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NOTICE
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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
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| BYRON M. KALMAKOFF, | ) |
| ) Court of Appeals No. A-9700 | |
| Appellant, | ) Trial Court No. 3NA-03-086 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2207 January 16, 2009 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Naknek, Fred J. Torrisi,
Judge.
Appearances: Margi A. Mock (opening brief)
and Josie Garton (reply brief), Assistant
Public Defenders, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Nancy R. Simel, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, Mannheimer,
Judge, and Stewart, Senior Court of Appeals
Judge.*
[Bolger, Judge, not participating.]
MANNHEIMER, Judge.
Byron M. Kalmakoff was convicted of raping and
murdering a young woman in Pilot Point. At his trial, the State
relied on statements that Kalmakoff made to the state troopers
who came to Pilot Point to investigate the homicide. In this
appeal, Kalmakoff argues that the statements introduced at his
trial were the tainted fruit of violations of Kalmakoffs Miranda
rights.2 For the reasons explained here, we conclude that even
though the troopers may have violated Kalmakoffs Miranda rights,
the major portion of the challenged evidence was not tainted by
these Miranda violations and was properly admitted at trial. We
therefore affirm Kalmakoffs convictions.
Underlying facts Kalmakoffs first interview with the
troopers
On the afternoon of February 10, 2002, the
naked body of a young woman, B.K., was found near the
airport in Pilot Point, a small village on the Alaska
Peninsula. B.K. had two gunshot wounds to her head. A
later autopsy indicated that someone had engaged in
vaginal and anal intercourse with B.K. near the time of
her death.
Following B.K.s disappearance, the village
public safety officer, VPSO Molly Etuckmelra, summoned
the state troopers. Troopers John Shane Stephenson and
Peter Mlynarik were dispatched to Pilot Point to
investigate. By the time they arrived, B.K.s body had
been discovered.
B.K. had last been seen alive the evening
before, at a party at the house of Rick Reynolds. At
the request of the troopers, VPSO Etuckmelra and the
city manager contacted everyone who attended this party
and asked them to come to the city office building to
be interviewed. One of these people was fifteen-year-
old Byron Kalmakoff.
The troopers conducted all of their
interviews in the meeting room of the city office
building a large room (approximately 20 by 32 feet)
that was well-lit, with several windows and two or
three doors. Several collapsible tables were set up in
this meeting room, and the two troopers conducted their
interviews at one of these tables.
Late in the morning of February 12, 2002,
acting at the direction of Trooper Stephenson, VPSO
Etuckmelra drove to the Pilot Point school and, after
alerting the principal, she picked up three teenage
boys Leon Neketa, Aaron Kalmakoff, and Byron Kalmakoff
and transported them to the city office building in her
patrol vehicle.
Etuckmelra testified that, before she
transported Byron Kalmakoff from the school, she
telephoned Byrons grandmother (and adoptive mother),
Martha Kalmakoff. According to Etuckmelra, she told
Martha Kalmakoff that the troopers wanted to talk to
Byron, and Martha said that this was okay.
But at the evidentiary hearing in the
superior court, Martha Kalmakoff testified to a
different version of events. According to Martha, VPSO
Etuckmelra never contacted her, and she had no idea
that Byron was being interviewed by the state troopers
until the mid-afternoon (after the interview was
underway), when she received a telephone call from her
daughter, Jackie Kalmakoff, who worked in the Pilot
Point community center (the building next to the city
office building). Marthas version of events was
corroborated by the testimony of her daughter Jackie.
The superior court never resolved this
conflict in the testimony.
The troopers interview with Kalmakoff began
at 1:35 p.m. on February 12th, and it lasted
approximately one and a half hours. During this first
interview, the troopers asked Kalmakoff to describe his
whereabouts and activities on the night of the
homicide.
Kalmakoff told the troopers that he attended
a dance early in the evening, and that he drank a
little whiskey there. Later, Kalmakoff and his friend
Aaron Kalmakoff (the brother of the victim) went to the
party at Rick Reynoldss house. Kalmakoff admitted that
he drank some more liquor at the party.
Kalmakoff told the troopers that he and Aaron
left the party around 2:00 a.m. and went to Aarons
house. Then, somewhere between 3:00 and 4:00 a.m.,
they left the house to check on Aarons sister, B.K..
The two boys first went to the home of Kalmakoffs aunt,
Jackie Kalmakoff, but B.K. was not there. Jackie told
them that B.K. had gone back to Rick Reynoldss house,
so the boys went there.
When the boys entered Reynoldss house, the
party had wound down and the house was quiet. They
went upstairs and found B.K. lying on a couch,
unconscious. Kalmakoff tried to wake her up, but
initially she could not be roused. Then, when B.K.
finally woke up, she needed to use the bathroom, so
Kalmakoff went downstairs. Kalmakoff told the troopers
that, a little later, B.K. got mad at the two boys and
told them to leave the house so they left.
At this point, however, the interview moved
in a new direction. Kalmakoff admitted that, while he
was downstairs in Reynoldss house, he went snooping and
found a pistol. He picked up the pistol and took it
outside. Kalmakoff also told the troopers that he
picked up a box of ammunition for the pistol although
he repeatedly and consistently claimed that this
ammunition consisted of blanks rather than bullets.
Kalmakoff declared that he and Aaron took the
pistol back to Aarons house, where they proceeded to
fire it several times (using blanks). Then they
returned the pistol to Reynoldss house and put it back
where they had found it. Kalmakoff claimed that he
later threw away the extra ammunition and the expended
blanks (i.e., the casings) in the trash.
In response to the troopers follow-up
questions, Kalmakoff denied that either he or Aaron had
fired the pistol at Reynoldss house. Kalmakoff also
denied that he ever used the pistol to scare B.K.. And
when Trooper Stephenson openly suggested that Kalmakoff
had killed B.K., Kalmakoff immediately responded that
he did not kill her, and that he did not know who did.
Shortly after this conversation, Kalmakoff
left the room (apparently, to use the bathroom or get a
drink). During this interlude, despite Kalmakoffs
protestations of innocence, Stephenson told Mlynarik, I
think were hot on the trail now.
