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Noyakuk v. State (1/20/2006) ap-2027

Noyakuk v. State (1/20/2006) ap-2027

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


BEN NOYAKUK, )
) Court of Appeals No. A-8442
Appellant, ) Trial Court No. 2NO-01-244 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 2027 January 20, 2006]
)
          Appeal  from the Superior Court, Second  Judi
          cial District, Nome, Ben J. Esch, Judge.

          Appearances:  Gregory S. Parvin and Robert D.
          Lewis  of  Lewis  &  Thomas,  Nome,  for  the
          Appellant.  Kenneth M. Rosenstein,  Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Gregg  D.  Renkes, Attorney General,  Juneau,
          for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          In   March  2001,  Ben  Noyakuk  shot  and  killed  his
girlfriend,  Martha Butler.  A jury ultimately convicted  him  of
first-degree murder for this homicide.
          At   Noyakuks  trial,  the  State  relied  on   various
statements  that  Noyakuk made to the state  troopers  about  the
homicide.   Noyakuk  made these statements  during  a  series  of
interviews  that  took  place at the Anvil Mountain  Correctional
Center.  Noyakuk was incarcerated at this correctional center  as
a result of his arrest on April 12, 2001 for two misdemeanors and
a probation violation, all unrelated to the homicide.
          The superior court found that the troopers had violated
Noyakuks  Miranda rights at the first interview, so the  superior
court   suppressed  Noyakuks  statements  from  that  interview.1
However,  the  superior court concluded that Noyakuks  statements
from  the subsequent interviews were not tainted by this  Miranda
violation   because,  at  these  subsequent  interviews,  Noyakuk
received  proper  Miranda warnings and  waived  his  rights,  and
because  Noyakuks statements at these subsequent interviews  were
voluntary.   The superior court thus ruled that the  State  could
rely on Noyakuks statements from these subsequent interviews.
          For  the  reasons  explained here, we  agree  with  the
superior  courts resolution of these questions, and we  therefore
affirm Noyakuks conviction.

     Underlying facts
     
               In   early   2001,   Ben  Noyakuk   and   his
     girlfriend,  Martha Butler, were living  in  Nome.   On
     April 1, 2001, Butlers father contacted the Nome police
     to  report that his daughter was missing.  Eleven  days
     later,  on  April  12th, Thomas Noyakuk  (Ben  Noyakuks
     brother) informed the police that Ben had told him that
     he had accidentally shot and killed Butler, and that he
     had hidden her body near the Penny River.
               Based  on  this information, the Nome  police
     called  the  Alaska State Troopers and, together,  they
     began searching for Noyakuk.  They found Noyakuk as  he
     was  traveling  by  snowmachine from  Nome  to  Teller.
     Noyakuk was intoxicated, and he had a rifle with him.
          Noyakuk   was  arrested  for  driving   while
intoxicated,2   for  possession  of  a  firearm   while
intoxicated,3  and for violating the conditions of  his
probation  from  an  earlier  criminal  conviction  (by
drinking  alcoholic beverages).  However,  Noyakuk  was
not  charged  with  any crime in  connection  with  the
homicide.   At  the  time of his  arrest,  Noyakuk  was
advised   of  his  Miranda  rights,  but  he  was   not
interrogated.   He  was  taken to  the  Anvil  Mountain
Correctional Facility.
          Within   an  hour  of  his  arrival  at   the
correctional  facility, Noyakuk was placed  on  suicide
watch    i.e.,   he   was  placed   in   administrative
segregation, and the jailers took away his clothing, so
that  he had only a mattress and a blanket in his cell.
Prisoners on suicide watch are not allowed any visitors
except for their attorney  and, because Noyakuk had  no
attorney  yet,  this  meant  that  he  was  being  held
incommunicado.
          Noyakuk  was still on suicide watch the  next
morning  (April  13th), when two state  troopers   Jane
Schied  and  Terry  Shepherd  came to the  correctional
center to interview Noyakuk about Martha Butlers death.
Corrections officers allowed Noyakuk to dress, and then
          they took Noyakuk to a small room adjacent to the
correctional  centers  booking office,  where  the  two
troopers were waiting.
          The troopers informed Noyakuk that he did not
have  to  talk to them, and that he was free  to  leave
(i.e., terminate the interview and return to his  cell)
at  any  time.  In addition, when Noyakuk  asked  about
getting  an  attorney, the troopers told  him  that  he
could have an attorney present during the interview  if
he  wished, and that they would delay the interview  in
that  case.  However, the troopers did not give Noyakuk
the  full set of Miranda warnings before they began  to
question him.
          During this first interview, Noyakuk told the
troopers that he had accidentally shot Butler and that,
after  she  died, he wrapped her body in a blanket  and
buried her under a snowbank near the Penny River.
          On  the afternoon of April 13th (i.e., a  few
hours  after  Noyakuks first interview with  the  state
troopers),  Noyakuk was brought to court and  arraigned
on  the misdemeanor charges.  An attorney was appointed
to  represent  him on those charges  (as  well  as  the
probation violation).
          Trooper  Schied returned to the  correctional
center in the early evening of April 15th to conduct  a
second  interview with Noyakuk.  That is,  this  second
interview  took place a little over 48 hours after  the
initial   interview   and   Noyakuks   ensuing    court
arraignment.   This time, Schied gave Miranda  warnings
to Noyakuk, and he waived his rights.
          At  this  second interview, Noyakuk presented
basically the same account of the shooting (i.e.,  that
it  was  an  accident), but his description  of  events
varied  in some details, and Schied believed that  some
portions of Noyakuks account were unlikely or  did  not
make  sense.  When Schied tried to pin Noyakuk down  on
some  of these discrepancies, Noyakuk became shook  up.
He  told Schied that he was going to end the interview,
and  Schied  responded that this was  his  right.   But
before Noyakuk left the interview room, he told Schied,
You  know  where  I am if you have any more  questions.
Schied  understood this to mean that  Noyakuk  did  not
object to being interviewed again at a later time.
          Schieds  third  interview with  Noyakuk  took
place  in  the  mid-afternoon of  April  16th.   Schied
testified  that  she  went to the  correctional  center
shortly  after noon on the 16th, intending to interview
Noyakuk,  but  when  she arrived, she  discovered  that
Noyakuk had just had an interview with a mental  health
worker  and  he  was  emotionally upset.   Even  though
Noyakuk  told Schied that he was willing  to  speak  to
her, Schied declined to interview Noyakuk at that time.
Instead, she advised Noyakuk that it would be better if
he  got  some rest first.  Schied left the  prison  and
returned  two hours later, at which time she  conducted
her   third   interview  with  Noyakuk.    Again,   she
Mirandized Noyakuk, and Noyakuk waived his rights.
          During this third interview, Noyakuk admitted
that  the  shooting had not been an accident.   Noyakuk
told  Schied that he shot Butler as she lay on a  couch
with her eyes closed (apparently unconscious).  Noyakuk
explained that he shot Butler because he believed  that
she  was  going  to leave him.  Noyakuk  also  informed
Schied  that  he would be willing to help the  troopers
look for Martha Butlers body.  Schied told Noyakuk that
she would forward this offer to her superiors.
          Schied contacted Noyakuk again on the morning
of  April  17th  (again, with Miranda  warnings).   She
informed  Noyakuk that the troopers did  want  Noyakuks
assistance  in searching for Martha Butlers  body,  and
that  the  troopers  would return  to  the  prison  the
following day (April 18th) to come get him.   When  the
troopers   returned  the  next  day,  they   Mirandized
Noyakuk, and then they transported him by helicopter to
the Penny River, where they located the body.
          Two weeks later, the Nome grand jury indicted
Noyakuk for first-degree murder.

