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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
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Courts:
303 K Street, Anchorage, Alaska 99501
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E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| BEN NOYAKUK, | ) |
| ) Court of Appeals No. A-8442 | |
| Appellant, | ) Trial Court No. 2NO-01-244 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) [No. 2027 January 20, 2006] |
| ) | |
Appeal from the Superior Court, Second Judi
cial District, Nome, Ben J. Esch, Judge.
Appearances: Gregory S. Parvin and Robert D.
Lewis of Lewis & Thomas, Nome, for the
Appellant. Kenneth M. Rosenstein, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
In March 2001, Ben Noyakuk shot and killed his
girlfriend, Martha Butler. A jury ultimately convicted him of
first-degree murder for this homicide.
At Noyakuks trial, the State relied on various
statements that Noyakuk made to the state troopers about the
homicide. Noyakuk made these statements during a series of
interviews that took place at the Anvil Mountain Correctional
Center. Noyakuk was incarcerated at this correctional center as
a result of his arrest on April 12, 2001 for two misdemeanors and
a probation violation, all unrelated to the homicide.
The superior court found that the troopers had violated
Noyakuks Miranda rights at the first interview, so the superior
court suppressed Noyakuks statements from that interview.1
However, the superior court concluded that Noyakuks statements
from the subsequent interviews were not tainted by this Miranda
violation because, at these subsequent interviews, Noyakuk
received proper Miranda warnings and waived his rights, and
because Noyakuks statements at these subsequent interviews were
voluntary. The superior court thus ruled that the State could
rely on Noyakuks statements from these subsequent interviews.
For the reasons explained here, we agree with the
superior courts resolution of these questions, and we therefore
affirm Noyakuks conviction.
Underlying facts
In early 2001, Ben Noyakuk and his
girlfriend, Martha Butler, were living in Nome. On
April 1, 2001, Butlers father contacted the Nome police
to report that his daughter was missing. Eleven days
later, on April 12th, Thomas Noyakuk (Ben Noyakuks
brother) informed the police that Ben had told him that
he had accidentally shot and killed Butler, and that he
had hidden her body near the Penny River.
Based on this information, the Nome police
called the Alaska State Troopers and, together, they
began searching for Noyakuk. They found Noyakuk as he
was traveling by snowmachine from Nome to Teller.
Noyakuk was intoxicated, and he had a rifle with him.
Noyakuk was arrested for driving while
intoxicated,2 for possession of a firearm while
intoxicated,3 and for violating the conditions of his
probation from an earlier criminal conviction (by
drinking alcoholic beverages). However, Noyakuk was
not charged with any crime in connection with the
homicide. At the time of his arrest, Noyakuk was
advised of his Miranda rights, but he was not
interrogated. He was taken to the Anvil Mountain
Correctional Facility.
Within an hour of his arrival at the
correctional facility, Noyakuk was placed on suicide
watch i.e., he was placed in administrative
segregation, and the jailers took away his clothing, so
that he had only a mattress and a blanket in his cell.
Prisoners on suicide watch are not allowed any visitors
except for their attorney and, because Noyakuk had no
attorney yet, this meant that he was being held
incommunicado.
Noyakuk was still on suicide watch the next
morning (April 13th), when two state troopers Jane
Schied and Terry Shepherd came to the correctional
center to interview Noyakuk about Martha Butlers death.
Corrections officers allowed Noyakuk to dress, and then
they took Noyakuk to a small room adjacent to the
correctional centers booking office, where the two
troopers were waiting.
The troopers informed Noyakuk that he did not
have to talk to them, and that he was free to leave
(i.e., terminate the interview and return to his cell)
at any time. In addition, when Noyakuk asked about
getting an attorney, the troopers told him that he
could have an attorney present during the interview if
he wished, and that they would delay the interview in
that case. However, the troopers did not give Noyakuk
the full set of Miranda warnings before they began to
question him.
During this first interview, Noyakuk told the
troopers that he had accidentally shot Butler and that,
after she died, he wrapped her body in a blanket and
buried her under a snowbank near the Penny River.
On the afternoon of April 13th (i.e., a few
hours after Noyakuks first interview with the state
troopers), Noyakuk was brought to court and arraigned
on the misdemeanor charges. An attorney was appointed
to represent him on those charges (as well as the
probation violation).
Trooper Schied returned to the correctional
center in the early evening of April 15th to conduct a
second interview with Noyakuk. That is, this second
interview took place a little over 48 hours after the
initial interview and Noyakuks ensuing court
arraignment. This time, Schied gave Miranda warnings
to Noyakuk, and he waived his rights.
At this second interview, Noyakuk presented
basically the same account of the shooting (i.e., that
it was an accident), but his description of events
varied in some details, and Schied believed that some
portions of Noyakuks account were unlikely or did not
make sense. When Schied tried to pin Noyakuk down on
some of these discrepancies, Noyakuk became shook up.
He told Schied that he was going to end the interview,
and Schied responded that this was his right. But
before Noyakuk left the interview room, he told Schied,
You know where I am if you have any more questions.
Schied understood this to mean that Noyakuk did not
object to being interviewed again at a later time.
Schieds third interview with Noyakuk took
place in the mid-afternoon of April 16th. Schied
testified that she went to the correctional center
shortly after noon on the 16th, intending to interview
Noyakuk, but when she arrived, she discovered that
Noyakuk had just had an interview with a mental health
worker and he was emotionally upset. Even though
Noyakuk told Schied that he was willing to speak to
her, Schied declined to interview Noyakuk at that time.
Instead, she advised Noyakuk that it would be better if
he got some rest first. Schied left the prison and
returned two hours later, at which time she conducted
her third interview with Noyakuk. Again, she
Mirandized Noyakuk, and Noyakuk waived his rights.
During this third interview, Noyakuk admitted
that the shooting had not been an accident. Noyakuk
told Schied that he shot Butler as she lay on a couch
with her eyes closed (apparently unconscious). Noyakuk
explained that he shot Butler because he believed that
she was going to leave him. Noyakuk also informed
Schied that he would be willing to help the troopers
look for Martha Butlers body. Schied told Noyakuk that
she would forward this offer to her superiors.
Schied contacted Noyakuk again on the morning
of April 17th (again, with Miranda warnings). She
informed Noyakuk that the troopers did want Noyakuks
assistance in searching for Martha Butlers body, and
that the troopers would return to the prison the
following day (April 18th) to come get him. When the
troopers returned the next day, they Mirandized
Noyakuk, and then they transported him by helicopter to
the Penny River, where they located the body.
Two weeks later, the Nome grand jury indicted
Noyakuk for first-degree murder.
