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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| STATE OF ALASKA, | ) |
| ) Court of Appeals No. A-9634 | |
| Appellant, | ) Trial Court No. 1KE-04-1312 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| RACHELLE WATERMAN, | ) |
| ) | |
| Appellee. | ) No. 2198 December 5, 2008 |
| ) | |
Appeal from the Superior Court, First Judi
cial District, Ketchikan, Patricia A.
Collins, Judge.
Appearances: Diane L. Wendlandt, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Talis J. Colberg, Attorney General, Juneau,
for the Appellant. Beth G.L. Trimmer,
Assistant Public Advocate, and Joshua Fink,
Public Advocate, Office of Public Advocacy,
Anchorage, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
On November 14, 2004, near Craig, Alaska, hunters found
the body of Lauri Waterman. Carl (Doc) Waterman, Lauris husband,
and her sixteen-year-old daughter, Rachelle, were out of town for
several days, returning home to Craig on the afternoon of
November 14, 2004. Doc Waterman soon contacted the police and
told them that both Lauri and her minivan were missing. The
police interviewed both Doc and Rachelle Waterman on the evening
of November 15, 2004.
The police investigation began to focus on two young
men who were friends of Rachelle Waterman: Jason Arrant and
Brian Radel. On the evening of November 17, 2004, Troopers
Robert Claus and Robert McPherron interviewed Rachelle Waterman.
The troopers met Waterman and her father at their home. Waterman
agreed to talk with the troopers at the police station. After
they reached the station, Waterman was informed of her right to
have her father present. She declined. The troopers told
Waterman that she did not have to talk with them and that she was
free to leave at any time. During this interview, Trooper
McPherron told Waterman that he suspected that Arrant and Radel
were involved in her mothers death and that Waterman might have
unintentionally motivated them to kill her mother. Waterman
denied saying anything that Arrant or Radel might have
misconstrued as a request to kill her mother. But she did claim
that her mother had physically abused her, and she acknowledged
that she had told Arrant and Radel about the abuse. Waterman
also stated that she may have told Arrant that she and her father
were going to be out of town.
On November 18, 2004, Arrant told the troopers that
Radel had killed Lauri Waterman. Arrant agreed to wear a
recording device and talk with Radel. When Arrant talked to
Radel, Radel implicated himself in the murder.
Several hours later, the troopers interviewed Radel,
who confessed to the murder. The troopers arrested Radel. They
arrested Arrant the next day. In interviews on November 19,
2004, Arrant admitted his participation in Lauris murder and
stated that Rachelle Waterman was also involved. Arrant stated
that Waterman had told him she wanted her [mother] dead.
According to Arrant, Waterman told him when she and her father
would be out of town and that this would be a good opportunity to
kill her mother.
After the troopers interviewed Arrant, Trooper
McPherron and Craig Police Sergeant Mark Habib interviewed
Waterman the same day, November 19. They met Waterman at her
home. Waterman agreed to go with the officers to the police
station, where the officers read Waterman her Miranda rights and
again informed her of her right to have her father present.
Waterman waived her rights and declined to have her father
present.
Trooper McPherron confronted Waterman with the
information that both Arrant and Radel had implicated her in the
murder. Waterman admitted that at one time she had mentioned to
Arrant and Radel something about killing her mother, but stated
that she was not serious and had told them that she did not want
it done. She admitted telling them when she and her father were
going to be gone, but she claimed that this information had just
come up in casual conversation. She admitted that she had an
idea that Arrant and Radel might try to kill her mother that
weekend but insisted that she had told them not to do it. She
claimed that she telephoned them when she was in Anchorage and
told them not to do it. Waterman called Arrant when she returned
on Sunday, and he told her that the murder was done. Waterman
said she was horrified.
Under continued questioning, Waterman ultimately
conceded that she was pretty sure that Arrant and Radel were
going to kill her mother while she was away for the weekend. She
admitted that, even though she had a telephone conversation with
Arrant that weekend, she had not told him that she had changed
her mind about the murder.
