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THE COURT OF APPEALS OF THE STATE OF ALASKA
MANFRIED F. WEST, )
) Court of Appeals No. A-5787
Appellant, ) Trial Court No. 4FA-S94-1649CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1482 - September 20, 1996]
Appellee. )
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Jay Hodges and Ralph R.
Beistline, Judges.
Appearances: Bethany P. Spalding, Assistant
Public Defender, Fairbanks, and John B. Salemi,
Public Defender, Anchorage, for Appellant.
James P. Doogan, Assistant District Attorney,
Harry L. Davis, District Attorney, Fairbanks,
and Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Manfried F. ("Fred") West was convicted by a jury of arson
in the second degree, AS 11.46.410, and unlawful evasion in the
first degree, AS 11.56.340. On appeal, West claims that the
superior court erred in failing to suppress certain statements he
made to the police shortly before his arrest, in refusing to sever
the two charges against him, in declining to change his trial venue
from Fairbanks, and in admitting evidence of other acts of
misconduct by him. We affirm.
On the night of May 19, 1994, West was involuntarily
discharged from the Regional Center For Alcohol and Other Addictions
(RCAOA), a Fairbanks treatment program in which West had been
allowed to reside and participate pending sentencing on a forgery
charge for which he had recently been convicted and pending
execution of a sentence recently imposed upon revocation of West's
probation for an earlier burglary conviction. As a condition of his
pre-sentence release to RCAOA, West had been directed to report to
jail -- the Fairbanks Correctional Center (FCC) -- in the event his
participation in RCAOA terminated for any reason. West contacted
FCC and was told to call back in the morning, when staff members
would have access to his file. (EN1)
West failed to contact or report to FCC the following day.
Instead, he went to a cabin outside Fairbanks that belonged to his
brother, where he remained secluded until the Alaska State Troopers
learned of his whereabouts more than a week later, on May 27. The
troopers, seeking to arrest West for unlawful evasion, surrounded
his cabin; they then established telephone contact with him and
advised him to surrender. West refused, stated that he was armed,
and threatened to blow up the cabin.
For three and one-half hours, Trooper Sergeant James
McCann spoke to West on the telephone, attempting to negotiate
West's surrender. West refused to come out, alternating between
threats to blow the cabin up and attempts to negotiate favorable
terms of surrender with McCann. During these negotiations, West
told McCann that he (West) had shot and killed Joe Vogler; (EN2)
West offered to tell McCann where Vogler's body was buried.
Ultimately, however, the negotiations proved fruitless.
West terminated the telephone conversation, telling McCann: "It's
all over bud . . . this place is gonna blow . . . the best you could
do . . . is get the hell outa here . . . the dynamite is in the
living room." Smoke and flames soon engulfed the cabin.
Firefighters, fearing the presence of weapons and explosives, were
forced to stand by until the cabin had nearly burned to the ground.
After the fire was extinguished, troopers searched the remains of
the cabin and found West in a protected area of the foundation.
West was not seriously injured and was booked into FCC. He was
eventually charged with second-degree arson and first-degree
unlawful evasion.
Prior to trial, West moved to suppress the statements he
made to McCann during their telephone negotiations. West argued
that his conversation with McCann amounted to custodial
interrogation and that he therefore should have been informed of his
Miranda (EN3) rights. West also argued that McCann's failure to
contact West's counsel before conversing with West amounted to a
violation of West's constitutional right to counsel. (EN4) The
superior court denied West's suppression motion.
West renews these arguments on appeal. Both arguments
lack merit.
Although West's Miranda claim presents a question of first
impression in Alaska, the issue has frequently been considered by
courts in other jurisdictions. For reasons that seem sound upon
reflection, these courts unanimously conclude that custodial
interrogation requiring Miranda warnings does not occur when police
communicate with a barricaded suspect who holds them at bay. (EN5)
The superior court expressly relied on this line of cases in
rejecting West's Miranda argument. On appeal, West fails to
distinguish, or even mention, these cases, and he cites no contrary
authority. We find these cases persuasive and uphold the superior
court's conclusion that West was not subjected to custodial
interrogation.
West's right-to-counsel argument is equally groundless.
The constitutional right to counsel is case specific: "[T]he fact
that [the right] has attached in a particular case does not entitle
the accused to demand representation in connection with factually
and legally unrelated matters in which the state has made no
accusation and taken no adversary action." Carr v. State, 840 P.2d
1000, 1005 (Alaska App. 1992). (EN6) West was represented by
counsel in connection with his probation revocation action and his
recent forgery conviction. The troopers' contact with West related
to a new crime: the unlawful evasion that resulted from Westūs
failure to return to custody after being discharged from RCAOA.