Noyakuks motion to suppress his statements to the
troopers
Following his indictment, Noyakuk asked the
superior court to suppress the statements he made at
the initial interview on April 13th because Schied and
Shepherd had not fully advised him of his Miranda
rights. Noyakuk also asserted that the troopers had
failed to honor his request for an attorney at the
April 13th interview, and that this constituted an
independent basis for suppressing his statements from
that first interview under Edwards v. Arizona, 451 U.S.
477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
Noyakuk also sought suppression of the
statements he made at the subsequent interviews,
arguing that these subsequent interviews were all
tainted by the Miranda violation and the Edwards
violation at the initial interview. And, finally,
Noyakuk sought suppression of all physical evidence
derived from these interviews.
Following an evidentiary hearing, Superior
Court Judge Ben J. Esch agreed with Noyakuk that the
troopers had interrogated him in violation of Miranda
at the first interview. Judge Esch therefore
suppressed the statements Noyakuk made at that initial
interview. However, Judge Esch concluded that Noyakuks
statements from the subsequent interviews were
admissible despite the initial Miranda violation.
Judge Esch reached this conclusion because he found
that (1) all of Noyakuks statements were voluntary for
Fifth Amendment purposes, and (2) Noyakuk was fully
advised of his Miranda rights, and waived those rights,
prior to each of the subsequent interviews.
With regard to the asserted Edwards violation
(i.e., failure to honor a suspects request for an
attorney), Judge Esch found that Noyakuk made only an
equivocal request for an attorney when Noyakuk said,
Shouldnt I just have my attorney with me, or something?
Judge Esch further found that Noyakuk was aware (at
that time) of his right to the assistance of an
attorney, due to his [prior] experience with both
attorneys and the justice system. As Judge Esch noted,
Noyakuk was convicted several times in the 1980s of
minor consuming alcohol, and was convicted once of
disorderly conduct in the 1990s. Moreover, in the year
preceding his arrest in April 2001, Noyakuk was
convicted three times of domestic assault.
Judge Esch also found that the troopers had
responded appropriately to Noyakuks equivocal request
for an attorney: they repeatedly explained to Noyakuk
that it was up to him to decide whether he wished to
speak to them without an attorney, and they asked
Noyakuk to clarify whether he was willing to speak to
them without an attorney. Only after Noyakuk expressly
stated that he was willing to be interviewed without an
attorney did the troopers commence their substantive
questioning about the homicide. Under these facts,
Judge Esch concluded, the troopers had not violated the
rule of Edwards v. Arizona.
A more detailed look at the first interview
As explained above, Noyakuk was arrested and
placed at the Anvil Mountain Correctional Center on
April 12, 2001. However, he was not charged with any
crime arising from the homicide of Martha Butler.
Rather, Noyakuk was arrested on charges of driving
while intoxicated and possession of a firearm while
intoxicated, as well as for violating his probation (by
drinking).
Troopers Schied and Shepherd came to the
correctional center the next day to interview Noyakuk
about the homicide. At the beginning of this
interview, the following colloquy took place between
Trooper Shepherd and Noyakuk:
Shepherd: Okay. Ben, you know were
here to talk to you today. Ah, were not here
to arrest you for anything else. Um, you know
you you dont have to talk to us if you dont
want to. Um, you know, you you can, you
know, go tell the correctional officers any
time that you want to go back to your cell,
that you can. Okay, you understand that?
Noyakuk: Uh-huh [yes].
A few moments later, Shepherd reiterated that
Noyakuk could leave the interview any time he
wished:
Shepherd: Okay. Well, like I said,
were not here to talk to you about any of
your charges from yesterday.
Noyakuk: Uh-huh.
Shepherd: You understand that.
Noyakuk: Uh-huh.
Shepherd: Okay. Like I said, you know,
you youre not under arrest for anything
here. Were not here to charge you with
anything. Um, and again, were going to talk
to you about some stuff, and at any time you
dont want to talk about it, you can leave.
Thats up to you, okay?
Noyakuk: Okay.
Trooper Schied then informed
Noyakuk that she and Shepherd wanted to speak
to him about Martha Butlers death. The
following colloquy ensued:
Schied: So thats what wed like to talk
to you about. We know youve been through a
lot with Martha.
Noyakuk: Uh-huh.
Schied: We know that, when she gets
intoxicated, she can get very, very hostile
very, very mad and very mean. We understand
those things. But [do] you suppose you can
help us out with this situation, Ben?
Noyakuk: Probably.
Schied: Okay. Can you kind of tell us
what happened, so [that] we can help her
parents and you, too?
Noyakuk: Shouldnt I just have my
attorney with me, or something?
Schied: Umh ...
Shepherd: Well, if, if thats what you
feel [is] right I mean, we cant make that
decision for you. You have to make that
decision. Like I said, ... were not here to
talk about the [pending] charges; were here
to talk about Martha. ... Like I said, you
know, you dont have to talk to us if you dont
want [to]. But, ah, like Trooper Schied
said, were trying to figure out what happened
so that we can help her parents, you know,
get over this, and adjust to it, and ...
Noyakuk: Uh-huh.
Shepherd: ... and try to find out, you
know, what actually happened. Because we
always know [that] theres two sides to the
story. ... Theres your side, [and] weve
been talking to a lot of people, and weve
heard what theyve been saying, and what you
told them. But from our work, we know that
theres two sides to the story, and the best
place to always hear the story is from the
person [who] actually ... was there. So
[you] know, like I said, you you can talk to
us if you want. If if you want an attorney,
thats fine, too.
Noyakuk: Uh-huh.
Shepherd: Ah, but thats up to you. You
need to make that decision and let us know.
Noyakuk: Uh-huh.
Schied: Because that attorney cant help
us find where Martha is, to help her parents.
You know, hes not the one that can help you
do that. Hes not the one that can help us
help [Marthas] parents.
Noyakuk: Uh-huh.
Schied: But if thats what you feel
like Investigator Shepherd says, thats your
choice.
Shepherd: So it, its something for you
to decide, before we go further with
anything, [with] any questioning.
Noyakuk: I dont know; I dont know how
this (indiscernible).
Schied: You dont know what to say, Ben?
Noyakuk: Huh?
Schied: Would it help if we just asked
[our] questions? Would [that] make it easier
for you?
Noyakuk: I dont have to answer.
Schied: So you dont have to just, just
spell it out, would it help you if we just
ask questions?
Noyakuk: Okay.
Schied: Are you are you willing to do
that without an attorney, though? We need to
know that.
Noyakuk: Yeah.
Schied: Okay. Um, were you up ... by
John Ahmasuks camp when [Martha] was shot?
Noyakuk: No, I was in my house.
Schied: You were in your house?
Noyakuk: Uh-huh [yes].
Schied: Okay. Would okay.
