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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
| MICHAEL L. ROCKWELL, | ) |
| ) Court of Appeals No. A-9748 | |
| Appellant, | ) Trial Court No. 3AN-04-508 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2149 - February 15, 2008 |
| ) | |
Appeal from the
Superior Court, Third Judicial District,
Anchorage, Michael L. Wolverton and John
Suddock, Judges.
Appearances: Renee McFarland, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
Michael L. Rockwell appeals his convictions for felony
driving while under the influence and driving while license
cancelled, suspended, or revoked.1 Rockwells principal argument
on appeal is that he was subjected to custodial interrogation in
violation of Miranda v. Arizona,2 and that the superior court
should have suppressed the statements he made during that
interrogation. As explained in this opinion, we agree that
Rockwells Miranda rights were violated during the latter portions
of his interrogation, and we believe there is a reasonable
possibility that his Miranda rights were violated during an
earlier portion of the interrogation. We therefore remand
Rockwells case to the superior court for additional findings on
what specific evidence must be suppressed, and on whether
Rockwells conviction must be reversed because of the suppression
of this evidence.
Rockwell also argues that the superior court
erroneously admitted certain hearsay evidence at his trial. We
conclude that each challenged item of evidence was admissible
under an exception to the hearsay rule.
Underlying facts and proceedings
In the early morning hours of January 16,
2004, two cars crashed at the intersection of Dimond
Boulevard and New Seward Highway. Officer Amanda
Patton of the Anchorage Police Department saw Rockwell
exit the drivers side of one of the cars and walk
towards the driver of the other car involved in the
accident. The two drivers started arguing, and Patton
separated them. When Patton spoke with Rockwell, he
first said that he had been driving, but shortly
thereafter claimed that he had not been driving.
Officer Stephen Busby arrived at the scene
and contacted Rockwell while Officer Patton questioned
the driver of the other vehicle involved in the
accident. The driver of the other vehicle told Patton
that he saw someone run away from the passenger side of
Rockwells car, but he identified Rockwell as the
driver.
When Officer Busby contacted Rockwell,
Rockwell was standing in the middle of the street;
Busby asked Rockwell to step over to his patrol
vehicle. Busby noticed that Rockwell had bloodshot,
watery eyes and appeared to be intoxicated. Rockwell
admitted that he was intoxicated and that his license
was revoked. However, Rockwell told Busby that another
man Joshua Fagg had been driving the car.
Busby then asked Rockwell to sit in the
backseat of his patrol car. According to the
testimony, Busby asked Rockwell to get into the patrol
car because it was cold outside. Busby told Rockwell
that he was not under arrest. However, Busby conducted
a pat-down search of Rockwells clothing for weapons
before Rockwell got into the car. During this search,
Busby found the keys to Rockwells car in Rockwells back
pocket.
Once in the vehicle, Busby turned on an
audio recorder and asked Rockwell more questions.
During this questioning, Busby informed Rockwell that
he was going to take him to the police substation at
the Dimond Mall, approximately two blocks away, to
administer field sobriety tests.
Once they arrived at the Dimond Mall
substation, Busby administered field sobriety tests to
Rockwell and continued to question him. Based on
Rockwells performance on the field sobriety tests,
Busby arrested Rockwell for driving while under the
influence.
Busby then took Rockwell to a second police
substation for breath testing. The result of the
breath test was a .130 percent alcohol level. After
Rockwell took the breath test, Busby advised him of his
Miranda rights.
After Rockwell was advised of his rights, he
demanded an attorney. It was approximately 4:00 a.m.
at this time. Busby offered Rockwell the chance to
immediately call an attorney, but Rockwell declined to
make a phone call. Busby then continued to question
Rockwell.
After Rockwell was charged with felony
driving while under the influence and driving while his
license was cancelled, suspended, or revoked, he asked
the superior court to suppress the statements he made
to Busby. Rockwell asserted that he was subjected to
custodial interrogation before he received Miranda
warnings. He also asserted that, after he received the
warnings and invoked his right to counsel, Busby
ignored his request for counsel and continued to
interrogate him.
