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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
YURI BEREZYUK,
Court of Appeals No. A-10192
Appellant, Trial Court No. 3AN-04-1825 Cr
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2366 - August 3, 2012
Appeal from the Superior Court, Third Judicial District,
Anchorage, Larry D. Card, Judge.
Appearances: Sarah T. White, contract attorney for the Public
Defender Agency (opening brief), Tracey Wollenberg, Assistant
Public Defender (reply brief), and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant. Mary A. Gilson,
Assistant Attorney General, Office of Special Prosecutions and
Appeals, Anchorage, and John J. Burns, Attorney General,
Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
MANNHEIMER, Judge.
In the early morning of February 23, 2004, Anchorage Airport Police
Officer Joseph Gamache spotted two young men in the terminal whom he recognized as
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suspects in the shoplifting of a camera from one of the airport stores the previous
evening. These two men were the defendant, Yuri Berezyuk, and his brother Ivan.
Gamache summoned two other officers to back him up, and then he made
contact with the young men. He told the brothers that he needed to speak with them. He
then asked them to bring their bags (each brother had a duffle) and to come with him to
the police substation in the terminal. Gamache subsequently moved Yuri to the nearby
lost and found office, so that he could question the brothers separately about the stolen
camera.
Ivan told Gamache that he had stolen the camera, and that his brother Yuri
had nothing to do with it. But a few minutes later, when Gamache questioned Yuri
Berezyuk about the shoplifting, Berezyuk confessed that he was the one who had stolen
the camera, and he told Gamache that the camera and its docking station were in his
duffle.
Gamache asked Berezyuk for permission to search the duffle, and
(according to the facts as found by the superior court) Berezyuk consented. During his
search of the duffle, Gamache found the camera and the docking station. But Gamache
also found other things that led him to suspect that Berezyuk was trafficking in drugs:
coffee, party balloons, some empty vials, and personal lubricant.
Gamache then asked Berezyuk for permission to search his jacket. Again
(according to the facts as found by the superior court) Berezyuk consented. In the jacket,
Gamache found two bricks of heroin.
The total weight of this heroin was later determined to be slightly under
320 grams - the equivalent of slightly under 11½ ounces. According to testimony at
Berezyuk's trial, this amount of heroin had a street value of up to a quarter of a million
dollars.
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Berezyuk initially told Gamache that this heroin was for his personal use
- that he purchased the drug in bulk. However, Berezyuk ultimately conceded that the
heroin was for distribution, and that he had agreed to transport the heroin for a drug
dealer in Anchorage.
Based on the foregoing, Berezyuk was convicted of third-degree controlled
substance misconduct (possession of heroin with intent to sell or otherwise distribute)
and third-degree theft (theft of property worth at least $50 but less than $500) for the
shoplifting of the camera.
In this appeal, Berezyuk argues that he never consented to the search of his
duffle, and that (for this reason) the physical evidence discovered during the search of
the duffle should be suppressed. Berezyuk also argues that he did not consent to the
search of his jacket - or that, even if he did, his consent was tainted by the evidence
discovered during the prior (allegedly unlawful) search of his duffle.
In addition, Berezyuk argues that all the statements he made to Gamache
and his fellow officers should be suppressed because (1) he was subjected to custodial
interrogation but he did not receive Miranda warnings; or, in the alternative, (2) even if
he received Miranda warnings, he did not understand those warnings; or, in the
alternative, (3) even if he did understand the Miranda warnings, he never affirmatively
waived his rights; or, in the alternative, (4) even if he did waive his Miranda rights, the
police improperly obtained his waiver through threats of deportation and increased
punishment if he did not cooperate.
In addition, Berezyuk contends that even if there was no Miranda violation
of any kind, his statements to the police were involuntary (for Fifth Amendment
purposes) because they were induced by improper threats.
Finally, Berezyuk argues that there was insufficient evidence presented at
his trial to support his conviction for theft of the camera.
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For the reasons explained here, we reject all of Berezyuk's claims except
the claim that his statements were improperly induced by threats. This claim is colorably
supported by the record. However, we need not resolve this claim, because even if
Berezyuk's statements to the police are suppressed, the remaining evidence of his guilt
is overwhelming. Accordingly, any error in allowing the State to introduce those
statements at Berezyuk's trial was harmless beyond a reasonable doubt.
A prefatory note on our discussion of the underlying facts of Berezyuk's
case
In Berezyuk's opening brief, all of his assertions about the underlying facts
of his case are supported by references to the testimony presented during his trial.
However, the rulings that Berezyuk is attacking in this appeal were made before his trial,
during the pre-trial litigation of his motions for suppression of evidence.
The judge who made those rulings, Superior Court Judge Larry D. Card,
based his decision on the evidence presented during a pre-trial evidentiary hearing: the
testimony of various airport police officers, plus the audio recording of the officers'
interview with Berezyuk and the transcript of that recording (both of which were
submitted in evidence).
In our analysis of Berezyuk's arguments, we have endeavored to locate
support for Berezyuk's various assertions of fact by examining the evidence that was in
front of Judge Card when he made his rulings. However, to the extent that Berezyuk has
made assertions of fact that are not supported by the pre-trial evidence, we must
disregard Berezyuk's assertions.
See Waters v. State, 64 P.3d 169, 171 (Alaska App. 2003), where we held
that a defendant may not attack a trial court's pre-trial ruling on a suppression motion by
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using evidence developed at the defendant's ensuing trial, unless the defendant expressly
asks the court to revisit its ruling in light of the trial evidence. As we stated in Waters,
"[A] party challenging a trial court's ruling may not rely on an argument or on evidence
that was not brought to the ... court's attention at the time the ... court made its ruling."
Ibid.
Berezyuk's argument that he did not consent to the search of his duffle
At the beginning of Gamache's interview with Yuri Berezyuk in the lost
and found office, Gamache told Berezyuk that he was not under arrest, but Gamache
nevertheless advised Berezyuk of his Miranda rights. Before Gamache read the Miranda
warnings, he told Berezyuk that he would answer any questions Berezyuk might have
about those rights. Gamache then read the Miranda warnings and asked Berezyuk
whether he understood his rights. Berezyuk replied that he did.