Noyakuk: It was accidental.
Schied: Okay. Well, those things
happen, Ben.
Shepherd: Those [things] happen.
Schied: Was, was this ...
Shepherd: Ben, would you even feel
better, you know, if if we read you your
rights? Would you feel better if we did that
first? Or ...
Noyakuk: Unh-uh [no].
Shepherd: No, its okay? So you are
willing to talk to us; its okay? [Are] you
willing to talk to us without an attorney?
Noyakuk: Uh-huh [yes].
Shepherd: Im sorry; I couldnt hear you.
Noyakuk: Yes.
[The troopers then resumed their
substantive questioning.]
Was Noyakuk in custody for Miranda purposes during the
first interview (the interview on the morning of April
13th)?
When this case was first briefed, the State
did not dispute that Noyakuk was in custody for Miranda
purposes during the interview of April 13th and that
troopers failed to give Noyakuk adequate Miranda
warnings at that time. We nevertheless asked the
parties for supplemental briefing on the issue of
whether Noyakuk was truly in custody for Miranda
purposes during that April 13th interview, given the
troopers repeated statements to Noyakuk that he was not
obliged to speak to them, and that he could leave the
interview at any time. The parties responded with well-
written briefs on this question. Having considered the
matter, we agree with Judge Esch that Noyakuk was in
custody for Miranda purposes.
In Beaver v. State, 933 P.2d 1178, 1185
(Alaska App. 1997), we held that even when the police
interrogate a prison inmate, a finding of custody for
Miranda purposes still requires proof of coerciveness.
And there is a significant body of case law from other
jurisdictions supporting the view that a prison inmate
who is interviewed by the police about an unrelated
offense will not be deemed to be in Miranda custody if
the interviewing officers make it clear that the inmate
need not participate in the interview, that the inmate
can choose to terminate the interview at any time, and
that the inmate will suffer no adverse consequences if
the inmate decides not to answer the officers
questions.4
But in all of these cases, the interrogated
inmate had already been convicted and sentenced or, at
the least, the inmate had already been incarcerated for
weeks before being questioned by the police. In other
words, the defendants in those cases were in their
accustomed environment when the police approached them
and asked them to submit to an interview and the
defendants knew that if they chose to end the
interview, they would be returned to that accustomed
environment.
Noyakuks case stands in sharp contrast.
Noyakuk had been in jail for less than a day. He had
been held incommunicado during that time. Naked in a
solitary cell, and denied visitors, he had not yet
appeared before a judicial officer, and he had received
no legal advice. This was not a situation where a
prison inmate was interviewed in their prison home.
Noyakuk was just as susceptible to the inherent
coercive pressures of the interrogation process as any
new arrestee. The troopers could not have interrogated
Noyakuk following his arrest on the evening of April
12th without first obtaining a Miranda waiver. We
conclude that the situation was no different at
ten oclock the next morning.
Because Noyakuk was in custody when the
troopers came to interview him on April 13th, and
because Noyakuk did not receive the complete set of
Miranda warnings at that time, we uphold the superior
courts decision to suppress Noyakuks statements from
that interview.
Why we conclude that the Miranda violation at the April
13th interview did not taint the statements that
Noyakuk gave at the later interviews
When Judge Esch ruled on Noyakuks suppression
motion, he declared that he would have suppressed all
of Noyakuks statements if Noyakuks case had been
governed by the law as it existed before the United
States Supreme Court issued its decision in Oregon v.
Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222
(1985). However, Judge Esch concluded that, under post-
Elstad law, Noyakuks statements at the subsequent
interviews were not tainted by the Miranda violation
that occurred at the first interview.
In both Halberg v. State and Crawford v.
State,5 we described and examined the difference
between pre- and post-Elstad law on the issue of
whether a Miranda violation in one interrogation
requires suppression of the statements the suspect
makes in ensuing interrogations. As we explained in
Crawford,
[The] two competing analyses of this question
[are] the [pre-Elstad] dissipation of taint
analysis exemplified by the United States
Supreme Courts decision in Brown v.
Illinois,[6] and the modified analysis
announced in 1985 by the Supreme Court in
Oregon v. Elstad.
Under Brown, even though a suspect
ultimately receives proper Miranda warnings,
the statements that the suspect makes after
receiving those Miranda warnings are still
presumptively inadmissible; to rebut this
presumption, the government must show that
there was a break in the chain of events to
insulate those later statements from the
taint of the suspects initial unwarned
admissions. [Brown, 422 U.S. at 603-04,
95 S.Ct. at 2261-62.] But under Elstad, the
later administration of Miranda warnings
presumptively negates the psychological
pressures of custodial interrogation from
that point forward, thus rendering the
suspects ensuing statements admissible
despite the fact that the suspect had earlier
made incriminating admissions. In the words
of the Elstad Court, a careful and thorough
administration of Miranda warnings serves to
cure the condition that rendered the
[earlier] unwarned statement inadmissible,
even when there has been no significant break
in the stream of events as required under
Brown. [Elstad, 470 U.S. at 310-11, 105
S.Ct. at 1294.]
Crawford, 100 P.3d at 441.
Judge Esch recognized that neither
this Court nor the Alaska Supreme Court has
yet decided whether, as a matter of state
law, Alaska should follow Elstad or should
instead adhere to pre-Elstad law. However,
Judge Esch concluded that, because Alaska has
not affirmatively adopted a contrary rule, he
should follow the rule expounded in Elstad.
We do not necessarily agree with
Judge Eschs conclusion that, under pre-Elstad
law, Noyakuks statements at the ensuing
interviews were tainted by the Miranda
violation at the first interview.
The flaw in the first interview was
not a total failure to warn Noyakuk, but
rather the fact that the troopers did not
give Noyakuk the complete set of Miranda
warnings. The most prominent omissions were
(1) the troopers failure to expressly tell
Noyakuk that anything he said to them could
be used against him, (2) the troopers failure
to tell Noyakuk that he had the right to have
an attorney present during the questioning,
and (3) the troopers failure to expressly
tell Noyakuk that, if he wanted an attorney
but could not afford one, an attorney would
be appointed to represent him before any
questioning.
On the other hand, the troopers did
tell Noyakuk (a) that they had come to speak
to him about Martha Butlers death, (b) that
he did not have to talk to the troopers if he
did not wish to, and (c) that he could
terminate the interview and return to his
cell at any time he wished. Moreover, before
Noyakuk answered any substantive question
about the homicide, he brought up the subject
of an attorney (by asking, Shouldnt I just
have my attorney with me, or something?). At
that point, the troopers expressly informed
Noyakuk (d) that it was up to Noyakuk to
decide whether to talk to them without the
assistance of an attorney.
