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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
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
| KEVIN M. STOCK, | ) |
| ) Court of Appeals No. A-9732 | |
| Appellant, | ) Trial Court No. 3PA-05-1156 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2181 August 22, 2008 |
| ) | |
Appeal from the
Superior Court, Third Judicial District,
Palmer, Eric Smith, Judge.
Appearances: Brian T. Duffy, Assistant Public
Advocate, and Joshua P. Fink, Public
Advocate, Anchorage, for the Appellant.
Diane L. Wendlandt, 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.
COATS, Chief Judge.
Kevin M. Stock was convicted, after a jury trial, of
assault in the first degree, a class A felony.1 The State
alleged that Stock invited David Lynch back to his apartment,
where he beat up Lynch with a boot cast that belonged to Lynch.
On appeal, Stock asserts that Superior Court Judge Eric Smith
erred in admitting his statements to the police. He contends
that the police violated his constitutional rights in obtaining
the statements.
Stock also argues that Judge Smith erred in allowing
Lynchs mother to testify, in response to a question submitted by
a juror, about whether she noticed injuries to Lynch that
resulted from the assault. Stock argues that Lynchs mother had
insufficient personal knowledge to answer the question and that
her testimony introduced a new theory of the case (that Lynch
suffered protracted impairment of his health as a result of the
assault).
For the reasons explained here, we reject Stocks claims
of error.
Factual and procedural background
On May 12, 2005, Palmer Police Officers Jamie Hammons
and Kelly J. Turney responded to a 911 call reporting a
disturbance at an apartment building in Palmer. Upon arrival,
Officer Hammons placed Stock in handcuffs and asked him some
questions while Officer Turney attempted to get a statement from
Lynch, who was injured. Because Turney was unable to get a
coherent statement from Lynch, he left Lynch with the medics and
joined Hammons in questioning Stock. Hammons told Turney that he
had established that Stock had asked Lynch to leave his
apartment. Stock stated that he told Lynch to leave four times.
Turney asked Stock why he had not called the police. Stock
responded that he wanted to see if Lynch would leave on his own.
At this point, Turney asked Hammons whether he had given Stock
Miranda2 warnings. When Hammons said he had not, Turney read
Stock his Miranda rights.
After reading Stock his Miranda rights, Officer Turney
asked Stock whether he understood each of his rights. Stock
affirmatively answered, Yes, sir. Turney then asked Stock,
Having those rights in mind, do you want to answer some questions
for me? Stock responded, It depends what the questions are.
Turney suggested go[ing] one [question] at a time. Stock
responded by stating, Ask me one. From this point on, Stock
chose to answer some questions but not others. In refusing to
answer one question, Stock stated, I know my rights. He refused
to answer some questions by simply not answering. At other
times, he told Turney, Ask me another question.
During this questioning, Stock stated that Lynch was a
hitchhiker that he picked up and brought to his apartment. They
consumed some alcohol. Lynch then tried to steal some of Stocks
things. Stock told Lynch to leave several times. When Lynch
refused to leave, Stock defended himself. Turney asked Stock
several times what happened. But Stock refused to answer some of
those questions, either by remaining silent or telling Turney to
ask another question.
Toward the end of this interview, Stock stated that he
was tired of answering questions.
Stock: Im tired of answering questions.
Officer Turney: Youre tired of answering
questions?
Stock: Thats my right, right?
Officer Turney: Of course it is. So youll
tell me everything except for how he got
hurt. Thats what I dont understand. But no
one else was in the apartment but you two?
Stock: Yes, sir.
Officer Turney: So obviously ...
Stock: And ...
Officer Turney: Did he hurt himself?
Stock: (inaudible reply) [Note: From
listening to the tape, it is clear that Stock
remains silent here.]
Officer Turney: Did he break his own arm and
cut his own head?
Stock: The arm, I dont know now.
Officer Turney: Okay. Then how did he did
he cut his own head?
Stock: (inaudible reply) [Note: From
listening to the tape, it is clear that Stock
remains silent here.]
Officer Turney: Did he hit himself with that
boot by himself?
Stock: Im tired of answering questions.
At this point, Turney placed Stock under arrest and
transported him to the police station. At the police station,
Turney asked Stock several questions about his sobriety and asked
Stock to take a breath test to determine his level of sobriety.
Turney told Stock that the jail needed to do the test to
determine if Stock was sober enough to be placed in the general
population of the jail. Stock refused to take a breath test. He
told Turney that he was not sober.
