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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wagner v. State (4/24/2015) sp-7000

Wagner v. State (4/24/2015) sp-7000

         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  



MICHAEL LOUIS WAGNER,                                        )  

                                                             )    Supreme Court No. S-15419  

                            Petitioner,                      )    Court of Appeals No. A-10870  


         v.                                                  )    Superior Court No. 3AN-06-11374 CR  


STATE OF ALASKA,                                             )    O P I N I O N  


                            Respondent.                      )    No. 7000 - April 24, 2015  


                   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,  Anchorage,  Michael  L.  

                   Wolverton, Judge.  

                   Appearances:    Marjorie  Mock,  Contract  Attorney  for  the  


                   Public  Defender,  Anchorage,  and  Quinlan  Steiner,  Public  

                   Defender,  Anchorage,  for  Petitioner.    Elizabeth  T.  Burke,  


                   Assistant Attorney General, Office of Special Prosecutions &  


                   Appeals,  Anchorage,  and  Craig  W.  Richards,  Attorney  

                   General, Juneau, for Respondent.  

                   Before:   Fabe, Chief Justice, Stowers, Maassen, and Bolger,  


                   Justices. [Winfree, Justice, not participating.]  

                   BOLGER, Justice.  


                   The superior court ruled that the prosecution could use Michael Wagner's  


police interview to impeach him if he took the stand at his murder trial.  Wagner contends  


----------------------- Page 2-----------------------

that the police violated his right to remain silent and that the court's ruling prevented him  


from testifying.   But on this record, it is impossible to tell whether the court's ruling  


affected Wagner's decision not to testify, whether the prosecution would have impeached  


him with his police statement, or whether this evidence would have affected the jury.  We  

conclude that Wagner has not preserved his Miranda claim for appellate review.  

II.       FACTS  

                   Michael Wagner shot and killed his landlord, Steven Key, in October 2006.  

Wagner was living in the mother-in-law unit behind Key's house, and Key's body was  


found  in  that  unit.    Wagner  has  never  denied  responsibility  for  Key's  death  but  has  

consistently claimed that the shooting was an accident.  

                   On the night of the shooting, Wagner called Key reporting the smell of gas  


in the mother-in-law unit.  Key walked over to the unit and stayed for about 13 minutes.1  


Wagner called Key again about an hour later, and Key returned to the mother-in-law unit.  

Within seconds of his arrival, Key was shot once through the head.  

                   Wagner called 911 almost immediately. He told the dispatcher that Key had  


been shot, and he claimed that the shooting "was a[n] accident.   [I was] showing the  


gentleman a pistol and it went off. . . .  He's on the ground.  I can't do nothing about it.  

He's in the house. . . .  I don't know what to do. . . ."  

                   When the police arrived at Wagner's mother-in-law unit, they found Key's  

body on the ground by the door and Wagner sitting on a couch.  An officer arrested  

Wagner, placed him in the back of a patrol car, and drove him to the police station.  At  


the station, Wagner was taken to an interview room.  

          1        The duration of Key's visit was recorded by a video camera Wagner had  

installed outside the mother-in-law unit.  In conjunction with Wagner's phone records,  


this video recording provided a timeline of the events leading up to the shooting.  

                                                            -2-                                                      7000

----------------------- Page 3-----------------------

                    About an hour later, two homicide detectives arrived to question Wagner.  


The detectives read Wagner his Miranda rights,  and Wagner indicated that he understood 

each  right.    The  detectives  then  asked  whether  Wagner  wished  to  talk  to  them,  and  


Wagner responded:  

                    Well, it sounds like if I do that you're gonna already make up  


                    a decision.  I'm gonna need a lawyer then.  I mean, if I say a  


                    bunch of stuff, I mean, if I don't know what I'm talking about  


                    or whatever, then I'm in a - I mean, it was a pure accident.  


                    You know, I mean, I - I just screwed up.  I just bought the  


                    gun, blah, blah.  

Shortly thereafter, Wagner stated:  

                    I'd rather have a lawyer, 'cause that would be I think the only  


                    way, 'cause otherwise, 'cause - I'm not there and if I say  

                    something, so - about - if I do, I don't know.  I mean, it  


                    was [a] pure accident, man.  

