|
You can of the Alaska Court of Appeals opinions.
|
|
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts.
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| STATE OF ALASKA, | ) |
| ) Court of Appeals No. A-8918 | |
| Petitioner, | ) Trial Court No. 3AN-01-6746 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| JAMES P. RIVERS, | ) |
| ) | |
| Respondent. | ) No. 2071 - November 3, 2006 |
| ) | |
Petition for review
from the Superior Court, Third Judicial
District, Anchorage, Michael L. Wolverton,
Judge.
Appearances: Kenneth J. Diemer, Assistant
Attorney General, Kenneth M. Rosenstein,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
David W. M rquez, Attorney General, Juneau,
for the Petitioner. David W. Miner,
Attorney, and Joshua P. Fink, Public
Advocate, Office of Public Advocacy,
Anchorage, for the Respondent.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
James P. Rivers faces charges of theft of unemployment
benefits and making false statements to obtain unemployment
benefits. Rivers moved to suppress the statements he made to a
Division of Employment Security investigator at an interview.
Superior Court Judge Michael L. Wolverton granted Riverss
suppression motion. Judge Wolverton found that Rivers was
legally compelled by state statute and Division of Employment
Security policy to submit to an interview by an Employment
Security Division investigator. Judge Wolverton therefore
suppressed all the statements Rivers made in the interview. The
State filed a petition for review of this ruling. We granted
review. We reverse Judge Wolvertons ruling. We conclude that at
the time Rivers made the statements during the interview, he was
not in custody, did not exercise his privilege against self-
incrimination, and was not coerced into giving up his right to
remain silent.
Factual and procedural background
An investigator with the Employment Security Division
of the Department of Labor, Harold G. Marley, suspected Rivers of
fraudulently obtaining unemployment insurance benefits. Based
on his review of Riverss records, Marley concluded that Rivers
had received excess benefits of approximately $4718. Marley
telephoned Rivers and set up an interview with him.
At the beginning of the interview, Marley put Rivers
under oath. Marley never informed Rivers that he was free to
leave, but he did inform Rivers that [i]f at any time during the
procedure, ... you want to take a break, stop, ... you want to
review a question, go back, just say so. During the interview
Rivers made incriminating statements.
A grand jury indicted Rivers on one count of second-
degree theft by deception.1 The State later charged Rivers by
supplemental information with multiple counts of false statements
to secure benefits.2
Rivers moved to suppress the incriminating statements
he made during the interview with Marley. Judge Wolverton
conducted an evidentiary hearing on Riverss motion to suppress.
At the hearing, Marley testified that he did not remember the
specific conversation he had with Rivers when he set up the
interview. But he testified that his practice was to encourage
claimants to participate in an interview. He would sometimes
inform claimants that their failure to provide information might
result in their disqualification for future benefits.
Rivers also introduced an Unemployment Insurance
Claimant handbook. The handbook details a claimants
responsibilities and is sent to everyone who opens a new
unemployment insurance account. The handbook emphasized that a
claimant had to comply with the requirements outlined in the
handbook in order to be eligible for unemployment insurance
benefits. The handbook explained that a claim is subject to a
quality control audit where information that the claimant
provided would be checked for accuracy. The handbook cautioned
that the examinations are thorough and may involve an in-person
interview with you and other interested parties.
Based on these circumstances, Rivers argued that his
statements were involuntary. Rivers argued that he faced a
coercive atmosphere where he was required by statute to
participate in the interview and had to justify the information
supporting his claim for unemployment insurance or face the loss
of his benefits.
Rivers claimed that AS 23.20.070, as supplemented by
the information in the handbook, forced him to attend the
interview and provide information. If he did not, he would lose
his unemployment benefits. He argued that this amounted to an
explicit economic threat and that he was therefore coerced into
making the incriminating statements at the interview, and that
this coercion violated his right against self-incrimination. In
addition, Rivers argued that the interview constituted custodial
interrogation that required the investigator to administer a
Miranda warning before interviewing him. Based on these
contentions, Rivers argued that either immunity should have
attached under AS 23.20.070 or his statements should have been
suppressed.
