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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kalmakoff v. State (7/29/2011) sp-6583
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
BYRON KALMAKOFF, )
) Supreme Court No. S-13439
Petitioner, )
) Court of Appeals No. A-9700
v. ) Superior Court No. 3NA-03-00086 CR
)
STATE OF ALASKA, ) O P I N I O N
)
Respondent. ) No. 6583 - July 29, 2011
)
Petition for Hearing from the Court of Appeals of the State of
Alaska, on appeal from the Superior Court of the State of
Alaska, Third Judicial District, Naknek, Fred Torrisi, Judge.
Appearances: Josie Garton, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for Petitioner.
Nancy R. Simel, Assistant Attorney General, Office of
Special Prosecutions & Appeals, Anchorage, and Daniel S.
Sullivan, Attorney General, Juneau, for Respondent.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen,
and Stowers, Justices.
FABE, Justice.
I. INTRODUCTION
A jury convicted Byron Kalmakoff of raping and murdering his cousin in
the village of Pilot Point. Kalmakoff had just turned 15 when the crime was committed.
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The Alaska State Troopers sent to investigate the murder conducted four interviews with
Kalmakoff while they were in Pilot Point. Before trial Kalmakoff moved to suppress his
statements from those interviews based on violations of Miranda v. Arizona .1 The trial
court suppressed a portion of the first interview and all of the second interview but
admitted all of the third and fourth interviews. The court of appeals affirmed
Kalmakoff's convictions, concluding that any error in admitting portions of the first
interview was harmless and that the third and fourth interviews were sufficiently
insulated from any Miranda violations that occurred during the first two interviews. We
granted Kalmakoff's petition for review and remanded the case to the trial court for
additional factual findings, retaining jurisdiction. We now conclude that the Miranda
violations in the first and second interviews violated Kalmakoff's right to remain silent
and that the third and fourth interviews were tainted by the violations in the first and
second interviews. We therefore reverse Kalmakoff's convictions and remand the case
for a new trial.
II. FACTS
On February 10, 2002, a 27-year-old woman, B.K., was reported missing
in Pilot Point, a small village on the Alaska Peninsula with a population of less than 100.
Molly Etuckmelra, the Village Public Safety Officer (VPSO), called Alaska State
Trooper Shane Stephenson to report that B.K. was missing and called him again later to
report that B.K.'s body had been found. B.K. had been shot twice in the head, and a later
autopsy revealed injuries consistent with sexual penetration shortly before her death.
1 384 U.S. 436 (1966) (holding that statements obtained from defendants
during custodial interrogation without warning of constitutional rights are inadmissible).
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Trooper Stephenson and Trooper Pete Mlynarik flew from King Salmon
to Pilot Point to begin the investigation.2 Trooper Stephenson first visited the location
where the victim's nude body had been discovered and attempted to secure the crime
scene from the wind and snow. After learning that B.K. had attended a party at Rick
Reynolds's house the previous night, Trooper Stephenson secured two additional crime
scenes: Reynolds's house, where Stephenson believed B.K. had been shot, and an airport
hangar where tire tracks, footprints, and blood had been found. Trooper Stephenson also
began talking to the residents of Pilot Point "to get a general overview of the situation."
A. The First Interview
On Tuesday, February 12, Troopers Stephenson and Mlynarik interviewed
Byron Kalmakoff for the first time.3 The troopers conducted interviews throughout the
day in a meeting room at the Pilot Point city offices. The city offices were used for many
purposes and contained the VPSO office. The room where the troopers conducted the
interviews was approximately 20 feet by 30 feet, was well-lit with large windows, and
had more than one door. The doors to the room were closed during the interviews, but
no guards were stationed outside. The troopers were in uniform and visibly armed.
2 Trooper Stephenson arrived the evening of February 10 and Trooper
Mlynarik arrived the morning of February 11.
3 Throughout Kalmakoff's pre-trial motions, trial, and appeal, the facts
surrounding the first interview were somewhat vague. See Kalmakoff v. State (Kalmakoff
II), 199 P.3d 1188, 1199-1200 (Alaska App. 2009). After granting Kalmakoff's petition
for review, we remanded the case to the trial court for additional factual findings
pertaining to the first interview. See infra Part III.C. To avoid confusion, the facts
recounted here reflect the trial court's additional findings on remand. One specific
inconsistency in the record is whether Kalmakoff's first interview took place on Monday,
February 11, or Tuesday, February 12. The trial court's findings on remand note that the
date "actually appears to have been Tuesday, February 12."
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With the help of VPSO Etuckmelra, Trooper Stephenson put together a list
of the people who had likely attended the party at Reynolds's house. Etuckmelra
contacted the people on the list to let them know that the troopers wanted to speak with
them. Three people on the list, including Byron Kalmakoff, were students who were in
school. Kalmakoff had turned 15 only a few weeks before. Etuckmelra drove to the
school and informed the principal teacher, Jodi Mallonee, that she "needed to get Byron
for the troopers so they could interview him." Mallonee had also received a phone call
from the school superintendent's office in King Salmon authorizing her to release
students for interviews with the troopers. Mallonee called Kalmakoff out of class and
Etuckmelra drove him and two other students to the city offices in the VPSO truck. All
that Etuckmelra told the students was that the troopers needed to get some information
from them. The trial court found on remand that Kalmakoff "was not told that he did or
did not have to accompany the VPSO to the city offices, and that it is likely that he
believed that he had to go." Neither Mallonee nor Etuckmelra said anything to
Kalmakoff about whether he had to answer the troopers' questions. Nobody contacted
Kalmakoff's grandparents - who were also his adoptive parents - to inform them
about the interview.
Troopers Stephenson and Mlynarik began interviewing Kalmakoff at
1:35 p.m. on Tuesday, February 12. The interview lasted just under an hour and a half,
ending at 2:52 p.m. Trooper Stephenson described the interview as "informal and quiet."
Trooper Mlynarik testified that he considered Kalmakoff a suspect because "[h]e was
somebody that - that we had learned about due to some other situations," but Trooper
Stephenson explained that he had not narrowed his list of suspects yet and at that point
everyone who had attended Reynolds's party was a suspect.
The troopers did not tell Kalmakoff that he was free to leave or that he did
not have to answer their questions; instead, they emphasized that Kalmakoff needed to
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tell them the truth. After taking Kalmakoff's basic background information, Trooper
Stephenson told Kalmakoff: "I need for you to[,] um[,] be very specific and very ah[,]
truthful with me[,] on everything that you answer so I don't have to come back[,] and ask
you why okay[?] It'll look good . . . on your part." A few minutes later, Trooper
Stephenson reminded Kalmakoff: "I want you to make sure that you're perfectly truthful
with me . . . I will probably know if you're lying to me, okay[?]" The troopers did not
administer Miranda warnings to Kalmakoff. Kalmakoff admitted to the troopers that he
had been drinking on the night of the murder, that he had returned to Reynolds's house
with his cousin (B.K's brother) to "check on" B.K. shortly before she was killed, and that
B.K. was mad at them.
Once Kalmakoff made these admissions, the troopers' questions became
more pointed and accusatory. After Kalmakoff admitted to being in Reynolds's house
not long before the murder, Trooper Stephenson asked him: "I know that you were
snooping, snooping around . . . which one of you picked up the gun?" Kalmakoff
admitted that he had picked up a pistol and taken it outside. Trooper Stephenson began
asking Kalmakoff about the details of the gun, reminding him: "I'm asking questions
because I know[,] I know certain things, okay[?]" A few minutes later, after Kalmakoff
described his conversation with B.K., Trooper Stephenson asked, "[A]nd[,] that's when
things got out of control wasn't it[,] all messed up?" Kalmakoff denied this and repeated
that he and his cousin had left Reynolds's house. Trooper Stephenson replied, "You're
missing a chunk," and then asked a variety of questions implying that Kalmakoff was
involved in the murder, including: "[Did] you guys cover her up?"; "How'd you get her
downstairs?"; "Did you think you killed her[,] at that point?"; "Did you think that you
did[,] because you thought they were blanks?" Kalmakoff responded, "I never killed
her," and repeated that he and his cousin had taken the pistol and shot blanks outside his
cousin's house.
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Trooper Stephenson then took a break to have a drink of water and
purchased a soda for Kalmakoff. During the break, Trooper Stephenson remarked to
Trooper Mlynarik, "I think we're hot on the trail now . . . I haven't looked at the bottom
of his shoes yet, but . . . ."4 Kalmakoff's grandmother, Martha Kalmakoff, also arrived
at the city offices during the break.5 Trooper Stephenson saw Martha but did not ask her
to join the interview, and Martha did not ask if she could join.
After the break, Kalmakoff asked how much longer the interview was going
to continue. Trooper Stephenson answered "a little bit" but neither informed Kalmakoff
that he was free to leave nor read him his Miranda rights. The troopers resumed
questioning Kalmakoff about the gun, the ammunition, and the shell casings from the
shots he fired with his cousin. The troopers then looked at the bottom of Kalmakoff's
shoes and directed Kalmakoff to take off his jacket and shirt. Trooper Stephenson later
testified that the sole of Kalmakoff's shoe resembled the prints that were found at the
airplane hangar crime scene.
