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Jones v. State (3/14/2003) ap-1860
Jones v. State (3/14/2003) ap-1860
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
REGINALD R. JONES, JR., )
) Court of Appeals No.
A-7826
Appellant, )
Trial Court No. 3AN-S98-6112 CR
)
v. ) O P I
N I O N
)
STATE OF ALASKA, )
)
Appellee, )
[No. 1860 March 14, 2003]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: Dan S. Bair, Anchorage, for
Appellant. John A. Scukanec, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Petitioner.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
During his custodial interrogation, Reginald R. Jones,
Jr., asked his interrogator several times if they could speak off
the record. The officer agreed that Jones could speak off the
record, between you and me. The conversation was actually
recorded and Jones made several damaging admissions. After the
grand jury indicted him, Jones moved to suppress the off the
record statements. The superior court denied Joness motion and
much of Joness statement was admitted at trial.
Based on our independent evaluation of the record, we
conclude that Joness statement was involuntary. Because the
admission of Joness involuntary statement was not harmless error,
we reverse the superior court.
Background facts
Jones and two other males were charged with sexually
penetrating E.C., a fourteen-year-old female, on April 18, 1998,
without her consent. On July 20, 1998, the Anchorage police
arrested Jones for two counts of first-degree sexual assault and
two counts of second-degree sexual abuse of a minor.1 Detective
Harold Strahle questioned Jones when Jones was in custody at the
police station in an interview room. Strahle started the
interview by advising Jones of his Miranda rights.2 Jones said
he understood his rights and agreed to talk with Strahle. Jones
also signed a form waiving his rights.
At first, only Strahle questioned Jones. During this
first part, Jones admitted that he attended a party at the
victims home, but claimed that he was very drunk and could not
remember everything that happened there. However, Jones denied
any wrongdoing, and specifically denied any intercourse with E.C.
Jones remarked that he could not snitch or tell on anyone.
Strahle suggested a number of times that the interview
was Joness chance to tell his story; Jones commented several
times that he had to see something in writing before he would
talk. Jones also asked whether there was any way he could beat
this or get around this. Strahle said that he could not promise
Jones anything and advised Jones that he could not drop any
charges. Jones stated several times that he was going to jail
for this no matter what, moren likely, cause Im black, Im young
... .
Detective Alvin Kennedy, an African American police
officer, joined the interview. Both Kennedy and Strahle
continued questioning Jones but Jones continued to deny sexual
assault or any sexual contact with the victim. Kennedy
encouraged Jones to look out for himself, and told him that he
knew the other suspects and that they would do the same. The
officers explained how aggravators and mitigators work during
sentencing3 and talked about how unfounded charges would be
dropped. They told Jones they did not think he was a bad guy,
that they did not believe he initiated the assault, and that he
might be as much a victim as E.C. They mentioned Joness own
children, and asked Jones how he would feel if his daughter was
assaulted.
Jones said he thought the officers were trying to trick
him, that whatever he did would not make any difference, that
none of the charges would be dropped, that he was going to jail
for 20 years, and again he declined to implicate the other
suspects. However, Jones offered to say something if the
detectives could tell him that some charges would be dropped.
Again, the detectives refused to make any promise. During this
part of the interview, Jones requested and was granted some time
alone. The detectives offered him coffee or a soft drink, but
Jones declined.
Strahle announced he was leaving to interview the other
suspects and said specifically that he was taking the tape
recorder and stuff. Strahle told Kennedy he could continue to
talk with Jones to see if he wants to decide to change his mind
or not.
After Strahle left, Kennedy asked Jones whether or not
he had tried to help E.C. Jones said that he was scared, that
Dew (Joness co-defendant Kevick Pruitt, also called K) had a gun,
that he had pointed the gun at Jones before, and that K told him
to hurry up and start doin something. Jones claimed that he
thought K might hit him with the gun, and that he had told E.C.
that he was scared too. Jones alleged that K told him to get in
behind.
At this point, the following exchange occurred:
Jones: This is off the record, right?