                    The detectives asked whether Wagner had an attorney or wanted a phone  

book to try to contact one.  Wagner responded: "Uh, [what did] you mean, [if] I don't  


have [an] attorney, then one will be appointed?"  The detectives answered:  "No.  What  


[will] happen is only if you're charged with a crime and then once you appear in court,  


you can request one or they'll appoint one for you.  Right now, somebody's not charged  


with anything.  There's nothing in the system that appoints you one."  

                    Upon learning he had not yet been charged, Wagner stated, "Oh, well, then  


I'll tell you the whole thing, 'cause I'm not - I thought you had to - I thought you were  


already doing something, 'cause there's no problem for me. . . .  It was a[n] accident."  


The detectives left the room for a few minutes and consulted with a prosecutor.  When  

they returned, the detectives reiterated that no one  had been charged, and that "until  


somebody is actually charged the court doesn't appoint an attorney."  They also repeated  

          2         See Miranda v. Arizona, 384 U.S. 436, 467-73 (1966).  

                                                              -3-                                                           7000  

----------------------- Page 4-----------------------


that "it's still important that you understand that you do have the right to have an attorney  


present."  Finally, they asked Wagner, "Would you like to contact [an] attorney or would  


you like to talk to us about what occurred?"  Wagner replied:  "I need no attorney.  Just  

ask me your questions."  The detectives then interrogated Wagner for the next hour and  

a half.  


                   A  grand  jury  indicted  Wagner  for  first-degree  murder,  second-degree  

murder, and manslaughter.  The indictment was later dismissed when the superior court  


ruled that Wagner had invoked his Fifth Amendment right to counsel before speaking to  


the detectives, that his statement was obtained after this invocation and in violation of  

Miranda , and that the indictment was based at least in part on this statement.  Following  


this dismissal, a second grand jury indicted Wagner on the same charges without being  

presented with Wagner's statement to police.  

                   Before trial, Wagner moved in limine to suppress the use of his statement  

for impeachment purposes if he chose to testify at trial.  The superior court denied the  



motion, citing State v. Batts.  


                   The superior court held a jury trial, and the jury convicted Wagner of first- 


degree murder.  Wagner did not take the stand at trial, but he later testified and was cross- 

examined at his sentencing hearing about the circumstances of the shooting.  

                   Wagner  appealed  his  conviction,  claiming  the  superior  court  erred  by  

denying  his  suppression  motion.                   The  court  of  appeals  affirmed  the  conviction,  

concluding that Wagner had failed to preserve his claim by declining to testify.4 


          3        195 P.3d 144 (Alaska App. 2008).  

          4        Wagner v. State, Mem. Op. & J.  No.  6008,  2013 WL 6576741 (Alaska App.  


                                                            -4-                                                        7000  

----------------------- Page 5-----------------------


filed  a  petition  for  hearing  in  this  court,  urging  us  to  reject  the  court  of  appeals'  

preservation holding.  He further argues that article I, section 9 of the Alaska Constitution  

prohibits the use of his statement for impeachment.  We granted the petition in whole.  




                   The court of appeals declined to consider Wagner's claim that the superior  


court erred by ruling that the State could use his statement to impeach his testimony.  The  



court of appeals concluded that, under the preservation rule of Luce v. United States  and  


State v. Wickham,                                                                                            

                            Wagner waived this claim by failing to testify.  Wagner argues that  



the Luce/ Wickham preservation rule should not have been applied to his case. 

          A.       The Preservation Rule Of Luce v. United States And State v. Wickham  


                   In Luce , the U.S. Supreme Court held, as a matter of federal procedural law,  


that "to raise and preserve for review the claim of improper impeachment with a prior  

conviction, a defendant must testify."8  

                                                         The Court was concerned about the amount of  

speculation required to review an in limine ruling on the admissibility of impeachment  

evidence that is never introduced because the defendant declines to take the stand.9  


          5        469 U.S. 38, 43 (1984).  

          6        796 P.2d 1354, 1357 (Alaska 1990).  

          7        Whether a claim has been preserved for appeal  is a question  of l  aw, which  

we  review de novo.  Cf. Wilkerson  v. State, Dep't of Health  & Soc. Servs., Div. of Family  

&  Youth  Servs.,   993  P.2d  1018,   1021  (Alaska   1999)   ("We   apply  our  independent  

judgment when reviewing an intermediate appellate court's finding of waiver due to  

inadequate briefing.").  

          8        469 U.S. at 43; see also Fed. R. Evid. 609(a).  