The troopers then took Kalmakoff outside so that he could show them the
dumpster where he allegedly threw away the shell casings from the pistol. Kalmakoff
also showed them his cousin's house where he and his cousin had shot the gun.
Kalmakoff then asked if he had to go back to the city building where he had been
questioned and Trooper Stephenson answered, "Yea[h], we're not even done." Trooper
Stephenson later testified that at this point Kalmakoff was considered a prime suspect.
4 Blood-stained shoe prints had been found at the airplane hangar crime
scene.
5 Martha learned about the interview when her daughter (Byron's aunt) called
to tell her that she had heard that Byron had been taken to the city offices for
questioning.
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Upon returning to the city building, the troopers introduced themselves to
Martha Kalmakoff. Trooper Stephenson informed Martha that he would be seizing
Kalmakoff's four-wheeler, coat, shoes, and gloves, and asked her to get Kalmakoff some
different clothes. Trooper Stephenson told Kalmakoff that he could go back to school
but that he could not return to his grandmother's house or his biological mother's house
until Trooper Stephenson gave him permission.6 Trooper Stephenson later explained that
he did not want Kalmakoff to return to those houses because he planned to obtain search
warrants for them and because he was concerned that Kalmakoff might hurt himself if
left alone at home.
B. The Second Interview
The following day, February 13, Trooper Stephenson interviewed
Kalmakoff again, this time accompanied by Trooper Craig Allen.7 The setting of the
interview was the same as the previous day and Kalmakoff was again transported to the
interview from school. Trooper Allen began the interview by explaining that even
though he and Trooper Stephenson had asked Kalmakoff to come speak with them,
Kalmakoff was free to leave and could go back to school at any time. Almost
immediately, Kalmakoff asked to go back to school:
KALMAKOFF: I go back right now if I want to?
ALLEN: Yeah, 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
what's going on[?]
KALMAKOFF: I feel like going back.
6 Although Kalmakoff lived with his grandparents, his biological mother still
lived in Pilot Point and Kalmakoff told the troopers that he had slept at her house on the
night of the murder.
7 Troopers Stephenson and Allen conducted the remaining interviews.
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ALLEN: Yeah. Okay. Is, is there any reason you don't want
to talk to [us] about stuff that, that, that I'm going to ask you
about?
KALMAKOFF: I can't barely remember anything.
ALLEN: Can't barely remember anything?
KALMAKOFF: Some times I black out.
ALLEN: Maybe, maybe if we talk a little bit maybe I could
help you remember some stuff?
KALMAKOFF: I don't know, sorta scared.
ALLEN: Yeah, what are you scared about Byron?
KALMAKOFF: That I did it.
Trooper Allen continued to urge Kalmakoff to answer more questions, but
Kalmakoff explained that it was hard because he felt ashamed. When Trooper Allen
tried to ask questions about what happened to B.K., Kalmakoff again asked to leave:
KALMAKOFF: Can I just go back to school?
ALLEN: You can go back to school any time you want.
We've told you that. That's, that's entirely up to you.
KALMAKOFF: I just want to go back now.
ALLEN: Okay.
KALMAKOFF: I'm gonna go home and talk to my
Grandma. (pause) I can go back now?
ALLEN: Beg pardon?
KALMAKOFF: Can we go back there?
ALLEN: You can go back there any time you want. It's up
to you.
KALMAKOFF: Alright (inaudible).
STEPHENSON: Um, actually Brian, Byron, uh, um I'm
going to have to ask you to stay here and, and talk with me.
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It was only at this point that Trooper Stephenson first advised Kalmakoff
of his Miranda rights and asked, "Do you understand each of these rights I have
explained to you?" Kalmakoff nodded his head yes. Trooper Stephenson then asked,
"Okay having these rights in mind do you wish to talk to me now?" Kalmakoff shook
his head no. The troopers then advised Kalmakoff that he could have a parent or
guardian present and tried to convince him to talk to them. They told him that he could
decide to talk to them at any time, and that a lot of people decide to talk "because it's just
such a heavy burden to carry . . . sometimes it's just best just to get it out." Trooper
Stephenson told Kalmakoff: "Yesterday you and I had an agreement to be honest with
each other. Um I, I want that agreement to stand today. I want you to be honest with me
and we're going to be honest with you."
Kalmakoff again indicated that he wanted to remain silent and not answer
any questions. Trooper Allen then told Kalmakoff that the troopers were going to
describe their progress in the investigation and that Kalmakoff should let them know if
something they said made him want to talk. Trooper Allen explained that they had been
collecting physical evidence and that they wanted to understand what happened "[s]o that
[when] people years from now look back at this, they don't think that the person who is
responsible for this is a mean, evil, bad person." He asked Kalmakoff again: "Would
you like to answer questions from me, even though you already told us before you didn't
want to?" Kalmakoff again said no. But the troopers continued to question Kalmakoff,
and Kalmakoff eventually admitted that he had drunk approximately half a bottle of
whiskey on the night of the murder. A few minutes later, he repeated, "I don't really feel
like answering questions."
Only then did the troopers finally honor Kalmakoff's invocation of his right
to remain silent and stop interrogating him. But they did execute a search warrant of
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Kalmakoff's person that allowed them to photograph Kalmakoff naked, take hair
samples from his head, arm, leg, and pubic area, and take swabs from his penis and the
inside of his mouth. The interview ended at 12:10 p.m. and the troopers gave Kalmakoff
a ride back to school.
C. The Third Interview
Just over three hours after the end of the second interview, the troopers
went to the house where Kalmakoff lived with his grandparents, Martha and Micarlo
Kalmakoff, to serve the list of seized items from the night before. When the troopers
arrived, Micarlo told them that he had spoken with his grandson but that Kalmakoff
could not remember anything. Micarlo asked if the troopers could do something to help
Kalmakoff remember, such as hypnotize him. Trooper Stephenson suggested that if the
troopers talked to Kalmakoff they might be able to help him remember.
This third interview took place in the living room of Kalmakoff's
grandparents' home and began at 3:35 p.m., about an hour after Kalmakoff returned
home from school and about three hours after termination of the second interview.
Trooper Stephenson asked Kalmakoff if he would talk to the troopers for a few minutes
and suggested that Martha and Micarlo be present for the interview. When Kalmakoff
did not respond, Trooper Allen encouraged him to speak with them and include his
grandparents to bring them "up to speed" on what he had already told the troopers:
Because you know there's - there's some things that you
might've told us already that they might not even know
about. You think that'd be fair, you think? And we're not
doing it to embarrass you or anything like that with your
[g]randparents. Eventually all the information's gonna be
available. Okay. [unknown indiscernible speaker] So . . .
would you like to start off so that you can bring your
[g]randparents up to speed on everything that you've talked
to us about already[?]
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At that point, Trooper Stephenson added, "Byron, I just want to remind you that what
I read to you earlier, still applies, but um, like - like I said, we're hoping we can just ah,
get everything out in the open." The troopers did not administer new Miranda warnings.
When Kalmakoff said that he didn't know where to start, Trooper Allen prompted him
by referring to his earlier statement: "Well, let me, you know you - you could, did you
talk with Trooper Stephenson about - about a gun?"
Kalmakoff then answered the troopers' questions and made several
incriminating statements. Although he maintained that he had been too drunk to
remember what happened, he admitted that he remembered moving B.K.'s body onto his
four-wheeler; that he thought the gun went off in Rick Reynolds's house; and that he put
B.K.'s body in the bushes. The interview ended at 4:00 p.m. and the troopers did not
arrest Kalmakoff. The troopers flew back to King Salmon that night.
D. The Fourth Interview
The next morning, February 14, Troopers Stephenson and Allen returned
to Pilot Point with orders to make a video of what they had learned during their
investigation. The troopers contacted Martha and Micarlo Kalmakoff to inform them
that the troopers would be taking Kalmakoff to Anchorage. The troopers then went to
get Kalmakoff from school. To avoid making a scene, the troopers asked a teacher to
remove Kalmakoff from class.
Once they were outside, Kalmakoff repeatedly asked the troopers when he
could return to school. The troopers first ignored these requests or provided misleading
answers such as "we're going to sneak you out of class for a little while"; "what I wanted
to do is have you spend a little bit of time with us today"; and "maybe an hour or so."
Trooper Allen instructed Kalmakoff, "I wanna have you talk with us about what
happened so that we can understand it very clearly[,] okay, so that nobody . . . has any
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questions about stuff okay[,] would you like to go around with us and do that?"
Kalmakoff responded, "I guess so," and then a few seconds later asked the troopers if
they knew what would happen to him. No Miranda warnings were administered.
