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THE COURT OF APPEALS OF THE STATE OF ALASKA
GEORGE E. COLE, )
) Court of Appeals No. A-5532
Appellant, ) Trial Court No. 3KN-94-019CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1481 - September 20, 1996]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Kenai, Charles K. Cranston, Judge.
Appearances: Donna J. McCready, Assistant
Public Advocate, and Brant G. McGee, Public
Advocate, Anchorage, for Appellant. Cynthia
L. Herren, 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.
George E. Cole appeals his conviction for second-degree
sexual abuse of a minor, AS 11.41.436(a)(3), contending that a
statement he gave to the police was involuntary and should have
been suppressed. We reverse.
FACTS
On October 11, 1993, Seward Police Officer Todd
McGillivray received information that Cole had sexually abused
C.C., Cole's sixteen-year-old adopted daughter. Upon being
interviewed at the police station, C.C. confirmed the report.
C.C. told McGillivray that in September of 1993 her
father (Cole) caught her smoking. Cole offered C.C. a deal: C.C.
could continue to smoke if she would let him teach her "the ways of
the Ninja." C.C. agreed to the deal. Cole told her not to discuss
the Ninja training with anyone, including her mother. At first,
the training consisted of ordinary calisthenics such as sit-ups,
leg bends, and the like. However, after the first "session," Cole
insisted that C.C. exercise in only her underwear. On October 10,
1993, Cole instructed C.C. to completely disrobe for the Ninja
training. Cole was also nude during this session; at some point,
acting on the pretext of checking C.C.'s muscular development, he
lifted up her breasts with his hands. C.C. asked Cole to stop
touching her, and he did. Cole then asked C.C. to touch him, but
she refused. The next day, C.C. reported the incident to the
mother of one of her friends, who, in turn, notified the police.
While C.C. was describing the incident to McGillivray,
Cole called the police station to report C.C. as a runaway. That
evening, Cole called again, and spoke to the police dispatcher,
saying that he had located his daughter and had heard that she was
accusing him of molesting her. The dispatcher notified
McGillivray, who asked the dispatcher to have Cole meet him at the
police station, ostensibly to file a runaway report. Cole soon
arrived at the station and met with McGillivray.
McGillivray led Cole to an interview room and informed
Cole that he was not in custody and would not be arrested. A
seventy-minute tape-recorded interrogation ensued, during which
McGillivray employed a variety of deceptive tactics: he threatened
Cole with a court-ordered polygraph, he falsely claimed that the
police had obtained incriminating evidence pursuant to an
electronic surveillance warrant, and he gave Cole repeated
assurances that the purpose of the interrogation was to get help
for Cole and/or his family.
Cole initially maintained his innocence. Eventually, he
admitted that he needed psychological help and that he had made a
"deal" to teach C.C. "the ways of the Ninja." As the interrogation
progressed, Cole admitted touching C.C. but claimed that his
conduct was innocent -- an integral part of the Ninja training.
And ultimately, he admitted that he had touched C.C. for his own
sexual pleasure.
The state introduced Cole's confession before the grand
jury, which issued an indictment charging Cole with second-degree
sexual abuse of a minor. Prior to trial, Cole filed motions to
dismiss his indictment and to suppress his confession, claiming
that the confession was involuntary. After reviewing the tape-
recorded interrogation, (EN1) Superior Court Judge Charles K.
Cranston denied Cole's motions, concluding that Cole had confessed
voluntarily. Cole's confession was admitted against him at trial,
and he was convicted of sexual abuse in the second degree.
COLE'S CLAIM OF INVOLUNTARINESS
On appeal, Cole contends, as he did below, that his
confession was involuntary. Cole claims that the circumstances
surrounding his interrogation created an atmosphere of
intimidation. More fundamentally, Cole focuses his claim on
McGillivray's deceptive interrogation techniques. Viewing these
techniques against the generally coercive backdrop of his
interrogation, Cole maintains that the totality of the circum-
stances precludes a finding of voluntariness and establishes that
the trial court erred in denying his motions to suppress and
dismiss.
THE VOLUNTARINESS REQUIREMENT
A confession is inadmissible unless it is voluntary.
Sprague v. State, 590 P.2d 410, 413 (Alaska 1979); accord Greenwald
v. Wisconsin, 390 U.S. 519 (1968); Bram v. United States, 168 U.S.
532 (1897). The state bears the burden of proving the
voluntariness of a confession by a preponderance of the evidence.
State v. Ridgely, 732 P.2d 550, 554-55 (Alaska 1987). To be
voluntary, a confession "must not be extracted by any sort of
threats or violence, nor obtained by any direct or implied
promises, however slight, nor by the exertion of any improper
influence." Sovalik v. State, 612 P.2d 1003, 1006 (Alaska 1980)
(quoting Bram, 168 U.S. at 542-43). "The [United States] Supreme
Court has consistently made clear that the test of voluntariness is
whether an examination of all the circumstances discloses that the
conduct of law enforcement was such as to overbear [the
defendant's] will to resist and bring about confessions not freely
self determined." Stobaugh v. State, 614 P.2d 767, 772 (Alaska
1980) (quoting United States v. Ferrara, 377 F.2d 16, 17 (2nd Cir.
1967)).
The United States Supreme Court has also made clear that
police coercion does not always take the form of physical beatings
or threats -- "that the blood of the accused is not the only
hallmark of an unconstitutional inquisition . . . that the
efficiency of the rack and the thumbscrew can be matched . . . by
more sophisticated modes of 'persuasion.'" Blackburn v. Alabama,
361 U.S. 199, 206 (1960).
The ultimate issue is "whether the State has obtained the
confession in a manner that comports with due process." Miller v.
