You can also
search the entire site.
Halberg v. State. (9/29/95) ap-1440
NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ELIZABETH HALBERG, )
) Court of Appeals No. A-3733
Appellant, ) Trial Court No. 3AN-89-3965
v. ) O P I N I O N
STATE OF ALASKA, )
Appellee. ) [No. 1440 - September 29,
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Peter A. Michalski,
Appearances: Margi Mock, Assistant Public
Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Cynthia
L. Herren, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Elizabeth Halberg was convicted of second-degree
murder, AS 11.41.110(a)(1), following a jury trial in the
superior court. In our previous decision in this case, Halberg
v. State, Memorandum Opinion and Judgement No. 2685 (Alaska App.,
April 28, 1993), we held that Halberg's first statement to the
Alaska State Troopers was taken in violation of Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We
remanded Halberg's case to the superior court so that it could
determine (a) whether Halberg's subsequent statements to the
troopers were tainted by this Miranda violation at the first
interview and (b) whether Halberg should receive a new trial on
account of the now-suppressed evidence.
On remand, Superior Court Judge Peter A. Michalski
found that Halberg's subsequent statements to the troopers were
voluntary and were made after Halberg had received proper Miranda
warnings. Judge Michalski therefore found that these subsequent
statements were not tainted by the Miranda violation at the first
interview. Halberg appeals this decision. We affirm.
According to the State's theory of this case, Halberg
stabbed her husband Walter "Hank" Halberg during an argument in
their home in Ekwok sometime during the early morning of January
4, 1989. We summarized the pertinent facts in our earlier
Walter Halberg woke up and decided that he
wanted to leave [the house]. [Elizabeth]
Halberg either did not want him to go or
wanted to go with him; the couple argued.
During this argument, Halberg stabbed her
husband in the chest with a kitchen knife.
Walter sat down at the kitchen table and
died. Meanwhile, Halberg fell asleep on the
Halberg woke up and went to [her brother-
in-law] John King's house at about 5:00 a.m.;
she told King that something was wrong. ...
King returned with Halberg to her cabin and
realized almost immediately that Walter
Halberg was dead. King tried to convince
Halberg to come away from the cabin with him,
but Halberg insisted on staying with her
husband. King returned home and called
[Village Public Safety Officer] [Phillip]
Akelkok at approximately 7:15 a.m. to report
Akelkok went to the Halberg cabin, where
he found Walter Halberg dead and Elizabeth
Halberg asleep. Akelkok called his supervi
sor, State Trooper Bittick, in King Salmon.
Akelkok received instructions to seal the
home and take Halberg to a relative's house
until other police officials arrived.
Akelkok entered the cabin and shook
[Elizabeth] Halberg awake. Halberg protested
that she wanted to stay with her husband, but
Akelkok and Leroy Wallona, a local resident,
escorted Halberg from the house. On their
way, Halberg kept repeating that "Hank" (Wal
ter Halberg's nickname) had made her do it,
that she had to do it, and that she had not
meant to hurt him. The two men brought
Halberg by her family's home, but either she
did not want to go inside or her parents
would not let her in, so she was taken to
Trooper Bittick arrived in Ekwok around
10:30 that morning. After Akelkok briefed
him, Bittick went to the Halberg cabin, took
photographs, and placed Walter Halberg's body
into a body bag. The cabin bore no evidence
of a struggle, and the stab wound to Walter
Halberg's chest was not immediately apparent;
Bittick at first believed that Walter had
died of natural causes. Later that morning,
however, King told Bittick that Halberg
admitted to him that she had stabbed her
husband; Bittick re-examined Walter's body
and confirmed that the death was a homicide.
Halberg, Memorandum Opinion and Judgement No. 2685, pp. 3-4.
Bittick went to the King residence around noon on
January 4, 1989 to interview Halberg. Bittick administered
Miranda warnings to Halberg, and Halberg told Bittick that she
understood her rights. Bittick then asked Halberg if she was
willing to speak to him. Halberg replied, "Don't ask me
questions. My husband, he's -- he went and go visit." Rather
than ceasing the interview, Bittick began questioning Halberg.
Asked to explain how her husband had died, Halberg told Bittick
that her husband had stabbed himself:
BITTICK: You remember you stuck him
with a knife last night?
HALBERG: I didn't stick nobody with a
knife. He did it to him[self].