The critical part of the interview occurred next.
After booking, Stock was placed in a holding cell. He was
interviewed in the holding cell about one-half hour after the
interview in which he asserted his right to silence. Officer
Turney initiated the interview in the following manner:
Officer Turney: Hi, Kevin.
Stock: Hi.
Officer Turney: Can I come in and talk to
you for a minute?
Stock: Sure. Have a seat.
Officer Turney: Okay. Okay. Remember your
Miranda rights I read you before we left the
apartment building?
Stock: (inaudible reply) [Note: From
listening to the tape, it is clear that Stock
remains silent here.]
Officer Turney: Remember? That I read that
I read to you, do you remember those?
Stock: Yeah.
Officer Turney: Okay.
Stock: So I can deny any questions that you
do ask me.
Officer Turney: Thats correct. You
understand all those still?
Stock: Well (indiscernable).
Officer Turney: Okay. Well, Im just asking
if you still understand.
Stock: Yes.
Officer Turney: Okay. Id like to ask you a
couple more questions if I can. Is that okay
with you? And we can go question by question
again, like you talked about.
Stock: And I can refuse to answer?
Officer Turney: Of course you can. Of
course you can.
Stock: All right. All right.
During this interview, Stock made several self-
incriminating statements. Stock told Turney that, when Lynch
refused to leave, he wanted to kill him, and that he wanted him
dead. Stock stated that he wished Lynch was fucking dead, the
cocksucker.
Before trial, Stock moved to suppress all his
statements. He argued that the police had taken the statements
in violation of his Miranda rights. Judge Smith granted Stocks
motion in part. Judge Smith suppressed the statements that Stock
made before Stock received Miranda warnings. He ruled that the
later statements that Stock made to Officer Turney were
admissible up to the time when Stock affirmed that he was tired
of answering questions. Judge Smith suppressed the ensuing
statements Stock made at the apartment, as well as the statements
Stock made at the police station when Turney asked him to take a
breath test. But Judge Smith held that the statements Stock made
to Turney later in the holding cell were admissible. Stock
appeals this decision. He asserts that the entirety of the
interview in the holding cell should have been suppressed.
At trial, Stock also challenged the admissibility of
the testimony of Ronilee Batey, Lynchs mother. Over Stocks
objection, Judge Smith allowed Batey to answer a question
submitted by a juror regarding whether she had noticed any
increased injuries from the assault. Judge Smith also allowed
the prosecutor to ask Batey a follow-up question about what
specific injuries she had noticed. Stock appeals these
decisions.
Why we uphold Judge Smiths ruling admitting
Stocks statements to the police
On appeal, Stock does not challenge the portions of
Judge Smiths ruling that were favorable to him: the suppression
of Stocks pre-Miranda warning statements, the suppression of the
portion of Officer Turneys first interview that occurred after
Stock asserted his right to silence, and the suppression of
Stocks statements made during booking. Stock argues that these
violations tainted his later confessions, and that the resolution
of this case turns on an analysis under Brown v. Illinois3 or
Oregon v. Elstad.4 Under the Brown test, which was
superseded by Elstad under federal law, if a suspect made an
unwarned confession, then any post-Miranda warning statement was
presumptively inadmissible. To rebut the presumption that the
later statements were tainted by the suspects initial admissions,
the government needed to show that there was a break in the chain
of events.5 But in Elstad, the United States Supreme Court held
that an initial failure of law enforcement officers to administer
Miranda warnings, without more, did not presumptively taint a
subsequent confession obtained after the suspect had been fully
advised of and waived those rights.6 Alaska courts have not
ruled which test, Elstad or Brown, applies as a matter of Alaska
constitutional law.
Judge Smith found a Miranda violation and suppressed
Stocks initial statements. Stock asserts that his pre-Miranda
warning statements tainted all his post-Miranda warning
statements. We think it is plausible that Officer Hammonss pre-
Miranda warning questions were on-the-scene questions and not
custodial interrogation. But even if we accept Judge Smiths
ruling that there was a Miranda violation, nothing that Stock
said during this initial portion of the interview let the cat out
of the bag.7 In other words, Stock did not make any
significantly incriminating statements prior to being given
Miranda warnings.8 He told Hammons only that he had asked Lynch
to leave his apartment, that he had asked Lynch to leave four
times, and that he did not call the police to get Lynch to leave
the apartment because he wanted to see if Lynch would leave on
his own. Even under Brown, we think Officer Turneys subsequent
full advisement of Miranda warnings was sufficient to dissipate
any taint from these pre-Miranda warning statements.9
But the crux of Stocks argument is not resolved by
either Brown or Elstad. Stock argues that Turneys failure to
respect Stocks invocation of his right to silence tainted not
only the remainder of the initial interview, but also the
subsequent interview in the holding cell.