The State indicted Waterman on several felony counts,
including first- and second-degree murder and conspiracy to
commit murder. Waterman moved to suppress her November 19
statement on the ground that the statement was involuntary.
Waterman also moved to dismiss the indictment based upon a claim
that the allegedly involuntary statement had been presented to
the grand jury. Superior Court Judge Patricia A. Collins ruled
that Watermans November 19 statement was voluntary. She denied
both motions.
Following a three-week jury trial, the jury was unable
to reach a verdict. Judge Collins declared a mistrial. Waterman
filed a motion for judgment of acquittal, arguing that there was
insufficient evidence to show that she intended her mothers
death. Judge Collins denied the motion for judgment of
acquittal, but without notice to the parties, she sua sponte
reconsidered her ruling on Watermans claim that her November 19
statement was involuntary. Judge Collins reevaluated her ruling
in light of the trial testimony and concluded that the State had
not proven that Watermans November 19 statement was voluntary.
Judge Collins suppressed the November 19 statement and concluded
that, because that interview was the centerpiece of the grand
jury case against ... Waterman ... the indictment must be
dismissed. The State appeals.
Why we conclude that the State has a right to
appeal Judge Collinss order dismissing the
indictment
Waterman contends that the State has no right to appeal
Judge Collinss dismissal of the indictment because Judge Collinss
decision is not a final order for purposes of appeal. Waterman
is correct that Judge Collinss dismissal of the indictment is not
a final order the judge did not bar the State from seeking a new
indictment. Nevertheless, we conclude that the State has the
right to pursue an interlocutory appeal of Judge Collinss
decision.
Alaska law formerly gave the State a very limited right
of appeal: The State could appeal only (1) the dismissal of an
indictment or (2) a criminal sentence on the ground that it was
overly lenient.1 But, as construed in State v. Shelton,2 the
States right to appeal the dismissal of an indictment was a right
of interlocutory appeal.3 In other words, the States right to
appeal did not hinge on whether the State was barred from seeking
re-indictment.
In State v. Michel,4 this court found that former AS
22.07.020(d)(2) allowed the State to appeal any final decision in
a criminal case, subject only to the restraint of the guarantee
against double jeopardy if it were successful.5 But three years
later, in Kott v. State,6 the Alaska Supreme Court rejected this
interpretation of the statute. The supreme court held that the
States power to appeal trial court decisions in criminal cases
was limited to the appeals listed in the statute: appeals of
orders testing the sufficiency of an indictment and appeals of
criminal sentences on the ground that they were too lenient.7
As we explained in State v. Walker,8 the Alaska
Legislature responded to the supreme courts decision in Kott by
amending AS 22.07.020(d)(2) to provide the State with a right of
appeal in all actions and proceedings within [the Court of
Appealss] jurisdiction except that ... the [S]tates right of
appeal in criminal cases is limited by the prohibitions against
double jeopardy contained in the United States Constitution and
the Alaska Constitution.9
In Walker, we held that this new statute implicitly
incorporated the rule that an order is not appealable unless it
is final.10 However, Walker did not require us to examine how
the new statute affected the States pre-existing right to pursue
interlocutory appeals of non-final orders dismissing indictments.
Based on the legislative history of the statute, we
conclude that the legislature did not wish to abrogate this pre-
existing right.
