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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JAMES E. RINEY, JR., )
) Court of Appeals No. A-5888
Appellant, ) Trial Court No. 3AN-95-548 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1523 - April 11, 1997]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Mark C. Rowland and Milton
M. Souter, Judges.
Appearances: Jill E. Farrell, Assistant Public
Defender, and John B. Salemi, Public Defender,
Anchorage, for Appellant. William H. Hawley,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Bruce
M. Botelho, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
James E. Riney, Jr., appeals his conviction for fourth-
degree misconduct involving a controlled substance (possession of
three small "rocks" of cocaine), AS 11.71.040(a). One of the main
issues on appeal is whether the police violated Riney's right to a
speedy initial appearance when they took him to the police station
following his arrest and held him for two hours before taking him
to the magistrate. Riney contends that he was prejudiced by this
delay because he submitted to police questioning while he was at the
station and gave statements that were later used against him.
This speedy-first-appearance issue is entwined with a
separate search-and-seizure issue that Riney presents on appeal.
In the superior court, the government asserted that Riney's cocaine
had been found during a search of Riney's person at the time (and
location) of his arrest. Riney disputed this; he asserted that he
had been arrested, taken to the police station, and then searched
þ and that the police had planted the cocaine on him during that
search.
In addition, the speedy-first-appearance issue and the
search-and-seizure issue are entwined with a destruction or loss of
evidence claim. The police taped their station-house interviews of
both Riney and his co-defendant, Lloyd Stevenson. The tape of
Riney's interrogation was produced during pre-trial discovery, but
the police were unable to locate the tape of Stevenson's
interrogation. Riney asserts that the tape of the Stevenson
interview might have contained statements indicating that the
cocaine was "found" on Riney's person when he was searched at the
police station þ thus corroborating Riney's claim that he possessed
no cocaine until the police planted the drug on him.
Finally, Riney challenges two of the occurrences at his
trial. He asserts that the prosecuting attorney misstated the law
during her rebuttal argument to the jury. He also asserts that the
trial judge should have instructed the jury that, because the State
had lost the tape of Riney's station-house interrogation, the jurors
should assume that the tape would have been favorable to Riney.
For the reasons explained in the following opinion, we
conclude that Riney's conviction should be affirmed.
Underlying facts
On the evening of January 20, 1995, Anchorage Police
Department Officer Leslie Herring was working undercover on Fourth
Avenue, attempting to "make some street-level [purchases]" of
marijuana. Around 9:00, Herring encountered Riney. Herring told
Riney that she was looking for some "grass". Riney consulted his
partner, Lloyd Stevenson. Stevenson produced a package wrapped in
plastic that appeared to contain marijuana. Stevenson handed the
package to Herring, and Herring handed two ten-dollar bills to
Riney.
As Herring walked away from this purchase, she signaled
to her back-up officer, William C. Webster, that the transaction was
completed. Herring and Webster arrested Stevenson. Meanwhile,
another officer, Ronald T. Robinson, was arriving at the scene.
After assisting briefly in the arrest of Stevenson, Robinson
proceeded to apprehend Riney.
Both Stevenson and Riney were taken to the Fairview
substation. Approximately two hours later, Riney was taken to the
courthouse for his initial appearance.
Where and when did the search take place?
Following his indictment, Riney asked the superior court
to suppress the cocaine. He claimed that the cocaine had been found
during a search conducted at the station house, and he further
claimed that he was taken to the station house (rather than the
courthouse) in violation of his right to a speedy initial appearance
under the Fourth Amendment and under Alaska Criminal Rule 5(a)(1).
Riney therefore asked the superior court to rule that the station-
house search was illegal, and that anything found during that search
should be suppressed.
After holding a hearing to establish the facts of the
search, Superior Court Judge Mark C. Rowland found that the search
had actually occurred on Fourth Avenue at the time of Riney's
arrest, and not later at the station house as Riney claimed. This
finding of fact meant that Riney's speedy-initial-appearance claim
was moot (at least with regard to whether the cocaine should be
suppressed), since any unreasonable delay in taking Riney to the
magistrate had not affected the police officers' discovery of the
cocaine.
On appeal, Riney argues that Judge Rowland's finding is
clearly erroneous. He points to various witness statements tending
to show that the search occurred at the station house, not on Fourth
Avenue. For instance, during Riney's initial appearance in front
of the magistrate, Officer Webster told the magistrate, "We arrested
both [Riney and Stevenson], and we brought Mr. Riney back to the
[Fairview] substation ... [and] Detective Robinson searched him".
And in his written report on the incident, Webster wrote, "I
handcuffed [Riney] and we took [both Riney and Stevenson] to the
Fairview [substation]. I interviewed both on tape; Detective
Robinson searched Riney and found a small amount of cocaine on his
person."
Riney is correct that the evidence is conflicting on this
point. But Judge Rowland, in his ruling, acknowledged the conflict-
ing evidence and resolved the conflict against Riney:
THE COURT: There's a question as to
whether the search occurred down on Fourth
Avenue and C [Street], or whether it occurred
down at the substation. I've considered Mr.