The parties do not contest that, prior to these
statements in the holding cell, Stock had exercised his right to
silence by asserting that he was tired of answering questions.10
In Elstad, the Supreme Court made clear that cases concerning
suspects whose invocation of their rights to remain silent and to
have counsel present were flatly ignored while police subjected
them to continued interrogation are inapposite to the discussion
in Elstad.11 The pertinent analysis is whether Stocks right to
cut off questioning was scrupulously honored, as required by
Michigan v. Mosley.12
Under Miranda, once a person in custody indicates in
any manner, at any time prior to or during questioning, that he
wishes to remain silent, the interrogation must cease.13 As
recognized in Mosley, this passage could be interpreted to
prohibit all subsequent custodial interrogation by any police
officer, at any time or place, on any subject. Or the passage
could require merely the immediate cessation of questioning and
allow resumption after a momentary respite.14 In order to avoid
the absurd and unintended results from either of these possible
interpretations, the Mosley Court concluded that the
admissibility of statements obtained after a person in custody
asserts the right to remain silent depends on whether the right
to cut off questioning was scrupulously honored.15 In Mosley, the
Supreme Court stated:
The critical safeguard ... is a persons right
to cut off questioning. Through the exercise
of his option to terminate questioning he can
control the time at which questioning occurs,
the subjects discussed, and the duration of
the interrogation. The requirement that law
enforcement authorities must respect a
persons exercise of that option counteracts
the coercive pressures of the custodial
setting. We therefore conclude that the
admissibility of statements obtained after
the person in custody has decided to remain
silent depends under [Miranda] on whether his
right to cut off questioning was scrupulously
honored.[16]
In the Mosley opinion, the Court reviewed the
circumstances leading to Mosleys confession and determined that
his right to cut off questioning was fully respected.17 After
being fully advised of his rights, Mosley stated that he did not
wish to discuss the robbery offense for which he was being held,
and the interrogation promptly stopped.18 More than two hours
later, a different officer carefully advised Mosley of his
Miranda rights, obtained a waiver, and questioned Mosley on an
unrelated homicide.19 The police, in summary, immediately ceased
the interrogation, resumed questioning only after the passage of
a significant period of time and the provision of a fresh set of
warnings, and restricted the second interrogation to a crime that
had not been a subject of the earlier interrogation.20 The Court
held that the statements made during the second interrogation
were admissible and did not violate the principles of Miranda.21
Whether Stocks right to silence was scrupulously
honored turns on our application of Mosley to Stocks case. Stock
exercised his right to silence at the end of the first interview
with Officer Turney by asserting that he was tired of answering
questions. Turney did not stop the first interview until Stock
had asserted twice that he was tired of answering questions.
About one-half hour later, Turney re-initiated an interrogation
on the same subject matter as the first interrogation after
reminding Stock of his Miranda rights, but not fully repeating
them.
Some courts have interpreted Mosley literally and
strictly. For example, the Tenth Circuit has stated that,
[O]fficers can reinitiate questioning only if: (1) at the time
the defendant invoked his right to remain silent, the questioning
ceased; (2) a substantial interval passed before the second
interrogation; (3) the defendant was given a fresh set of Miranda
warnings; [and] (4) the subject of the second interrogation was
unrelated to the first.22 Under this test, Stocks statements in
the holding cell would be suppressed.