          9        Luce , 469 U.S. at 41-43.  

                                                            -5-                                                      7000

----------------------- Page 6-----------------------


the Court articulated four specific reasons why reviewing such rulings would require an  

inappropriate degree of speculation.10  

                   First, in limine rulings are preliminary and "subject to change when the case  

unfolds,  particularly  if  the  actual  testimony  differs  from  what  was  contained  in  the  

defendant's proffer."11  

                                  The Court noted that this concern is particularly true regarding  


evidence of a criminal conviction because Federal Rule of Evidence 609(a)(1)(B) places  


a heightened burden on the prosecution, which must show that the probative value of the  


conviction outweighs its prejudicial effect.                                        

                                                                Because it is difficult for a court to evaluate  

both the probative value and the prejudicial effect of proposed evidence in a factual  

vacuum,  a  preliminary  ruling  under  Rule  609(a)(1)(B)  is  particularly  likely  to  be  

reconsidered at trial.13  

                   Second,  "an  accused's  decision  whether  to  testify  'seldom  turns  on  the  


resolution of one factor,' [and] a reviewing court cannot assume that the adverse ruling  

          10       Id.  

          11       Id. at 41.  

          12       Id. ;  compare  Fed.  R.  Evid.  609(a)(1)  ("[F]or  a  crime  that  .  .  .  was  

punishable  by  death  or  by  imprisonment  for  more  than  one  year,  the  evidence  [of  


conviction] . . . must be admitted [for impeachment use] in a criminal case in which the  


witness is a defendant, if the probative value of the evidence outweighs its prejudicial  


effect to that defendant . . . ."), with Fed. R. Evid. 403 ("The court may exclude relevant  


evidence if its probative value is substantially outweighed by a danger of . . . unfair  

prejudice . . . .").  In other words, under the Federal Rules of Evidence, any evidence  

may be excluded if its prejudicial effect substantially outweighs its probative value, but  

prior conviction evidence to impeach a defendant's credibility may be excluded if its  


prejudicial effect equals or slightly outweighs its probative value.  

          13       Luce , 469 U.S. at 41-42.  

                                                             -6-                                                      7000

----------------------- Page 7-----------------------


motivated  a  defendant's  decision  not  to  testify."                             Though  acknowledging  that  a  


defendant might make a commitment to testify in an offer of proof, the Court noted that  


"such a commitment is virtually risk free because of the difficulty of enforcing it."15  

                    Third,  a  "reviewing  court  .  .  .  has  no  way  of  knowing  whether  the  

Government would have sought to impeach with the prior conviction."16  The Court noted  


that,  particularly  in  cases  where  the  Government's  evidence  is  strong  and  where  

impeachment can be accomplished by other means, the prosecution may decide not to use  


contested evidence because of the increased risk of reversal on appeal.17  

                    Finally, "[e]ven if these difficulties could be surmounted, the reviewing  



court would still face the question of harmless error."                             The Court noted that if in limine  


rulings  on  the  admissibility  of  prior  conviction  evidence  for  impeachment  were  


reviewable on appeal, then "almost any error would result in the windfall of automatic  


reversal;   the   appellate   court   could   not   logically   term   'harmless'   an   error   that  


presumptively kept the defendant from testifying."19  


                                                                               The Court feared that in the absence  

          14        Id.  at  42  (quoting  New   Jersey  v.  Portash ,  440  U.S.  450,  467  (1979)  

(Blackmun, J., dissenting)).  

          15        Id. ; see also U.S. Const. amend. V ("No person . . . shall be compelled in  

any criminal case to be a witness against himself . . . .").  

          16        Luce , 469 U.S. at 42.  

          17        Id.  

          18        Id.  

          19        Id.  

                                                                -7-                                                         7000

----------------------- Page 8-----------------------


of its preservation rule, defendants would introduce in limine motions "solely to 'plant'  

reversible error in the event of conviction."20  


                    While Luce was decided on federal procedural grounds and was not binding  


on the states, we concluded in Wickham that "the justifications underlying the Luce rule  

apply with equal force to Alaska criminal practice."21  

                                                                               We were further persuaded by the  


unanimity  of  the  Luce  decision  and  by  the  fact  that  a  majority  of  state  courts  that  



subsequently addressed the issue adopted the Luce holding. 