Riney's testimony, [but his] testimony ...
appears to be based more upon his reasoning
processes than upon his recollection. I've
looked at the wording [of the officer's]
statements [to the magistrate at Riney's
arraignment], and, of course, [I have] heard
about the other statements made by the
officers. The language [of those statements]
certainly could be ... confusing if you're
trying to ... establish[] a chronological order
of events. On the other hand, it ... should be
remembered that, at the time these statements
were made, probably the chronology was not
deemed to be of particular importance. I don't
see it as an attempt to mislead anybody.
I've listened to the officers' testimony
and, frank[ly], I believe them. It appears
that the search took place on Fourth Avenue[,
and it] ... appears to be incidental to a
lawful arrest.
We have examined the record, and Riney has not convinced us that
Judge Rowland's finding is clearly erroneous. Wilburn v. State, 816
P.2d 907, 911 (Alaska App. 1991) (when an appellate court reviews
a trial court's ruling on a motion to suppress, the trial court's
findings of fact govern unless they are clearly erroneous).
Riney argues that the record does not tell the whole
story. He contends that if the tape of Stevenson's station-house
interview had been preserved, that tape might have contained
statements to indicate that the search occurred at the station.
This argument was not presented to the trial judge when Riney
litigated his suppression motion. It is therefore not preserved.
Moreover, we find this argument unpersuasive. First, as
explained in more detail below, the trial court found that the tape
of the Stevenson interview had been lost through negligence, not
through an act of intentional destruction or concealment. Second,
no testimony was presented to establish the contents or subject
matters of Stevenson's interrogation. The record gives little
reason to conclude that the missing tape contained statements that
would have pin-pointed where the search of Riney took place. As
noted above, Riney introduced evidence that, viewed in the light
most favorable to him, strongly indicated that the search had
occurred at the station house. There is no reason to believe that
the missing tape held any stronger evidence than this. Because of
this, Riney has not shown a reasonable possibility that he was
prejudiced by the loss of the tape. See Catlett v. State, 585 P.2d
553, 557-58 (Alaska 1978) (even though the police lost or destroyed
photographs of the crime scene, the defendant was not prejudiced
when the record showed that the photographs would be cumulative of
other available evidence).
We therefore uphold the superior court's ruling that the
cocaine was admissible against Riney.
Did the police unreasonably delay Riney's first appearance
in front of a magistrate?
In the previous section, we concluded that any delay in
bringing Riney before a magistrate did not affect the admissibility
of the cocaine found on his person, because that cocaine was found
at the time (and at the scene) of his arrest. However, Riney's
speedy-initial-appearance claim affects another aspect of this case.
Following his arrest, Riney was taken to the police station, where
he was interrogated. Riney apparently asked to be brought before
a magistrate immediately, but the police officers ignored this
request. During the ensuing station-house interrogation, Riney made
statements that were later used against him. He was not taken
before a magistrate until approximately two hours following his
arrest.
Riney asserts that this two-hour delay was unnecessary and
that, because of this unnecessary delay, his statements at the
police station should be suppressed. He bases his argument on both
the Fourth Amendment and on Alaska Criminal Rule 5(a).
Riney's claim under the Fourth Amendment. In Gerstein v.
Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the United
States Supreme Court held that the Fourth Amendment's protection
against unreasonable seizures included the requirement that an
arrested suspect receive prompt judicial review of the government's
reasons for the arrest. In Riverside County v. McLaughlin, 500 U.S.
44, 56; 111 S.Ct. 1661, 1670; 114 L.Ed.2d 49 (1991), the Supreme
Court declared that, to satisfy Gerstein's requirement of prompt
judicial review, the government must normally secure this probable
cause determination within 48 hours of a suspect's arrest. Delays
of longer than 48 hours are presumptively unreasonable, with the
government shouldering the burden of proving good reason for the
added delay. See also Powell v. Nevada, 511 U.S. 79, 80; 114 S.Ct.
1280, 1281; 128 L.Ed.2d 1, 5 (1994).
In Riney's case, judicial review of the reasons for his
arrest occurred at his initial appearance, some two hours after his
arrest. Compared with the 48 hours granted by McLaughlin and
Powell, a two-hour delay appears inconsequential. However,
McLaughlin allows for the possibility that delays shorter than 48
hours are nonetheless unreasonable:
[We do not] say that the probable cause
determination in a particular case passes
constitutional muster simply because it is
provided within 48 hours. [An arraignment held
within 48 hours] may nonetheless violate
Gerstein if the arrested individual can prove
that his or her probable cause determination
was delayed unreasonably. Examples of
unreasonable delay are delays for the purpose
of gathering additional evidence to justify the
arrest, a delay motivated by ill will against
the arrested individual, or delay for delay's
sake.
McLaughlin, 500 U.S. at 56, 111 S.Ct. at 1670, 114 L.Ed.2d at 63.
Riney asserts that the two-hour delay in his case was
unreasonable. He points out that he was arrested in downtown
Anchorage, just blocks from the courthouse, so that the police might
easily have taken him directly to an initial appearance rather than
taking him to the police station. Riney further asserts that the
officers' main motivation for holding him at the police station for
two hours was their desire to question him and try to obtain more
evidence against him.
