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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| BERNICE SLWOOKO, | ) |
| ) Court of Appeals No. A-8747 | |
| Appellant, | ) Trial Court No. 2NO-02-605 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2055 July 21, 2006 |
| ) | |
Appeal from the Superior Court, Second Judi
cial District, Nome, Ben J. Esch, Judge.
Appearances: Michael R. Smith, Boston,
Massachusetts, for the Appellant. Nancy R.
Simel, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage,
and David W. M rquez, Attorney General,
Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
COATS, Chief Judge, dissenting.
Bernice Slwooko appeals her conviction for second-
degree murder. At Slwookos trial, the State introduced evidence
of Slwookos self-incriminatory statements to the police. In this
appeal, Slwooko argues that her statements should have been
suppressed; Slwooko contends that the police obtained the
statements in violation of her rights under Miranda v. Arizona.1
In our previous decision in this case, Slwooko v.
State, Alaska Memorandum Opinion No. 5003 (August 31, 2005), we
remanded this case to the superior court for additional findings
on two questions: (1) was Slwooko in custody for Miranda
purposes when she made the self-incriminatory statements? and,
if so, (2) did Slwooko waive her rights before making the
statements?
We have now received the superior courts findings, and
the parties have filed supplemental memoranda in response to
those findings.
The superior court concluded that Slwooko was not in
custody when she arrived at the police station and began to speak
to the police. However, the superior court concluded that the
interview became custodial when the police officers continued to
interview Slwooko even after she stated that she did not wish to
answer the officers questions.
For the reasons explained in this opinion, we agree
with the superior courts first conclusion (that Slwooko was not
in custody when the interview commenced), but we disagree with
the superior courts second conclusion (that the interview became
custodial after Slwooko stated that she did not wish to answer
questions). Instead, we conclude that the interview remained non-
custodial until after Slwooko confessed and described her
participation in the homicide.
Slwooko also claims that, during her trial, the
prosecutor violated Alaska Evidence Rule 613 by introducing
evidence of a defense witnesss prior inconsistent statements
without first confronting the witness with those statements and
giving him a chance to deny or explain the prior statements.
This claim is baseless; the record shows that the prosecutor
complied with Evidence Rule 613.
For these reasons, we affirm Slwookos conviction.
Underlying facts
Here is a summary of the facts, taken from
our previous opinion:
Bernice Slwooko and Jacob Anagick met in Nome
in early August, 2002, and they became romantically
involved. Slwooko and Anagick stayed, off and on, with
the victim, Jimmy Jack.
On the mid-morning of August 18, 2002,
Anagick walked into the Nome police station and
reported that he had murdered Jack. Anagick told the
police that he and Jack started fighting and that the
altercation escalated until, ultimately, Anagick killed
Jack by striking him in the head with an axe.
Officer Jens Noet placed Anagick under arrest
and then left for Jacks residence. When no one
answered his knock, Noet pried open the door and found
Jack dead on the living room floor. An axe was leaning
against the kitchen table. Noet examined the axe
handle and concluded that someone had wiped the handle
after the homicide because the handle was covered in
blood up to a certain point and then was completely
clean.
Noet returned to the police station to
interview Anagick more fully. Anagick reiterated that
he had killed Jack by striking him two or three times
with the axe. When Officer Noet asked Anagick if
anyone else had been in the house at the time, Anagick
stated that he was all alone with Jimmy, and that
nobody else was there. Then Anagick made a statement
that Noet thought was strange: Anagick declared, If
you check the axe for fingerprints, [mine] ... will be
the only fingerprints ... on the axe. This volunteered
information about the absence of anyone elses
fingerprints struck Officer Noet as an odd statement to
make.
A little later that same day, a woman named
Pauline Brown telephoned the police to tell them about
an encounter she had had with Bernice Slwooko. Brown
told the police that she had encountered Slwooko
earlier that day and that, during their conversation,
Slwooko told Brown that she had murdered Jimmy Jack the
night before. Slwooko also told Brown that she had
needed to change out of her clothes and her shoes, and
to get rid of them, because they were bloody.
Armed with this new information, Nome Police
Officer Daniel Bennett re-interviewed Anagick about the
homicide. Anagick again recounted how he had fought
with Jack and how he had struck him in the head several
times with the axe. Bennett then asked Anagick if he
had spoken to anyone about the homicide. When Anagick
declared that he had told no one, Bennett remarked that
Bernice Slwooko seems to know quite a bit about this.
Bennett then asked Anagick if Slwooko had been present
during the homicide. Anagick first said no. Then he
said yes. Then Anagick whispered, What the hell is she
doing?
After hearing Anagicks responses, Bennett
decided to speak with Pauline Brown. Brown confirmed
her earlier report about her conversation with Slwooko,
in which Slwooko confessed her involvement in the
homicide.
The police began looking for Slwooko.
Sometime after 4:30 p.m., Bennett spotted a crying
woman in the company of two men in front of the Polar
Arms Motel. Bennett approached this woman and
discovered that she was Bernice Slwooko. According to
Bennett, Slwooko was very distraught and drunk.
Slwooko told Bennett, I need to talk to you.
When Bennett asked Slwooko if she was willing
to get into his patrol car and accompany him to the
station, Slwooko agreed. Bennett also asked the two
men to join them. The men got into the back of the
patrol car, while Slwooko took the front passenger
seat. Slwooko got into the patrol car unassisted, and
she was not restrained in any way.
When they arrived at the police station,
Slwooko was initially hesitant to go into the building,
and Bennett had to encourage Slwooko to come in and
talk to him:
Officer Bennett: [O]nce we got to the
police station, ... there was a little bit of
hesitation for her to go inside the police
department, and I encouraged her. I said,
Its real important [and] we need to talk.
And I said, Please, Bernice, come and talk to
me. And [then] she walked in[to] the police
station.
Under cross-examination, Bennett admitted
that he may have placed his hand on Slwookos
arm or back to guide her into the building.
Bennett testified that this entire episode of
hesitation lasted about ten seconds.
Once inside the station, Bennett
led Slwooko to the back office which was
normally used by the chief of police, and
which was also used as an interview room.
According to Bennett, Slwooko never expressed
any unwillingness to go into this interview
room.