Noyakuks  motion  to  suppress his  statements  to  the
troopers

          Following  his indictment, Noyakuk asked  the
superior  court to suppress the statements he  made  at
the  initial interview on April 13th because Schied and
Shepherd  had  not  fully advised him  of  his  Miranda
rights.   Noyakuk also asserted that the  troopers  had
failed  to  honor  his request for an attorney  at  the
April  13th  interview, and that  this  constituted  an
independent  basis for suppressing his statements  from
that first interview under Edwards v. Arizona, 451 U.S.
477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
          Noyakuk  also  sought  suppression   of   the
statements   he  made  at  the  subsequent  interviews,
arguing  that  these  subsequent  interviews  were  all
tainted  by  the  Miranda  violation  and  the  Edwards
violation  at  the  initial interview.   And,  finally,
Noyakuk  sought  suppression of all  physical  evidence
derived from these interviews.
          Following  an  evidentiary hearing,  Superior
Court  Judge Ben J. Esch agreed with Noyakuk  that  the
troopers  had interrogated him in violation of  Miranda
at   the   first   interview.   Judge  Esch   therefore
suppressed the statements Noyakuk made at that  initial
interview.  However, Judge Esch concluded that Noyakuks
statements   from   the  subsequent   interviews   were
admissible   despite  the  initial  Miranda  violation.
Judge  Esch  reached this conclusion because  he  found
that (1) all of Noyakuks statements were voluntary  for
Fifth  Amendment  purposes, and (2) Noyakuk  was  fully
advised of his Miranda rights, and waived those rights,
prior to each of the subsequent interviews.
          With regard to the asserted Edwards violation
(i.e.,  failure  to  honor a suspects  request  for  an
attorney), Judge Esch found that Noyakuk made  only  an
equivocal  request for an attorney when  Noyakuk  said,
Shouldnt I just have my attorney with me, or something?
Judge  Esch  further found that Noyakuk was  aware  (at
that  time)  of  his  right to  the  assistance  of  an
attorney,  due  to  his  [prior] experience  with  both
attorneys and the justice system.  As Judge Esch noted,
Noyakuk  was  convicted several times in the  1980s  of
minor  consuming  alcohol, and was  convicted  once  of
disorderly conduct in the 1990s.  Moreover, in the year
preceding  his  arrest  in  April  2001,  Noyakuk   was
convicted three times of domestic assault.
          Judge  Esch also found that the troopers  had
responded  appropriately to Noyakuks equivocal  request
for  an attorney:  they repeatedly explained to Noyakuk
that  it  was up to him to decide whether he wished  to
speak  to  them  without an attorney,  and  they  asked
Noyakuk  to clarify whether he was willing to speak  to
them without an attorney.  Only after Noyakuk expressly
stated that he was willing to be interviewed without an
attorney  did  the troopers commence their  substantive
questioning  about  the homicide.  Under  these  facts,
Judge Esch concluded, the troopers had not violated the
rule of Edwards v. Arizona.

A more detailed look at the first interview

          As  explained above, Noyakuk was arrested and
placed  at  the Anvil Mountain Correctional  Center  on
April  12, 2001.  However, he was not charged with  any
crime  arising  from  the homicide  of  Martha  Butler.
Rather,  Noyakuk  was arrested on  charges  of  driving
while  intoxicated and possession of  a  firearm  while
intoxicated, as well as for violating his probation (by
drinking).
          Troopers  Schied  and Shepherd  came  to  the
correctional  center the next day to interview  Noyakuk
about   the  homicide.   At  the  beginning   of   this
interview,  the following colloquy took  place  between
Trooper Shepherd and Noyakuk:
     
          Shepherd:   Okay.  Ben,  you  know  were
     here to talk to you today.  Ah, were not here
     to arrest you for anything else. Um, you know
     you   you dont have to talk to us if you dont
     want  to.   Um, you know, you  you  can,  you
     know,  go tell the correctional officers  any
     time  that you want to go back to your  cell,
     that you can.  Okay, you understand that?
     
          Noyakuk:  Uh-huh  [yes].
     
     A few moments later, Shepherd reiterated that
     Noyakuk could leave the interview any time he
     wished:
     
     Shepherd:   Okay.  Well,  like  I  said,
were  not  here to talk to you about  any  of
your charges from yesterday.

     Noyakuk:  Uh-huh.

     Shepherd:  You understand that.

     Noyakuk:  Uh-huh.

     Shepherd:  Okay.  Like I said, you know,
you   youre  not  under arrest  for  anything
here.   Were  not  here to  charge  you  with
anything.  Um, and again, were going to  talk
to  you about some stuff, and at any time you
dont  want  to talk about it, you can  leave.
Thats up to you, okay?

     Noyakuk:  Okay.

          Trooper    Schied   then   informed
Noyakuk that she and Shepherd wanted to speak
to  him  about  Martha  Butlers  death.   The
following colloquy ensued:

     Schied:  So thats what wed like to  talk
to  you about.  We know youve been through  a
lot with Martha.

     Noyakuk:  Uh-huh.

     Schied:   We  know that, when  she  gets
intoxicated,  she can get very, very  hostile
very,  very  mad and very mean. We understand
those  things.  But [do] you suppose you  can
help us out with this situation, Ben?

     Noyakuk:  Probably.

     Schied:  Okay.  Can you kind of tell  us
what  happened,  so [that] we  can  help  her
parents and you, too?

     Noyakuk:   Shouldnt  I  just   have   my
attorney with me, or something?

     Schied:  Umh ...

     Shepherd:  Well, if, if thats  what  you
feel  [is]  right  I mean, we cant make  that
decision  for  you.  You have  to  make  that
decision.  Like I said, ... were not here  to
talk  about the [pending] charges; were  here
to  talk about Martha.  ...  Like I said, you
know, you dont have to talk to us if you dont
want  [to].   But,  ah, like  Trooper  Schied
said, were trying to figure out what happened
so  that  we can help her parents, you  know,
get over this, and adjust to it, and ...