This reasoning convinced Judge Rowland. After hearing
evidence on this point, the judge concluded:
I have little doubt that the reason [Riney] was
detained at the [police] substation was so that
the interview could be conducted. Under
federal case law, that would be "unnecessary
delay", and I [am aware of no authority] that
would contravene the notion that keeping a
defendant around to gather additional evidence
to support the arrest or the charge is
"necessary" delay.
However, despite his finding that the delay was unnecessary, Judge
Rowland concluded that exclusion of the evidence was not the proper
remedy for this error. The judge therefore denied Riney's motion
to suppress the statements he made at the police station.
On appeal, Riney argues that Judge Rowland was correct in
finding that the two-hour delay was unreasonable, but that the
remedy should be suppression of all evidence obtained while Riney
was at the police station. We disagree with both of Riney's
contentions.
It is important to understand that the hearing required
under the Fourth Amendment by Gerstein and McLaughlin is not the
same thing as an "arraignment" or an "initial appearance". Under
Gerstein, judicial review of a warrantless arrest is designed to
accommodate the same Fourth Amendment interests as the judicial
review of probable cause that precedes the issuance of an arrest
warrant:
Maximum protection of individual rights could
be assured by requiring a magistrate's review
of the factual justification prior to any
arrest, but such a requirement would constitute
an intolerable handicap for legitimate law
enforcement. Thus, while this Court has
expressed a preference for the use of arrest
warrants when feasible, it has never
invalidated an arrest supported by probable
cause solely because the officers failed to
secure a warrant.
Under this practical compromise, a
policeman's on-the-scene assessment of probable
cause provides legal justification for
arresting a person suspected of crime, and for
a brief period of detention to take the
administrative steps incident to arrest. Once
the suspect is in custody, however, the reasons
that justify dispensing with the magistrate's
neutral judgment evaporate.
Gerstein, 420 U.S. at 113-14, 95 S.Ct. at 862-63, 43 L.Ed.2d at 64-
65 (citations omitted).
The judicial review that precedes the issuance of an
arrest warrant is non-adversarial þ that is, the hearing is
conducted ex parte, and the government can rely on affidavits and
hearsay. Gerstein, 420 U.S. at 120, 95 S.Ct. at 866, 43 L.Ed.2d at
69. Because the Gerstein hearing is intended to provide the post-
arrest equivalent of a warrant application in circumstances where
an arrest is made without a warrant, the Gerstein Court specifically
disapproved the Fifth Circuit's ruling that the probable cause
hearing had to be "accompanied by the full panoply of adversarial
safeguards þ counsel, confrontation, cross-examination, and
compulsory process for witnesses". Id., 420 U.S. at 119-120, 95
S.Ct. at 866, 43 L.Ed.2d at 68. The Gerstein Court further declared
that the probable cause hearing, "[b]ecause of its limited function
and its nonadversary character," is not a "critical stage" in the
prosecution.
The Court recognized that many states might find it
"desirable" to accomplish this Fourth Amendment "probable cause
determination" during the suspect's first appearance before a
judicial officer. Id., 420 U.S. at 123, 95 S.Ct. at 868, 43 L.Ed.2d
at 71. However, the probable cause determination required by
Gerstein is conceptually different from the procedures that
generally occur at a suspect's first appearance þ reading the
charges, apprising suspects of their basic procedural rights,
setting bail, and making arrangements for suspects to obtain
counsel. The Gerstein decision does not require any of these "first
appearance" procedures. By the same token, the speedy accomplish-
ment of these "first appearance" procedures is no substitute for
what Gerstein does require þ "a fair and reliable determination of
probable cause ... by a judicial officer either before or promptly
after arrest". 420 U.S. at 125, 95 S.Ct. at 868-69, 43 L.Ed.2d at
71-72.
In sum, Gerstein and McLaughlin are not "speedy initial
appearance" or "speedy arraignment" cases; they do not require the
police to promptly bring an arrested suspect to the courthouse for
advisement of rights, setting of bail, and appointment of counsel.
Gerstein and McLaughlin require one thing þ prompt judicial
determination that there is indeed probable cause to hold the
defendant. If that determination occurs before the arrest (that is,
if the defendant is arrested pursuant to a warrant), then Gerstein
and McLaughlin require nothing more. See State v. Vice, 519 N.W.2d
564, 566 (Neb. App. 1994). Indeed, because the explicit aim of
Gerstein is to equalize the treatment of arrestees þ by giving
suspects who have been arrested without a warrant the same judicial
review that occurs during a warrant application þ it would be
anomalous to interpret Gerstein as conferring special procedural
rights on suspects arrested without a warrant, rights not shared by
suspects who have been arrested on warrants.