Fenton, 474 U.S. 104, 110 (1985).
In psychological coercion cases, we must
consider the totality of the circumstances
involved and their effect upon the will of the
defendant. The pivotal question in each case
is whether the defendant's will was overborne
when the defendant confessed.
United States v. Miller, 984 F.2d 1028, 1031 (9th Cir. 1993)
(citations omitted).
 THE APPLICABLE STANDARD OF REVIEW
Appellate review of a trial court's finding of
voluntariness presents a mixed question of law and fact, triggering
a three-step inquiry that involves a dual standard of review:
When an appellate court reviews a trial
judge's determination of voluntariness, its
standard of review reflects the mixed factual
and legal nature of the voluntariness inquiry.
The voluntariness inquiry involves three
steps. First, the trial judge must find the
external, phenomenological facts surrounding
the confession. Second, from these external
facts, the judge must infer an internal,
psychological fact: the mental state of the
accused. Finally, the judge must assess the
legal significance of this inferred mental
state. Troyer v. State, 614 P.2d 313, 318
(Alaska 1980), quoting United States v. Brown,
557 F.2d 541, 547-8 (6th Cir. 1977).
The first step of the inquiry,
determining historical fact, is a pure
fact-finding task requiring weighing the
credibility of witnesses. Therefore, the
appellate court must defer to the trial
judge's findings of historical fact and
overturn them only if they are clearly
erroneous. However, the appellate court has a
duty to examine the entire record and make its
own independent determinations as to the
mental state of the accused and its legal
significance. These determinations are to be
based on the totality of the circumstances
surrounding the confession. Troyer, 614 P.2d
at 318.
State v. Ridgely, 732 P.2d 550, 554 (Alaska 1987); see also Johnson
v. State, 631 P.2d 508, 510-12 (Alaska App. 1981).
The present case comes to us on undisputed facts: Judge
Cranston heard no testimony and decided the voluntariness of Cole's
confession based on his review of the tape-recorded interrogation.
Because the facts are undisputed and the only questions raised on
appeal relate to the second and third steps of the voluntariness
inquiry, this court must exercise its "duty to examine the entire
record and make its own independent determinations." Ridgely, 732
P.2d at 554.
COLE'S INTERROGATION
Cole's claim of involuntariness requires us to describe
his interrogation in some detail.
As we have already stated, McGillivray met Cole at the
Seward police station on the evening of October 11, 1993, on the
pretext of taking Cole's report that C.C. had run away from home.
In actuality, McGillivray planned to interrogate Cole about C.C.'s
report that Cole had sexually touched her on October 10.
The interview began at approximately 9:30 p.m. and
continued for seventy-two minutes. At the outset, McGillivray
twice assured Cole that "no matter what we talk about here tonight,
you will not be arrested." After listening to Cole explain why he
had reported C.C. as a runaway, McGillivray assured Cole that C.C.
was safe; McGillivray said he had spoken with C.C. earlier that
night and that she was presently a ward of the state.
McGillivray then informed Cole that "we're going to talk
about . . . some accusations that she made to me," and that "this
is serious." McGillivray told Cole that "it's very important that
you're completely honest with me[.]" He explained that complete
honesty was important "because if there is a problem, whether it's
on your side or her side, our main objective is to get help for
whoever needs it and get the problem solved." McGillivray
reassured Cole that it was this desire to help that enabled him to
promise that Cole would not be arrested: "That's why I want to set
you at ease that no matter what we talk about tonight, you're free
to leave here tonight. Ok? I mean, it's very important that you
understand that." McGillivray repeated that he was motivated
solely by the desire to provide help: "Like I say, our objective is
to just, you know, we need to get help for whoever needs it. Ok?"
Cole responded, "Ok."
This explanation brought McGillivray to his formal
interrogation. He asked Cole a series of general questions about
the background circumstances C.C. had reported. Gradually,
McGillivray focused on C.C.'s report of the sexual touching itself.
Cole consistently denied knowledge and involvement in any of the
kinds of conduct C.C. had reported. McGillivray ultimately asked,
point blank, "have you ever had any sexual contact with your
daughter?" Cole responded, "No, absolutely not."
At this point, McGillivray abruptly shifted course. He
falsely told Cole that the police had been involved in
investigating C.C.'s report of abuse for "[a] week or so," that
"we've known this for awhile," and that "[t]his just isn't
something that cropped up tonight." He then began to talk about a
polygraph test, saying, again falsely, that the district attorney
had authorized the police to give Cole a polygraph examination.
(EN2) After making sure that Cole knew what a polygraph
examination was, McGillivray asked if Cole was willing to submit to
one. When Cole expressed his distrust of lie detector tests,
McGillivray falsely proclaimed that he had extensive experience
with such tests, that he had never known the tests to be
inaccurate, and that he was prepared to obtain a court order
requiring Cole to submit to polygraph questioning. (EN3)
McGillivray testified at trial that he knew he could not get such
an order. [Tr. 56] (EN4)
McGillivray made no effort to actually arrange a
polygraph test. Saying that he wanted to avoid wasting time on a
test if Cole would simply fail it, and reminding Cole that his
objective was to get help for Cole and his family as soon as
possible, McGillivray declared that he needed to know immediately
whether Cole would fail. (EN5) Cole answered that he did not think
a test would be a waste of time and that, although he was still
"scared of the machines," he was willing to take a test, "if you're
going to get a court order and all this stuff[.]"