Gamache then asked whether Berezyuk, having these rights in mind, would
be willing to answer some questions. Berezyuk's response is largely indiscernible in the
audio recording; only the tail end of his response - "have the right" - can be
understood. But immediately after this response, Gamache explained that he wanted to
talk to Berezyuk about the theft of the camera the preceding night, and Berezyuk began
responding to Gamache's questions. As we will describe more fully in a later section of
this opinion, Judge Card concluded that Berezyuk waived his Miranda rights and
consented to be interviewed.
Soon thereafter, Gamache told Berezyuk that the theft of the camera had
been captured on the store's video surveillance camera. When Gamache said that he
wanted to get the camera back, so that he could return it to the store, Berezyuk indicated
that he had stolen the camera. Berezyuk explained that his decision to take the camera
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had been spur-of-the-moment, and that he did not discuss the theft with his brother Ivan
beforehand.
About two minutes later, Berezyuk told Gamache that the stolen camera
was in his duffle. Gamache then asked Berezyuk if he could "look through his bag".
Berezyuk said something in response, but his words are indiscernible in the audio
recording. Gamache then replied, "Okay".
This was immediately followed by a zipping sound - the sound of
Gamache unzipping Berezyuk's duffle and commencing his search.
At the evidentiary hearing, Officer Gamache testified that when he asked
Berezyuk for permission to search his duffle, Berezyuk gave consent for this search.
(Berezyuk did not testify at the hearing.)
In his pre-trial suppression motion, Berezyuk argued that the search of his
duffle was conducted without his consent. In the alternative, Berezyuk argued that even
if he did consent to the search, he only consented because he did not believe he had the
ability to refuse consent. In the further alternative, Berezyuk argued that even if he did
consent, his consent was limited to a search for the stolen camera. Thus, Berezyuk
contended, the search should have ended after Gamache located the camera and its
docking station, and Gamache acted beyond the scope of Berezyuk's consent when he
continued to search through the duffle and found the drug-trafficking items.
When Judge Card issued his ruling on Berezyuk's suppression motion, he
found that Gamache asked Berezyuk for permission to "look through Berezyuk's bag".
Judge Card acknowledged that Berezyuk's response to this request is not audible in the
recording of the interview, but Judge Card deduced that Berezyuk must have answered
"yes", since Gamache then responded "Okay", and then Gamache unzipped the duffle
and began his search.
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In reaching this conclusion, Judge Card noted that both Gamache and
Berezyuk were using calm tones of voice. There was no indication of conflict between
them, and Gamache's request for permission to conduct the search was not made in a
threatening tone.
On appeal, Berezyuk argues that Judge Card was clearly erroneous when
he found that Berezyuk affirmatively consented to the search of the duffle. Berezyuk
notes that, in the audio recording, when Gamache asked for permission to search the
duffle, Berezyuk's response is not audible. Berezyuk further notes that the State bore the
burden of proving that Berezyuk consented to the search, and he argues that, because of
this burden, Judge Card was required to presume that all the inaudible portions of the
recording were unfavorable to the State.
Berezyuk also argues that it "borders on absurdity" to think that he, a
resident alien who was subject to deportation if he committed a serious crime, "would
simply ... hand over all sorts of incriminating evidence" to the police.
Given all of these circumstances - i.e., an inaudible response, a strong
motivation to refuse consent, and the State's overall burden of proof - Berezyuk
contends that no reasonable fact-finder could have concluded that the State met its
burden of proving that Berezyuk consented to the search of the duffle.
We disagree. When Gamache asked Berezyuk for permission to conduct
this search, Gamache had already informed Berezyuk that the theft of the camera had
been captured on the store's surveillance video, and Berezyuk had already confessed to
Gamache (1) that he was the one who shoplifted the camera, (2) that he still had the
camera, and (3) that the camera was in his duffle. Moreover, even though Berezyuk's
response is inaudible in the recording, Gamache testified at the evidentiary hearing that
Berezyuk did consent to the search. Given all this, Judge Card could reasonably
conclude that Berezyuk consented to the search of the duffle.
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Berezyuk's argument that, even if he did consent to a search of his duffle,
Gamache's search of the duffle exceeded the scope of Berezyuk's consent
In his opening brief, Berezyuk argues that even if he did consent to a search
of his duffle, Gamache exceeded the scope of Berezyuk's consent when he continued to
look through the duffle after he found the camera and the docking station - thus leading
to the discovery of the items related to drug-trafficking.
This argument regarding the scope of Berezyuk's consent is contained in
a single sentence of Berezyuk's opening brief. This sentence is not accompanied by any
reference to the evidence presented in the superior court, nor any reference to Judge
Card's findings, nor any further explanation of why Berezyuk's attorney thinks that
Berezyuk's consent was limited to a search for the camera and docking station.
We note that the audio recording of the interview, as well as the evidentiary
hearing testimony of both Officer Gamache and Officer Gary Delk (the other airport
police officer who was present during Gamache's interview with Berezyuk), all support
Judge Card's finding that Gamache asked for permission to "look through Berezyuk's
bag", apparently without restriction.
We further note that, during the evidentiary hearing, when Berezyuk's
attorney was cross-examining Officer Delk, the attorney asked Delk a question which
seemingly acknowledged that Gamache had asked Berezyuk for broad permission to
search the duffle. Specifically, the defense attorney asked Delk why Gamache would
seek permission to look through Berezyuk's entire bag, when Berezyuk's brother Ivan
had already told the officers the precise location within the bag where the camera was
located.
Given these circumstances, we conclude that Berezyuk's single-sentence
"argument", with no reference to the evidence presented in the superior court, or to Judge
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Card's finding on this issue, is insufficient to preserve this point. See Wagner v. Wagner,
218 P.3d 669, 678 (Alaska 2009), where the supreme court held that an issue was
inadequately briefed when it was "contained in a single conclusory sentence, without
citation to any authority." See also Petersen v. Mutual Life Insurance Co. of New York ,
803 P.2d 406, 410 (Alaska 1990) ("Where a point is not given more than a cursory
statement in the argument portion of a brief, the point will not be considered on
appeal.").
Berezyuk's argument that, even if he did consent to the search of his duffle
and the search of his jacket, his consent was involuntary
At pages 19-22 of his opening brief, Berezyuk presents an argument which
he titles, "The search and purported consent were involuntary".