The troopers turned the tape recorder back on
at 2:20 p.m.. At this point, the interview had been
going on for 45 minutes (that is, since 1:35 p.m.).
When Kalmakoff asked the troopers, How much more time
[are] we gonna be here?, Stephenson replied, a little
bit [more].
The troopers asked Kalmakoff more questions
about the pistol. Kalmakoff told them that he and
Aaron each fired the pistol a half dozen times. When
they got done firing the pistol, Aaron was the one who
returned the pistol to Reynoldss house, and Kalmakoff
was the one who threw the spent casings into the trash.
A few minutes later, the troopers asked to
examine Kalmakoffs upper body (without his shirt), and
they also asked Kalmakoff to show them the bottoms of
his shoes. The troopers were interested in examining
Kalmakoffs shoes (indeed, the shoes of everyone they
interviewed) because they had found a distinctive shoe
print at the crime scene. When Kalmakoff showed the
troopers the bottom of his shoe, the troopers could see
that the pattern on the sole of the shoe closely
resembled the shoe print found at the crime scene.
(Later, when they were walking around the village with
Kalmakoff, the troopers confirmed that the tracks left
in the snow by Kalmakoffs shoes were a close match to
the shoe print found at the crime scene.)
Just after Kalmakoff displayed his upper body
and the bottoms of his shoes to the troopers, the
troopers asked Kalmakoff to lead them through the
village to view the places that Kalmakoff had been
describing during the interview.
At the conclusion of this tour, Kalmakoff
asked the troopers, Do I have to go back [to the city
office building] again? Stephenson replied, Yeah, were
not even done. ...
A little later, after they returned to the
city office building, Stephenson seized Kalmakoffs four-
wheeler, his shoes, and his coat and gloves as
evidence. Stephenson also told Kalmakoff and his
grandmother, Martha Kalmakoff, that he did not want
Kalmakoff to go back to Marthas house or to his mothers
house (i.e., Ruby Moores house) until the troopers give
him permission which, according to Stephenson, would
be sometime that evening.
(The troopers wanted to keep Kalmakoff out of
those places until they could get search warrants to
examine the clothing and other physical evidence at
these two homes.)
The first interview ended at this point.
According to Martha Kalmakoffs later testimony at the
evidentiary hearing, she and her daughter Jackie took
Kalmakoff to the community hall because the troopers
had said that they did not want him returning to either
Marthas home or his mothers home. They waited in the
community hall until late in the evening. Finally, a
trooper came by and spoke to Jackie; he told her that
it was now okay for them to go home.
Underlying facts Kalmakoffs second interview with the
troopers
The following day (February 13, 2002), the
troopers again asked Kalmakoff to leave school and talk
to them at the city office building. This second
interview began at 11:30 a.m. and lasted forty minutes.
This time, the interview was conducted by
Trooper Stephenson and Trooper Craig Allen. At the
beginning of the interview, Trooper Allen assured
Kalmakoff that he was free to leave any time he wished.
However, when Kalmakoff immediately announced that he
did not want to talk to the troopers, the troopers
refused to let him go, and they continued to
interrogate him:
Allen: You dont have to sit here and
talk with us, okay? You can ... go back to
school whenever you want. You understand
that?
Kalmakoff: Yeah.
Allen: The reason we [are] tell[ing]
you that is so that you know that ... when
youre finished talking to us, you just let us
know and get up and ... go; well get you back
to school. Okay?
Kalmakoff: I [can] go back right now if
I want to?
Allen: Yeah, [you] sure can. Okay? Is
that what you want to do? Or do you want to
talk with us a little bit, so I can
understand whats going on?
Kalmakoff: I feel like going back [to
school].
Allen: Yeah. Okay. Is is there any
reason you dont want to talk to [us] about
stuff ... that Im going to ask you about?
Kalmakoff: I cant barely remember
anything.
Allen: Cant barely remember anything?
Kalmakoff: Sometimes I black out.
Allen: Maybe if we talk a little bit,
maybe I could help you remember some stuff.
Kalmakoff: I dont know. [Im] sort of
scared.
Allen: Yeah? What are you scared
about, Byron?
Kalmakoff: That I did it.
Allen: You dont just wake up [one] day
... and wonder[,] Did you do it? ... You
might have some things ... that you can
really remember, [or things] that you saw the
next day to make you think ... that. Right?
And you probably have some of those ideas.
You want to share those with me? ... And
maybe ... well understand why this happened,
okay? ... Wouldnt you like to be able to go
to bed tonight knowing why something like
this happened, rather than [it] just being
something ... that youll never have an answer
to?
Kalmakoff: Yes.
. . .
Allen: Where do you want to start? You
want to start with what happened to [B.K.]?
Kalmakoff: [I] cant really remember.
Allen: [You] cant really remember, but
... youve thought about it since then, havent
you? I mean, you might not remember every
little detail, but you ... can talk with me
about what happened, [about] what you can
remember, cant you?
Kalmakoff: Can I just go back to
school?
Allen: You can go back to school any
time you want. Weve told you that. ...
Thats entirely up to you.
Kalmakoff: I just want to go back now.
Allen: Okay.
Kalmakoff: Im gonna go home and talk to
my grandma. (Pause) Can I go back now?
Allen: Beg pardon?
Kalmakoff: Can we go back there?
Allen: You can go back there any time
you want. Its up to you.
Kalmakoff: All right.
Stephenson: Um, actually, ... Byron,
um, Im going to have to ask you to stay here
... and talk with me, okay? Theres some
things that I just absolutely have to know.
At this point, Trooper Stephenson
advised Kalmakoff of his Miranda rights.
Following this advisement, Stephenson asked
Kalmakoff if he wanted to waive his rights
and talk to the troopers. Kalmakoff shook
his head no.
Immediately following Kalmakoffs
non-verbal statement that he did not wish to
talk to the troopers, Trooper Allen re-
entered the conversation and told Kalmakoff
that, because he was 15 years old, he had the
choice of whether to have a parent or
guardian sit in on the interview. When
Kalmakoff replied, Do I have to stay here?,
Allen told him, Yeah, were going to have you
stay here for a little while, Byron.
