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Miller v. State (2/9/01) ap-1719
Miller v. State (2/9/01) ap-1719
NOTICE
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opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DOUGLAS MILLER, )
) Court of Appeals No. A-7333
Appellant, ) Trial Court No. 4FA-S98-2285 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1719 - February 9, 2001]
)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Niesje J. Steinkruger and Jane F. Kauvar,
Judges.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. John A. Scukanec, Assistant Attorney
General, Office of Special Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
COATS, Chief Judge.
While investigating a fire of suspicious origins, the
police questioned suspect Douglas Miller. Miller denied involvement
in the fire. After the police assured Miller that if he started the
fire by accident it was "not that big a thing" and would be "an over
and done deal," Miller admitted that he had set fire to a block of
insulation but thought he had fully extinguished it. The state
charged Miller with arson for setting the fire and he was convicted.
We conclude that Miller's statement to the police was involuntary
because it was induced by an implied promise not to prosecute Miller
for a serious offense if he started the fire by accident. Further,
we conclude that the jury may have convicted Miller even if it
substantially believed his account of how the fire started, an
account consistent with a reasonable understanding of "accident."
We therefore reverse Miller's convictions.
Douglas Miller was residing without permission in a vacant
warehouse in Fairbanks. On July 26, 1998, the warehouse caught on
fire and the lower portion was extensively burned. The upstairs
office was not burned. A witness to the fire observed Miller
standing near the warehouse.
Deputy Fire Marshall Andrew F. Garcia determined that the
fire had originated above the bumper of a bus that was located in
the warehouse. The fire had then spread to the warehouse.
That night, Fairbanks Police Department Detective Leonard
C. Brown interviewed Miller at the police station. During that
interview, the police told Miller that he was free to leave at any
time. Miller denied involvement with the fire. At the end of the
interview at the station, Detective Brown drove Miller back to the
warehouse to look for his belongings. Detective Brown went into the
warehouse and saw two drawings and graffiti in the upstairs office.
Detective Brown asked Miller if he was responsible for the drawings,
and Miller said he was.
The next day, Miller was hitch-hiking on the Johansen
Expressway in Fairbanks. Eric Engman, a photographer for the
Fairbanks News-Miner, pulled up to photograph Miller. After
photographing Miller, he offered Miller a ride. Before Miller took
the ride, Detective Brown and Fairbanks Police Department Detective
Aaron Ring arrived in an unmarked car. They pulled up between Miller
and Engman's car. The detectives began to interview Miller. The
detectives told Miller he was not under arrest. They did not tell
Miller that he was free to leave.
After a few minutes, Detective Ring went over to Engman.
Detective Ring identified himself and asked who Engman was. Engman
told Ring that he was a photographer and that he was considering
giving Miller a ride. Detective Ring left Engman, but came back a
few minutes later. Ring told Engman that Miller had a criminal
record and they needed to talk to Miller. Ring said that he would
suggest that Engman not give Miller a ride. Miller did not hear
what Ring said to Engman. Engman left without Miller.
The police interviewed Miller for approximately forty-five
minutes on the expressway. During the interview, the police assured
Miller that if he started the fire accidently "[I]t's not that big
a thing . . . not that big a thing at all." They told him if
starting the fire was an accident, "[i]t's done with. It's an over
and done deal." They assured Miller that they were not there to
arrest him. After these assurances, Miller told the police that he
had burned some foam insulation to turn it into a piece of artwork.
He had then poured catsup on the insulation to make sure it was out.
He said he had put the insulation up against the bus. He said he
had no intention of setting the bus or the building on fire.
At the end of the interview, Miller asked the detectives
to clear up the situation by calling the district attorney.
Detective Brown did so and was told to arrest Miller. The
detectives did. The detectives had not previously planned to arrest
Miller.
The next day, Miller called Detective Ring. Miller told
Ring that he didn't have anything to do with the fire. Miller said
that he had flicked a cigarette into a pile of paper and had not
checked on it, and maybe that was how the fire started.