In the two-sentence opening paragraph of this argument, Berezyuk's
attorney asserts, in conclusory fashion, that Berezyuk was "essentially forced to act on
the state's behalf in conducting [the] warrantless searches [of his duffle and jacket]", and
that "[Judge Card] erred in finding that [Berezyuk's] purported consents [to these
searches] were voluntary."
This voluntariness argument was not raised in the superior court. In his
pre-trial suppression motion, Berezyuk argued that his confession was involuntary
because it was the result of improper threats. But Berezyuk did not argue that his
consents to the searches of his duffle and jacket - searches that preceded his confession
- were also involuntary. And because Berezyuk did not raise this claim in the superior
court, Judge Card made no finding on this matter.
Moreover, other than the conclusory introductory paragraph that we have
just quoted, the four pages that comprise this section of Berezyuk's opening brief contain
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no discussion of voluntariness. Instead, in these four pages, Berezyuk's attorney raises
several other arguments - all aimed at showing that Berezyuk never consented to the
searches at all:
(1) Berezyuk argues that it is absurd to think that he would consent to
searches that he knew would reveal incriminating evidence;
(2) Berezyuk argues that the audio recording of the police interview had so
many inaudible portions that no reasonable finder of fact could have concluded
that the State had proved that Berezyuk gave his consent;
(3) Berezyuk argues that Judge Card erred by not holding the State to its
burden of proof, and by not presuming that any inaudible or indiscernible portion
of the audio recording should be construed against the State; and
(4) Berezyuk argues that even if he consented to the search of his jacket,
that consent was tainted by the preceding unlawful search of his duffle.
We acknowledge that, within Berezyuk's single-paragraph argument of this
last point - the argument that his consent to the search of the jacket was tainted by the
preceding search of the duffle - there is one sentence that could be construed as
addressing a true claim of involuntariness. Here is that paragraph, with the single
pertinent sentence in italics:
Here, the state cannot show a break in the causal
connection between the prior illegal search of [Berezyuk's]
bag and [his] purported consent to [the] search [of his] wallet
and jacket. ... The fact that [Officer] Gamache found
evidence of drug trafficking [in Berezyuk's bag] was
sufficient to overbear [Berezyuk's] will. He [i.e., Berezyuk]
was aware that Gamache suspected him of drug trafficking.
Then Gamache threatened [Berezyuk] with deportation,
among other things. The fact that Gamache had already
recovered incriminating evidence [from Berezyuk's bag,] and
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was likely to use it against [Berezyuk], was sufficiently
coercive to destroy [Berezyuk's] ability ... to resist
[Gamache's requests for permission to search Berezyuk's
wallet and jacket]. Therefore, [his] purported consent was
involuntary and ineffective.
But the fact remains that Berezyuk never challenged the voluntariness of
his consent during the trial court proceedings, and Judge Card made no finding on this
issue (because no one asked him to).
Moreover, even though the title of this section of Berezyuk's brief declares
that his consent was "involuntary", the italicized sentence quoted above is the sole
sentence that could be construed as substantively addressing the issue of voluntariness.
As we have explained, this sentence is hidden in the middle of a paragraph that is
otherwise devoted to arguing that Berezyuk's consent to the search of his jacket was
tainted by the preceding search of his duffle. This single sentence is unaccompanied by
any further analysis of the facts of Berezyuk's case, nor is it accompanied by any
discussion of the pertinent legal authorities on this issue. And the paragraph that
contains this one relevant sentence is, itself, nestled within four pages of argument
addressed to other topics.
Accordingly, we conclude that this issue is waived. See Wagner, 218 P.3d
at 678; Petersen , 803 P.2d at 410.
Berezyuk's claim that he never received Miranda warnings
In Berezyuk's opening brief, he notes that he made self-incriminating
statements while he was questioned by Officer Gamache. Berezyuk's brief then declares,
"Because these admissions were made while in custody with no Miranda advisements,
they are inadmissible."
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Berezyuk provides no citation to the trial court record to support his
assertion that he never received Miranda warnings. In fact, there is absolutely nothing
in the record to support this assertion.
The evidence presented to the superior court indisputably establishes that
Gamache advised Berezyuk of his Miranda rights at the very beginning of their
conversation. Officer Gamache testified that he gave Miranda warnings to Berezyuk,
and the audio recording of the interview clearly shows that the Miranda warnings were
given. There was no contrary evidence. Judge Card expressly found that Berezyuk was
advised of his Miranda rights.
(Indeed, in Berezyuk's suppression motion, he conceded that he did receive
Miranda warnings. Berezyuk argued for suppression of his statements on the theories
that he did not understand his rights, or that he did not affirmatively waive them, or
(alternatively) that his waiver was coerced.)
For these reasons, we reject Berezyuk's contention that he was never
advised of his Miranda rights.
Berezyuk's contentions that, if he received Miranda warnings, he did not
understand them - or, if he did understand his rights, he never waived
them
In Berezyuk's opening brief, he asserts that even though Officer Gamache
may have advised him of his Miranda rights, the State failed to prove that Berezyuk ever
validly waived his Miranda rights.
Berezyuk notes that in Moran v. Burbine , 475 U.S. 412, 106 S.Ct. 1135, 89
L.Ed.2d 410 (1986), the United States Supreme Court explained that a valid waiver of
Miranda rights has two components: the suspect must have understood "the nature of
the right[s] being abandoned and the consequences of the decision to abandon [them]",
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and the suspect's decision to waive these rights must have been "free and deliberate"
rather than the product of "intimidation, coercion, or deception". 475 U.S. at 421, 106
S.Ct. at 1141.
In his brief, Berezyuk argues that the government failed to prove the first
component of this test - the requirement that Berezyuk understood the nature of his
rights and the consequences of waiving them.
Berezyuk notes that he is not a native speaker of English (his native
language is Ukrainian), and he asserts that, because he had lived in the United States for
only nine years preceding these events, he had "[a] limited comprehension of the
American legal system". More particularly, Berezyuk's appellate attorney asserts that
"the right to remain silent and the right to an attorney ... were unknown [in] Soviet
Russia, and [were] unknown to [Berezyuk]."