In the meantime, Officer Noet
briefly questioned Slwookos two male
companions and then told them that they could
go. Noet then joined Bennett in the
interview room with Slwooko. During the
ensuing interview, Slwooko made the self-
incriminatory statements that are the subject
of this appeal.
Details of the interview
At the evidentiary hearing in this case,
Officer Bennett testified that when he conducted a non-
custodial interview at the police station, he would
normally confirm that the person was at the police
station voluntarily, and that the person was free to
leave or to stop the conversation anytime they wanted.
Bennett further testified that he would normally assure
the person that, no matter what they said during the
interview, they would not be arrested.
However, because of the information that the
police had received from Pauline Brown, Bennett had
already decided that he was going to arrest Slwooko if
Slwooko confirmed her involvement in the homicide.
Accordingly, Bennett decided that he should issue
Miranda warnings to Slwooko.2
The following is a transcription of the
pertinent portion of the interview:
Officer Bennett: Bernice, right now Im
gonna since youre in the police department I
want to ask you some questions, okay? ...
And I want you to understand your rights,
okay? You have the right to remain silent.
Anything you say can and will be used against
you in a court of law. You have the right to
an attorney. If you cannot afford one, one
will be appointed to you by the courts. Do
you understand your rights? (Pause)3 Would
you like to answer some questions for me?
Slwooko: No.
Bennett: No? Okay.
Noet: [To Bennett] Did you ask her
anything already?
Bennett: No, I havent asked ...
Slwooko: Yeah, well ...
Bennett: ... her nothing.
Slwooko: ... I want to be why am I
being arrested?
Bennett: Youre not being arrested. Im
sorry, I didnt I didnt want to arrest you.
But since youre in the police station, I have
to read you your rights, just because ...
Noet: (indiscernible) ...
Bennett: ... youre in the police
station.
Noet: ... talk to anybody.
Bennett: You know, ...
Noet: We, we just want to know we
would like to know what happened at Jimmy
Jacks.
Slwooko: I really dont know.
Noet: What ...
Bennett: Okay.
Noet: Well, Jacob [Anagick] was
arrested for hurting Jimmy Jack, and Jacob
says that you helped him hurt Jimmy Jack.
Bennett: Well, not exactly. But ... I
just got done talking to Jacob, okay? And he
said that I needed to come and talk to you.
So [do] you want to tell me what happened?
Okay?
Slwooko: Exactly?
Bennett: Exactly.
Slwooko: Ill tell you this. We were
going over to pick up my box. Im the one
that hit him with the axe while he was
putting his head down. Exactly twice, and
...
Bennett: Its okay. Take your time.
Slwooko: The third time, he decided to
do it, you know. And I said, No, Ill do it.
And I I (indiscernible).
Bennett: Okay.
Slwooko: Really sorry (indiscernible).
Slwooko then proceeded to explain
how the homicide occurred. She told the
police that Anagick wrestled Jack to the
ground, and then she hit Jack twice with the
axe. At this point, Jack was still
breathing, so Anagick struck Jack a third
time with the axe. Then, according to
Slwooko, she took up the axe again and
practically chopped [Jacks] head off.
Slwooko explained that she and
Anagick agreed that he (Anagick) would take
all the blame for the homicide.
At this point, Noet once again
administered Miranda warnings to Slwooko.
Slwooko expressly waived her rights, and then
she once more recounted the homicide. This
time, Slwooko explained how she had dumped
her bloody clothing in the rocks near
downtown Nome, and then obtained a room at
the Polar Arms. She also told the police
that she was still wearing the same shoes
that she had worn during the murder, and she
even pointed out some blood stains that she
had been unable to wipe off. Slwooko then
accompanied the officers to the place where
she had hidden her clothing.
The superior courts supplemental findings on remand
As we explained at the beginning of this
opinion, we remanded Slwookos case to the superior
court for additional findings on two questions:
(1) was Slwooko in custody for Miranda purposes
when she made her self-incriminatory statements?
and, if so, (2) did Slwooko waive her rights
before making the statements?
On remand, Superior Court Judge Ben Esch
found that, even though Officer Bennett asked
Slwooko to come to the police station to be
interviewed, and even though Bennett transported
Slwooko to the station in his patrol car, Slwooko
initiated this series of events by telling Officer
Bennett that she needed to talk to him. Judge
Esch further found that Slwooko did not evidence
any unwillingness to accompany the officer to the
station.
Judge Esch found that the interview lasted
less than thirty minutes, and that the two police
officers who interviewed Slwooko asked their
questions in a non-confrontational and polite
fashion, without any threats or intimidation.
Although the door to the interview room was
closed, there was no evidence that the police
restrained Slwooko in any overt fashion.
Based on these circumstances, Judge Esch
concluded that a reasonable person in Slwookos
situation would have felt free to break off the
questioning. Under our case law, this is equivalent to
a finding that Slwooko was not in custody.4
But even though Judge Esch concluded that the
interview was not custodial when it began, the judge
concluded that the interview became custodial later
when Bennett and Noet [decided] not to terminate the
interview [after Slwooko] said that she did not wish to
talk to the officers. According to Judge Esch, the
officers decision to continue talking to Slwooko
require[d] [him] to conclude that, at that point,
[Slwooko] was no longer free to go.
The parties have now filed memoranda
addressing Judge Eschs findings. Slwooko takes issue
with Judge Eschs conclusion that she was not in custody
when the interview began. The State takes issue with
Judge Eschs conclusion that the interview became
custodial when, after Slwooko stated that she did not
wish to answer questions, the officers continued to
interview her.
Was Slwooko in custody for Miranda purposes when the
interview began?
As explained above, Judge Esch concluded that
Slwooko was not in custody when she began her interview
with the police. Judge Esch found that Slwooko
initiated the interview by telling Officer Bennett that
she needed to talk to him, and that Slwooko then agreed
to travel with Bennett to the police station to speak
with the officers.
A persons interview with police officers does
not become custodial simply because it occurs at a
police station. California v. Beheler, 463 U.S. 1121,
1125; 103 S.Ct. 3517, 3520; 77 L.Ed.2d 1275 (1983).