Kennedy: You and I ... theres no tape
recorder.
Jones: Seriously _________ officer ...
Kennedy: This is tween you and I, and
everybody know what I say is tween
you and I what that means. You ask
around about me. When I say its
between you and I, its between you
and I.
Jones: This is off the record?
Kennedy: Off the record between you and I.
Jones: Yeah ... I know yall got about 15
mikes in here ... tryin to get
nobody in trouble ... I gotta get
this off my chest man ... cause I
been holdin it in man ... the only
person I tolds my girl ... Dude,
every time I kickin with him I get
in trouble.
After this, Jones discussed some of the events without
any significant detail about his alleged misconduct. Kennedy
left the interview room momentarily and when he returned, Jones
asked who else the police were interviewing. He told Kennedy one
person who was not involved. Kennedy then asked about one of
Joness co-defendants whose nickname was Short:
Kennedy: ... What about Short?
Jones: Is this still off the record?
Kennedy: You and I talking ... Im trying to
get you to realize how important
this is for you.
Jones: I dont know man.
Kennedy: And see the way youre sitting here
... just you and I conversin back
and forth ... he [Detective
Strahle] can come in here and turn
that tape recorder on and you can
converse with him the same way ...
but you gotta be comfortable what
youre doin? OK. ...
After this, Jones admitted he had sex with E.C.: ... Im gonna
say this ... I mean I did have sex with her but I ... I aint even
... I aint even _________ havin sex or whatever, I dont know ...
all I know is she kept sayin she wanted to do with me, only.
Jones next said that both he and Kevick had sex with the victim.
Kennedy sought details:
Kennedy: Whatd he do to her?
Jones: I dont know.
Kennedy: You know what happened ... whatd he
do to her?
Jones: Whatj you mean?
Kennedy: Whatd he ... whatd he do?
Jones: Just ... nn ... is this off the ...
________ got a ... got a tape
recorder in there ...
Kennedy: No, it aint no tape recorder ...
Jones: A video camera ...
Kennedy: Video camera, whatever, just
me and you talkin man ... gotta
have a tape in the thing for it to
record ...
Jones: The lights on ...
Kennedy: Lights always on ... secretaries
work back there, thats who you keep
hearing going in and out that door
... thats where all the typings
done at.
Jones then described the various acts of sexual penetration
performed by himself and his two co-defendants. He also admitted
that he knew E.C. was fourteen years old, but maintained that
E.C. wanted to have sex with him but not the others.
After Jones finished with the story, Kennedy suggested
he tell it to Strahle. Jones replied, Yeah, I think I might as
well ... When Strahle came back into the room and Kennedy left,
Strahle continued the ruse that what Jones told Kennedy had been
confidential. They discussed the possibility that the assault
charges could be dismissed, and Strahle told Jones that only the
district attorney changes charges. Jones offered to tell his
story to the district attorney directly, and asked Strahle if
they were speaking on record. Strahle verified that they were on
the record, and assured Jones that it was not necessary to wait
and tell the district attorney.
Strahle said that he did not know what Jones had told
Kennedy, but that, Im gonna find out ... and ... yknow if I have
to bring [Kennedy] into court and say ... this is what he told
me, I will, and I dont want to ... . Jones responded, But he
cant do that because its off the record ... officer I know that
one.
Jones asked Strahle if he could tell him his story, and
Strahle said, Yeah ... you gonna let me turn the tape recorder
on, well go through it. Jones agreed, and Strahle re-advised him
of his rights. However, Jones invoked his right to counsel.
The grand jury returned an indictment that charged
Jones with two counts of first-degree sexual assault and two
counts of second-degree sexual abuse of a minor. Jones moved to
suppress his statement. Superior Court Judge Larry D. Card
suppressed all that occurred after Jones invoked his right to
counsel. Judge Card found that Jones had prior experience with
the police and had been previously convicted of an offense. He
found that the questioning was relaxed, that Jones did not suffer
any physical deprivation or mistreatment, that he was treated
very well at all times, and was allowed time to relax and be
alone upon request. Judge Card also found that no threats were
made against Jones, and that no inducements were offered.