Judge Esch found that the troopers
made a conscious decision not to give Noyakuk
the complete Miranda warnings at this first
interview, and this finding is supported by
Trooper Schieds testimony to the grand jury.
Schied testified that her (mistaken)
understanding of the law was that law
enforcement officers do not have to warn
incarcerated suspects of their Miranda rights
as long as the officers confine their
questions to crimes other than the ones for
which the suspect has been jailed.
Judge Esch concluded that the
troopers probably honestly believed that they
were not obligated to Mirandize Noyakuk.
However, Judge Esch also found that the
troopers decision to omit the full set of
Miranda warnings was motivated by the
troopers [fear] that if [Noyakuk] understood
that he could stop [the] questioning at any
time and/or consult with an attorney, they
would not learn where [Martha Butlers] body
was or what had happened.
This latter finding, we conclude,
is clearly erroneous.7 As we have explained,
the troopers expressly told Noyakuk that he
did not have to speak to them, that he could
stop the questioning at any time, and that it
was up to him to decide whether to seek the
assistance of an attorney before proceeding
with the interview. We further note that,
even after Noyakuk seemingly manifested his
willingness to speak to the troopers without
an attorney, Trooper Shepherd offered to give
Noyakuk the complete set of Miranda warnings
an offer that Noyakuk declined.
For these reasons, we conclude that
even though the troopers consciously decided
not to give Noyakuk the complete set of
Miranda warnings, their violation of Miranda
was not flagrant or purposeful (in the sense
that it stemmed from a desire to subvert
Noyakuks rights).8
We further note that, even though
Noyakuk remained incarcerated throughout the
series of interviews, his first interview
(the flawed one) was separated from his
second interview by more than 48 hours. (The
second interview took place in the early
evening of April 15th.) At the beginning of
that 48-hour interlude, on the afternoon of
April 13th, Noyakuk was arraigned in court on
the pending misdemeanor charges, and an
attorney was appointed to represent him.
Thus, Noyakuk had two days to consult with
counsel before the second interview took
place.
At this second interview, Noyakuk
was Mirandized, and he initially consented to
speak to Trooper Schied. As the interview
progressed, however, Noyakuk became
emotional, and he exercised his right to end
the conversation although he told Schied
that she could return later to talk to him
again.
We further note that, when Schied
returned to the prison around noon the next
day (April 16th) to interview Noyakuk for a
third time, she declined to hold the
interview because she discovered that Noyakuk
was emotionally distraught even though
Noyakuk told Schied that he was willing to
talk to her at that time. Instead, Schied
left the prison and returned two hours later.
When we evaluate these
circumstances in light of the factors listed
in Halberg v. State, 903 P.2d at 1098, we are
not sure that Noyakuks statements from the
ensuing interviews should be suppressed even
under pre-Elstad law.
However, this point is moot. In
Noyakuks brief to this Court, he does not ask
us to reject Elstad and apply the pre-Elstad
rule of suppression as a matter of state law.
Instead, Noyakuk contends that his statements
from the ensuing interviews should be
suppressed even under the Elstad rule and
that Judge Esch misapplied Elstad when he
came to the opposite conclusion.
Noyakuk points out that, in the
Elstad opinion, the Supreme Court stated that
absent deliberately coercive or improper
tactics in obtaining the [suspects] initial
statement, the mere fact that a suspect has
made an unwarned admission does not warrant a
presumption [that the suspects later
statements were compelled]. Elstad, 470 U.S.
at 314, 105 S.Ct. at 1296 (emphasis added).
Noyakuk argues that the troopers approach to
him in the first interview was the sort of
deliberately coercive or improper tactic
condemned in Elstad and that, therefore, his
statements during the later interviews should
be suppressed even under the Elstad rule.
But to support this contention,
Noyakuk relies primarily on Judge Eschs
finding that the troopers purposely violated
Miranda at the first interview because they
were afraid that if [Noyakuk] understood that
he could stop [the] questioning at any time
and/or consult with an attorney, they would
not learn where [Martha Butlers] body was or
what had happened. As we explained above,
this finding is clearly erroneous. The
troopers repeatedly told Noyakuk that he did
not have to speak to them, that he could stop
the interview at any time, and that, if he
wished, he could seek an attorneys assistance
before speaking to them.
It may be true, as Judge Esch
found, that the troopers consciously decided
not to give the full set of Miranda warnings
to Noyakuk, acting from the honest (but
mistaken) belief that Noyakuk was not
entitled to Miranda warnings as long as the
troopers confined their questions to the as-
yet-uncharged homicide. But the facts of
Noyakuks case do not demonstrate flagrant
misconduct or purposeful overreaching by the
officers.
Moreover, the federal courts have
interpreted Elstads reference to coercive
tactics as relating to situations in which
the tactics used in the first, improper
interrogation had a coercive effect that led
to the [suspects] later admissions. Brosius
v. Warden, Lewisburg Penitentiary, 278 F.3d
239, 249 (3rd Cir. 2002). Chief among the
decisions on this point are the Supreme
Courts own decision in Missouri v. Seibert,
542 U.S. 600, 615-17; 124 S.Ct. 2601, 2612-
13; 159 L.Ed.2d 643 (2004), and this Courts
decision in Crawford v. State, 100 P.3d 440,
450 (Alaska App. 2004).
In Noyakuks case, there is little
reason to think that the Miranda violation at
the first interview, or the results of that
violation, coerced Noyakuk into waiving his
rights at the ensuing interviews. First,
there was an interval of more than 48 hours
between the flawed first interview and the
second one. During that time, an attorney
was appointed to represent Noyakuk on the
pending misdemeanor and probation violation
charges an attorney who, assumedly, was also
available to give Noyakuk advice on how to
deal with the troopers who wished to question
him about the homicide.
Second, Noyakuk was given Miranda
warnings before each of the subsequent
interviews, and he does not claim that he
failed to understand these warnings. In
fact, the second interview (the one on April
15th) ended when Noyakuk invoked his right to
terminate the interview.
Finally, Noyakuk told the troopers
at the first interview that the shooting had
been an accident, and he continued to assert
this version of events at the second
interview. It was not until the third
interview (i.e., the second properly
Mirandized interview) on April 16th that
Noyakuk confessed to having purposely shot
Butler.
For these reasons, we conclude that
Noyakuks case does not present an exception
to the standard Elstad analysis.
Turning now to a standard Elstad
analysis of this case, Judge Esch found that
all of Noyakuks statements to the troopers
(including his statements at the initial
interview on April 13th) were voluntary. The
record fully supports the judges ruling.
Judge Esch also found that each of Noyakuks
ensuing interviews was preceded by a valid
Miranda advisement and waiver, and Noyakuk
does not dispute this. Moreover, as Judge
Esch noted, the interval between Noyakuks
first flawed interview and his second
interview was a significant period more than
48 hours. We note that, toward the beginning
of this 48-hour interval, Noyakuk appeared in
court and received an attorney.