Q: You said earlier ...
A: He did it himself. ... You want to
see the knife he did it with? ... He said,
... "Watch me. Watch me do it, you bitch."
... He told me, he said, "Watch me, bitch.
I could do it."
Q: Why did you tell them [King and
Akelkok] earlier that you stuck, you stabbed
A: [I] did nothing to him. I said I
hurt him; I hurt him.
Q: You hurt?
A: I hurt him.
Q: Yeah, you said ...
A: His feelings were hurt, and he said
he was gonna do it, and I looked at him, I
said, "Hank, you can't do it." He said,
"Watch me, you fucking whore. Watch me, you
fucking bitch." And he did it.
Q: Where did the knife go? Did you
take the knife then?
A: I took [it] and washed it up[.]
. . . .
My husband, he did it. I didn't want
him to, but he did it. ... I want Hank
here. He said he could do it; he said he
could do it[.] ... Take his own, he take his
own fucking knife, he take his own knife, and
[he] did it. He said, "Nobody loves me
here[.]" Oh, but I love him; I loved him.
Die myself -- I wish to God I would die
myself. ... Nobody's fault.
After hearing this answer, Bittick stopped questioning
Halberg because he believed that she had become too emotional to
continue the interview. Instead, Bittick told Halberg, "Okay,
Lisa, why don't you [lie] down and get some sleep, and we'll talk
again later. Okay, just go ahead and [lie] down and get some
sleep." Halberg's reply, "Turn the light off", is the last
statement of the interview.
As indicated, Bittick left Halberg sleeping at John
King's house. Bittick did not place Halberg under arrest.
That evening, Trooper Ron Belden arrived in Ekwok. At
approximately 7:30 p.m., or about seven hours after the first
interview, Belden and Bittick conducted a second interview with
Halberg at the Ekwok city offices. A third interview was
conducted the next day (January 5th) at the Village Public Safety
Office, and three additional interviews were conducted on January
6th and 7th C at the village teachers' housing, at Halberg's
residence, and again at the city offices. Halberg was never in
custody during this time.
As noted earlier, we held in our previous decision in
this case that Trooper Bittick violated Miranda when he continued
to question Halberg after she told him, "Don't ask me questions."
Because of this Miranda violation, we directed the superior court
to suppress the statements Halberg made during that first inter
view. We then asked the superior court to determine whether any
other evidence should be suppressed on account of this Miranda
On remand, Judge Michalski found that the second and
subsequent interviews were not tainted by the Miranda violation
that occurred at the first interview. In his written decision,
Judge Michalski acknowledged:
[S]everal portions of the second [and subse
quent interviews with] Halberg contain
references by the interrogators to
[Halberg's] first statement, or rely on
knowledge [obtained] from the first
statement. ... [All] statements subsequent
to the first one ... relate back to one or
more prior statements and thus could properly
be said to be the fruit of the initial
statement[.] ... [T]he court does not
believe that ... it can conclude beyond a
reasonable doubt that the contents of the
second and subsequent statements would be the
same without the first statement. Indeed,
such a conclusion is impossible given the
fact that the officers at various points
refer back to prior answers or statements.
Nevertheless, Judge Michalski noted that Halberg's
initial statement was voluntary, despite the Miranda violation.
(Judge Michalski originally made this finding during the initial
trial court proceedings, and we affirmed this finding on appeal.)
Judge Michalski found that Halberg's second and subsequent
statements were also voluntary, and that Halberg made those
subsequent statements after receiving proper Miranda warnings and
after explicitly waiving her privilege against self-
incrimination. Judge Michalski concomitantly found that the
troopers had not "recklessly run roughshod over [Halberg's]
rights", nor had they "act[ed] with disregard to [Halberg's]
condition" nor "intentionally manipulate[d], frighten[ed,] or
abuse[d] [Halberg] in order to obtain a desired statement".
Citing the United States Supreme Court's decision in Oregon v.
Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985),
Judge Michalski declared that Halberg's second and subsequent
statements were admissible.
On appeal, Halberg argues that, once Judge Michalski
found her subsequent statements to be the "fruit" of her initial
statement, the judge was obliged to suppress those subsequent
statements. She argues that Judge Michalski misinterpreted
Oregon v. Elstad; alternatively, she argues that this court
should refuse to follow Elstad and should instead declare that
the Alaska Constitution requires a different rule.