Trooper Allen then told Kalmakoff that the troopers would be taking him
to Anchorage to appear in front of a judge. Kalmakoff responded, "I didn't do it on
purpose," and asked if B.K.'s mother had been told of his involvement. Trooper Allen
said no, and Kalmakoff requested, "If you guys do tell 'em, tell them I didn't mean to do
it on purpose." Trooper Stephenson said that he understood and that bad things
happened; Kalmakoff replied, "It's that dang booze."
At that point, after the troopers had convinced Kalmakoff to participate in
the interview and Kalmakoff had made additional incriminating statements, Trooper
Allen administered Miranda warnings to Kalmakoff. Trooper Allen prefaced those
warnings by saying: "I want to go through this with you real quick okay cause we've
done this before but this is, this is more official now cause I've told you I'm taking you
with me, to McLaughlin," apparently referring to McLaughlin Youth Center, a juvenile
detention center. Kalmakoff said that he had heard of McLaughlin. Trooper Allen
continued: "So I, listen to what I read to you[,] and I'm gonna ask you these questions
again, we did this before but I just want to do it again for you all right."
Trooper Allen read Kalmakoff his rights and Kalmakoff agreed that he
understood those rights and that he would speak with the troopers. The troopers then
drove Kalmakoff to the various crime scenes so that Kalmakoff could show them what
happened to the best of his recollection and they could videotape it. During the
videotaped interview, Kalmakoff described shooting B.K., moving her body to the
airplane hangar on his four-wheeler, removing B.K.'s clothes and having sex with her,
and leaving B.K.'s body in the bushes. The interview lasted for a little over an hour.
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III. PROCEEDINGS
Kalmakoff was charged as a juvenile with first-degree murder, second-
degree murder, manslaughter, kidnapping, first-degree sexual assault, second-degree
sexual assault, first-degree burglary, second-degree theft, and tampering with physical
evidence.8 The State filed a petition in the superior court to waive juvenile jurisdiction
so that Kalmakoff could be prosecuted as an adult.9 The superior court conducted a
waiver hearing and granted the petition.10 Kalmakoff was then indicted for the same
offenses. Following trial, a jury convicted Kalmakoff of second-degree murder,
manslaughter, kidnapping, first-degree sexual assault, second-degree sexual assault,
second-degree theft, and tampering with physical evidence. He was acquitted of first-
degree murder and first-degree burglary. Kalmakoff was sentenced to a composite term
of 75 years with 50 years suspended.
A. The Suppression Motion
Prior to trial Kalmakoff filed a motion to suppress the statements he made
to the Alaska State Troopers during the interviews in Pilot Point. The superior court held
an evidentiary hearing and issued a written decision granting Kalmakoff's suppression
motion in part and denying it in part.
8 State v. Kalmakoff (Kalmakoff I), 122 P.3d 224, 225 (Alaska App. 2005).
9 Id.
10 Id. After his conviction but prior to sentencing, Kalmakoff filed a motion
to return jurisdiction to the juvenile court, and the superior court granted the motion. But
the State petitioned the court of appeals for review of the order granting juvenile
jurisdiction. The court of appeals reversed and Kalmakoff was sentenced as an adult
rather than a juvenile offender. Id. at 225-26.
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The trial court ruled that Kalmakoff was not in custody during the first part
of the first interview. The trial court decided, however, that the first interview became
custodial during the break when Trooper Stephenson left to get a drink of water. The
trial court considered Trooper Stephenson's comment that the troopers were "hot on the
trail now," the troopers' refusal to answer Kalmakoff's subsequent questions about how
long the interview would last, and the troopers' order directing Kalmakoff to remove his
shirt. The trial court concluded that the second part of the first interview was custodial
and that Kalmakoff's statements from that part of the interview should be suppressed
because the troopers failed to administer Miranda warnings.
Regarding the second interview, the State conceded that Kalmakoff's
statements made after Miranda warnings were administered should be suppressed
because the troopers ignored Kalmakoff's invocation of his right to remain silent. The
trial court went further and concluded that Kalmakoff's statements made prior to the
Miranda warnings should also be suppressed because Kalmakoff was in custody
throughout the interview. The trial court noted Kalmakoff's age, the fact that "[o]nce
again, he had been taken from school and not afforded an opportunity to consult with a
trusted adult," and that he "twice suggested that he would like to leave, and twice he was
ignored."
The trial court also considered whether the violations during the first and
second interviews tainted Kalmakoff's later statements made during the third and fourth
interviews. The trial court concluded that because the third interview was not custodial
and "[t]he prior illegality was not flagrant," "no admission from the first two [interviews]
likely affected [Kalmakoff's] decision to talk" and the third interview was not tainted by
the previous Miranda violations. Finally, with respect to the fourth interview, the trial
court ruled that the troopers administered properMiranda warnings and Kalmakoff gave
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a valid waiver of his rights. The trial court therefore did not suppress Kalmakoff's
statements from the third and fourth interviews.
B. The Court Of Appeals' Decision
Following his conviction and sentence, Kalmakoff appealed the superior
court's partial denial of his suppression motion; the court of appeals affirmed
Kalmakoff's convictions.11 The court of appeals held that "the circumstances leading to
Kalmakoff's 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."12
But the court of appeals explained that because the third and fourth interviews were
admissible, "even if it was error to introduce Kalmakoff's statements from the first
interview at his trial, that error was harmless."13
In determining that the third and fourth interviews were admissible, the
court of appeals considered whether these interviews were tainted by the earlier
violations under the factors articulated in Halberg v. State.14 The court first examined
11 Kalmakoff v. State (Kalmakoff II), 199 P.3d 1188 (Alaska App. 2009).
12 Id. at 1199. Prior to the additional factual findings on remand, it was
unclear what the school principal or the VPSO might have said to Kalmakoff regarding
whether he had to attend the interview or answer the troopers' questions. There was also
conflicting testimony regarding whether Kalmakoff's grandparents had been notified
prior to the interview. Id. at 1199-1200, 1190.
13 Id. at 1200.
14 Id.; see Halberg v. State, 903 P.2d 1090, 1098 (Alaska App. 1995).
Halberg instructs courts to consider:
[T]he purpose and flagrancy of the initial illegal act, the
(continued...)
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the purpose and flagrancy of the illegalities at the first two interviews and concluded that
although the first interview was polite and free of threats, bullying, or deprivation, the
"conduct of the two troopers during [the] second interview was an egregious violation
of Miranda ."15
But the court of appeals decided that other Halberg factors outweighed the
egregious nature of the violation that occurred during the second interview.16 The court
emphasized that three and a half hours elapsed between the second and third interviews.17
The court of appeals noted that "[d]uring this interval, Kalmakoff remained at liberty"
and explained that Kalmakoff returned to school and then went home, which gave him
"the opportunity to speak to family and friends during the several hours preceding the
14(...continued)
amount of time between the illegal act and the defendant's
subsequent statement, the defendant's 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 defendant's interrogators were the same officers
who committed the prior illegal act, whether the evidence
obtained from the prior illegal act affected the defendant's
decision to submit to a subsequent interview, whether the
police used lies or trickery to influence the defendant's
decision, and whether there were other intervening events
that affected the defendant's decision.
903 P.2d at 1098 (citations omitted).
15 Kalmakoff II, 199 P.3d at 1201-02.
16 Id. at 1202-03.
17 Id. at 1202.
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----------------------- Page 17-----------------------
third interview."18 The court did consider that the same troopers conducted the second
and third interviews, but observed that the third interview took place at Kalmakoff's
home; that the troopers did not use lies, trickery, or other deception to induce Kalmakoff
to submit to the third interview; and that the third interview lasted less than 25 minutes.19
Finally, the court of appeals concluded that Kalmakoff's decision to
participate in the third interview was not materially affected by the statements the
troopers illegally obtained from him during the first two interviews. The court explained
that in its view, Kalmakoff made only "two significant admissions" in the earlier
interviews - that he was drinking on the night in question and that he and his friend had
stolen a gun and blanks from Reynolds's house.20 The court acknowledged that the
troopers had initiated the third interview by asking Kalmakoff to tell his grandparents
about the gun, but suggested that if Kalmakoff had merely repeated his previous
admissions, he would not have further implicated himself.21 Based on the totality of
these circumstances, the court of appeals held that Kalmakoff's statements from the third
interview were sufficiently insulated from any earlier constitutional violations and were
thus admissible at trial. The court also held that this same reasoning applied to the fourth
interview and therefore Kalmakoff's statements from that interview were also properly
admitted.22
18 Id. at 1202.
19 Id. at 1202-03.
20 Id. at 1202.
21 Id.
22 Id.
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C. Petition For Review And Findings On Remand
Kalmakoff petitioned this court for review of the court of appeals' decision
and we granted the petition. After briefing and oral argument, we issued an order on
June 1, 2010, retaining jurisdiction and remanding to the trial court for additional factual
findings.23 We noted that in determining whether Kalmakoff's statements from the third
and fourth interviews were tainted by earlier violations, "the court of appeals correctly
looked to the factors articulated in Halberg v. State."24 However, we expressed our
disagreement with the court of appeals' determination that Kalmakoff made "only two
significant admissions during the first two interviews" and that these admissions did not
play a significant role in convincing Kalmakoff to participate in the third interview.25
We explained:
Our review of the transcripts indicates that during the first
half of the first interview, Kalmakoff made three highly
significant admissions that may have influenced his later
decision to confess in the third interview: that he was
drinking on the night of the murder; that he and his cousin
found the murder weapon in the house where the victim was
sleeping and took it with them; and that he and his cousin
returned to "check on" the victim several times and the victim
became angry with him.[26]
Thus, to conduct a proper taint analysis for the third and fourth interviews, it was
necessary to know whether these admissions were obtained legally or were the result of
an interview conducted in violation of Miranda .