But McGillivray immediately deflected Cole away from an
actual test and steered him into a series of hypothetical polygraph
questions about the sexual touching incident. As to each
hypothetical question, McGillivray asked Cole tell him how Cole
would respond when the polygraph examiner asked the question and
what Cole thought the polygraph machine would reveal about the
truthfulness of his answer. (EN6)
As McGillivray pressed on with the mock polygraph
interrogation, he alternated between accusations of dishonesty and
assurances that he just wanted to "get help for the right person."
(EN7) Cole steadfastly denied ever touching C.C.'s breasts or
exercising with her while she was in only her underwear.
Eventually it became clear that the mock polygraph
technique was fruitless; McGillivray turned to a new tactic by
confronting Cole with evidence that did not actually exist.
McGillivray falsely informed Cole that the police had already
obtained a "Glass" (EN8) warrant authorizing electronic monitoring
of Cole's home and that, pursuant to the warrant, they had recorded
the previous night's "exercise" session with C.C. McGillivray
demanded to know what Cole had to say in light of this revelation.
(EN9)
Cole's resistance cracked: he told McGillivray, "I need
help." He then specified that the help he needed was "mental."
McGillivray pursued this opening and pressed Cole for details,
emphasizing that the "only reason" he wanted to hear the details
was "so we know which kind of help we need to get." (EN10) But
despite persistent questioning, Cole was reluctant to reveal more.
Faced with Cole's reluctance, McGillivray insisted that
Cole would get no help unless he told McGillivray "what happened
with your daughter." (EN11) Upon hearing this, Cole acknowledged
making a deal to teach C.C. "the ways of the Ninja" but declined to
divulge what this entailed, professing a "code of silence."
Under McGillivray's persistent interrogation, however,
Cole gradually began to reveal more information. He admitted that
he had exercised with C.C. while she was nude, and had touched her
breasts.
But Cole continued to deny that sexual intercourse was
the "final goal" of the Ninja training. When asked to explain why
he had touched C.C., Cole said that it "was . . . to help her
overcome the fear of being touched." Cole also admitted that he
had told C.C. "she had the freedom" to touch him during the
sessions "if she wanted to."
Cole still insisted that this conduct was integral to
"Ninja training." McGillivray pressed for details about the Ninja
"code of silence," but Cole said he was fearful that the tape of
his interview with McGillivray would be played publicly, in "a
public courtroom, an' stuff like that." McGillivray falsely
assured Cole, "that won't happen" and that "[t]hese type of cases
are very confidential."
Upon receiving these assurances, Cole asserted that
nudity and exercising with offspring were part of Japanese custom.
But he continued to be evasive about precisely why the touching had
taken place. McGillivray, proclaiming that "I don't feel like I'm
getting the whole truth here," then resurrected the mock polygraph
technique. This quickly yielded Cole's ultimate admission -- that
he had touched C.C. for his own sexual gratification. (EN12)
THE TRIAL COURT'S RULING
In rejecting Cole's motion to suppress his confession as
involuntary, Judge Cranston found that McGillivray's references to
the polygraph test were "most probably impermissible." Neverthe-
less, the judge found nothing improper in the officer's represen-
tations that a tape-recording had been surreptitiously made
pursuant to a Glass warrant. Judge Cranston further found that it
was this latter ruse, rather than the prospect of a polygraph
examination, that caused Cole to confess. For this reason, the
judge concluded that Cole's confession was voluntary. (EN13)
THE STATE'S POSITION
On appeal, the state does not dispute Judge Cranston's
conclusion that McGillivray's references to the polygraph were
improper. The state argues, however, that Judge Cranston correctly
found that these references did not cause Cole to confess. The
state concurs with Judge Cranstonþs finding that Cole confessed
because of McGillivray's deceptive claim that the police had
surreptitiously recorded the October 10 exercise session.
According to the state, Judge Cranston properly concluded that this
ruse was permissible.
 ANALYSIS
The Polygraph Ruse
Insofar as the trial court recognized McGillivray's
polygraph tactics to be problematic, the court's ruling seems quite
sound. In Hunter v. State, 590 P.2d 888 (Alaska 1979), the supreme
court took stock of the coercive dangers arising from the interplay
between police interrogation and the polygraph, and the court
expressly warned law enforcement agencies to avoid those dangers.
(EN14) Despite these warnings, McGillivray pressed Cole to submit
to a polygraph examination without advising him that he had no
obligation to do so. To the contrary, McGillivray advised Cole
that the district attorney had authorized a test; and McGillivray
threatened that, if necessary, he would obtain a court order
requiring Cole to take one.
In actuality, the district attorney had given McGillivray
no authority to put Cole on the polygraph, and McGillivray
certainly could not have obtained a court order requiring Cole to
take a polygraph test. The issuance of such an order obviously
would have contravened Cole's privilege against self-incrimination.
McGillivray clearly overstepped permissible limits by threatening
Cole with a court-ordered polygraph, (EN15) and he strayed even
further beyond those limits by exploiting this threat through the
use of a protracted mock polygraph examination.
Causation
Although we agree with Judge Cranston that McGillivray's
polygraph ruse was, to say the least, "most probably impermis-
sible," we find other aspects of the trial court's ruling
troubling.
The trial court's finding that McGillivray's repeated
references to a polygraph test did not cause Cole to confess is
inaccurate in that it ignores the final stage of the interrogation,
when Cole expressly admitted that he had derived sexual pleasure
from touching his daughter -- perhaps his most incriminatory
admission. This admission came in direct response to McGillivray's
resumption of the mock polygraph interrogation.