Judge Wolverton found that Rivers had not been
subjected to custodial interrogation, and therefore the state was
not required to give him a Miranda warning. But he found that
Rivers was legally compelled by the statute and the department
policy as set out in the handbook to appear and speak with the
investigator at the Division of Employment Security. Judge
Wolverton concluded that because Riverss statements were coerced,
he was required to suppress Riverss statements. He also noted
that Marley had not warned Rivers of his right to terminate the
interview at any time. Judge Wolverton concluded that this
omission, coupled with the coercion, made Riverss statements
involuntary. He therefore suppressed the statements Rivers made
during the interview. The State filed a petition for review of
this decision. We granted review.
Under AS 23.20.070 Rivers is required to
assert his right against self-incrimination
Alaska Statute 23.20.070 provides that a person who has
claimed unemployment benefits is not excused from attending and
testifying at an interview on the ground that he might
incriminate himself. The statute goes on to provide that [a]n
individual may not be prosecuted or subjected to a penalty [if
he] is compelled, after having claimed the privilege against self-
incrimination, to testify or produce evidence. The statute, on
its face, requires the individual to claim the privilege against
self-incrimination in order to obtain immunity from prosecution.
We have found several cases interpreting statutes that
provide immunity from prosecution when a person is required to
produce evidence that otherwise might result in criminal charges.
The cases discuss two categories of immunity statutes. In the
first category, are statutes that grant immunity to a person who
is compelled to testify regardless of whether the person asserts
the privilege against self-incrimination.3 The second category
of statutes requires a person to assert his privilege against
self-incrimination before testifying in order to obtain immunity
from prosecution.4 Alaska Statute 23.20.070 clearly falls within
this latter category.
It is uncontested that Rivers did not assert his
privilege against self-incrimination at any time during his
interview with Investigator Marley. The statute therefore
offered him no protection.
Why we conclude that Judge Wolverton
erred in finding that Riverss statements were
involuntary
Our discussion of this issue begins with the United
States Supreme Courts decision in Minnesota v. Murphy.5 Murphy
was given a suspended sentence on a sex-related charge and was
placed on probation. The conditions of his probation required
him to participate in a treatment program for sex offenders,
report to his probation officer as directed, and be truthful with
the probation officer in all matters.6 Murphy was told that a
violation of any of these conditions could result in the
revocation of his probation.
A counselor at Murphys sex offender treatment center
informed Murphys probation officer that Murphy had admitted,
during the course of treatment, that he had committed a rape and
murder approximately seven years previously. The probation
officer notified the police and set up a meeting with Murphy.
During the meeting, Murphy admitted to the rape and murder. At
the conclusion of the meeting, the probation officer told Murphy
she had a duty to relay the incriminating information to the
police and encouraged him to turn himself in. But she permitted
Murphy to leave her office.
When Murphy was later indicted for murder, he moved to
suppress the statements he made to his probation officer on the
ground that his statements were obtained in violation of his
privilege against self-incrimination under the Fifth and
Fourteenth Amendments to the United States Constitution.7 The
Minnesota Supreme Court ordered Murphys statements suppressed
under reasoning similar to that advanced by Judge Wolverton in
Riverss case. The Minnesota Supreme Court concluded that Murphy
had not been in custody, and generally recognized the principle
that a person must invoke his right to remain silent in order to
exercise it. But the court found that Murphys statements had
been obtained in violation of his right against self-
incrimination because he was compelled to attend the meeting with
his probation officer and was under a court order to respond
truthfully to the probation officers questions. The Minnesota
Supreme Court pointed out that the probation officer had
substantial reasons to believe that Murphys answers would be
incriminating. The court concluded that the probation officer
should have warned Murphy of his privilege against self-
incrimination.8
The United States Supreme Court reversed. The Court
first held that the fact that Murphy was required to appear and
answer questions truthfully did not in itself convert Murphys
otherwise voluntary statements into compelled ones.9 The Court
pointed out that Murphy stood in no different a position than a
witness who was called to testify at trial or before a grand
jury. The witness would be compelled to appear and testify
truthfully unless he validly invoked the privilege against self-
incrimination. Recognizing the general rule, the Court stated:
[T]hus it is that a witness confronted with questions that the
government should reasonably expect to elicit incriminating
evidence ordinarily must assert the privilege rather than answer
if he desires not to incriminate himself.10
The Court then discussed the two exceptions to the
general rule that a person must invoke the right against self-
incrimination. The first exception applies when suspects are
subject to custodial interrogation.11 The Court pointed out that
Miranda v. Arizona12 required the exclusion of incriminating
statements that were obtained during custodial interrogation of
suspects in police custody unless the suspect was informed of his
Miranda rights and waived them.13 But the Court qualified this
exception, noting that this extraordinary safeguard does not
apply outside the context of the inherently coercive custodial
interrogations for which it was designed.14 The Court observed
that Murphy was not under arrest and was free to leave at the end
of the meeting.15 The Court determined that Murphy was not in
custody and was not entitled to a Miranda warning.16 The Court
concluded that Murphy could not claim the benefit of the Miranda
exception to the general rule that the Fifth Amendment privilege
is not self-executing.17 The Court then turned to the
second exception to the general rule that a person must claim the
privilege against self-incrimination in order to exercise it.