Stephenson then added, So you can either talk
to us [alone], or you can have your mom or
your grandma come down and be with you.
The troopers then suggested that
Kalmakoff could listen to them describe what
they had learned from their investigation so
far, and that perhaps (after hearing this)
Kalmakoff would want to make some comments.
In response to this tactic,
Kalmakoff made one self-incriminating
admission: he admitted to drinking about
half a pint of whiskey on the evening of the
homicide. But almost immediately afterward,
he again told the troopers, I dont really
feel like answering questions.
At this point, the troopers finally
honored Kalmakoffs invocation of his right to
silence; they stopped interrogating him.
However, the troopers told Kalmakoff that
they had some other stuff that [they]
need[ed] to do. They then proceeded to serve
a search warrant that authorized them to
photograph Kalmakoff without his clothes on,
to take hair samples from his head, arm, leg,
and pubic area, and to take swabs from his
penis and the inside of his mouth.
After taking these photographs and
body samples, the troopers told Kalmakoff
that they remained very interested in
understanding what had happened to B.K..
They suggested that sometimes, bad things
happen ... because things just get out of
control, and they encouraged Kalmakoff to
contact them later if [at] any time [he]
change[d] [his] mind and want[ed] to get it
off [his] chest. The troopers then allowed
Kalmakoff to return to school.
This second interview ended at
12:10 p.m..
Underlying facts Kalmakoffs third interview with the
troopers
About three and a half hours later (at 3:35
p.m. on the afternoon of February 13, 2002),
Troopers Stephenson and Allen visited Kalmakoffs
home the residence of his grandparents (and
adoptive parents), Micarlo and Martha Kalmakoff.
School was over for the day, so both Kalmakoff and
his two grandparents were home.
The troopers told Kalmakoff and his
grandparents that they wanted to interview
Kalmakoff one more time:
Stephenson: [We] just thought wed all
get together and ... talk [for] a few
minutes, and see if we cant get this thing
taken care of, and get on with life. So we
wanted to stop in and ... [we] thought your
grandma and grandpa could be in on this,
okay?
. . .
Allen: Because, you know, ... theres
some things that you mightve told us already
that [your grandparents] might not even know
about. You think that would be fair, you
think? And were not doing this to embarrass
you, or anything like that, with your
grandparents. Eventually, all the
information is going to be available, okay?
Kalmakoff: You want me to
(indiscernible).
Allen: So, would you like to start off,
so that you can bring your grandparents up to
speed on everything that youve talked to us
about already?
Stephenson: Byron, I just want to
remind you that what I read to you earlier
still applies. But ... like I said, were
hoping we can just get everything out in the
open, [so] we can get on an airplane, head
back to town.
Allen: Its your choice, but you know,
if you want to talk to us about this in front
of your grandparents or not, thats entirely
your choice.
Kalmakoff: Yeah. I dont know where to
start from, though.
Allen: Well, let me you know, ... you
could Did you talk with Trooper Stephenson
about ... a gun?
Kalmakoff: Yeah.
Allen: [Do] your grandparents know
about that?
Kalmakoff: (Indiscernible) about
(indiscernible).
Micarlo Kalmakoff: Yeah, hes told me a
little bit about that yesterday.
Allen: Okay.
Stephenson: Okay, why dont we start
there. Thats ... a good point [to start].
Um, you told me yesterday that you and Aaron
went down [to Rick Reynoldss house] to check
on [B.K.], and you ... were snooping a little
bit [and] found a pistol. Is that correct?
Kalmakoff: Yeah.
Stephenson: Okay. Why dont we just go
from there: what you guys did while you were
in the basement snooping around, and then
well just go from there. You tell me in your
own words what you told me yesterday, and
well fill in the blanks ... .
The troopers proceeded with the
interview, and Kalmakoff made statements that
were more and more self-incriminatory. He
never expressed a desire to stop, or even a
reluctance to continue answering questions.
By the time this third interview
ended, Kalmakoff admitted that he and B.K.
got into an argument at Reynoldss house she
was criticizing him for being drunk and
that, during this argument, Kalmakoff
accidentally shot her. Kalmakoff also
admitted that he carried B.K.s body outside
and placed it in some bushes.
The interview ended a few minutes
later, at 4:00 p.m.. All told, this third
interview lasted less than 25 minutes.
Despite Kalmakoffs admission that he killed
B.K., the troopers did not take him into
custody; they left him at home.
Underlying facts Kalmakoffs fourth interview with the
troopers
The following afternoon (at 12:55 p.m. on
February 14, 2002), the troopers went to the Pilot
Point school to take Kalmakoff into custody and
fly him to the McLaughlin Youth Center in
Anchorage.
When the troopers picked up Kalmakoff from
school, they asked him if he would ride around
with them and talk with [them] about what
happened. Kalmakoff agreed, and he left the
school with the troopers. The troopers then
informed Kalmakoff that he would have to go to
Anchorage with them, and that he would have to
stay in Anchorage for at least a few days.
Kalmakoff asked the troopers if they had told
anyone else in the village about the things that
Kalmakoff had told them the day before. Kalmakoff
also repeatedly declared that he didnt do it on
purpose and he insisted that, if the troopers did
tell other people in the village about what
Kalmakoff had done, they clarify that [he] didnt
do it on purpose. Kalmakoff also told the
troopers, Its that dang booze.
At this point, Trooper Allen advised
Kalmakoff of his Miranda rights, as well as his
right to have a parent or guardian present.
Kalmakoff waived his rights.
The troopers then commenced the fourth
interview with Kalmakoff. This interview lasted
approximately 45-50 minutes. During this
interview, Kalmakoff described shooting B.K.,
transporting her body on his four-wheeler, and
then disrobing B.K. and having sex with her. The
main portion of this interview ended at 1:50 p.m..
The superior courts ruling
Following Kalmakoffs indictment, he asked the
superior court to suppress all four statements that he
gave to the state troopers.
