Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
State v. Anderson (07/22/2005) ap-1993
State v. Anderson (07/22/2005) ap-1993
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
STATE OF ALASKA,
)
) Court of
Appeals No. A-8756
Petitioner,
)
Trial Court No. 3AN-00-2574 Cr
)
v.
)
) O
P I N I O N
BARRY ANTHONY ANDERSON,
)
)
Respondent.
)
[No. 1993 July 22, 2005]
)
Petition for Review from the Superior Court,
Third Judicial District, Anchorage, Michael
L. Wolverton, Judge.
Appearances: W. H. Hawley Jr., Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for the Petitioner. Quinlan Steiner,
Assistant Public Defender, and Barbara K.
Brink, Public Defender, Anchorage, for the
Respondent.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
The defendant in this case, Barry Anthony Anderson, was
arrested for a robbery. After the police advised him of his
Miranda rights, he invoked his right to counsel. Anderson
remained in jail because he was unable to make bail.
During their continued investigation of this robbery,
the police learned that Anderson might have been involved in a
separate robbery/homicide.1 The police enlisted a friend of
Andersons, Eric Colvin, to visit Anderson in jail and try to get
him to make incriminating statements about this separate criminal
episode. Anderson was eventually indicted for this
robbery/homicide, based in part on the statements that Anderson
made to Colvin during these jail visits.
Following his indictment, Anderson asked the superior
court to suppress his statements to Colvin. Anderson pointed out
that the United States Supreme Court has held that when a
defendant invokes the Miranda right to counsel while being
interrogated with respect to one offense, that invocation of the
right to counsel prohibits the police from interrogating the
defendant with respect to any offense (unless the defendants
counsel is present).2 Based on this law, Anderson argued that
since the police were prohibited from interrogating him about the
robbery/homicide in the absence of his attorney, it was
fundamentally unfair for the police to circumvent Andersons
assertion of the right to counsel by sending an informer to the
jail to speak to him and try to elicit incriminating statements
about the robbery/homicide. The superior court agreed with
Anderson and, accordingly, suppressed the challenged statements.
We conclude that Miranda does not apply to statements
elicited by a false friend an acquaintance of the defendant who
is sent to elicit incriminating statements. Although, as in this
case, the conversation between the defendant and the false friend
may take place in jail, it is not a custodial interrogation for
Miranda purposes. Defendants in this situation are not subjected
to the types of inherent psychological pressures that Miranda was
designed to prevent or counteract, so the Miranda safeguards do
not apply. Accordingly, we reverse the decision of the superior
court.
Federal and state law on this issue
In Illinois v. Perkins, 496 U.S. 292, 110
S.Ct. 2394,110 L.Ed.2d 243 (1990), the Supreme Court
considered the question of whether an undercover agent
who is sent to question an incarcerated defendant about
a separate crime (i.e., a crime unrelated to the crime
for which the defendant is jailed) must administer a
Miranda warning to the defendant.
The defendant in Perkins was in jail,
awaiting trial for aggravated battery. An undercover
agent, posing as a fellow inmate, was placed in
Perkinss cellblock to question him about an unrelated
murder.3 This undercover agent asked Perkins whether
he had ever killed anyone; in response, Perkins gave a
detailed description of the murder that the police were
investigating.4
The Supreme Court granted certiorari to
decide whether an undercover law enforcement officer
must give Miranda warnings to an incarcerated suspect
before asking him questions that may elicit an
incriminating response.5 And, ultimately, the Supreme
Court concluded that no warnings were needed.
The Court explained that the purpose of the
Miranda warnings is to preserve the [Fifth Amendment
privilege against self-incrimination] during incommuni
cado interrogation of individuals in a police-dominated
atmosphere.6 Because a defendants conversation with an
undercover police agent does not share the aspects of
inherent coercion that characterize an incommunicado
interrogation by the police, Miranda does not apply:
Conversations between suspects and
undercover agents do not implicate the
concerns underlying Miranda. The essential
ingredients of a police-dominated atmosphere
and compulsion are not present when an
incarcerated person speaks freely to someone
whom he believes to be a fellow inmate.