The privilege becomes self-executing when the assertion of the
privilege is penalized so that the defendant does not have a free
choice to remain silent and is compelled to give incriminating
testimony.18 The Court held that the fact that Murphy was
required to attend the meeting and truthfully answer the
questions of the probation officer, who anticipated that Murphy
would give incriminating answers, was not sufficient compulsion
to find that Murphy was coerced into giving up his right against
self-incrimination.19 The Court pointed out that Murphy was not
expressly informed during the crucial meeting with his probation
officer that an assertion of the privilege would result in the
imposition of a penalty.20 The Court stated that [i]f Murphy
did harbor a belief that his probation might be revoked for
exercising the Fifth Amendment privilege, that belief would not
have been reasonable.21
The reasoning of Murphy directs our conclusion in this
case. If anything, Murphy faced greater coercive pressures than
did Rivers. Murphy was required to attend the meeting, was
required to answer questions truthfully, and faced substantial
criminal penalties for his failure to comply with his probation
conditions. Like Murphy, Rivers was not in custody for Miranda
purposes. There is no suggestion that Investigator Marley had
any authority to arrest Rivers or any intention to do so. It
appears to have been clear that Rivers was going to walk out of
the Employment Security Division office at the end of the
interview, which he did. Applying the standards set out by the
Court in Murphy, Riverss failure to exercise his right against
self-incrimination was not coerced and therefore the privilege
was not self-executing. Investigator Marley never threatened
Rivers with the loss of his unemployment benefits if Rivers
exercised his Fifth Amendment rights. As the Supreme Court
pointed out, a witness in a trial is required to appear and to
testify truthfully. If the witness wants to exercise his rights
against self-incrimination, the witness is required to explicitly
do so. Rivers was not under any more compulsion than was Murphy
or a witness in a trial. Because he did not affirmatively assert
his right against self-incrimination, and because this failure is
not excused by any exception to the general rule requiring that
he do so, Rivers forfeited the privilege and is not entitled to
suppression of his statements.
Conclusion
We conclude that Judge Wolverton erred in granting
Riverss motion to suppress. We accordingly reverse that order.
We remand the case to the superior court for further proceedings.
REVERSED and REMANDED.
MANNHEIMER, Judge, concurring.
I write separately to clarify and emphasize the core of
our decision.
The superior court ruled that Riverss statements to the
Division of Employment Security investigator were involuntary for
constitutional purposes because Rivers was compelled by law to
attend the interview and answer questions concerning his
eligibility for unemployment benefits compelled in the sense
that, if he declined to attend the interview or to answer the
investigators questions, he risked the loss of his benefits.
The superior courts analysis is incorrect. The fact
that a person is compelled by law to attend a hearing and answer
questions does not mean that the persons resulting statements are
involuntary otherwise, all testimony given in court by witnesses
under subpoena would be involuntary. This point of law is
explained by Professor Wigmore:
[When a] witness is on the stand and an
incriminating fact, relevant to the issue, is
desired to be proved through him, the
question may be asked, and it is for [the
witness] then to [raise] a claim of
privilege[.] ... [T]he witness cannot at
the very ... threshold set up the privilege
of not answering possible questions as a
valid reason for refusing to obey the process
of [the] court summoning him to appear.