Superior Court Judge Michael L. Wolverton
held an evidentiary hearing on Rockwells suppression
motion. Following this hearing, Judge Wolverton denied
Rockwells motion in a one-paragraph written order. In
this order, Judge Wolverton declared that Rockwell had
not been in custody at any pertinent time, but the
judge did not make any specific findings of fact.
Rockwells trial was held before Superior
Court Judge John Suddock. Rockwells defense was that
he had not been driving the car. He again identified
Joshua Fagg as the driver. To rebut this claim, the
State called Fagg as a witness. Fagg testified that he
had been traveling in South America at the time of this
incident. Fagg produced his passport, a bus ticket,
and an Andean immigration card to corroborate his
testimony.
Rockwell received copies of Faggs bus ticket
and Andean immigration card on the afternoon before the
trial started. Rockwell asked Judge Suddock for a
continuance to investigate these documents, but the
judge denied the requested continuance.
The jury convicted Rockwell of both counts.
Rockwell now appeals.
Analysis of Rockwells claims
The Miranda issues
A police officer must advise a suspect of
the Miranda rights, and must obtain the suspects waiver
of those rights, before subjecting the suspect to
custodial interrogation.3
Normally, an investigative stop is not
considered custody for Miranda purposes.4 In Berkemer
v. McCarty,5 the United States Supreme Court held that
a police officer need not give Miranda warnings to a
motorist who is subjected to roadside questioning
during a routine traffic stop.6 We followed this rule
in Blake v. State,7 holding that police officers are
not required to give Miranda warnings during a traffic
stop unless and until the initial stop ripens into full-
blown custody.8
In Hunter v. State,9 the Alaska Supreme
Court announced an objective test for determining
whether a person is in custody for purposes of
Miranda.10 Custody occurs when there is some actual
indication of custody, such that a reasonable person
would feel he was not free to leave and break off
police questioning.11
The supreme court defined the factors to
consider as follows:
At least three groups of facts would be
relevant to this determination. The first
are those facts intrinsic to the
interrogation: when and where it occurred,
how long it lasted, how many police were
present, what the officers and the defendant
said and did, the presence of actual
physical restraint on the defendant or
things equivalent to actual restraint such
as drawn weapons or a guard stationed at the
door, and whether the defendant was being
questioned as a suspect or as a witness.
Facts pertaining to events before the
interrogation are also relevant, especially
how the defendant got to the place of
questioning whether he came completely on
his own, in response to a police request, or
escorted by police officers. Finally, what
happened after the interrogation whether
the defendant left freely, was detained or
arrested may assist the court in
determining whether the defendant, as a
reasonable person, would have felt free to
break off the questioning.[12]
For present purposes, we divide
Busbys interrogation of Rockwell into four
phases:
(1) the initial contact on the street at the scene of the
accident;
(2) the interrogation inside Busbys patrol car up to the point
when Busby announced to Rockwell that he was going to transport
him to the Dimond Mall police substation;
(3) the continued interrogation inside the patrol car after
Busbys announcement, as well as the ensuing interrogation at the
two police substations until Rockwell was finally advised of his
Miranda rights; and
(4) the interrogation that took place after Rockwell was advised
of his Miranda rights and asserted his right to counsel.
The lack of factual findings by the superior court
As we noted above, Judge Wolverton made no
findings of fact when he decided Rockwells suppression
motion. In this omission, the judge departed from the
mandate of Alaska Criminal Rule 12(d), which states
that [when] factual issues are involved in determining
a motion to suppress evidence, the court shall state
its essential findings on the record. In other words,
a trial judge ruling on a suppression motion must
explicitly state all findings of fact essential to a
determination of the issues raised.
In the past, when trial judges failed to
make the findings required by Criminal Rule 12(d), we
have declined to apply the normal presumption that all
factual issues not specifically addressed by the judge
were resolved in the manner most favorable to upholding
the judges ruling. Instead, we have directed trial
judges to comply with Rule 12(d) and make express
findings on the essential factual issues presented by
the suppression motion.13
However, we conclude that we can resolve the
admissibility of Rockwells statements during the first,
third, and fourth portions of the interrogation without
explicit findings of fact.
Even viewing the evidence in the light most
favorable to Rockwell, his statements during the first
portion of the interrogation that is, the statements
he made when he and Busby were standing on the street
at the scene of the accident were not the product of
custodial interrogation.