With respect to the first interview at the
city office building, Kalmakoff argued that he was in
custody for Miranda purposes, and that the troopers
failed to advise him of his Miranda rights.
With respect to the second interview at the
city office building, Kalmakoff argued that he was
again in custody for Miranda purposes, that the
troopers at first failed to advise him of his rights,
and that the troopers later advised him of his rights
but then failed to honor his invocation of his right to
silence.
With respect to the interview at his (and his
grandparents) home, Kalmakoff argued that this
interview was, in essence, an extension of the second
interview, and that even though the troopers reminded
him of his Miranda rights, his statements at this third
interview were tainted by the previous Miranda
violations in particular, by the troopers flagrant
failure to honor his invocation of his right to remain
silent at the second interview.
Finally, with respect to the fourth interview
(the one that took place on the day of Kalmakoffs
arrest), Kalmakoff conceded that he was advised of his
Miranda rights and that he told the troopers that he
wished to waive those rights, but Kalmakoff argued that
his waiver and his ensuing statements to the troopers
were tainted by the earlier Miranda violations. Based
on the troopers earlier failure to honor his rights,
Kalmakoff contended that he did not truly understand
that he could not be compelled to answer the troopers
questions. Kalmakoff further contended that, when the
troopers discussed his juvenile status, they
effectively misled him concerning the consequences of
any self-incriminatory statements.
Superior Court Judge Fred J. Torrisi granted
Kalmakoffs suppression motion in part.
The judge ruled that Kalmakoff was not in
custody when the first interview began. However, the
judge concluded that the situation altered
significantly when the troopers took a break, Kalmakoff
left the interview room, and Trooper Stephenson
remarked to his partner that they were hot on the
trail. At that point, Judge Torrisi concluded, the
interview became custodial and therefore, because
Kalmakoff did not receive Miranda warnings, his post-
break statements had to be suppressed.
Judge Torrisi also concluded that Kalmakoff
was in custody throughout the second interview.
Accordingly, the judge suppressed all of the statements
that Kalmakoff made before the troopers administered
the Miranda warnings. The judge also suppressed all of
the statements that Kalmakoff made after he received
the Miranda warnings because the troopers failed to
honor Kalmakoffs assertion of his right to silence.
However, Judge Torrisi concluded that these
Miranda violations did not taint the third and fourth
interviews i.e., the interview at Kalmakoffs house on
the afternoon of February 13, 2002 and the interview
that took place the next day when the troopers went to
the village school to take Kalmakoff into custody.
Judge Torrisi noted that, even though the
second interview at the city office building was
custodial in its entirety, Kalmakoff was released at
the conclusion of that interview. The third interview
began three and a half hours later, and Kalmakoff
remained out of custody during that entire interval.
And, on the issue of whether the troopers violation of
Miranda at the second interview tainted the third
interview, Judge Torrisi declared that the troopers
violation of Miranda at the second interview was not
flagrant.
Judge Torrisi further concluded that the
third interview was non-custodial. The judge noted (1)
that the interview took place in the home shared by
Kalmakoff and his grandparents, (2) that Kalmakoff was
at liberty for several hours before the interview, thus
giving him the opportunity to consult his grandparents,
and (3) that the interview occurred in the presence of
his grandparents.
In addition, Judge Torrisi noted that even
though the troopers did not formally repeat the Miranda
warnings at this third interview, they did at least
remind [Kalmakoff] of his rights. For these reasons
i.e., the fact that the interview was non-custodial,
and the fact that Kalmakoff was reminded of his rights
Judge Torrisi concluded that the third interview was
not tainted by the earlier Miranda violations.
With respect to the fourth interview, Judge
Torrisi concluded that Kalmakoffs statements to the
troopers were fully admissible. The judge noted that
the troopers formally advised Kalmakoff of his rights
at the beginning of this interview, and that Kalmakoff
(for the first time) explicitly waived those rights and
consented to talk to the troopers about the homicide.
Regarding Kalmakoffs argument that he did not
fully understand his rights, Judge Torrisi noted that
it was not uncommon for a suspect to ask for
clarification of his rights, and the judge noted that
the troopers statements and responses to Kalmakoff were
[not] overbearing or coercive.
The issues raised on appeal
As just explained, Judge Torrisi suppressed
the latter portion of the first interview (the
interview that took place at the city office building
on February 12, 2002) and the entirety of the second
interview (the interview that took place at the city
office building the following day, February 13, 2002)
on the grounds that the troopers violated Kalmakoffs
Miranda rights by failing to administer Miranda
warnings at the first interview, and by failing to
honor Kalmakoffs invocation of the right to silence at
the second interview. In this appeal, Kalmakoff argues
that Judge Torrisis ruling did not go far enough.
Kalmakoff contends that he was in custody
(for Miranda purposes) throughout the first interview,
and that, as a consequence, the entirety of that first
interview should have been suppressed. Kalmakoff
further contends that the troopers used his statements
during that first interview as investigative ammunition
during the third and fourth interviews, and that the
statements he gave during those latter two interviews
are therefore the tainted fruit of the first interview.
Alternatively, Kalmakoff argues that even if
Judge Torrisi was correct about the first interview
that is, even if Kalmakoff was not in custody during
the initial portion of that first interview, so that
the statements he made during that first portion were
properly admissible against him the third and fourth
interviews were nevertheless tainted by the Miranda
violations that occurred during the second half of the
first interview and at the second interview.
Kalmakoff argues that even though the third
interview took place at his home, he was in custody for
Miranda purposes during that interview, owing to the
coercive effects of the earlier Miranda violations at
his first and second interviews.
Kalmakoff further argues that even though he
received full Miranda warnings, and explicitly waived
his rights before the fourth interview (the one that
took place when the troopers came to the Pilot Point
school on February 14, 2002 to arrest him and take him
to Anchorage), that fourth interview was tainted by the
Miranda violations at the first, second, and third
interviews.
Was Kalmakoff in custody for Miranda purposes from the
beginning of the first interview?