However, the Tenth Circuit has acknowledged that
reasonable judges could conclude that Mosley does not require
such a broad restriction on the resumption of custodial
interviews. In an unpublished decision, the Tenth Circuit
concluded that the Kansas Supreme Courts more flexible
interpretation of Mosley was not unreasonable.23
Most courts have not interpreted Mosley as dictating a
list of requisites, but instead as providing guidance for a case-
by-case inquiry into all the relevant facts to determine whether
the suspects rights have been respected.24 As the Fourth Circuit
stated, Mosley does not prescribe a bright-line test to determine
whether a suspects right to cut off questioning was scrupulously
honored. Instead, the touchstone is whether a review of the
circumstances leading up to the suspects confession reveals that
his right to cut off questioning was fully respected.25
Some courts have determined that before an accuseds
previously asserted right to remain silent may be deemed to have
been scrupulously honored, law enforcement officers must, at a
minimum, re-administer Miranda warnings. For example, in State
v. Hartley,26 Hartley was arrested and stated, after being advised
of his Miranda rights, I dont believe I want to make a statement
at this time.27 The authorities asked Hartley no questions at
that time. More than one hour later, the same agent told Hartley
that he wanted him to reconsider and now is the time if you are
going to make a statement.28 Subsequently, Hartley gave a full
confession.29 The New Jersey Supreme Court held that an assertion
of the right to silence can be scrupulously honored only if, at a
minimum, the suspect is given fresh Miranda warnings.30 Because
the agent re-interviewed Hartley without re-administering Miranda
warnings, the court concluded that the right to remain silent was
not honored and that Hartleys statement must therefore be deemed
to have been unconstitutionally compelled.31 The New Jersey court
declared that administering fresh Miranda warnings is
indispensable to a permissible resumption of custodial
interrogation of a previously-warned suspect.32
Similarly, the Ninth Circuit in United States v. Hsu,33
found that re-administration of Miranda warnings was the most
important Mosley factor. In Hsu, a DEA agent arrested Hsu, read
him his Miranda rights, and obtained a waiver. But after
answering a few questions, Hsu asked if he could remain silent.
The agent promptly stopped the interview.34 Subsequently, another
agent placed Hsu in her car, drove him to a co-defendants house,
and conducted a search of that house. After the search, another
agent, who did not know that Hsu had previously invoked his right
to remain silent, advised Hsu of his Miranda rights, obtained a
waiver, and interrogated Hsu obtaining a confession.35 The
parties agreed that the amount of time between the interviews was
at most thirty minutes.36 On appeal, Hsu argued that, because
such a short period of time elapsed between the first and second
interviews and because the agent questioned him on the same
subject matter, the second interrogation violated the Fifth
Amendment.37 The Ninth Circuit concluded that while the short
passage of time might ordinarily incline us toward a conclusion
that [the] right to cut off questioning was not respected,38 they
rejected a bright-line rule barring any questioning that takes
place within an hour of an invocation of Miranda rights.39 The
Ninth Circuit emphasized that the most important factor or
perhaps even [t]he crucial factor was the provision of a fresh
set of Miranda warnings.40 The court determined that the fresh
warnings and a valid waiver, in addition to the deferential
conduct of the agents involved, militat[ed] toward a finding that
Hsus right to cut off questioning was scrupulously honored.41
But other courts view the question of whether the
suspect was re-advised of his Miranda rights as just one factor
to consider when determining if the suspects rights were
scrupulously honored. In State v. Murphy,42 the North Carolina
Supreme Court considered a case in which a defendant waived his
Miranda rights and talked with police agents regarding the events
that led to termination from his job. When the agents informed
Murphy that he was going to be charged with the murder of his
previous co-worker, Murphy twice denied knowing anything about
the homicide and eventually stated, I got nothing to say.43 The
agents immediately ceased the interrogation, charged Murphy with
the murder, and turned him over to another agent for booking.44
Within fifteen minutes of the conclusion of the first
interrogation, the booking agent initiated a conversation with
Murphy, without re-administering Miranda rights, in which he
encouraged Murphy to tell the truth so that the bad feeling in
his stomach would go away.45 Murphy responded,Man, you know the
position Im in, I cant tell you about it.46 The North Carolina
Supreme Court emphasized that the question of whether the
defendant had been re-advised of Miranda rights was just one
factor to consider when determining if the defendants rights were
scrupulously honored.47 But the court reversed Murphys conviction
because the police resumed the interrogation within fifteen
minutes of the time Murphy invoked his right to remain silent,
the second interrogation involved the same subject matter as the
earlier interrogation, and the defendant was not re-advised of
his Miranda rights.48
In Weeks v. Angelone,49 the Fourth Circuit concluded
that the Supreme Court of Virginia had reasonably applied the
Mosley test when the Virginia court concluded that the police had