Judge Esch further found that
Trooper Schied was never overbearing toward
Noyakuk, nor did she ever use lies or
trickery to influence Noyakuks decisions to
submit to the ensuing interviews. The record
supports these findings.
Applying the rule of Elstad, we
agree with Judge Esch that, despite the
Miranda violation at the first interview,
Noyakuks statements from his subsequent
interviews were admissible.
(We again note that we are not
deciding whether to adopt the Elstad rule as
a matter of state law. We are simply
deciding the question of federal law that
Noyakuk has raised.)
Why we agree with Judge Esch that the troopers did not
violate Edwards v. Arizona at the first interview
Noyakuk argues in the alternative that, even
if his statements from the subsequent interviews
are admissible under Elstad, these statements
should nevertheless be suppressed because, at the
first interview, the troopers failed to honor his
right to an attorney.
In Edwards v. Arizona,9 the Supreme Court
held that when a suspect in custody invokes their
right to counsel, the police must stop questioning
the suspect and must not re-initiate questioning
until the suspect has had the opportunity to
consult an attorney:
[W]hen an accused has invoked his right to
have counsel present during custodial
interrogation, a valid waiver of that right
cannot be established by showing only that he
responded to further police-initiated
custodial interrogation even if he has been
advised of his rights. ... [A]n accused
[who has] expressed his desire to deal with
the police only through counsel is not
subject to further interrogation by the
authorities until counsel has been made
available to him, unless the accused himself
initiates further communication, exchanges,
or conversations with the police.
Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1884-85. See also our
discussion of this rule in Kochutin v. State, 813 P.2d
298, 303 (Alaska App. 1991).10
In the present case, Noyakuk did not expressly invoke
his right to counsel at the first interview. However,
as explained above, Noyakuk did ask the troopers
whether he should have an attorney with him during the
interview. Noyakuk contends that the troopers
responded inappropriately to his question, by making
remarks that were intended to discourage him from
asserting his right to have an attorney present.
To analyze Noyakuks claim, we return to a detailed look
at this portion of the first interview. After the
troopers explained that they had come to interview
Noyakuk about Martha Butlers death, and that Noyakuk
did not have to talk to them (and that he could end the
interview at any time), Trooper Schied asked Noyakuk to
describe how Martha Butler met her death:
Schied: Okay. Can you kind of tell us
what happened, so that we can help her
parents and you, too?
Noyakuk: Shouldnt I just have my
attorney with me, or something?
Schied: Umh ...
Shepherd: Well, if, if thats what you
feel [is] right I mean, we cant make that
decision for you. You have to make that
decision. Like I said, ... were not here to
talk about the [pending] charges; were here
to talk about Martha. ... Like I said, you
know, you dont have to talk to us if you dont
want [to]. But, ah, like Trooper Schied
said, were trying to figure out what happened
so that we can help her parents, you know,
get over this, and adjust to it, and ...
Noyakuk: Uh-huh.
Shepherd: ... and try to find out, you
know, what actually happened. Because we
always know [that] theres two sides to the
story. ... Theres your side, [and] weve
been talking to a lot of people, and weve
heard what theyve been saying, and what you
told them. But from our work, we know that
theres two sides to the story, and the best
place to always hear the story is from the
person [who] actually ... was there. So
[you] know, like I said, you you can talk to
us if you want. If if you want an attorney,
thats fine, too.
Noyakuk: Uh-huh.
Shepherd: Ah, but thats up to you. You
need to make that decision and let us know.
Noyakuk: Uh-huh.
Schied: Because that attorney cant help
us find where Martha is, to help her parents.
You know, hes not the one that can help you
do that. Hes not the one that can help us
help [Marthas] parents.
Noyakuk: Uh-huh.
Schied: But if thats what you feel
like Investigator Shepherd says, thats your
choice.
Shepherd: So it, its something for you
to decide, before we go further with
anything, [with] any questioning.
Noyakuk: I dont know; I dont know how
this (indiscernible).
Schied: You dont know what to say, Ben?
Noyakuk: Huh?
Schied: Would it help if we just asked
[our] questions? Would [that] make it easier
for you?
Noyakuk: I dont have to answer.
Schied: So you dont have to just, just
spell it out, would it help you if we just
ask questions?
Noyakuk: Okay.
Schied: Are you are you willing to do
that without an attorney, though? We need to
know that.
Noyakuk: Yeah.
Schied: Okay. Um, were you up ... by
John Ahmasuks camp when [Martha] was shot?
Noyakuk: No, I was in my house.
Schied: You were in your house?
Noyakuk: Uh-huh [yes].
Schied: Okay. Would okay.
Noyakuk: It was accidental.
Schied: Okay. Well, those things
happen, Ben.
Shepherd: Those [things] happen.
Schied: Was, was this ...
Shepherd: Ben, would you even feel
better, you know, if if we read you your
rights? Would you feel better if we did that
first? Or ...
Noyakuk: Unh-uh [no].
Shepherd: No, its okay? So you are
willing to talk to us; its okay? [Are] you
willing to talk to us without an attorney?
Noyakuk: Uh-huh [yes].
Shepherd: Im sorry; I couldnt hear you.
Noyakuk: Yes.
As can be seen from this quoted exchange, when Noyakuk
asked, Shouldnt I just have my attorney with me, or
something?, the troopers responded by telling Noyakuk
(1) that this was Noyakuks decision to make; (2) that
if Noyakuk wanted an attorney, that [was] fine; and (3)
that Noyakuk needed to make this decision and let [the
troopers] know before the interview proceeded further.
When the troopers asked Noyakuk whether he was willing
to speak to them without an attorney, Noyakuk stated
(apparently three times) that he was.
However, the troopers interspersed this conversation
with comments suggesting that an attorney could not assist them
in piecing together what had happened, or in locating Butlers
body both of which, the troopers asserted, would help Butlers
parents deal with their loss.
Shepherd: [W]ere trying to figure out
what happened so that we can help [Martha
Butlers] parents ... get over this, and
adjust to it, and ... try to find out ...
what actually happened. ... [W]e always
know [that] theres two sides to the story.
... [W]eve been talking to a lot of people,
and weve heard what theyve been saying, and
what you told them. But from our work, we
know that theres two sides to the story, and
the best place to always hear the story is
from the person [who] actually ... was there.
. . .
Schied: [An] attorney cant help us find
where Martha is, to help her parents. ...
[An attorney] is not the one that can help
you do that. Hes not the one that can help
us help [Marthas] parents.