As we noted in Walker, the legislative proceedings
leading to the enactment of the current version of
AS 22.07.020(d)(2) demonstrate an intent to expand the States
right of appeal in criminal cases.11 In particular, Assistant
Attorney General Gayle Horetski told the legislature about this
courts decision in Michel and the supreme courts superseding
decision in Kott.12 The intent of the proposed amendment,
Assistant Attorney General Horetski explained, was to alter the
result of the supreme courts decision and return the law to its
former interpretation under Michel.13
Based on this legislative history, we concluded in
Walker that the legislature intended to reestablish the rule
announced by this court in Michel.14 And the holding in Michel
was that the State could appeal the dismissal of an indictment
for any reason unless retrial would be barred by the Double
Jeopardy Clause.15 Although Michel refers to a final judgment
... dismissing an indictment, this is because the order at issue
in Michel was actually a final judgment an order dismissing an
indictment and barring any further proceedings against the
defendant.16 Nothing in Michel suggests that this court wished
to, or had the authority to, deprive the State of its pre-
existing right to pursue interlocutory appeals of non-final
dismissals of an indictment.
Accordingly, even though the current version of AS
22.07.020(d)(2) does not contain a clause expressly authorizing
the State to pursue this type of interlocutory appeal, we
conclude that the legislature did not intend to deprive the State
of this pre-existing appellate right and that this right survives
the amendment of the statute.
Voluntariness of self-incriminating statements
Before the State can introduce a defendants self-
incriminating statement, the State must show by a preponderance
of evidence that the statement was voluntary.17 The State has a
particularly heavy burden of proof when the accused is a
juvenile.18 In determining whether a statement is voluntary, we
focus on whether the conduct of law enforcement was such as to
overbear [the defendants] will to resist and bring about
confessions not freely self-determined.19
We review the trial courts determination of the
voluntariness of a confession as a mixed question of fact and
law.20 The trial court engages in a three-part test to determine
if a defendants statement is voluntary: First, the trial judge
must find the external, phenomenological facts surrounding the
confession. Second, from these external facts, the judge must
infer an internal, psychological fact: the mental state of the
accused. Finally, the judge must assess the legal significance
of this inferred mental state.21
On appeal, we review the trial judges findings of fact
and her determination of the credibility of witnesses
deferentially we will reverse only if we find the trial judges
decision was clearly erroneous.22 In determining the accuseds
mental state and its legal significance, however, we conduct an
independent examination of the entire record and base our
conclusion upon the totality of circumstances surrounding the
confession.23
In Beavers v. State, the Alaska Supreme Court held that
when the police use threats of harsher punishment to induce a
confession the resulting confession should be considered
involuntary unless the state can show affirmatively that the
confession was voluntarily made.24 In a footnote, the supreme
court acknowledged that its prohibition of the use of threats
might be more demanding than federal constitutional law.25 It
therefore based its holding on article I, section 9 of the Alaska
Constitution.26
In Beavers, two Alaska state troopers questioned
Beavers, who was then sixteen years old, while they were
investigating two Anchorage robberies.27 The troopers approached
Beavers at the restaurant where he worked. They identified
themselves and told Beavers that they wanted to question him
outside of the restaurant to avoid the noise inside.28 In an
interview that lasted twenty-one minutes, the troopers talked to
Beavers in their patrol car.29 The troopers told Beavers that he
was not under arrest and could leave at any time.30 After
Beavers answered several questions indicating his knowledge of a
friends involvement in some burglaries, Trooper Gerald Graham
told Beavers that if he was involved in the burglaries, he needed
to tell him.31 Trooper Graham said that if he later found out
that Beavers had been involved in the burglaries, having denied
it, there would be some problems.32 After Beavers answered
several questions concerning his friends and the location of
various stolen items, Trooper Graham said that he knew Beavers
was telling the truth because his statements were consistent with
information from the troopers prior investigation.33 Trooper
Graham then stated, But, if ... you try and hide it from me youre
really going to get hammered.34 After showing Beavers a photo
lineup which included Beavers and one of his friends, Trooper
Graham stated, Now if you want to lie to me and get in more
trouble, thats fine, okay?35 After this exchange, Beavers
admitted his participation in the robbery, giving a detailed
account.36
The superior court found that Beaverss confession was
involuntary.37 We reversed the superior court.38 The supreme
court reversed our decision. The supreme court emphasized that
[w]hen the accused is a juvenile, the state assumes a
particularly heavy burden of proof.39 The supreme court stated:
A criminal suspects right to remain
silent represents one of the most fundamental
aspects of our constitutional jurisprudence.