     Noyakuk:  Uh-huh.

     Shepherd:  ... and try to find out,  you
know,  what  actually happened.   Because  we
always  know [that] theres two sides  to  the
story.   ...   Theres your side,  [and]  weve
been  talking  to a lot of people,  and  weve
heard  what theyve been saying, and what  you
told  them.  But from our work, we know  that
theres  two sides to the story, and the  best
place  to  always hear the story is from  the
person  [who]  actually ...  was  there.   So
[you] know, like I said, you  you can talk to
us if you want.  If  if you want an attorney,
thats fine, too.

     Noyakuk:  Uh-huh.

     Shepherd:  Ah, but thats up to you.  You
need to make that decision and let us know.

     Noyakuk:  Uh-huh.

     Schied:  Because that attorney cant help
us find where Martha is, to help her parents.
You  know, hes not the one that can help  you
do  that.  Hes not the one that can  help  us
help [Marthas] parents.

     Noyakuk:  Uh-huh.

     Schied:   But  if thats  what  you  feel
like  Investigator Shepherd says, thats  your
choice.

     Shepherd:  So it, its something for  you
to   decide,   before  we  go  further   with
anything, [with] any questioning.

     Noyakuk:   I dont know; I dont know  how
this (indiscernible).

     Schied:  You dont know what to say, Ben?

     Noyakuk:  Huh?

     Schied:  Would it help if we just  asked
[our] questions?  Would [that] make it easier
for you?

     Noyakuk:  I dont have to answer.

     Schied:  So you dont have to just,  just
spell  it out, would it help you if  we  just
ask questions?

     Noyakuk:  Okay.

     Schied:  Are you  are you willing to  do
that without an attorney, though?  We need to
know that.

     Noyakuk:  Yeah.

     Schied:  Okay.  Um, were you up  ...  by
John Ahmasuks camp when [Martha] was shot?

     Noyakuk:  No, I was in my house.

     Schied:  You were in your house?

     Noyakuk:  Uh-huh [yes].

     Schied:  Okay.  Would  okay.

     Noyakuk:  It was accidental.

     Schied:    Okay.   Well,  those   things
happen, Ben.

     Shepherd:  Those [things] happen.

     Schied:  Was, was this ...

     Shepherd:   Ben,  would  you  even  feel
better,  you  know, if  if we read  you  your
rights?  Would you feel better if we did that
first?  Or ...

     Noyakuk:  Unh-uh [no].

     Shepherd:   No, its okay?   So  you  are
willing  to talk to us; its okay?  [Are]  you
willing to talk to us without an attorney?

     Noyakuk:  Uh-huh [yes].

     Shepherd:  Im sorry; I couldnt hear you.

     Noyakuk:  Yes.

     [The   troopers   then   resumed   their
substantive questioning.]


Was  Noyakuk in custody for Miranda purposes during the
first  interview (the interview on the morning of April
13th)?

          When  this case was first briefed, the  State
did not dispute that Noyakuk was in custody for Miranda
purposes  during the interview of April 13th  and  that
troopers  failed  to  give  Noyakuk  adequate   Miranda
warnings  at  that  time.   We nevertheless  asked  the
parties  for  supplemental briefing  on  the  issue  of
whether  Noyakuk  was  truly  in  custody  for  Miranda
purposes  during that April 13th interview,  given  the
troopers repeated statements to Noyakuk that he was not
obliged  to speak to them, and that he could leave  the
interview at any time.  The parties responded with well-
written briefs on this question.  Having considered the
matter,  we agree with Judge Esch that Noyakuk  was  in
custody for Miranda purposes.
          In  Beaver  v.  State, 933  P.2d  1178,  1185
(Alaska  App. 1997), we held that even when the  police
interrogate  a prison inmate, a finding of custody  for
Miranda  purposes still requires proof of coerciveness.
And  there is a significant body of case law from other
jurisdictions supporting the view that a prison  inmate
who  is  interviewed by the police about  an  unrelated
offense will not be deemed to be in Miranda custody  if
the interviewing officers make it clear that the inmate
need  not participate in the interview, that the inmate
can  choose to terminate the interview at any time, and
that the inmate will suffer no adverse consequences  if
the   inmate   decides  not  to  answer  the   officers
questions.4
          But  in  all of these cases, the interrogated
inmate had already been convicted and sentenced or,  at
the least, the inmate had already been incarcerated for
weeks  before being questioned by the police.  In other
words,  the  defendants in those cases  were  in  their
accustomed environment when the police approached  them
and  asked  them  to  submit to an interview   and  the
defendants  knew  that  if  they  chose  to   end   the
interview,  they  would be returned to that  accustomed
environment.
          Noyakuks   case  stands  in  sharp  contrast.
Noyakuk had been in jail for less than a day.   He  had
been  held incommunicado during that time.  Naked in  a
solitary  cell,  and denied visitors, he  had  not  yet
appeared before a judicial officer, and he had received
no  legal  advice.   This was not a situation  where  a
prison  inmate  was interviewed in their  prison  home.
Noyakuk   was  just  as  susceptible  to  the  inherent
coercive pressures of the interrogation process as  any
          new arrestee.  The troopers could not have interrogated
Noyakuk  following his arrest on the evening  of  April
12th  without  first  obtaining a Miranda  waiver.   We
conclude  that  the  situation  was  no  different   at
ten oclock the next morning.
          Because  Noyakuk  was  in  custody  when  the
troopers  came  to  interview him on  April  13th,  and
because  Noyakuk  did not receive the complete  set  of
Miranda  warnings at that time, we uphold the  superior
courts  decision  to suppress Noyakuks statements  from
that interview.

Why we conclude that the Miranda violation at the April
13th  interview  did  not  taint  the  statements  that
Noyakuk gave at the later interviews

          When Judge Esch ruled on Noyakuks suppression
motion,  he declared that he would have suppressed  all
of  Noyakuks  statements  if  Noyakuks  case  had  been
governed  by  the law as it existed before  the  United
States  Supreme Court issued its decision in Oregon  v.
Elstad,  470  U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d  222
(1985).  However, Judge Esch concluded that, under post-
Elstad  law,  Noyakuks  statements  at  the  subsequent
interviews  were  not tainted by the Miranda  violation
that occurred at the first interview.
          In  both  Halberg  v. State and  Crawford  v.
State,5   we  described  and  examined  the  difference
between  pre-  and  post-Elstad law  on  the  issue  of
whether   a  Miranda  violation  in  one  interrogation
requires  suppression  of the  statements  the  suspect
makes  in  ensuing interrogations.  As we explained  in
Crawford,
     
     [The] two competing analyses of this question
     [are]  the [pre-Elstad] dissipation of  taint
     analysis  exemplified by  the  United  States
     Supreme   Courts   decision   in   Brown   v.
     Illinois,[6]   and   the  modified   analysis
     announced  in  1985 by the Supreme  Court  in
     Oregon v. Elstad.
     