These assertions - that Berezyuk did not understand his rights because of
his difficulty with the English language, and because he had no previous knowledge of
the right to silence and the right to an attorney - are not supported by any citations to
the trial court record. This is because they have no support in the trial court record.
Berezyuk did not testify during the litigation of his suppression motion.
And neither the testimony of Officer Gamache nor the testimony of Officer Delk - the
two officers who interviewed Berezyuk - gives any indication that Berezyuk had
linguistic difficulties that impeded the officers' communication with him. Moreover,
even though one of the claims in Berezyuk's suppression motion was that he had
unanswered questions about his Miranda rights, Berezyuk made no assertion that these
unanswered questions arose from Berezyuk's difficulties with the English language.
We acknowledge that the audio record of Berezyuk's police interview does
provide some arguable support for Berezyuk's claim that he had unanswered questions
about his Miranda rights:
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After Gamache finished reading the Miranda rights to Berezyuk, Gamache
told Berezyuk that he would answer any questions Berezyuk might have about those
rights. There was a slight pause in the conversation, and then Gamache asked Berezyuk
whether he understood his rights. Berezyuk replied that he did.
But then, when Gamache asked whether Berezyuk, having these rights in
mind, would be willing to answer some questions, Berezyuk made a response that is
largely indiscernible. Only the tail end of Berezyuk's response - "have the right" -
can be understood. This portion of the audio record lends arguable support to the
inference that Berezyuk had one or more questions about his rights.
But the record does not establish that Berezyuk had unanswered questions
about his rights; the record is merely potentially ambiguous on this point because
Berezyuk's response is largely indiscernible. Other portions of the record support a
finding that Berezyuk understood his rights. Immediately after Berezyuk made his
indiscernible response, Gamache explained that he wanted to talk to Berezyuk about the
theft of the camera the preceding night, and Berezyuk began responding to Gamache's
questions - thus suggesting that Berezyuk did not have unanswered questions, and that
he was willing to begin talking to Gamache. Moreover, at the evidentiary hearing,
Gamache testified (both on direct examination and on cross-examination) that Berezyuk
waived his Miranda rights.
Based on this record, Judge Card found that Berezyuk had in fact told
Gamache that he understood his rights. Judge Card also found, based on the fact that
Berezyuk proceeded to answer Gamache's questions without hesitation or objection, that
Berezyuk had indeed waived his Miranda rights.
As this Court recently noted in Olson v. State, 262 P.3d 227, 231 (Alaska
App. 2011), the circumstances of a custodial interrogation - "the actions and words of
the person interrogated" - may give rise to a reasonable inference that the person
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waived their Miranda rights, even in the absence of an explicit waiver. Here, the record
supports Judge Card's findings that Berezyuk understood his rights and waived them.
We accordingly reject Berezyuk's contentions that he did not understand
his Miranda rights, or that he never waived his Miranda rights.
Berezyuk's contention that, if he waived his Miranda rights and agreed to
answer the officers' questions, his decision to talk was involuntary because
it was the result of threats of deportation and increased punishment if he
did not cooperate with the police
Berezyuk's next contention is that, even if he waived his Miranda rights,
the police obtained that waiver improperly - by threatening him with deportation and
increased punishment if he did not cooperate. To analyze this claim, we must examine
(1) the underlying facts of the officers' interview with Berezyuk, (2) the way in which
this claim was litigated in the superior court, (3) the way in which this claim was briefed
on appeal, (4) the law relating to the forfeiture of appellate claims due to inadequate
briefing, and (5) the law limiting claims of plain error when the claim is that physical
evidence should be suppressed.
(a) The underlying facts
The audio recording of Berezyuk's police interview indicates that, after
Officer Gamache discovered the drug-related paraphernalia in Berezyuk's duffle (the
coffee, the party balloons, the vials, and the personal lubricant), Gamache asked
Berezyuk to explain the purpose of these items. Gamache told Berezyuk that these items
made it appear that Berezyuk was involved in transporting drugs. Berezyuk responded
to Gamache's questions, but his replies are not discernible in the audio recording.
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At this point, Officer Delk joined the conversation. He told Berezyuk that
the airport police might contact "the federal people" because the duffle contained these
items of apparent drug paraphernalia. Officer Gamache then asked Berezyuk whether
somebody was pressuring Berezyuk to bring drugs into Alaska. Berezyuk said no.
In response to a further question posed by Delk, Berezyuk disclosed that
he was not a United States citizen; rather, he was a resident alien with a green card. Delk
then informed Berezyuk that, if it turned out that Berezyuk was trafficking drugs and
"not being truthful with the police", this could adversely affect Berezyuk's residency in
the United States.
Delk told Berezyuk that he was not "threatening" him, but merely
informing Berezyuk that if he did not cooperate with the police, and if he was not
truthful, and if the police ended up contacting the federal authorities, the federal
government "[might] revoke [his] citizenship [sic], [his] green card and everything, and
deport [him]." Delk told Berezyuk that he was not saying that this would inevitably
happen, but he wanted Berezyuk to know that this was a possibility. Here is the precise
wording of this exchange:
Delk : You have a green card?
Berezyuk : Yeah.
Delk : Do you know what - especially if ... we find
out that you're being dishonest with us now ...
Berezyuk : Well, I have a green card (indiscernible).
Delk : Well, hang on a sec. I'm just telling you what
I know, okay? But if you're being dishonest with us, and ...
you're running ... this drug operation ... [and] you don't
cooperate and tell us what's going on here, and we end up
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contacting the federal government [about] this, and if the feds
get into this thing, you could - I'm not saying that you will,
you know; I'm not threatening you or anything ... . I'm just
saying [that] there's a concern with you trafficking [drugs].
And [if] you're not being truthful to us, and they're
concerned about what's going on, they [might] revoke your
citizenship [sic], your green card and everything, and deport
you.
A few minutes later in the interview, Gamache obtained Berezyuk's
permission to search his jacket, and that was when the police discovered the two bricks
of heroin. Berezyuk told the officers that the two packages contained approximately
three to four grams of heroin, and that this heroin was for his own personal use. But the
two packages obviously contained much more than three or four grams of heroin.
(In fact, as we have already explained, the two packages (taken together)
contained slightly less than 320 grams of heroin.)