Quite apart from this inaccuracy, the trial court's
ruling is unrealistic in its view that Cole's earlier admissions
resulted solely from the Glass warrant ruse, and not from
McGillivray's use of deceptive polygraph tactics. Causal
relationships seldom come so neatly packaged. For example, in the
bullring, the matador delivers the mortal wound by a quick stroke
of the blade between the bull's shoulders. But the bull is exposed
to the matadorþs sword only because a calculated series of
precisely-inflicted lesser wounds have exhausted the bullþs neck
and shoulders, causing the bull to stand vulnerable, head to the
ground. To say that the matador's sword kills the bull is
undeniably accurate; to say that the relentless and excruciating
preliminary ritual plays no part is absurd.
Just so here. When McGillivray picked up the muleta and
sword of the Glass warrant ruse, he faced a suspect already
vulnerable. Though Cole had resisted McGillivray's polygraph
deception during the early phase of the interrogation, his will had
been sorely tested, and his resolve had most certainly weakened.
Cole had accepted at face value McGillivray's threat to subject him
to a court-ordered polygraph examination if necessary. As
McGillivray shifted to the Glass warrant phase of the
interrogation, he never withdrew his earlier threat of a court-
ordered polygraph; he kept it always in the background, poised for
use as necessary. And as we have seen, McGillivray in fact
returned to the tactic and used it quite effectively to extract
Cole's ultimate admission of sexual purpose.
To assert that McGillivray's threat of a court-ordered
polygraph examination and its accompanying mock polygraph inquiry
were causally unrelated to Cole's confession is to push
compartmentalized thinking to an unjustified extreme.
The Glass Warrant Ruse
Also troubling is the trial court's conclusion that
McGillivray acted properly in telling Cole that the police had
obtained a Glass warrant and surreptitiously tape-recorded the
prior night's exercise session. In concluding that this tactic was
permissible, Judge Cranston relied on Sovalik v. State, 612 P.2d
1003 (Alaska 1980), which the state had cited for the proposition
that trickery in interrogation is inoffensive. The state continues
to rely on Sovalik, urging us to uphold the trial court's decision
because "[t]he use of these types of interview techniques
violate[s] due process only if they are likely to result in an
untruthful confession." In our view, however, the state reads too
much into Sovalik and overstates the significance of reliability as
a component of voluntariness.
In Sovalik, the defendant made incriminating statements
after he "was told, untruthfully, that his fingerprint had been
found on a bottle at the scene of the crime[.]" Id. at 1007.
After carefully reviewing the totality of the circumstances and
finding nothing else remotely coercive, the supreme court held that
"this artifice [involving the fingerprint] was not coercive and is
not one which would have a tendency to produce an untruthful
confession." Id. at 1005 (footnotes omitted).
In an accompanying footnote, the court cited Frazier v.
Cupp, 394 U.S. 731 (1969), for the proposition that "[t]rickery in
obtaining a confession is one factor to be considered in
determining whether it is voluntary." Sovalik, 612 P.2d at 1007
n.4. Citing a 1965 A.L.R. annotation, the court went on observe
that "the use of trickery does not per se render a confession
involuntary and most authorities hold that confessions produced by
trickery are admissible so long as the device employed would have
no tendency to produce an untruthful confession." Id.
The state attempts to inflate this footnote's passing
reference to the A.L.R. annotation as the current state of Alaska
law. But the supreme court's holding in Sovalik is actually
somewhat narrower, for the text of the opinion states that the
trickery in Sovalik's case was inoffensive, not only because it was
unlikely to cause an unreliable confession, but also because it was
not coercive: "this artifice was not coercive and is not one that
would tend to produce an untruthful confession." Id. at 1007
(emphasis added) (footnote omitted). (EN16)
The focus in Sovalik on coerciveness as an important
factor in determining the permissibility of the deceptive interro-
gation technique comports with the prevailing view. See generally
Wayne R. LaFave & Jerold H. Israel Criminal Procedure sec.6.2(c),
at 446-48 (1984); Welsh S. White Police Trickery in Inducing
Confessions, 127 U. Pa. L. Rev. 581 (1979). This focus on
coerciveness also comports with the basic due process values
reflected in the voluntariness requirement itself.
"[A] complex of values underlies the stricture against
use by the state of confessions which, by way of convenient
shorthand, this Court terms involuntary[.]" Blackburn v. Alabama,
361 U.S. 199, 206 (1960). "While it is fair to say that ensuring
the reliability of confessions is a goal under the due process
voluntariness standard, it is incorrect to define the standard in
terms of that one objective." LaFave & Israel, supra, at 442
(emphasis in original).
Indeed, the goal of ensuring reliability appears to be
secondary to others. (EN17) Speaking of the Due Process Clause of
the Fourteenth Amendment, the United States Supreme Court has said:
"The aim of the requirement of due process is not to exclude
presumptively false evidence, but to prevent fundamental unfairness
in the use of evidence whether true or false." Lisenba v.
California, 314 U.S. 219, 236 (1941). The Court has recognized
that "[t]he use of coerced confessions, whether true or false, is
forbidden because the method used to extract them offends
constitutional principles." Lego v. Twomey, 404 U.S. 477, 485
(1972). And it has emphasized that "ours is an accusatorial and
not an inquisitorial system - a system in which the State . . . may
not by coercion prove its charge against an accused out of his own
mouth." Rogers v. Richmond, 365 U.S. 534, 541 (1961).