What, then, of McLaughlin's declaration that even when a
Gerstein hearing is held within 48 hours, the timing of the hearing
may still be unreasonable if the delay was "for the purpose of
gathering additional evidence to justify the arrest"? As just
explained, McLaughlin is intended to implement Gerstein's
requirement that a judicial officer promptly review the justifica-
tion for the arrest. Gerstein and McLaughlin obviously do not allow
the government to justify an arrest by relying on information
acquired after the arrest. At the same time, Gerstein and
McLaughlin do not bar the police from pursuing their investigative
efforts, so long as probable cause for the arrest is decided on the
basis of the government's evidence at the time of the arrest.
In United States v. Daniels, 64 F.3d 311 (7th Cir. 1995),
cert. denied, 116 S.Ct. 745, 133 L.Ed.2d 693 (1995), the defendant
was arrested for bank robbery. Daniels was arraigned within the 48-
hour time limit of McLaughlin (some 40 hours after his arrest), but
he argued that the police delayed his arraignment so that they could
gather more evidence against him þ specifically, so they could
conduct another lineup while Daniels was still in their custody.
The Seventh Circuit concluded that Daniels's argument
"misapprehend[ed]" McLaughlin because McLaughlin only prohibits
delays designed to "gather[] additional evidence to justify the
arrest".
The line-up of March 24[th] was not conducted
to justify Daniels' arrest; it was done to
collect more evidence against Daniels.
[Officer] Ewer's affidavit stated that [the]
probable cause to arrest Daniels was based on
the identification[s] of two unnamed witnesses
of a photo array containing Daniels' picture
and the "positive" identification of another
unnamed witness. The result of [the March
24th] line-up did not appear in Ewer's
affidavit because it was conducted after [his]
affidavit was taken on March 23[rd].
Daniels, 64 F.3d at 314. The court continued:
Daniels' argument seems to interpret Riverside
[v. McLaughlin] to preclude law enforcement
from bolstering its case against a defendant
while he awaits his Gerstein hearing; that is
a ludicrous position. Gerstein and its progeny
simply prohibit law enforcement from detaining
a defendant to gather evidence to justify his
arrest, which is a wholly different matter.
Probable cause to arrest Daniels already
existed[.]
Id.
The North Carolina Supreme Court reached a similar
conclusion in State v. Chapman, 471 S.E.2d 354, 356 (N.C. 1996).
The court held that interrogating a defendant about the crimes for
which he was just arrested is not an "unnecessary delay", either for
purposes of McLaughlin or for purposes of North Carolina Statute
sec. 15A-501(2), which requires the police to take an arrestee
before a magistrate "without unnecessary delay". Accord Peterson
v. State, 653 N.E.2d 1022, 1025 (Ind. App. 1995) (police officers'
decision to interrogate an arrested suspect does not constitute an
unreasonable delay as long as the police already have probable cause
for the arrest).
We agree with these cases. If McLaughlin were interpreted
in the manner Riney suggests, it would lead to an unjustifiable
disparity in treatment between persons arrested on warrants and
persons arrested without warrants. Under even the most expansive
interpretation of McLaughlin, persons arrested on warrants can be
interrogated following their arrest: no Gerstein hearing is
required when a person is arrested on a warrant, because the
judicial determination of probable cause for the arrest has already
been made. See State v. Vice, 519 N.W.2d at 566. Thus, under
Riney's reading of McLaughlin, the existence or non-existence of an
arrest warrant would determine whether the police were authorized
to question someone they had just taken into custody. Riney
suggests no rationale for such a rule, and we perceive no convincing
rationale for it either. So long as the police do not detain a
suspect for the purpose of gathering probable cause to justify the
arrest after the fact, questioning an arrestee about the crime(s)
for which he or she has been arrested does not constitute an
"unreasonable" delay under Gerstein and McLaughlin.
For these reasons, we conclude that the police did not
violate Riney's rights under the Fourth Amendment (as interpreted
in Gerstein and McLaughlin) when they detained him at the police
station for two hours before taking him to the courthouse for his
initial appearance before a magistrate.
Riney's claim under Alaska Criminal Rule 5(a)(1). Riney
also argues that the police violated state law when they took him
to the police station before taking him to the courthouse for his
first appearance in front of a magistrate. Riney relies on Alaska
Criminal Rule 5(a)(1):
Except [for persons who are issued a
citation and immediately released], [an]
arrested person shall be taken before the
nearest available judge or magistrate without
unnecessary delay. ... Unnecessary delay ...
is defined as a period not to exceed twenty-
four hours after arrest[.]
See also AS 12.25.150(a) ("A person arrested shall be taken before
a judge or magistrate without unnecessary delay, and in any event
within 24 hours of arrest[.]").
Although Criminal Rule 5(d) calls upon the judge or
magistrate to conduct a Gerstein inquiry at the same time as an
arrestee's initial appearance (if the person was arrested without
a warrant), it is clear that the initial appearance required by Rule
5(a) is a much broader procedural protection than the probable cause
determination required by Gerstein. The purposes of the initial
appearance are to inform the arrestee of the charge(s), to inform
the arrestee of the basic procedural rights of criminal defendants,
to allow the arrestee to request counsel, and to require the judge
or magistrate to establish bail. See Criminal Rule 5(c). Rule
5(a)(3) expressly states that an arrestee is entitled to this
initial hearing regardless of whether the arrest was made pursuant
to a warrant or was made without a warrant.