Rather, the pertinent question is whether the person
being interviewed is present at the station of their
own will.
The Alaska Supreme Court acknowledged and
applied this principle in Henry v. State, 621 P.2d 1
(Alaska 1980). The defendant in Henry was a suspect in
a burglary. The police asked Henry to come to the
station for an interview, and they transported him to
this interview in a patrol car. The supreme court
nevertheless upheld the trial courts decision that
Henry had gone to the station of his own free will and,
based on this conclusion, the supreme court agreed that
the police had not been required to advise Henry of his
Miranda rights. Henry, 621 P.2d at 2-4.
In Slwookos brief to this Court, she points
out that, according to Bennetts testimony, Slwooko
showed some hesitation to enter the building, and
Bennett then encouraged her with words and, possibly,
by putting a hand on her arm or back. Slwooko argues
that this hesitation, and Bennetts response, show that
Judge Esch was wrong when he concluded that Slwooko
entered the police station willingly.
Slwookos subjective willingness to enter the
building is a question of fact, and we must defer to
Judge Eschs finding unless we are convinced that it is
clearly erroneous.5 Moreover, we must view the
evidence pertaining to this issue in the light most
favorable to upholding Judge Eschs decision.6
One could certainly argue, based on Slwookos
last-minute hesitancy to enter the police station, that
she had changed her mind about wanting to talk to the
police. But this is only one possible inference that
might be drawn from the evidence. Viewing the
interaction between Slwooko and Bennett as a whole,
Judge Esch could reasonably conclude that, despite
Slwookos hesitation at the door to the police station,
Slwooko did in fact still wish to speak to the police,
and that she freely chose to go into the building and
begin her interview with the officers.
Slwooko also points out that, after she
entered the interview room, the officers closed the
door, and neither Officer Bennett nor Officer Noet
explicitly told Slwooko that she was free to leave.
These are facts that might support a finding of
custody, but these facts are not determinative. As our
supreme court explained in State v. Smith, 38 P.3d 1149
(Alaska 2002), the question of Miranda custody must be
assessed by examining the totality of the circumstances
and then asking whether, given [these] circumstances,
... a reasonable person would have felt [that] he or
she was not at liberty to terminate the interrogation
and leave. Id. at 1154.7 More precisely, the ultimate
inquiry is whether there was a formal arrest or [a]
restraint on [the persons] freedom of movement of the
degree associated with a formal arrest. Id. at 1154.8
Here, Slwooko told Officer Bennett that she
needed to speak to him, and she then agreed to
accompany Bennett to the police station. The fact that
Slwooko initiated the contact with the police is a
factor that weighs against a finding of custody.
Smith, 38 P.3d at 1155. Likewise, the fact that the
interview occurred in the middle of the day weighs
against a finding of custody. Id. at 1156-57.
Additionally, the fact that the police expressly told
Slwooko that she was not under arrest weighs against
custody. Id. at 1157.
Regarding the tone of the officers questions
to Slwooko, Judge Esch found that the officers asked
their questions in a non-confrontational and polite
fashion, without any threats or intimidation. This
fact, too, weighs against a finding of custody. Id. at
1157.
It is true that the door to the interview
room was closed while the officers questioned Slwooko.
However, the door was apparently not locked, for Judge
Esch found that the police did not restrain Slwooko in
any overt fashion.
Judge Esch found that Slwooko was being
questioned because the police considered her a suspect
in the homicide. But the police officers suspicion
that Slwooko was involved in the homicide does not
affect the assessment of whether she was in custody for
Miranda purposes, unless that suspicion was
communicated to Slwooko in a manner that would convince
a reasonable person in Slwookos situation that the
police were not going to let her go.
The United States Supreme Court addressed
this point in Stansbury v. California:
We hold, not for the first time, that an
officers subjective and undisclosed view
concerning whether the person being
interrogated is a suspect is irrelevant to
the assessment [of] whether the person is in
custody.
. . .
Our decisions make clear that the
initial determination of custody depends on
the objective circumstances of the
interrogation, not on the subjective views
harbored by either the interrogating officers
or the person being questioned.
. . .
It is well settled ... that a police
officers subjective view that the individual
under questioning is a suspect, if
undisclosed, does not bear upon the question
[of] whether the individual is in custody for
purposes of Miranda.
511 U.S. 318, 319, 323, 324; 114 S.Ct. 1526,
1527,1529-1530; 128 L.Ed.2d 293 (1994).
The mere fact that the police
question a person about the persons potential
involvement in a crime does not, by itself,
suggest that the interview was custodial.
If, however, the questions are accusatorial
in tone, and if the questions are posed in a
manner suggesting that the police have
already reached a conclusion about the
persons guilt, then this can support a
finding of custody. Smith, 38 P.3d at 1158-
59.
For instance, in Motta v. State,
911 P.2d 34, 39 (Alaska App. 1996), this
Court held that an initially non-custodial
interview later became custodial because of
the sharply accusatory nature of the
questioning and the fact that the police
would not allow the suspect to leave the
interview room. But that was not the
situation in Slwookos case.
Judge Esch found that the officers
employed a non-confrontational and polite
tone during their interview with Slwooko.
The closest approach to accusatory
questioning occurred when Officer Noet tried
to encourage Slwooko to talk about the
homicide by telling her that her boyfriend,
Jacob Anagick, had said that she was
involved. But Officer Bennett immediately
interjected that this was not exactly true.
The real situation, Bennett told Slwooko, was
that he (Bennett) had just got done talking
to Jacob, and that Jacob had simply told
Bennett that he needed to come and talk to
[Slwooko]. Upon hearing this, Slwooko began
describing her role in the homicide. Thus,
Slwookos decision to begin confessing her
role in the homicide was not a response to
confrontational and accusatory questioning.
The fact that Slwooko was arrested
immediately following the interview is a
factor that weighs in favor of custody, but
only slightly. As the supreme court
explained in Smith, events following the
interview carry only limited weight:
[Whether a suspect is taken into custody
following the interview] cannot by itself be
the determinative test for custody. ... [A]
court must determine whether the defendant
was in custody when he made the incriminating
statements; it is illogical to rest that
judgment primarily on something that occurs
after the defendant has made the statements.