And, even viewing the evidence in the light
most favorable to the State, Rockwell was in custody
for Miranda purposes during the third and fourth
portions of the interrogation that is, after Busby
told Rockwell that he was going to transport him to the
police substation.
This leaves the statements that Rockwell
made during the second portion of the interrogation
the statements that Rockwell made while he was sitting
in Busbys patrol car, but before Busby announced that
Rockwell would be taken to the police substation. We
conclude that we must direct the superior court to make
explicit findings concerning the facts of this portion
of the interrogation.
The initial contact on the street
When Busby arrived at the scene of the
accident, Rockwell was engaged in an argument with the
driver of the other car involved in the accident. Both
Officer Patton and the driver of the other vehicle
identified Rockwell as the driver of his car. Busby
noticed that Rockwell smelled of alcohol. Busby
approached Rockwell and asked him about the accident
that had just occurred, including questions about who
had been driving Rockwells car, and whether Rockwell
had been drinking. Rockwell conceded that he was
drunk, but he told Busby that he was not the driver of
the car. Rockwell identified the driver as Joshua
Fagg. Rockwell claimed that Fagg had run away
following the crash.
This initial portion of Rockwells encounter
with Busby resulted from the fact that Rockwell had
been in a traffic accident, and the police had
responded to render assistance and investigate the
accident. Busby questioned Rockwell while both of them
were standing on the street, close to where the
collision occurred. The questions that Busby posed to
Rockwell were appropriate, given the circumstances and
Busbys legitimate investigative purpose.
The test for Miranda custody is usually
stated as whether a reasonable person would feel he was
not free to leave and break off police questioning.14
This formulation of the test arguably suggests that
Miranda warnings are required in any situation where a
person is detained or seized for Fourth Amendment
purposes, but the rule is not that broad. As we
explained in Winterrowd v. Anchorage,15
The cases applying Miranda recognize that
there are some Fourth Amendment seizures of
temporary duration most notably, routine
traffic stops and other investigative stops
in which Miranda warnings are not required,
even though the person is temporarily in
custody and the police can properly ignore a
request that the officers depart and leave
the person alone.[16]
It is true that Busby testified that he would
not have allowed Rockwell to leave, and a
reasonable person in Rockwells position would
probably not have believed that they were
free to walk away during the accident
investigation. Nevertheless, this type of
brief investigative detention does not
constitute Miranda custody. Therefore, Busby
was not required to give Miranda warnings
before questioning Rockwell on the street,
and Rockwells statements during this
encounter are admissible.
The questioning inside the patrol car
After this initial questioning, Busby asked
Rockwell to get into the backseat of his patrol car.
According to Busbys testimony, he made this request
because it was cold outside, and because he wanted to
get Rockwell away from traffic and away from the driver
of the other car.
Busby told Rockwell that he was not under
arrest, and he did not handcuff Rockwell when Rockwell
got into the patrol car. However, before Rockwell got
into the car, Busby conducted a pat-down search of
Rockwells clothing. During this pat-down, Busby felt a
lump in Rockwells back pocket. The officer reached
into Rockwells pocket and removed the lump which
proved to be the keys to Rockwells car.
Busby recorded his questioning of Rockwell
inside the patrol car. Busby questioned Rockwell
concerning his identity, his car insurance, and how
Busby might contact Joshua Fagg, the person who
Rockwell identified as the driver of the car. Busby
then got out of the patrol car, leaving Rockwell in the
backseat.
When Busby returned, he informed Rockwell
that he was going to drive him to the Dimond Mall
police substation because he wanted Rockwell to perform
field sobriety tests there. Busby then resumed his
questioning of Rockwell. Busby asked Rockwell if he
had been riding in the passenger seat of the car the
entire time before the accident; Rockwell answered yes.
Busby then asked Rockwell to explain how he had the car
keys in his pocket. Rockwell answered that he was not
sure, but that he must have grabbed the keys at some
point.
At this point, Busby stepped out of the
patrol car again. When he re-entered the car, he again
asked Rockwell how to contact Fagg, and he also asked
if Rockwell needed any medical assistance. Busby then
drove Rockwell to the Dimond Mall substation.