In essence, Halberg argues that the Alaska Constitution
requires that we continue to apply pre-Elstad law. We find it
unnecessary to resolve this issue. Even applying pre-Elstad law
to the facts of this case as found by Judge Michalski, we
conclude that Halberg's subsequent statements are not the "fruit"
of her initial statement, at least as that term is normally
employed for purposes of the exclusionary rule. Moreover, even
though Judge Michalski purported to rely on Elstad as the legal
basis for his ruling, Halberg's case does not raise any issue
under Elstad. To explain our analysis of Halberg's case, it is
helpful to summarize the state of the law before Elstad.
The Law Before Oregon v. Elstad
Under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct.
407, 9 L.Ed.2d 441 (1963), a criminal defendant can seek suppres
sion of his or her statements to the police on the ground that
those statements are tainted by a prior illegality. For
instance, 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 self-
There are, generally speaking, two ways in which the
police may violate a defendant's privilege against self-
incrimination. First, the police may use interrogation methods
so coercive as to "overbear [the suspect's] will to resist and
bring about confessions not fairly self-determined". Rogers v.
Richmond, 365 U.S. 534, 544; 81 S.Ct. 735, 741; 5 L.Ed.2d 760
(1961). In such cases, the defendant's confession is deemed
involuntary, and it must be suppressed. Second, the police may
violate the rules established in Miranda and succeeding cases C
the rules governing the police's duty to inform an arrested
suspect of the rights to silence and to counsel, to obtain a
waiver of these rights before custodial interrogation, and to
respect a suspect's invocation of these rights. Even if the
defendant's statement is voluntary, the Miranda violation
constitutes an independent ground for suppression.
Before Elstad, courts used one legal test to analyze
whether a previous Fifth Amendment violation (either an
involuntary statement or a statement taken in violation of
Miranda) tainted a defendant's subsequent statement. 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". Brown v. Illinois, 422 U.S. 590, 602; 95 S.Ct.
2254, 2261; 45 L.Ed.2d 416 (1975), citing Wong Sun, 371 U.S. at
486; 83 S.Ct. at 416. Or, as stated in Clewis v. Texas, 386 U.S.
707, 710; 87 S.Ct. 1338, 1340; 18 L.Ed.2d 423 (1967), courts were
to assess whether there was a "break in the stream of events ...
sufficient to insulate the [subsequent] statement from the effect
of all that went before".
While Brown involved the claim that a defendant's
statement was tainted by his prior illegal arrest (a Fourth
Amendment violation), the Supreme Court required the same
analysis in cases involving violations of the Fifth Amendment.
See Westover v. United States (a companion case of Miranda), 384
U.S. 436, 494-96; 86 S.Ct. 1602, 1638-39; 16 L.Ed.2d 1602
(defendant's prior statement was taken in violation of Miranda);
Clewis v. Texas, 386 U.S. at 710-11, 87 S.Ct. at 1340
(defendant's prior confession was involuntary). See also United
States v. Bayer, 331 U.S. 532, 540; 67 S.Ct. 1394, 1398; 91 L.Ed.
1654 (1947); Holland v. McGinnis, 963 F.2d 1044, 1050 (7th Cir.
1992); United States v. Wauneka, 770 F.2d 1434, 1441 (9th Cir.
1985) (discussing other cases involving prior involuntary
In Brown, the government argued that the taint of a
prior illegality could always be negated by giving the defendant
Miranda warnings. The government asserted that, once the
defendant understood that he or she need not say anything to the
police, any knowing and voluntary decision to waive that right
necessarily constituted an independent act of will that broke the
"stream of events". The Supreme Court rejected the government's
[The fact that the defendant received]
Miranda warnings [before the subsequent
statement is] an important factor, to be
sure, in determining whether the confession
is obtained by exploitation of an illegal
arrest. But [this] is not the only factor to
be considered. The 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.
Brown, 422 U.S. at 603-04, 95 S.Ct. at 2261-62 (footnotes and
At the same time, the Brown Court explicitly rejected
the notion that the taint flowing from a prior violation of a
defendant's rights could be assessed using a causality or "but
for" test. That is, the Court refused to accept the argument
that suppression should invariably be required whenever the
defendant's subsequent statement was the result of prior
While we ... reject the [rule that
Miranda warnings will always cure a prior
illegality], we also decline to adopt any
alternative per se or "but for" rule. ...