23 Alaska Supreme Court Order No. 69 (June 1, 2010).
24 Id. ¶ 2.
25 Id. ¶ 4.
26 Id.
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Because the court of appeals had held that the facts surrounding
Kalmakoff's first interview were not sufficiently clear to determine whether Kalmakoff
was in custody throughout that interview, we remanded to the trial court for additional
factual findings.27 The trial court issued additional factual findings on August 31, 2010.
We then ordered supplemental briefing addressing whether, in light of the additional
findings on remand, Kalmakoff was in custody throughout the first interview and what
effect Kalmakoff's statements in that interview might have on the taint analysis for the
third and fourth interviews.
IV. STANDARD OF REVIEW
"We accept the trial court's factual findings except when clearly
erroneous."28 We review questions of law de novo and "adopt the rule of law that is
most persuasive in light of precedent, reason, and policy."29 Whether the facts found by
the trial court "lead to the conclusion that the defendant [was] in custody for Miranda
purposes" is a mixed question of law and fact, and we therefore "apply de novo review
to the ultimate Miranda custody determination" on appeal.30 Whether a defendant's
subsequent statement is tainted by a prior illegality is a question of law, and we thus
"independently determine[] whether, under [the trial court's findings of historical fact],
27 Id. ¶¶ 6-8.
28 State v. Smith, 38 P.3d 1149, 1153 (Alaska 2002).
29 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
30 Smith, 38 P.3d at 1153.
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the defendant's decision to speak with the police was voluntary and sufficiently insulated
from the prior illegality to escape its taint."31
V. DISCUSSION
Kalmakoff argues that he was in police custody throughout his first
interview with the Alaska State Troopers and was thus entitled toMiranda warnings; that
the troopers violated Miranda and Kalmakoff's right to remain silent in the second
interview; and that these violations tainted the statements obtained in the third and fourth
interviews, ultimately requiring that the statements from all four interviews be
suppressed.32 We begin our analysis by reviewing the protections against self-
incrimination guaranteed by the United States Constitution and the Alaska Constitution.
We then turn to whether Kalmakoff was in custody throughout the first interview and
whether Kalmakoff's statements made during the third and fourth interviews were tainted
by prior illegalities and thus should have been suppressed.
A. The Protections Guaranteed By The Fifth Amendment To The United
States Constitution And Article I, Section 9 Of The Alaska
Constitution
"A criminal suspect's right to remain silent in the face of police
interrogation represents one of the most fundamental aspects of our constitutional
jurisprudence."33 The Fifth Amendment to the United States Constitution and article I,
31 Halberg v. State, 903 P.2d 1090, 1095 (Alaska App. 1995).
32 Kalmakoff also maintains that he was in police custody during the third
interview at his grandparents' home and that this interview contained independent
Miranda violations. We need not address this question because we conclude that even
if Kalmakoff was not in custody during the third interview, that interview was tainted by
the violations that occurred in the first and second interviews. See infra Part V.C.2.
33 Beavers v. State, 998 P.2d 1040, 1045 (Alaska 2000).
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section 9 of the Alaska Constitution guarantee that no person "shall be compelled in any
criminal [case or proceeding] to be a witness against himself."34 "While the core
protection is a prohibition on compelling a defendant to testify against himself at trial,"35
the privilege against self-incrimination is also "enforceable in any setting where a suspect
is subject to custodial police interrogation."36
In the landmark case of Miranda v. Arizona, the United States Supreme
Court recognized that because custodial interrogation involves inherent pressures that
can compel a suspect to speak against his will, "[u]nless adequate protective devices are
employed to dispel the compulsion inherent in custodial surroundings, no statement
obtained from the defendant can truly be the product of his free choice."37 The Court
therefore held that "[i]n order to combat these pressures and to permit a full opportunity
to exercise the privilege against self-incrimination, the accused must be adequately and
effectively apprised of his rights and the exercise of those rights must be fully
34 The due process clause of the Fourteenth Amendment incorporates the Fifth
Amendment privilege against self-incrimination such that it is protected from abridgment
by the States. Malloy v. Hogan, 378 U.S. 1, 6 (1964). To the extent that our
interpretation of this privilege may be more protective than federal constitutional law,
we base our ruling on article I, section 9 of the Alaska Constitution. See Beavers, 998
P.2d at 1046 n.30. "While we have observed that the language of § 9 is 'virtually
identical' to the wording of the Fifth Amendment of the United States Constitution, we
have interpreted § 9 more broadly than the U.S. Supreme Court has construed the Fifth
Amendment of the Federal Constitution." Munson v. State, 123 P.3d 1042, 1049 n.48
(Alaska 2005) (internal citations omitted).
35 Munson, 123 P.3d at 1047 (citing United States v. Patane, 542 U.S. 630,
638 (2004)).
36 Id. at 1047 (citing Miranda v. Arizona, 384 U.S. 436, 477 (1966);Beavers,
998 P.2d at 1045 & n.25).
37 384 U.S. at 458.
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honored."38 The Court specified that prior to questioning, a suspect in police custody
must be warned "that he has the right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the presence of an attorney, and that
if he cannot afford an attorney one will be appointed for him prior to any questioning if
he so desires."39
The Miranda warnings are "concrete constitutional guidelines" that act as
critical procedural safeguards of a suspect's privilege against self-incrimination.40 The
warnings are "absolute prerequisite[s] in overcoming the inherent pressures of the
interrogation atmosphere."41 For that reason, "[f]ailure to administer Miranda warnings
creates a presumption of compulsion," and any unwarned statements must be excluded
,
from evidence.42 43
38 Id. at 467.
39 Id. at 479.
40 Id. at 442, 444; see also Dickerson v. United States, 530 U.S. 428, 434-35
(2000) (holding that Miranda is a constitutional rule).
41 Miranda, 384 U.S. at 468.
42 Oregon v. Elstad, 470 U.S. 298, 307 (1985); see also New York v. Quarles,
467 U.S. 649, 654 (1984) ("[S]tatements made under [custodial interrogation] are
inadmissible unless the suspect is specifically informed of his Miranda rights and freely
decides to forgo those rights."); Munson v. State, 123 P.3d 1042, 1047 (Alaska 2005)
("The failure to provide proper warnings . . . is generally sufficient to exclude any
statements obtained.") (citing Missouri v. Seibert, 542 U.S. 600, 608 (2004)).
43 For a suspect's statement to be admissible, that statement must also have
been voluntarily made, see Elstad, 470 U.S. at 304 (explaining that statements are
involuntary under the Due Process Clause if they are obtained by techniques and
methods offensive to due process); Hunter v. State, 590 P.2d 888, 899 (Alaska 1979)
(describing an involuntary confession as one where "a defendant's will was overborne"
(continued...)
-22- 6583
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Not only must police apprise a suspect of his constitutional rights by
administering the Miranda warnings, they must also fully honor the exercise of those
rights:
Once warnings have been given, the subsequent procedure is
clear. If the individual indicates in any manner, at any time
prior to or during questioning, that he wishes to remain silent,
the interrogation must cease. At this point he has shown that
he intends to exercise his Fifth Amendment privilege; any
statement taken after the person invokes his privilege cannot
be other than the product of compulsion, subtle or otherwise.
Without the right to cut off questioning, the setting of
in-custody interrogation operates on the individual to
overcome free choice in producing a statement after the
privilege has been once invoked.[44]
Post-Miranda United States Supreme Court decisions have reiterated that a suspect's
right to cut off questioning includes the right to "control the time at which questioning
occurs, the subjects discussed, and the duration of the interrogation," and that the police
must "scrupulously honor[]" a suspect's invocation of his right to silence.45
43(...continued)
by coercive tactics), and the suspect must have made a knowing and intelligent waiver
of his Miranda rights, see Munson, 123 P.3d at 1047 (citing Smith v. Illinois, 469 U.S.
91, 95 (1984)). Voluntariness and waiver are not at issue in this appeal.
44 Miranda, 384 U.S. at 473-74; see also Beavers v. State, 998 P.2d 1040,
1045-46 (Alaska 2000) ("A criminal suspect's right to remain silent . . . includes the right
to terminate an interrogation at any time." (internal citations omitted)).
45 Munson, 123 P.3d at 1048 (quotingMichigan v. Mosley, 423 U.S. 96, 103-
04 (1975)).