John Henry Wigmore, Evidence in Trials at
Common Law (McNaughton revn 1961), 2268,
Vol. 8, pp. 402 & 405 (emphasis in the
original).
Thus, when determining whether a
persons statements are voluntary or
involuntary, the issue is not whether the
person was under compulsion to attend the
proceeding and answer questions. Rather, the
issue is whether the person was coerced to
surrender their privilege against self-
incrimination.1
If a person is summoned to a court
proceeding or agency hearing, and if the
person is questioned in such a way that the
persons answers might tend to incriminate
them, then it is the persons right to assert
the privilege against self-incrimination and
refuse to answer. But if the person fails to
assert this privilege and instead answers the
questions, the privilege is waived and the
answers are considered voluntary for
constitutional purposes even though the
person is never explicitly warned that they
have the legal right to refuse to give
potentially incriminating answers.2
Rivers answered the questions put
to him, and he never interposed the privilege
against self-incrimination. Accordingly, his
statements are presumed to be voluntary.3
As the majority opinion notes,
there are two exceptions to the rule that a
persons failure to assert the privilege
against self-incrimination will be deemed a
waiver of the privilege.
The first exception is the Miranda
rule, which applies to people who are
subjected to custodial interrogation.
Because of the implicitly coercive aspects of
police custody, suspects in custody must be
explicitly informed of their right not to
incriminate themselves, and they must waive
this right before the interrogation proceeds.
But Rivers was not in custody for Miranda
purposes.
The second exception applies to
situations where a persons very assertion of
the privilege against self-incrimination
triggers a penalty. In such instances, the
persons statements will be deemed involuntary
because the person has been unlawfully
deterred from asserting the privilege.4
But for purposes of this exception,
one must distinguish situations where a
person will be penalized for the very act of
asserting the privilege (e.g., the person
will lose their job if they assert the
privilege, regardless of the other evidence
in the case) from situations where a person
is free to assert the privilege but they then
run the risk that, based on the remaining
evidence, the court or administrative agency
will decide the case against them. The
exception applies only to the former
situation, not the latter.5
The United States Supreme Court
discussed this point of law in Minnesota v.
Murphy.6 Murphy was a probationer who was
summoned to meet with his probation officer
and answer questions about his activities;
the probation officer anticipated that
Murphys answers (if truthful) would be self-
incriminating. Murphy answered the probation
officers questions, and those answers were
later used against him in a criminal
prosecution. On appeal, Murphy argued that
his answers were compelled within the meaning
of the Fifth Amendment.
In rejecting this claim, the
Supreme Court carefully distinguished
(a) Murphys legal obligation to meet with his
probation officer and answer the officers
questions truthfully from (b) Murphys ability
to invoke the Fifth Amendment if he believed
that truthful answers would tend to
incriminate him. The Court declared that
even though Murphy was under legal compulsion
to attend the meeting [with his probation
officer] and to answer truthfully the
questions of [the] probation officer,
[s]uch compulsion ... is indistinguishable
from that felt by any witness who is required
to appear and give testimony[.] ... [I]t is
insufficient to excuse Murphys failure to
exercise the [Fifth Amendment] privilege in a
timely manner.
... Murphys probation condition
proscribed only false statements; it said
nothing about his freedom to decline to
answer particular questions[,] and [it]
certainly contained no suggestion that his
[continued] probation was conditional on his
waiving his Fifth Amendment privilege[.] ...
... There is no direct evidence that
Murphy confessed because he feared that his
probation would be revoked if he remained
silent. Unlike the police officers in
Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct.
616, 17 L.Ed.2d 562 (1967), Murphy was not
expressly informed ... that an assertion of
the privilege would result in the imposition
of a penalty. ...