The 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.
The workings of the human mind are too
complex, and the possibilities of misconduct
too diverse, to permit [the answer] to turn
on such a talismanic test.
Brown, 422 U.S. at 603, 95 S.Ct. at 2261.
Rather, all the circumstances of the defendant's
particular case had to be assessed to determine the effect of the
prior illegality on the defendant's later decision to submit to
police questioning. As later expressed by the Seventh Circuit,
"the issue is not causation, but the degree of improper
coercion". Holland v. McGinnis, 963 F.2d 1044, 1051 (7th Cir.
1992).1 Accord United States v. Leon Guerrero, 847 F.2d 1363,
1366 n.1 (9th Cir. 1988); Leon v. Wainwright, 734 F.2d 770, 772-
73 & n.3 (11th Cir. 1984).
The decision whether a defendant's statements are or
are not tainted by a prior illegality is ultimately a question of
law. While a reviewing court accepts the trial court's findings
of historical fact (unless they are shown to be clearly
erroneous), the reviewing court independently determines whether,
under those facts, the defendant's decision to speak with the
police was voluntary and sufficiently insulated from the prior
illegality to escape its taint. Dulier v. State, 511 P.2d 1058,
1060 (Alaska 1973). Accord United States v. Robinson, 20 F.3d
320, 322 (8th Cir. 1994); Holland v. McGinnis, 963 F.2d 1044,
1050 (7th Cir. 1992); United States v. Anderson, 929 F.2d 96, 99
(2nd Cir. 1991); United States v. Lewis, 833 F.2d 1380, 1384 (9th
The Elstad Decision
In Oregon v. Elstad, the Supreme Court distinguished
between (1) cases in which the prior illegality is an involuntary
confession, and (2) cases in which the prior illegality is a
Miranda violation. The defendant in Elstad was arrested on
suspicion of burglary; two police officers came to his home,
armed with an arrest warrant. After serving the arrest warrant,
one of the officers questioned Elstad without giving him Miranda
warnings or securing a waiver of his rights. Elstad told the
officer that he had been present during the burglary. The
officers then trans-ported Elstad to the police station, where he
was held in custody. One hour later, Elstad was interrogated by
the same two officers. This time, the officers read Elstad the
Miranda warnings and secured a waiver of Elstad's rights. Elstad
again confessed, this time in more detail. Elstad, 470 U.S. at
301-02, 105 S.Ct. at 1288.
The government conceded that Elstad's first statement
should be suppressed because of the Miranda violation. Elstad,
470 U.S. at 302, 105 S.Ct. at 1289. However, the government
contended that Elstad's subsequent confession at the police
station was not tainted by the prior brief interrogation at his
home. Id. The Oregon Court of Appeals disagreed. Applying a
"totality of circumstances" test, and quoting Clewis v. Texas,
386 U.S. at 710, 87 S.Ct. at 1340, the Oregon court found that
"there was [not] a sufficient break in the stream of events
between [the] inadmissible statement and the [later] confession
to insulate the latter statement from the effect of what went
before". Elstad, 470 U.S. at 303, 105 S.Ct. at 1289-1290. The
Oregon court relied heavily on the short amount of time between
Elstad's two statements, as well as on the fact that, in his
first statement, Elstad had "let the cat out of the bag" by
essentially admitting his participation in the burglary. "[T]he
coercive impact of [the] unconstitutionally obtained statement
remain[ed], because in [the] defendant's mind it ha[d] sealed his
fate." Id., 470 U.S. at 303, 105 S.Ct. at 1290.
Reversing the Oregon court, the United States Supreme
Court declared that, in cases involving the claim that a defen
dant's statements were tainted by a prior illegality, a
distinction had to be drawn between involuntary confessions and
Miranda violations. A "break in the stream of events" would
continue to be required for cases involving a prior involuntary
confession, because an involuntary confession, by definition,
violates the defendant's constitutional rights under the Fifth
Amendment. However, the Court declared, a Miranda violation does
not necessarily show that the defendant's Fifth Amendment rights
[While] [t]he Miranda exclusionary rule
... serves the Fifth Amendment[, it] sweeps
more broadly than the Fifth Amendment itself.