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B. Kalmakoff Was In Custody For Miranda Purposes Throughout His
First Interview With The Troopers.
For the Miranda safeguards to apply, a person must be subject to custodial
police interrogation. The Miranda Court described custodial interrogation as
"questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way."46
Accepting the findings of historical fact made by the trial court, we apply de novo review
to the Miranda custody determination.47
Our test for determining whether a person is in custody for Miranda
48 49
purposes is set out in two cases: Hunter v. State and State v. Smith. In Hunter, we
adopted an objective "reasonable person" test,50 holding that "custody occurs if the
suspect is physically deprived of his freedom of action in any significant way or is led
to believe, as a reasonable person, that he is so deprived."51 We further described this
test as requiring "some actual indication of custody such that a reasonable person [in the
suspect's position] would feel he was not free to leave and break off police
46 Miranda, 384 U.S. at 444.
47 State v. Smith, 38 P.3d 1149, 1153 (Alaska 2002).
48 590 P.2d 888 (Alaska 1979).
49 38 P.3d 1149 (Alaska 2002).
50 Hunter, 590 P.2d at 895.
51 Id. at 894-95 (quoting People v. Arnold, 426 P.2d 515, 521 (Cal. 1967) (in
bank), overruled on other grounds by Walker v. Super. Ct., 763 P.2d 852 (Cal. 1988) (in
bank)).
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questioning."52 In Smith, we reaffirmed the Hunter test53 but clarified that the "ultimate
inquiry" is whether there was a "restraint on freedom of movement of the degree
associated with a formal arrest."54
Both Hunter and Smith describe three categories of facts that are relevant
to the custody determination: (1) "facts pertaining to events before the interrogation,"
particularly whether the defendant came to the place of questioning "completely on his
own, in response to a police request, or [was] escorted by police officers"; (2) "facts
intrinsic to the interrogation," such as when and where it occurred, how long it lasted,
how many officers were present, what the officers and defendant said and did, whether
there were physical restraints, drawn weapons, or guards stationed at the door, and
whether the defendant was being questioned as a suspect or witness; and (3) post-
interrogation events, particularly whether the defendant "left freely, was detained, or was
arrested."55 We noted in Smith, however, that "[t]he post-interview events factor is of
limited weight."56
As the court of appeals recognized, the Miranda custody determination in
this case is complicated by Kalmakoff's age and the fact that he was removed from
52 Id. at 895.
53 Smith, 38 P.3d at 1154 (reiterating that we must decide "given the totality
of [the] circumstances, whether a reasonable person would have felt he or she was not
at liberty to terminate the interrogation and leave").
54 Id. (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)).
55 Id. at 1154; Hunter, 590 P.2d at 895.
56 Smith, 38 P.3d at 1159.
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school for the police interview.57 The court of appeals conducted a survey of relevant
case law regarding "whether, and how, an adolescent's status as a secondary school
student affects the assessment of whether a police interview is 'custodial' for purposes
ofMiranda when the adolescent is summoned from class to be interviewed."58 The court
of appeals concluded that other courts "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."59 The court of appeals further explained that factors generally considered by
other courts include: (1) "the age and sophistication of the student"; (2) "whether the
student was told that [the student was] free to leave or to break off the questioning if [the
student] wished"; and (3) "whether the student was given the opportunity to consult or
obtain the presence of a parent or guardian."60
We agree with the court of appeals that these factors are relevant to the
Miranda custody determination in this case and fit within the framework already
57 Kalmakoff v. State (Kalmakoff II), 199 P.3d 1188, 1197 (Alaska App.
2009).
58 Id. at 1197-99 (citing Doe v. Bagan, 41 F.3d 571, 575 n.3 (10th Cir. 1994);
In re J.H., 928 A.2d 643, 649-51 (D.C. 2007); In re J.C., 591 So. 2d 315, 316 (Fla. App.
1991);Dillard v. State, 612 S.E.2d 804, 807-08 (Ga. App. 2005); State v. Doe, 948 P.2d
166, 172-74 (Idaho App. 1997);People v. Pankhurst, 848 N.E.2d 628, 632-36 (Ill. App.
2006); In re G.S.P., 610 N.W.2d 651, 657-59 (Minn. App. 2000); State v. Budke, 372
N.W.2d 799, 801-02 (Minn. App. 1985); In re Loredo, 865 P.2d 1312 (Or. App. 1993);
In re Killitz, 651 P.2d 1382 (Or. App. 1982); J.D. v. Commonwealth, 591 S.E.2d 721,
725 (Va. App. 2004); State v. D.R., 930 P.2d 350, 352-53 (Wash. App. 1997); In re
C.S.C. v. State, 118 P.3d 970, 976-78 (Wyo. 2005)).
59 Id. at 1197.
60 Id.
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established by Hunter and Smith. The factors listed in Hunter and Smith are not
exhaustive, and when a student is summoned from class to speak with a police officer,
additional relevant factors to consider include whether the student was given the
opportunity to consult with or obtain the presence of a parent or guardian; the student's
age and sophistication; and whether the student was told that he was free to leave or
break off questioning.61 Indeed, the United States Supreme Court recently held that "a
child's age properly informs the Miranda custody analysis."62
The court of appeals decided that the circumstances leading to Kalmakoff's
first interview had not been sufficiently litigated or clarified to determine whether
Kalmakoff was in custody throughout that interview.63 We therefore remanded to the
trial court for additional factual findings.64 After reviewing the trial court's findings on
remand and the supplemental briefing submitted by the parties, we now conclude that
Kalmakoff was in custody throughout his first interview with the Alaska State Troopers.
Although Kalmakoff was not formally arrested, his freedom of movement was restrained
61 See Smith, 38 P.3d at 1154-55;Hunter, 590 P.2d at 895. The consideration
of these additional factors does not transform the custody inquiry into a subjective test;
we do not expect the police to bear "the burden of anticipating the frailties or
idiosyncracies of every person whom they question." Hunter, 590 P.2d at 896. We
simply note that readily ascertainable facts, such as the suspect's age, are relevant to
whether "[a] reasonable person in the defendant's position" would feel free to leave or
break off questioning. Id. at 898 (emphasis added).
62 J.D.B. v. North Carolina, 131 S. Ct. 2394, 2399 (2011); see also id. at 2403
(explaining that "a reasonable child subjected to police questioning will sometimes feel
pressured to submit when a reasonable adult would feel free to go").
63 Kalmakoff II, 199 P.3d at 1199.
64 Alaska Supreme Court Order No. 69 (June 1, 2010).
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in such a way that a reasonable person in Kalmakoff's position would not have felt free
to leave the interview or break off questioning.
The findings on remand regarding the events leading up to the first
interrogation compel this conclusion. Hunter and Smith instruct that whether the suspect
came to the place of questioning "completely on his own, in response to a police request,
or [was] escorted by police officers" is an especially important factor to consider.65 Here,
Kalmakoff was removed from school and transported to the interview by the VPSO in
her official vehicle. The troopers had instructed the VPSO to bring Kalmakoff, along
with two other students, to the city offices. Even if the use of the VPSO truck can be
explained by convenience, Kalmakoff was still escorted to the interview by a law
enforcement officer. Furthermore, the VPSO told Kalmakoff that the troopers needed
to get some information from him, and neither the VPSO nor the principal teacher told
Kalmakoff that he did not have to attend the interview or answer the troopers' questions.
On remand, the superior court found that Kalmakoff likely believed that he had to go
with the VPSO to the interview. Finally, the superior court found that neither the
troopers nor school authorities informed Kalmakoff's grandparents about the interview
and Kalmakoff was not given the opportunity to consult with or obtain the presence of
a parent or guardian before the interview began. Even when Kalmakoff's grandmother
came to the city offices, the troopers did not inform her that they were questioning
Kalmakoff or invite her to join them in the interview.
The State tries to downplay the significance of these facts by arguing that
because students are accustomed to having their actions directed by school authorities,
being directed to attend a police interview "is no more restrictive or intrusive than what
65 Smith, 38 P.3d at 1154 (quoting Hunter, 590 P.2d at 895).
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the student may experience on other days for other reasons" and is not "tantamount to
a formal arrest." The State notes that Kalmakoff was originally called out of class by the
school's principal teacher and claims that removing Kalmakoff from school for the
interview was therefore not "an infringement on [his] freedom of movement" because
"[p]rincipals and teachers routinely assert authority over students." The State compares
being summoned for a police interview to being told to go to the counselor's office to
discuss class choices or the auditorium to take a standardized test.
This argument misunderstands the significance of the school environment
in a custody evaluation. It is precisely because students are accustomed to having their
actions directed by school authorities that a student who is told by a principal or teacher
that he must speak with a law enforcement officer might reasonably believe that he is not
free to leave the interview or break off questioning.66 Furthermore, a police interview
is not something that a reasonable student would anticipate as part of a normal school
day and is simply not comparable to routine activities such as taking a standardized test
or speaking with a counselor about class choices. Thus, the fact that a student was
directed by school authorities to leave class to speak with law enforcement officers is a
relevant fact "pertaining to events before the interrogation"67 that may, depending on the
individual circumstances, support a finding of Miranda custody.