Smith, 38 P.3d at 1159.9
Thus, the fact that the police
arrest a suspect following an interview may
shed light on otherwise ambiguous facets of
the police officers interaction with the
suspect. But the fact that the police decide
to arrest a person after the person has
confessed to a serious crime is, of itself,
unremarkable. And, as Smith explains, it
would be illogical to reason backward, from
the officers decision to arrest the person
following their confession, to a conclusion
that the person must have been in Miranda
custody when they gave the confession.
When we consider all of the
circumstances of Slwookos interaction with
the police, we independently reach the same
conclusion as Judge Esch: Slwooko was not in
custody for Miranda purposes when the
interview began. She was not subjected to a
degree of restraint associated with a formal
arrest, and a reasonable person in Slwookos
position would have felt free to terminate
the interview and leave.
Did the interview become custodial when the officers
continued to interview Slwooko after she stated that
she did not want to answer any questions?
Even though Judge Esch concluded that
Slwookos interview with the police was not custodial
when it began, the judge concluded that the interview
became custodial later when Bennett and Noet [decided]
not to terminate the interview [after Slwooko] said
that she did not wish to talk to the officers. Judge
Esch declared that the officers decision to continue
talking to Slwooko require[d] [him] to conclude that,
at that point, [Slwooko] was no longer free to go.
As we explained in the preceding section of
this opinion, the precise question to be answered is
not whether Slwooko was free to go. Rather, the
question is whether a reasonable innocent person in
Slwookos position would have believed that they were
free to go. We therefore interpret Judge Esch as
saying that, based on the officers decision to keep
talking to Slwooko even after she said that she did not
wish to answer their questions, a reasonable innocent
person in Slwookos position would have concluded that
they were no longer at liberty to end the interview and
leave.
Given our conclusion that Slwooko was not in
custody at the beginning of the interview, the question
is whether anything happened during the interview
(before Slwooko began to confess her role in the
homicide) that would convince a reasonable person in
Slwookos position that things had changed, and that she
was now being detained by the police.
There is no dispute regarding the pertinent
facts (i.e., the progress of the interview: who said
what, and when). Only a question of law remains. We
exercise our independent judgement in assessing the
legal significance of these facts i.e., whether, under
these facts, Slwooko was in custody for Miranda
purposes.10
To perform this analysis, we return to the
transcription of the interview.
The interview began with Officer Bennett
telling Slwooko that he wanted to ask her some
questions, and then advising Slwooko of her Miranda
rights. Courts generally agree that the giving of
Miranda warnings does not convert a non-custodial
interview into a custodial one (although it is a factor
that a court may consider when assessing custody).11
In the present case, even if Bennetts decision to give
Miranda warnings made Slwooko uncertain as to her
status, that uncertainty was dispelled when Slwooko
asked why she had been arrested, and Bennett assured
her that she was not under arrest.
Immediately after Officer Bennett recited the
Miranda warnings to Slwooko, he asked her, Would you
like to answer some questions for me?, and Slwooko
answered No. At this point, the two officers (Bennett
and Noet) appeared to be at a loss regarding what to do
next. They stopped speaking to Slwooko and began
addressing each other:
Officer Bennett: Do you understand your
rights? (Pause) Would you like to answer
some questions for me?
Slwooko: No.
Bennett: No? Okay.
Noet: [To Bennett] Did you ask her
anything already?
Bennett: No, I havent asked ...
Slwooko: Yeah, well ...
Bennett: ... her nothing.
It was then that Slwooko re-
initiated the conversation. Apparently
prompted by the fact that Bennett had given
her Miranda warnings, Slwooko asked, Why am I
being arrested?
Bennett told Slwooko that she was
not under arrest. Then Noet added that the
officers just ... would like to know what
happened at Jimmy Jacks [house]. Slwooko
responded to this information, not by
reiterating her unwillingness to answer
questions, but by telling the officers that
she did not know what had happened at Jimmy
Jacks house:
Slwooko: I want to be why am I being
arrested?
Bennett: Youre not being arrested. Im
sorry, I didnt I didnt want to arrest you.
But since youre in the police station, I have
to read you your rights, just because ...
Noet: (indiscernible) ...
Bennett: ... youre in the police
station.
Noet: ... talk to anybody.
Bennett: You know, ...
Noet: We, we just want to know we
would like to know what happened at Jimmy
Jacks.
Slwooko: I really dont know.
Noet: What ...
Bennett: Okay.
At this point, Noet tried to elicit
a response from Slwooko by telling her that
her boyfriend, Jacob Anagick, had said that
she helped him hurt Jimmy Jack. Bennett was
apparently unwilling to go along with this
falsehood, so he told Slwooko a different,
less accusatory falsehood: that Anagick had
simply told the police to speak to Slwooko.
Bennett then again asked Slwooko if she
want[ed] to tell [him] what happened. With
hardly any further prompting, Slwooko began
to confess her role in the homicide:
Noet: Well, Jacob was arrested for
hurting Jimmy Jack, and Jacob says that you
helped him hurt Jimmy Jack.
Bennett: Well, not exactly. But ... I
just got done talking to Jacob, okay? And he
said that I needed to come and talk to you.
So [do] you want to tell me what happened?
Okay?
Slwooko: Exactly?
Bennett: Exactly.
Slwooko: Ill tell you this. We were
going over to pick up my box. Im the one
that hit him with the axe while he was
putting his head down. Exactly twice, and
...
Bennett: Its okay. Take your time.
Slwooko: The third time, he decided to
do it, you know. And I said, No, Ill do it.
And I I (indiscernible).
Bennett: Okay.
Slwooko: Really sorry (indiscernible).
Although the two officers were
clearly trying to get Slwooko to talk to
them, they said nothing coercive and, with
the exception of Noets accusation which
Bennett immediately disavowed they said
nothing directly accusatory. Moreover,
Bennett expressly assured Slwooko that she
was not under arrest.
Given our conclusion that Slwooko
was not in custody when this colloquy began,
the question is whether there is anything in
the above-quoted excerpt that would convince
a reasonable person in Slwookos position that
things had changed, and that she was now
being detained by the police. There is
nothing to support such a conclusion.
