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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STEVEN A. McNEILL, )
) Court of Appeals No. A-7001
Appellant, ) Trial Court No. 4FA-97-3806 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1643 July 30, 1999]
______________________________)
Appeal from the District Court, Fourth Judicial
District, Fairbanks, Herschel E. Crutchfield, Judge.
Appearances: Richard W. Wright, Fairbanks, for
Appellant. Leslie N. Dickson, Assistant District Attorney, Harry
L. Davis, District Attorney, Fairbanks, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
Two state troopers came to McNeill's house to investigate
an on-going domestic disturbance between McNeill and his wife. Just
as the troopers were about to begin questioning McNeill, he ordered
them to "get the hell out" of his house. The troopers refused to
leave until McNeill explained what was going on. The primary issue
presented in this appeal is whether, under these circumstances, the
troopers were obliged to administer Miranda warnings to McNeill
before they questioned him. As explained below, we conclude that
McNeill was not in custody for Miranda purposes at this time, and
therefore the troopers did not need to advise McNeill of his rights.
The Miranda issue
Late in the evening of December 8, 1997, Steven A. McNeill
got into a fight with his wife, and his wife called 911. Two state
troopers were dispatched to the McNeill residence in response to
this call. When they arrived, McNeill's wife was still on the phone
to the 911 dispatcher. Ms. McNeill met the troopers outside the
residence and told them that her head hurt; she said that McNeill
had thrown his coat at her and that something hard in the coat
pocket had struck her in the head. One of the troopers examined Ms.
McNeill's head and observed swelling and bruising. Ms. McNeill also
told the troopers that, because of her fear of her husband, she had
armed herself with a handgun. However, Ms. McNeill then declared
that her head injury was the result of an accident and that it was
"no big deal".
The troopers decided to speak with McNeill (who was still
inside the house). McNeill at first invited the troopers into the
house, and he does not claim that their entry constituted a
trespass. But McNeill soon reconsidered his decision; he told the
troopers to "get the hell out of [his] house and leave [him] alone."
Given the circumstances, the troopers refused to leave until they
could determine what was going on between McNeill and his wife. The
troopers told McNeill, "[We] will [leave] as soon as you tell [us]
what's going on."
In the ensuing conversation, McNeill told the troopers
that he had "tossed" his coat at his wife, and that a hard object
in the pocket (which McNeill identified as "a couple of CD-ROMs")
struck his wife in the head. The troopers believed that McNeill
might have assaulted his wife, but they nevertheless gave him the
option of leaving the house rather than being arrested. McNeill
would have none of this; he refused to leave and instead demanded
to be arrested. He also insisted that the troopers arrest his wife
because she had pointed a gun at him. After the troopers concluded
to their satisfaction that McNeill had been the initial aggressor,
they arrested him for fourth-degree assault. [Fn. 1]
McNeill was tried in the district court. In the middle
of his trial, McNeill asked District Court Judge Herschel E.
Crutchfield to suppress the statements he made to the troopers on
the evening of his arrest in particular, his statement that he
had tossed his coat at his wife. McNeill claimed that he had been
in custody during his conversation with the troopers, and he argued
that his statements should be suppressed because the troopers had
not given him Miranda warnings. [Fn. 2]
Because McNeill waited until trial to make this motion,
and because he failed to offer any reason for waiting so long to
make the motion, McNeill apparently forfeited his right to raise
this suppression issue. See Alaska Criminal Rule 12(b)(3) and (e).
Nevertheless, Judge Crutchfield allowed McNeill to litigate his
motion. [Fn. 3] Following a hearing, the judge concluded that
McNeill had not been in custody when he conversed with the troopers;
the judge therefore refused to suppress McNeill's statements.
On appeal, McNeill argues that he was obviously in
custody, since the troopers suspected him of assaulting his wife and
because they refused to leave him alone and get out of his house.
But the fact that McNeill may have been the focus of police
suspicion does not mean that he was in custody for Miranda purposes.
[Fn. 4]
McNeill points to the fact that the troopers refused to
leave his house until he talked to them. Generally, in determining
whether a person is in custody for Miranda purposes, a court must
ask whether, "under the circumstances of the police interaction with
the suspect, ... a reasonable person [would] have felt free to break
off the interrogation and, depending on the location, either leave
or ask the police to leave". [Fn. 5] McNeill relies on this last
phrase of the custody test; he contends that he was obviously in
custody because the troopers openly refused to leave his house when
he asked them to.