But even if we were to accept the State's premise, it would not change the
outcome of this particular case. The State cites several cases where students who were
66 See In re Killitz, 651 P.2d 1382, 1384 (Or. App. 1982) ("[D]efendant
cannot be said to have come voluntarily to the place of questioning. He would likely
have been subject to the usual school disciplinary procedures had he not complied with
the principal's request that he come to the office.").
67 Smith, 38 P.3d at 1154.
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summoned from class to meet with police officers were found not to be in Miranda
custody. But all of these cases concern students who were questioned on school
premises, whereas Kalmakoff, after being called out of class by the principal teacher, was
removed from school by the VPSO and transported to the city building that contained
the VPSO office.68 And here it was the VPSO who told Kalmakoff that the troopers
needed to get some information from him.
The events before the interrogation thus weigh strongly in favor of a finding
that Kalmakoff was in Miranda custody throughout the first interview. Facts intrinsic
to the interrogation also support this conclusion. Kalmakoff had turned 15 only a few
weeks before, and he had no previous history of delinquent acts or contact with law
enforcement. Troopers Mlynarik and Stephenson were in uniform and visibly armed,
and they did not tell Kalmakoff that he was free to leave or that he did not have to answer
their questions. Instead, Trooper Stephenson repeatedly emphasized that Kalmakoff
needed to tell them the truth. Moreover, the troopers' questions became pointed and
accusatory well before the break in the interview where the trial court found that the
interview became custodial, including a series of questions that directly implicated
Kalmakoff in the murder.
68 See, e.g., In re J.H., 928 A.2d 643, 646-51 (D.C. 2007) (holding that
student was not in custody when summoned to speak with one plain-clothes officer in
large school conference room); State v. Polanco, 658 So. 2d 1123, 1123-25 (Fla. App.
1995) (holding that 18-year-old student was not in custody when summoned from class
to speak with two plain-clothes detectives in school conference room, but remanding for
a determination whether interview became custodial when student was asked to
accompany the officers to the station for further questioning); Dillard v. State, 612
S.E.2d 804, 807-08 (Ga. App. 2005) (holding that 18-year-old student was not in custody
when summoned to speak with two investigators in the principal's office).
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----------------------- Page 31-----------------------
There are some facts intrinsic to the interview that, standing alone, suggest
that the interview was not custodial: the troopers conducted interviews with several
people throughout the day; the interview was conducted in a large, well-lit room with
windows; no guards were stationed outside the room; no weapons were drawn; and the
interview was described as "informal and quiet."69 But in light of all the relevant facts,
these circumstances do not change our conclusion that, from the beginning of the first
interview, Kalmakoff's freedom was restrained in such a way that a reasonable person
in Kalmakoff's position would not have felt free to leave or break off questioning.
Kalmakoff was in custody for Miranda purposes throughout the first interview and was
therefore entitled to Miranda warnings prior to questioning. Because the troopers failed
to administer those warnings, all of Kalmakoff's statements made during the first
interview were obtained illegally and must be suppressed.
C. The Troopers' Actions In The First And Second Interviews Tainted
Kalmakoff's Statements Made In The Third And Fourth Interviews.
"[A] criminal defendant can seek suppression of his or her statements to the
police on the ground that those statements are tainted by a prior illegality."70 For
example, "a defendant may claim that his or her confession is the product of statements
made at an earlier interview in which the police violated the defendant's privilege against
69 The events after the interrogation do not weigh strongly for or against a
finding of custody: Kalmakoff was not arrested, but his freedom of movement continued
to be restrained when the troopers instructed Kalmakoff's grandmother not to allow him
to return home. As we recognized in Smith, "[t]he post-interview events factor is of
limited weight," 38 P.3d at 1159, and in this case it is even less probative because the
superior court has already determined that the second portion of the first interview was
custodial and the State has not challenged that determination.
70 Halberg v. State, 903 P.2d 1090, 1093 (Alaska App. 1995) (citing Wong
Sun v. United States, 371 U.S. 471 (1963)).
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self-incrimination."71 Kalmakoff argues that the illegalities in the first and second
interviews tainted the statements he made in the third and fourth interviews, ultimately
requiring that all four interviews be suppressed.72 Whether a defendant's subsequent
statement is tainted by a prior constitutional violation is a question of law, and we
therefore independently determine whether, under the superior court's findings of
historical fact, "the defendant's decision to speak with the police was voluntary and
sufficiently insulated from the prior illegality to escape its taint."73 Because the law
regarding whether a subsequent admission is tainted by a previous illegality has evolved
over time, we first address the test we apply to determine whether Kalmakoff's later
statements were tainted.
1. The court of appeals correctly looked to the factors articulated
in Halberg v. State to determine whether Kalmakoff's third and
fourth interviews were tainted by prior illegalities.
Alaska courts have historically used a single legal test to determine whether
a previous violation of a criminal defendant's Fifth Amendment rights - either an
involuntary statement or a statement taken in violation of Miranda - tainted the
71 Id.
72 As noted previously, see supra Part III.A, the superior court suppressed the
entirety of Kalmakoff's second interview prior to trial based on the troopers' failure to
properly administer Miranda warnings at the beginning of the second interview and their
refusal to honor Kalmakoff's invocation of his right to silence once the warnings were
finally administered. The State conceded prior to trial that Kalmakoff's statements made
after Miranda warnings were administered should be suppressed because the troopers
ignored Kalmakoff's invocation of his right to remain silent, and the State does not
challenge the suppression of the second interview on appeal.
73 Halberg, 903 P.2d at 1095 (citations omitted).
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defendant's subsequent statement.74 The court of appeals explained this test in its leading
opinion on this subject, Halberg v. State :
As a preliminary matter, the government had to show that the
defendant's subsequent statement was voluntary and, if the
defendant was in custody during the subsequent
interrogation, that the defendant received proper Miranda
warnings and waived his or her rights. Assuming these
foundational matters were proved, courts then analyzed the
totality of the circumstances to assess whether the
defendant's decision to give a subsequent statement was
"sufficiently an act of free will to purge the primary taint."[75]
The totality of the circumstances analysis has also been described as whether there was
a "break in the stream of events . . . sufficient to insulate the [subsequent] statement from
the effect of all that went before"76 and as whether the connection between the illegal
conduct of the police and the challenged evidence has "become so attenuated as to
dissipate the taint."77
The Halberg test is based on the United States Supreme Court's decision
in Brown v. Illinois.78 In Brown, the United States Supreme Court clarified that whether
the taint had dissipated was not a "but for" inquiry, rejecting the argument that
suppression was always required when a defendant's subsequent statement was the result
74 See id. at 1094.
75 Id. (quoting Brown v. Illinois, 422 U.S. 590, 602 (1975) (citing Wong Sun,
371 U.S. at 486)).
76 Id. at 1094 (quoting Clewis v. Texas, 386 U.S. 707, 710 (1967)).
77 Wong Sun, 371 U.S. at 487 (quoting Nardone v. United States, 308 U.S.
338, 341 (1939)).
78 422 U.S. 590 (1975).
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of prior illegality and instead held that "[t]he question whether a [subsequent] confession
is the product of a free will under Wong Sun must be answered on the facts of each case.
No single fact is dispositive."79 The Court further explained that "[t]he temporal
proximity of the [initial illegality] and the confession, the presence of intervening
circumstances, and, particularly, the purpose and flagrancy of the official misconduct are
all relevant" circumstances to consider.80 The Alaska Court of Appeals agreed with this
approach in Halberg :
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 [a defendant's] decision to submit to the [subsequent
interview] was "sufficiently an act of free will to purge
the . . . taint" of the Miranda violation at the first
interview.[81]
To answer this question, the court of appeals in Halberg instructed courts to consider a
number of relevant factors:
[T]he purpose and flagrancy of the initial illegal act, the
amount of time between the illegal act and the defendant's
subsequent statement, the defendant's 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 defendant's interrogators were the same officers
who committed the prior illegal act, whether the evidence
obtained from the prior illegal act affected the defendant's
79 Halberg, 903 P.2d at 1094 (quoting Brown, 422 U.S. at 603).
80 Brown, 422 U.S. at 603-04 (footnotes and internal citations omitted).
81 Halberg, 903 P.2d at 1097 (quoting Brown, 422 U.S. at 602).
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decision to submit to a subsequent interview, whether the
police used lies or trickery to influence the defendant's
decision, and whether there were other intervening events
that affected the defendant's decision.[82]
As we noted in our June 2010 order, the court of appeals correctly looked
to the factors articulated in Halberg to determine whether Kalmakoff's statements from
the third and fourth interviews were tainted by the prior illegalities.83 In its initial
briefing to this court, the State urged us to apply the test outlined by the United States
Supreme Court in Oregon v. Elstad84 rather than the Halberg factors. The Elstad Court
held that when the only prior illegality is "a simple failure to administer the [Miranda]
warnings,"85 a "careful and thorough administration of the Miranda warnings" prior to
the subsequent statement "serves to cure the condition that rendered the unwarned
statement inadmissible."86
Neither our court nor the court of appeals has ever decided whether to adopt
Elstad as a matter of state constitutional law.87 But we do not need to decide that
82 Id. at 1098 (citations omitted).
83 Alaska Supreme Court Order No. 69 (June 1, 2010).
84 470 U.S. 298 (1985).
