from an appellate court's
refusal to review potentially meritorious claims implicating the fairness
of a conviction or sentence. But absent exceptional circumstances, claims
such as the ones Ewers asserts here -- search and seizure arguments and
purported Miranda violations -- implicate neither the fairness of a
conviction nor the fairness of a sentence. An appellate court's refusal to
decide the merits of such claims based on a procedural default ordinarily
poses no danger of substantial prejudice to the accused. Cf. Moreau v.
State, 588 P.2d 275, 279-80 (Alaska 1978). Thus, in an appeal reinstated,
pursuant to White, solely on the basis of potentially meritorious issues
and an apparent absence of prejudice to the state, review on the merits
should ordinarily be denied as to claims involving the exclusionary rule
that have no bearing on the fairness of the conviction or sentence.