          20        Id.  

          21        State v. Wickham , 796 P.2d 1354, 1357 (Alaska 1990).  

          22        Id.    Indeed,  at  least  27  other  states  and  the  District  of  Columbia  have  

similarly adopted either Luce 's  basic  holding or an expanded version.  See State v. Allie,  

710 P    .2d 4  30,  437 (A      riz.   1985) (en banc); Smith v. State, 778 S.W.2d 947, 950 (Ark.  

1989); People v. Collins , 722  P.2d 173, 176-78 (Cal. 1986) (en banc); State v. Harrell,  

506 A.2d 1041, 1046 (Conn. 1986);  Walker v. State, 790 A.2d 1214, 1217-18 (Del.  

2002); Bailey v. United States , 699 A.2d 392, 399-401 (D.C. 1997); State v. Raydo, 713  

So. 2d 996, 997-1000 (Fla. 1998); Warbington v. State, 730 S.E.2d 90, 91-94 (Ga. App.  


2012); State v. Garza, 704 P.2d 944, 948-49 (Idaho App. 1985); People v. Patrick , 908  


N.E.2d 1, 10-11 (Ill. 2009); State v. Derby, 800 N.W.2d 52, 53-56 (Iowa 2011); State v.  

Richmond , 212 P.3d 165, 432-34 (Kan. 2009); Hayes v. Commonwealth , 58 S.W.3d 879,  


881-82 (Ky. 2001); State v. Gray, 755 A.2d 540, 545 (Me. 2000); Jordan v. State , 591  


A.2d 875, 877-79 (Md. 1991); People v. Boyd , 682 N.W.2d 459, 461-66 (Mich. 2004);  


State v. Bruneau, 552 A.2d 585, 592 (N.H. 1988); State v. Brown, No. 2091, 1992 WL  

227940, at *1-2 (Ohio App. Sept. 16, 1992); State v. Silvia, 898 A.2d 707, 718-20 (R.I.  


2006); State v. Glenn, 330 S.E.2d 285, 285-86 (S.C. 1985); State v. Means, 363 N.W.2d  

565, 569 (S.D. 1985); Jackson v. State, 992 S.W.2d 469, 479-80 (Tex. Crim. App. 1999)  


(en banc); State v. Gentry, 747 P.2d  1032, 1036 (Utah 1987); Reed v. Commonwealth ,  


366  S.E.2d  274,  276-77  (Va.  App.  1988);  State  v.  Brown,  782  P.2d  1013,  1022-25  


(Wash. 1989) (en banc); State v. Honaker, 454 S.E.2d 96, 107-08 (W.Va. 1994); State  


v. Frank, 640 N.W.2d 198, 202-04 (Wis. App. 2001);  Vaupel v. State, 708 P.2d 1248,  


1249-50 (Wyo. 1985).  We are aware of only eight states that have rejected Luce 's  

holding.      See   Commonwealth   v.   Crouse,   855   N.E.2d   391,   397   (Mass.   2006)  



                                                              -8-                                                        7000

----------------------- Page 9-----------------------

          B.        Application Of The Luce/ Wickham Rule In The Present Case  

                    Although the holdings of Luce and  Wickham were limited to preliminary  

rulings regarding evidence of a prior conviction, we conclude that the concerns articulated  

in Luce and  Wickham apply in the present case.  

                    First, as in Luce and  Wickham, the contested ruling here was preliminary,  


and the superior court could have revisited its decision if the State had moved to introduce  

Wagner's statement at trial.  While we acknowledge that evidence of a prior inconsistent  


statement  is  not  subjected  to  the  heightened  admissibility  burden  for  evidence  of  a  


criminal       conviction,23                                                  

                                     all   evidence        must       pass     Alaska       Evidence         Rule      403's  

probative/prejudicial balancing test.  Thus, at the time of the superior court's ruling, there  

remained a reasonable possibility that other evidence (such as Wagner's 911 call) could  


have been presented at trial and rendered Wagner's statement less probative than unfairly  


prejudicial. Indeed, such possibility is more likely in Alaska courts than in federal courts,  


because the burden for admitting evidence is heavier under Alaska Evidence Rule 403  


than its federal counterpart.24  

          22        (...continued)  

("presum[ing] . . . that a defendant who has not testified at trial may still challenge the  


denial of a motion to exclude evidence of a prior conviction" and declining to adopt  

Luce); State v. Swanson, 707 N.W.2d 645, 654 (Minn. 2006); Warren v. State, 124 P.3d  


522,  526-28  (Nev.  2005);  State  v.  Whitehead,  517  A.2d  373,  374-377  (N.J.  1986);  

People v. Moore , 548 N.Y.S.2d 344, 346 (App. Div. 1989); State v. McClure, 692 P.2d  


579, 584 n.4 (Or. 1984) (en banc); Commonwealth v. Richardson, 500 A.2d 1200, 1203- 


04 (Pa. Super. 1985); State v. Galmore, 994 S.W.2d 120, 122-23 (Tenn. 1999).  