     Under   Brown,  even  though  a  suspect
ultimately receives proper Miranda  warnings,
the  statements that the suspect makes  after
receiving  those Miranda warnings  are  still
presumptively  inadmissible;  to  rebut  this
presumption,  the government must  show  that
there  was a break in the chain of events  to
insulate  those  later  statements  from  the
taint   of   the  suspects  initial  unwarned
admissions.   [Brown,  422  U.S.  at  603-04,
95  S.Ct. at 2261-62.]  But under Elstad, the
later   administration  of  Miranda  warnings
presumptively   negates   the   psychological
     pressures of custodial interrogation from
that   point  forward,  thus  rendering   the
suspects    ensuing   statements   admissible
despite the fact that the suspect had earlier
made  incriminating admissions.  In the words
of  the  Elstad Court, a careful and thorough
administration of Miranda warnings serves  to
cure   the   condition  that   rendered   the
[earlier]  unwarned  statement  inadmissible,
even when there has been no significant break
in  the  stream  of events as required  under
Brown.   [Elstad,  470 U.S.  at  310-11,  105
S.Ct. at 1294.]

Crawford, 100 P.3d at 441.
          Judge  Esch recognized that neither
this  Court nor the Alaska Supreme Court  has
yet  decided  whether, as a matter  of  state
law,  Alaska should follow Elstad  or  should
instead  adhere to pre-Elstad law.   However,
Judge Esch concluded that, because Alaska has
not affirmatively adopted a contrary rule, he
should follow the rule expounded in Elstad.
          We  do  not necessarily agree  with
Judge Eschs conclusion that, under pre-Elstad
law,   Noyakuks  statements  at  the  ensuing
interviews   were  tainted  by  the   Miranda
violation at the first interview.
          The flaw in the first interview was
not  a  total  failure to warn  Noyakuk,  but
rather  the  fact that the troopers  did  not
give  Noyakuk  the complete  set  of  Miranda
warnings.  The most prominent omissions  were
(1)  the  troopers failure to expressly  tell
Noyakuk  that anything he said to them  could
be used against him, (2) the troopers failure
to tell Noyakuk that he had the right to have
an  attorney  present during the questioning,
and  (3)  the  troopers failure to  expressly
tell  Noyakuk that, if he wanted an  attorney
but  could not afford one, an attorney  would
be  appointed  to represent  him  before  any
questioning.
          On the other hand, the troopers did
tell  Noyakuk (a) that they had come to speak
to  him about Martha Butlers death, (b)  that
he did not have to talk to the troopers if he
did  not  wish  to,  and (c)  that  he  could
terminate  the  interview and return  to  his
cell at any time he wished.  Moreover, before
Noyakuk  answered  any  substantive  question
about the homicide, he brought up the subject
of  an  attorney (by asking, Shouldnt I  just
have my attorney with me, or something?).  At
that  point, the troopers expressly  informed
Noyakuk  (d)  that it was up  to  Noyakuk  to
decide  whether to talk to them  without  the
assistance of an attorney.
          Judge  Esch found that the troopers
made a conscious decision not to give Noyakuk
the  complete Miranda warnings at this  first
interview,  and this finding is supported  by
Trooper Schieds testimony to the grand  jury.
Schied    testified   that   her   (mistaken)
understanding  of  the  law  was   that   law
enforcement  officers do  not  have  to  warn
incarcerated suspects of their Miranda rights
as   long  as  the  officers  confine   their
questions to crimes other than the  ones  for
which the suspect has been jailed.
          Judge   Esch  concluded  that   the
troopers probably honestly believed that they
were  not  obligated  to  Mirandize  Noyakuk.
However,  Judge  Esch  also  found  that  the
troopers  decision to omit the  full  set  of
Miranda   warnings  was  motivated   by   the
troopers  [fear] that if [Noyakuk] understood
that  he could stop [the] questioning at  any
time  and/or  consult with an attorney,  they
would  not learn where [Martha Butlers]  body
was or what had happened.
          This  latter finding, we  conclude,
is clearly erroneous.7  As we have explained,
the  troopers expressly told Noyakuk that  he
did  not have to speak to them, that he could
stop the questioning at any time, and that it
was  up to him to decide whether to seek  the
assistance  of an attorney before  proceeding
with  the  interview.  We further note  that,
even  after Noyakuk seemingly manifested  his
willingness to speak to the troopers  without
an attorney, Trooper Shepherd offered to give
Noyakuk  the complete set of Miranda warnings
an offer that Noyakuk declined.
          For these reasons, we conclude that
even  though the troopers consciously decided
not  to  give  Noyakuk the  complete  set  of
Miranda  warnings, their violation of Miranda
was  not flagrant or purposeful (in the sense
that  it  stemmed  from a desire  to  subvert
Noyakuks rights).8
          We  further note that, even  though
Noyakuk remained incarcerated throughout  the
series  of  interviews, his  first  interview
(the  flawed  one)  was  separated  from  his
second interview by more than 48 hours.  (The
second  interview  took place  in  the  early
evening of April 15th.)  At the beginning  of
that  48-hour interlude, on the afternoon  of
April 13th, Noyakuk was arraigned in court on
          the pending misdemeanor charges, and an
attorney  was  appointed  to  represent  him.
Thus,  Noyakuk had two days to  consult  with
counsel  before  the  second  interview  took
place.
          At  this  second interview, Noyakuk
was Mirandized, and he initially consented to
speak  to  Trooper Schied.  As the  interview
progressed,    however,    Noyakuk     became
emotional, and he exercised his right to  end
the  conversation  although  he  told  Schied
that  she could return later to talk  to  him
again.
          We  further note that, when  Schied
returned  to the prison around noon the  next
day  (April 16th) to interview Noyakuk for  a
third   time,  she  declined  to   hold   the