Accordingly, we disagree with Judge Eschs
ruling on this issue. Slwooko was not in
custody at the end of the above-quoted
conversation.
In her brief to this Court, Slwooko
argues that this is the wrong legal analysis.
Slwooko points out that she clearly answered
No the first time that Bennett asked her if
she was willing to answer questions. Slwooko
argues that, after the police received this
response from her, the officers were legally
forbidden from pursuing any further efforts
to get Slwooko to talk to them.
This is the rule that would apply
if Slwooko had been in Miranda custody. In
Michigan v. Mosley, 423 U.S. 96, 104; 96
S.Ct. 321, 326-27; 46 L.Ed.2d 313 (1975), the
United States Supreme Court held that when a
suspect who is undergoing custodial
interrogation invokes their right to silence,
that right must be scrupulously honored
i.e., the police must immediately cease their
questioning.12
But Slwooko was not in custody.
The question, then, is whether the Mosley
rule applies to Slwookos non-custodial
interview or whether, instead, the police
were permitted to continue their efforts to
get Slwooko to talk to them, even though
Slwooko initially stated that she did not
wish to answer their questions.
Many courts have addressed this
point of law. These courts are virtually
unanimous in concluding that the Mosley rule
does not apply to situations where, during a
non-custodial interview, the person being
interviewed declares that they do not wish to
answer further questions.
The reasoning behind these rulings
is this: The Fifth Amendment does not forbid
the governments use of any and all self-
incriminatory statements; rather, the Fifth
Amendment forbids the governments use of
compelled statements. The Miranda rule was
designed to counter the compulsions, both
overt and subtle, that are inherent in
custodial interrogation that is,
interrogation that occurs while a suspect is
held incommunicado in a police-dominated
atmosphere. But when police questioning does
not take place in a custodial setting, the
person being questioned is not subjected to
the types of compulsion that the Miranda rule
addresses. Thus, unless the police engage in
conduct that overbears the persons will and
renders their statements involuntary under a
traditional Fifth Amendment analysis, the
police may continue to try to interview a
suspect even though the suspect states that
they do not wish to answer questions.
The Seventh Circuit explained this
principle in United States v. Serlin, 707
F.2d 953 (7th Cir. 1983):
[The defendant] argues that the
[government] agents were required to cease
all questioning when he expressed reluctance
[to] meet[] with them or [to] cooperat[e] in
the investigation. In support of this
claim[, the] defendant cites Michigan v.
Mosley ... .
Mosley involved application of the
holding in Miranda v. Arizona ... . In both
of these cases[,] the [United States Supreme]
Court was concerned about the coercive
atmosphere created by custodial
interrogation. The inherent coerciveness of
custodial interrogation prompted the Court in
Miranda to devise several safeguards of the
suspects right not to answer questions,
including a requirement that the police
advise the suspect that he has the right not
to incriminate himself. Should the suspect
exercise the right to cut off questioning the
police must scrupulously honor this request
and cease all questioning. This
cease-questioning rule stems from the Courts
recognition that [w]ithout the right to cut
off questioning, the setting of in-custody
interrogation operates on the will of the
individual to overcome free choice in
producing a statement after the privilege has
once been invoked. [Mosley,] 423 U.S. at
100-01, 96 S.Ct. at 324-25 (quoting Miranda
v. Arizona, 384 U.S. at 473-74, 86 S.Ct. at
1627).
[But unlike] our review of custodial
interrogation, in which it is our duty to
determine whether the police scrupulously
honored a request to cease questioning, [our
duty] in reviewing noncustodial interrogation
... is to examine the entire record and make
an independent determination of the ultimate
issue of voluntariness. [Beckwith v. United
States,] 425 U.S. [341,] 348, 96 S.Ct.
[1612,] 1617[, 48 L.Ed.2d 1 (1976),] (quoting
Davis v. North Carolina, 384 U.S. 737,
741-42, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895
(1966)).
Serlin, 707 F.2d at 957-58.
Courts from around the country
agree that, during non-custodial questioning,
the police need not immediately stop their
efforts when the person being questioned
expresses a desire not to speak further:
See State v. Lang, 862 P.2d 235,
244 (Ariz. App. 1993) (Police may continue to
question suspects who are not in custody,
even though they invoke their right to remain
silent, as long as the responses are
voluntary and the persons will has not been
overborne.); State v. Silva, 674 P.2d 443,
449 (Idaho App. 1983) (Silva was not in
custody for purposes of Miranda.
Consequently, the police did not violate any
Miranda-based right by continuing to talk
with him after he said he did not want to
answer questions.); State v. P.Z., 703 A.2d
901, 910-911 (N.J. 1997) ([T]he issue [of
whether the questioning could continue] turns
on [the defendants] non-custodial status.
Had [the] defendant been in custody at the
time of the interview, under New Jersey law
his request, however ambiguous, to terminate
questioning would have been sufficient to
trigger his right to remain silent. ...
However, [the] defendant was not in custody
when he answered the caseworkers questions.
Although he was free to remain silent and to
insist upon having his lawyer present, the
circumstances were not such as to require
[the caseworker] to stop the interview when
[the] defendant said that his lawyer had
advised him not to discuss the matter with
anyone.); State v. Jeffreys, 682 A.2d 951,
953 (Vt. 1996) ([T]here is no right to cut
off questioning where the suspect is not in
custody.); Webber v. Commonwealth, 496 S.E.2d
83, 86-87 (Va. App. 1998) (Weber [sic]
contends that the police violated his rights
under Miranda v. Arizona ... by continuing to
question him after he stated at the hospital
that he did not want to talk to anybody.
Because Weber was not in custody at that
time, this assertion did not invoke Miranda
protections. ... [T]he protection afforded
by Miranda applies only when a suspect is
subjected to custodial interrogation.); State
v. Warness, 893 P.2d 665, 667 (Wash. App.
1995) (The Miranda protection is premised on
custodial interrogation. Both factors [i.e.,
custody plus interrogation] must be present
for Miranda protection to attach. A suspect
who is not in custody does not have Miranda
rights.); State v. Bradshaw, 457 S.E.2d 456,
467 (W.Va. 1995) (holding that the defendants
attempt to invoke Miranda rights before being
taken into custody was an empty gesture).