[The Miranda rule] may be triggered even in
the absence of a Fifth Amendment violation.
The Fifth Amendment prohibits use ... only of
compelled testimony. ... [U]nwarned state
ments that are otherwise voluntary within the
meaning of the Fifth Amendment must neverthe
less by excluded from evidence under Miranda.
Thus, in the individual case, Miranda's pre
ventive medicine provides a remedy even to
the defendant who has suffered no
identifiable constitutional harm.
Elstad, 470 U.S. at 306-07, 105 S.Ct. 1291-92 (emphasis in the
Thus, the Supreme Court held, when the prior illegality
involves only a Miranda violation and not an involuntary confes
sion, "a careful and thorough administration of the Miranda
warnings serves to cure the condition that rendered the unwarned
statement inadmissible", even when there has been no identifiable
break in the action. Elstad, 470 U.S. at 310-11, 105 S.Ct. at
1294. In such cases, the Court declared, the Miranda warning
given before the defendant's subsequent interview "conveys the
relevant information[,] and thereafter the suspect's choice
whether to exercise his privilege to remain silent should
ordinarily be viewed as an 'act of free will'." Elstad, 470 U.S.
at 311, 105 S.Ct. at 1294 (quoting Wong Sun, 371 U.S. at 486, 83
S.Ct. at 416).
The Court explicitly rejected the Oregon court's "cat
out of the bag" analysis C the theory that, having once
confessed, a defendant would drop his or her psychological
defenses to further interrogation because the defendant would
feel that his or her fate was already sealed. The Court rejected
this "cat out of the bag" analysis both because the Court
disagreed with the psychological theory underlying it and because
such a rule would lead to anomalous results.
Regarding the psychological underpinnings of the "cat
out of the bag" theory, the Court stated:
There is a vast difference between the
direct consequences flowing from coercion of
a confession by physical violence or other
deliberate means calculated to break the
suspect's will and the uncertain consequences
of disclosure of a "guilty secret" freely
[made] in response to an unwarned but non
coercive question[.] ... Certainly, in re
spondent's case, the causal connection
between any psychological disadvantage
created by his admission [at the time of his
arrest] and his ultimate decision to
cooperate [with the authorities] is
speculative and attenuated at best. It is
difficult to tell with certainty what
motivates a suspect to speak. ... We must
conclude that, absent deliberately coercive
or improper tactics in obtaining the initial
statement, the mere fact that a suspect has
made an unwarned admission does not warrant a
presumption of compulsion.
Elstad, 470 U.S. at 312-14, 105 S.Ct. at 1295-96.
Regarding the anomalous results of the proposed "cat
out of the bag" rule, the Court perceived that, if the lingering
"psychological effects of voluntary unwarned admissions"
(emphasis in the original) were to taint any later decision to
speak, such a rule "would, practically speaking, disable the
police from obtaining the suspect's informed cooperation" even
when the police had never violated the suspect's Fifth Amendment
rights. Elstad, 470 U.S. at 311, 105 S.Ct. at 1294. A "cat out
of the bag" rule would mean that voluntary statements taken in
violation of Miranda would be considered more tainted than
involuntary confessions extorted by violence or threats of
[E]ven in such extreme cases as Lyons v.
Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88
L.Ed. 1481 (1944), in which police forced a
full confession from the accused through
unconscionable methods of interrogation, the
Court has assumed that the coercive effect of
the confession could, with time, be dissi
Elstad, 470 U.S. at 311-12, 105 S.Ct. at 1294.
Thus, the Supreme Court in Elstad declared a new rule
for cases in which a defendant's initial confession was voluntary
but obtained through a Miranda violation. As explained above, in
Brown v. Illinois the Supreme Court declared that the
administration of Miranda warnings and a defendant's subsequent
voluntary decision to submit to police questioning were not
sufficient, in themselves, to erase the taint of a prior Fourth
Amendment violation. Until Elstad, this rule applied to all
Fifth Amendment violations too. But in Elstad, the Court held
that if the prior illegality was a Miranda violation, and if the
defendant later voluntarily chose to submit to further
questioning after receiving proper Miranda warnings, these
warnings and that voluntary decision will ordinarily be
sufficient to dissipate the taint of the prior Miranda violation.