It includes the right to terminate an
interrogation at any time. We regard any
potential encroachment upon this right with
the utmost concern. A law enforcement
officers threat of harsher than normal
treatment however phrased essentially
conveys to criminal suspects that they will
be punished for their silence, including any
refusal to give further answers. ... Suspects
are told, in effect, that they must give up
their constitutional right to silence or they
will suffer greater punishment. We view such
threats with disfavor. Where they are used,
the resulting confession should be considered
involuntary unless the state can show
affirmatively that the confession was
voluntarily made.[40]
The court then went on to discuss United States v.
Harrison.41 Harrison, investigating a noise outside her house,
discovered approximately fifteen federal agents with weapons
drawn.42 After arresting Harrison and her companion, the agents
searched her home.43 The agents advised Harrison of her rights,
and an agent informed her of the evidence linking her to money
laundering.44 According to the Alaska Supreme Court:
The agent then told Harrison that she could
potentially receive a twenty-year sentence
for her participation in the crime, and asked
whether she thought it would be better if the
judge was told of her cooperation or non-
cooperation. Harrison responded that it
would be better if the judge was informed of
her cooperation, and she proceeded to confess
her criminal involvement to the agents. ...
.... While expressing its continued
adherence to the totality of circumstances
approach, the court nevertheless established
an exception for confessions induced by
police threats to inform the prosecutor of a
suspects refusal to cooperate. According to
the court, there are no circumstances in
which law enforcement officers may suggest
that a suspects exercise of the right to
remain silent may result in harsher treatment
by a court or prosecutor.[45]
The supreme court quoted the Ninth Circuit Court of Appeals:
Refusal to cooperate is every defendants
right under the [F]ifth [A]mendment. Under
our adversary system of justice, a defendant
may not be made to suffer for his silence.
Because there is no legitimate purpose for
the statement that failure to cooperate will
be reported and because its only apparent
objective is to coerce, we disapprove the
making of such representations.[46]
The Alaska Supreme Court summarized:
The Ninth Circuit thus rejected the
governments request to examine Harrisons
inculpatory statement in context of all the
circumstances involved in the case and held
the agents suggestion that he might inform
the judge of Harrisons failure to cooperate
inherently coercive.
We find Harrisons reasoning persuasive
and agree with the Ninth Circuits distinction
between promises of leniency and threats of
harsher treatment.[47]
Applying this analysis to Watermans November 19
statement
Waterman was sixteen years old at the time of the
November 19 interview. She was intelligent and a good student.
She had not had any prior contact with the criminal justice
system, although she had been interviewed twice before about her
mothers death. She apparently went voluntarily to the police
station.
When Waterman arrived at the police station, Trooper
McPherron advised her of her rights. Waterman agreed to talk to
the authorities. McPherron told her that she had a right to have
her father present. Waterman declined. McPherron confirmed that
she was talking with them voluntarily and assured her that she
was free to go. Trooper McPherron then told Waterman that Arrant
and Radel had told them everything about her participation in a
plot to kill her mother. McPherron confronted Waterman with
Arrants and Radels statements about their prior plots to kill her
mother and their description of how the last plan was carried
out. Waterman cried and acknowledged that she had mentioned
killing her mother to Arrant and Radel, but insisted that she was
not serious. She insisted that she had told them that she did
not want them to do anything to her mother. Although Waterman
admitted that she had told Arrant and Radel that she and her
father would be out of town for the weekend, Waterman insisted
that she had only brought it up in passing, telling them that her
team was going to the state volleyball tournament. She admitted
that she had an idea that they might do something to her mother
that weekend, but she insisted that she told them not to do it.