More recently, the Court has found:
The locus of the [voluntariness] right [in the
Due Process Clause of the Fourteenth
Amendment] is significant because it reflects
the Court's consistently held view that the
admissibility of a confession turns as much on
whether the techniques for extracting the
statements, as applied to this suspect, are
compatible with a system that presumes
innocence and assures that a conviction will
not be secured by inquisitorial means as on
whether the defendant's will was in fact
overborne.
Miller v. Fenton, 474 U.S. 104, 116 (1985). (EN18)
These precedents make it clear for the present case that
the propriety of McGillivray's deceptive claim concerning evidence
obtained pursuant to a Glass warrant must be measured, not by its
tendency to produce an unreliable confession, but in broader terms
of its potential for coerciveness in light of the totality of the
circumstances. Only by applying this broader measure can we
determine whether this technique, as applied to Cole, was
"compatible with a system that presumes innocence and assures that
a conviction will not be secured by inquisitorial means[.]"
Miller, 474 U.S. at 116.
As noted in Sovalik and confirmed by LaFave, courts
generally find that misrepresenting the existing strength of the
state's case will not itself render a confession involuntary. See
Sovalik v. State, 612 P.2d 1003, 1007 (Alaska 1980); LaFave &
Israel, supra, at 446. But McGillivray's Glass warrant deception
involves elements that go beyond mere misrepresentation as to
strength. The warrant requirement adopted in State v. Glass, 583
P.2d 872 (Alaska 1978), reflects the Alaska Supreme Court's
recognition that surreptitious electronic monitoring constitutes a
significant invasion of personal privacy; here, McGillivray's
deception involved a fictitious intrusion into the privacy of
Cole's home.
The breach of privacy that would have been necessary to
obtain a surreptitious tape-recording of the October 10 exercise
session and the purported involvement of a judicial officer in that
breach arguably added a dimension of coerciveness to the
misrepresentations in Cole's case. Already facing the prospect of
a court-ordered, district-attorney-authorized lie detector test
arranged by a police officer who had repeatedly accused him of
lying, and now confronted with new revelations that a judge had
sanctioned a surreptitious intrusion into his privacy, which
supposedly yielded an incriminating tape-recording, Cole might
justifiably have felt that the forces of government were squarely
aligned against him and that any further effort to remain silent
would be futile.
The Benign Investigative Purpose Ruse
We need not decide whether the Glass warrant deception,
standing alone, would have been impermissible. Because the
totality of the circumstances are to be considered in determining
the voluntariness of Cole's confession, the propriety of
McGillivray's reliance on the Glass warrant tactic cannot be
determined in the abstract, but must instead be decided in light of
other coercive elements of Cole's interrogation. Principal among
these are the polygraph threat and McGillivray's repeated
assurances that the purpose of the interrogation was to get needed
help for Cole and/or his family. We have already discussed at
length the polygraph ruse and its interplay with the Glass warrant
deception. McGillivray's assurances of a benign investigative
purpose remain to be considered. (EN19)
Despite strong language to the contrary in early Supreme
Court decisions like Bram v. United States, 168 U.S. 532 (1897),
(EN20) it is now well established that the Constitution does not
altogether forbid the police from making promises or offering
inducements to a suspect under interrogation. Ordinarily, promises
and inducements are "not improper as long as, under the totality of
the circumstances, the defendant's confession is voluntary."
Harris v. State, 678 P.2d 397, 405-06 (Alaska App. 1984), rev'd on
other grounds sub nom., Stephan v. State, 711 P.2d 1156 (Alaska
1985); see also Stobaugh v. State, 614 P.2d 767, 772 (Alaska 1980)
(rejecting a per se rule which would condemn any incriminating
statement obtained by means of a promissory inducement). Thus, the
fact that an interrogator is sympathetic or friendly toward a
defendant, or professes a general desire to help, does not in
itself render a subsequent confession involuntary. See, e.g.,
Thompson v. State, 768 P.2d 127, 131-32 (Alaska App. 1989); Chase
v. State, 678 P.2d 1347, 1355 (Alaska App. 1984).
Some promises and inducements, however, have been held
inherently coercive and deemed per se improper. For example,
promises of immunity are generally forbidden, Smith v. State, 787
P.2d 1038, 1039 (Alaska App. 1990), as are inducements forcing a
suspect to choose between the right to silence and other
significant rights or benefits, see, e.g., Webb v. State, 756 P.2d
293, 297 (Alaska 1988) (finding per se invalid a Miranda waiver
elicited by a police officer's threat to retain the defendant's
driver's license unless the defendant spoke).
A large gray area of uncertainty separates the clearly
permissible inducement, such as an interrogating officer's
expression of a generalized desire to help a suspect, and a clearly
impermissible inducement, such as a promise of immunity. Within
this gap, "the cases go both ways[.]" LaFave & Israel, supra, at
at 446.
For the most part, McGillivray's repeated assurances that
his only purpose was to make sure that Cole got help seem to fall
somewhere within the gray area, arguably landing closer to the
impermissible than the permissible boundary. McGillivray did not
merely express a general interest in helping Cole; he professed
that this was the exclusive goal of the interrogation and that he
needed to hear from Cole to determine precisely what kind of help
to arrange: "The only reason I do that is just, I wanna hear it
from you, . . . so we know which kind a help we need to get."
At two points, however, McGillivray's assurances crossed
into clearly impermissible territory. After Cole acknowledged, "I
need help," he seemed reluctant to reveal any further details.