Since West had not yet been charged with or arrested for that crime,
his right to counsel had not yet attached. (EN7) Accordingly, the
superior court properly concluded that the troopers had no duty to
contact the attorney who represented West in the other cases.
Prior to trial, West also moved to sever the two charges
against him, arguing that they had been improperly joined. The
superior court denied West's motion. West claims that this ruling
was error. Our decision in Newcomb v. State, 800 P.2d 935 (Alaska
App. 1990), is dispositive of West's claim. (EN8) We conclude that
West's charges were properly joined under Alaska Rule of Criminal
Procedure 8(a)(3), and we find no error in the denial of West's
motion to sever the charges as improperly joined. (EN9)
West next argues that the superior court erred in failing
to change the venue of his trial from Fairbanks to some other
community. Approximately three months before his case actually went
to trial, West filed a motion for a change of venue, asserting that
extensive pretrial publicity would prevent selection of an impartial
jury in Fairbanks. The superior court denied West's motion without
prejudice to renewal following jury voir dire. At trial, after jury
voir dire, West exercised only seven of his ten peremptory
challenges; he then accepted the empaneled jury and failed to renew
his earlier motion to change venue.
The superior court did not err in denying, without
prejudice to post-voir-dire renewal, West's pre-trial motion for a
change of venue:
Whether pretrial publicity is so prejudicial
and so pervasive that no [impartial] jury could
be selected to try a particular case in a
particular locale is a determination that is
exceedingly difficult to make prior to the
questioning of potential jurors. Therefore
almost without exception trial courts have been
permitted the discretion to rely on voir dire
rather than their own speculation as to the
impact of pretrial publicity.
Mallott v. State, 608 P.2d 737, 746 (Alaska 1980); see also Chase
v. State, 678 P.2d 1347, 1350 (Alaska App. 1984) ("[A] trial judge
will seldom be found to have abused his discretion in denying a
motion for change of venue prior to jury voir dire").
West's subsequent failure to renew the motion precludes
him from arguing that the court erred in failing to change venue
upon conclusion of voir dire. Mallott, 608 P.2d at 748; Alexander
v. State, 838 P.2d 269, 273 (Alaska App. 1992); Wylie v. State, 797
P.2d 651, 656 (Alaska App. 1990). (EN10) The superior court did not
err in failing to change venue.
West lastly argues that the trial court erred in allowing
Trooper McCann to testify that West had admitted killing Joe Vogler.
West contends that this testimony was evidence of other misconduct,
that its only relevance was to establish West's criminal propensity,
and that its admission was therefore barred under Alaska Rule of
Evidence 404(b). (EN11) West alternatively contends that this
evidence, even if marginally relevant to some issue other than
criminal propensity, was unduly prejudicial and should have been
excluded under Evidence Rule 403. (EN12)
West's argument lacks merit. At trial, West affirmatively
defended against the unlawful evasion charge by claiming that his
failure to turn himself in to jail was the result of a misunder-
standing. West defended against the arson charge by claiming that
the cabin fire was accidental. As correctly recognized by the trial
court, the fact that West claimed responsibility for the death of
Vogler minutes before the cabin burst into flames is highly relevant
to establish West's state of mind, the absence of misunderstanding
or accident, and the presence of a strong motive for West to set
fire to a cabin in which he was seemingly trapped -- an act of
extraordinary desperation that, in the absence of some plausible
motive or explanation, might easily have seemed accidental.
The trial court did not abuse its discretion in concluding
that this evidence was relevant for purposes other than to show
Westūs criminal propensity; nor did the court abuse its discretion
in deciding that the probative value of this evidence outweighed its
potential for prejudice. (EN13) The court twice gave the jury an
appropriate limiting instruction. We conclude that admission of
this evidence was not error.
West's conviction is AFFIRMED.
ENDNOTES:
1. West also made an unsuccessful attempt to call the lawyer who
represented him in the forgery and probation revocation matters.
A lawyer who shared office space with West's lawyer told West that
West's lawyer was out of town and advised West to contact him when
he returned.
2. Vogler, a well-known and controversial local political figure,
had disappeared in 1993; his disappearance had received widespread
publicity, and the troopers had previously questioned West in
connection with Vogler's disappearance.