As explained above, when the troopers arrived
in Pilot Point to investigate the homicide, they asked
local officials to contact everyone who had attended
the party at Rick Reynoldss house, and to have these
people come to the city office building to be
interviewed. Acting on the troopers request, VPSO
Etuckmelra went to the Pilot Point school to get three
boys: Leon Neketa, Aaron Kalmakoff, and Byron
Kalmakoff. Etuckmelra notified the school principal
that the boys would be leaving class, and (as later
found by Judge Torrisi) she told Kalmakoff that the
troopers needed some information from him. Etuckmelra
then transported the three boys to the city office
building in her patrol vehicle.
As we also explained, there is an unresolved
conflict in the testimony as to whether Etuckmelra
notified Byron Kalmakoffs grandmother and guardian,
Martha Kalmakoff, about what was happening. According
to Etuckmelras testimony, she telephoned Martha
Kalmakoff and told her that she was taking Byron to the
city office building to be interviewed to which Martha
responded that this was fine. But according to the
testimony of Martha Kalmakoff and her daughter, Jackie
Kalmakoff (Byron Kalmakoffs aunt), Etuckmelra did not
notify Martha about the interview and Martha did not
find out that Byron was being interviewed by the
troopers until the interview was underway, when Jackie
called her.
In his written decision, Judge Torrisi noted
this conflict in the testimony but he did not resolve
it.
In his briefs to this Court, Kalmakoff argues
that this first interview was custodial from its
inception. Kalmakoff notes that students are not free
to leave school on their own. From this, he concludes
that a reasonable person in his position would have
believed that he was not free to refuse Etuckmelras
request to accompany her to the city office building,
nor free to leave the city office building until
Etuckmelra or the troopers told him that he was free to
go.
For its part, the State notes that Judge
Torrisi found that Kalmakoff didnt express any
reluctance to accompany Etuckmelra, and that
Etuckmelras act of transporting the boys in her truck
could easily be explained in terms of efficiency and
comfort, rather than a desire to isolate or intimidate
the boys. The State also notes that, after Kalmakoff
arrived at the city office building, he apparently
waited for some time in the outer hallway, with other
Pilot Point residents, while the troopers were
interviewing other people. And the State notes that,
during a bathroom break, Kalmakoff went through the
outer lobby, saw his grandmother sitting there, and
merely smiled at her and continued walking in other
words, Kalmakoff had access to his grandmother, but did
not attempt to talk to her about his situation, or to
seek her help or advice.
Although both Kalmakoff and the State have
done an admirable job of assembling and arguing the
facts of the case in light of their respective
positions, neither Kalmakoff nor the State has provided
this Court with case law addressing the primary
underlying legal issue: whether, and how, an
adolescents status as a secondary school student
affects the assessment of whether a police interview is
custodial for purposes of Miranda when the adolescent
is summoned from class to be interviewed.
There are, in fact, many appellate court
decisions dealing with this issue. Although these
decisions reach differing conclusions regarding whether
a particular juvenile was in Miranda custody, depending
on the facts of each case, they are virtually unanimous
in recognizing that a directive or request for a
secondary school student to leave class for the purpose
of being questioned by a police officer can result in a
custodial interrogation for Miranda purposes. The
factors that courts consider are: (1) the age and
sophistication of the student, (2) whether the student
was told that they were free to leave or to break off
the questioning if they wished, and (3) whether the
student was given the opportunity to consult or obtain
the presence of a parent or guardian.
Two of the major cases in this area were
decided by the Oregon Court of Appeals: State ex rel.
Juvenile Department of Lane County v. Killitz, 651 P.2d
1382 (Or. App. 1982), and State ex rel. Juvenile
Department of Multnomah County v. Loredo, 865 P.2d 1312
(Or. App. 1993).
In Killitz, a junior high student was
summoned to the principals office, where he was
interviewed by a uniformed, armed police officer in the
principals presence. The court concluded that the
student was in custody during this interview because
(1) the student would have been subject to disciplinary
measures if he had not come to the office when told to
do so, (2) the student was never told by either the
officer or the principal that he was free to leave the
office, and (3) the student was being interviewed as a
suspect rather than a witness. As a result, the court
concluded that the interrogation was custodial.
Killitz, 651 P.2d at 1383-84.
In Loredo, a thirteen-year-old student was
summoned to the principals office where he was
interviewed by a police officer in plain clothes.
However, in contrast to the situation in Killitz, the
officer immediately informed the student that he was
not under arrest, that he could leave if he wanted to,
and that he did not have to answer any of the officers
questions. Loredo, 865 P.2d at 1313-1314. The court
concluded that the student was not in custody for
purposes of Miranda but the court made the following
observation:
[Because] the school setting is more
constraining than other environments, it is
especially important that police interviews
with children, when carried out in that
setting, are conducted with due appreciation
of the age and [level of] sophistication of
the particular child. An interview that would
not be compelling for an adult might
nonetheless frighten a child into believing
that he or she was required to answer an
officers questions. Accordingly, special pre
cautions should be taken to ensure that
children understand that they are not
required to stay or answer questions asked of
them by a police officer.
Id. at 1315. Accord, State v. Budke, 372
N.W.2d 799, 801 (Minn. App. 1985) (holding
that an eighteen-year-old suspect who was
summoned to a police interview in the
principals office was not in custody because
he was informed by the interrogating officer
that he was free to leave the principals
office at any time).
The Oregon decision in Killitz is
representative of the approach followed by
many courts when they assess whether an
interview is custodial for Miranda purposes
when a student is compelled by school
authorities to leave their normal classroom
setting to speak with the police in a private
location.
See In re Welfare of R.J.E., 642
N.W.2d 708, 709-710 (Minn. 2002), where the
court affirmed the suppression of a
confession made by a high school student who
was interrogated in the school office by a
uniformed police officer acting as a school
liaison officer. The officer did not give
Miranda warnings to the student, did not
inform the student that he could decline to
answer questions, did not inform the student
that he was free to leave if he wished, and
did not inform the student that he could have
a parent present during the interview.