Waterman claimed that she had telephoned Arrant from Anchorage
because she knew that he and Radel were thinking about killing
her mother, and she told them not to do anything. She stated
that when she came back on Sunday, Arrant called her and told her
that he had carried out the plan. Waterman said she was
horrified. She admitted that she had not told anyone, including
the police, that she knew what had happened to her mother.
At this point, Trooper McPherron told Waterman that
although she was sixteen, this was a serious offense and she
would be automatically waived into adult court; she would not be
treated as a juvenile. She was now playing in the big leagues.
Trooper McPherron told Waterman that he did not understand why
she continued to lie. If she continued to lie, it would be
difficult for anyone to believe her. He told her, A bunch of
strangers are going to look at you and judge you based upon your
behavior, based on how you deal with this, and how you answer
these following questions.
Arguably, this speech constitutes a prohibited threat
under Beavers that is, a threat of harsher treatment if Waterman
declined to cooperate. In Beavers, the Alaska Supreme Court
expressed its approval of the Ninth Circuits holding in Harrison.
In Harrison, the agent, after telling Harrison that she could
receive a 20-year sentence, asked Harrison whether she thought it
would be better if the judge were told that she had cooperated or
not cooperated.48 The Alaska Supreme Court noted with approval
the Ninth Circuits holding that the law enforcement officers
suggestion that he might inform the judge of [the defendants]
failure to cooperate [was] inherently coercive.49 Arguably,
Trooper McPherrons statement was a similar threat that a jury
would be told of Watermans lack of cooperation.
However, even if Trooper McPherrons statement was an
improper threat under Beavers, we conclude that Watermans
statements directly following that exchange rebut the Beavers
presumption of involuntariness. Under Beavers, a threat makes a
defendants statements following the threat presumptively
involuntary.50 But if there is evidence affirmatively indicating
that the suspects will was not overcome by the threats, the
statements can still be voluntary.51 Following Trooper
McPherrons statement, Waterman continued to insist that she had
telephoned Arrant and told him not to go through with the murder.
It thus seems clear that Watermans will to resist was not
overcome.
Later in the interview, Trooper McPherron suggested
that they take a break. The officers were gone for about eight
minutes. Then Sergeant Habib reentered the room. He told
Waterman that three homicide investigators and crime lab
technicians had been working on the case constantly for five
days. They had gathered evidence and conducted numerous
interviews. He claimed that the police had an airtight case
against Arrant and Radel they had confessed and told them all of
the details about what happened. He further claimed that not
only had Arrant and Radel told the police all about Watermans
involvement, but the police had other evidence of her
involvement. He told Waterman that Trooper McPherron was one of
the top homicide investigators and interviewers in the state.
Sergeant Habib told her, [McPherrons] got you. Hes got you. Hes
got your involvement in this case. Habib then stated:
You have a choice. And this is the only
choice you have. This is the only decision
you have to make right now. This is not a
game. This is not high school.
Do you want us to stand up with the
district attorney and tell them that you
cooperated? You screwed up? You werent
thinking? Or do you want us to stand up and
say five days you lied to us? Down to the
end when we present all this evidence in
front of a jury, you continued to lie to us
and bullshit us in trying to show us youre
smarter? Im tougher.
MS. WATERMAN: I (indiscernible
simultaneous speech)....
SGT. HABIB: Listen to me. Do you want
us to do that? Do you want a jury to hear
that? Do you want a judge to hear that? Or
do you want us to stand up and say this kid
screwed up, she at least stepped up to the
plate and was honest with us? Which one?
Those are your two choices.
MS. WATERMAN: The first one.
SGT. HABIB: Then you need to start
doing it. Were not dumb. That man is not
dumb. Youre giving him a little piece here
trying to appease us. Im sitting over here
shaking my head watching you lie, and its not
helping you any. Its not helping you at all.
Hes pissed. Hes ready to just go for it.
Lets do it.
Youre a kid. Its time to act like an
adult. Now do you want to talk to him again
and be straight with him? If youre straight
with that man, I will stand up, he will stand
up, and the DA will stand up and say she
cooperated. Its your choice. Thats where
were at.