interview because she discovered that Noyakuk
was   emotionally  distraught   even   though
Noyakuk  told Schied that he was  willing  to
talk  to  her at that time.  Instead,  Schied
left the prison and returned two hours later.
          When      we     evaluate     these
circumstances in light of the factors  listed
in Halberg v. State, 903 P.2d at 1098, we are
not  sure  that Noyakuks statements from  the
ensuing interviews should be suppressed  even
under pre-Elstad law.
          However,  this point is  moot.   In
Noyakuks brief to this Court, he does not ask
us  to reject Elstad and apply the pre-Elstad
rule of suppression as a matter of state law.
Instead, Noyakuk contends that his statements
from   the   ensuing  interviews  should   be
suppressed  even under the Elstad  rule   and
that  Judge  Esch misapplied Elstad  when  he
came to the opposite conclusion.
          Noyakuk  points out  that,  in  the
Elstad opinion, the Supreme Court stated that
absent   deliberately  coercive  or  improper
tactics  in obtaining the [suspects]  initial
statement,  the mere fact that a suspect  has
made an unwarned admission does not warrant a
presumption   [that   the   suspects    later
statements were compelled].  Elstad, 470 U.S.
at  314,  105 S.Ct. at 1296 (emphasis added).
Noyakuk argues that the troopers approach  to
him  in  the first interview was the sort  of
deliberately  coercive  or  improper   tactic
condemned in Elstad  and that, therefore, his
statements during the later interviews should
be suppressed even under the Elstad rule.
          But  to  support  this  contention,
Noyakuk  relies  primarily  on  Judge   Eschs
finding  that the troopers purposely violated
Miranda  at the first interview because  they
were afraid that if [Noyakuk] understood that
he  could stop [the] questioning at any  time
and/or  consult with an attorney, they  would
not learn where [Martha Butlers] body was  or
what  had  happened.  As we explained  above,
this  finding  is  clearly  erroneous.    The
troopers repeatedly told Noyakuk that he  did
not have to speak to them, that he could stop
the  interview at any time, and that,  if  he
wished, he could seek an attorneys assistance
before speaking to them.
          It  may  be  true,  as  Judge  Esch
found,  that the troopers consciously decided
not  to give the full set of Miranda warnings
to  Noyakuk,  acting  from  the  honest  (but
mistaken)   belief  that  Noyakuk   was   not
entitled to Miranda warnings as long  as  the
troopers confined their questions to the  as-
yet-uncharged  homicide.  But  the  facts  of
Noyakuks  case  do  not demonstrate  flagrant
misconduct or purposeful overreaching by  the
officers.
          Moreover,  the federal courts  have
interpreted  Elstads  reference  to  coercive
tactics  as relating to situations  in  which
the  tactics  used  in  the  first,  improper
interrogation had a coercive effect that  led
to  the [suspects] later admissions.  Brosius
v.  Warden, Lewisburg Penitentiary, 278  F.3d
239,  249  (3rd Cir. 2002).  Chief among  the
decisions  on  this  point  are  the  Supreme
Courts  own decision in Missouri v.  Seibert,
542  U.S. 600, 615-17; 124 S.Ct. 2601,  2612-
13;  159 L.Ed.2d 643 (2004), and this  Courts
decision in Crawford v. State, 100 P.3d  440,
450 (Alaska App. 2004).
          In  Noyakuks case, there is  little
reason to think that the Miranda violation at
the  first interview, or the results of  that
violation,  coerced Noyakuk into waiving  his
rights  at  the  ensuing interviews.   First,
there  was an interval of more than 48  hours
between  the flawed first interview  and  the
second  one.   During that time, an  attorney
was  appointed  to represent Noyakuk  on  the
pending  misdemeanor and probation  violation
charges  an attorney who, assumedly, was also
available  to give Noyakuk advice on  how  to
deal with the troopers who wished to question
him about the homicide.
          Second,  Noyakuk was given  Miranda
warnings   before  each  of  the   subsequent
interviews,  and he does not  claim  that  he
failed  to  understand  these  warnings.   In
fact,  the second interview (the one on April
15th) ended when Noyakuk invoked his right to
terminate the interview.
          Finally,  Noyakuk told the troopers
at  the first interview that the shooting had
been  an accident, and he continued to assert
this   version  of  events  at   the   second
interview.   It  was  not  until  the   third
interview   (i.e.,   the   second    properly
Mirandized  interview)  on  April  16th  that
Noyakuk  confessed to having  purposely  shot
Butler.
          For these reasons, we conclude that
Noyakuks  case does not present an  exception
to the standard Elstad analysis.
          Turning  now  to a standard  Elstad
analysis of this case, Judge Esch found  that
all  of  Noyakuks statements to the  troopers
(including  his  statements  at  the  initial
interview on April 13th) were voluntary.  The
record  fully  supports  the  judges  ruling.
Judge  Esch also found that each of  Noyakuks
ensuing  interviews was preceded by  a  valid
Miranda  advisement and waiver,  and  Noyakuk
does  not  dispute this.  Moreover, as  Judge
Esch  noted,  the  interval between  Noyakuks
first   flawed  interview  and   his   second
interview was a significant period  more than
48 hours.  We note that, toward the beginning
of this 48-hour interval, Noyakuk appeared in
court and received an attorney.
          Judge   Esch  further  found   that
Trooper  Schied was never overbearing  toward
Noyakuk,  nor  did  she  ever  use  lies   or
trickery  to influence Noyakuks decisions  to
submit to the ensuing interviews.  The record
supports these findings.
          Applying  the  rule of  Elstad,  we
agree  with  Judge  Esch  that,  despite  the
Miranda  violation  at the  first  interview,
Noyakuks   statements  from  his   subsequent
interviews were admissible.
          (We  again  note that  we  are  not
deciding whether to adopt the Elstad rule  as
a   matter  of  state  law.   We  are  simply
deciding  the  question of federal  law  that
Noyakuk has raised.)

