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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CLARENCE A. KAMEROFF, )
) Court of Appeals No. A-5828
Appellant, ) Trial Court Nos. 4BE-94-1198 Cr,
) 4BE-93-353 Cr, & 4BE-92-582 Cr
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1488 - October 11, 1996]
______________________________)
Appeal from the District Court, Fourth Judicial
District, Bethel, Dale O. Curda, Judge.
Appearances: G. Blair McCune, Assistant Public
Defender, and John B. Salemi, Public Defender,
Anchorage, for Appellant. Joseph E. Wrona,
Assistant District Attorney, James K. Metcalfe,
District Attorney, Bethel, and Bruce M.
Botelho, Attorney General, Juneau, for Appel-
lee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Clarence A. Kameroff appeals his convictions for six
misdemeanors: third-degree criminal mischief (joyriding), AS 11.-
46.484(a)(2), driving while intoxicated, AS 28.35.030(a), refusing
to submit to a breath test, AS 28.35.032(a), driving while his
license was suspended, AS 28.15.291(a), reckless driving, AS 28.-
35.040(a), and resisting arrest, AS 11.56.700(a)(1). For the
reasons explained below, we reverse three of these convictions and
affirm the other three.
On October 7, 1994, Bethel Police Officer Kevin Short saw
a truck driving after dark with its headlights off. The truck was
weaving in and out of the oncoming lane of traffic; it narrowly
missed two parked cars and a utility pole. Officer Short stopped
the truck; Clarence Kameroff was driving. Kameroff appeared to be
very intoxicated; his speech was slurred, his eyes were watery and
extremely bloodshot, and he smelled strongly of alcoholic beverages.
The truck had been reported stolen by its owner, Michael Carr.
Kameroff physically resisted the efforts of Short and other officers
to place him under arrest. Based on this incident, a jury convicted
Kameroff of the six offenses listed above.
Kameroff argues that the district court should have
dismissed the breath-test refusal charge because the Department of
Public Safety had already taken administrative action against
Kameroff's driver's license based on his same act of refusing to
take the breath test. Kameroff argues that his criminal sentence
for refusing to take the breath test constitutes an unconstitutional
second punishment for the same act. This contention is answered by
our decision in State v. Zerkel, 900 P.2d 744 (Alaska App. 1995),
where we rejected an identical double jeopardy claim.
Kameroff next argues that the police unlawfully refused
to allow him to contact an attorney before he made his decision
whether to take the breath test. Because of this, Kameroff argues,
the district court should have dismissed the breath-test refusal
charge and also should have suppressed the videotape that the police
made at the station following Kameroff's arrest.
As recorded in the videotape, Kameroff repeatedly asked
to telephone an attorney before taking the breath test. The
officers refused to allow Kameroff access to a telephone, in-
structing him that he had to calm down first. After watching the
videotape, Superior Court Judge Dale O. Curda ruled that the
officers' response (their refusal to allow Kameroff to use a
telephone) was justified by Kameroff's agitated, volatile state.
The videotape does indeed show that Kameroff was agitated
and volatile at the police station. Throughout the tape, he yelled
at the officers and at the video camera, and he repeatedly moved
about the room despite instructions to remain still. However,
Kameroff was not incoherent. Shortly after his arrival at the
station, Kameroff asked to call his lawyer. Officer Short
responded, "If you don't calm down, you ain't getting no phone
call."
Kameroff did not calm down. Eventually, two officers
forcibly sat Kameroff in a chair and handcuffed him to the chair;
they then were forced to hold the chair in place as Kameroff tried
to move the chair around the room. While this was going on, a third
officer prepared the Intoximeter machine for the breath test.
An officer asked Kameroff, "Do you want to blow into the
Intoximeter 3000?" Kameroff answered, "Yeah, I'll blow into it."
The officers then brought Kameroff's chair over to the machine.
But, just as the test was about to be administered, Kameroff turned
his head away and said, "I want to call my lawyer first. I'll blow,
but I want to call my lawyer first." When the officers showed no
sign of complying with this request, Kameroff began shouting that
he wanted to talk to his lawyer þ that he wanted to take the breath
test, but only after talking to his lawyer. In response, the
officers repeatedly instructed Kameroff to calm down. Significant-
ly, however, they never again repeated their offer to allow him to
speak with his attorney once he calmed down.