We conclude that, even viewing the evidence
in the light most favorable to the State, Rockwell was
in custody for Miranda purposes from the time Busby
told him that he was going to be transported to the
police substation for testing. When the police conduct
an investigative stop, they must not require the person
stopped to travel an appreciable distance.17
Here, Busby did not ask Rockwell to consent
to be transported to the police substation. Rather,
Busby simply announced to Rockwell that he would be
transported. From this point on, Rockwell was in
custody, and he should have been advised of his Miranda
rights before any further questioning. Thus, any
subsequent answers that Rockwell gave to Busby without
a Miranda warning must be suppressed.
This leaves the issue of the admissibility
of the statements Rockwell made inside the patrol car,
before Busby announced that Rockwell would be taken to
the substation. Rockwell argues that he was in custody
for Miranda purposes from the time he first entered
Busbys patrol car.
The mere fact that Rockwell took a seat in
the patrol car does not establish that Rockwell was in
custody for purposes of Miranda. However, in Waring v.
State18 the Alaska Supreme Court ruled that when a
police officer instructs as opposed to invites a
person to sit in a patrol car, the officer is
conducting a Fourth Amendment seizure.19
In Rockwells case, Busby testified that he
did not instruct Rockwell to sit in the patrol car.
Rather, Busby testified that he asked Rockwell to sit
in the patrol car, and that Rockwell agreed to do so,
or at least did not protest. This testimony suggests
that Rockwell was not in custody.
However, just before Rockwell got into the
patrol car, Busby conducted the pat-down search and
removed Rockwells car keys from his pocket. In their
briefs to this court, both parties assume that Busby
retained these keys but this is not immediately
apparent from the record.
The only mention of the car keys at the
evidentiary hearing was Busbys testimony that he had
asked Rockwell about the keys being in his pocket. At
trial, Busby testified that when he conducted the pat-
down search of Rockwell, he felt a lump in Rockwells
back pocket, then reached in and removed a set of keys
that Rockwell identified as the keys to his vehicle.
But Busbys testimony did not address the issue of
whether he retained these keys after he found them.
Rockwell also points out that he could not
get out of the back seat of Busbys patrol car without
Busbys assistance since the rear doors of the car did
not open from the inside. (Busby testified that the
rear doors of the patrol car open only from the
outside.) But there was no testimony that Rockwell
knew that he was unable to get out of the backseat of
the patrol car unless the officer let him out.
Given all of these circumstances, and
depending on how the facts are viewed, there is at
least a reasonable possibility that Rockwell was in
custody for Miranda purposes when he entered Busbys
patrol car. Because we do not have findings on all the
pertinent facts, we cannot resolve this issue. We
therefore direct the superior court to make findings on
this issue as required by Criminal Rule 12(d).
The questioning at the Dimond Mall substation
Busby transported Rockwell to the Dimond
Mall substation for field sobriety testing. Upon
arriving at the substation, Busby engaged in further
interrogation of Rockwell. And after Busby
administered the field sobriety tests, he continued to
ask Rockwell questions about what, when, and where he
had been drinking, how much he had to drink, and who
was with him at the time. After this questioning, and
based on Rockwells performance on the field sobriety
tests, Busby informed Rockwell that he was under arrest
for driving while under the influence. He then
transported Rockwell to a different police substation
for breath testing.
As we explained in the preceding section of this
opinion, Rockwell was in custody for Miranda purposes throughout
this questioning at the Dimond Mall substation. Because Rockwell
did not receive Miranda warnings before he answered Busbys
questions, all of Rockwells statements in response to these
questions must be suppressed.
The advisement of Miranda rights, and the questioning at the
second police substation
After Busby formally arrested Rockwell and transported
him to the second police substation for breath testing, Busby
finally advised Rockwell of his Miranda rights. Rockwell then
asked for an attorney. Busby offered Rockwell a phone, but
Rockwell declined to call an attorney.
Busby then asked Rockwell if he would answer more
questions. Rockwell agreed, and Busby resumed his interrogation.
On appeal, Rockwell argues that Busby violated his
right to counsel when he continued to question him after he
requested an attorney. The State relies on Hampel v. State,20 in
which this court ruled that, after a suspect in custody refers to
his right to counsel in an ambiguous or equivocal way, any
further police questioning must be limited to clarifying the
reference.21 But there was nothing equivocal about Rockwells
demand for an attorney. Rockwell exclaimed that he wanted a
lawyer now!