See also Davis v. Allsbrooks, 778 F.2d 168,
170-71 (4th Cir. 1985).
We note that, in State v. Garrison,
128 P.3d 741 (Alaska App. 2006), this Court
applied the same principle to a case where,
during a non-custodial interrogation, the
person being questioned made an ambiguous
statement that was arguably a reference to
their need for an attorney. The defendant in
Garrison argued that the rule of Edwards v.
Arizona13 applied i.e., that the police were
obliged to halt their questioning and clarify
Garrisons wishes regarding the assistance of
counsel. We held that Edwards did not apply
because Garrison was not in custody:
To the extent that Garrison argues that
the police had to stop and clarify Garrisons
reference to an attorney, that argument has
no merit ... . Garrison was not in custody,
and the requirement, under Edwards v.
Arizona, that the police stop an interview
when a defendant makes an equivocal request
for counsel applies [only] to custodial
interrogations.
Garrison, 128 P.2d at 747 (footnotes
omitted).14
Slwooko was not in custody when
Officer Bennett asked her if she was willing
to answer questions, and she replied no.
Because Slwooko was not in custody at this
point, the Mosley rule did not apply. The
officers were not obliged to scrupulously
honor Slwookos desire not to answer questions
by ceasing all efforts to interview her.
Instead, the officers were free to make
further efforts to get Slwooko to talk to
them provided that their efforts did not
become so coercive as to overbear Slwookos
will and produce statements that were
involuntary under a traditional Fifth
Amendment analysis.
As the Seventh Circuit explained in
Serlin,
Although the scrupulously honor test is
not our guide in [cases of non-custodial
questioning], we will [nevertheless] consider
the [officers] persistence in questioning
[the] defendant in the face of his stated
desire not to cooperate. This is, however,
but one factor in determining the
voluntariness of [the] defendants statements.
Serlin, 707 F.2d at 958.
We have already analyzed Bennetts
and Noets efforts to get Slwooko to talk to
them after she stated that she did not want
to answer questions. We concluded that,
although Bennett and Noet were clearly trying
to get Slwooko to talk to them, the officers
said nothing coercive and, with the exception
of Noets accusation which Bennett
immediately disavowed they said nothing
directly accusatory. Moreover, Bennett
expressly assured Slwooko that she was not
under arrest. We concluded that nothing in
the officers colloquy with Slwooko would
convince a reasonable person in Slwookos
position that she was in Miranda custody.
For much the same reasons, we conclude that
the officers said nothing to Slwooko that was
so coercive as to overbear her will and
produce involuntary statements.
In sum: We uphold Judge Eschs
ruling that Slwookos interview with the
police was initially non-custodial, but we
conclude that Judge Esch erred when he ruled
that Slwookos interview with the police later
became custodial. The interview remained non-
custodial and, because of this, the police
were authorized to continue their efforts to
engage Slwooko in conversation even though
she initially stated that she did not wish to
answer their questions. Finally, we conclude
that Slwookos self-incriminatory statements
to the police were voluntary. Accordingly,
these statements were admissible against
Slwooko at her trial.
Slwookos claim that the prosecutor violated Evidence
Rule 613 by introducing evidence of Jacob Anagicks
prior inconsistent statements without first giving
Anagick an opportunity to deny or explain those
statements
Jacob Anagick testified as a defense witness
at Slwookos trial. At the time of his testimony,
Anagick had already pleaded guilty to second-
degree murder for killing Jimmy Jack. On direct
examination, Anagick declared that he alone
committed this murder, and that Slwooko was not
present and did not participate in the killing
although Anagick conceded that Slwooko later
helped him conceal or destroy evidence of the
crime.
As we have already explained, Anagick was
interviewed by Officer Bennett shortly after the
homicide. Anagick initially told Bennett that he alone
was responsible for Jimmy Jacks death, and that no one
else was present when Jimmy Jack was killed. But when
Bennett confronted Anagick with the fact that Bernice
Slwooko seems to know quite a bit about this, and when
Bennett then asked Anagick if Slwooko had been present
during the homicide, Anagick first said no, and then
he said yes, and then Anagick whispered, What the hell
is she doing?
Officer Bennett testified during the States
case-in-chief, and he recounted this conversation with
Anagick. There was no objection to this testimony.
During the rebuttal portion of the States
case, the prosecutor presented the testimony of two
other police officers who interviewed Anagick about the
homicide.
Anagick was interviewed by Officer Noet
immediately after Noet and Bennett conducted their
interview with Slwooko (the interview we have described
at length in the preceding sections of this opinion).
During Noets interview with Anagick, Anagick stated
that he and Slwooko and Jimmy Jack were together at
Jimmy Jacks house, and that he (Anagick) and Jimmy Jack
began fighting. At some point during the fight,
Slwooko struck Jimmy Jack in the head with an axe, and
Jimmy Jack lost consciousness. Anagick and Slwooko
conferred or communicated to some degree and determined
that Jimmy Jack was still breathing. Anagick then used
the axe to kill him.
Anagick was also interviewed by Officer Byron
Redburn. This interview took place at the Anvil
Mountain Correctional Center on the morning of August
20, 2002 that is, two days after Slwooko confessed her
role in the murder and Anagick made the statements to
Noet that we described in the previous paragraph.
According to Redburn, Anagicks August 20th account of
the homicide was quite similar to Anagicks testimony at
Slwookos trial: that is, Anagick claimed to have acted
alone in killing Jimmy Jack, but he stated that Slwooko
helped him conceal or destroy evidence of this crime.
Slwookos defense attorney objected to Officer
Noets testimony on the ground that the prosecutor had
assertedly violated Evidence Rule 613. That is, the
defense attorney argued that the prosecutor had not
laid a proper foundation for Noets testimony by first
cross-examining Anagick about his purported
inconsistent statements and giving Anagick an
opportunity to deny or explain these statements. The
trial judge denied this objection and allowed Noet to
give the testimony we have described above.
(The defense attorney did not object to
Redburns testimony on Rule 613 grounds probably
because Redburn testified to prior statements that were
consistent with Anagicks trial testimony.)