scrupulously honored a defendants right to remain silent even
though the officer asked Weeks only if he remembered his rights
prior to the second interrogation, and Weeks responded that he
did. At 7:40 a.m., Weeks was read his Miranda rights, and after
he invoked his right to remain silent, the questioning
immediately ceased.50 At 6:00 p.m., Weeks was brought to the
lounge of the prosecutors office and interviewed again by the
same officer. The officer asked Weeks whether he remembered the
rights he had been read earlier in the day, and Weeks answered
affirmatively. The officer then proceeded to summarize the
evidence against Weeks and explained to Weeks that this was his
opportunity to provide his explanation of what happened at the
shooting. Weeks then confessed.51 On appeal, Weeks argued that
three of the Mosley factors had been violated: a significant
amount of time had not passed between interrogations, no new
Miranda warnings were given, and the second interrogation
concerned the same crime that was the subject of the first
interrogation.52 In addressing Weeks challenge, the
Fourth Circuit noted that whether the police waited a significant
period of time does not require a durational minimum instead
courts look to what degree the police persist[ed] in repeated
efforts to wear down [the suspects] resistance and make him
change his mind.53 The court found it reasonable for the Supreme
Court of Virginia to conclude that more than ten hours was
sufficient in this case.54 With regard to the fact that Weeks had
not received a fresh set of Miranda warnings prior to the second
interview, the court noted that, The fact that incomplete Miranda
warnings, or no warnings at all, are given prior to the second
interrogation is not decisive.55 The court found this principle
particularly apt in this situation, where Weeks apparently was
aware of his Miranda rights and voluntarily chose not to exercise
them.56 The fact that Weeks chose to speak with the same officer
to whom he had previously asserted his right to cut off
questioning was evidence that Weeks was comfortable exercising
his rights an indication that his decision to talk to the
officer was a product of volition rather than coercion.57 Lastly,
with regard to whether the second interrogation concerned a crime
that was the subject of the first interrogation, the court
concluded that when other factors indicate that a defendants
right to cut off questioning was scrupulously honored,
questioning about the same crime does not necessarily render a
confession derived from the second interrogation
unconstitutionally invalid under Mosley.58 Overall, looking at
the totality of the circumstances, the Fourth Circuit found it
reasonable for the Supreme Court of Virginia to conclude that the
police scrupulously honored Weekss right to cut off questioning.59
Having considered all of the foregoing authorities, we
find ourselves in agreement with those jurisdictions that do not
view Mosley as creating a set of hard-and-fast requirements. We
conclude that the Mosley decision points to the factors that must
be considered when assessing whether a suspects right to cut off
questioning was scrupulously honored. Each of these factors must
be considered, but no single factor is determinative, either in
its presence or its absence.
Under this interpretation of Mosley, there are several
problematic aspects of Officer Turneys renewed interview with
Stock in the holding cell. Turney was the same officer who had
interviewed Stock the first time. This second interview took
place about one-half hour after the first interview. Moreover,
the second interview focused on the same subject matter as the
first and it is clear that Turney was attempting to get Stock to
answer the type of question that Stock had previously refused to
answer: questions dealing with how Lynch had come to be injured
at Stocks apartment. And finally, Turney did not re-administer
full Miranda warnings to Stock; rather, he simply reminded Stock
of the earlier advisement of rights.
On the other hand, several aspects of the situation
support the superior courts ruling. When Turney came to Stocks
holding cell, he asked Stock for permission to enter, and Stocks
immediate response was, Sure. Have a seat. Even though Turney
did not repeat the full set of Miranda warnings, when Turney
asked Stock whether he remembered his Miranda rights, Stocks
response showed that he did recall his right to remain silent
Stock immediately asserted (and Turney agreed) that he could
refuse to answer any questions. Turney then proposed that the
holding cell interview proceed in the same manner as the earlier
interview: with Stock having the right to decide, on a question-
by-question basis, whether he would answer Turneys inquiries.
Stock replied, All right. All right.
Weighing all of these factors, we conclude that Turney
satisfied Mosleys mandate of scrupulously honoring Stocks right
to cut off questioning. Accordingly, we affirm the superior
courts decision to allow the State to introduce the statements
Stock made during the holding cell interview.
Stock also argues that his statements were not
voluntary. But Stock never obtained a ruling from Judge Smith on
this issue. He therefore did not preserve this issue for appeal.60
We find no plain error. The record shows that Stock was a
relatively sophisticated defendant who knew his rights and
exercised them.
Why we conclude that Judge Smith did not
abuse his discretion in admitting the
testimony of Lynchs mother
We next address Stocks claim that Judge Smith erred by
admitting the testimony of Ronilee Batey, the victims mother.