See also In re Welfare of G.S.P.,
610 N.W.2d 651, 657-58 (Minn. App. 2000),
where the court suppressed the statements
made by a twelve-year-old middle school
student with no prior criminal justice
experience who was summoned to the principals
office and subjected to interrogation by the
principal and a police officer. The student
was not told that he was free to leave; in
fact, the student was told that he had to
answer the questions. The court held that
the student was in custody for Miranda
purposes and that the students statements
had to be suppressed because he did not
receive Miranda warnings.
See also State v. D.R., 930 P.2d
350, 353 (Wash. App. 1997), where the court
suppressed the statements made by a
fourteen-year-old boy who was interrogated by
a police officer in the presence of the
assistant principal and a school social
worker. The interview took place in the
assistant principals office. The boy was told
that he did not have to answer questions, but
he was not otherwise given Miranda warnings.
The court declared that the pertinent inquiry
was whether a fourteen-year-old in the
students position would have reasonably
supposed his freedom of action was curtailed.
The court concluded that the student was in
custody during his interview, based on the
police officers failure to inform him that he
was free to leave, the students youth, the
fact that the principals office was a
coercive environment for a child his age, and
the accusatory nature of the interrogation.
See also State v. Doe, 948 P.2d
166, 172-74 (Idaho App. 1997). In Doe, a ten-
year-old boy was directed to leave his
fifth-grade classroom and report to the
faculty room, where he had been disciplined
previously. There, he was interrogated by a
police officer assigned to the school. The
boy was not informed, either by school
officials or by the officer who interrogated
him, that he did not have to answer the
officers questions or that he could terminate
the questioning at any time. No parent,
guardian, or other adult was present to
protect the boys interest. And although the
boy was ultimately informed that he was free
to go, this did not occur until after the boy
confessed. The court concluded that, under
these circumstances, the boy was in custody
and was entitled to Miranda warnings:
We think it unlikely that the
environment of a principals office or a
faculty room is considered by most children
to be a familiar or comfortable setting, for
students normally report to these locations
for disciplinary reasons, as Doe had in the
past. It is also unlikely that any
ten-year-old would feel free to simply leave
the administrative area of the school after
having been summoned there by school
authorities for a police interview. We are
persuaded that under these circumstances a
child ten years of age would have reasonably
believed that his appearance at the
designated room and his submission to the
questioning was compulsory and that he was
subject to restraint which, from such a
childs perspective, was the effective
equivalent of arrest. We hold that Doe was
in custody for the purpose of Miranda and
therefore could not properly be questioned
without prior advisement of his rights.
Id. at 173-74.
See also In re I.J., 906 A.2d 249,
263-64 (D.C. App. 2006); In re Welfare of
T.J.C., 662 N.W.2d 175, 181 (Minn. App.
2003), reversed on other grounds, 667 N.W.2d
108 (Minn. 2003); In re D.A.R., 73 S.W.3d
505, 512 (Tex. App. 2002); In re L.M., 993
S.W.2d 276, 290-91 (Tex. App. 1999).
Compare In re C.S.C., 118 P.3d 970,
976 (Wyo. 2005) (holding that a high school
student was not in custody during an
interview conducted in a large school
conference room by four police officers and a
school official; the court analyzed several
factors, including the fact that the student
was told that he did not have to talk to the
officers, that he was free to leave, and that
he was not under arrest); Doe v. Bagan, 41
F.3d 571, 575 n. 3 (10th Cir. 1994) (holding
that even though a nine-year-old suspect may
not have felt free to leave, he was not in
Miranda custody when he was interviewed by
two social service workers in the school
principals office); In re J.H., 928 A.2d 643,
649-651 (D.C. App. 2007) (holding that a
student was not in custody, even though the
student was never informed that he had the
right not to answer questions or the right to
leave; the court relied on the trial courts
findings that the officer who conducted the
interview was quiet, soft-spoken, and
avuncular engaging in about as gentle an
interview as one could imagine under those
circumstances); Dillard v. State, 612 S.E.2d
804, 807-08 (Ga. App. 2005) (holding that a
high school student was not in custody, even
though the school principal summoned the
student to an interview conducted by two
police officers, and even though, at the end
of this interview, the student agreed to
accompany the officers to the police
department for further questioning; the court
noted that the school interview took only 15
minutes, that the officers manner was
conversational, that the officers never
threatened the student, that the student was
reasonably intelligent and did not appear to
be frightened, and that the student never
objected to the questioning or asked to
terminate the interview.).
See also People v. Pankhurst, 848
N.E.2d 628 (Ill. App. 2006), which discusses
the related issue of whether a student is in
custody for Miranda purposes if school
officials question the student about illegal
acts, even though this questioning might be
prompted by a police investigation. The
Pankhurst court held that such interrogations
are not custodial if (1) the school officials
are legitimately concerned about the students
potential misdeeds because of their role as
school administrators, and (2) the school
administrators are not acting merely as cats
paws for the police in situations where the
police would themselves lack authority or
justification for the investigation. Accord,
J.D. v. Commonwealth, 591 S.E.2d 721, 725
(Va. App. 2004); Interest of J.C., 591 So.2d
315-16 (Fla. App. 1991) (holding that a high
school student was not in custody when
interrogated by the school principal, even
though a police officer was present; however,
the court indicated that if the officer had
asked the questions, Miranda warnings would
have been required).
Given the case law in this area, it
is clear that the circumstances leading to
Kalmakoffs first interview with the troopers
have not been sufficiently litigated, or
clarified, to allow us to make an informed
decision as to whether Kalmakoff was in
custody (and thus entitled to Miranda
warnings) at the beginning of that interview.
We acknowledge that Kalmakoff was
relatively young at the time of the interview
(he had only recently turned fifteen), and
the transcript of the interview shows that
the troopers never told Kalmakoff that he
could decline to answer their questions, or
that he was free to leave whenever he wished,
or that he had the right to have his
grandparents (i.e., his adoptive parents)
present during the interview.