When a suspect in custody invokes his right
to counsel, the police must stop all questioning until
counsel is present, unless the defendant initiates the
discussion.22 In Edwards v. Arizona,23 the United
States Supreme Court held that when a suspect invokes
his right to counsel, the police must cease all
questioning of the suspect and cannot re-initiate
questioning until the suspect has had the opportunity
to consult an attorney.24 The Supreme Court stated:
[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,
having 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.[25]
Rockwell did not initiate a new
discussion with Busby after he stated that he
wanted an attorney. Instead, Busby asked
Rockwell if he was willing to answer more
questions. After Rockwell agreed, Busby
continued to interrogate Rockwell. This
procedure does not satisfy Edwards. The fact
that Rockwell agreed to respond to further
police-initiated questioning was not a valid
waiver of his right to counsel. Therefore,
Rockwells ensuing statements must be
suppressed.
What the superior court must do on remand
As we have explained here, the statements
that Rockwell made to Busby during their initial
encounter on the street at the scene of the motor
vehicle accident are admissible. However, all the
statements that Rockwell made to Busby after Busby
announced that he was going to transport Rockwell to
the Dimond Mall substation should have been suppressed.
Some of these statements must be suppressed because
Rockwell was subjected to custodial interrogation
without first being advised of his Miranda rights, and
the remainder of the statements must be suppressed
because, after Rockwell was advised of his rights,
Busby ignored Rockwells invocation of the right to
counsel.
This leaves the issue of the admissibility
of the statements that Rockwell made while sitting in
Busbys patrol car, before Busby announced that Rockwell
was going to be transported to the police substation.
The superior court must make findings of fact regarding
the precise circumstances of this portion of the
encounter. Based on these findings, the superior court
must then detemine whether Rockwell was in custody for
Miranda purposes. If Rockwell was in custody, then his
Miranda rights were violated, and the statements he
made in response to Busbys questioning must be
suppressed.
After the superior court determines which of
Rockwells statements must be suppressed, the court must
determine which of these statements were introduced by
the State at Rockwells trial, and then determine
whether the introduction of these statements requires
reversal of Rockwells convictions.
(On this last issue, we note that many of
Rockwells statements to Busby during these latter
portions of the interrogation seemingly support the
defense that Rockwell offered at trial, and they are
seemingly redundant of the admissible statements that
Rockwell made when Busby first questioned him on the
street i.e., Rockwells assertion that Joshua Fagg had
been driving the car, and that Fagg had fled the scene
following the accident.)
Rockwells hearsay claims
The State called Joshua Fagg as a witness at
trial. Fagg testified that he knew Rockwell because,
several years earlier, they both worked at an Anchorage
restaurant. Fagg further testified that he was
traveling in Ecuador and Peru from November 2003
through March 2004.
During Faggs testimony, the State asked him
to identify several documents that corroborated his
assertion about being out of the country: Faggs United
States passport, an Andean immigration card that Fagg
filled out in preparation for his entry into Peru, and
a bus ticket that Fagg purchased in Peru.
Fagg pointed out that his passport contained
dated stamps that were placed in his passport by
government officials when he entered and returned from
these foreign countries. These passport stamps showed
that Fagg entered Ecuador on November 26, 2003, that he
entered Peru on December 27, 2003, and that he departed
Peru on March 23, 2004. Fagg also identified an
immigration card that he prepared while on the flight
from Ecuador to Peru on December 27, 2003. Fagg
testified that this immigration card was date-stamped
by a Peruvian government official when Fagg arrived in
Peru. He also identified a bus ticket that was issued
to him on February 1, 2004, for a bus trip in Peru.
The superior court admitted all of these
exhibits over Rockwells hearsay objections.
On appeal, Rockwell argues that the bus
ticket and immigration card offered by the State to
show that Fagg was out of the country on the date of
the accident were irrelevant. He points out that the
date on the bus ticket 02-01-2004 was January 2,
2004, and not February 1, 2004, as the parties assumed
at trial. (In most countries in the world, including
all of South America, the first digits in a date refer
to the day, not the month.)26 Rockwell argues that if
the immigration card had a date stamp of December 27,
2003, and the bus ticket was dated January 2, 2004,
then both pieces of evidence were irrelevant because
they do not show that Fagg was outside of Anchorage on
January 16, 2004, the date of the accident.