Although the police deceived Jones by recording his statement,
Judge Card ruled that the statement the police said was off the
record was nonetheless voluntary. At trial, the State offered a
redacted transcript of Joness statement and it was admitted. The
jury convicted Jones on all counts. This appeal followed.
Was Joness statement involuntary?
The Alaska Supreme Court has adopted a totality of the
circumstances test to analyze whether a statement is voluntary.4
This analysis presents a mixed question of law and fact.5 First,
a court must find the external, historical facts surrounding the
confession. Second, the court must infer the defendants mental
state from the external, historical facts. Third, the court must
assess the legal significance of the inferred mental state.6 The
first step in this analysis depends on the trial judges fact-
finding; we uphold those findings unless the findings are clearly
erroneous.7 The last two steps in the analysis require us to
evaluate the record independently and form our own conclusion,
based on the totality of the circumstances, about the defendants
inferred mental state and its legal significance.8 Among the
circumstances to consider 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.9
In Webb v. State,10 the supreme court recognized that
certain improper conduct is so coercive as to render a Miranda
waiver involuntary without regard to the totality of
circumstances.11 The police stopped Webb soon after he picked up
a package at a delivery service.12 A police officer took Webbs
drivers license and told him that it would be returned to him
only if he followed [the troopers] back up to their office and
made a statement.13 Webb followed the troopers to the office
where he provided an inculpatory statement.14 The supreme court
noted that Webb was presented with the choice of exercising his
right to remain silent and losing a valuable property interest,
his drivers license, or making an incriminating statement to
secure his license.15 The court ruled that conditioning the
exercise of the right to remain silent against the loss of
another constitutionally protected interest was involuntary per
se.16
In Beavers v. State,17 the police were investigating a
series of robberies and were interviewing sixteen-year-old
Beavers in a patrol car parked outside his place of employment.18
Beavers was not under arrest and was told that he could leave at
any time.19 The Alaska Supreme Court held that a police officers
warning to the suspect that if he tried to hide the truth about
the robberies, he would be hammered, rendered the suspects
following inculpatory statements presumptively involuntary in the
absence of affirmative evidence that the suspects will was not
overborne.20
However, not all improper conduct triggers the per se
rule or the presumption that a statement is involuntary. For
example, in Sovalik v. State,21 the Alaska Supreme Court ruled
that Sovaliks inculpatory statement was voluntary even though a
police officer deceived Sovalik by falsely claiming that the
police had physical evidence implicating Sovalik in a double
homicide.22 The court ruled that the officers deceit about the
evidence was merely one factor to consider in the totality of the
circumstances.23
But courts analyzing an officers deceit concerning the
legal significance of a defendants inculpatory statement have
been more restrictive. In State v. McDermott,24 the New
Hampshire Supreme Court held a statement involuntary when it was
obtained after a promise that the information provided would not
leave the office.25 The court explained that this type of
promise is to be distinguished from other promises frequently
made by law enforcement:
A confession made in reliance upon a promise
of confidentiality or a promise of immunity
is involuntary and coerced[.] ... Promises
to inform other authorities of the defendants
cooperation, or to recommend reduced bail in
exchange for incriminating evidence, which
promises are not dispositive of the issue of
voluntariness but add to the States burden of
proof, are categorically different from a
promise of confidentiality or of immunity
from prosecution in exchange for a statement
or confession.[26]
The court concluded that a promise of confidentiality, not
honored by the government, violates due process under New
Hampshire law, and therefore must be excluded.27
In United States v. Conley,28 a federal agent engaged
in a series of conversations with the defendant in order to get
information about others involved in illegal activity.29 At the
start of these meetings, the agent assured the defendant that
their conversation was off the record, but after the defendant
admitted he broke the law, the agents arrested the defendant and
his statements were offered at trial.30 The court found these
statements to be involuntary:
A promise by a law-enforcement officer may
qualify, under the circumstances, as