The defendant's prior unwarned confession will not, of itself,
taint the defendant's subsequent decision to waive his or her
rights and speak to the police, so long as "the officers [do not]
exploit the unwarned admission to pressure [the defendant] into
waiving his [or her] right to remain silent". Elstad, 470 U.S.
at 316, 105 S.Ct. at 1296.
We now return to the facts of Halberg's case. Judge
Michalski ruled that Halberg's second and subsequent interviews
with the troopers were the "fruit" of her initial interview with
Trooper Bittick because, at various places in the subsequent
interviews, the troopers explicitly referred to statements
Halberg made at the first interview or they relied on knowledge
obtained from Halberg's answers at the first interview. In other
words, Judge Michalski found that the second and subsequent
interviews were the "fruit" of the first interview because the
content of the second and subsequent interviews would have been
different had it not been for the statements Halberg made during
the first interview.
As explained above, even under pre-Elstad law it was
error to employ this "but for" test to analyze whether Halberg's
subsequent statements were the fruit of her first interview.
Long before Elstad, the Supreme Court explicitly rejected a
causation or "but for" test as the method for judging whether a
defendant's statement is the result of a prior occurrence. Brown
v. Illinois, 422 U.S. at 603, 95 S.Ct. at 2261; Hutto v. Ross,
429 U.S. at 30, 97 S.Ct. at 203-04.
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
Halberg's decision to submit to the second and subsequent inter
views was "sufficiently an act of free will to purge the ...
taint" of the Miranda violation at the first interview. Brown v.
Illinois, 422 U.S. at 602, 95 S.Ct. at 2261. Under this test, we
must concentrate on Halberg's consent to participate in the
subsequent interviews and decide whether this consent was tainted
by the statements she made during the first interview.
Judge Michalski relied on Elstad when he ruled that
Halberg's subsequent interviews were not tainted by the Miranda
violation. However, under the facts of this case as found by
Judge Michalski, there was no need to rely on Elstad. Even
applying the "totality of circumstances" test of pre-Elstad law,
we conclude that there was a sufficient break in the "stream of
events" between Halberg's initial interview and her subsequent
interviews to attenuate the taint of the Miranda violation.
Over the years, the following factors have been used to
assess whether a defendant's subsequent statement is the tainted
fruit of a prior illegality: the 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 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. Holland v. McGinnis, 963 F.2d
1044, 1050 (7th Cir. 1992); United States v. Patino, 862 F.2d
128, 132-34 (7th Cir. 1988); United States v. Wauneka, 770 F.2d
1434, 1440-41 (9th Cir. 1985); State v. Baruso, 865 P.2d 512, 516-
17 (Wash. App. 1994), review denied, 879 P.2d 292 (Wash. 1994);
People v. Hamilton, 831 P.2d 1326, 1332-33 (Colo. 1992); State v.
Kirby, 744 P.2d 146, 153 (Kan. App. 1987), aff'd, 751 P.2d 1041
Under pre-Elstad law, the ultimate question C whether
the Miranda violation infected Halberg's subsequent interviews,
or whether the taint of that violation was sufficiently
attenuated to allow admission of Halberg's later interviews C is
determined by examining all of these factors. As the Supreme
Court stated in Brown v. Illinois, "No single fact is
dispositive." Brown, 422 U.S. at 603, 95 S.Ct. at 2261.
Analyzing Halberg's case in this fashion, we conclude that her
subsequent interviews with the troopers were not tainted by the
Miranda violation at the first interview.
Judge Michalski found that the Miranda violation in
this case was not flagrant or purposeful. The judge concluded
that "the interrogating officer ha[d] no idea that [Halberg's]
initial statement [would] be found illegal", since that initial
statement was "voluntary, uncoerced[,] and given [after] a
Miranda warning". The problem, Judge Michalski declared, was
that "[t]he officer should have listened more closely when
seeking Ms. Halberg's waiver of Miranda rights." Judge Michalski
explicitly found "that the police tried to comply with the duty
[imposed by] Miranda" and that the officer "gave the full
warning", but then the officer failed to "obtain a proper
There was a significant interval C approximately seven
hours C between the first interview at John King's house and the
second interview at the Ekwok city offices. Halberg was at
liberty during this time, and she came voluntarily to the second
interview. When Halberg arrived for the second interview, the
troopers again administered full Miranda warnings to her, and
Halberg expressly waived her rights and consented to speak to the
One of the factors to be considered, among the totality
of circumstances, is whether the same officer conducted both
interviews or whether different officers conducted the second
interview. Here, two troopers conducted the second interview.