3. Miranda v. Arizona, 384 U.S. 436 (1966).
4. See U.S. Const. amend. VI; Alaska Const. art. I, sec. 11.
5. See, e.g., United States v. Mesa, 638 F.2d 582, 589 (3rd Cir.
1980); Rock v. Zimmerman, 543 F.Supp. 179, 191 (D. Pa. 1982); State
v. Sands, 700 P.2d 1369, 1373 (Ariz. App. 1985); People v. Brewer,
720 P.2d 583, 586 (Colo. App. 1985); People v. Treier, 630 N.Y.S.2d
224, 227 (N.Y. Co. Ct. 1995); People v. Manzella, 571 N.Y.S.2d 875,
878-79 (N.Y. Sup. Ct. 1991); State v. Pejsa, 876 P.2d 963, 969
(Wash. App. 1994); State v. Stearns, 506 N.W.2d 165, 167 (Wis. App.
1993).
6. See also Maine v. Moulton, 474 U.S. 159, 180 & n.16 (1985);
McLaughlin v. State, 737 P.2d 1361, 1364 (Alaska App. 1987).
7. Nor had West retained or had an attorney appointed for him in
connection with the unlawful evasion; for this reason, United
States v. Thomas, 474 F.2d 110 (10th Cir. 1973), which West relies
on, is inapposite. Moreover, Thomas is predicated on an attorneyūs
violation of the canons of ethics, not on a violation of the
constitutional right to counsel by the police. We have never held
that suppression would be an appropriate remedy for a violation of
Alaskaūs Code of Professional Responsibility -- an issue West fails
to address. See Kochutin v. State, 875 P.2d 778, 780 (Alaska App.
1994), adopting Kochutin v. State, 813 P.2d 298, 311 n.5 (Alaska
App. 1991) (Bryner, C.J., dissenting).
8. Newcomb escaped from Wildwood Correctional Center. Five
months later, he was located in Anchorage. In the course of his
arrest, Newcomb shot two officers. Newcomb was charged with
attempted murder, assault, misconduct involving weapons, and
escape. Newcomb, 800 P.2d at 937. Over Newcombūs objections, all
charges were tried together under Alaska Rule of Criminal Procedure
8(a)(3). Newcomb appealed the denial of his motion to sever. Id.
at 942. On appeal, we noted the "obvious nexus" between the escape
and the other charges, and we upheld joinder of the charges as
"connected together" under Rule 8(a)(3). Id. at 942-43.
9. Below, West contended only that severance was warranted
because the two charges were improperly joined; the only theory of
prejudice he advanced was that admission of evidence of his
unlawful evasion would prejudice the jury's consideration of the
arson charge. In his opening brief, West renews the claim he
raised below, arguing only that the two charges were improperly
joined. In his reply brief, however, West belatedly suggests that
severance should have been granted even if his charges were
properly joined, because evidence of his arson would not have been
cross-admissible against him in a separate trial for unlawful
evasion. West insists, again for the first time, that joinder
prejudiced his attempt to defend against the unlawful evasion
charge. West does not specify how. Given West's failure to assert
this argument below or in his opening brief, we decline to address
it.
10. Pre-trial publicity relating to West's case occurred well in
advance of his trial date and apparently revealed no significant
information that was excluded from evidence at trial. Selection of
West's jury required the questioning of only 35 prospective jurors.
Although almost all members of the jury panel had heard or read
something about West's case, only two panel members indicated that
they had formed opinions that they could not set aside; both were
disqualified for cause. As we have already mentioned, West used
only seven peremptory challenges, leaving three challenges unused.
These circumstances are not conducive to a finding of plain error,
even assuming Westūs failure to renew the change of venue motion
was not tactical.
11. A.R.E. 404(b)(1) provides:
Evidence of other crimes, wrongs, or acts
is not admissible if the sole purpose for
offering the evidence is to prove the
character of a person in order to show that
the person acted in conformity therewith. It
is, however, admissible for other purposes,
including, but not limited to, proof of
motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake or accident.
12. A.R.E. 403 provides:
Although relevant, evidence may be
excluded if its probative value is outweighed
by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by
considerations of undue delay, waste of time,
or needless presentation of cumulative
evidence.
13. See Braham v. State, 571 P.2d 631, 640-41 (Alaska 1977);
Miller v. State, 778 P.2d 593, 597 (Alaska App. 1989); Ciervo v.
State, 756 P.2d 907, 911 (Alaska App. 1988).