By the time of Stocks trial, David Lynch had died from
causes unrelated to the injuries he received from Stocks assault.
The State called Lynchs mother, Batey, as a witness. Batey
explained how, prior to the assault in this case, Lynch broke his
ankle when he slipped in her driveway. He had surgery on the
ankle and was using a cane and wearing a hard plastic boot cast
to protect the ankle.
Judge Smith had established a procedure where he
allowed jurors to submit proposed questions for witnesses. A
juror submitted a proposed question for the court to ask Batey:
Did you notice increased injuries from the assault?
In a bench conference, Stocks attorney objected to this
question. She asserted that Lynch led a very unhealthy
lifestyle. She argued that Bateys answer to this question would
not have any foundation and would open up Lynchs lifestyle of
alcohol abuse. But Judge Smith allowed the question. In
response to the question whether she noticed increased injuries
from the assault, Batey simply answered Yes. Judge Smith asked
whether Lynch was on any pain medication. Batey again answered
Yes. When Judge Smith asked how strong the medication was, Batey
responded that she thought he was taking codeine.
At this point, the prosecutor asked Batey what specific
injuries from the assault she had noticed. Stocks attorney again
objected. But Judge Smith overruled the objection, directing
Batey to restrict her answer to what she personally knew, and not
to testify about what Lynch or the doctor had told her. Batey
testified that there was a definite change in [Lynch] after the
assault. She stated that he had gone to the hospital several
times, was in the hospital four days, and the doctors had run all
kinds of tests. She said that the tests were inconclusive but
that they were based upon head injuries. She stated that Lynch
would sit at home, cry, and just kind of space out.
Stocks attorney again objected. Although she initially
asked for a mistrial, she ultimately asked for either a mistrial
or the opportunity to cross-examine Batey about Lynchs lifestyle
to provide an alternative explanation for his post-assault
behavior. She also asked for discovery of Lynchs medical
records. Judge Smith allowed Stocks attorney to cross-examine
Batey about the limits of Bateys knowledge of Lynchs injuries and
her knowledge of his severe alcoholism as an explanation for his
post-assault symptoms. Judge Smith told Stocks attorney that she
could subpoena the hospital records and that he would allow her
to further develop explanations for Lynchs post-assault behavior
based on those records.
On appeal, Stock argues that Bateys testimony
introduced an entirely new theory of assault in the first degree.
One of the elements that the State had to prove to convict Stock
of assault in the first degree was that Stock caused serious
physical injury to Lynch. By statute, there are two ways to show
serious physical injury. First, the State could show that Stock
caused physical injury to Lynch by an act performed under
circumstances that create[d] a substantial risk of death.61
Second, the State could show that Stock had inflicted physical
injury to Lynch that caused serious and protracted impairment of
health.62 Stock argues that the State had only asserted the first
theory of serious physical injury physical injury caused by an
act performed under circumstances that create[d] a substantial
risk of death. Stock argues that Bateys testimony interjected
the second theory of serious physical injury into the case that
Lynch suffered protracted impairment of [his] health. He argues
that he was prejudiced.
But Stock never objected to Bateys testimony on this
ground. And he never objected to the jury instructions that
allowed the jurors to consider both theories of serious physical
injury. He therefore did not preserve this issue for appeal, and
we do not find plain error.
There remains Stocks objection that Judge Smith abused
his discretion in allowing Batey to testify about Lynchs post-
assault injuries. But, as we have previously set out, the only
remedy Stocks attorney ultimately asked for was to cross-examine
Batey about Lynchs unhealthy lifestyle to provide an alternate
explanation for his post-assault symptoms. Judge Smith allowed
this cross-examination and left open the possibility that Stock
could present other evidence if Lynchs medical records supported
additional cross-examination. Stock never asked for additional
cross-examination. We accordingly conclude that Stock did not
preserve this issue for appeal. We do not find plain error. It
appears that Stock may well have had a tactical reason for
bringing out Lynchs unhealthy lifestyle and alcoholism to suggest
alternative explanations for how he was injured and the extent of
his injuries.
Conclusion
We conclude that Judge Smith did not err in allowing
the State to introduce Stocks statements into evidence. The
State did not violate Stocks Miranda rights in obtaining the
statements. We also conclude that Judge Smith did not commit
plain error in allowing Lynchs mother to testify about her sons
post-assault behavior.
The judgment of the superior court is AFFIRMED.
_______________________________
1 AS 11.41.200(a)(1), (b).
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966).