One of them, Trooper Bittick, was the trooper who conducted the
first interview and who violated Halberg's Miranda rights.
However, the fact that the same officer participated in both
interviews is significant only in cases where there is reason to
believe that the defendant might be intimidated by the officer's
presence C for example, when the officer had been overbearing or
had used coercive tactics during the first interview.
The facts of Halberg's case are readily distinguishable
from such cases. As described above, Trooper Bittick questioned
Halberg for only a few minutes at the initial interview. After
Halberg described watching her husband commit suicide, Bittick
took it upon himself to end the interview because he believed
that Halberg was not in a fit emotional state to continue. He
encouraged Halberg to get some sleep, and he left her at her
brother-in-law's house. This record shows that Bittick did not
engage in coercive interrogation methods that might have tainted
Halberg's later decision to submit to renewed questioning.
It does not appear that Halberg's statements from the
first interview significantly affected her willingness to engage
in renewed conversation with the troopers. Halberg did not "let
the cat out of the bag" at the first interview. That is, she did
not confess to homicide, nor did she even admit assaulting her
husband. Instead, she unequivocally stated that her husband had
It is true that, during the course of the second inter
view, the troopers referred a few times to the fact that a prior
interview had taken place. It is also true that, on three or
four occasions during the second interview, the troopers reminded
Halberg of answers she had given during the first interview.
However, all of this occurred long after Halberg had waived her
rights to silence and to the assistance of counsel. The 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).3
In fact, Halberg had not previously confessed. As
explained above, during the first interview Halberg steadfastly
maintained that her husband had committed suicide, stabbing
himself before her eyes in a fit of despondency. Halberg's
statements at the first interview did not place her at a
psychological disadvantage when the time came for her to decide
whether or not to consent to the second and subsequent
In Halberg's brief to this court, despite her general
attack on Elstad, she asks us to apply Elstad in one respect.
Halberg asserts that Elstad stands for the proposition that, if a
defendant's first interview is taken in violation of Miranda,
then the police are prohibited from using that first interview in
any manner during subsequent interviews. However, Elstad does
not prohibit all reference to the first interview. Rather,
Elstad indicates that the police may not use the defendant's
answers from the first interview to secure the defendant's waiver
of rights at the commencement of a subsequent interview. See
Elstad, 470 U.S. at 316, 105 S.Ct. at 1296: "Nor did the officers
exploit the [defendant's] unwarned admission to pressure [the
defendant] into waiving his right to remain silent." (Emphasis
The Supreme Court's statement must be understood in
context. The Elstad Court had just rejected the argument that,
if a defendant had previously confessed before receiving Miranda
warnings, the defendant's later decision to again confess at a
second interview would invariably be the result of psychological
pressures stemming from the first confession. The Court ruled
that, notwithstanding a first confession, a defendant who had
received Miranda warnings would ordinarily be presumed to under
stand that he or she need not repeat that first confession or add
anything to it. Having said this, however, the Court indicated
that the matter would be different if the police affirmatively
reminded the defendant of the previous confession and suggested
that it would be pointless for the defendant to assert his or her
When Halberg argues for the broader rule that the
subsequent interview can not incorporate or refer to the initial
interview in any manner, Halberg patently relies on the "but for"
causality test that was rejected in Brown v. Illinois. We also
note that, if Elstad were interpreted as Halberg suggests, it
would be harder for the State to show lack of taint from a
Miranda violation that resulted in voluntary, exculpatory
statements (the situation in Halberg's case) than it is for the
State to establish lack of taint from a prior involuntary
confession (for example, a confession obtained by physical
coercion, as in Clewis v. Texas). Such an interpretation of
Elstad is not plausible.
The fact that, during the second and subsequent inter
views, the troopers referred to statements Halberg had earlier
made during her first interview is one factor that should be
considered among all the circumstances. But a court must assess
the totality of circumstances when judging whether Halberg's
waiver of her rights at the second interview was knowing and
voluntary, and whether the statements she then gave at the second
and succeeding interviews were voluntary.