At trial, Rockwell did not claim that the
evidence was irrelevant, so he must show plain error.27
Even if there was a misunderstanding regarding the date
that the bus ticket was issued in Peru, the evidence
was still relevant. Rockwell contended that Fagg was
driving on January 16, 2004, and the immigration card
and the bus ticket supported Faggs testimony that he
was out of the country on January 16, 2004. This
evidence tended to disprove Rockwells defense and, in
context, tended to prove the States case that Rockwell
was driving.
Rockwell contends that while passports may
be admissible under Evidence Rule 803(8) (the public
records exception), the stamps contained in Faggs
passport constituted hearsay. Rockwell argues that
under United States v. Friedman,28 in order for records
to be admissible under the public records exception,
they must be kept by the country that issues them.
Because the passport stamps are not records that are
kept by a country, Rockwell argues they are
inadmissible.
But Friedman does not require that evidence
be kept by the public office that issues it in order
for it to qualify as admissible hearsay under the
public records exception. Friedman held that
immigration records that were physically kept by the
Chilean government and could be made into a written
summary by a Chilean official qualify as admissible
hearsay under Rule 803(24) of the Federal Rules of
Evidence, the catch all exception.29
The State, relying on Harris v. State,30
contends that there is no requirement that a public
record be kept by a government in order to be
admissible to public records exception. In Harris, the
record at issue was a business record.31 The State
argues that [t]here is no sound reason for treating the
public records differently.
Harris was charged with forging travelers
checks.32 During his trial, Harris objected to a bank
officers identification of stamps on the face of
travelers checks, and his testimony that the stamps
were part of the normal procedure when dealing with the
checks.33 Harris argued that the officers testimony
was hearsay. We upheld the trial courts ruling that
the testimony was admissible as a business record under
Evidence Rule 803(6).34
Other cases have upheld the admission of
passports into evidence. United States v. Pluta35
addressed the admission of passports and their content
as public records.36 In Pluta, the passport evidence
was admitted to identify the nationality of the
passport holders.37 In United States v. Eltayib,38 the
court upheld the admission of passport evidence to
prove that a person entered a country.39 The crew of a
freighter traveling from Venezuela off loaded a large
cocaine shipment eighty miles off the coast of New
Jersey.40 The government introduced the passports of
the ships crew to establish that the defendants entered
Venezuela.41 The court concluded that the passport
evidence had important probative value on the issue of
whether the defendants had entered Venezuela.42 In
United States v. Akbar,43 the court upheld the trial
courts admission of the defendants passport that was
marked with a Cuban stamp as evidence that the passport
was stamped in Cuba while in the defendants
possession.44
Faggs passport and the stamps placed in his
passport by foreign government officials when he
entered the foreign country (as reflected in Faggs
testimony) fall within the public records exception to
the hearsay rule, Evidence Rule 803(8). The passport
and stamps are records that are administered by a
public office or agency. A passport is issued by the
government to an individual to show the citizenship and
identity of the holder. The government officials that
stamp passports do so on a regular basis to record the
entry of travelers holding passports. Judge Suddock
properly rejected Rockwells hearsay objection to this
evidence.
Rockwell also argues that the bus ticket and
the immigration card were not admissible. We conclude
that the immigration card was admissible under Evidence
Rule 803(8). Faggs testimony provided the foundation
for the card. He prepared the card for entry into
Peru, and the card was stamped by a Peruvian government
official in the course of normal governmental duties.
The card was not prepared in anticipation of
litigation.
We conclude that the bus ticket was
admissible as a business record under Evidence Rule
803(6). Fagg testified that he purchased the ticket in
Peru to travel between two cities. His testimony
provided the foundation for the admission of the ticket
because his testimony showed that he obtained the
ticket after paying for it in order to travel. Thus,
his testimony showed that the ticket he possessed was
issued in the course of a regularly conducted business,
and that it reflected his payment of the bus fare for
the scheduled travel.
