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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
BRIAN A. ANINGAYOU, )
) Court of Appeals No. A-6177
Appellant, ) Trial Court No. 2NO-S95-224CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1558 - December 5, 1997]
______________________________)
Appeal from the Superior Court, Second Judicial
District, Nome, Charles R. Tunley, Judge.
Appearances: Kirsten Bey, Assistant Public
Defender, Nome, and Barbara K. Brink, Public Defender, 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: Coats, Chief Judge, Mannheimer and
Stewart, Judges.
STEWART, Judge.
On a stipulated record, Judge Charles R. Tunley found
Brian A. Aningayou guilty of sexual assault in the first degree.
[Fn. 1] Aningayou appeals, contending that the superior court erred
by denying his motion to suppress statements he made to Alaska State
Trooper Gary L. Johnson.
On April 29, 1995, E.M. was asleep in bed in her home in
Gambell, a village on St. Lawrence Island. She awoke to the sound
of breaking glass. She jumped out of bed, turned on the hallway
light, and was immediately rushed and attacked by Aningayou, who was
wearing a cap and a dark jacket and had apparently cut his hand on
the glass. He grabbed her and started choking her. She struggled
but was barely able to breathe. She bit him on the hand. He was
enraged at her attempts at resistance. He threatened to kill her.
Aningayou removed his pants and her pajama bottoms. While
continuing to assault her, choking her and maintaining his threats
to kill her, Aningayou repeatedly penetrated her anally and
vaginally, causing her excruciating pain.
E.M. noticed that "Sonics" was written on Aningayou's hat,
which came off during the attack. She gave him the hat. Aningayou
left telling her "I'll kill you if you press charges." E.M. never
saw Aningayou's face and could not identify him.
In addition to injuries to her anal and vaginal areas,
Aningayou's assault left E.M. with carpet burns on her elbows and
knees, a split elbow, a damaged patella, bruises on her legs, on her
arms, on her back, on her chest and on her face. She immediately
telephoned for help.
Because of the weather, Troopers from Nome were not able
to fly to Gambell. Troopers Barr and Johnson arrived the next day,
April 30. They examined E.M.'s house. They found blood in the
house and near the broken window. Based on their investigation and
E.M.'s description of the rapist, the Troopers began looking for a
Native male, 5'6" to 5'7" in height, not very skinny, with a "Sonics"
ball cap, hair below the ears, and a cut on the arm or hand. The
physical height and build were common for males in Gambell.
The Troopers started by trying to talk with people who had
a "Sonics" ball cap. They spoke to several people who they thought
had such a hat. Aningayou was among the group identified as having
a "Sonics" hat. The Troopers talked to Aningayou. Aningayou told
Trooper Johnson that he had traded his "Sonics" hat for whiskey the
night before E.M. was attacked, but did not recall with whom he had
traded. He had a cut on his hand, but stated that he had been in
a four-wheeler accident. Johnson spoke with Aningayou a second time
on the 30th. Like the first, the second contact was brief, cordial
and non-confrontational. Although Aningayou had a cut and at one
time had a "Sonics" hat, because of his slender build that did not
match E.M.'s description of the rapist and the small size of the
cut, Johnson did not suspect Aningayou of the attack but presumed
that Aningayou knew who had the hat. The Troopers returned to Nome.
Trooper Johnson went back to Gambell alone. He tried to
contact every male in the village. The Troopers were also checking
airline manifests to contact individuals who had left the island.
Johnson also contacted whaling crews that were returning to the
village.
Prior to leaving the village a second time, Johnson
initiated one more contact with Aningayou. He went to Aningayou's
home wearing his utility uniform, essentially coveralls, and his
sidearm. Aningayou indicated he was willing to talk with Johnson
again. Aningayou preferred Johnson's suggestion to go to the
magistrate's office which was private and empty. As a convenience,
they both rode on a four-wheeler belonging to a village police
officer to the magistrate's office which is on the second floor of
the city office building roughly 100 yards from Aningayou's home.
Aningayou finished a cigarette outside before following Johnson
upstairs.
Johnson closed the office door for privacy since the
building was busy with people using the building's other offices.
The door was not locked. The room was accessible by the public
because at one point in the interview, Aningayou's mother opened the
door and talked to Johnson. Aningayou was not restrained. Johnson
did not state specifically that he was free to go at any time,
though at his house Aningayou heard Johnson tell his father that
Aningayou was not a prime suspect, and that he was not looking to
charge him. Aningayou agreed to have the conversation taped and
clipped a microphone on his clothes.
Johnson thought Aningayou was protecting a third party.