But this formulation of the Miranda custody test is
somewhat inexact. This wording suggests that Miranda warnings will
be required whenever a person is "seized" for Fourth Amendment
purposes, but that is not the law. The cases applying Miranda
recognize that there are some Fourth Amendment seizures of temporary
duration most notably, routine traffic stops and other
investigative stops in which Miranda warnings are not required,
even though the person is temporarily in custody and the police can
properly ignore a request that the officers depart and leave the
person alone. [Fn. 6]
To the extent that there was a Fourth Amendment seizure
in McNeill's case, that seizure was of temporary duration for
investigative purposes, and it fell short of Miranda custody. The
troopers had plenty of reason to intervene at the McNeill household
and investigate what was going on. They had come to the McNeills'
home in response to Ms. McNeill's 911 call. A domestic disturbance
was either ongoing or had just ended. McNeill's wife had suffered
a head injury, and she told the troopers that she had armed herself
with a handgun. To confuse matters, Ms. McNeill claimed that her
husband had injured her accidentally, and that the occurrence was
"no big deal". Thus, when the troopers went into the house to speak
to McNeill, it was still unclear what had happened. Moreover, the
officers could reasonably suspect that the domestic disturbance
might continue or escalate if they left without investigating. We
hold that, under these circumstances, the troopers were entitled to
remain in the house temporarily and question McNeill without giving
him Miranda warnings.
In reaching this decision, we are mindful of two previous
cases in which we held that defendants who were subjected to
investigative questioning inside their houses were, in fact, held
in custody for Miranda purposes. In Moss v. State [Fn. 7] and
Higgins v. State [Fn. 8], police officers with guns drawn forcibly
entered a residence and maintained control over the people inside
the home while the officers conducted a search. Even though the
police announced that the defendants were not under arrest, the
officers subjected the defendants to lengthy questioning. In both
cases, although we conceded that the issue was close, we held that
the defendants had been in Miranda custody when they were
questioned. [Fn. 9]
McNeill's case is different. The troopers' approach to
McNeill was peaceable; they made no show of force, and they gave no
other indication that they wished to arrest McNeill or detain him
for a lengthy period. Quite the opposite. Although the troopers
insisted on finding out "what [was] going on", they actively told
McNeill that they did not wish to arrest him. The troopers in fact
suggested that, although McNeill might be guilty of assault, they
were willing to forego an arrest if McNeill would promise to leave
the residence for the rest of the night.
In assessing whether an investigative stop has ripened
into Miranda custody, we must ask whether, from the point of view
of a reasonable person in the defendant's position, "[the] stop
exerts ... pressures that sufficiently impair [the defendant's] free
exercise of the privilege against self-incrimination to require that
[the defendant] be warned of his constitutional rights". [Fn. 10]
McNeill was not subjected to such pressures. The troopers therefore
could question McNeill without giving him Miranda warnings.
As an alternative basis for our decision, we also note
that the troopers had been called to the scene of an ongoing
domestic disturbance. McNeill's wife was injured, and she told the
troopers that she had armed herself with a handgun because of her
fear of her husband. It was still unclear what had happened, or
what might happen if the troopers left. Under the "on-the-scene
questioning" exception recognized by this court in McCracken v.
State [Fn. 11], the troopers' initial request for McNeill to "tell
[them] what [was] going on" did not qualify as "interrogation" for
purposes of the Miranda rule.
Accordingly, we conclude that the district court properly
denied McNeill's suppression motion.
Ms. McNeill's prior consistent statement
McNeill raises one other issue in this appeal: he claims
that he was improperly prevented from introducing hearsay evidence
of statements his wife made at his arraignment.
McNeill was arraigned approximately thirteen hours after
his arrest. At the arraignment, Ms. McNeill asked that the assault
charge against her husband be dropped. She declared that McNeill
had not hurt her. She also declared that her head injury had been
caused by accident when she was struck by a set of keys in McNeill's
coat pocket. According to Ms. McNeill, her husband had not
intentionally struck her; rather, she "just happened to be in the
way of the coat".