[And if] Murphy did harbor a belief that
his probation might be revoked for exercising
the Fifth Amendment privilege, that belief
would not have been reasonable. Our
decisions have made clear that [a] State
could not constitutionally carry out a threat
to revoke [a persons] probation for the
legitimate exercise of the Fifth Amendment
privilege. ... Indeed, in its brief in this
Court, the State [of Minnesota] submits that
it would not, and legally could not, revoke
probation for refusing to answer questions
calling for information that would
incriminate in separate criminal proceedings.
... We have not been advised of any
case in which Minnesota has attempted to
revoke probation merely because a probationer
refused to make nonimmunized disclosures
concerning his own criminal conduct; and, in
light of our decisions proscribing threats of
penalties for the exercise of Fifth Amendment
rights, Murphy could not reasonably have
feared that the assertion of the privilege
would have led to revocation.
Murphy, 465 U.S. at 437-39, 104 S.Ct. at 1147-
48.
This Court applied this same
principle in John v. State, 35 P.3d 53
(Alaska App. 2001), where we rejected a
defendants contention that his statements to
a pre-sentence investigator were involuntary
because he was presented with the choice of
either fully answering the questions in the
presentence worksheet or risking an unjust
sentence. Id. at 62-63.
Rivers found himself in an
analogous situation. It may be true that,
based on the information available to the
Division of Employment Security, the Division
might well have decided to terminate Riverss
unemployment benefits (and to initiate legal
action against him for his earlier collection
of unauthorized benefits) if Rivers had
invoked his privilege against self-
incrimination and had thereby declined to
offer any explanation of his situation. But
there is nothing in the record to suggest
that the Division would have terminated
Riverss benefits (or imposed any other
penalty on him) based simply on the fact that
he invoked the privilege. Thus, the Division
did not infringe Riverss constitutional
privilege against self-incrimination.
(Alternatively, if Rivers had
asserted his privilege, AS 23.20.070
empowered the Division to insist on Riverss
answering their questions despite his claim
of privilege in which case, under the
statute, Rivers would have received immunity
from prosecution for his answers. Again,
Riverss constitutional rights would not have
been abridged because immunity is a lawful
substitute for the privilege against self-
incrimination.7)
In sum, even though Rivers may have
been obliged to attend the Division of
Employment Security interview, and to answer
the questions put to him by the state
investigator, this is not a basis for
concluding that Riverss answers were
compelled or involuntary. Riverss answers
would be compelled or involuntary only if he
was threatened with a penalty for asserting
his privilege against self-incrimination and
refusing to divulge potentially incriminating
information. This did not happen.
The superior court therefore
committed error when it suppressed Riverss
statements to the investigator.
_______________________________
1 AS 11.46.130(a)(1) & AS 11.46.180.
2 AS 23.20.485.
3 See United States v. Monia, 317 U.S. 424, 425-30, 63 S.Ct.
409, 409-12, 87 L.Ed. 376 (1943) (interpreting former immunity
provision of the Sherman Act, 15 U.S.C.A. 32, and finding that
express assertion of privilege against self-incrimination is not
required where language in statute does not require it); People
v. King, 427 P.2d 171 (Cal. 1967) (interpreting Californias
Insurance Code Section 12924(b) and concluding, where one is
compelled to testify the immunity attaches without the assertion
of the privilege against self-incrimination in the absence of a
statutory requirement for such an assertion.); People v. Buffalo
Gravel Corp., 195 N.Y.S. 940, 945-46 (N.Y. Extra. Trial Term
1922) (scope of New York Housing Commission Resolution granting
immunity for testimony sufficiently broad so as to negate
necessity for asserting privilege against self-incrimination).
4 See United States v. Abrams, 357 F.2d 539, 549 (2d Cir.
1966) (defendant did not secure immunity under former immunity
subsection of 15 U.S.C. 77 (which included after having claimed
privilege clause) by testifying before an examiner of the
Securities and Exchange Commission, where defendant never made
contemporaneous claim of privilege when he testified); People v.