Aningayou stated he was at a party with friends on the Friday night
before the assault, but would not identify the friends. Johnson
warned Aningayou that he would be arrested for hindering prosecution
if he was deliberately obstructing the investigation.
And you've given me a line about your hat, it's not true,
and I know it's not true. And I want to try to take care of that
so I can quit bothering you. And you can get on with it. Because
at this point . . . you're . . . holding up my investigation[.]
[T]hat's going to hinder . . . prosecution and that's a crime. And
you can be arrested for it. But I don't want to arrest you. I
don't want you to get into trouble. I don't need to deal with you.
But if you don't cooperate, I'm telling you right now that you can
go to jail.
Aningayou responded "[i]f you turn this off I'll tell you,"
referring to the tape recorder.
Johnson thought Aningayou was concerned with "squealing,"
and tried to assure him that he would keep the tape confidential so
his friends would not know that he provided information, but Johnson
indicated that he needed a taped record in case Aningayou attempted
to recant.
Aningayou responded "It's me." Johnson did not realize
that Aningayou was identifying himself as the rapist, but quickly
discovered that Aningayou was admitting he raped E.M.
Aningayou indicated that he would tell the truth if he was
not manhandled, referring to a confrontation between Johnson and
Aningayou's brother where the brother insulted Johnson with a racist
remark and they shouted at each other. Johnson emphasized to
Aningayou that he would not be manhandled, that he was not in
custody, and that they were in the office only because it was quiet.
He then advised Aningayou of his Miranda [Fn. 2] rights. Aningayou
indicated he understood those rights.
He then gave Johnson detailed information about breaking
into E.M.'s house, sexually assaulting her, and disposing of his hat
and gloves. At a point in the interview, Aningayou communicated
that he did not want to say any more, but Johnson continued his
questioning. Aningayou was arrested at the conclusion of the
interview and transported out of the village. In Nome, Johnson
conducted another brief interview with Aningayou after again
advising him of his rights.
The superior court granted Aningayou's motion to suppress
from the point in the interview when Aningayou said he did not want
to say any more and Johnson continued to question him. However, the
court ruled that Aningayou's statements prior to that time were not
taken in violation of Miranda. [Fn. 3] Additionally, the court
ruled that Aningayou's statement was voluntary.
We review the superior court's determination that
Aningayou's statement was voluntary by examining the totality of the
circumstances surrounding the statement. State v. Ridgely, 732 P.2d
550, 554 (Alaska 1987). A finding of voluntariness presents a mixed
question of law and fact requiring a three-step inquiry. First, the
trial court must have found the external, historical facts
surrounding the statement. Second, from these external facts, the
court must have inferred an internal, psychological fact: the
mental state of the defendant. Finally, the judge must have
assessed the legal significance of this inferred mental state. See
Troyer v. State, 614 P.2d 313, 318 (Alaska 1980).
The first step of the inquiry, determining historical
fact, is fact-finding. The trial court must weigh the credibility
of witnesses. Therefore, we must defer to the trial judge's
findings of historical fact and overturn them only if they are
clearly erroneous. Id. 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, Ridgely, 732 P.2d at 554.
Aningayou did not attack the superior court's historical
findings. Thus, we must reach an independent determination of
Aningayou's mental state and the legal significance of that mental
state. Factors that have to be considered are the age, mentality,
and prior criminal experience of the defendant; the length,
intensity and frequency of the questioning; the existence of
physical deprivation or mistreatment; and the existence of threat
or inducement. See Sovalik v. State, 612 P.2d 1003, 1006 (Alaska
1980).
Aningayou was a young man, almost twenty, when he was
questioned in Gambell by Trooper Johnson. The record before the
court does not present any issue of mental incapacity in general or
at the time he was questioned. He had had minor contact with the
juvenile system and had no adult criminal record. The final
interview in Gambell was about an hour long. The prior contacts
between Johnson and Aningayou were brief and non-confrontational.
The Gambell interview was not particularly intense. There is no
evidence of deprivation or physical maltreatment. Trooper Johnson
offered no inducement in the legal sense. Arguably, the discussion
of hindering prosecution was a threat.
However, after reviewing the record before this court, we
conclude, as did the superior court, that the state sustained its
burden of proof that the statements were voluntary. Reviewing the
totality of the circumstances in the record before this court, we
cannot conclude that Trooper Johnson's questioning overbore
Aningayou's will. Aningayou himself testified that he wanted to
tell the truth about the attack to somebody, that his parents or
girlfriend were not available choices, and that the time was right
to tell Trooper Johnson.