Miller was charged with two counts of first-degree arson,
one count of second-degree arson, and one count of criminal
trespass. Before trial, Miller moved to suppress his confession
on the ground that he was in custody when he made his statements to
the police and that the police had not warned him of his rights,
thereby violating Miranda v. Arizona. [Fn. 1] He also argued that
his statement was involuntary because the police had obtained his
statement by representing that they would not prosecute him for
accidently starting a fire. After an evidentiary hearing, Superior
Court Judge Niesje J. Steinkruger found that Miller had been placed
in Miranda custody only after the detective finished speaking with
the district attorney. Judge Steinkruger therefore suppressed only
the statements Miller made to the police after that time. Judge
Steinkruger found that Miller's confession was voluntary.
Superior Court Judge pro tem Jane F. Kauvar conducted
Miller's jury trial. The jury convicted Miller of one count of
first-degree arson, two counts of criminally negligent burning, and
one count of criminal trespass. Judge Kauvar ruled that the counts
of criminally negligent burning merged with the count of first-
degree arson, and sentenced Miller to five years in prison plus a
thirty day suspended sentence. This appeal followed.
Miller contends that Judge Steinkruger erred in refusing
to suppress the statement that he made to Detectives Brown and Ring
when they questioned him beside the Johansen Expressway because he
was in custody and the police officers did not give him Miranda
warnings.
In Hunter v. State, [Fn. 2] the Alaska Supreme Court
adopted a reasonable person objective test for determining whether
a person was in custody. [Fn. 3] Custody occurs when there is "some
actual indication of custody, such that a reasonable person would
feel he was not free to leave and break off police questioning." [Fn.
4]
In arguing that he was in custody, Miller points out that
the police sent away his ride, that although he was told he was not
under arrest, he was never told he was free to go, and that he was
arrested following the interview.
In ruling against Miller, Judge Steinkruger found that the
interview occurred in the middle of the afternoon beside the
Johansen Expressway. The officers were in an unmarked car and were
not in uniform. The police never placed Miller under any restraint
and repeatedly told Miller that he was not under arrest and that
they would give him a ride if he needed one. She pointed out that
the police had previously questioned Miller and had given him a ride
to where he wanted to go at the conclusion of the interview.
Although the police did arrest Miller at the conclusion of the most
recent interview, she found that the evidence showed that this was
not their original intent. The police arrested Miller only because
he asked them to call the district attorney's office to clear up his
situation. When the police called the district attorney's office,
they were directed to arrest Miller.
We conclude that Judge Steinkruger's findings are
supported by the record and support her decision that Miller was not
in custody until he was arrested at the direction of the district
attorney's office. Officer Brown had previously questioned Miller,
giving him a ride to where he wanted to go at the conclusion of the
interview. Judge Steinkruger could reasonably conclude that both
the police and Miller would have reasonably believed that this
scenario would repeat itself. The officers constantly assured
Miller that he was not under arrest and told him that if he had
accidently started the fire it was not a "big deal." She could also
reasonably conclude that Miller's action of directing the police to
call the district attorney's office to clear up the situation
demonstrated that Miller did not act as though he was in custody.
Miller next contends that Judge Steinkruger erred in
determining that his statement was voluntary. Miller points out
that the police made statements to him that suggested that he would
not be prosecuted if he started the fire by accident. He argues
that he confessed to the police only because he had been assured he
would not be in trouble for a fire started by accident.
In determining whether a confession is voluntary, we
review the trial judge's findings of historical fact deferentially
and overturn those findings only if they are clearly erroneous. [Fn.