Given Kameroff's recalcitrance, the officers moved
Kameroff's chair away from the Intoximeter machine and read him the
implied consent form (twice). Kameroff appeared to pay no
attention; during the reading, he shouted and stamped his feet.
After the officer was done reading the implied consent form,
Kameroff told him, "I want to take the test; ... I want to take a
Breathalyzer." But, despite Kameroff's words, the officers did not
bring Kameroff back over to the Intoximeter machine.
At this point, Kameroff asked three times in quick
succession, "Can I have my lawyer?" The officers did not answer
him. Kameroff then yelled, "I want my lawyer first." Officer Short
responded, "You're too wild. We can't let you do that."
Another officer then twice read Kameroff the notice that
his driver's license would be revoked on account of his refusal to
take the breath test. During both readings, Kameroff kicked at the
form in the officer's hand. In response, the officers shackled
Kameroff's legs to the chair.
If a person is arrested for driving while intoxicated and
requests to contact an attorney, the police must afford the arrestee
a reasonable opportunity to contact an attorney before the police
require the arrestee to decide whether to take the breath test
mandated by AS 28.35.032. Copelin v. State, 659 P.2d 1206 (Alaska
1983). However, this right to contact counsel is not an absolute
right, "but, rather, a limited one of reasonable time and opportu
nity". Copelin, 659 P.2d at 1212. The question here is whether,
in light of Kameroff's agitated and volatile state, the officers
acted reasonably when they made no attempt to accommodate Kameroff's
request to contact his attorney.
Kameroff argues that, despite his unruly behavior, the
officers could have safely allowed him to telephone his attorney if
they had assisted him in placing the call, while leaving his
handcuffs on. See Rollefson v. Anchorage, 782 P.2d 305, 307 (Alaska
App. 1989), where the police offered to assist a handcuffed arrestee
in finding an attorney's telephone number and placing the call. The
State responds that Kameroff was so agitated and physically
aggressive that it would have been unreasonable for the officers to
assist Kameroff in this manner.
Having reviewed the videotape, we agree with Kameroff that
the police did not make reasonable efforts to accommodate his
request to telephone his attorney. While it is true that Kameroff
eventually became assaultive (during the reading of the license
revocation notice), his behavior earlier in the interview was more
controlled. We note that, at the beginning of the episode at the
police station, the officers were apparently confident enough of
their safety that they allowed the handcuffed Kameroff to stand and
move about the room. There were several officers in the room at all
times. Kameroff was shouting at this time, but he did not approach
or threaten any of the officers, and he stayed in the general area
of the room to which the officers had restricted him.
It appears that Officer Short's initial response to
Kameroff ("If you don't calm down, you ain't getting no phone
call.") was not based on the impracticability of affording a phone
call to an arrestee who was physically out of control. Rather,
Short's goal was apparently to encourage a noisy, bothersome
prisoner to exercise more self-restraint.
The videotape shows that Kameroff's demeanor became more
unruly as the interview progressed. However, this was in the face
of the officers' repeated refusals to allow him to call his
attorney.
The right of an arrestee to contact attorneys and friends,
as required by AS 12.25.150(b) and by Copelin, is not limited to
polite prisoners. If this right is to be enforced, the courts can
not allow the police to restrict access to the telephone as a means
of controlling arrestees' behavior (by withholding access until
obstreperous prisoners become more civil).
We re-affirm that an arrestee's right to call an attorney
is not absolute. Police officers certainly need not jeopardize
their own safety (or the safety of others) to allow a prisoner to
make a telephone call. But the police do not have the right to
insist that an arrestee be calm before allowing him or her to use
the phone. It was the State's burden to prove that the police had
good reason to deny Kameroff access to his attorney. The record in
this case fails to demonstrate a good reason to hold Kameroff
incommunicado. (EN1)
Because Kameroff was unlawfully denied access to an
attorney, the district court should have granted Kameroff's motion
to suppress the evidence of his refusal to take the breath test.
We therefore reverse Kameroff's conviction for breath-test refusal.
And, because evidence of Kameroff's refusal to take the breath test
was also admitted to prove that Kameroff was driving while
intoxicated, see AS 28.35.032(a), we must reverse Kameroff's DWI
conviction as well. (The State makes no attempt to argue that
admission of this evidence was harmless error with respect to the
DWI conviction.)