Delk asked Berezyuk if this heroin was the reason he needed the balloons
and the personal lubricant - to transport the heroin inside his body; Berezyuk replied
"no".
At this point, Delk warned Berezyuk that he faced "hard time" if he was
convicted of trafficking drugs. In response, Berezyuk again denied that he was involved
in drug trafficking.
Delk then suggested that if someone else had put Berezyuk up to
transporting the heroin, Berezyuk's cooperation "could go a long way". He also told
Berezyuk that a drug-trafficking conviction could result in a sentence of twenty or more
years.
A short time later, Delk repeated that if Berezyuk cooperated and told the
police where he got the heroin, "something" could be worked out. But Berezyuk
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continued to deny that he was trafficking heroin. When Gamache suggested that the
amount of heroin in Berezyuk's possession was too much for strictly personal
consumption, Berezyuk responded that he bought the drug in quantity.
This discussion was interrupted by the arrival of the clerk who worked at
the store where the camera was shoplifted. He identified Berezyuk, and he indicated that
he wished to make a citizen's arrest for this misdemeanor offense.
When the conversation returned to the subject of the heroin, Berezyuk now
confessed that he was transporting heroin for someone else. Berezyuk told the officers
that he had gotten the heroin in Anchorage, and that the drug dealer who gave him the
heroin threatened to have him deported if he did not transport the heroin.
Delk repeated that Berezyuk was facing a prison sentence of 20 years or
more, and potential deportation. Gamache added that a person could do "a lot of living"
in 20 years. He also told Berezyuk that a lot of "good people" were waiting to come to
America - so if somebody was caught abusing their privilege of residency, they would
do jail time and then they would get kicked out of the country. Delk then commented
that if a person was deported and sent back to their home country, their situation might
be much worse in that country.
At this point, Berezyuk became more forthcoming about where and how
he had obtained the heroin.
Delk then suggested that Berezyuk should be concerned about what the
drug dealers might do to him - because if the people who enlisted Berezyuk to transport
the heroin found out that their drugs were gone, and that the police had seized their
heroin, they would be angry about this loss, even if they believed that Berezyuk had not
said anything to the police. After hearing this, Berezyuk disclosed the identity of the
person who had given him the heroin, and he explained how he had gotten involved in
transporting drugs for this person.
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(b) The litigation of this claim in the superior court
In Berezyuk's suppression motion in the superior court, he argued that the
officers' statements about the benefits of cooperation, and the potential consequences of
not cooperating, constituted improper coercion that caused Berezyuk to waive his
Miranda rights and respond to the officers' questions. Relying on the Alaska Supreme
Court's decision in Beavers v. State , 998 P.2d 1040 (Alaska 2000), and this Court's
decision in Jones v. State , 65 P.3d 903 (Alaska App. 2003), Berezyuk argued that his
waiver of Miranda rights was involuntary because he was essentially promised that he
would not be charged with a drug-trafficking offense if he confessed, and he was told
that his cooperation would make the difference between simply being deported and (on
the other hand) serving 20 years in prison and then being deported. Berezyuk also
argued that, for these same reasons, his confession should be deemed involuntary.
Based on these assertions, Berezyuk asked the superior court to suppress
his statements . However, Berezyuk did not argue that the officers' coercive behavior
should also lead to suppression of the physical evidence (i.e., the heroin found in his
jacket).
Judge Card rejected Berezyuk's argument that the officers' statements were
improperly coercive. The judge agreed that Berezyuk had been told that, if he was not
truthful, he might be deported. The judge further agreed that, after Gamache found the
heroin in Berezyuk's jacket, Berezyuk was told that "drug trafficking ... is a serious
crime, and that he should be truthful with the police ... because ... he didn't ... want [to
be convicted of] a trafficking offense ... that might put him away for 20 years or more."
But Judge Card found that these statements were neither a threat of worse
treatment if Berezyuk remained silent, nor a promise of better treatment if Berezyuk
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waived his rights and cooperated. Specifically, Judge Card declared that Berezyuk
"wasn't promised that, by talking, he could get better treatment ... than if he didn't talk."
(c) Berezyuk's briefing of this claim on appeal
As we just explained, Berezyuk argued in the trial court that the officers
made improper threats and promises that gave rise to a Miranda violation and to an
involuntary confession. The relief that he sought was suppression of his statements .
Berezyuk did not argue that any physical evidence should be suppressed on account of
these purportedly improper threats and promises.
In contrast, Berezyuk's opening brief to this Court does not present a claim
of coercion. Twelve pages of Berezyuk's opening brief to this Court (about one-third
of the brief) are devoted to the argument that his Miranda rights were violated in various
ways - and that, as a result, his statements should be suppressed. However, even
though Berezyuk's opening brief suggests various reasons why his understanding of his
Miranda rights was flawed, and various reasons why his purported waiver of his
Miranda rights was invalid, Berezyuk's opening brief does not argue that his Miranda
waiver or his ensuing statements to the officers were coerced by improper threats or
promises.
Among the twelve pages of Berezyuk's opening brief devoted to the
Miranda issue, there are two sentences that refer to coercion. These sentences are not
accompanied by a reference to any legal authority, apart from a citation to the Alaska
Supreme Court's decision in Hunter v. State , 590 P.2d 888 (Alaska 1979) - a case
which describes the test for determining when a suspect is in custody for Miranda
purposes.
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Moreover, reading these two sentences in context, it is not clear that
Berezyuk is arguing that the police employed coercion to improperly obtain his
statements. From the wording of the surrounding text, it appears that Berezyuk might
be trying to argue that the officers' coercive statements provide support for his claim that
he was in custody for Miranda purposes - because these statements made him feel that
he was not at liberty to break off the questioning and leave.
The two sentences that we are describing are contained in a single
paragraph, which we are about to quote. Before we do, we need to explain that, in this
paragraph, Berezyuk's attorney falsely asserts that Officer Gamache threatened Berezyuk
with the loss of his child unless he cooperated. Officer Gamache never said this (or
anything like this) to Berezyuk. Rather, it was the drug dealer who made this threat to
Berezyuk, in order to get Berezyuk to agree to transport the heroin for him. With this
clarification, here is the text of the paragraph:
Officer Gamache's statements to Yuri regarding his
immigration status, [his] possible deportation, and having his
child taken away from him [sic] reek[] of coercion, especially
given the fact that he was in custody and [was] being
interrogated. Under Hunter , Yuri could not have felt free to
break off questioning and get up and leave. These factors are
also indicative of coercive pressure.