Responding to Cole's reluctance, McGillivray twice insisted that
Cole would have to reveal the details of his conduct before he
would be helped: "[W]e need to get to the truth so that we can get
it [Cole's problem] corrected." "[Y]ou've told me that you needed
help and I'd like to see you get the right help. And, but for you
to do that, I need you to tell me what happened with your
daughter[.]" By making these statements, McGillivray in effect
told Cole that the psychological help Cole had requested would be
withheld unless and until Cole confessed.
When viewed in light of these emphatic declarations that
Cole would not be helped unless he cooperated fully, McGillivray's
earlier assurances that his sole purpose was to get Cole help
became unmistakably coercive. A review of the interrogation as a
whole leaves the indelible impression that, by unrelentingly
combining these false assurances with the other deceptions we have
already discussed, McGillivray managed to achieve a synergistic
effect -- one that yielded an overall level of coerciveness
dramatically surpassing the sum of its component parts.
SUMMARY AND CONCLUSION
Cole had no prior experience in the criminal justice
system when he was questioned by McGillivray and does not appear to
have been particularly sophisticated. Although his interrogation
was not unusually lengthy, it was conducted at the station house,
in a confined and evidently somewhat uncomfortable setting. Cole
was alone with McGillivray; the prevailing atmosphere was certainly
police-dominated. While Cole was repeatedly advised that he would
not be arrested, this advice was tempered by McGillivray's threat
to obtain a court order requiring Cole to submit to a polygraph
test. Throughout the interrogation, Cole was subjected to an
unrelenting and constantly shifting array of deceptive tactics --
the threat of a court-ordered polygraph test, mock polygraph
questioning, false claims of a surreptitious recording obtained
pursuant to an electronic surveillance warrant, and repeated
assurances that McGillivray's only interest was in helping Cole and
his family. Cole was twice told that he could obtain help only if
he confessed fully.
The totality of these circumstances convinces us that
Cole's confession was obtained "by . . . psychological coercion or
by improper inducement so that [Cole's] will was overborne."
United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988)
(citing Haynes v. Washington, 373 U.S. 503, 513-14 (1963)). No
civilized person can condone sexual assault of children; it is a
problem of seemingly epidemic proportions in contemporary society -
- a problem that cries out for solution. But surely the solution
does not lie, and just as surely under time-honored American legal
tradition it cannot lie, in the use of blatantly coercive
interrogation techniques to extract confessions from suspected
offenders. We hold that the confession was involuntary and that
the trial court erred in denying Cole's motions to suppress his
confession and dismiss his indictment. (EN21)
The conviction is REVERSED.
ENDNOTES:
1. Neither Cole nor the state requested an evidentiary hearing,
and Judge Cranston denied Cole's request for oral argument on the
suppression motion. Apart from the transcript of the
interrogation, the only documentary evidence appended to the
pleadings submitted by the parties in connection with the
suppression motion was a computer printout confirming Cole's claim
that he had no prior exposure to the criminal justice system. The
state did not dispute that claim.
2. (OM): Uh, I've talked to the District Attorney on it.
Uh, one thing that we do have at our disposal that, that
they're to spend the money on and that is, that is real
helpful to both you and me . . . is what they call a
polygraph examination.
3. (OM): Ok. Would you be willing to take a polygraph
examination [in] reference to these allegations?
(GC): Um I, I don't know at this time. I
don't . . .
(OM): And why would that be?
(GC): I, I'm scared of them.
(OM): Why is that?
(GC): I don't know. I've seen so many things
on TV where [they] had these lie detectors
. . .
(OM): Well . . . I'll tell you right now
. . . I've dealt with polygraphs a lot over
the last couple of years. Ok . . . I find
them to be very helpful and very accurate.
Ok. I've never had one false positive and
I've never had one negative. Ok. And I've
had a lot of people through polygraphs . . .
if you know going in that you're going to pass
the polygraph, you will pass the polygraph.
(GC): Yeah.
(OM): Ok. If there is nothing there. If not
I need to know about it now. Ok?
(GC): Ok. What will happen[?]
(OM): Because we will, we will do a
polygraph. Ok?
(GC): By a court order?
(OM): Well if I have to.

4.

5. (OM): . . . What I need to know is whether or not it
will be . . . a waste of my time.
(GC): What do you mean a waste of your time?
(OM): Well, if, if you know going in there
that you're going to fail this polygraph. I
need to know about [it] now. Ok? That's what
I'm talking about. And I would rather us for
the sake of your daughter and for the sake of
you and your family, get this problem worked
[out] tonight if we have a problem. You know,
if we need to get some help in the family,
that's what we need to do tonight because
personally I think there's a problem at home.
(GC): Ok.
(OM): And I think a polygraph right now would
be a waste of my time.
(GC): Ok.
(OM): Ok? . . . I mean, do you agree with me
there?
6. For example:
(OM): . . . One of the questions is going to
be: have you ever exercised with your daughter
while she's been in her underwear?
(GC): Ok.
(OM): How would you answer that question?
(GC): Uh, I, uh, given a statement and I,
I'm confused.
(OM): Well I'm not trying to confuse you,
sir. I'm, I'm trying to . . .
(GC): You're trying, you're trying to say
that, that I did this.
(OM): Well, I'm tryinþ to find out whether
you did or you didn't[.]
. . . .
(OM): [H]ow do you think the polygraph would
say?
(GC): I don't know. Because I'm scared of
'em.
(OM): Okay, well, in your own mind, how would
you say the polygraph would say that (both
talking)
(GC): I don't, I don't want to speculate.
Please? I really don't want to speculate,
because, I don't know what that machine w'
say.
(OM): Well, if you're truthful, the machine
would say you're truthful. If you're not, the
machine's gonna say that you're not truthful,
that you're being deceptive.