Criminal Rule 5(a)(1) states that a defendant's initial
appearance must be held "without unnecessary delay". Riney asserts
that the police engage in "unnecessary delay" whenever a judicial
officer is available to conduct an arrestee's initial appearance but
the police nevertheless interrogate the arrestee (or engage in other
investigative activities, such as conducting a lineup) before taking
the arrestee to the initial appearance mandated by Rule 5(a)(1).
The impetus for Alaska Criminal Rule 5(a)(1) and its
siblings in other jurisdictions came from the United States Supreme
Court's decisions in McNabb v. United States, 318 U.S. 332, 63 S.Ct.
608, 87 L.Ed. 819 (1943), and Mallory v. United States, 354 U.S.
449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957). Under the McNabb/-
Mallory rule, the police must
arraign the arrested person before a judicial
officer as quickly as possible so that he may
be advised of his rights and so that the issue
of probable cause may be promptly determined.
The arrested person may, of course, be "booked"
by the police. But he is not to be taken to
police headquarters in order to carry out a
process of inquiry that lends itself ... to
eliciting damaging statements to support the
arrest and ultimately his guilt.
... Circumstances may justify a brief
delay between arrest and arraignment, as[,] for
instance, where the story volunteered by the
accused is susceptible of quick verification
through third parties. But the delay must not
be of a nature to give opportunity for the
extraction of a confession.
Mallory, 354 U.S. at 454-55, 77 S.Ct. at 1359-1360, 1 L.Ed.2d at
1483. (EN1)
Riney relies on this passage from Mallory, particularly
the Court's statement that the delay in arraigning a suspect "must
not be of a nature to give opportunity for the extraction of a
confession". However, this reference to "extract[ing] a confession"
appears to have been aimed at delays so lengthy as to induce
involuntary confessions. As discussed below, courts construing this
language have held that it does not bar routine post-arrest
questioning of a suspect.
McNabb and Mallory must be understood in context. These
two cases established a supervisory rule to protect arrestees.
However, starting in the 1960's, the Supreme Court erected
constitutional safeguards that provided more direct, more effective
methods for preventing the evil that the McNabb/Mallory rule was
designed to prevent (that is, stopping the police from extracting
confessions from unadvised arrestees who are being held
incommunicado). The federal Constitution now requires that any
custodial interrogation be preceded by the warnings and procedural
protections announced in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966), and its progeny. In addition, the
government can not use statements that are the fruit of an illegal
arrest. See Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60
L.Ed.2d 824 (1979). In Alaska, moreover, a defendant has the right
to an immediate telephone call, Zsupnik v. State, 789 P.2d 357
(Alaska 1990), and custodial interrogations must normally be tape
recorded. Stephan v. State, 711 P.2d 1156 (Alaska 1985).
It appears that the creation of these procedural
protections has led to a scarcity of judicial decisions on the point
Riney raises in this appeal. Most states have enacted statutes or
rules requiring that an arrestee's initial appearance occur "without
unnecessary delay", so that "prompt appearance is a common if not
universal requirement under state law". See Wayne R. LaFave and
Jerold H. Israel, Criminal Procedure (1984), sec. 6.3(c), Vol. 1,
p. 457. However, there are surprisingly few judicial decisions that
directly decide whether these statutes and rules bar the police from
conducting post-arrest interrogation before they take an arrestee
in front of a judicial officer.
The sparseness of the case law appears to be due to the
fact that most state courts have rejected the notion that
unnecessary delay in bringing an arrestee before a judicial officer
automatically requires suppression of the arrestee's statements.
Sovalik v. State, 612 P.2d 1003, 1007 n.7 (Alaska 1980); LaFave &
Israel, sec. 6.3(c), Vol. 1, p. 457. Instead, most states have
concluded that any unnecessary delay in holding the arrestee's
initial appearance is simply one factor to be considered in deciding
whether the arrestee's statements were voluntary. Clay v. State,
883 S.W.2d 822, 827-29 (Ark. 1994); Thorson v. State, 653 So.2d 876,
887 (Miss. 1994); Veal v. State, 585 So.2d 693, 699 (Miss. 1991);
State v. Tucker, 645 A.2d 111, 117-19 (N.J. 1994), cert. denied, 115
S.Ct. 751, 130 L.Ed.2d 651 (1995); State v. Huddleston, 924 S.W.2d
666, 670-71 (Tenn. 1996); Cantu v. State, 842 S.W.2d 667, 679 (Tex.
Crim. App. 1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3046, 125
L.Ed.2d 731, reh'g denied, 509 U.S. 941, 114 S.Ct. 16, 125 L.Ed.2d
768 (1993). See also Commonwealth v. Abdul-Salaam, 678 A.2d 342,
348 n.11 (Pa. 1996) (any unreasonable delay in bringing the
defendant to court for his initial appearance would not require
suppression of an eye-witness identification that occurred more than
48 hours after his arrest). (EN2)
Examination of the cases cited in the previous paragraph
reveals that it is generally difficult for defendants to show that
their post-arrest statements were tainted by the lack of a prompt
initial appearance. Under Miranda, before any custodial interroga-
tion takes place, arrestees must be informed that they need not say
anything to the police, that they can stop answering questions at
any time, and that they have a right to delay questioning until they
have secured the assistance of a lawyer (at public expense if need
be). If the police have complied with Miranda, a defendant
generally will be unable to argue convincingly that receiving a
similar advisement of rights at an arraignment or an initial
appearance would have altered his decision to speak to the police.