Coercion is determined from the perspective
of the suspect. When a suspect considers
himself in the company of cellmates and not
officers, the coercive atmosphere is lacking.
Perkins, 496 U.S. at 296, 110 S.Ct. at 2397
(internal citations omitted).
The rationale of Perkins would
seemingly apply to Andersons case. In fact,
Andersons situation held even less potential
for coercion or importuning than the facts of
Perkins. Rather than being confined in the
same cell block with the police informer,
Anderson received Colvin in the visitors area
of the jail. As the attorneys explained
during the oral argument of this case,
Anderson and Colvin were separated by a glass
partition, and they had to use an internal
telephone to speak to each other. If
Anderson had wished to end a conversation
with Colvin, he could have done so by simply
hanging up the phone.
It is nevertheless true that the
situation in Perkins differs in one key
respect from the facts of Andersons case:
Anderson had previously invoked his Miranda
(Fifth Amendment) right to counsel. As the
superior court noted when it granted
Andersons suppression motion, at least one
member of the Perkins court Justice Brennan
believed that the Courts ruling (that
interrogation by an undercover agent could
take place without Miranda warnings) would
not apply if the defendant had previously
invoked the Fifth Amendment right to counsel.
In an unnumbered footnote to his concurring
opinion, Justice Brennan wrote:
Nothing in the Courts opinion suggests that,
had respondent previously invoked his Fifth
Amendment right to counsel or right to
silence, his statements [to the undercover
officer] would be admissible. If respondent
had invoked either right, the inquiry would
focus on whether he subsequently waived
[that] right.
Perkins, 496 U.S. at 300 n. *, 110 S.Ct. at
2399 n. *.
But, as Professor LaFave notes in
his text on criminal procedure, the approach
suggested in Justice Brennans concurrence
(his proposal that there should be a
different rule for defendants who have
previously invoked their Miranda right to
counsel) is inconsistent with the analysis of
the Perkins majority.7 The courts that have
addressed this issue since Perkins agree with
Professor LaFave. These courts have
concluded that if the interaction between the
defendant and the informer or undercover
agent does not qualify as a custodial
interrogation for Miranda purposes, then
there is no violation of the defendants
Miranda rights even if the defendant has
previously invoked the Miranda right to
counsel.
For instance, in Alexander v.
Connecticut, 917 F.2d 747 (2nd Cir. 1990),
the defendant was arrested for arson (for
setting fire to a courthouse). Alexanders
attorney notified the police that Alexander
did not wish to speak to the authorities
unless his attorney was present.8
Alexander had had an accomplice, a
man named Cook, but Cook disappeared after
the fire. The police suspected that
Alexander had murdered Cook, so they enlisted
the help of a man named Papagolas, who was
friends with both Alexander and Cook.9 The
police took Papagolas to visit Alexander in
prison several times.10 After each visit,
Papagolas would brief the police on what
Alexander had told him.11 Alexander
eventually told Papagolas that he had killed
Cook, and Alexander disclosed the location of
Cooks body.12 Based in part on his
statements to Papagolas, Alexander was
convicted of Cooks murder.
Following his conviction, Alexander
sought a federal writ of habeas corpus,
arguing that the government should not have
been allowed to use his statements to
Papagolas. Alexander contended that the
police had violated his Miranda right to
counsel and that the Perkins decision should
not control his case because he (unlike the
defendant in Perkins) had invoked his right
to counsel before the police sent the
informer to visit him in prison.
The Second Circuit rejected
Alexanders argument and found that Perkins
controlled:
[T]here is no support for the concept of a
fifth amendment right to counsel which bars
conduct not prohibited by Miranda itself. It
is the fifth amendments prohibition against
compelled self-incrimination which provides
the constitutional underpinning for the
prophylactic Miranda rules, including notice
of right to counsel. Absent a police
dominated interrogation, the fifth amendment
right to counsel does not attach.
Alexander, 917 F.2d at 751 (internal
citations omitted).
In another federal case, United
States v. Stubbs, 944 F.2d 828 (11th Cir.