                    Compare Alaska R. Evid. 613(a), with Fed. R. Evid. 609(a), and Alaska R.  

Evid. 609(c).  



                    Compare Alaska R. Evid. 403 ("[R]elevant[] evidence may be excluded if  

its probative value is  outweighed by the danger of unfair prejudice . . . ." (emphasis  


                                                              -9-                                                       7000

----------------------- Page 10-----------------------


                     Second, there is no way to determine whether Wagner would have testified  


if the superior court had granted his suppression motion.  Wagner's suppression motion  


made no such indication, admitting that "[i]t is not known whether Mr. Wagner will  


choose to testify at trial." Wagner never filed an affidavit or other offer of proof asserting  

an intent to testify.  And in his briefing to this court, Wagner does not suggest that he  


would testify at a retrial if we were to reverse his conviction.                                 


                    We also find it significant that Wagner failed to mention the suppression  



motion during the two LaVigne inquiries                        the superior court held.  During these inquiries,  


Wagner indicated that he had no questions for the court about testifying or not testifying.  

And at the end of the second inquiry, Wagner said he wished to waive his right to testify  


and that his waiver was not the result of any threat or promise.   Wagner's failure to  

          24        (...continued)  

added)),  with  Fed.  R.  Evid.  403  ("The  court  may  exclude  relevant  evidence  if  its  


probative value is substantially  outweighed by a danger of . . . unfair prejudice . . . ."  


(emphasis added)).  



                    Instead, Wagner argues that it is "entirely 'reasonable to presume' that a  

defendant who asks for an advance ruling in order to preclude the admission of the  

statement  for  impeachment  purposes  would  have  testified  if  his  motion  had  been  

granted."  We do not need to decide whether to adopt such  a  presumption, because  


Wagner equivocated in his suppression motion about whether he would testify.  Thus  

even if we were to adopt this presumption, it would have been overcome here.  



                    See LaVigne v. State, 812 P.2d 217, 222 (Alaska 1991) ("To avoid future  


cases such as LaVigne's, we believe that trial judges should take steps to insure that a  


criminal defendant's failure to take the stand in his or her own defense was the result of  

a  knowing  and  voluntary  decision  made  by  the  defendant.    To  accomplish  this,  we  

believe judges should make an on-the-record inquiry after the close of the defendant's  


case,  although  out  of  the  jury's  hearing,  into  whether  a  nontestifying  defendant  


understands and voluntarily waives his right.  Such action insures a valid waiver of the  


defendant's right.  It will also assist in any subsequent appellate review of a defendant's  

claim to the contrary.").  

                                                               -10-                                                         7000

----------------------- Page 11-----------------------


mention the in limine ruling at the LaVigne inquiries is far from conclusive evidence that  


the ruling had no effect on his decision not to testify.  However, these inquiries presented  


obvious opportunities for Wagner to state on the record that he would have testified in the  

absence of the threat of impeachment.  

                    Third, we have no way to determine whether the State could or would have  


chosen  to  impeach  Wagner  with  the  contested  statement  if  he  had  taken  the  stand.  


Wagner claimed in his motion to suppress that "there is little chance that Mr. Wagner will  

change his statement at trial."  If this claim were true, then the State could not have used  


the   contested   statement   for   impeachment   because   there   would   have   been   no  


inconsistencies to impeach.  And if Wagner's testimony at trial would have differed from  

his account on the night of murder, then the State would have been able to impeach  

Wagner's trial testimony using his 911 call instead of his statement to police.27  



this evidence was available for impeachment, the State might have declined to use the  

contested statement and reduced its risk of reversal on appeal.  