(GC): Okay.
(OM): If a polygraph examiner ever asked you
if you've ever touched your daughter's breast,
how would you answer that question?
(GC): No! My God! What is going on here?
(OM): What do you think the polygraph would
say when you answered that question?
(GC): I, again, I don't know.
(OM): Well, Mr. Cole, I, I'm gonna answer
those questions for you.
(GC): Okay.
(OM): Okay? On the answer to both those
questions, I think you would fail the
polygraph.
7. McGillivray also suggested that confessing would make things
easier on Cole and that failure to confess might be held against
him:
(OM): . . . it's just gonna be easier on the
both of us, and I think would look better for
you too, if you were truthful with me.
Because I will get to the truth. And if I
have to go digging to get to the truth, and I
do find out that, you know, you weren't
telling me everything that you could have
tonight, it's not gonna look real good. Can
you understand that? Don't you think that it
would look better if you were honest with me
from the get go then . . .
(GC): But I have been honest with you from
the get go! Why, why . . .
(OM): Are you sure?
(GC): Yes, I'm sure.
8. State v. Glass, 583 P.2d 872 (Alaska 1978) (requiring, under
the Alaska Constitution, that the police obtain a warrant before
engaging in surreptitious electronic monitoring or recording of
conversations without the consent of both parties).
9. (OM): . . . If, if I told you that your daughter came to
me with this days ago, what would you say?
(GC): I don't know. I'm just shocked. I'm
surprised.
(OM): What would you say if I had a Glass
warrant.
(GC): A what?
(OM): W', a Glass warrant, which is an
electronic surveillance warrant, which means I
can record another person's conversations,
without them knowing it.
(GC): Uh huh.
(OM): What would you say if I had one of
those in my possession right now? To record
the conversations of you?
(GC): Do you?
(OM): Now do you think I would bring it up if
I didn't?
(GC): I don't know. I'm just asking.
(OM): And what would you say if I had this
electronic surveillance device in your home
last night when you and your daughter
exercised?
(GC): Did you?
(OM): Would I know about it if I didn't?
Last night she wasn't even wearing clothes.
Because you changed the deal on her. 
10. 9. (OM): What kind of help?
(GC): Mental.
(OM): You agree with me then?
(GC): Yes.
(OM): Why don't you tell me the problem that
we've got goin' at home? The only reason I do
that is just, I wanna hear it from you, an' I
wanna know your side of the story so we know
which kind a help we need to get.
11. (GC): I need psychological help.
(OM): And why is that?
(GC): I should never have put my daughter
through (inaudible). Itþs not right.
(OM): Tell me about it.
(GC): I don't know what to say.
(OM): Tell me what happened a month and a
half ago when you caught her smoking.
(GC): I'll remember the best that I can.
(OM): Tell me about the deal that you made
with her. And I know this is hard, George. I
mean, I understand, an' that's why I'm here,
is, you know, like I say, we need to get to
the truth so that we can get it corrected.
Okay.
(GC): I just. I need help.
(OM): But to do that, you need to tell me
what happened.
(GC): (sighs) Uh.
(OM): Okay, George.
(GC): I, I need help.
. . . . [interruption as tape changed]
(OM): . . . Uh, e', George, you were just,
you know, like I was telling you before, I
need, I need you to tell me what happened.
An' I know it's tough, anþ I know it's hard,
and you know, you've told me that you needed
help and I'd like to see you get the help.
And, but for you to do that, I need you to
tell me what happened with your daughter,
[C.C.]. An' uh, did you make a deal with her
that day when you caught her smoking?
12. (OM): Why do you feel you have to make a deal with her
to get her to do this.
(GC): I don't know.
(OM): Are you sure you don't know.
(GC): Unless I . . .
(OM): I wish . . .
(GC): Unless, unless . . .
(OM): I wish that you'd get back, again I'll
go back to the polygraph.
(GC): Uh huh.
(OM): Okay. If a polygraph operator asked
you which we may still do.
(GC): Okay.
(OM): Because I don't feel like I'm getting
the whole truth here.
(GC): Okay.
. . . .
(OM): Alright, just let me finish, if a
polygraph operator asked you, when you made
the deal with [C.C.] for her to partake in
this type of training. Was it for Ninja
purposes or your own personal pleasure. How
would you answer that?
(GC): I'll probably truthfully have to say my
own personal pleasure.
(OM): So in reality the training had nothing
to do with all of this.
(Inaudible -- both speaking.)
(OM): Right.
(GC): Yeah cos I probably used that as an
excuse.
13. In relevant part, the superior court's order stated:
The court recognizes that the statements made
by the officer regarding the polygraph are
most probably impermissible and had the
confession flowed from the threat of the
polygraph, the court would have to suppress
the statements. However, the statements re-
garding the Glass warrant do not make the
confession involuntary and the court finds it
is this portion of the interview which led to
the defendant's confession. Thus, while there
may have been some exertion of improper
influence, the confession did not result from
that exertion.
Viewing the totality of the circumstances,
including the defendant's age, mentality,
frequency of the interrogation, the existence
of threat and inducement, and the defendant's
lack of a criminal history, the defendant's
Motion to Suppress and Dismiss Indictment IS
HEREBY DENIED. (Footnote omitted.)
14. Specifically, the court stated:
We also believe that a considerable amount of
litigation and the necessity of ruling some
confessions inadmissible may be avoided if the
police give warnings in all cases before
administering polygraph tests. We think that
good practice dictates that police
specifically inform suspects of their rights
"to refuse to take the [lie detector] test, to
discontinue it at any point, and to decline to
answer any individual questions." United
States v. Little Bear, 583 F.2d 411, 414 (8th
Cir. 1978). We also take this occasion to
recommend to the police that full Miranda
warnings be given in any case where it is
doubtful whether the suspect taking the lie
detector test is in custody.