Rockwell next argues that the admission of
the passport and the immigration stamps violated his
right to confrontation under the Sixth Amendment as
interpreted by the United States Supreme Court in
Crawford v. Washington.45 Crawford holds that under
the Confrontation Clause, the government cannot
introduce testimonial hearsay against a criminal
defendant unless the hearsay declarant testifies at
trial, or the government proves that the hearsay
declarant is unavailable and that the defendant
previously had a fair opportunity to cross-examine the
declarant.46 The Supreme Court gave three formulations
of the core class of testimonial statements: (1) [E]x
parte in-court testimony or its functional equivalent
... such as affidavits, custodial examinations, and
prior testimony where the defendant was unable to cross-
examine, or similar pretrial statements that declarants
would reasonably expect to be used prosecutorially[];
(2) [E]xtrajudicial statements contained in formalized
testimonial materials, such as affidavits, depositions,
prior testimony, or confessions[]; and (3) [S]tatements
that were made under circumstances which would lead an
objective witness reasonably to believe that the
statement would be available for use at a later
trial[.]47
Rockwell argues that, according to the
holding in Crawford, the passport stamps and
immigration card should not have been admitted unless
he had the opportunity to confront the Peruvian
official who stamped them.
In Abyo v. State,48 we addressed whether
documents used to verify the calibration of the
DataMaster breath test machine were covered by
Crawford.49 We noted that, although the Supreme Court
did not explicitly define testimonial in Crawford, the
Court stated that business records are, by their
nature, not testimonial.50 Even though the calibration
documents were admitted under the public records
exception, not the business records exception, we
followed substantial authority holding that calibration
documents, whether admitted as business records or
public records, are not barred by the Confrontation
Clause.51
The passport stamps and immigration card at
issue here were not made and maintained for the primary
purpose of criminal investigations, and the government
employees who stamped the documents performed a
ministerial duty that had nothing to do with
prosecuting a particular person for criminal activity.
We hold that the passport and immigration card are not
testimonial hearsay barred by Crawford.
The superior court properly denied the motion to
continue
Finally, Rockwell argues that the superior
court erred when it denied his motion to continue the
trial based on the States disclosure of the bus ticket
and the immigration card shortly before trial.
When the parties were in court on April 17,
2006, Rockwell had just been informed that the State
had located Fagg and that Fagg was available to
testify. The State provided Rockwell with a copy of
Faggs passport. The court granted Rockwells request
for a continuance to the week of April 24, 2006.
The afternoon of April 24, 2006, the State
obtained copies of Faggs immigration card and bus
ticket and immediately provided copies to Rockwell.
The trial began on April 25, 2006. Rockwell requested
another continuance so that he could research and
investigate these materials. He claimed that he would
be prejudiced by the introduction of the newly
disclosed evidence at trial because he did not have
time to investigate the documents. The trial court
denied Rockwells request for a continuance, finding
that he had adequate notice in advance of trial that
the State intended to show that Fagg had been out of
the country at the time of the accident.
For this court to reverse the trial courts
denial of Rockwells continuance, Rockwell must
demonstrate that the denial embarrassed [him] in
preparing his defense and prejudiced his rights.52
Rockwell does not assert that the denial of the
continuance in some way embarrassed him in preparing a
defense or prejudiced his rights. He does argue that
the continuance should have been granted because he was
not able to investigate the immigration card and bus
ticket. But he makes no claim that further
investigation would have yielded anything of benefit.
At the time that Rockwell requested a
continuance to permit him to investigate the bus ticket
and immigration card, he knew that Fagg would be
testifying that he was out of the country at the time
of the accident, and the State had provided Rockwell
with a copy of Faggs passport. Faggs passport showed
that he was out of the country before and after the
dates of the accident; the immigration card and bus
ticket merely corroborated what was shown by the
passport. Therefore, we uphold Judge Suddocks denial
of Rockwells motion to continue.
Conclusion
We reject Rockwells attack on the superior
courts evidentiary rulings and on the denial of
Rockwells request for a continuance. We remand the
case for additional findings as discussed in the
section addressing Rockwells Miranda claims. Within
ninety days, the superior court shall transmit its
findings to this court. When we receive the superior
courts findings, we will resume our consideration of
the case.