                    Finally,  conducting  a  harmless  error  analysis  in  this  case  would  be  


impossible.    Even  if  we  were  to  conclude  that  the  trial  court's  in  limine  ruling  was  

erroneous, we could only speculate whether Wagner would have testified absent that  

ruling,  how  he  would  have  testified,  whether  the  State  would  have  impeached  that  

testimony, and what effect that impeachment would have had. If Wagner would not have  


testified regardless, or if the State would not have used the contested statement, there  


could be no harm.  Even if we assume that Wagner would have testified, we do not know  


the  substance  of  his  testimony.    So  even  if  he  could  have  been  impeached  with  the  

contested statement, we cannot know whether that impeachment would have affected the  



          27        At  Wagner's  sentencing  hearing,  the  State  used  Wagner's  911  call  for  


impeachment in addition to his statement to police.  

                                                              -11-                                                           7000  

----------------------- Page 12-----------------------

                     For these reasons, we conclude that the concerns articulated in Luce and  

 Wickham are present in this case.  Nevertheless, Wagner presents several arguments why  


we should reach the merits of his underlying claim without regard to the speculation  


required in doing so.  We find these arguments unpersuasive.  

                     First, Wagner argues that the constitutionality of impeaching a defendant's  


testimony  using  statements  obtained  in  violation  of Miranda  is  a  purely  legal  issue.  


Wagner  is  correct  to  the  extent  that  it  is  a  pure  question  of  law  whether  the  Alaska  


Constitution ever permits the State to impeach a defendant's testimony using evidence  



obtained in violation of Miranda .  


                                                       But even if we were to reach this issue and decide it  


in Wagner's favor, the Luce/ Wickham concerns would remain in full effect, and each of  

these  concerns  involves  highly  factual  determinations.    We  would  have  no  way  to  

determine whether Wagner would have testified, whether the State could or would have  


impeached   Wagner's   testimony   with   the   contested   statement,   and   whether   the  


impeachment would have been prejudicial.  We do not rush forward to decide even purely  


legal issues in the abstract when it is impossible to determine whether a party suffered  

any actual harm.29  


                     Next, Wagner argues that the superior court's in limine ruling threatened his  

constitutional  right  to  testify.    But  although  the  right  to  testify  is  an  important  

          28         Under the court of appeals' holding in                    State v. Batts, however, it is a mixed   

question of law and fact whether evidence obtained in violation of Miranda may be used  

for impeachment purposes in a particular case.  See  195 P.3d 144, 158 (Alaska App.  


2008) (prohibiting on constitutional grounds the impeachment use of statements obtained  

by "intentional" or "egregious" violations of Miranda).  Unless we were to overturn  


Batts , our review of Wagner's claim would necessarily involve factual as well as legal  




                     Cf. Bowers Office Prods., Inc. v. Univ. of Alaska, 755 P.2d 1095, 1097-98  

(Alaska 1988) ("[W]hile Alaska's standing rules are liberal this court should not issue  

advisory opinions or resolve abstract questions of law.").  

                                                                -12-                                                          7000

----------------------- Page 13-----------------------



constitutional guarantee,               that right is little more threatened in the present case than it is  


in other impeachment contexts.  As the Michigan Supreme Court noted when it applied  


the Luce rule to a case also involving a Miranda claim,  


                     [T]he  constitutional  implications  present  in Luce  .  .  .  [are  


                    present in] every case in which a defendant alleges that a trial  

                    court's ruling effectively prevented him from testifying. . . .  


                    Any ruling, even if on a mere evidentiary issue, necessarily  

                    affects a defendant's constitutional rights if it has a chilling  


                    effect on the exercise of the right to testify.  


The court concluded, however, that this concern was outweighed by the Luce concern that  

appellate review not be based on hypothetical injuries and speculative harm.32  


                    Similarly, in  Wickham, we "recognize[d] that [the Luce ] rule puts added  


pressure on the defendant to testify before a potentially prejudiced jury; the alternative  



being to [forgo] appeal of an in limine ruling which may be erroneous."                                        However, we  


noted that "the Luce rule ha[d] not been held to be violative of the federal constitutional  

          30        See Rock v. Arkansas, 483 U.S. 44, 49-53 (1987).  

          31        People v. Boyd , 682 N.W.2d 459, 464 (Mich. 2004).  

          32        See id. at 465-66.  In addition to Michigan, at least four other jurisdictions  

have  expressly  extended  Luce 's  holding  to  claims  involving  impeachment  evidence  

obtained in violation of Miranda .  See State v. Conner, 786 P.2d 948, 953-54 (Ariz.  

 1990) (en banc); Bailey v. United States, 699 A.2d 392, 401-02 (D.C. 1997); Jordan v.  