Hunter, 509 P.2d at 901.
15. See, e.g., Wayne R. LaFave & Jerold H. Israel Criminal
Procedure sec. 6.2, at 447 (1984) (observing that, while courts
generally allow interrogating officers some latitude for trickery
concerning the strength of the evidence, "[c]ourts are much less
likely to tolerate misrepresentations of law."). Cf. Wayne R.
LaFave Search and Seizure sec. 8.2(c), at 653 (1996) ("[I]t may
generally be said that a threat to obtain a search warrant is
likely to be held to invalidate a subsequent consent if there were
not then grounds upon which a warrant could issue[.]").
16. In Carr v. State, 840 P.2d 1000 (Alaska App. 1992), this court
followed the lead set in the text of Sovalik, finding that
"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." Carr, 840 P.2d at 1004 n.1.
The state cites Marcy v. State, 823 P.2d 660 (Alaska App. 1991), in
support of its contention that trickery of the kind involved in
this case is permissible unless likely to result in an untruthful
confession. But in Marcy we merely set out, verbatim, the text and
footnote of the supreme court's decision in Sovalik; we made no
effort to interpret their meaning.
17. See, e.g., United States v. Tingle, 658 F.2d 1332, 1334-35
(9th Cir. 1981) (internal citations omitted):
The reasons for excluding a coerced
confession were explained fully by the Court
in Jackson [v. Denno, 378 U.S. 368 (1964)].
First, confessions obtained in a coercive
manner are likely to be unreliable. More
important, involuntary confessions are
forbidden
because of the "strongly felt atti-
tude of our society that important
human values are sacrificed where an
agency of the government, in the
course of securing a conviction,
wrings a confession out of an
accused against his will," and
because of "the deep-rooted feeling
that the police must obey the law
while enforcing the law; that in the
end life and liberty can be as much
endangered from illegal methods used
to convict those thought to be
criminals as from the actual
criminals themselves."
18. Notably, one year after Miller, in Colorado v. Connelly, 479
U.S. 157, 167 (1986), the Court appears to have questioned whether
ensuring reliability is in itself a constitutionally significant
consideration: "A statement rendered by one in the condition of
respondent might be proved to be quite unreliable, but this is a
matter to be governed by the evidentiary laws of the forum . . .
and not by the Due Process Clause of the Fourteenth Amendment."
19. In the trial court, Cole did not claim that it was improper
for McGillivray to give repeated assurances that his only purpose
was to get help for Cole and his family. Cole develops this aspect
of his involuntariness claim for the first time on appeal. The
state correctly refrains from arguing that Cole's failure to raise
the point below precludes him from arguing it here. As the supreme
court observed, a defendant "need not have expressly presented
every theory supporting an argument before the trial court, but can
expand or refine details of an argument otherwise preserved on
appeal." Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280
(Alaska 1985) (citing Deal v. State, 626 P.2d 1073, 1077 (Alaska
1980)). A party on appeal is free to expand points raised in the
trial court if the expanded points "1) do not depend on new or
controverted facts; 2) are closely related to the appellant's
arguments at trial; and 3) could have been gleaned from the
pleadings." Arnett v. Baskous, 856 P.2d 790, 791 n.1 (Alaska 1993)
(citing O'Callaghan v. State, 826 P.2d 1132, 1133 n.1 (Alaska
1992)). Cole's argument that McGillivray's repeated assurances of
a benign interrogative purpose had a coercive impact on the
interrogation readily meets these three criteria. Cole's argument
is inherently related to his general claim of involuntariness -- a
claim that he clearly asserted below. Particularly because the
trial court was required to determine the voluntariness of Cole's
confession based on the totality of the circumstances surrounding
the interrogation, Sprague v. State, 590 P.2d 410, 414 (Alaska
1979), Cole's argument concerning the coercive aspect of
McGillivray's assurances "is a permissible expansion of the general
argument raised below." Deal, 626 P.2d at 1078.
20. Bram held that a confession "must not be extracted by any sort
of threats or violence, nor obtained by any direct or implied
promises, however slight, nor by the exertion of improper
influence." Bram, 168 U.S. at 542; see also Sovalik v. State, 612
P.2d 1003, 1006 (Alaska 1980) (quoting Bram).
21. The state advances a perfunctory argument that admission of
Cole's confession before the grand jury and at trial amounted to
harmless error. In Arizona v. Fulminante, 499 U.S. 279 (1991), the
United States Supreme Court for the first time held the harmless
error doctrine applicable, under the federal constitution, to a
conviction in which an involuntary confession was introduced
against the accused. Alaska appellate courts have not considered
whether the harmless error doctrine would apply to such cases as a
matter of state constitutional law. We need not do so here. "A
defendant's confession is probably the most probative and damaging
evidence that can be admitted against him[.]" Id. at 292 (Justice
White, dissenting) (internal quotations and citations omitted).
Assuming the harmless error doctrine applies, we are not persuaded
that admission of Cole's confession at trial was harmless beyond a
reasonable doubt. See Chapman v. California, 386 U.S. 18 (1967).
Nor do we find it likely that the confession did not "have . . . an
overriding influence on the [grand] jury's decision." See Boggess
v. State, 783 P.2d 1173, 1176 (Alaska App. 1989). The error here
was not harmless, either in the grand jury setting or at trial.