5] But in determining the defendant's mental state and its legal
significance, we independently examine the record and base our
conclusion about whether the statement is voluntary upon the
totality of the circumstances surrounding the confession. [Fn. 6]
Among the circumstances courts consider in determining the
voluntariness of a confession are "the age, mentality, and prior
criminal experience of the accused; the length, intensity and
frequency of the interrogation; the existence of physical
deprivation or mistreatment; and the existence of threat or
inducement." [Fn. 7] In this case, the primary circumstance that
we must consider is whether the promises and inducements that the
police offered were sufficient to make Miller's statement
involuntary. Not all statements obtained by promises or trickery
are involuntary. The supreme court has stated:
We have thus expressly "reject[ed] a per
se rule which would condemn any incriminatory
statement obtained by means of a promissory inducement," and have
instead adopted a "totality of circumstances" approach in examining
the voluntariness of an accused's confession. We have employed this
multi-factor analysis even when police have engaged in improper
conduct to induce confessions, and we have affirmed the
voluntariness of inculpatory statements induced by police trickery
and misrepresentation of evidence. [Fn. 8]
Miller relies on Smith v. State. [Fn. 9] In Smith, the
state troopers were investigating a single car accident. The driver
of the car was not present at the scene, but the troopers learned
that Smith was the owner. The troopers located Smith, who denied
driving. Smith agreed to go to the accident scene to take care of
his car. [Fn. 10] At the scene, a state trooper told Smith that he
suspected that Smith was the driver because he had been drinking and
had a bump on his forehead. But he assured Smith that he was "not
interested in prosecuting anyone for drunk driving" but only wanted
to find out who had been driving. Smith immediately confessed that
he had been the driver. [Fn. 11] The state prosecuted Smith. Smith
filed a motion to suppress his confession on the ground that his
statements were not voluntary because they had been induced by a
promise to not prosecute him. The trial court denied Smith's
motion to suppress. Smith was ultimately convicted of driving while
his license was revoked and reckless driving. [Fn. 12]
On appeal, Smith contended that the trial court erred in
denying his motion to suppress. [Fn. 13] We agreed with Smith that
his statement was involuntary and therefore inadmissible:
Here, Smith found himself in a situation
which, although arguably not actually custodial, was at least quasi-
custodial. When confronted by the police in the setting, his
initial response was to deny involvement. The police thereafter
expressly assured Smith that they were seeking information for
limited purposes and had no interest in pursuing a charge of DWI
against him. Smith's confession followed directly on the heels of
this assurance. Under the circumstances, we hold that Smith's
confession was plainly induced by the promise of leniency and must
consequently be deemed involuntary. [Fn. 14]
As we have previously stated, however, not all statements
induced by promises are involuntary. For instance, in Chase v.
State, [Fn. 15] Chase was under investigation for the murder and
first-degree sexual assault of a young woman. [Fn. 16] The police
officer investigating the offense questioned Chase because he had
been at a party at the victim's house on the night of the murder.
When Chase asked the officer if his statements could lead to a
charge of statutory rape, the officer replied that he was
investigating the murder and that he was not going to charge Chase
for having had sexual contact with the young woman. [Fn. 17] After
Chase confessed to murder, he contended that his statements had been
induced by the officer's promises. This court upheld the trial
judge's ruling that Chase's statements were voluntary because it was
clear that the officer's promises were limited to not charging Chase
for statutory rape, not the more serious murder and forceful rape
charges. [Fn. 18]
In the instant case, the officers assured Miller that they
were not there to arrest him and that it was "no big deal" if he
started the fire accidently. However, they also told him that it
would be another matter entirely if he had intentionally started the
fire. Miller admitted that he intentionally burned the insulation
block and put the block up against the bus. But Miller also
explained that he had put catsup on the block to extinguish the fire
and had believed it was out.
We assume that if the state had charged and prosecuted
Miller with intentionally setting fire to the bus or building,
Miller's statements would be considered voluntary if admitted in
support of those charges. However, it appears from the way that the
state presented the charges at trial that the jury could have found
Miller guilty based upon his account that he accidently started the
fire.