After making the above-quoted assertions, Berezyuk's attorney immediately turns to a
different argument - the argument that Berezyuk never affirmatively stated that he
wished to waive his rights.
Berezyuk's briefing of the Miranda issue continues for another ten pages
in his opening brief, but he never returns to the subject of potential coercion. And he
never argues that the officers' alleged coercion should lead to the suppression of physical
evidence - only the suppression of his statements to the officers.
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In its responding brief, the State notes that even though Berezyuk
challenged the voluntariness of his confession in the trial court, he failed to pursue that
argument in his opening brief, at least not in any meaningful way. Based on this, the
State argues that this Court should consider Berezyuk's claim of coercion waived due
to inadequate briefing.
We agree with the State that the two isolated sentences in Berezyuk's
opening brief are insufficient to preserve a claim that his confession was involuntary.
And if the State had stopped there, the decision of this appeal would be significantly
easier.
But, in an abundance of caution, the State then proceeded to brief the
question of whether Gamache's and Delk's statements to Berezyuk constituted improper
threats or promises, and whether Berezyuk's statements to the officers were voluntary.
Apparently, the State's extensive discussion of this issue alerted Berezyuk's
second appellate attorney - the attorney who wrote Berezyuk's reply brief - that here
was an issue that Berezyuk should pursue. As a result, Berezyuk's reply brief contains
a lengthy factual and legal argument (comprising thirteen pages) as to why Berezyuk's
confession should be deemed involuntary (and should be suppressed) because it was the
product of improperly coercive questioning.
Then, four pages later, in a single paragraph, Berezyuk's reply brief raises
an issue that had never been raised before, either in the trial court or in the two preceding
briefs: the claim that Berezyuk's consent to the search of his jacket - the search that
yielded the bricks of heroin - was invalid because it was the product of Officer Delk's
threats of deportation. This represents the first time, either in the trial court or on appeal,
that Berezyuk has claimed that the officers' interrogation tactics should result in the
suppression of physical evidence (as opposed to the suppression of Berezyuk's
statements).
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This new claim - the claim that the coercive aspects of the interrogation
should result in suppression of the physical evidence, and not just suppression of
Berezyuk's statements - has a potentially crucial effect on the outcome of this litigation.
This is because Berezyuk's case is one of those rare instances where suppression of his
confession, by itself, would not require us to reverse his conviction.
Berezyuk was convicted of possessing heroin with the intent to sell or
distribute it. The amount of heroin in his possession was approximately 320 grams.
According to the evidence at Berezyuk's trial, this amount of heroin was worth up to a
quarter of a million dollars. Even if the jury never heard Berezyuk's confession that he
was transporting this heroin for a drug dealer, it was obvious that this amount of heroin
was intended for sale or distribution, and not merely for Berezyuk's personal use.
Thus, even if we concluded that Berezyuk was entitled to suppression of
his statements, we would uphold his conviction on the basis that the error in admitting
these statements was harmless beyond a reasonable doubt. But if Berezyuk were entitled
to suppression of the heroin itself, then we would be obliged to reverse his conviction.
For this reason, we must decide whether Berezyuk's request for suppression
of the heroin (as opposed to suppression of his statements) is properly before us in this
appeal.
(d) Why we conclude that Berezyuk's claim of involuntariness was
forfeited because of his failure to adequately brief this claim in his
opening brief
One of the precepts of appellate procedure is that an appellant is not
allowed to raise new claims in their reply brief. Rather, the reply brief is meant to give
the appellant a chance to further explain the claims already raised in their opening brief,
or to respond to claims raised by the appellee. Thus, if a litigant raises a claim for the
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----------------------- Page 24-----------------------
first time in their reply brief, that claim is deemed waived or forfeited (even if the claim
was litigated in the lower court). 1
This rule of forfeiture applies not only to claims that go completely
unmentioned in the appellant's opening brief, but also to claims that receive only cursory
discussion in the opening brief. 2
On the other hand, when a claim is clearly identified and argued in the
opening brief, this rule of forfeiture does not apply, even though the appellant's
explanation or argument of this issue might be plainly deficient. 3
Thus, the question of waiver often turns on an assessment of whether the
appellant's discussion of the issue in their opening brief exceeds the confines of the
"cursory". The supreme court has indicated that an appellant's discussion of an issue
will be deemed sufficient if that discussion contains citations to pertinent legal authority
supporting the appellant's argument, 4 and if the discussion contains a sufficient
1 See, e.g., Diaz v. Alaska Dept. of Corrections , 239 P.3d 723, 730 n. 30 (Alaska 2010);
Maines v. Kenworth Alaska, Inc. , 155 P.3d 318, 326 (Alaska 2007) (issues raised for the first
time in a reply brief are waived).
2 See Iverson v. Griffith , 180 P.3d 943, 946 n. 12 (Alaska 2008) (holding that a litigant
waived a due process claim when she mentioned this due process claim only in passing in her
opening brief, and then attempted to develop the argument more fully in her reply brief);
Adamson v. University of Alaska , 819 P.2d 886, 889 n. 3 (Alaska 1991) (holding that when
an issue is given only cursory treatment in the argument portion of an appellant's opening
brief, the issue is waived, and the waiver is not correctable by arguing the issue in the reply
brief).
3 See Rofkar v. State , 273 P.3d 1140, 1141-42 (Alaska 2012); State v. Jacob, 214 P.3d
353, 361-62 (Alaska 2009); Maisy W. v. Alaska Office of Children's Services , 175 P.3d 1263,
1267-68 (Alaska 2008); Winschel v. Brown, 171 P.3d 142, 151 n. 40 (Alaska 2007);
Anchorage Chrysler Center, Inc. v. DaimlerChrysler Corp. , 129 P.3d 905, 913 n. 17 (Alaska
2006).