85 Id. at 309.
86 Id. at 310-11.
87 See Munson v. State, 123 P.3d 1042, 1049 n.48 (Alaska 2005) (noting that
we have interpreted article I, section 9 of the Alaska Constitution "more broadly than the
U.S. Supreme Court has construed the Fifth Amendment of the Federal Constitution");
see also, e.g., Blue v. State, 558 P.2d 636, 641-43 (Alaska 1977) (construing the pre-
indictment right to counsel more broadly than the federal constitution); Whitton v. State,
479 P.2d 302, 309-10 (Alaska 1970) (construing double jeopardy more broadly); Baker
(continued...)
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question in this case because the facts here fall well outside of Elstad 's purview. Elstad
involved only a failure to administerMiranda warnings, and the Elstad Court made clear
that its decision did not apply to at least two scenarios: first, cases where the "initial
unwarned statement [was] obtained through overtly or inherently coercive methods
which raise serious Fifth Amendment and due process concerns" and second, cases
"concerning suspects whose invocation of their rights to remain silent and to have
counsel present were flatly ignored while police subjected them to continued
interrogation."88
This case falls squarely within the second exception. The troopers did
commit two procedural violations of Miranda when they failed to administer the
warnings to Kalmakoff prior to the first and second interviews. But they also flatly
ignored Kalmakoff's repeated invocations of his right to remain silent after they finally
administered Miranda warnings midway through the second interview. This violation
rises above the prophylactic concerns of Miranda and intrudes upon the constitutional
right to remain silent in the face of police interrogation, a right that we have recognized
as "one of the most fundamental aspects of our constitutional jurisprudence."89 When
the police fail to properly administer Miranda warnings, we presume that a suspect's
87(...continued)
v. City of Fairbanks, 471 P.2d 386, 401-02 (Alaska 1970) (construing the right to jury
trial more broadly); Roberts v. State, 458 P.2d 340, 342-43 (Alaska 1969) (construing
the pre-trial right to counsel more broadly).
88 Elstad, 470 U.S. at 312 n.3.
89 Beavers v. State, 998 P.2d 1040, 1045 (Alaska 2000).
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statements are compelled in order to safeguard the privilege against self-incrimination.90
But when the police refuse to honor a suspect's invocation of his right to silence, "any
statement taken after the person invokes his privilege cannot be other than the product
of compulsion, subtle or otherwise."91 Because the troopers in this case not only failed
to administer Miranda warnings but also violated Kalmakoff's constitutional right to
silence, we look to the factors articulated in Halberg v. State to determine whether
Kalmakoff's decision to speak with the troopers in the third and fourth interviews was
sufficiently insulated from the prior illegalities to escape their taint.
2. The third interview was tainted by the prior illegalities.
We begin by using the Halberg factors to analyze Kalmakoff's third
interview with the troopers. We agree with the court of appeals that some of the Halberg
factors suggest that there was a break in the stream of events between the interviews:
Kalmakoff was not in custody during the few hours that elapsed between the interviews
and thus had the opportunity to speak with friends or family at home or at school; the
third interview took place at Kalmakoff's home, rather than the city building; the third
interview lasted less than 25 minutes; Kalmakoff's grandparents were present at the third
interview; and the troopers did not use lies or trickery to convince Kalmakoff to submit
to the interview.92
But our analysis differs from that of the court of appeals with respect to
three significant factors: the troopers flagrantly violated Kalmakoff's rights during the
90 See Elstad, 470 U.S. at 306-07.
91 Miranda v. Arizona, 384 U.S. 436, 474 (1966).
92 See Kalmakoff v. State (Kalmakoff II), 199 P.3d 1188, 1202-03 (Alaska
App. 2009).
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second interview; they obtained important incriminating information through those
violations; and they proceeded to use that illegally obtained information to convince
Kalmakoff to submit to the third interview. Given this sequence of events, it is
impossible to say that the connection between the troopers' illegal conduct and
Kalmakoff's third interview statements was "so attenuated as to dissipate the taint."93
The United States Supreme Court in Brown v. Illinois instructed that "the
purpose and flagrancy of the official misconduct" is a particularly important factor in
determining whether a subsequent statement is insulated from the prior illegality.94
Although there is no indication that the subjective intent of the troopers was to violate
Kalmakoff's rights, the misconduct that occurred in this case was flagrant. The court of
appeals described the troopers' violations in the second interview as "egregious."95 The
court of appeals stated that the troopers "repeatedly disregarded Kalmakoff's requests
to leave the interview"; "failed to honor [Kalmakoff's] invocation of his right to silence";
and "implied that [Kalmakoff] did have to speak to them."96 Moreover, the troopers
implied that Kalmakoff's "only choice was whether to be questioned alone or in the
presence of his grandparents"; "demanded to know why Kalmakoff was not willing to
93 Wong Sun v. United States, 371 U.S. 471, 487 (1963) (quoting Nardone v.
United States, 308 U.S. 338, 341 (1939)).
94 422 U.S. 590, 603-04 (1975) (internal citations omitted).
95 Kalmakoff II, 199 P.3d at 1202.
96 Id. at 1201-02.
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speak to them"; and "tried to get [Kalmakoff] to agree to be interrogated on a question-
by-question basis."97
But the court of appeals decided that it "must draw a distinction between
the troopers' conduct at the first interview and the troopers' conduct at the second
interview."98 The court thus concluded that even assuming the troopers violated
Kalmakoff's Miranda rights in the first interview,99 that violation was not flagrant
because the tone of the interview was polite and Kalmakoff was not lied to, threatened,
or bullied.100 Although it may be true that this violation standing alone is not flagrant,
we cannot ignore the reality that by the time of the third interview, Kalmakoff had been
subjected to a pattern of violations: the failure to administerMiranda warnings at the first
interview; the failure to properly administer the warnings at the beginning of the second
interview; the refusal to honor his requests to leave the second interview before the
warnings were administered; and the failure to honor his invocation of his constitutional
right to silence after the warnings were given. We have previously recognized that
"ignoring or rebuffing a suspect's invocation of his or her constitutional rights will
convince the suspect that such rights are illusory."101 This consequence is undoubtedly
97 Id. at 1202.
98 Id. at 1201.
99 We reiterate our conclusion that Kalmakoff was in custody throughout the
first interview and that the troopers thus violated Miranda by failing to administer the
warnings. See supra Part V.B.
100 Kalmakoff II, 199 P.3d at 1201.
101 Mallott v. State, 608 P.2d 737, 742 (Alaska 1980) (citing Michigan v.
Mosley, 423 U.S. 96, 110 n.2 (1975) (White, J., concurring); Miranda v. Arizona, 384
U.S. 436, 466 (1966)).
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greater when the suspect's rights are repeatedly and persistently violated. The pattern
of violations in this case is thus greater than the sum of its parts, and accordingly
increases the flagrancy of the official misconduct.
The court of appeals also underestimated the significance of the
information obtained through the troopers' misconduct. The court of appeals concluded
that in the 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 . . . could
go back to [the friend's] house and shoot the gun."102 As we explained in our June 2010
order, we do not agree with this assessment:
Our review of the transcripts indicates that during the first
half of the first interview, Kalmakoff made three highly
significant admissions that may have influenced his later
decision to confess in the third interview: that he was
drinking on the night of the murder; that he and his cousin
found the murder weapon in the house where the victim was
sleeping and took it with them; and that he and his cousin
returned to "check on" the victim several times and the victim
became angry with him.[103]
Given Trooper Stephenson's remark to Trooper Mlynarik that they were "hot on the trail
now" after Kalmakoff gave these statements, it seems that the troopers also thought these
admissions were significant.
Similarly, the court of appeals concluded that the troopers "obtained little
information" from the violations that occurred in the second interview, stating that
"Kalmakoff made only one self-incriminating admission: that he had consumed about
102 Kalmakoff II, 199 P.3d at 1201.
103 Alaska Supreme Court Order No. 69 ¶ 4 (June 1, 2010).
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half a pint of whiskey on the evening of the homicide."104 But this ignores a crucial
passage from the second interview. After Kalmakoff asked to leave the interview and
return to school, the troopers pressed him on why he did not want to talk to them. In
response, Kalmakoff said, "I don't know, sorta scared." When Trooper Allen asked what
he was scared about, Kalmakoff replied, "That I did it."