Noyakuk argues that these comments were
intended to discourage him from asserting his
right to counsel and that, by making these
comments, the troopers violated Noyakuks
rights under Miranda and Edwards.
In Giacomazzi v. State, 633 P.2d
218, 222 (Alaska 1981), our supreme court
held that when a suspect in custody makes an
ambiguous or equivocal statement about
wanting an attorney, the interrogating
officers may seek clarification of the
suspects desires, so long as the officers do
not utilize the guise of clarification as a
subterfuge for coerc[ing] or intimidat[ing]
the suspect into waiving this right. Later,
in Hampel v. State, 706 P.2d 1173, 1180-81
(Alaska App. 1985), this Court interpreted
Giacomazzi as meaning that, in the face of a
suspects ambiguous or equivocal statement
about wanting an attorney, the interrogating
officers must clarify the suspects wishes,
and the officers can not proceed with
substantive questioning until they have done
so. Moreover, Hampel holds that the Edwards
rule is violated when an interrogating
officer chooses to answer a [suspects]
question [concerning the right to counsel] in
a way which the officer knows or should know
will be reasonably likely to discourage the
accused from asserting the right to
counsel.11
Noyakuk asserts that the troopers
violated Giacomazzi and Hampel when they made
the above-quoted responses to Noyakuks
question about a lawyer.
The State answers that the Hampel
restriction on custodial interrogations is no
longer good law, given the United States
Supreme Courts decision in Davis v. United
States, 512 U.S. 452, 114 S.Ct. 2350, 129
L.Ed.2d 362 (1994).
The defendant in Davis, after
receiving Miranda warnings, waived his rights
and consented to be interviewed. However,
about an hour and a half into the interview,
the defendant said, Maybe I should talk to a
lawyer.12 The question presented in Davis
was whether the defendants statement obliged
the interrogating officers to cease their
substantive questioning.
The Supreme Court recognized that
many jurisdictions had adopted rules similar
to the one announced in Giacomazzi and
Hampel: that is, rules that obliged
interrogating officers to cease their
substantive questioning and to limit
themselves to seeking clarification of the
suspects wishes.13 However, the Supreme
Court declared that federal law did not
impose such a restriction:
[I]f a suspect makes a reference to an
attorney that is ambiguous or equivocal in
that a reasonable officer in light of the
circumstances would have understood only that
the suspect might be invoking the right to
counsel, our precedents do not require the
cessation of questioning. ... The likelihood
that a suspect would wish counsel to be
present is not the test for applicability of
Edwards.
Rather, the suspect must unambiguously
request counsel[;] ... he must articulate
his desire to have counsel present
sufficiently clearly that a reasonable police
officer in the circumstances would understand
the statement to be a request for an
attorney. If the statement fails to meet the
requisite level of clarity, Edwards does not
require that the officers stop questioning
the suspect.
Davis, 512 U.S. at 459, 114 S.Ct. at 2355
(emphasis added) (citations omitted).
The Court acknowledged that it was
good police practice for interrogating
officers to seek clarification of a suspects
ambiguous or equivocal statement. However,
the Court decline[d] to adopt a rule
requiring officers to ask clarifying
questions. Instead, the Court declared: If
the suspects statement is not an unambiguous
or unequivocal request for counsel, the
officers have no obligation to stop
questioning [the suspect].14
The State contends that Davis
changed the legal landscape and undermined
the rationale of Giacomazzi and Hampel (both
of which were apparently grounded on federal
law). But as the Utah Supreme Court noted in
State v. Leyva, 951 P.2d 738, 743 (Utah
1997), Davis involved an ambiguous or
equivocal statement made in the middle of an
interview by a suspect who had already
received Miranda warnings and had already
unambiguously waived his right to counsel.
The United States Supreme Court explained its
ruling this way:
[T]he primary protection afforded suspects
subject to custodial interrogation is the
Miranda warnings themselves. ... A suspect
who knowingly and voluntarily waives his
right to counsel after having that right
explained to him has indicated his
willingness to deal with the police
unassisted. Although Edwards provides an
additional protection if a suspect
subsequently requests an attorney,
questioning must cease it is one that must
be affirmatively invoked by the suspect.
Davis, 512 U.S. at 460-61, 114 S.Ct. at 2356.
Thus, the Davis rule (that
interrogating officers need not interrupt
their questioning to clarify the suspects
wishes) applies only to a post-Miranda-waiver
setting. This view of Davis is endorsed by
one of the major texts on criminal procedure:
Although [this] point is sometimes missed,
... Davis is so limited; the Courts ruling
was that after a knowing and voluntary waiver
of the Miranda rights, law enforcement
officers may continue questioning until and
unless the suspect clearly requests an
attorney.
Wayne R. LaFave, Jerold H. Israel, and Nancy
J. King, Criminal Procedure (2nd ed. 1999),
6.9(g), Vol. 2, p. 615 n. 164 (emphasis
added) (quoting Davis, 512 U.S. at 461, 114
S.Ct. at 2356, and citing Utahs Leyva
decision in support of this interpretation of
Davis).
It may be true, as the State
suggests, that the Giacomazzi and Hampel rule
should no longer be applied when a suspect
makes an ambiguous or equivocal post-waiver,
mid-interview statement about an attorney.
We leave that issue for another day. But the
Davis decision has not changed the law that
applies to cases like Noyakuks cases where
the question is whether a suspect ever
validly waived the right to counsel to begin
with.
We now return to the facts of
Noyakuks interrogation.
As we have already explained, when
Noyakuk asked, Shouldnt I just have my
attorney with me, or something?, the troopers
responded that stopping the interview to
allow Noyakuk to obtain an attorney would not
help Martha Butlers parents learn what had
happened to their daughter and recover her
body. On the other hand, the troopers
repeatedly told Noyakuk (1) that it was his
choice whether to have an attorney present,
(2) that if he wanted an attorney, that [was]
fine, and (3) that he needed to make this
decision before the troopers proceeded with
the interview. After explaining this to
Noyakuk, the troopers expressly (and
repeatedly) asked Noyakuk whether he was
willing to speak to them without an attorney.
Three times, Noyakuk stated that he was
willing to proceed without an attorney.
These facts are quite a bit
different from the facts of Hampel where the
interrogating officer responded to Hampels
inquiry about an attorney by emphasiz[ing]
the obstacles to obtaining one, by focusing
on the evidence [against] Hampel, and by
strongly implying that Hampel would damage
his case if he delayed talking until an
attorney could be present, since the police
were just about to interview Hampels
cohorts.15 It is not surprising that this
Court categorized the officers response as a
tactic that was likely to discourage [Hampel]
from asserting the right to counsel.16
[B]y emphasizing ... the delay and
bureaucratic complexity of procuring an
attorney, while [at the same time] dwelling
... on the evidence against Hampel, the
progress of the [police] investigation, and
the imminent interrogation of Hampels
companions, [the interrogating officer]
created two unmistakable impressions: first,
that Hampel was being given an opportunity to
cooperate, but time was of the essence; [and]
second, that if Hampel elected to request
counsel, a substantial delay would inevitably
result[,] and he would lose that opportunity.