coercion. In particular, where an express or
implied promise not to use statements
against, or not to prosecute, a declarant is
made, is not contingent or qualified, and in
fact induces the statement, the promise is of
such a nature that it can easily be found to
have overcome a persons resistance to giving
a statement to authorities. ... A promise
that statements made will not be used against
the declarant purports to remove the specter
of proving ones own guilt by making a
statement. Such a promise is a truly
powerful one, going to the heart of a
declarants reservations about giving a
statement.[31]
Other courts have reached the same conclusion. In
State v. Nash,32 the Nebraska Supreme Court ruled that a
defendants statement made to the police in the presence of his
attorney was rendered involuntary and inadmissible when the
police promised the statement would be confidential.33 And in
State v. McConkie,34 the Maine Supreme Judicial Court held that
the defendants non-custodial statement to the police was
involuntary.35 The officer interviewing McConkie told him that
what he said in the interview would stay [ ] confidential.36 The
court reasoned that the statement was involuntary because the
police officer affirmatively misled McConkie as to his
constitutionally protected right against self-incrimination.37
In United States v. Swint,38 the court held that Swints
statements during an interview were involuntary when no
government agents told Swint that the interview to discuss
potential assistance Swint could provide in other prosecutions
would not be off the record, contrary to the reasonable
understanding of Swint and his attorney.39 Also in Linares v.
State,40 the court held that the defendants incriminating
statements were involuntary when made after a police officer
promised that nothing the defendant said would be used against
him.41
In the related area of determining whether a waiver of
Miranda rights is voluntary, the California Supreme Court held
that a waiver was involuntary when a defendant asked to speak to
an officer off the record, and the officer agreed.42 The court
explained that in asking to speak confidentially, the defendant
demonstrated that he did not understand the nature of his rights,
a prerequisite to a valid waiver:
A request to speak off the record cannot
constitute a knowing and intelligent waiver
of rights which include the advisement that
anything (a suspect) says can be used against
him in a court of law. Indeed, defendants
request revealed a marked lack of
understanding of the Miranda warnings. [The
officer] then contributed to defendants lack
of understanding by agreeing to the request
rather than informing defendant that there
could be no such thing as an off the record
discussion.[43]
Similarly, in State v. Stanga,44 the South Dakota Supreme Court
held that the police subverted the required Miranda warning that
any admissions can be used in court by promising that any
statements the defendant made were between you and me.45
Promises that a statement will remain confidential or
will not be used against the declarant appear similar to promises
of leniency or immunity from prosecution. In these situations,
the declarant is made to believe his statements would not be used
to prove his guilt in court. In Edwards v. State,46 we held that
[t]he police are ... barred from promising benefits such as
immunity from prosecution that would cause a suspect to put aside
normal efforts at self-preservation.47 And in Smith v. State,48
we held that a confession plainly induced by a promise of
leniency must be deemed involuntary.49
In this case, Jones did not give incriminating
information until he was assured by the police that his statement
was off the record. Only after receiving that assurance did
Jones provide the police with the detailed information about his
sexual misconduct that the State used against Jones at trial.
From our review of the record, and considering the totality of
the circumstances, we conclude that Joness statement was plainly
induced by the officers agreement that the conversation would be
off the record. Therefore, we conclude that Joness subsequent
statement was involuntary.
Was admission of the involuntary statement harmless
error?
The State argues that even if Joness statement is
involuntary, admission of the statement was harmless error. When
constitutional error has occurred, the test is whether the State
has proved beyond a reasonable doubt that the error did not
contribute to the verdict.50 But Joness statement provided
evidence on several essential elements of both sexual assault and
sexual abuse of a minor. The State relied on Joness statement to
rehabilitate E.C.s testimony after she was impeached. And the
statement allowed the jury to hear, in Joness own words, a
graphic description of his misconduct. The jury heard Joness
statement that he knew that E.C. was afraid, and that she was not
into it.