4 See State v. Jacob, 214 P.3d at 361-62.
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----------------------- Page 25-----------------------
description of the operative facts so that the appellate court can understand what the
claim is, and can understand the legal and factual bases of the claim. 5
In contrast, when the opening brief merely mentions a claim, with no
substantive argument of the issue, and with no citation to pertinent legal authority, the
claim will be deemed waived. 6
Turning to Berezyuk's case, and to the issue of whether Berezyuk's
statements to the airport police should be deemed "involuntary" under the Fifth
Amendment, we conclude that Berezyuk's opening brief does not contain a sufficient
discussion of this issue to preserve this claim.
As we explained before, there are twelve pages of Berezyuk's opening brief
devoted to the argument that Berezyuk's Miranda rights were violated in various ways.
However, in these twelve pages, Berezyuk never argues that his statements were coerced
by improper threats or promises, and thus were involuntary under the Fifth Amendment.
As we have explained, among the pertinent twelve pages of Berezyuk's
opening brief, there are only two sentences that refer to coercion. These two sentences
are conclusory, and they are not accompanied by a reference to any pertinent legal
authority (i.e., legal authority on the question of when a confession should be deemed
involuntary for Fifth Amendment purposes).
5 See Maisy W. v. Office of Children's Services , 175 P.3d at 1267-68; Winschel v.
Brown , 171 P.3d at 151 n. 40; Anchorage Chrysler Center v. DaimlerChrysler Corp. , 129
P.3d at 913 n. 17.
6 See Zok v. State , 903 P.2d 574, 576 n. 2 (Alaska 1995) (holding that where a litigant
"provided no substantive argument on point in his opening brief, and only [explained] the
court's alleged [error] in his reply brief," the issue was waived). See also Peterson v. Ek ,
93 P.3d 458, 464 n. 9 (Alaska 2004), and Petersen v. Mutual Life Insurance Co. of New York ,
803 P.2d 406, 410 (Alaska 1990) (issues that are raised only in a cursory fashion, without
citing any pertinent legal authority, are waived).
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If one were not already well-acquainted with the trial court record -
specifically, if one did not already know that the issue of voluntariness was litigated in
the superior court - one would never suspect that Berezyuk was trying to argue that
something worse than a Miranda violation occurred in his case, and that his statements
to Officers Gamache and Delk were involuntary for Fifth Amendment purposes.
We accordingly conclude that the passing mention of "coercion" in these
two sentences in Berezyuk's opening brief is insufficient to preserve this claim for
appeal.
The next question is whether the State saved Berezyuk from the
consequences of this waiver when the State chose to brief the voluntariness issue.
As we explained earlier, the State's brief contains two arguments on this
point: first, that Berezyuk's briefing of the issue was inadequate to preserve the claim,
and second, that there was no merit to the claim in any event. The State was able to
make this second argument because the issue was litigated in the superior court, and was
decided by Judge Card.
One might argue that, because both sides were ultimately able to brief this
issue (the State in its brief, and then Berezyuk in his reply brief), there is no unfairness
in allowing Berezyuk to litigate the claim. But the order in which the issue was briefed
does potentially prejudice the State.
Here, the State was required to speculate, to a certain extent, as to exactly
how Berezyuk might argue this issue on appeal. It is true that Berezyuk filed a
suppression motion in the trial court addressing this issue, but Berezyuk's motion was
filed before the evidentiary hearing, and before Judge Card made his findings. Thus, the
State could not know for sure (1) precisely what evidence Berezyuk would rely on in his
appellate argument, (2) whether Berezyuk would take issue with any of Judge Card's
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findings of fact, and (3) which aspects of Judge Card's legal analysis Berezyuk would
attack.
An appellee (that is, the party responding to an appeal) is entitled to know
what legal and factual arguments the appellant is relying on. When the appellant's brief
does not specify these matters, the appellee is placed at a disadvantage; the appellee is
essentially forced to guess how the appellant might wish to attack the trial court's ruling
- forced to anticipate the arguments that the appellant might raise in their reply brief.
It is true, as our supreme court recently indicated in Rofkar v. State , 273
P.3d 1140 (Alaska 2012), that an appellate court has the authority to vary its procedure
and allow an appellee in this situation to file yet another brief - a brief responding to
the arguments contained in the appellant's reply brief. But we do not interpret Rofkar
as saying that this kind of procedure should be followed in cases where the appellant's
opening brief is insufficient to preserve the issue in the first place.
In Rofkar , the supreme court did not repudiate or cast doubt on its line of
decisions holding that an appellant forfeits a claim if that claim is not mentioned, or is
given only cursory attention, in the opening brief. Rather, the supreme court concluded
that Rofkar's claim should be litigated because Rofkar's discussion of this claim in his
opening brief was sufficient to preserve the claim (even though that discussion was
deficient in certain ways). See Rofkar , 273 P.3d at 1142: "[W]hen an appellant
adequately raises an issue in the opening brief, the fact that the appellant does not argue
that important [case] authority must be overruled, or distinguished, until [the] reply brief
does not justify [an appellate court] in refusing to consider the issue on the merits."
(Emphasis added)
In Berezyuk's case, the passing mention of "coercion" in his opening brief
was not adequate to raise the claim that his statements were involuntary. The State,
out of caution, chose to brief the voluntariness issue because the State could not be sure
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that we would agree with its primary contention that the issue was abandoned. If we
were to hold that the State, by briefing the merits of this issue, thereby waived its right
to argue that the issue was abandoned, we would simply encourage irregular appellate
procedure - and, potentially, we would also encourage gamesmanship in briefing by
appellees.
(e) Why we conclude that, even if Berezyuk should be allowed to litigate
the claim that his statements were involuntary, he is nevertheless
precluded from arguing that the heroin found in his jacket should also
be suppressed on this basis - because that claim was not raised in the
trial court, nor was it raised in his opening brief
As we have already explained, Berezyuk argued in the superior court that
his confession should be deemed involuntary (and should be suppressed) because it was
the product of improperly coercive questioning - in particular, the officers' statements
suggesting that Berezyuk would face deportation and a lengthy prison sentence unless
he was honest and cooperative with the officers.
But Berezyuk did not argue that the officers' statements affected the
voluntariness of his consent to the search of his jacket - the search that uncovered the
bricks of heroin. Berezyuk argued only that his statements were the result of improper
coercion. As a result, Judge Card made no ruling on the question of whether Berezyuk's
consent to the search of his jacket might be viewed as involuntary.