[The officers] answers ... thus worked more
toward persuasion than clarification.
Hampel, 706 P.2d at 1182.
The troopers statements in Noyakuks
case (the statements that an attorney could
not help Marthas parents understand what had
happened to their daughter or locate her
body) might conceivably have worked to
dissuade Noyakuk from demanding the immediate
presence of counsel, but these statements
were not coercive like the ones in Hampel.
The troopers never stated or implied that
Noyakuks decision to request an attorneys
presence would have adverse consequences for
Noyakuk personally, or that any delay in the
interview process would be unacceptable to
the authorities or would hurt Noyakuk in any
other fashion. In fact, the troopers told
Noyakuk that it would be fine if he asked for
an attorney.
We conclude that the facts of
Noyakuks case are much closer to the facts
presented in State v. Varie, 26 P.3d 31
(Idaho 2001). The defendant in Varie was
questioned concerning the disappearance of
her husband. When Varie noted during the
interview that she did not have a lawyer, the
officers asked her if she wanted a lawyer
before speaking to them. Varie replied, [A]m
I supposed to have a lawyer? At this point,
the officers explained that it was Varies
choice whether to have a lawyer. The
officers told Varie that they did not know if
having a lawyer would make much difference,
but that this was her opportunity to move
ahead and tell [the police] what happened.17
Upon hearing this, Varie began to speak about
what had happened. The officers interrupted
her to clarify her decision: [We] guess it
is your choice to go ahead and talk with us
now without a lawyer? Varie replied, [T]hats
fine.18
The Idaho court noted that Varie
appeared upset and may have been vulnerable
at the time of the questioning. The court
further noted that the officers [c]learly
[engaged in] an effort to de-emphasize the
importance of [Varies] Constitutional rights
and [to] stress Varies opportunity to tell
her story.19 Nevertheless, the court
concluded that Varie understood her rights,
and that she was not coerced into waiving
those rights:
Significantly, [the officers] broke the
subtly persuasive atmosphere of the moment
and asked very directly if Varie wished to
proceed [with the interview]. She agreed to
proceed.
Varie, 26 P.3d at 36.
A similar issue was presented in
Mueller v. Angelone, 181 F.3d 557 (4th Cir.
1999). The defendant in Mueller was being
interrogated (following Miranda warnings and
a waiver of rights) about a homicide. Midway
through the interview, he asked the police
officer, Do you think I need an attorney
here? The officer responded by shaking his
head slightly from side to side, moving his
arms and hands in a shrug-like manner, and
then telling Mueller, Youre just talking to
us. Six minutes later, Mueller began
confessing to the murder.20
On appeal, Mueller argued that the
officer should have ceased all questioning
after Mueller inquired about an attorney.
Mueller also argued that, even if his
question about a lawyer did not require the
officer to cease all interrogation, the
officers response to this question was
improper, in that it discouraged Mueller from
asserting his right to counsel. The court
disagreed on both points:
Mueller can only prevail by showing that[,]
under the totality of the circumstances, [the
officers] response made Muellers continuing
waiver [of counsel] the product of other than
a free and deliberate choice, or that[,]
after [the officers response,] Mueller no
longer understood the nature of the right to
an attorney or the consequences of abandoning
it.
Mueller, 181 F.3d at 575.
The court noted that Mueller was in
his forties, and that he had considerable
prior experience with the criminal justice
system and the Miranda warnings.21 The court
concluded that it was clear from the record
that Mueller, with his extensive experience
in such matters, understood both his rights
and the consequences of their abandonment.
[The officers] expression of his opinion on
the advisability of Muellers consulting with
counsel could not change that
understanding.22
Like the defendant in Mueller,
Noyakuk was an adult who had had extensive
experience with the criminal justice system.
Judge Esch found that, because of Noyakuks
[prior] experience with both attorneys and
the justice system, Noyakuk was well aware of
his right to an attorney. As Judge Esch
noted, Noyakuk had been convicted several
times in the 1980s of minor consuming
alcohol, and had been convicted once of
disorderly conduct in the 1990s. Moreover,
in the year preceding his arrest in April
2001, Noyakuk was convicted three times of
domestic assault.
Judge Esch noted that the troopers
explained several times that the decision
concerning [an attorney] was up to [Noyakuk].
Judge Esch further noted that the troopers
refrained from substantive questioning until
Noyakuk indicated his willingness to proceed
without an attorney. Based on the exchange
between Noyakuk and the troopers, and based
on Noyakuks prior experience with the justice
system, Judge Esch concluded that [i]f
[Noyakuk] had wished to speak with an
attorney prior to further questioning, he
could have done so and that, therefore,
there was no Edwards violation.
We agree with Judge Esch. As we
have explained here, the facts of Noyakuks
case are significantly different from the
facts of Hampel. Noyakuk was not told that
it was difficult or impossible to obtain an
attorney, nor was he told that a request for
an attorney would hurt him or prejudice his
case. Rather, he was told that the choice
was up to him, and that if he wanted an
attorney, that [was] fine.
Conceivably, Noyakuk might have
argued that he was so emotionally distraught
over Martha Butlers death, and that he felt
so compelled to remedy matters as much as
possible with her parents, that the troopers
exerted an unconscionable influence on
Noyakuk when they commented on the need to
help Butlers parents understand what had
happened and to recover their daughters body.
But this was never the focus of
Noyakuks suppression motion, and Judge Esch
was never asked to make a finding on the
issue of potential emotional overbearing.
Rather, Noyakuk argued that it was improper
for the troopers to say anything to Noyakuk,
other than to ask questions that were
strictly limited to ascertaining whether
Noyakuk wanted an attorney before proceeding
with the interview. As we have explained
here, the rule is not so strict. The
ultimate issue is not what the troopers said,
but whether (given what the troopers said)
Noyakuk knowingly and voluntarily waived his
right to counsel. We agree with Judge Esch
that he did.
Noyakuks sentence appeal
We have rejected Noyakuks challenges to the
admission of the evidence against him. Accordingly, we
affirm his conviction for murder. We now turn to the
remaining issue in this case: Noyakuks appeal of his
sentence.
Noyakuk was convicted of first-degree murder
intentionally killing another human being. This
offense is an unclassified felony with a mandatory
minimum sentence of 20 years imprisonment and a maximum
sentence of 99 years imprisonment.23 Judge Esch
sentenced Noyakuk to 99 years with 24 years suspended
i.e., 75 years to serve.