On the other hand, certain other
important circumstances surrounding this
first interview remain vague. Etuckmelras
conversation with Kalmakoff at the school was
apparently not recorded, and the superior
court made no findings on two crucial issues:
what Etuckmelra or the school principal may
have said or implied to Kalmakoff regarding
(1) whether he was required to leave school
and attend the interview at the city office
building, and (2) whether he was obliged to
answer the troopers questions if he did not
wish to. The only express finding that the
superior court made on these issues was that
Etuckmelra checked in with the [school]
principal and that she told Kalmakoff that
the troopers needed some information from
him.
For these reasons, if we believed
that the resolution of Kalmakoffs appeal
required us to reach a firm conclusion as to
whether he was in custody at the beginning of
this first interview, we would have to remand
Kalmakoffs case to the superior court for
additional findings on these issues.
However, as we are about to explain, we
conclude that the statements Kalmakoff made
at the third and fourth interviews are
admissible even if we assume that the entire
first interview should be suppressed. We
further conclude that, given the
admissibility of the third and fourth
interviews, even if it was error to introduce
Kalmakoffs statements from the first
interview at his trial, that error was
harmless.
Why we conclude that Kalmakoffs statements from the
third and fourth interviews are admissible
As explained above, Judge Torrisi suppressed
all of Kalmakoffs statements from the second interview,
and we will now assume that Kalmakoffs statements from
the first interview should likewise have been
suppressed. The next question is whether these Miranda
violations require suppression of Kalmakoffs statements
from the two ensuing interviews the third interview
(the one that took place at Kalmakoffs home in the mid-
afternoon of February 13, 2002) and the fourth
interview (the one that took place when Kalmakoff was
taken from school and arrested on the morning of
February 14, 2002).
The method for analyzing this question is set
forth in Halberg v. State, 903 P.2d 1090, 1097-1100
(Alaska App. 1995).
The defendant in Halberg was questioned by
the state troopers regarding the death of her husband.
Halberg was advised of her Miranda rights, and invoked
her rights, but the trooper who was questioning Halberg
continued to interview her in spite of her invocation
of rights. Later, Halberg was questioned a second time
by the troopers. At this second interview, she again
received Miranda warnings, and this time she explicitly
waived her rights. The question on appeal was whether
the statements obtained from Halberg at the first
interview tainted the statements obtained at the second
interview. Id. at 1092-93.
It was clear that the content of the second
interview was influenced by the statements Halberg made
at the first interview. The troopers who conducted the
second interview referred to Halbergs earlier
statements or implicitly relied on knowledge obtained
from those earlier statements. Indeed, the trial judge
in Halberg expressly found that, given the fact that
the officers at various points refer[red] back to
[Halbergs] prior answers or statements, it would be
impossible to conclude that the contents of [Halbergs]
second and subsequent statements would [have been] the
same without the first statement. Id. at 1093.
But even though the second interview could be
viewed as the fruit of the first interview, in the
sense that the troopers who conducted the second
interview either explicitly referred to statements
Halberg made at the first interview or ... relied on
knowledge obtained from Halbergs answers at the first
interview, we held that this fact, standing alone, was
not determinative of whether the statements made at the
second interview should be suppressed. Id. at 1097-98.
We explained that, even under the law as it existed
before Oregon v. Elstad,3
it [would be] error to employ [a] but for
test to analyze whether Halbergs subsequent
statements were the fruit of her first
interview. Long before Elstad, the Supreme
Court explicitly rejected a causation or but
for test as the method for judging whether a
defendants statement is the result of a prior
occurrence. Brown v. Illinois, 422 U.S.
[590,] 603, 95 S.Ct. [2254,] 2261[, 45
L.Ed.2d 416 (1975)]; Hutto v. Ross, 429 U.S.
[28,] 30, 97 S.Ct. [202,] 203-04[, 50 L.Ed.2d
194 (1976) (per curiam)].
The question is not whether the content
of the second and subsequent interviews would
have been the same if the initial interview
had not taken place. Instead, the question
is whether Halbergs decision to submit to the
second and subsequent interviews was
sufficiently an act of free will to purge the
... taint of the Miranda violation at the
first interview. Brown v. Illinois, 422 U.S.
at 602, 95 S.Ct. at 2261. Under this test,
we must concentrate on Halbergs consent to
participate in the subsequent interviews and
decide whether this consent was tainted by
the statements she made during the first
interview.
Halberg, 903 P.2d at 1097.
We then explained that, under pre-
Elstad law, courts looked to several
different factors when assessing whether
there had been a sufficient break in the
stream of events to insulate a defendants
subsequent interview from a preceding Miranda
violation. Here is our listing of these
factors:
the purpose and flagrancy of the initial
illegal act, the amount of time between the
illegal act and the defendants subsequent
statement, the defendants physical and mental
condition at the time of the subsequent
statement, whether the defendant remained in
custody or was at liberty during this
interval, whether the defendant had the
opportunity to contact legal counsel or
friends during this interval, whether the
subsequent interview took place at a
different location, whether the defendants
interrogators were the same officers who
committed the prior illegal act, whether the
evidence obtained from the prior illegal act
affected the defendants decision to submit to
a subsequent interview, whether the police
used lies or trickery to influence the
defendants decision, and whether there were
other intervening events that affected the
defendants decision.
Halberg, 903 P.2d at 1098. We also explained
that, under pre-Elstad law, the admissibility
of a subsequent interview is determined by
assessing all of these factors, with no
single factor being dispositive. Id. (citing
Brown v. Illinois, 422 U.S. at 603, 95 S.Ct.
at 2261).
We now analyze Kalmakoffs case in
light of these factors.
When assessing the purpose and
flagrancy of the Miranda violations at the
first two interviews, we must draw a
distinction between the troopers conduct at
the first interview and the troopers conduct
at the second interview.
We have assumed that there was a
Miranda violation at the first interview
because Kalmakoff was taken from school by
the village public safety officer,
transported to the interview at the city
office building, and never expressly advised
that he could refuse to participate in the
interview, or could refuse to answer
particular questions, or could insist on the
presence of a parent or guardian. But as
Judge Torrisi noted in his written decision,
the tone of this first interview was
generally polite and non-confrontational, and
Kalmakoff was not threatened, deprived,
bullied[,] or lied to.