Aningayou contends that he was in custody when Johnson was
interviewing him in the city building and therefore he should have
been advised of his Miranda rights. A determination of custody for
Miranda purposes is an objective test: would a reasonable person
believe he or she was not free to leave or break off questioning.
Hunter v. State, 590 P.2d 888, 895 (Alaska 1979). The trial court
must consider three groups of facts to answer the question. The
first are facts inherent to the interrogation: the location and
length of the interview, who was present, what the police and the
defendant said and did, the presence of any physical restraint on
the defendant or things equivalent to actual restraint (i.e., drawn
weapons, a guard at the door), and whether the defendant was led to
believe that he or she was being questioned as a suspect or as a
witness. Events preceding the questioning are also relevant,
especially how the defendant arrived at the interview site
whether he came on his own, in response to an officer's request, or
escorted by police officers. Finally, what happened after the
questioning is considered; whether the defendant left freely, was
detained or arrested. Id. We review the evidence in the light most
favorable to upholding the superior court's decision. Beagel v.
State, 813 P.2d 699, 704 (Alaska 1991).
Aningayou testified at the evidentiary hearing on the
suppression motion that Johnson did not say anything that made him
think he was not free to leave. He came to the city building at
Johnson's request. As a matter of convenience, he got a ride on a
four-wheeler belonging to a village police officer to the city
building, but he went up to the magistrate's office unescorted.
There were no actual or threatened physical restraints. Initially,
Aningayou was told he was a potential witness, not a defendant. He
was arrested after the interview.
The paramount and ultimate question is whether there is
a formal arrest or restraint on movement of the degree associated
with formal arrest. See Motta v. State, 911 P.2d 34, 38 (Alaska
App. 1996). The examination of the circumstances of the questioning
is objective, that is, from the point of view of a reasonable,
innocent person. See Long v. State, 837 P.2d 737, 743 n.1 (Alaska
App. 1992).
The superior court found that Aningayou was not in custody
when he arrived at the magistrate's office within the city office
building. Aningayou himself testified that nothing that Trooper
Johnson said made him believe he was not free to leave the
questioning. Furthermore, there was nothing about the setting or
the circumstances surrounding the inception of the interview that
rendered it custodial. We agree with the superior court that
Aningayou was not in custody when the interview began.
However, Aningayou maintains that Johnson's "threatened
arrest" establishes objectively that a reasonable person would not
feel free to break off questioning or leave and thus the questioning
was custodial interrogation requiring Miranda warnings. The
superior court found that Trooper Johnson's discussion of
Aningayou's potential liability for hindering prosecution was not
a threat of arrest, based on the superior court's review of the tape
recording of the interview. Based on our review of the record, we
conclude that this finding is clearly erroneous. Although Aningayou
testified at the suppression hearing that Johnson had not said
anything that made him feel restrained, and that he wanted to talk
to someone about the rape, our analysis is an objective one. From
that prospective, Trooper Johnson's threat to arrest Aningayou for
hindering prosecution if Aningayou did not tell Johnson who had his
"Sonics" hat was sufficient under the analysis of Hunter to require
Miranda warnings irrespective of Johnson's subjective belief that
Aningayou was not a suspect. We believe that a reasonable person
in Aningayou's position would interpret Trooper Johnson's remarks
as requiring Aningayou to respond concerning who had the hat. If
a reasonable person in Aningayou's position did not respond, he
could reasonably infer that he would be arrested for hindering
prosecution. Although it appears that Trooper Johnson was
questioning Aningayou as a witness and not as a suspect, at that
point in the questioning, a reasonable person in Aningayou's
position would not have felt he was free to leave or to break off
questioning. See Edwards v. State, 842 P.2d 1281, 1285 (Alaska App.
1992) (interviewee in custody under Hunter analysis when officer
threatens arrest unless interviewee responds to officer's
questioning). Therefore, we conclude that the statements made by
Aningayou immediately after Johnson discussed Aningayou's
culpability for hindering prosecution must be suppressed.
We must remand the case to the superior court for a
determination under Halberg v. State, 903 P.2d 1090 (Alaska App.
1995), as to which of Aningayou's ensuing statements were tainted
by the initial Miranda violation and whether suppression of this
evidence required above casts reasonable doubt on Aningayou's
conviction. The judgment of the superior court is REMANDED and
jurisdiction is retained.
FOOTNOTES
Footnote 1:
The parties agreed to the dismissal of a separate count of
first-degree burglary.
Footnote 2:
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966).
Footnote 3:
The record does not reflect that the parties litigated or the
superior court ruled on the legality of the interview at the Nome
trooper office.