Noyakuk argues that his conduct was more akin
to second-degree murder (i.e., an unintended homicide
committed under circumstances where there is great risk
of death). Thus, Noyakuk contends that he should have
received a sentence more in line with the 20- to 30-
year benchmark range that this Court has established
for first felony offenders convicted of second-degree
murder.24
In arguing that his conduct was similar to a
second-degree murder, Noyakuk points out that the
killing was not premeditated, that he did not kill his
victim merely for the thrill of it, and that he did not
torture or engage in deliberate cruelty toward his
victim. But all of these are factors that aggravate a
first-degree murder. That is, if one or more of these
factors had been present, this would have shown that
Noyakuks crime was more serious than the typical first-
degree murder.25 It does not follow that the absence
of these factors establishes that Noyakuks crime was
less serious than a typical first-degree murder.
Noyakuks act of murdering Martha Butler was a
crime of domestic violence, since Noyakuk and Butler
shared a household.26 Judge Esch found that Noyakuk
had a history of repeated assaultive conduct, including
two prior assaults against Butler. In addition, Judge
Esch noted that Noyakuk engaged in a significant and
protracted effort to conceal the murder and to avoid
apprehension. Judge Esch could reasonably conclude
that these factors called for a sentence within the
upper range of the penalties for first-degree murder.
(Compare Sakeagak v. State, 952 P.2d 278, 285
(Alaska App. 1998), where we held that a defendant
challenging the reasonableness of a 99-year sentence
for first-degree murder was obliged to show some reason
to believe that their offense was mitigated or that
their background was atypically favorable.)
After independently reviewing the record in
Noyakuks case, we conclude that Judge Esch was not
clearly mistaken when he sentenced Noyakuk to serve 75
years in prison.27
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966).
2AS 28.35.030(a).
3AS 11.61.210(a)(1).
4Federal courts: See United States v. Chamberlain, 163 F.3d
499, 501-02 (8th Cir. 1998); United States v. Menzer, 29
F.3d 1223, 1231-32 (7th Cir. 1994); United States v. Turner,
28 F.3d 981, 983-84 (9th Cir. 1994); Garcia v. Singletary,
13 F.3d 1487, 1492 (11th Cir. 1994); United States v. Lugo,
289 F.Supp.2d 790, 794-96 (S.D. Tex. 2003); Dallio v.
Spitzer, 170 F.Supp.2d 327, 338-39 (E.D. N.Y. 2001).
State courts: See Fairchild v. State, 76 S.W.3d 884,
890 (Ark. 2002); People v. Denison, 918 P.2d 1114, 1116-17
(Colo. 1996); State v. Peterson, 663 N.W.2d 417, 427-28
(Iowa 2003); State v. Deases, 518 N.W.2d 784, 789 (Iowa
1994); Commonwealth v. Larkin, 708 N.E.2d 674, 681 (Mass.
1999), and the cases cited in footnotes 6-8 of Larkin; State
v. Tibiatowski, 590 N.W.2d 305, 308-09 (Minn. 1999); State
v. Ford, 738 A.2d 937, 943 (N.H. 1999); State v. Conley, 574
N.W.2d 569, 573-74 (N.D. 1998).
See also Judge Bryners dissenting opinion in Kochutin
v. State, 813 P.2d 298, 309 & n. 2 (Alaska App. 1991), where
he cited the wealth of authority ... that a sentenced
prisoner serving time in a correctional facility is not ipso
facto in Miranda custody.
5Halberg v. State, 903 P.2d 1090 (Alaska App. 1995);
Crawford v. State, 100 P.3d 440 (Alaska App. 2004).
6422 U.S. 590, 602; 95 S.Ct. 2254, 2261; 45 L.Ed.2d 416
(1975).
7A finding of fact is clearly erroneous when it leaves the
[reviewing court] with a definite and firm conviction
... that a mistake has been made, although there may be
evidence to support the finding. Geczy v. LaChappelle,
636 P.2d 604, 606 n. 6 (Alaska 1981), quoting Mathis v.
Meyeres, 574 P.2d 447, 449 (Alaska 1978).
8Compare Lewis v. State, 862 P.2d 181, 186-87 (Alaska App.
1993), and Gustafson v. State, 854 P.2d 751, 756
(Alaska App. 1993), where we held that, for purposes of
applying the suppression rule announced in State v.
Malkin, 722 P.2d 943 (Alaska 1986), a conscious
misstatement or omission in a search warrant
application is intentional only if it was done in a
deliberate attempt to mislead the issuing magistrate.
(See also Judge Singletons concurrence in Davis v.
State, 766 P.2d 41, 47 n. 3 (Alaska App. 1988), where
he advocated this same interpretation of intentional
for Malkin purposes.)
9451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
10Our original opinion in Kochutin was later vacated, see
875 P.2d 778 (Alaska App. 1994), because our decision
rested on the false factual premise that Kochutin had
been continuously in custody between the time he
invoked his right to counsel and the time the police re-
interviewed him. However, our discussion of the
Edwards rule remains good law.
11Hampel, 706 P.2d at 1181.
12Davis, 512 U.S. at 455, 114 S.Ct. at 2353.
13Davis, 512 U.S. at 456, 114 S.Ct. at 2353-54.
14Davis, 512 U.S. at 461-62, 114 S.Ct. at 2356.
15Hampel, 706 P.2d at 1181.
16Id.
17Varie, 26 P.3d at 34.
18Id.
19Id. at 36.
20Mueller, 181 F.3d at 573-74.
21Id.
22Id.
23AS 11.41.100(b); AS 12.55.125(a).
24See Page v. State, 657 P.2d 850, 855 (Alaska App. 1983).
25See Hamilton v. State, 59 P.3d 760, 772 (Alaska App.
2002):
We have repeatedly held that premeditated murder
is among the most serious conduct within Alaskas
definition of first-degree murder and that, in
first-degree murder cases, a defendants premeditation,
standing alone, will support a sentence of 99 years
imprisonment. Moreover, even in cases of second-degree
murder (i.e., cases in which the killing was
unintended), we have repeatedly upheld sentences in the
upper end of the penalty range for defendants who
committed gratuitous or otherwise inexplicable acts of
extreme violence.
And see Harmon v. State, 908 P.2d 434, 444 (Alaska App. 1995)
(holding that a first-degree murder is aggravated when the
defendant tortures or inflicts gratuitous pain on the
victim).
26Compare AS 12.55.155(c)(18)(A), which provides that crimes
against household members are aggravated for purposes of
presumptive sentencing.
27See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974)
(an appellate court is to affirm a sentencing decision
unless the decision is clearly mistaken).
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