Likewise, neither Berezyuk's opening brief nor the State's responding brief
addressed the issue of whether the heroin should be deemed the fruit of improperly
coercive statements. This possibility was not raised until Berezyuk's second appellate
attorney identified this issue in Berezyuk's reply brief.
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As we have also explained, this new claim - the claim that the coercive
aspects of the interrogation should result in suppression of the physical evidence, and not
just suppression of Berezyuk's statements - has a potentially crucial effect on the
outcome of this litigation. Suppression of Berezyuk's confession, by itself, would not
require us to reverse his conviction. The heroin in Berezyuk's possession was worth up
to a quarter of a million dollars. Even if the jury never heard Berezyuk's confession that
he was transporting this heroin for a drug dealer, it was obvious that this amount of
heroin was intended for sale or distribution, and not merely for Berezyuk's personal use.
Thus, any error in admitting Berezyuk's statements would be harmless
beyond a reasonable doubt. But if Berezyuk were entitled to suppression of the heroin
itself, then we would be obliged to reverse his conviction.
We conclude that Berezyuk forfeited the claim that the heroin should be
suppressed by failing to raise this claim in the superior court, and by failing to raise this
claim in his opening brief. We reach this conclusion for three reasons.
First, Berezyuk's failure to raise this claim in the trial court meant that
Judge Card never made findings regarding the facts that would be necessary to analyze
this claim.
Here, we need to explain (or emphasize) that Officers Gamache and Delk
made a series of potentially coercive statements to Berezyuk. Berezyuk consented to the
search of his jacket in the middle of this series of statements, but he did not confess that
he was transporting heroin for a drug dealer until the end of the series of questionable
statements.
This is not a situation where Berezyuk heard an entire series of potentially
coercive statements and then he decided to both confess and allow the police to search
his jacket. If that had been the situation, then the only question would be whether the
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----------------------- Page 30-----------------------
series of coercive statements, taken as a whole, overbore Berezyuk's will - and, if so,
then both his statements and the physical evidence should be suppressed.
But here, Berezyuk had heard only a few of the potentially coercive
statements when he consented to have Officer Gamache search his jacket. Thus, the
evidence pertaining to the voluntariness of that consent was different from the evidence
pertaining to the voluntariness of his later confession.
Equally as important, the record of the interrogation shows that Berezyuk
continued to resist the officers' interrogative efforts, and continued to deny that he was
a drug courier, even after Gamache discovered the heroin in Berezyuk's jacket. Even
though the officers now had the bricks of heroin, Berezyuk continued to insist that this
was only a small amount, and that the heroin was purely for his personal use. In other
words, he continued to oppose the officers - thus indicating that his will was not
overborne, at least at that point in the interrogation.
SeeEdwards v. State , 842 P.2d 1281, 1285 (Alaska App. 1992), and Malloy
v. State, 1 P.3d 1266, 1276 (Alaska App. 2000), where we rejected the defendants'
claims of involuntariness because, despite the officers' potentially coercive statements,
the defendants continued to protest their innocence.
For these reasons, the answer to whether Berezyuk's statements should be
suppressed as involuntary does not necessarily yield the answer to whether the heroin
should be suppressed. It therefore follows that Berezyuk's failure to explicitly raise this
issue in the trial court should preclude him from raising this issue on appeal.
The second reason why Berezyuk should be precluded from challenging
the admissibility of the heroin for the first time on appeal is the Alaska Supreme Court's
decision in Moreau v. State , 588 P.2d 275 (Alaska 1978). In Moreau , the supreme court
held that claims involving the exclusionary rule are "not appropriately raised for the first
time on appeal." Id. at 280. The supreme court explained:
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----------------------- Page 31-----------------------
The exclusionary rule is not the type of doctrine
designed to protect against conviction of the innocent.
Rather, it is a prophylactic device to curb improper police
conduct and to protect the integrity of the judicial process.
Thus, justice does not generally require that it be applied on
appeal where it is not urged at trial or where new grounds for
its invocation are presented on appeal.
Moreau , 588 P.2d at 280.
As the Moreau decision points out, there is a significant difference between
coercive police conduct that leads to a confession and coercive police conduct that leads
to the discovery of physical evidence. The confession is untrustworthy because it is the
product of coercion, and it is therefore improper for the trier of fact to rely on this
evidence. But physical evidence obtained through police misconduct retains its
probative value. This evidence is withheld from the jury, not because it is unreliable, but
rather to deter police misconduct. Therefore, even if the defendant can identify a ground
for suppressing this evidence on appeal, this does not impugn the fairness of the fact-
finding process at the defendant's trial, and so there is no plain error.
Third and finally, the claim under consideration - whether the heroin
should have been suppressed on the basis that it was the fruit of police coercion - was
not raised until Berezyuk's reply brief. And, as we have explained, claims raised for the
first time in a reply brief are waived.
For these three reasons, we conclude that even if Berezyuk should be
allowed to litigate the voluntariness of his statements , he is still precluded from litigating
the voluntariness of his consent to the search of his jacket, and from seeking suppression
of the heroin on this basis.
And because any error in admitting Berezyuk's statements at trial was
harmless beyond a reasonable doubt (given the evidence that he possessed a quarter-
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million dollars' worth of heroin), we conclude that Berezyuk's conviction for possessing
heroin with intent to distribute should be affirmed.
The sufficiency of the evidence to support Berezyuk's conviction for the
theft of the camera
Berezyuk argues that the evidence presented at his trial was legally
insufficient to support his conviction for stealing the camera from the store at the airport.
Specifically, he argues that the camera might have been taken by his brother, Ivan.
But when a defendant claims that the evidence is insufficient to support a
criminal conviction, an appellate court must decide that claim by viewing the evidence
in the light most favorable to the jury's verdict, even though contrary evidence may have
been presented at trial. 7 Viewing the evidence at Berezyuk's trial in that manner, the
evidence was sufficient to support Berezyuk's conviction for theft.
Conclusion
The judgement of the superior court is AFFIRMED.
7 See, e.g., Richards v. State , 249 P.3d 303, 304-05 (Alaska App. 2011); Rantala v.
State, 216 P.3d 550, 562 (Alaska App. 2009).
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