In other words, Sergeant Habib threatened Waterman with
harsher consequences for not cooperating with the investigators.
As in Harrison, the officers had already told Waterman that she
was facing a serious offense, would be waived into adult court,
and that she would be playing in the big leagues. She was told
that a jury, a bunch of strangers, would be judging her behavior
and how she answered the questions. In his statements following
the break, Sergeant Habib told Waterman that she had one choice:
Did she want the officers to tell the judge and jury that
Waterman cooperated and had just made a mistake or did she want
the officers to say that she had lied to them for five days? In
our view, Sergeant Habibs statements constitute an impermissible
threat under Beavers. The threats that Sergeant Habib made to
Waterman are similar to the threats the Beavers court set out in
discussing the Harrison case. Waterman was told that she faced
harsh punishment as an adult. And Sergeant Habib made it clear
that Watermans cooperation or non-cooperation would be brought to
the attention of the judge and jury. She was asked if she wanted
the officers to be on her side and stand up and say she
cooperated or whether she wanted them to say that she had
continued to lie to them.
Watermans statements following this threat no longer
rebut the presumption of involuntariness. When Trooper McPherron
reentered the room, Waterman apologized for her behavior. After
Sergeant Habibs statements, Waterman made admissions that she was
pretty sure that Arrant and Radel planned to kill her mother that
weekend. Waterman conceded that, although she had talked to
Arrant while she was away in Anchorage, she had not told Arrant
that she had changed her mind and that he should not kill her
mother. According to the analysis set out in Beavers, when the
police use threats of harsher punishment to induce a confession,
the resulting confession should be considered involuntary unless
the State can show affirmatively that the confession was
voluntarily made.52 Waterman made her admissions after Sergeant
Habibs statements. Therefore, her statements are presumptively
involuntary. We conclude that the evidence is insufficient to
rebut the presumption.
The State argues that the facts in Waterman are not
similar to the facts in Beavers. The State argues that Sergeant
Habib did not threaten Waterman with harsher consequences if she
did not choose to talk with them, but only told her truthfully
what was going to happen at trial. The problem with the States
argument is that it seems to conflict with the Ninth Circuits
reasoning in Harrison. In Beavers, the Alaska Supreme Court
quoted with approval the language in Harrison that there is no
legitimate purpose for the statement that failure to cooperate
will be reported and because its only apparent objective is to
coerce, we disapprove the making of such representations.53 The
courts condemnation of such representations is sweeping. It
appears to condemn such representations as coercive, even if they
are true.
The State also argues that Sergeant Habib only
suggested that Waterman would suffer consequences if she lied,
not from exercising her right to remain silent. But Sergeant
Habibs statements appear to be more coercive than the statements
that the federal agent made in Harrison. The State may be
arguing that Waterman had already given up her right to remain
silent by talking to the police. But, as the Alaska Supreme
Court pointed out in Beavers, the right to remain silent includes
the right to terminate an interrogation at any time.54 And
Sergeant Habibs statements seem more threatening than the
statement the court found was inherently coercive in Harrison,
that the agent might inform the judge that Harrison had not
cooperated.55
In carrying out our duty to conduct an independent
review of the voluntariness of Watermans November 19 statement,
we have carefully reviewed the videotape of the interview, as
well as the transcript. We have reviewed and considered Judge
Collinss findings. We conclude that most of Watermans November
19 statement was voluntary. But we find that the statements
Sergeant Habib made to Waterman after the break constituted
threats that are forbidden under Beavers, and we conclude that
the statements that Waterman made after those threats were
involuntary and therefore must be suppressed.
Why we conclude that we must remand the decision
on whether to dismiss the indictment
After she concluded that Watermans November 19
interview was involuntary and therefore inadmissible, Judge
Collins concluded that this interview was the centerpiece of the
grand jury case against Ms. Waterman. Judge Collins reasoned
that since the indictment was based upon inadmissible evidence,
the indictment should be dismissed.