On appeal, Slwooko argues that the trial
judges ruling was error. She renews her contention
that the prosecutor violated Evidence Rule 613 by
failing to cross-examine Anagick about the statements
he made to Noet.
The record shows otherwise. Here is the
pertinent portion of the prosecutors cross-examination
of Anagick:
Prosecutor: Now, you talked to Officer
Bennett, ... correct?
Anagick: Yes.
. . .
Prosecutor: And you told him that
Bernice [Slwooko] was there ...
Anagick: No.
Prosecutor: ... when Jimmy [Jack] was
killed, didnt you?
Anagick: No.
Prosecutor: Didnt you say [Bennett]
asked you, Was Bernice there?, and you said,
Yes. What the hell is she doing?
Anagick: No.
Prosecutor: You never said that?
Anagick: I said Whats she doing?
because I saw her walk in the door and ended
the conversation ... .
Prosecutor: ... Im asking you, Do you
remember telling Officer Bennett in response
to his question, Was Bernice there when Jimmy
got killed? Yes. What the hell is she
doing?
Anagick: No. I dont remember saying
that.
Prosecutor: And when Officer Noet came
out to see you on [August] 18th at the jail,
[do] you remember talking to him?
Anagick: Yes.
Prosecutor: Okay, and that was after he
had talked to Bernice, correct?
Anagick: I guess so.
Prosecutor: And hes ... trying to
clarify that she [i.e., Slwooko] was there.
And you told him, Yeah, she was there.
Anagick: No.
Prosecutor: You didnt tell him that?
Or you dont remember telling him that?
Anagick: I didnt tell him that.
. . .
Prosecutor: Didnt you tell Officer Noet
that, as you stood there in Jimmy Jacks
house, you and Bernice communicated in some
way that Jimmy was still breathing, and that
youd finish him off?
Anagick: No.
This excerpt shows that the
prosecutor complied with Evidence Rule 613
during his cross-examination of Anagick,
laying a proper foundation for Noets later
testimony concerning Anagicks inconsistent
statements.
In her reply brief, Slwooko no
longer argues that this foundation was
insufficient. Rather, she advances a new
argument: that Rule 613 precludes testimony
concerning a witnesss prior inconsistent
statement unless that testimony is
corroborated by physical evidence for
example, a writing that incorporates the
prior statement, or an electronic recording
of the prior statement. Because this
argument is presented for the first time in
Slwookos reply brief, we need address it no
further.15
Conclusion
Slwookos conviction for second-degree murder
is AFFIRMED.
COATS, Chief Judge, dissenting.
I would affirm Judge Eschs conclusion that
Bernice Slwooko was in custody when she admitted her
involvement in the murder of Jimmy Jack. Because
Slwooko had not waived her rights at the time that she
made her initial admissions, I conclude that the
superior court was required to suppress those
admissions.
When the police conduct a custodial
interrogation, they must warn the person of her Miranda
rights. The police must have the person waive those
Miranda rights before asking any questions. Whether a
person is in custody for purposes of Miranda can be
simply stated would a reasonable person have felt that
she was not at liberty to terminate the interrogation
and leave?1
In the present case, I agree with Judge Eschs
finding that Slwooko voluntarily went to the police
station. But Slwooko, who was highly intoxicated, was
hesitant to enter the police station when she arrived
there. Officer Daniel Bennett encouraged her to come in
to talk to him. He stated that he guided her by the
arm into the police station and into the interview
room. From this sequence of events, it appears that
Slwooko was having second thoughts about whether she
wanted to talk to the police. Officer Bennett
testified that he conducted his interview with Slwooko
as a custodial interview. He stated that he had been
trained to tell a person in a non-custodial interview
that she was free to go at any time or could stop the
questioning whenever she wanted. He would establish
that the person being questioned was in the police
station voluntarily and would assure her that, no
matter what she said in the interview, she would not be
arrested and would be free to go.
Officer Bennett stated that he did not follow
this procedure when he questioned Slwooko. Because he
believed that Slwooko was involved in killing Jimmy
Jack, he did not want to lie to her and tell her that
she would be free to go because he intended to arrest
her if she admitted some involvement. Accordingly,
Officer Bennett did not confirm that Slwooko was at the
police station voluntarily, did not tell her that she
was free to leave at any time, and did not tell her
that she would be able to leave at the end of the
interview. Instead, he warned her of her rights.
I recognize that Officer Bennetts subjective
intent to conduct a custodial interview is not
controlling. The question, as we have previously
stated, is whether a reasonable person in Slwookos
position would have felt free to terminate the
questioning and leave. But, applying an objective
standard, it is important to note that the police never
established that Slwooko was voluntarily present at the
police station, never told her that she was free to
cut off questioning and leave at any time, and never
told her that she would be free to leave at the
conclusion of the interview. Instead of giving Slwooko
these assurances, the police warned Slwooko of her
rights. From this sequence, I conclude that a
reasonable person in Slwookos position would have known
that the police were questioning her as a suspect. And
she would have doubted that she was free to terminate
the questioning and leave the police station.
After Officer Bennett warned Slwooko of her
rights, he asked her whether she understood her rights
and whether she would like to answer questions.
Slwooko answered No.
Judge Esch concluded that Slwooko was
answering No to the second question. That is, Slwooko
indicated that she did not want to answer questions.
Judge Esch went on to find that, because Slwooko stated
that she did not want to talk to the officers, and
because the officers did not terminate the interview,
at that point Slwooko was no longer free to go and was
therefore in Miranda custody.
My own view may vary slightly from Judge
Eschs. After Slwooko said that she did not want to
answer any questions, the police not only did not cease
questioning, they increased the pressure. Officer Noet
told Slwooko that they had arrested Jacob Anagick for
hurting Jimmy Jack and that Anagick had told them that
Slwooko had helped him hurt Jimmy Jack. At this point,
a reasonable person in Slwookos position would have
recognized that the police were accusing her of killing
Jimmy Jack and would have concluded that Anagick had
told the police that Slwooko aided him in the murder.