Why we agree with Judge Esch that the troopers did not
violate Edwards v. Arizona at the first interview

     Noyakuk argues in the alternative that,  even
if  his  statements from the subsequent interviews
are  admissible  under  Elstad,  these  statements
should nevertheless be suppressed because, at  the
first interview, the troopers failed to honor  his
right to an attorney.
     In  Edwards  v.  Arizona,9 the Supreme  Court
held  that when a suspect in custody invokes their
right to counsel, the police must stop questioning
the  suspect  and must not re-initiate questioning
until  the  suspect  has had  the  opportunity  to
consult an attorney:

[W]hen  an accused has invoked his  right  to
have   counsel   present   during   custodial
interrogation, a valid waiver of  that  right
cannot be established by showing only that he
responded    to    further   police-initiated
custodial interrogation even if he  has  been
advised  of  his rights.  ...   [A]n  accused
[who  has] expressed his desire to deal  with
the   police  only  through  counsel  is  not
subject  to  further  interrogation  by   the
authorities  until  counsel  has  been   made
available to him, unless the accused  himself
initiates  further communication,  exchanges,
or conversations with the police.

Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1884-85.  See also our
discussion of this rule in Kochutin v. State, 813  P.2d
298, 303 (Alaska App. 1991).10
In  the  present case, Noyakuk did not expressly invoke
his  right to counsel at the first interview.  However,
as  explained  above,  Noyakuk  did  ask  the  troopers
whether he should have an attorney with him during  the
interview.    Noyakuk  contends   that   the   troopers
responded  inappropriately to his question,  by  making
remarks  that  were  intended to  discourage  him  from
asserting his right to have an attorney present.
To analyze Noyakuks claim, we return to a detailed look
at  this  portion  of the first interview.   After  the
troopers  explained  that they had  come  to  interview
Noyakuk  about Martha Butlers death, and  that  Noyakuk
did not have to talk to them (and that he could end the
interview at any time), Trooper Schied asked Noyakuk to
describe how Martha Butler met her death:

     Schied:  Okay.  Can you kind of tell  us
what  happened,  so  that  we  can  help  her
parents and you, too?

     Noyakuk:   Shouldnt  I  just   have   my
attorney with me, or something?

     Schied:  Umh ...

     Shepherd:  Well, if, if thats  what  you
feel  [is]  right  I mean, we cant make  that
decision  for  you.  You have  to  make  that
decision.  Like I said, ... were not here  to
talk  about the [pending] charges; were  here
to  talk about Martha.  ...  Like I said, you
know, you dont have to talk to us if you dont
want  [to].   But,  ah, like  Trooper  Schied
said, were trying to figure out what happened
so  that  we can help her parents, you  know,
get over this, and adjust to it, and ...

     Noyakuk:  Uh-huh.

     Shepherd:  ... and try to find out,  you
know,  what  actually happened.   Because  we
always  know [that] theres two sides  to  the
story.   ...   Theres your side,  [and]  weve
been  talking  to a lot of people,  and  weve
heard  what theyve been saying, and what  you
told  them.  But from our work, we know  that
theres  two sides to the story, and the  best
place  to  always hear the story is from  the
person  [who]  actually ...  was  there.   So
[you] know, like I said, you  you can talk to
us if you want.  If  if you want an attorney,
thats fine, too.

     Noyakuk:  Uh-huh.

     Shepherd:  Ah, but thats up to you.  You
need to make that decision and let us know.

     Noyakuk:  Uh-huh.

     Schied:  Because that attorney cant help
us find where Martha is, to help her parents.
You  know, hes not the one that can help  you
do  that.  Hes not the one that can  help  us
help [Marthas] parents.

     Noyakuk:  Uh-huh.

     Schied:   But  if thats  what  you  feel
like  Investigator Shepherd says, thats  your
choice.

     Shepherd:  So it, its something for  you
to   decide,   before  we  go  further   with
anything, [with] any questioning.

     Noyakuk:   I dont know; I dont know  how
this (indiscernible).

     Schied:  You dont know what to say, Ben?

     Noyakuk:  Huh?

     Schied:  Would it help if we just  asked
[our] questions?  Would [that] make it easier
for you?

     Noyakuk:  I dont have to answer.

     Schied:  So you dont have to just,  just
spell  it out, would it help you if  we  just
ask questions?

     Noyakuk:  Okay.

     Schied:  Are you  are you willing to  do
that without an attorney, though?  We need to
know that.

     Noyakuk:  Yeah.

     Schied:  Okay.  Um, were you up  ...  by
John Ahmasuks camp when [Martha] was shot?

     Noyakuk:  No, I was in my house.

     Schied:  You were in your house?

     Noyakuk:  Uh-huh [yes].

     Schied:  Okay.  Would  okay.

     Noyakuk:  It was accidental.

     Schied:    Okay.   Well,  those   things
happen, Ben.

     Shepherd:  Those [things] happen.

     Schied:  Was, was this ...

     Shepherd:   Ben,  would  you  even  feel
better,  you  know, if  if we read  you  your
rights?  Would you feel better if we did that
first?  Or ...

     Noyakuk:  Unh-uh [no].

     Shepherd:   No, its okay?   So  you  are
willing  to talk to us; its okay?  [Are]  you
willing to talk to us without an attorney?

     Noyakuk:  Uh-huh [yes].

     Shepherd:  Im sorry; I couldnt hear you.

     Noyakuk:  Yes.

As  can be seen from this quoted exchange, when Noyakuk
asked,  Shouldnt I just have my attorney  with  me,  or
something?,  the troopers responded by telling  Noyakuk
(1)  that this was Noyakuks decision to make; (2)  that
if Noyakuk wanted an attorney, that [was] fine; and (3)
that  Noyakuk needed to make this decision and let [the
troopers] know before the interview proceeded  further.
When  the troopers asked Noyakuk whether he was willing
to  speak  to them without an attorney, Noyakuk  stated
(apparently three times) that he was.
          However,  the  troopers interspersed this  conversation
with  comments suggesting that an attorney could not assist  them
in  piecing  together what had happened, or in  locating  Butlers
body   both  of which, the troopers asserted, would help  Butlers
parents deal with their loss.
          
               Shepherd:   [W]ere trying to figure  out
          what  happened  so that we can  help  [Martha
          Butlers]  parents  ...  get  over  this,  and
          adjust  to  it, and ... try to find  out  ...
          what  actually  happened.  ...   [W]e  always
          know  [that] theres two sides to  the  story.
          ...   [W]eve been talking to a lot of people,
          and  weve heard what theyve been saying,  and
          what  you  told them.  But from our work,  we
          know that theres two sides to the story,  and
          the  best  place to always hear the story  is
          from the person [who] actually ... was there.
               .  .  .
          
               Schied:  [An] attorney cant help us find
          where  Martha  is, to help her parents.   ...
          [An  attorney] is not the one that  can  help
          you  do that.  Hes not the one that can  help
          us help [Marthas] parents.
          