In this first interview, Kalmakoff
admitted only two violations of the law:
under-age drinking, and temporarily stealing
a pistol and blanks so that he and his friend
Aaron could go back to Aarons house and shoot
the gun.
We acknowledge that, at one point
during this first interview, the troopers
suggested that Kalmakoff might have killed
B.K., or might have at least threatened B.K.
with the pistol, or (alternatively) that
Kalmakoff might know who killed B.K.. But
Kalmakoff immediately denied any personal
guilt and any knowledge of who was guilty
and the troopers did not make any further
accusations.
With regard to the second
interview, our analysis of this factor is
significantly different. In the second
interview, the troopers repeatedly
disregarded Kalmakoffs requests to leave the
interview requests that began at the very
beginning of the interview. Then, when the
troopers finally told Kalmakoff directly that
he was not free to leave, and when the
troopers finally advised Kalmakoff of his
Miranda rights, they failed to honor his
invocation of his right to silence. As soon
as Kalmakoff was told that he did not have to
speak to the troopers, he immediately
indicated that he did not wish to speak to
them. But instead of ending the interview,
the troopers continued to question Kalmakoff.
They implied that he did have to speak to
them, and that his only choice was whether to
be questioned alone or in the presence of his
grandparents. The troopers also demanded to
know why Kalmakoff was not willing to speak
to them, and they tried to get him to agree
to be interrogated on a question-by-question
basis.
In short, the conduct of the two
troopers during this second interview was an
egregious violation of Miranda.
Nevertheless, the troopers obtained
little information from this violation. In
response to the troopers unlawful cajoling,
Kalmakoff made only one self-incriminating
admission: that he had consumed about half a
pint of whiskey on the evening of the
homicide. Then, almost immediately
afterward, Kalmakoff again told the troopers,
I dont really feel like answering questions.
At this point, the troopers finally honored
Kalmakoffs invocation of his right to
silence, and they stopped interrogating him.
Turning to the next several factors
we note that there was a significant amount
of time approximately three and a half hours
between the second interview and the third
interview. During this interval, Kalmakoff
remained at liberty; he apparently went back
to school at the end of the second interview,
and then he went home at the end of the
school day. Because of this, Kalmakoff had
the opportunity to speak to family and
friends during the several hours preceding
the third interview.
At the third interview, Kalmakoffs
interrogators were the same two troopers
Stephenson and Allen who repeatedly violated
but then eventually honored Kalmakoffs
Miranda rights at the second interview.
However, this third interview took place at
Kalmakoffs home rather than at the city
office building (the site of the first two
interviews). Kalmakoff was not in custody
during this third interview, and both of his
grandparents (his adoptive parents) were
present with him during this interview.
The troopers did not use lies,
trickery, or other deception to induce
Kalmakoff to agree to this third interview.
Indeed, they did not even ask Kalmakoff to
make any further statements regarding his
role in, or knowledge of, the homicide.
Instead, the troopers merely asked Kalmakoff
if he was willing to repeat the same things
that he had already told them in the
preceding two interviews, so that his
grandparents would be aware of these things.
Finally, on the question of whether
Kalmakoffs decision to participate in the
third interview was materially affected by
the statements obtained from him during the
first and second interviews, we conclude that
the answer is no.
As we have explained, Kalmakoff
made only two significant admissions during
the first two interviews. He admitted that
he had engaged in under-age drinking on the
night in question, and he admitted that he
and his friend Aaron had temporarily stolen a
pistol and blanks from Rick Reynoldss house
(and then had shot the pistol at Aaron
Kalmakoffs house before returning it).
It is true that the troopers
initiated the conversation at the third
interview by asking Kalmakoff to tell his
grandparents about the incident with the
pistol. But if Kalmakoff had merely done
what the troopers asked (that is, if
Kalmakoff had simply repeated what he had
already said about the pistol), this
information would not have implicated him
further in the homicide. Instead, as
Kalmakoff began talking, he revealed more and
more of his involvement in the homicide far
beyond anything that he had previously said.
As the interview progressed, Kalmakoff
admitted that he and B.K. got into an
argument at Reynoldss house (because she was
criticizing him for being drunk) and that,
during this argument, Kalmakoff accidentally
shot her. Kalmakoff then stated that,
following this shooting, he carried B.K.s
body outside and placed it in some bushes.
The interview lasted less than 25
minutes and, as we noted previously,
Kalmakoff never expressed a desire to stop
the interview, nor any reluctance to continue
answering questions.
When we evaluate the totality of
these circumstances, we conclude that, even
under pre-Elstad law, this third interview
was sufficiently insulated from the Miranda
violations that occurred at the first and
second interviews. The statements that
Kalmakoff made at this third interview were
therefore properly introduced against him at
his trial.
Our conclusion with respect to the
third interview leads us to the same
conclusion with respect to the fourth
interview: Kalmakoffs statements during the
fourth interview were likewise admissible.
Finally, given the relative
unimportance of Kalmakoffs statements from
the first and second interviews when compared
to the expressly incriminating statements
that Kalmakoff made during the third and
fourth interviews, we conclude that even if
it was error to admit statements from the
first interview at Kalmakoffs trial, that
error was harmless beyond a reasonable
doubt.4
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
* Sitting by assignment made pursuant to Article IV, Section
11 of the Alaska Constitution and Administrative Rule 23(a).
2 See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966).
3 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985).
4See Chapman v. California, 386 U.S. 18, 24; 87 S.Ct. 824,
828; 17 L.Ed.2d 705 (1967), holding that constitutional
error will require reversal of a criminal conviction
unless the error is shown to be harmless beyond a
reasonable doubt. And see Motta v. State, 911 P.2d 34,
39-40 (Alaska App. 1996) (citing Arizona v. Fulminante,
499 U.S. 279, 306-12; 111 S.Ct. 1246, 1262-66; 113
L.Ed.2d 302 (1991)), acknowledging that this test
applies when the government introduces evidence of a
confession obtained in violation of the defendants
Miranda rights.
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