(As explained in the first section of this opinion,
Ms. McNeill told this same basic story to the troopers who arrived
in response to her 911 call. Specifically, she told the troopers
that her head injury was the result of an accident and that it was
"no big deal".)
Ms. McNeill was called as a witness at McNeill's trial,
and she testified that her husband had not assaulted her. Ms.
McNeill explained that she and her husband had been arguing and that
her husband, with coat in hand, had gestured with his arm. In
making this gesture, Mr. McNeill had "turned loose of the coat", and
the coat then collided with Ms. McNeill's head.
To counteract this exculpatory testimony, the prosecutor
asked Ms. McNeill a series of questions suggesting that she had
altered her account of the incident in order to help her husband's
defense. Then, responding to this attack on Ms. McNeill's
credibility, McNeill's attorney asked permission to introduce Ms.
McNeill's statements at her husband's arraignment as prior
consistent statements under Evidence Rule 801(d)(1)(B).
Judge Crutchfield refused to allow the defense to
introduce Ms. McNeill's statements at the arraignment. However, the
judge did allow defense counsel to elicit testimony (a) that Ms.
McNeill had made prior statements about the occurrence, (b) that she
made these statements before her husband hired a lawyer to defend
him, and (c) that these statements were consistent with her trial
testimony.
On appeal, McNeill contends that he should have been
allowed to introduce his wife's specific statements from the
arraignment. But even if this were true, we conclude that McNeill
was not prejudiced by the claimed error. During Ms. McNeill's trial
testimony, the jury heard her explain that she had been injured by
accident when she was struck by an object in her husband's coat.
In addition, one of the two troopers who responded to the 911 call
testified that Ms. McNeill had said basically the same thing on the
night of the occurrence that her injury was caused accidentally
when her husband tossed his coat at her and she was hit by a hard
object in the coat pocket. Thus, the jury was provided with
particularized evidentiary support for Ms. McNeill's assertions that
she had made prior statements about the incident and that these
statements were consistent with her trial testimony.
On this record, we are convinced that even if Judge
Crutchfield's ruling was error, that error did not appreciably
affect the jury's decision of this case. [Fn. 12]
Conclusion
We have concluded that the troopers did not need to give
Miranda warnings to McNeill. We have further concluded that the
jury's verdict was not appreciably affected by any error in the
trial court's ruling concerning Ms. McNeill's prior consistent
statements. Accordingly, the judgement of the district court is
AFFIRMED.
FOOTNOTES
Footnote 1:
AS 11.41.230(a).
Footnote 2:
See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Footnote 3:
The State does not challenge this procedural irregularity.
Footnote 4:
See United States v. Beckwith, 425 U.S. 341, 346-47; 96 S.Ct. 1612, 1616-17; 48 L.Ed.2d
1, 5 (1976); Hunter v. State, 590 P.2d 888, 892-93 (Alaska 1979).
Footnote 5:
Long v. State, 837 P.2d 737, 740 (Alaska App. 1992).
Footnote 6:
See Berkemer v. McCarty, 468 U.S. 420, 439-440; 104 S.Ct. 3138, 3150; 82 L.Ed.2d 317
(1984) (holding that Miranda does not apply when a motorist is subjected to roadside questioning
during a routine traffic stop, and indicating that Miranda does not apply to investigative questioning
during a Terry stop); Blake v. State, 763 P.2d 511, 514-15 (Alaska App. 1988) (holding that police
officers are not required to give Miranda warnings during an investigative stop unless and until
the initial stop ripens into "custody").
Footnote 7:
823 P.2d 671 (Alaska App. 1991).
Footnote 8:
887 P.2d 966 (Alaska App. 1994).
Footnote 9:
See Moss, 823 P.2d at 675; Higgins, 887 P.2d at 971.
Footnote 10:
Berkemer v. McCarty, 468 U.S. at 437, 104 S.Ct. at 3149.
Footnote 11:
914 P.2d 893, 896 (Alaska App. 1996). See also State v. Salit, 613 P.2d 245, 257 (Alaska
1980); Beagel v. State, 813 P.2d 699, 705 (Alaska App. 1991).
Footnote 12:
See Love v. State, 457 P.2d 622, 631-32 (Alaska 1969) (holding that non-constitutional
error will not require reversal of a conviction unless the error "substantially" or "appreciably"
affected the verdict).