3 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975).
4 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985).
5 Brown, 422 U.S. at 603-04, 95 S. Ct. at 2261-62.
6 Elstad, 470 U.S. at 300, 105 S. Ct. at 1288.
7 Halberg v. State, 903 P.2d 1090, 1099 (Alaska App. 1995).
8 See id.
9 See id. at 1093.
10 See Munson v. State, 123 P.3d 1042, 1046-49 (Alaska 2005)
(holding that a suspects statement, Well, Im done talkin then,
was an unequivocal invocation of his right to silence).
11 Elstad, 470 U.S. at 314 n.3, 105 S. Ct. at 1296 n.3.
12 423 U.S. 96, 104, 96 S. Ct. 321, 326, 46 L. Ed. 2d 313
(1975).
13 Miranda, 384 U.S. at 473-74, 86 S. Ct. at 1627.
14 Mosely, 423 U.S. at 101-02, 96 S. Ct. at 325-26.
15 Id. at 102-04, 96 S. Ct. at 326.
16 Id. at 103-04, 96 S. Ct. at 326 (internal citations
omitted).
17 Id. at 104, 96 S. Ct. at 326-27.
18 Id. at 104, 96 S. Ct. at 327.
19 Id. at 97-98, 96 S. Ct. at 323-24.
20 Id. at 106, 96 S. Ct. at 327.
21 Id. at 107, 96 S. Ct. at 328.
22 United States v. Rambo, 365 F.3d 906, 911 (10th Cir. 2004)
(quoting United States v. Glover, 104 F.3d 1570, 1580 (10th Cir.
1997)). Accord United States v. Alexander, 447 F.3d 1290, 1294
(10th Cir. 2006).
23 Robinson v. Attorney General of State of Kansas, 28
Fed.Appx. 849, 853, 2001 WL 1515841 at *3-4 (10th Cir. Nov. 29,
2001).
24 See, e.g., Weeks v. Angelone, 176 F.3d 249, 267-68 (4th
Cir. 1999); Kelly v. Lynaugh, 862 F.2d 1126, 1130 (5th Cir.
1988); State v. Murphy, 467 S.E.2d 428, 435 (N.C. 1996).
25 Angelone, 176 F.3d at 268 (quoting Mosley, 423 U.S. at
104, 96 S. Ct. at 326-27) (other citations and internal quotation
marks omitted). Accord Dewey v. State, 169 P.3d 1149, 1154 (Nev.
2007) (holding that the Mosley factors are not inflexible
constraints but instead are relevant factors to be considered in
determining if the police scrupulously honored the defendants
right to remain silent (citing United States v. Hsu, 852 F.2d
407, 410 (9th Cir. 1988))).
26 511 A.2d 80 (N.J. 1986).
27 Id. at 83.
28 Id.
29 Id.
30 Id. at 84.
31 Id. at 85.
32 Id. at 88.
33 852 F.2d 407 (9th Cir. 1988).
34 Id. at 409.
35 Id.
36 Id. at 411.
37 Id. at 409.
38 Id. at 412.
39 Id. at 411.
40 Id. (quoting United States v. Heldt, 745 F.2d 1275, 1278
n.5 (9th Cir. 1984)).
41 Id.
42 467 S.E.2d 428 (N.C. 1996).
43 Id. at 433.
44 Id.
45 Id.
46 Id.
47 Id. at 435.
48 Id.
49 176 F.3d 249 (4th Cir. 1999).
50 Id. at 267.
51 Id.
52 Id. at 267-68.
53 Id. at 268 (alteration in original) (quoting Mosley, 423
U.S. at 105-06, 96 S. Ct. at 327).
54 Id.
55 Id. (citations omitted).
56 Id. at 269.
57 Id.
58 Id. (citations omitted).
59 Id.
60 See, e.g., Marino v. State, 934 P.2d 1321, 1327 (Alaska
App. 1997) (finding that a defendant cannot raise an issue on
appeal if he chose to proceed at trial without seeking a ruling
on the merits of his motion on that issue); Erickson v. State,
824 P.2d 725, 733 (Alaska App. 1991) ([I]n order to properly
preserve this issue for appeal, it was [the defendants] duty to
insist that the trial court rule on his motion.).
61 AS 11.41.200(a)(1) and AS 11.81.900(b)(56)(A).
62 AS 11.41.200(a)(1) and AS 11.81.900(b)(56)(B).
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