For analogous reasons, courts have not been receptive to the
argument that a defendant might have gained bail release and thus
would not have been in custody to listen to the officers' questions.
See Cannon v. State, 904 P.2d 89, 95 (Okla. Crim. App. 1995), cert.
denied, 116 S.Ct. 1272, 134 L.Ed.2d 219 (1996) ("Cannon claims that
he was prejudiced by ... the delay in seeing a magistrate because,
if bail had been set ..., he could have made bail and been out of
jail before the time he made the statements about [the victim's]
murder[.] This is speculative at best.").
Because there is no rule of automatic suppression, and
because defendants generally have difficulty showing that the delay
in holding their initial appearance tainted their statements to the
police, courts generally devote little effort to deciding whether
the police's desire to interrogate the defendant constituted
"unnecessary delay" under the facts of the defendant's case.
Instead, these courts move directly to the question of whether the
defendant's statements were voluntary or were, instead, a tainted
product of the delay.
Nevertheless, there are some decisions that directly
address the question of whether post-arrest interrogation is
"unnecessary delay" for purposes of a "prompt appearance" rule. The
answer reached by these courts is that interrogation incidental to
an arrest is not "unnecessary delay" (assuming the police had
probable cause for the arrest). United States v. Daniels, 64 F.3d
311, 313-14 (7th Cir. 1995); People v. Turner, 878 P.2d 521, 541-42
(Cal. 1994), cert. denied, 115 S.Ct. 1702, 1131 L.Ed.2d 564 (1995);
Peterson v. State, 653 N.E.2d 1022, 1025 (Ind. App. 1995); State v.
Chapman, 471 S.E.2d 354, 356 (N.C. 1996); State v. Littlejohn, 459
S.E.2d 629, 633-34 (N.C. 1995). But see Black v. State, supra n.2.
We find ourselves in agreement with the cases cited in the
last paragraph; that is, we conclude that reasonable post-arrest
interrogation of an arrestee does not constitute "unnecessary delay"
for purposes of Alaska Criminal Rule 5(a)(1). As was pointed out
in Goldsmith v. United States, 277 F.2d 335 (D.C. Cir. 1960), the
existence of probable cause for arrest does not necessarily provide
the answer to whether an arrestee should be charged or released.
Despite probable cause for arrest, the facts may ultimately
demonstrate the arrestee's innocence. Moreover, probable cause does
not equal a provable case. To make an informed charging decision,
the government may still need to clarify the facts of the offense
and the arrestee's role in it. Id. at 342-43.
Moreover, it should be remembered "that interrogation is
not an evil per se", Goldsmith, 277 F.2d at 344, but rather a valid
investigative technique. Miranda, 384 U.S. at 478, 481; 86 S.Ct.
at 1630, 1631. Under Riney's suggested interpretation of Rule
5(a)(1), the propriety of post-arrest interrogation would depend,
not on the facts of the case or the desirability of interrogation,
but rather on whether the Alaska Court System had decided to fund
24-hour magistrate services in that locality. There appears to be
little rationale for such a result. Nor does it seem likely that
the Alaska Supreme Court, acting in its role as administrator of the
judicial branch of government, intended its magistrate funding
decisions to affect the legality of traditional police investigative
practices.
In sum, we hold that routine interrogation of a lawfully
arrested suspect is not "unnecessary delay" for purposes of Alaska
Criminal Rule 5(a)(1).
Should the trial court have suppressed the incriminatory
statements Riney made at his arraignment, when the State
failed to disclose these statements before trial?
During Riney's arraignment, the prosecutor described how
cocaine was found in Riney's pocket. Hearing the prosecutor's
description, Riney spoke up and told the magistrate, "Well, it was
just five dollars' worth, and I forgot that I had it in my pocket.
It wasn't to sell. I just forgot that it was in my pocket." The
prosecutor made a note of Riney's words in her file. However, the
existence of Riney's prior statements was not revealed to his
defense attorney until, during trial, the prosecutor announced that
she intended to call the in-court clerk who had been on duty during
Riney's arraignment.
When the defense attorney discovered what had happened,
he asserted that the prosecutor had violated Criminal Rule 16(b)(1)
and he asked the trial judge to suppress Riney's statements.
Superior Court Judge Milton M. Souter agreed that the prosecutor had
violated Criminal Rule 16(b), but the judge ruled that suppression
of the late-disclosed evidence was not the appropriate remedy.
In our opinion, it is a close question whether the
prosecutor's action violated Criminal Rule 16(b)(1). (EN3) However,
we need not resolve this question. Even assuming that Rule 16 was
violated, Judge Souter correctly held that Riney was not entitled
to suppression of his statements. Under Bostic v. State, 805 P.2d
344, 347-48 (Alaska 1991), the appropriate remedy was at most a
mistrial. However, Riney never sought a mistrial; he asked only for
suppression of the evidence.