The State relied on Joness statement throughout its
case. In its opening, the State said that there were four ways
to prove its case, one of which was Joness own statement that
corroborated E.C.s version of events. Detective Strahle
testified as to what Jones said during the interview, including
that he changed his story, that he admitted having intercourse
and fellatio with E.C., that he admitted switching sex positions
with Pruitt, that he admitted that he knew E.C. was scared, that
he was scared he might look weak, and that he watched while Short
had sex with E.C. In its closing argument, the State reiterated
that there were four ways to prove its case. The State stressed
that Jones had changed his story during the interview, first
denying all involvement. It also argued that Jones must have
known E.C. was younger than sixteen because he knew her older
sister was only sixteen or seventeen. Throughout its argument,
the State emphasized how Joness statement corroborated E.C.s
testimony. The State relied entirely on Joness statements to
prove that he was reckless in his disregard of E.C.s lack of
consent, a necessary element of the sexual assault charges. From
our review of the record, we conclude that admission of Joness
involuntary statement was not harmless error.
Because we conclude that admission of the involuntary
statement was not harmless error beyond a reasonable doubt, we
must reverse Joness conviction. Because we have reversed his
conviction, we need not resolve the other claim that Jones raised
in this appeal.
Conclusion
The judgment of the superior court is REVERSED.
_______________________________
1 AS 11.41.410(a)(1) & AS 11.41.436(a)(1) respectively.
2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966).
3 See AS 12.55.155.
4 See Stobaugh v. State, 614 P.2d 767, 772 (Alaska 1980).
5 See State v. Ridgely, 732 P.2d 550, 554 (Alaska 1987).
6 Id.
7 Id.
8 Id.
9 Sprague v. State, 590 P.2d 410, 414 (Alaska 1979) (quoting
Brown v. United States, 356 F.2d 230, 232 (10th Cir. 1966)).
10 756 P.2d 293 (Alaska 1988).
11 Id. at 297.
12 Id. at 294.
13 Id. at 295.
14 Id.
15 Id. at 297.
16 Id.
17 998 P.2d 1040 (Alaska 2000).
18 Id. at 1041.
19 Id. at 1042.
20 Id. at 1048.
21 612 P.2d 1003 (Alaska 1980).
22 Id. at 1007.
23 Id. at 1007 n.4.
24 554 A.2d 1302 (N.H. 1989).
25 Id. at 1304, 1306 (basing decision on New Hampshires
state constitution).
26 Id. at 1305-06 (citing inter alia State v. Nash, 421
N.W.2d 41, 43-44 (Neb. 1988) (statement that reasonably could be
interpreted as a promise of confidentiality would prevent finding
that statement was voluntary)).
27 Id.
28 859 F.Supp. 830 (W.D. Penn. 1994).
29 Id. at 833-35.
30 Id. at 837.
31 Id. at 836 (citations omitted).
32 421 N.W.2d 41 (Neb. 1988).
33 Id. at 43-44.
34 755 A.2d 1075 (Me. 2000).
35 Id. at 1078.
36 Id. at 1077.
37 Id. at 1078.
38 15 F.3d 286 (3rd Cir. 1994).
39 Id. at 290.
40 471 S.E.2d 208 (Ga. 1996).
41 Id. at 212.
42 People v. Braeseke, 602 P.2d 384, 391 (Cal. 1979).
43 Id. (citations omitted).
44 617 N.W.2d 486 (S.D. 2000).
45 Id. at 487.
46 842 P.2d 1281 (Alaska App. 1992).
47 Id. at 1285 (citing Smith v. State, 787 P.2d 1038
(Alaska App. 1990)).
48 787 P.2d 1038 (Alaska App. 1990).
49 Id. at 1039.
50 Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824,
828, 17 L.Ed.2d 705 (1967); Love v. State, 457 P.2d 622, 631
(Alaska 1969). Compare Motta v. State, 911 P.2d 34, 39-40
(Alaska App. 1996) (citing Arizona v. Fulminante, 499 U.S. 279,
306-12, 111 S.Ct. 1246, 1262-66, 113 L.Ed.2d 302 (1991)) (The
constitutional harmless error standard applies when a confession
is admitted in violation of defendants Miranda rights).