Kameroff asserts that, because he was denied his right to
telephone his attorney, the entire videotape of the episode at the
police station should be suppressed. However, the abridgement of
Kameroff's right to an attorney does not appear to require
suppression of the entire episode at the police station. In
Copelin, the supreme court adopted a more limited remedy for an
arrestee who was refused the opportunity to speak with an attorney
before deciding whether to take the breath test:
If the suspect is denied that opportunity,
subsequent evidence, whether in the form of the
test results or the refusal to submit to it,
shall be inadmissible at a later criminal
trial.
Copelin, 659 P.2d at 1215. Kameroff cites no authority (and
presents no other argument) for his requested relief of suppressing
the entire encounter at the police station.
Accordingly, we decline to order suppression of the
videotape. If Kameroff is retried, and if there are arguments for
suppressing the videotape, Kameroff may present these arguments to
the trial court.
Kameroff's next two arguments on appeal concern witness
Michael Carr. Carr, the owner of the truck that Kameroff was
driving, testified for the government at Kameroff's trial. (Carr
testified that his truck was stolen shortly before the police
stopped Kameroff and that Kameroff had no permission to drive the
truck.)
Carr was on felony probation at the time of Kameroff's
trial. Before trial, Kameroff sought disclosure of all pre-sentence
reports concerning Carr. Pre-sentence reports are presumptively
private. However, Judge Curda examined the pre-sentence reports in
camera to see whether they contained information that should be
disclosed to Kameroff. After examining the reports, Judge Curda
determined that they contained no additional relevant information
(that is, no relevant information other than the fact that Carr had
been convicted of second-degree theft and was currently on felony
probation þ facts that Kameroff already knew).
Kameroff challenges this ruling on appeal. We have
examined the pre-sentence reports and we agree with Judge Curda's
ruling: the reports contain no additional relevant information.
Kameroff also challenges a ruling that Judge Curda made
concerning the scope of Kameroff's cross-examination of Carr.
Kameroff wished to question Carr about his status as a probationer;
he argued that Carr's probation status was a potential ground of
bias þ a reason for Carr to favor the government in his testimony.
Kameroff's attorney pointed to evidence that Carr's probation
officer had recently stated that she was considering filing a
petition to revoke Carr's probation (based on an allegation that he
had committed a new crime). However, Judge Curda ruled that Carr's
probation status was relevant only if Kameroff first demonstrated
that Carr's testimony at trial was inconsistent with the statement
he had given the police shortly after Kameroff's arrest. In other
words, Judge Curda ruled that Kameroff had to demonstrate, as a
foundational matter, that Carr's story had changed between the time
of the incident and the time of trial, and then evidence of Carr's
probation status could be admitted to provide a potential explana
tion for the discrepancy.
Arguing in support of Judge Curda's ruling, the State
points out that Alaska Evidence Rule 403 governs evidence of a
witness's bias. That is, a trial judge may exclude relevant
evidence of a witness's bias if the probative force of that evidence
is outweighed by "the danger of unfair prejudice, confusion of the
issues, or misleading the jury", or if the relevance of the evidence
is outweighed "by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence." The State argues
that Judge Curda merely required Kameroff to demonstrate "some
[reason to believe that] Carr's probation status actually bore on
his credibility".
As a general matter, the fact that a witness is on
probation is recognized as a potential reason why that witness might
be biased in favor of the government. Davis v. Alaska, 415 U.S.
308, 317-18, 94 S.Ct. 1105, 1111 (1974); Wood v. State, 837 P.2d 743
(Alaska App. 1992). By making an argument based on Evidence Rule
403, the State implicitly concedes that evidence of Carr's probation
status was relevant to Carr's potential bias. The question, then,
is whether Judge Curda acted reasonably when he conditioned
Kameroff's introduction of this evidence on the foundational showing
that Carr had made inconsistent statements.
Judge Curda's ruling appears to be premised on the idea
that, even if Carr now faced potential revocation of his probation,
this change in Carr's situation had very little relevance unless it
could also be shown that Carr's version of events had also changed
(ostensibly motivated by his need to placate the authorities). This
reasoning is plausible but flawed.
When a witness is biased in favor of one party or the
other, this bias will not always manifest itself through inconsis
tent statements. A witness may repeatedly provide the same biased
account of events. While a witness's bias may be helpful in
explaining why the witness would give inconsistent statements
concerning the events being litigated, it would seem all the more
important for the disfavored party to introduce evidence of the
witness's bias when the witness's statements are consistent (and
thus presumptively more credible).