On appeal, the State contends that, even if we affirm
Judge Collinss decision that the interview is inadmissible, Judge
Collins erred in dismissing the indictment. The State argues
that it presented sufficient evidence to support the indictment
even if Watermans November 19 interview is inadmissible.
We held in Stern v. State,56 that when inadmissible
evidence is presented to a grand jury, the validity of the
indictment will hinge on the answer to two questions: First, is
the remaining evidence sufficient to support the indictment? And
second (if the remaining evidence is sufficient), [was] the
probative force of [the] admissible evidence ... so weak and the
unfair prejudice engendered by the improper evidence ... so
strong that it appears likely that the improper evidence was the
decisive factor in the grand jurys decision to indict?57
Given our conclusion that only the final portion of
Watermans statement must be suppressed, it is obvious that the
remaining evidence presented to the grand jury must now be
reevaluated under the Stern test.
On this point, we note that the grand jury heard
excerpts of the statements that Radel and Arrant gave to the
authorities. However, when Judge Collins issued her ruling on
the sufficiency of the indictment, she acknowledged that she did
not know what evidence was contained in these excerpts because
the transcript of the grand jury proceedings does not contain a
transcription of these excerpts. (The grand jury transcript
merely contains notations indicating that the excerpts were
played.) To make a proper assessment of the indictment under the
Stern test, Judge Collins must obtain copies or transcripts of
these excerpts from Radels and Arrants statements.
Conclusion
Regarding the suppression of Watermans statement, the
decision of the superior court is AFFIRMED IN PART and REVERSED
IN PART.
Regarding the validity of the indictment, the decision
of the superior court is VACATED. The superior court is directed
to re-assess the validity of the indictment by evaluating the
remaining admissible evidence under the Stern test.
MANNHEIMER, Judge, concurring.
I write separately to address the issue of procedure
presented in this case.
As explained by Judge Coats in the lead opinion, Judge
Collins initially ruled (before trial) that Watermans statement
to the authorities was voluntary and admissible. Then, at the
end of trial, when the judge was asked to rule on Watermans
motion for a judgement of acquittal, she issued a written
decision that essentially contained two parts: a short denial of
Watermans request for a judgement of acquittal, followed by a
lengthy sua sponte reconsideration and reversal of her earlier
decision concerning the admissibility of Watermans statement.
I concede that no statute or court rule required Judge
Collins to alert the parties that the voluntariness of Watermans
statement was again at issue. I do note, however, that when
Judge Collins decided to revisit this issue, she was not merely
re-evaluating the evidence and law presented to her during the
pre-trial litigation of this issue. Rather, the basis of her
ruling was her sua sponte conclusion that the evidence presented
at Watermans trial differed significantly from the evidence
presented during the pre-trial litigation of this issue and that
this new evidence required her to reverse her earlier decision.
This kind of judicial action presents three problems.
First, the judges decision to revisit this issue sua
sponte at the end of the trial might be perceived as unfair
because the parties were not aware, when they were presenting
their evidence at trial, that this issue was being litigated
again that the voluntariness of Watermans statement was being re-
assessed in light of the trial testimony. The content or detail
of the testimony, and the types of questions posed to the
witnesses, might have been significantly different if the parties
had been aware that Judge Collins was re-evaluating this issue.
Second, because Judge Collins did not notify the
parties that she was re-evaluating her earlier decision, she did
not have the benefit of adversarial briefing and argument when
she (1) analyzed the testimony presented at Watermans trial,
(2) compared that testimony to the evidence presented during the
pre-trial litigation of this issue, and then (3) applied the law
to the facts as she found them. As this Court noted in State v.
Angaiak, when a court decides an issue sua sponte that is,
decides the issue without a request by a party, and without input
from the parties the courts action provides fertile conditions
for the creation of judicial error. 847 P.2d 1068, 1073 (Alaska
App. 1993).