          Noyakuk  argues  that  these  comments   were
          intended to discourage him from asserting his
          right  to counsel  and that, by making  these
          comments,  the  troopers  violated   Noyakuks
          rights under Miranda and Edwards.
          In  Giacomazzi v. State,  633  P.2d
218,  222  (Alaska 1981), our  supreme  court
held that when a suspect in custody makes  an
ambiguous   or   equivocal  statement   about
wanting   an   attorney,  the   interrogating
officers  may  seek  clarification   of   the
suspects desires, so long as the officers  do
not  utilize the guise of clarification as  a
subterfuge  for  coerc[ing] or intimidat[ing]
the  suspect into waiving this right.  Later,
in  Hampel  v. State, 706 P.2d 1173,  1180-81
(Alaska  App.  1985), this Court  interpreted
Giacomazzi as meaning that, in the face of  a
suspects  ambiguous  or  equivocal  statement
about  wanting an attorney, the interrogating
officers  must  clarify the suspects  wishes,
and   the  officers  can  not  proceed   with
substantive questioning until they have  done
so.   Moreover, Hampel holds that the Edwards
rule   is   violated  when  an  interrogating
officer   chooses  to  answer  a   [suspects]
question [concerning the right to counsel] in
a  way which the officer knows or should know
will  be reasonably likely to discourage  the
accused   from   asserting   the   right   to
counsel.11
          Noyakuk  asserts that the  troopers
violated Giacomazzi and Hampel when they made
the   above-quoted  responses   to   Noyakuks
question about a lawyer.
          The  State answers that the  Hampel
restriction on custodial interrogations is no
longer  good  law,  given the  United  States
Supreme  Courts decision in Davis  v.  United
States,  512  U.S. 452, 114 S.Ct.  2350,  129
L.Ed.2d 362 (1994).
          The   defendant  in  Davis,   after
receiving Miranda warnings, waived his rights
and  consented  to be interviewed.   However,
about  an hour and a half into the interview,
the defendant said, Maybe I should talk to  a
lawyer.12   The question presented  in  Davis
was  whether the defendants statement obliged
the  interrogating officers  to  cease  their
substantive questioning.
          The  Supreme Court recognized  that
many  jurisdictions had adopted rules similar
to   the  one  announced  in  Giacomazzi  and
Hampel:    that   is,  rules   that   obliged
interrogating   officers   to   cease   their
substantive   questioning   and   to    limit
themselves  to seeking clarification  of  the
suspects  wishes.13   However,  the   Supreme
Court  declared  that  federal  law  did  not
impose such a restriction:

     [I]f  a suspect makes a reference to  an
attorney  that is ambiguous or  equivocal  in
that  a  reasonable officer in light  of  the
circumstances would have understood only that
the  suspect might be invoking the  right  to
counsel,  our precedents do not  require  the
cessation of questioning. ...  The likelihood
that  a  suspect  would wish  counsel  to  be
present is not the test for applicability  of
     Edwards.

     Rather,  the  suspect must unambiguously
request  counsel[;]  ... he  must  articulate
his    desire   to   have   counsel   present
sufficiently clearly that a reasonable police
officer in the circumstances would understand
the   statement  to  be  a  request  for   an
attorney.  If the statement fails to meet the
requisite level of clarity, Edwards does  not
require  that  the officers stop  questioning
the suspect.

Davis,  512  U.S. at 459, 114 S.Ct.  at  2355
(emphasis added) (citations omitted).
          The  Court acknowledged that it was
good   police   practice  for   interrogating
officers  to seek clarification of a suspects
ambiguous  or equivocal statement.   However,
the   Court  decline[d]  to  adopt   a   rule
requiring    officers   to   ask   clarifying
questions.  Instead, the Court declared:   If
the  suspects statement is not an unambiguous
or   unequivocal  request  for  counsel,  the
officers   have   no   obligation   to   stop
questioning [the suspect].14
          The   State  contends  that   Davis
changed  the  legal landscape and  undermined
the  rationale of Giacomazzi and Hampel (both
of  which were apparently grounded on federal
law).  But as the Utah Supreme Court noted in
State  v.  Leyva,  951 P.2d  738,  743  (Utah
1997),   Davis   involved  an  ambiguous   or
equivocal statement made in the middle of  an
interview  by  a  suspect  who  had   already
received  Miranda warnings  and  had  already
unambiguously  waived his right  to  counsel.
The United States Supreme Court explained its
ruling this way:

[T]he  primary  protection afforded  suspects
subject  to  custodial interrogation  is  the
Miranda  warnings themselves.  ...  A suspect
who  knowingly  and  voluntarily  waives  his
right  to  counsel  after having  that  right
explained   to   him   has   indicated    his
willingness   to   deal   with   the   police
unassisted.   Although Edwards   provides  an
additional   protection    if    a    suspect
subsequently     requests    an     attorney,
questioning must cease  it is one  that  must
be affirmatively invoked by the suspect.

Davis, 512 U.S. at 460-61, 114 S.Ct. at 2356.
          Thus,    the   Davis   rule   (that
          interrogating officers need not interrupt
their  questioning  to clarify  the  suspects
wishes) applies only to a post-Miranda-waiver
setting.   This view of Davis is endorsed  by
one of the major texts on criminal procedure:

Although  [this]  point is sometimes  missed,
...  Davis  is so limited; the Courts  ruling
was that after a knowing and voluntary waiver
of   the   Miranda  rights,  law  enforcement
officers  may continue questioning until  and
unless   the  suspect  clearly  requests   an
attorney.

Wayne  R. LaFave, Jerold H. Israel, and Nancy
J.  King, Criminal Procedure (2nd ed.  1999),
6.9(g),  Vol.  2,  p. 615  n.  164  (emphasis
added)  (quoting Davis, 512 U.S. at 461,  114
S.Ct.   at  2356,  and  citing  Utahs   Leyva
decision in support of this interpretation of
Davis).
          It   may  be  true,  as  the  State
suggests, that the Giacomazzi and Hampel rule
should  no  longer be applied when a  suspect
makes  an ambiguous or equivocal post-waiver,
mid-interview  statement about  an  attorney.
We leave that issue for another day.  But the
Davis  decision has not changed the law  that
applies  to cases like Noyakuks  cases  where
the   question  is  whether  a  suspect  ever
validly waived the right to counsel to  begin
with.
          We  now  return  to  the  facts  of
Noyakuks interrogation.
          As  we have already explained, when
Noyakuk  asked,  Shouldnt  I  just  have   my
attorney with me, or something?, the troopers
responded  that  stopping  the  interview  to
allow Noyakuk to obtain an attorney would not
help  Martha Butlers parents learn  what  had
happened  to  their daughter and recover  her
body.    On  the  other  hand,  the  troopers
repeatedly told Noyakuk (1) that it  was  his
choice  whether to have an attorney  present,
(2) that if he wanted an attorney, that [was]
fine,  and  (3) that he needed to  make  this
decision  before the troopers proceeded  with
the  interview.   After  explaining  this  to
Noyakuk,   the   troopers   expressly    (and
repeatedly)  asked  Noyakuk  whether  he  was
willing to speak to them without an attorney.
Three  times,  Noyakuk  stated  that  he  was
willing to proceed without an attorney.
          These   facts  are  quite   a   bit
different from the facts of Hampel  where the
interrogating  officer responded  to  Hampels
inquiry  about  an attorney by  emphasiz[ing]
the  obstacles to obtaining one, by  focusing
on  the  evidence [against]  Hampel,  and  by
strongly  implying that Hampel  would  damage
his  case  if  he  delayed talking  until  an
attorney  could be present, since the  police
were   just   about   to  interview   Hampels
cohorts.15   It is not surprising  that  this
Court categorized the officers response as  a
tactic that was likely to discourage [Hampel]
from asserting the right to counsel.16

[B]y   emphasizing   ...   the   delay    and
bureaucratic   complexity  of  procuring   an
attorney,  while [at the same time]  dwelling
...  on  the  evidence  against  Hampel,  the
progress  of the [police] investigation,  and
the   imminent   interrogation   of   Hampels
companions,   [the   interrogating   officer]
created two unmistakable impressions:  first,
that Hampel was being given an opportunity to
cooperate, but time was of the essence; [and]
second,  that  if Hampel elected  to  request
counsel, a substantial delay would inevitably
result[,] and he would lose that opportunity.
[The  officers] answers ... thus worked  more
toward persuasion than clarification.