1991), Stubbs and Edwards were arrested for
conspiracy to import cocaine into the United
States. Stubbs invoked her Miranda right to
counsel. However, while Stubbs and Edwards
shared a cell, Stubbs made self-inculpatory
statements to Edwards, and Edwards later
divulged those statements to the
prosecutor.13
Stubbs cited Justice Brennans
concurrence in Perkins for the proposition
that the rule of Perkins should not apply to
cases in which a defendant has affirmatively
invoked the Miranda right to counsel that,
instead, the government should be obliged to
show that the defendant affirmatively waived
their previously invoked right to
counsel.14 But the Eleventh Circuit, like
the Second Circuit, held that there is no
violation of a defendants Miranda rights when
the interaction between the defendant and the
informer is not a custodial interrogation for
Miranda purposes. The court noted that the
United States Supreme Courts decision in
Rhode Island v. Innis15 was inconsistent with
the analysis proposed by Justice Brennan in
his concurring opinion in Perkins:
The Innis Court was faced with [analogous]
facts, as the suspect there invoked his
Miranda rights to silence and counsel. But,
the Innis Court concluded that because
respondent was not interrogated for Miranda
purposes, we do not reach the question
whether the respondent waived his right under
Miranda to be free from interrogation until
counsel was present. Because we conclude
[that] Miranda was not implicated by the
conversation between Edwards and Stubbs, we
need not reach the issue of waiver.
Stubbs, 944 F.2d at 832-33 n. 3.16
For state court decisions taking
this same approach, see State v. Hall, 65
P.3d 90, 100 (Ariz. 2003); People v.
Guilmette, 2 Cal.Rptr.2d 750, 752-54 (Cal.
App. 1991); People v. Latona, 579 N.E.2d 394,
397 (Ill. App. 1991).
Finally, this Court followed this
same approach in Carr v. State, 840 P.2d 1000
(Alaska App. 1992). In Carr, we were asked
to decide whether a prison inmate (serving a
sentence on unrelated charges) was subjected
to custodial interrogation in violation of
Miranda when the state troopers enlisted the
inmates girlfriend to telephone him in prison
and try to get him to make self-incriminatory
statements about his suspected sexual abuse
of a child.17
Because the girlfriend telephoned
Carr at the behest of the state troopers, and
because her conversation with Carr was
calculated to elicit incriminating statements
from him, we assumed (without deciding) that
Carr was subjected to police interrogation
during the telephone conversation.18
However, we then explained that not all
police interrogations were covered by
Miranda:
Just as compulsory self-incrimination
presupposes some kind of compulsion, ...
custody, for Miranda purposes, presupposes at
least some minimal element of coerciveness.
... The standard for determining Miranda
custody is objective: Miranda warnings are
required [when] police interrogation [is]
conducted under circumstances in which a
reasonable person would feel he was not free
to leave and break off the questioning.
Hunter v. State, 590 P.2d 888, 895 (Alaska
1979).
Carr, 840 P.2d at 1003.
Examining the circumstances of the
case, we concluded that Carrs interrogation
had not been custodial. First, Carr was
unaware that his girlfriend was cooperating
with the state troopers in their
investigation of the suspected sexual abuse.
Second, there was nothing in the record to
indicate that Carr was under any degree of
compulsion in electing to accept [his
girlfriends] call or that he was in any way
inhibited from terminating the call after
accepting it.19 And third, Carr was not in
prison as an arrested suspect in the sexual
abuse case; rather, he was serving a sentence
imposed for an unrelated crime.20 Based on
these factors, and applying the test
announced by the Supreme Court in Perkins, we
concluded that it was virtually inconceivable
that Carrs incriminating statements were in
any realistic sense the product of coercion
result[ing] from the interaction of custody
and official interrogation.21
Thus, under both Alaska precedent
and decisions from other jurisdictions, the
police do not violate Miranda by sending a
false friend to elicit statements from a
defendant unless the interview is custodial.
And, as we noted in Carr, an interview is
custodial for Miranda purposes only if a
reasonable person in the defendants position
would have believed that they were not free
to break off the questioning and leave (or
ask the other person to leave).