From Slwookos position, she was a suspect in the murder
of Jimmy Jack. It seems clear to me, at this point, a
reasonable person in Slwookos position would not have
felt free to break off questioning and leave. She was
therefore in Miranda custody. She had not waived her
rights and had told the police that she did not want to
answer questions. The police responded by escalating
the questioning.
I recognize that, after her futile attempt to
exercise her rights, Slwooko asked why she was being
arrested. Officer Bennett told her that she was not
being arrested. Officer Bennetts answer does weigh
against concluding that Slwooko was in custody. But
telling someone that they are not being arrested
differs from telling them that they are free to
terminate the questioning and leave. To a lay person,
the fact that you have not been arrested may merely
mean that you have not been formally charged with a
crime. It does not necessarily mean that you are free
to go.
Therefore, it seems reasonable that, even
though Officer Bennett told Slwooko she was not being
arrested, she would have serious doubts about whether
she was free to terminate questioning and leave. She
was never told that she was free to leave. And when
she tried to exercise her right to silence, the police
ignored this request and continued questioning her.
It is also true that, after Officer Noet told
Slwooko that Anagick told the police that Slwooko had
helped him hurt Jimmy Jack, Officer Bennett tried to
mitigate the statement by saying, Well, not exactly.
But I do not believe that a reasonable person in
Slwookos position would have seen Officer Bennetts
statement as withdrawing Officer Noets statement. Once
the police told Slwooko that Anagick was arrested for
hurting Jimmy Jack and said that Slwooko helped him
hurt Jimmy Jack, Slwooko had every reason to believe
that the police had substantial evidence that showed
she had helped murder Jimmy Jack. Once the police told
Slwooko this, it seems clear to me that a reasonable
person in Slwookos position would not have concluded
that she was free to break off questioning and leave.
I therefore conclude that Slwooko was in
custody at the time that she made her statements
admitting her involvement in the murder of Jimmy Jack.
And because she was in custody, the police needed to
warn Slwooko of her rights and obtain a valid waiver of
those rights. Although it is clear that the police
warned Slwooko of her rights, it is also clear that
Slwooko did not waive those rights before she made the
incriminating statements. Therefore, in my view, this
Court is required to suppress those statements.
_______________________________
1384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
2This Courts prior opinion, Slwooko v. State, Memorandum
Opinion No. 5003, contains a transcript excerpt in which
Officer Noet is listed as the speaker who administered
Miranda warnings to Slwooko. This is not correct. The
speaker was Officer Bennett.
3On remand, the superior court specifically addressed the
issue of whether Officer Bennett asked these two questions
as a compound question or as two separate questions. The
court found that Bennett paused between the two questions,
thus separating them.
4See State v. Anderson, 117 P.3d 762, 766 (Alaska App.
2005): 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. (quoting Carr v. State, 840 P.2d
1000, 1003 (Alaska App. 1992), with the internal quote from
Hunter v. State, 590 P.2d 888, 895 (Alaska 1979)).
5See Wilburn v. State, 816 P.2d 907, 911 (Alaska App. 1991).
6See Schaffer v. State, 988 P.2d 610, 612 (Alaska App.
1999).
7Citing Thompson v. Keohane, 516 U.S. 99, 112; 116 S.Ct.
457, 465; 133 L.Ed.2d 383 (1995).
8Quoting California v. Beheler, 463 U.S. 1121, 1125; 103
S.Ct. 3517, 3520; 77 L.Ed.2d 1275 (1983), which in turn
quotes Oregon v. Mathiason, 429 U.S. 492, 495; 97 S.Ct. 711,
714; 50 L.Ed.2d 714 (1977).
9Citing Hunter v. State, 590 P.2d 888, 895 n. 23 (Alaska
1979).
10See State v. Smith, 38 P.3d 1149, 1154 (Alaska 2002).
11See, e.g., United States v. Bautista, 145 F.3d 1140, 1148
(10th Cir. 1998); Booker v. Ward, 94 F.3d 1052, 1058 (7th
Cir. 1996); State v. Stanley, 809 P.2d 944, 948, 950 (Ariz.
1991). See also Commonwealth v. Morgan, 610 A.2d 1013, 1014
(Pa. App. 1992), appeal denied, 619 A.2d 700 (Pa. 1993).
12See also Miranda v. Arizona, 384 U.S. 436, 473-74; 86
S.Ct. 1602, 1627; 16 L.Ed.2d 694 (1966) ([I]f the
individual indicates in any manner ... that he wishes
to remain silent, the interrogation must cease.).
13451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
14Our decision in Garrison is in accord with the decisions
of other courts on this point. See United States v.
Bautista, 145 F.3d 1140, 1147 (10th Cir. 1998); Tukes
v. Dugger, 911 F.2d 508, 515-516 (11th Cir. 1990);
United States v. Hampton, 153 F.Supp.2d 1262, 1273 (D.
Kan. 2001); State v. Stanley, 809 P.2d 944, 950 (Ariz.
1991) ([E]ven though a suspect [who is not in custody]
invokes his right to decline further interrogation
until he has spoken to a lawyer, the police may
continue to question him in a non-custodial setting ...
. [S]o long as [his] responses are voluntary, and his
will has not been overborne, the suspects responses may
be used in evidence against him.); Commonwealth v.
Morgan, 610 A.2d 1013, 1016 (Pa. App. 1992), appeal
denied, 619 A.2d 700 (Pa. 1993) (holding that even
though the police took the precautionary step of
reading Miranda rights to a non-custodial suspect, the
suspect could not assert the Fifth Amendment right to
counsel outside the context of custodial
interrogation); State v. Aesoph, 647 N.W.2d 743, 751
(S.D. 2002) ([T]here is no [Fifth Amendment] right to
an attorney when the interrogation is non-custodial.);
Tipton v. Commonwealth, 447 S.E.2d 539, 540 (Va. App.
1994) (holding that the right to an attorney does not
apply when invoked during non-custodial interrogation);
Webber v. Commonwealth, 496 S.E.2d 83, 87 (Va. App.
1998).
15See Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d
406, 411 (Alaska 1990); Hitt v. J.B. Coghill, Inc.,
641 P.2d 211, 213 n. 4 (Alaska 1982).
1State v. Smith, 38 P.3d 1149, 1154 (Alaska 2002).
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