Miller was convicted of one count of arson in the first
degree. The indictment for arson in the first degree charged that
Miller did "intentionally damage property, insulation blocks and/or
the building and/or contents at 2150 Phillips Field Road, by
starting a fire . . . and by that act recklessly placed . . .
fireman Pat Meade . . . in danger of serious physical injury." [Fn.
19] The jury instructions tracked the indictment. At trial, the
prosecutor's main contention was that Miller had intentionally set
fire to the bus. But, in argument, the prosecutor pointed out that
Miller had admitted intentionally burning the insulation block and
that this was sufficient to show that he had intentionally damaged
property. Thus the jury did not have to find that Miller
intentionally set fire to the bus to convict Miller of arson in the
first degree. The jurors could have convicted him based on his
admission to the officers that he set fire to the insulation block.
Miller was also charged with arson in the second degree
for intentionally setting fire to the building. The jury acquitted
Miller on this charge, convicting him of the lesser offense of
criminally negligent burning. Thus the jury acquitted Miller of the
one charge that required it to find that he set fire to anything but
the insulation block intentionally.
Because the jury did not convict Miller of intentionally
setting fire to the building and did not necessarily conclude that
Miller intentionally set fire to the bus, we are unable to tell if
the jury concluded that Miller intentionally set fire to anything
besides the insulation block. Therefore, Miller could well have
been convicted of these charges based upon his statement that he had
intentionally burned the insulation block but the larger fire was
an accident.
In this case, we believe that Smith is controlling.
Several times during his interrogation, the police made statements
that suggested that Miller would not be in any trouble if he had
accidently started the fire. They implied to Miller that if the
fire was accidental they would not arrest him and that it would be
"not that big a thing" and "an over and done deal." Although
originally denying several times that he had anything to do with the
fire, after these inducements Miller admitted that he had burned a
piece of foam insulation to turn it into a piece of artwork. He
admitted that he had placed this insulation over by the bus but also
stated that he had thoroughly doused the insulation with catsup so
that he believed that it had been extinguished. But he suggested
that the fire could possibly have started from the insulation.
Miller's account can reasonably be understood as describing an
accident. Since the police essentially told Miller that he would
not be prosecuted for accidentally starting the fire, we conclude
that the officers offered an improper inducement for Miller's
statements and that the statements are involuntary. [Fn. 20] We
therefore conclude that the court erred in failing to suppress these
statements. Since the convictions against Miller were obtained
through use of these statements, we reverse Miller's convictions.
The convictions are REVERSED.
FOOTNOTES
Footnote 1:
384 U.S. 436, 86 S.Ct. 1602 (1966).
Footnote 2:
590 P.2d 888 (Alaska 1979).
Footnote 3:
See id. at 894-95.
Footnote 4:
Id. at 895.
Footnote 5:
See Aningayou v. State, 949 P.2d 963, 966 (Alaska App. 1997).
Footnote 6:
See Beavers v. State, 998 P.2d 1040, 1044 (Alaska 2000).
Footnote 7:
Sprague v. State, 590 P.2d 410, 414 (Alaska 1979), quoting
Brown v. United States, 356 F.2d 230, 232 (10th Cir. 1966).
Footnote 8:
Beavers, 998 P.2d at 1045 (citations omitted).
Footnote 9:
787 P.2d 1038 (Alaska App. 1990).
Footnote 10:
See id.
Footnote 11:
See id. at 1038-39.
Footnote 12:
See id at 1039.
Footnote 13:
See id.
Footnote 14:
Id.
Footnote 15:
678 P.2d 1347 (Alaska App. 1984).
Footnote 16:
See id. at 1349.
Footnote 17:
See id. at 1355.
Footnote 18:
See id.
Footnote 19:
Miller was acquitted of a second count of arson in the first
degree, which involved another person.
Footnote 20:
See State v. Burr, 615 P.2d 635 (Ariz. 1980); State v.
Tamerius, 449 N.W.2d 535 (Neb. 1989) (promise to not arrest
equivalent to promise to not prosecute).