Anderson cites a single state court
decision to the contrary: the decision of
the Nevada Supreme Court in Boehm v. State,
944 P.2d 269 (Nev. 1997). The superior
court, in its decision granting Andersons
suppression motion, declared that Boehm was
persuasive on this issue.
But Boehm does not rest on a
different interpretation of the scope of
Perkins. Rather, Boehm rests on an outright
rejection of Perkins.
The decision in Boehm is expressly
premised on an earlier decision of the Nevada
Supreme Court, Holyfield v. State, in which
the court declared, as a matter of state
constitutional law, that any jailhouse
questioning by an undercover agent
constitutes custodial interrogation for
purposes of Miranda and that, consequently,
all such questioning must be preceded by
Miranda warnings and a waiver of rights.22
The Holyfield decision was issued
five years before Perkins and, at that time,
the Holyfield court declared that its ruling
was based on both federal and state
constitutional law. In Boehm (which was
decided seven years after Perkins), the
Nevada court acknowledged that Perkins was
directly contrary to Holyfields
interpretation of federal constitutional law.
Nevertheless, the Nevada court declared, we
hold that our interpretation of the Nevada
Constitution in Holyfield remains valid.23
In other words, the decisions in Holyfield
and Boehm are now professedly at odds with
federal law, and are squarely based on
Nevadas singular definition of custodial
interrogation.
In sum, the all-but-unanimous view
is that Miranda normally does not apply to
situations where the police send a false
friend to elicit statements from a defendant
in jail. Miranda is intended to counteract
the danger of coercion result[ing] from the
interaction of custody and official interro
gation. Perkins, 496 U.S. at 297, 110 S.Ct.
at 2397. Questioning by captors ... who
appear to control the suspects fate ... may
create mutually reinforcing pressures that
... will weaken the suspects will, but where
a suspect does not know that he is conversing
with a government agent, these pressures do
not exist. Id., 496 U.S. at 297, 110 S.Ct.
at 2397.
When a defendant talks to a fellow
inmate or a visiting friend, the coercive
atmosphere of custodial police interrogation
is absent. As explained by Professor Yale
Kamisar in his article, Brewer v. Williams,
Massiah, and Miranda: What Is Interrogation?
When Does It Matter?, 67 Georgetown L.J. 1
(1978):
One can deliberately elicit incriminating
statements from a person without having him
realize it that is what happened in Massiah
[v. United States, 377 U.S. 201, 84 S.Ct.
1199 (1964)]. But how can one envelop
someone in a police-dominated atmosphere
without having him realize it? How can one
produce an interrogation environment
well-calculated to subjugate the individual
to the will of his examiner when the
individual is not even aware that he is in
the presence of his examiner? ...
[W]hatever may lurk in the heart or mind of
the fellow prisoner (or apparent friend or
colleague), if it is not custodial police
interrogation in the eye of the beholder,
then it is not such interrogation within the
meaning of Miranda.
Id. at 65 (emphasis in the original) (quoted
in People v. Williams, 751 P.2d 901, 910; 245
Cal.Rptr. 635, 644-45 (Cal. 1988)).
In Andersons case, the superior
court ruled that, because Anderson had
previously invoked his Miranda right to
counsel, the police violated Miranda by
sending a false friend to visit Anderson in
jail in an attempt to elicit incriminating
statements from him. For the reasons
explained here, we conclude that the superior
court misinterpreted the law on this issue.
The normal interaction between a jail inmate
and a jail visitor is not custodial
interrogation for purposes of Miranda and
thus, even if the visitor is working for the
police as an informant, this tactic does not
violate Miranda.
Andersons argument that the result in his case should
be different because he knew that Colvin was
working for the police as an informer
Anderson argues that even if a jail inmates
interaction with a visitor is normally not a
custodial interrogation, we should reach a
different result under the facts of his case
because (Anderson asserts) he knew that Colvin was
working for the police.