The record suggests that Riney's failure to ask for a
mistrial may have been tactical. As noted above, Riney's defense
was that the police had planted the cocaine on him. Riney's
volunteered statements at his arraignment clearly undermined this
defense. However, because Riney was charged with a possessory
offense, Riney and his attorney might reasonably have concluded that
obtaining a mistrial would only delay the inevitable þ and that
therefore their request for relief should be "all or nothing".
Moreover, as we have noted in the past, trial judges must
be extremely cautious about granting a mistrial when the defendant
has not sought one. Under the double jeopardy clause, if a judge
declares a mistrial sua sponte when there is no necessity for it,
the charges against the defendant must be dismissed. Nelson v.
State, 874 P.2d 298, 308 (Alaska App. 1994); March v. State, 859
P.2d 714, 717 (Alaska App. 1993). For this reason, we do not find
that Judge Souter committed plain error when he failed to declare
a mistrial on his own motion.
In sum, we agree with Judge Souter that Riney was not
entitled to suppression of the statements he made at his
arraignment.
Did the prosecutor misstate the law during her summation
to the jury?
Riney contends that, during final argument, the prosecutor
misstated the law regarding reasonable doubt by suggesting that
reasonable doubt could not be predicated on suspicion or conjecture.
During the rebuttal portion of her final argument, responding to the
defense attorney's contention that the police had planted the
cocaine on Riney, the prosecutor said to the jurors:
When I gave my [first] argument, I asked
you to convict Mr. Riney based on the facts and
not on suspicion [or] conjecture, not on
speculation [or] guess-work [or] imaginings.
But [defense counsel] is asking you to acquit
the defendant just on that: [on] suspicion,
conjecture, guessing, imagining. [That's] the
only proof that he has of planting evidence[.]
... [Defense counsel] is asking you to find þ
based on the questions he asked, not on the
responses he got þ that all four police
officers ... are corrupt, are dishonest, ...
that they lied, that they plant[ed] evidence,
that they [came] to court and commit[ted]
perjury, and that somehow they managed to
conspire to ... frame an innocent man that some
of them did not know before, and that none of
them had a personal grudge against for any
reason. And [defense counsel] is asking you to
believe that [the officers] did that without
leaving any evidence at all of a conspiracy, of
perjury or fraud. He's asking you to imagine
that this happened.
We do not construe the prosecutor's remarks as a comment
on the meaning of "reasonable doubt". Rather, these comments are
addressed to a factual theory offered by the defense: the theory
that the cocaine was "found" on Riney's person because the police
put it there. The prosecutor engaged in fair comment on the defense
theory when she argued that there was no evidence to support it.
Her remarks, taken in context, do not suggest that a defendant must
present affirmative evidence of his innocence, nor do they suggest
that a defendant is barred from relying on doubts left by
shortcomings in the government's evidence. In short, we find no
error.
Was Riney entitled to an instruction telling the jury to
presume that the lost audiotape of his co-defendant
Stevenson's police interview would have contained evidence
favorable to Riney?
As described above, both Riney and his co-defendant
Stevenson were taken to the police station following their arrest,
where they were each interviewed. These interviews were taped. In
preparation for Riney's trial, the State furnished Riney with a tape
of his interview, but the police were unable to find the tape of
Stevenson's interview. On appeal, Riney argues that this missing
tape might have contained evidence favorable to him, and that
therefore the jury should have been instructed to presume that the
missing tape was favorable to Riney. See Thorne v. Department of
Public Safety, 774 P.2d 1326, 1331-32 (Alaska 1989).
Riney suggests that the police might have intentionally
destroyed the tape. After hearing evidence surrounding the loss of
the tape, Judge Souter explicitly rejected this suggestion:
THE COURT: [The tape] was lost; they
don't know what happened to it. They looked
for it, couldn't find it. They looked for it
again[.] ... They kept looking for it; they
couldn't find it. The DA's own file shows
[that] they were after it[.] There does not
appear to be any evidence whatsoever from which
a reasonable inference could be drawn that
someone deliberately went out and destroyed Mr.
Stevenson's taped statement.
The record supports Judge Souter's finding.
Riney next argues that, even if the tape was lost in good
faith þ mislaid or otherwise lost through neglect þ he was still
entitled to have the jury told that they should presume the missing
tape was favorable to him. Under Thorne and Putnam v. State, 629
P.2d 35 (Alaska 1980), we must resolve Riney's claim by examining
(1) whether the State acted in good or bad faith, (2) the degree of
the State's culpability (including negligence), (3) the importance
of the lost evidence, and (4) the likelihood that Riney suffered
prejudice on account of the loss of this evidence. Thorne, 774 P.2d
at 1331; Putnam, 629 P.2d at 43-44.
Judge Souter's findings (quoted above) suggest that the
State acted in good faith and that the State's level of culpability
was low. Further, the lost evidence appears to have been cumulative
of other evidence already available to Riney þ his own tape-recorded
interview with the police.