_______________________________
1 AS 28.35.030(n) & AS 28.15.291(a)(1), respectively.
2 384 U.S. 436, 86 S. Ct. 1602, 16 L .Ed. 2d 694 (1966).
3 Halberg v. State, 903 P.2d 1090, 1093 (Alaska App. 1995).
4 Tagala v. State, 812 P.2d 604, 608 (Alaska App. 1991)
(citing Berkemer v. McCarty, 468 U.S. 420, 440-43, 104 S.
Ct. 3138, 3150-52, 82 L. Ed. 2d 317 (1984)).
5 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984).
6 Id. 468 U.S. at 440, 104 S. Ct. at 3150 (citing Terry v.
Ohio, 392 U.S. 1, 29, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889
(1968)).
7 763 P.2d 511 (Alaska App. 1988).
8 Id. 763 P.2d at 515.
9 590 P.2d 888 (Alaska 1979).
10 Id. 590 P.2d at 895.
11 Id.
12 Id. (footnote omitted).
13 See Flynn v. State, 847 P.2d 1073, 1077 n.2 (Alaska
App. 1993); Long v. State, 837 P.2d 737, 742 (Alaska App.
1992); Burks v. State, 706 P.2d 1190, 1191 (Alaska App.
1985); Johnson v. State, 631 P.2d 508, 513-14 (Alaska App.
1981).
14 Hunter, 590 P.2d at 895.
15 139 P.3d 590 (Alaska App. 2006).
16 Id. at 591.
17 Howard v. State, 664 P.2d 603, 610 (Alaska App. 1983).
18 670 P.2d 357 (Alaska 1983).
19 Id. at 364 (citing 3 W. LaFave, Search and Seizure: A
Treatise on the Fourth Amendment 9.2, at 53, 54 (1978)
(footnote omitted)).
20 706 P.2d 1173 (Alaska App. 1985).
21 Id. at 1180 (citing Giacomazzi v. State, 633 P.2d 218, 222
(Alaska 1981)).
22 Tagala v. State, 812 P.2d 604, 609 (Alaska App. 1991)
(citing Arizona v. Roberson, 486 U.S. 675, 677, 108 S. Ct.
2093, 2096, 100 L. Ed. 2d 704 (1988); Edwards v. Arizona,
451 U.S. 477, 484-85, 101 S. Ct. 1880, 1884-85, 68 L. Ed. 2d
378 (1981)).
23 451 U.S. 477, 101 S.Ct. 1880, 68 L. Ed. 2d 378 (1981).
24 Id. 451 U.S. at 484-85, 101 S. Ct. at 1884-85.
25 Id.
26 See the Wikipedia article, Calendar Date, found at:
http://en.wikipedia.org/wiki/Calendar_date
27 See, e.g., Gilbert v. State, 598 P.2d 87, 92 (Alaska
1979) (noting that, pursuant to Rule 47(b) of the Alaska
Rules of Criminal Procedure, error that was not brought to
the attention of the trial court will not be considered on
appeal unless it affects a substantive right and is
obviously prejudicial).
28 593 F.2d 109 (9th Cir. 1979).
29 Id. at 118-19.
30 678 P.2d 397 (Alaska App. 1984), revd on other grounds,
Stephan v. State, 711 P.2d 1156 (Alaska 1985).
31 Id. at 406.
32 Id. at 399.
33 Id. at 406.
34 Id.
35 176 F.3d 43 (2nd Cir. 1999).
36 Id. at 50-51.
37 Id.
38 88 F.3d 157 (2nd Cir. 1996).
39 Id. at 169.
40 Id. at 161-64.
41 Id. at 169.
42 Id.
43 698 F.2d 378 (9th Cir. 1983).
44 Id. at 379.
45 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
46 Id. 541 U.S. at 68, 124 S. Ct. at 1374.
47 Id. at 551-52, 124 S. Ct. at 1364 (citations omitted).
48 166 P.3d 55 (Alaska App. 2007).
49 Id. at 58-59.
50 Id. at 59 (citing Crawford, 541 U.S. at 56, 124 S. Ct.
at 1367).
51 Id. at 59-60 & n.13.
52 Nielsen v. State, 623 P.2d 304, 307 (Alaska 1981)
(citing Klockenbrink v. State, 472 P.2d 958, 964 (Alaska 1970)).
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