Anderson relies on the Perkins courts
explanation of why an inmates interaction with a
fellow prisoner should not be deemed a custodial
interrogation:
Questioning by captors, who appear to control
the suspects fate, may create mutually
reinforcing pressures that ... will weaken
the suspects will, but where a suspect does
not know that he is conversing with a
government agent, these pressures do not
exist. ... When the suspect has no reason
to think that the listeners have official
power over him, it should not be assumed that
his words are motivated by the reaction he
expects from his listeners. ... [T]here is
no interplay between police interrogation and
police custody.
Perkins, 496 U.S. at 297, 110 S.Ct. at 2397
(emphasis in the original).24
Anderson argues that he did know
that Colvin was a police informer and that
his conversations with Colvin would be
reported to the police. Thus, according to
Anderson, Colvins visits to Anderson in jail
should be deemed custodial interrogations in
violation of Miranda.
Andersons contention appears
counter-intuitive. Normally, if an inmate
were to discover that a repeated visitor was
working for the police as an informer, one
would expect the inmate to respond with
distrust and guarded words rather than
ingenuous disclosure. This is because, in
most circumstances, the inmate will assume,
from the fact that their friend is working as
a police informer, that the friends interests
are inimical to the inmates interests, and
that the friend may be attempting to obtain
personal benefit by betraying the interests
of the inmate.
Moreover, the record does not bear
out Andersons factual premise that he knew
that Colvin was working for the police.
During their second conversation, Anderson
told Colvin that he had received a warning
from a third person that Colvin might be
wired. Upon hearing this, Colvin offered to
strip off his clothes to prove that he was
not wearing a monitoring device. Anderson
replied that he did not believe what he had
heard in large part because Colvin was not
asking Anderson any questions during their
conversations, but rather appeared to be
supplying Anderson with information.
Finally, we note that Anderson
could have refused to meet with Colvin and
that, having begun a conversation with
Colvin, Anderson was free to discontinue the
conversation at any time by simply hanging up
the internal phone that allowed communication
across the glass barrier.
In fact, even though the superior
court granted Andersons suppression motion,
the superior court concluded, in light of the
totality of the circumstances surrounding Mr.
Andersons conversations with Mr. Colvin, that
Andersons conversations with Colvin did not
qualify as custodial interrogations under the
test announced by the Supreme Court in
Perkins and adopted by this Court in Carr.
The superior court declared that it was
unlikely that [Andersons] incriminating
statements were made under coercion resulting
from the interaction of custody and official
interrogation.
We agree with the superior courts
interpretation of the record. Even if
Anderson suspected (or even thought it
likely) that Colvin was working as a police
agent, Anderson had complete freedom to
refuse to engage in conversation with Colvin.
There was no interplay between the fact of
Andersons confinement and the fact that
Colvin was attempting to elicit incriminating
information from Anderson. Therefore, under
Perkins and Carr, there was no custodial
interrogation and thus, Colvins
conversations with Anderson did not violate
Miranda.
Andersons request that we interpret the Alaska
Constitution to prohibit the tactic used by the
police in this case
Anderson argues that even if we conclude that
Colvins conversations with Anderson did not
violate Miranda, we should nevertheless hold that
this police tactic sending a false friend to
speak to a suspect in jail violates the Alaska
Constitutions guarantee of due process of law and
its prohibition against compelled self-
incrimination.25
Anderson concedes that our decision in Carr
appears to be inconsistent with his proposed
interpretation of the Alaska Constitution, but he notes
(correctly) that Carr involved the surreptitious
questioning of a prison inmate who was already serving
a sentence for an unrelated crime. Anderson asserts
that the police should be prohibited from pursuing this
tactic when a defendant is jailed on pending charges
(even when these pending charges are unrelated to the
matter being investigated).
Andersons self-incrimination argument is
easily resolved. Article I, 9 of our constitution
does not forbid all self-incrimination, but only
compelled self-incrimination. And if an inmates
conversation with a false friend does not involve the
coercion that would trigger Miranda safeguards, then
the inmates self-incriminating statements can hardly
qualify as compelled.