Judge Michalski found that, despite the cross-
references to statements from the first interview, Halberg's
subsequent statements were voluntary. We are obliged to
independently assess this question. Dulier v. State, 511 P.2d at
1060. Having indepen-dently examined the record, we agree with
Judge Michalski. The second and subsequent interviews were not
tainted by the Miranda violation at the first interview, and
Halberg's statements at these interviews are therefore admissible
Judge Michalski further concluded that suppression of
the first interview alone does not cast reasonable doubt on
Halberg's conviction C that suppression of the first interview
does not entitle Halberg to a new trial. Halberg does not
challenge this ruling.
Accordingly, the judgement of the superior court is
1 See, for example, Hutto v. Ross, 429 U.S. 28, 30; 97
S.Ct. 202, 203; 50 L.Ed.2d 194 (1976) (per curiam). The
defendant, who had already concluded a plea bargain with the
government, acceded to a government request to be interviewed by
government agents and speak about the crime, even though this was
not part of the plea bargain. During the interview, the
defendant confessed to the crime charged against him.
Thereafter, the plea agreement fell apart, and the defendant
asked the court to prohibit the government from using his
confession. He argued that his confession should be considered a
statement "made in connection with an offer to plead guilty".
The Eighth Circuit agreed with the defendant, but the Supreme
Court reversed. The Supreme Court stated:
The only question in this case is
whether a confession is per se inadmissible
... because it was made subsequent to an
agreed upon plea bargain that did not call
for such a confession. ... The Court of
Appeals reasoned that respondent's confession
was made "as a result of the plea bargain"
and would not have been made "but for the
plea bargain." But causation in that sense
has never been the test of voluntariness.
The test is whether the confession was
extracted by any sort of threats or violence,
or [was] obtained by any direct or implied
promises, however slight, or by the exertion
of any improper influence.
Hutto v. Ross, 429 U.S. at 30, 97 S.Ct. at 203-04 (footnote,
citations, and quotations omitted).
2 This view C that Miranda "sweeps broader" than the Fifth
Amendment C was reiterated in Michigan v. Harvey, 494 U.S. 344,
110 S.Ct. 1176, 108 L.Ed.2d 293 (1990):
Although recognizing that Miranda rules would
result in the exclusion of some voluntary and
reliable statements, the Court imposed these
"prophylactic standards" on the States, see
Michigan v. Tucker, 417 U.S. 433, 446, 94
S.Ct. 2357, 2364-65, 41 L.Ed.2d 182 (1974),
to safeguard the Fifth Amendment privilege
against self-incrimination. ... [These]
procedural safeguards ... are "not themselves
rights protected by the Constitution,"
Tucker, supra, 417 U.S. at 44, 94 S.Ct. at
2364, ... but are instead measures designed
to insure that constitutional rights are
Harvey, 494 U.S. at 350-51, 110 S.Ct. at 1180-81.
3 A useful comparison is found in United States v. Carter,
884 F.2d 368, 372-74 (8th Cir. 1989), a post-Elstad case in which
the Eighth Circuit held that the defendant's second interview
with the police was tainted by a prior Miranda violation even
though the defendant received full Miranda warnings before the
second interview. The Carter court relied on two main factors.
First, there had been essentially no break in time between the
two interviews; "the [defendant's] second confession came almost
directly on the heels of the first". Carter, 884 F.2d at 373.
Second, it appeared that the police had pursued a conscious
strategy of obtaining as much information as they could from the
defendant before they administered the Miranda warnings; then
they administered the warnings and asked the defendant to repeat
all of his incriminating admissions. Id.
And see State v. Nobles, 835 P.2d 1320 (Idaho App. 1991),
aff'd, 835 P.2d 1281 (Idaho 1992), where the court said that,
even though a defendant receives Miranda warnings before the
second interview, the reviewing court still must determine
whether "there is any evidence to suggest that the officers
exploited unwarned admissions to pressure [the defendant] into
waiving his right to remain silent" at the second interview.
4 Some courts have recognized that the rationale of the
"cat out of the bag" theory applies only when the defendant has
made statements that the defendant perceives to be a confession
of wrongdoing. A defendant will not feel psychological pressure
to waive his or her rights if the defendant does not view his or
her prior statements as incriminating. See, for example, United
States v. Knight, 395 F.2d 971, 975 (2nd Cir. 1968).