Riney argues that the tape of Stevenson's interview might
have contained evidence that the cocaine was found at the police
station, not on Fourth Avenue. He points out that the tape of his
(Riney's) own interview contains certain statements made by Officer
Webster that, if viewed in a light favorable to Riney, tend to show
that the cocaine was found during a station-house search, not during
Riney's initial arrest on Fourth Avenue. (EN4) Riney argues that
if Webster made statements like that during the interrogation of
Riney, then Webster might have made similar statements during the
interrogation of Stevenson.
We find Riney's suggestion speculative at best. Riney
never sought to interrogate Webster or Stevenson regarding the
content of the interview, nor did Riney present any other evidence
suggesting that the missing tape contained statements about when or
where the cocaine was found. Even assuming that this subject came
up during Stevenson's interview, the record contains no indication
that Webster's remarks to Stevenson were any more favorable to Riney
than the statements Webster made during his interrogation of Riney
þ statements that were preserved, that were furnished to Riney, and
that Riney relied on in the superior court.
When we analyze the facts of Riney's case in light of the
factors laid down in Thorne and Putnam, we conclude that Judge
Souter did not abuse his discretion when he refused Riney's request
to instruct the jury that the missing tape of the Stevenson
interview should be presumed to contain additional evidence
favorable to Riney. (EN5)
Conclusion
The judgement of the superior court is AFFIRMED.
ENDNOTES:
1. The Supreme Court promulgated the McNabb/Mallory rule under
its supervisory authority over the federal courts, not as a rule of
constitutional law. Thus, the rule never was binding on the
states. But because McNabb/Mallory was apparently the impetus for
Alaska's Criminal Rule 5(a)(1), this language from Mallory should
be taken into account when interpreting Rule 5(a)(1).
It should be noted that the McNabb/Mallory rule no longer
exists in federal jurisprudence. Congress abolished the rule when
it passed the Omnibus Crime Control and Safe Streets Act of 1968.
Under current federal law, all statements given by an arrestee
within six hours of arrest "shall not be inadmissible solely
because of [the] delay" in bringing the person before a judicial
officer, 18 U.S.C. sec. 3501(c). And even when the arrestee's
initial appearance is delayed longer than six hours, that delay is
merely one factor to be considered in determining whether the
arrestee's confession was voluntary, 18 U.S.C. sec. 3501(b). See,
for example, West v. Johnson, 92 F.3d 1385, 1404-05 (5th Cir.
1996).
2. Indeed, any other result would be surprising. Even when a
person is arrested illegally, the government is still able to use
the person's statements to the police if the government proves that
those statements were not tainted by the illegal arrest. Dunaway
v. New York, 442 U.S. 200, 216-19; 99 S.Ct. at 2258-60; 60 L.Ed.2d
at 838-40 (1979). It seemingly makes no sense to allow the
government to establish harmless error when a defendant is arrested
illegally, but at the same time impose a rule of automatic
suppression when a legally arrested defendant is brought late to
his or her initial appearance. But see Black v. State, 871 P.2d
35, 39 (Okla. Crim. App. 1994) (holding that any statement given
after an unjustified delay of 48 hours or more is presumptively
inadmissible).
3. Under Criminal Rule 16(b)(1)(ii), the State must make pre-
trial disclosure of all "summaries of statements and the substance
of any oral statements made by the accused". Rule 16(b)(1) is
based upon ABA Standard 11-2.1, "Discovery and Procedures Before
Trial". This Standard was intended to cover any statement made by
the defendant "to prosecution or police personnel", as well as a
defendant's statements "to a third party". See Commentary,
Standard 11-2.1(a)(ii) (American Bar Association Standards for
Criminal Justice, (2nd ed. 1980)). The issue raised in Riney's
case is whether a defendant's statements to a third party include
statements the defendant makes on the record to a judicial officer
in open court.
If the answer is "yes", then the State would seemingly be
obliged to furnish written accounts of most if not all of the
defendant's pre-trial appearances. Rule 16(b)(1) does not limit
the State's disclosure obligation to statements that the government
intends to rely upon; rather, the obligation applies to all of a
defendant's statements. Because defendants often testify at sup-
pression hearings, and because defendants generally make at least
some statements at bail hearings, scheduling conferences, omnibus
hearings, and the like, a broad interpretation of Rule 16(b)(1)
would require the State to furnish a summary or transcript of the
defendant's utterances at all of these hearings. To our knowledge,
this is not currently the practice in Alaska.
4. As described above, Riney relied on these statements at the
suppression hearing, but Judge Rowland did not interpret them in
the light most favorable to Riney; instead, the judge concluded
that Webster's statements were consistent with the State's
assertion that the cocaine was found during the initial arrest.
5. We additionally note that Riney's primary argument on appeal
is that the Stevenson tape would have helped him litigate his
suppression motion (by identifying the police station as the site
of the discovery of the cocaine). Suppression motions are decided
by the court, not the jury. Thus, even if Riney had shown that the
missing tape was relevant for this purpose, he still would not have
been entitled to a jury instruction.