It is true that Judge Collins allowed the State to seek
reconsideration of her ruling. But the fact that the issue was
litigated in this manner illustrates the third problematic aspect
of the procedure employed in this case.
Once a judge has publicly announced a decision
(especially in writing), it is often psychologically difficult
for the judge to admit that he or she might have acted
precipitously and might have reached the wrong conclusion. One
would hope that a judge would always have the candor (at times,
the courage) to concede that an earlier decision was wrong. But
as a practical matter, a lawyer asking for reconsideration of a
publicly announced decision faces an uphill battle. For this
reason, a lawyers right to seek rehearing or reconsideration of
an announced decision is not a ready substitute for the right to
litigate the issue before the court publicly announces its
decision.
As I said before, Judge Collins broke no rule of
procedure when she decided, sua sponte, to re-evaluate the
voluntariness of Watermans statement after hearing the testimony
presented at Watermans trial. But I urge judges who face similar
situations in the future to (1) give the parties notice that the
issue is being reconsidered, (2) give the parties a description
of the particular reasons why the earlier ruling is now perceived
as wrong, and (3) allow the parties to brief or argue the issue
before announcing a final ruling.
_______________________________
1 Former AS 22.05.010, as construed in State v. Shelton, 368
P.2d 817, 820 (Alaska 1962), and as enacted with respect to the
court of appeals in former AS 22.07.020(d)(2).
2 368 P.2d 817.
3 Id. at 820.
4 634 P.2d 383 (Alaska App. 1981).
5 Id. at 384-86.
6 678 P.2d 386 (Alaska 1984).
7 Id. at 388-390.
8 887 P.2d 971 (Alaska App. 1994).
9 Ch. 71 2 SLA 1993; Walker, 887 P.2d at 975.
10 Walker, 887 P.2d at 975-76.
11 Id. at 975 (emphasis added).
12 Id. at 976.
13 Id.
14 Id.
15 Michel, 634 P.2d at 385.
16 Id. at 384.
17 Stobaugh v. State, 614 P.2d 767, 771 (Alaska 1980)
(citing Schade v. State, 512 P.2d 907, 917 (Alaska 1973)).
18 Beavers v. State, 998 P.2d 1040, 1044 (Alaska 2000)
(citing S.B. v. State, 614 P.2d 786, 789 (Alaska 1980)).
19 Stobaugh, 614 P.2d at 772 (quoting United States v.
Ferrara, 377 F.2d 16, 17 (2d Cir. 1967)).
20 Beavers, 998 P.2d at 1044; State v. Ridgely, 732 P.2d
550, 554 (Alaska 1987).
21 Ridgely, 732 P.2d at 554 (citation omitted).
22 Beavers, 998 P.2d at 1044.
23 Id.
24 Beavers, 998 P.2d at 1046.
25 Id. at 1046 n.30.
26 Id.
27 Id. at 1041.
28 Id.
29 Id. at 1042.
30 Id.
31 Id.
32 Id.
33 Id.
34 Id.
35 Id.
36 Id.
37 Id. at 1043.
38 Id.
39 Id. at 1044 (citation omitted).
40 Id. at 1045-46 (citations omitted).
41 34 F.3d 886 (9th Cir. 1994).
42 Id. at 890.
43 Id.
44 Id.
45 Beavers, 998 P.2d at 1046-47 (citations omitted).
46 Id. at 1047 (quoting Harrison, 34 F.3d at 891).
47 Id. (footnote omitted).
48 Harrison, 34 F.3d at 890.
49 Beavers, 998 P.2d at 1047 (citation omitted).
50 Id. at 1048.
51 Id.
52 Id. at 1046 (citation omitted).
53 Id. at 1047 (quoting Harrison, 34 F.3d at 891).
54 Id. at 1045-46.
55 Harrison, 34 F.3d 886.
56 827 P.2d 442 (Alaska App. 1992).
57 Id. at 446 (citation omitted).
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