Andersons due process argument has somewhat
more force. As we noted earlier, the Nevada Supreme
Court held in Holyfield v. State that any surreptitious
questioning of an inmate by an undercover agent or
false friend will be deemed a custodial interrogation
for Miranda purposes. As a practical matter, the
Nevada courts ruling forbids this tactic since the
questioner must administer Miranda warnings and obtain
a waiver of the inmates rights, thus revealing the
questioners role as a police agent.
Although the Holyfield decision is couched in
terms of Miranda, it is obvious from the Nevada courts
opinion that the court was offended by the tactic of
sending an undercover agent to pose as a fellow inmate.
The court declared that since [t]he police were not
allowed to interrogate [the] defendant directly, they
should have no authority ... to do indirectly what
they [could] not do directly.26 In other words, the
court seems to have viewed this tactic as fundamentally
unfair.
We acknowledge the moral ambiguity in the
government practice of sending a false friend to
converse with a suspect for the purpose of betraying
the suspects trust by eliciting incriminating
information and then reporting this information to the
authorities. Nevertheless, we have previously held
that the use of informants even paid informants whose
fee is contingent on the outcome of the cases they
bring to the police does not offend due process.27 We
accordingly reject Andersons argument that, by sending
Colvin to visit him in jail, the government violated
Andersons right to due process of law under the Alaska
Constitution.
Conclusion
We conclude that the police did not violate
Miranda by sending Colvin to speak to Anderson in jail,
when Anderson was free to refuse to meet with Colvin
and was free to terminate their conversations at any
time. We further conclude that this tactic did not
violate Andersons right to due process under the Alaska
Constitution, nor did it violate the Alaska
Constitutions prohibition against compelled self-
incrimination.
The superior courts decision to suppress
Andersons statements to Colvin is REVERSED.
_______________________________
1A detailed description of this police investigation is
found in our prior opinion, State v. Anderson, 73 P.2d 1242, 1243-
45 (Alaska App. 2003).
2McNeil v. Wisconsin, 501 U.S. 171, 177; 111 S.Ct. 2204,
2208; 115 L.Ed.2d 158 (1991); Arizona v. Roberson, 486 U.S. 675,
677-78, 682-85; 108 S.Ct. 2093, 2096, 2099-2100; 100 L.Ed.2d 704
(1988).
3Perkins, 496 U.S. at 295, 110 S.Ct. at 2396.
4Id.
5Id., 496 U.S. at 295-96, 110 S.Ct. at 2396.
6Id., 496 U.S. at 296, 110 S.Ct. at 2397, quoting Miranda v.
Arizona, 384 U.S. 436, 445; 86 S.Ct. 1602, 1612; 16 L.Ed.2d
694 (1966).
7Wayne R. LaFave, Jerold H. Israel, and Nancy J. King,
Criminal Procedure (2nd ed. 1999), 6.7(c), 2005
Supplement, p. 122 (new text inserted after footnote
115 of the main text).
8Alexander, 917 F.2d at 749.
9Id.
10Id.
11Id.
12Id. at 750.
13Stubbs, 944 F.2d at 831.
14Id. at 832-33 n. 3.
15446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).
16Quoting Rhode Island v. Innis, 446 U.S. at 298 n. 2, 100
S.Ct. at 1688 n. 2.
17Carr, 840 P.2d at 1002.
18Id. at 1003.
19Id. at 1004.
20Id.
21Id., quoting Perkins, 496 U.S. at 297, 110 S.Ct. at 2397.
22711 P.2d 834, 836-37 (Nev. 1985).
23Boehm, 944 P.2d at 271 n. 1.
24Quoting Yale Kamisar, Brewer v. Williams, Massiah, and
Miranda: What Is Interrogation? When Does It Matter?,
67 Georgetown L.J. 1, 63, 67 (1978).
25Article I, 7, and Article I, 9, respectively.
26Holyfield, 711 P.2d at 840, quoting State v. Travis, 360
A.2d 548, 551 (R.I. 1976).
27Mustafoski v. State, 954 P.2d 1042, 1045 (Alaska App.
1998); Jacobs v. State, 953 P.2d 527, 530-33 (Alaska App.
1998).