State, 591 A.2d 875, 877-79 (Md. 1991); State v. Bruneau, 552 A.2d 585, 592-93 (N.H.  


 1988).   In  contrast,  three  states  that  have  adopted  Luce  have  expressly  rejected  its  


extension to this context.  See State v. Cherry, 83 P.3d  123, 126 (Idaho App. 2003);  


People v. Easley , 592 N.E.2d 1036, 1048-49 (Ill. 1992); State v. Brings Plenty, 459  

N.W.2d 390, 394-95 (S.D. 1990).  

          33        796 P.2d 1354, 1358 n.6 (Alaska 1990).  

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right  against  self-incrimination,  and  we  perceive[d]  no  conflict  with  the  Alaska  


                    In addition to his right to testify argument, Wagner claims that the police  

interrogation in this case violated his right to due process and the privilege against self- 


incrimination.    He  contends  that,  absent  the  ability  to  appeal,  he  "loses  all  hope  of  

vindicating [these] claim[s]."  

                    But  this  argument  ignores  two  judicial  safeguards  already  provided  to  

Wagner as well as an additional safeguard he declined to seek.  First, the superior court  

dismissed the initial grand jury indictment against Wagner, which the State had obtained  


using the contested statement.  The State was therefore required to seek a new indictment  


without the use of the contested evidence.  Second, the superior court prohibited the State  


from introducing Wagner's statement to the jury at trial in its case in chief, so the jury  


never heard the statement.  And third, nothing prevented Wagner from filing a petition  


for  interlocutory  review  to  the  court  of  appeals  after  the  superior  court  denied  his  


                              35                                                                                      36 


suppression motion.                Though interlocutory review is "not a matter of right,"                               such  

review is particularly appropriate in a case such as this, involving constitutional issues  

          34        Id.  

          35        See Alaska R. App. P. 402.  

          36        Alaska R. App. P. 402(b).  

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----------------------- Page 15-----------------------



that would otherwise evade review.                    Because these judicial safeguards were present, we  

disagree that Wagner was precluded from vindicating his constitutional claims.  

                   Finally, Wagner argues that his testimony could have made a difference  


because the evidence at trial did not "overwhelmingly" prove his guilt.  But this argument  

assumes not only that Wagner would have testified, but also that his testimony would  

have helped his case.  We cannot possibly determine the validity of these assumptions on  


appeal, especially because Wagner has provided conflicting indications of how he might  


have  testified.    In  the  memorandum  accompanying  his  suppression  motion,  Wagner  

claimed that there was "little chance" his testimony at trial - if he were to testify -  


would be inconsistent with his statement to the police.  However, Wagner's testimony at  


his sentencing hearing was markedly different from the contested statement.38  



we cannot know how Wagner would have testified at trial we cannot evaluate whether his  

          37       See Alaska R. App. P. 402(b)(4) ("Review . . . will be granted . . . where . . .                        

[t]he issue is one that might otherwise evade review, and an immediate decision by the  

appellate court is needed for guidance or is otherwise in the public interest."); see also  

Wickham, 796 P.2d at 1358 n.6 (noting that in this situation "the defendant's apparent  

predicament is, to at least some extent, ameliorated by the availability of a petition for  


review of the in limine ruling in the court of appeals").  

          38       Indeed, Wagner's testimony at his sentencing hearing was more consistent  

with the prosecution's narrative of events at trial than his trial argument in several key  


respects.    Wagner  conceded  that  an  undated  video  of  him  standing  outside  Key's  

residence holding a gun was taken the day before the shooting and showed him holding  


the same gun used in the shooting.  At trial, the defense had argued that the video was  

taken  weeks  before  the  shooting.  Wagner  also  conceded  that  the  audio  from  the  

videotape from the night of the shooting revealed that he had shown Key the handgun  


during his first visit to the mother-in-law unit.  The defense had argued that the noises  

in the recording were inconclusive.  And Wagner conceded that he shot Key as soon as  


Key entered the mother-in-law unit.  In contrast, the defense repeatedly emphasized at  


trial that there might have been as many as 17 seconds between Key's arrival and the  



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possible testimony would have made any difference.                     And we decline to speculate about  

these issues in a factual vacuum.  

                  On this record, we conclude that, by declining to testify, Wagner failed to  


preserve his Miranda claim for appellate review.  


                  We therefore AFFIRM the court of appeals' decision affirming Wagner's  



                                                       -16-                                                  7000

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