Finally, we disagree with the court of appeals' conclusion that Kalmakoff's
decision to participate in the third interview was not materially affected by the statements
obtained from him during the first and second interviews.105 When the troopers first
asked Kalmakoff if he would speak with them in the presence of his grandparents,
Kalmakoff did not respond. Trooper Allen then encouraged Kalmakoff to participate in
the interview:
Because you know there's - there's some things that you
might've told us already that they might not even know
about. You think that'd be fair, you think? . . . Eventually all
the information's gonna be available. . . . [unknown
indiscernible speaker] [W]ould you like to start off so that
you can bring your [g]randparents up to speed on everything
that you've talked to us about already[?]
(Emphasis added.) When Kalmakoff said that he didn't know where to start, Trooper
Allen prompted him by referring to a specific admission from the first interview: "[D]id
you talk with Trooper Stephenson about - about a gun?"
Two things about this exchange demonstrate that Kalmakoff's decision to
submit to the third interview was substantially affected by his earlier statements.106 First,
104 Kalmakoff II, 199 P.3d at 1202.
105 Id.
106 Midway through this exchange is also when Trooper Stephenson made an
(continued...)
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by telling Kalmakoff that it was only fair to tell his grandparents what he had told the
troopers because "[e]ventually all the information's gonna be available," Trooper Allen
communicated to Kalmakoff that refusing to participate in the interview would be futile
given his earlier incriminating statements.107 Second, the message that it was futile to
resist was compounded by Trooper Allen's direct references to the illegally obtained
statements - both generally, by asking Kalmakoff to bring his grandparents "up to
speed" regarding the earlier statements, and specifically, by prompting Kalmakoff to talk
about the gun. Later in the interview, the troopers asked more specific questions about
Kalmakoff's earlier admissions, including about "checking on" the victim and the
victim's angry response toward Kalmakoff. By using these statements to induce
Kalmakoff to participate in the third interview, the troopers connected that interview
back to the flagrant violations of Kalmakoff's rights that they had committed only a few
106(...continued)
oblique reference to Kalmakoff's Miranda rights, saying "Byron, I just want to remind
you that what I read to you earlier, still applies, but um, like - like I said, we're hoping
we can just ah, get everything out in the open." Because we do not reach the question
whether Kalmakoff was in custody during the third interview, we cannot say that a full
set of Miranda warnings was independently required. As the United States Supreme
Court recognized in Brown v. Illinois, however, "[t]he Miranda warnings are an
important factor . . . in determining whether the confession is obtained by exploitation
[of a previous illegality]," 422 U.S. 590, 603 (1975), and a full and unqualified set of
warnings at this juncture may have helped to dissipate the taint. But Trooper
Stephenson's reference was by no means a full and unqualified set of warnings, and may
only have served to remind Kalmakoff that his earlier attempt to exercise his rights was
ineffective.
107 See Halberg v. State, 903 P.2d 1090, 1099 (Alaska App. 1995) (concluding
that reminding Halberg of statements made in the previous interview was not problematic
because "[t]he troopers never employed Halberg's prior statements to try to induce her
to waive her rights (by suggesting that she might as well talk to the officers since she had
already confessed)").
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hours earlier. We therefore conclude that Kalmakoff's statements in the third interview
were not sufficiently insulated from the taint of the prior illegalities, and those statements
must be suppressed.
3. The fourth interview was tainted by prior illegalities.
Many of the same considerations lead us to conclude that Kalmakoff's
statements made during the fourth interview were also tainted by prior illegalities. The
same troopers conducted the fourth interview, and our analysis of the flagrancy of the
prior illegalities and the information obtained from the earlier illegalities remains the
same. We recognize that several of the Halberg factors weigh in favor of admitting the
fourth interview: there was a break of almost 24 hours between the third and fourth
interviews; Kalmakoff was at liberty during this interval; and the fourth interview took
place at a different location. But given the exchange between the troopers and
Kalmakoff at the beginning of the fourth interview, we cannot say that these factors
created a "break in the stream of events . . . sufficient to insulate the [fourth] statement
from the effect of all that went before."108
The State argues that the fourth interview was sufficiently attenuated from
the prior illegalities because "the troopers were not in any way overbearing, and at the
beginning of the interview advised Kalmakoff of his Miranda rights and made it clear
that the choice to participate in the interview was Kalmakoff's." But this
characterization of the beginning of the fourth interview is not completely accurate. As
described previously,109 the troopers again went to Kalmakoff's school to remove him
from class. Kalmakoff repeatedly asked the troopers when he could return to class, and
108 Halberg, 903 P.2d at 1094 (quoting Clewis v. Texas, 386 U.S. 707, 710
(1967)).
109 See supra Part II.D.
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they initially provided misleading answers, telling Kalmakoff that he could go back to
school in a few hours.110 Trooper Allen then told Kalmakoff, "I wanna have you talk
with us about what happened so that we can understand it very clearly . . . okay, so that
nobody . . . has any questions about stuff okay[,] would you like to go around with us
and do that?" Kalmakoff responded, "I guess so." Thus, prior to administering Miranda
warnings, and after misleading Kalmakoff about when he could return to school, the
troopers had Kalmakoff agree to repeat the information that he had already provided to
them. This exchange alone demonstrates that Kalmakoff's earlier incriminating
statements materially affected his decision to participate in the final interview.
Kalmakoff asked the troopers what was going to happen to him, and
Trooper Allen eventually told Kalmakoff that the troopers would be taking him back to
Anchorage to appear in front of a judge. Kalmakoff then made several additional
incriminating statements, telling the troopers repeatedly that he "didn't do it on purpose."
The troopers reassured Kalmakoff that they understood and that they hadn't told the
victim's family about Kalmakoff's involvement. It was only at that point - after
Kalmakoff had agreed to participate in the interview and made more incriminating
statements - that Trooper Allen administeredMiranda warnings to Kalmakoff. Trooper
Allen qualified the warnings by telling Kalmakoff, "I want to go through this with you
real quick" and reminding him that "we did this before."
To fulfill their role as a critical constitutional safeguard, the Miranda
warnings must "effectively advise the suspect that he [has] a real choice about giving an
admissible statement at that juncture" and they must "reasonably convey that [the suspect
110 At this point, the troopers had already told Kalmakoff's grandparents that
they would be taking Kalmakoff back to Anchorage.
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can] choose to stop talking even if he had talked earlier."111 Even if the troopers had
advised Kalmakoff of his Miranda rights at the outset of the fourth interview, the pattern
and flagrancy of the previous violations would have raised the question whether those
warnings were effective. But the troopers did not administer the warnings until
Kalmakoff agreed to go over the information he had already provided and had made
further incriminating statements. Trooper Allen's language also implied that the
warnings were merely a formality. The administration of the warnings here thus could
not have provided Kalmakoff with a meaningful choice and was not sufficient to insulate
the fourth interview from the prior violations ofMiranda and Kalmakoff's constitutional
right to remain silent. We therefore conclude that Kalmakoff's decision to submit to the
fourth interview was not sufficiently an act of free will to purge the taint of the earlier
violations, and Kalmakoff's statements must be suppressed.
VI. CONCLUSION
To reduce the risk of coerced confessions and to implement the protections
of the self-incrimination clauses of the Fifth Amendment to the United States
Constitution and article I, section 9 of the Alaska Constitution, "the accused must be
adequately and effectively apprised of his rights and the exercise of those rights must be
fully honored."112 In this case, Kalmakoff was not adequately and effectively apprised
of his rights until midway through the second interview, and when he did eventually
receive the Miranda warnings, his exercise of his right to remain silent was ignored.
These violations tainted the statements that Kalmakoff made in the third and fourth
interviews. It was thus error for the trial court to admit the first half of Kalmakoff's first
111 Crawford v. State, 100 P.3d 440, 448 (Alaska App. 2004) (quoting
Missouri v. Seibert, 542 U.S. 600, 612 (2004)).
112 Miranda v. Arizona, 384 U.S. 436, 467 (1966); Seibert, 542 U.S. at 608.
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interview and the entirety of the third and fourth interviews. This error was not harmless
beyond a reasonable doubt and requires reversal of the convictions.113 We REVERSE
the decision of the court of appeals, REVERSE Kalmakoff's convictions, and REMAND
this case for a new trial.
113 See Motta v. State, 911 P.2d 34, 39-40 (Alaska App. 1996) (explaining that
constitutional error requires reversal of a criminal conviction unless that error is harmless
beyond a reasonable doubt) (citing Chapman v. California, 386 U.S. 18, 24 (1967)). The
audio and video tapes of Kalmakoff's fourth interview were played for the jury and the
prosecutor relied on all of the admitted statements in his opening statement and closing
arguments. Here, admission and reliance on the statements that should have been
suppressed to obtain the convictions requires reversal and a remand for new trial. See,
e.g., Klemz v. State, 171 P.3d 1169, 1176 (Alaska App. 2007); Crawford v. State, 100
P.3d 440, 451 (Alaska App. 2004); Miller v. State, 18 P.3d 696, 701 (Alaska App. 2001).
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