Moreover, Judge Curda's analysis (his ruling that Kameroff
had to show that Carr's current version of events differed from his
original account) implicitly rests on the assumption that Carr's
initial account was truthful. The opposite may be the case. It is
conceivable that Carr, for whatever reason, falsely reported that
Kameroff had taken his vehicle without permission; then, when Carr
learned that his probation officer was considering filing a petition
to revoke his probation, Carr felt obliged to stick to his original
story rather than admit the truth (and thus admit that he had filed
a false report). This potential ground of bias would lead Carr to
make consistent statements, not inconsistent ones.
As this court noted in Wood, 837 P.2d at 746-47 (citations
omitted),
[T]he [United States] Supreme Court has reaf-
firmed that "trial judges retain wide latitude
insofar as the Confrontation Clause is con-
cerned to impose reasonable limits on ...
cross-examination based on concerns about,
among other things, harassment, prejudice,
confusion of the issues, the witness' safety,
or interrogation that is repetitive or only
marginally relevant ... ." Nevertheless, the
Court has carefully distinguished between the
imposition of "reasonable limits on" inquiry
and the prohibition of "all inquiry into"
specific areas of possible bias.
Here, Judge Curda did not simply limit Kameroff's inquiry into
Carr's potential bias. Instead, the judge ruled that Kameroff could
not introduce any evidence of Carr's probation status, and the
stateþs recent consideration of a petition to revoke that probation,
until Kameroff overcame the foundational hurdle of demonstrating
that Carr had made inconsistent statements. As discussed above,
bias can be at work even when all of a witness's statements are
consistent. Thus, Judge Curda should not have required foundational
proof that Carr had made inconsistent statements before allowing
Kameroff to introduce evidence of Carr's probation status as a
potential reason why Carr might be biased in favor of the govern-
ment.
Because of this error, we reverse Kameroff's conviction
for third-degree criminal mischief (joyriding). Carr's testimony
appears to be crucial for the joyriding conviction, and the State
presents no harmless error argument. However, Carr's testimony had
essentially no impact on Kameroff's convictions for reckless
driving, for driving while his license was suspended, and for
resisting arrest. These three offenses were all independently
established by police testimony. We therefore find that the
improper restriction on Kameroff's cross-examination of Carr was
harmless beyond a reasonable doubt as to these three offenses.
In the trial court, Kameroff unsuccessfully asked for a
protective order prohibiting the State from introducing evidence
that a marijuana pipe (containing marijuana residue) was found on
Kameroff's person during a pat-down search following his traffic
stop. On appeal, Kameroff renews his argument that evidence of the
marijuana pipe should have been excluded because it was more
prejudicial than probative. We disagree. This evidence tended to
show that Kameroff had recently smoked marijuana, a matter of
obvious relevance to the charge of driving while intoxicated.
Lastly, Kameroff raises various challenges to the
composite sentence he received for his various convictions. Given
our conclusion that Kameroff's convictions for criminal mischief,
driving while intoxicated, and refusing to take a breath test must
be reversed, Kameroff's sentencing arguments are now moot.
Kameroff's convictions for third-degree criminal mischief,
driving while intoxicated, and refusing to submit to a breath test
are REVERSED. Kameroff's convictions for reckless driving, driving
while his license was suspended, and resisting arrest are AFFIRMED.
ENDNOTES:
1. Moreover, the videotape appears to demonstrate that Kameroff
did not refuse to take the breath test.
When the officers first asked Kameroff to submit to the breath
test (before they read him the implied consent form), Kameroff
clearly stated that he was willing to take the test, but only after
he spoke with an attorney. The officers refused to allow Kameroff
to call an attorney, and instead they read him the implied consent
form (telling Kameroff of his legal obligation to take the test and
informing him of the consequences of refusal). After the officers
read him the implied consent form, Kameroff stated several times
that he wanted to take the test. Some of these statements were
conditioned on Kameroff's talking to his lawyer first, others were
unconditional. In either case, it appears that Kameroff never
clearly refused to take the breath test after being informed of the
consequences of refusal. See Suiter v. State, 785 P.2d 28, 30-31
(Alaska App. 1989).
We do not decide this issue because Kameroff has not argued
that the evidence was insufficient to support his conviction for
breath-test refusal.