Skelton, 167 Cal. Rptr. 636, 646 (Cal. App. 1980) (finding that
the plain language of Californias Corporations Code Section
25531(e) clearly requires the privilege be claimed if immunity is
to be obtained); People v. Dist. Court of Arapahoe County, 894
P.2d 739, 743 (Col. 1995) (same). See also 18 U.S.C.A. 6002
(West 2006) (federal general immunity statute that supplemented
previous federal immunity statutes requires witness to assert
privilege before immunity can attach). Cf. 7455 Inc. v. Oregon
Liquor Control Commn, 800 P.2d 781, 783, 786 (Or. 1990) (statute
that authorizes transactional immunity for compelled testimony in
liquor licensing proceeding does not provide for automatic right
to immunities listed in statute based on issuance of subpoena by
Liquor Control Commission; witness must invoke right not to
testify and only post-invocation order to testify triggers
immunity under statute).
5 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984).
6 Id. at 422, 104 S.Ct. at 1139.
7 Id. at 425, 104 S.Ct. at 1141.
8 Id.
9 Id. at 427, 104 S.Ct. at 1142.
10 Id. at 429, 104 S.Ct. at 1143.
11 Id. at 429-30, 104 S.Ct. at 1143-44.
12 384 U.S. 436, 467, 86 S.Ct. at 1602, 1624, 16 L.Ed.2d
694 (1966).
13 Murphy, 465 U.S. at 430, 104 S.Ct. at 1143-44 (Miranda
requires exclusion of incriminating statements obtained during
custodial interrogation unless suspect fails to claim Fifth
Amendment privilege after being suitably warned of his right to
remain silent and of the consequences of his failure to assert
that right).
14 Id. at 430, 104 S.Ct. at 1144 (quoting Roberts v.
United States, 445 U.S. 552, 560, 100 S.Ct. 1358, 1364, 63
L.Ed.2d 622 (1980)).
15 Id. at 430 n.5, 104 S.Ct. at 1144 n.5.
16 Id. at 430, 104 S.Ct. at 1144.
17 Id. at 434, 104 S.Ct. at 1145.
18 Id. at 435, 104 S.Ct. at 1146.
19 Id. at 437, 104 S.Ct. at 1147.
20 Id. at 438, 104 S.Ct. at 1148.
21 Id.
1 Minnesota v. Murphy, 465 U.S. 420, 434-35; 104 S.Ct.
1136, 1146; 79 L.Ed.2d 409 (1984); Beaver v. State, 933
P.2d 1178, 1181 (Alaska App. 1997).
2 Murphy, 465 U.S. at 427-28, 104 S.Ct. at 1142; Beaver,
933 P.2d at 1181; Williams v. State, 928 P.2d 600, 606-
07 (Alaska App. 1996).
3 See Beaver, 933 P.2d at 1181.
4 Murphy, 465 U.S. at 434-35, 104 S.Ct. at 1146; Beaver,
933 P.2d at 1181.
5 See Garrity v. New Jersey, 385 U.S. 493, 500; 87 S.Ct.
616, 620; 17 L.Ed.2d 562 (1967) (holding that it is
unlawful to use incriminating answers given by a police
officer after the officer was deterred from asserting
the Fifth Amendment privilege by warnings that, if he
asserted the privilege, he would be fired). See also
Gardner v. Broderick, 392 U.S. 273, 279; 88 S.Ct. 1913,
1916; 20 L.Ed.2d 1082 (1968) (holding that it is
unlawful to fire a police officer simply for invoking
the Fifth Amendment privilege).
6 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984).
7 See Murphy v. Waterfront Commn of New York Harbor, 378
U.S. 52, 79; 84 S.Ct. 1594, 1609; 12 L.Ed.2d 678 (1964)
([A] witness may not be compelled to give testimony
which may be incriminating ... unless the compelled
testimony and its fruits cannot be used in any manner
by ... officials in connection with a criminal
prosecution against him.); Hazelwood v. State, 836 P.2d
943, 952 (Alaska App. 1992) (Because the ultimate aim
of the ... privilege is to assure that no compelled
statement will be used against the accused in a
criminal case, the Supreme Court has long recognized
that the ... protection against compulsory elicitation
of potentially incriminating statements ... may be
properly invaded by the government, but only in
exchange for a guarantee that the ... compelled
statements or evidence derived therefrom ... will not
be [used against the person].).
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