Hampel, 706 P.2d at 1182.
          The troopers statements in Noyakuks
case  (the statements that an attorney  could
not  help Marthas parents understand what had
happened  to  their daughter  or  locate  her
body)   might  conceivably  have  worked   to
dissuade Noyakuk from demanding the immediate
presence  of  counsel, but  these  statements
were  not  coercive like the ones in  Hampel.
The  troopers  never stated or  implied  that
Noyakuks  decision  to request  an  attorneys
presence would have adverse consequences  for
Noyakuk personally, or that any delay in  the
interview  process would be  unacceptable  to
the  authorities or would hurt Noyakuk in any
other  fashion.  In fact, the  troopers  told
Noyakuk that it would be fine if he asked for
an attorney.
          We   conclude  that  the  facts  of
Noyakuks  case are much closer to  the  facts
presented  in  State v.  Varie,  26  P.3d  31
(Idaho  2001).  The defendant  in  Varie  was
questioned  concerning the  disappearance  of
her  husband.   When Varie noted  during  the
interview that she did not have a lawyer, the
officers  asked  her if she wanted  a  lawyer
          before speaking to them.  Varie replied, [A]m
I  supposed to have a lawyer?  At this point,
the  officers  explained that it  was  Varies
choice   whether  to  have  a  lawyer.    The
officers told Varie that they did not know if
having  a  lawyer would make much difference,
but  that  this was her opportunity  to  move
ahead  and tell [the police] what happened.17
Upon hearing this, Varie began to speak about
what  had happened.  The officers interrupted
her  to clarify her decision:  [We] guess  it
is  your choice to go ahead and talk with  us
now without a lawyer?  Varie replied, [T]hats
fine.18
          The  Idaho  court noted that  Varie
appeared  upset and may have been  vulnerable
at  the  time of the questioning.  The  court
further  noted  that  the officers  [c]learly
[engaged  in]  an effort to de-emphasize  the
importance of [Varies] Constitutional  rights
and  [to] stress Varies opportunity  to  tell
her   story.19    Nevertheless,   the   court
concluded  that Varie understood her  rights,
and  that  she  was not coerced into  waiving
those rights:

Significantly,  [the  officers]   broke   the
subtly  persuasive atmosphere of  the  moment
and  asked  very directly if Varie wished  to
proceed [with the interview].  She agreed  to
proceed.

Varie, 26 P.3d at 36.
          A  similar  issue was presented  in
Mueller  v. Angelone, 181 F.3d 557 (4th  Cir.
1999).   The defendant in Mueller  was  being
interrogated (following Miranda warnings  and
a waiver of rights) about a homicide.  Midway
through  the interview, he asked  the  police
officer,  Do  you  think I need  an  attorney
here?   The officer responded by shaking  his
head  slightly from side to side, moving  his
arms  and  hands in a shrug-like manner,  and
then  telling Mueller, Youre just talking  to
us.    Six   minutes  later,  Mueller   began
confessing to the murder.20
          On  appeal, Mueller argued that the
officer  should  have ceased all  questioning
after  Mueller  inquired about  an  attorney.
Mueller  also  argued  that,  even   if   his
question  about a lawyer did not require  the
officer  to  cease  all  interrogation,   the
officers   response  to  this  question   was
improper, in that it discouraged Mueller from
asserting  his right to counsel.   The  court
          disagreed on both points:

Mueller  can only prevail by showing  that[,]
under the totality of the circumstances, [the
officers]  response made Muellers  continuing
waiver [of counsel] the product of other than
a  free  and  deliberate choice,  or  that[,]
after  [the  officers response,]  Mueller  no
longer understood the nature of the right  to
an attorney or the consequences of abandoning
it.

Mueller, 181 F.3d at 575.
          The court noted that Mueller was in
his  forties,  and  that he had  considerable
prior  experience  with the criminal  justice
system and the Miranda warnings.21  The court
concluded  that it was clear from the  record
that  Mueller, with his extensive  experience
in  such matters, understood both his  rights
and  the  consequences of their  abandonment.
[The  officers] expression of his opinion  on
the  advisability of Muellers consulting with
counsel     could     not     change     that
understanding.22
          Like   the  defendant  in  Mueller,
Noyakuk  was  an adult who had had  extensive
experience with the criminal justice  system.
Judge  Esch  found that, because of  Noyakuks
[prior]  experience with both  attorneys  and
the justice system, Noyakuk was well aware of
his  right  to  an attorney.  As  Judge  Esch
noted,  Noyakuk  had been  convicted  several
times   in   the  1980s  of  minor  consuming
alcohol,  and  had  been  convicted  once  of
disorderly  conduct in the 1990s.   Moreover,
in  the  year preceding his arrest  in  April
2001,  Noyakuk was convicted three  times  of
domestic assault.
          Judge  Esch noted that the troopers
explained  several  times that  the  decision
concerning [an attorney] was up to [Noyakuk].
Judge  Esch  further noted that the  troopers
refrained from substantive questioning  until
Noyakuk  indicated his willingness to proceed
without  an attorney.  Based on the  exchange
between  Noyakuk and the troopers, and  based
on Noyakuks prior experience with the justice
system,   Judge  Esch  concluded  that   [i]f
[Noyakuk]  had  wished  to  speak   with   an
attorney  prior  to further  questioning,  he
could  have  done  so  and  that,  therefore,
there was no Edwards violation.
          We  agree with Judge Esch.   As  we
have  explained here, the facts  of  Noyakuks
          case are significantly different from the
facts  of Hampel.  Noyakuk was not told  that
it  was difficult or impossible to obtain  an
attorney, nor was he told that a  request for
an  attorney would hurt him or prejudice  his
case.   Rather, he was told that  the  choice
was  up  to  him, and that if  he  wanted  an
attorney, that [was] fine.
          Conceivably,  Noyakuk  might   have
argued  that he was so emotionally distraught
over  Martha Butlers death, and that he  felt
so  compelled to remedy matters  as  much  as
possible  with her parents, that the troopers
exerted   an   unconscionable  influence   on
Noyakuk  when they commented on the  need  to
help  Butlers  parents  understand  what  had
happened and to recover their daughters body.
          But  this  was never the  focus  of
Noyakuks  suppression motion, and Judge  Esch
was  never  asked to make a  finding  on  the
issue  of  potential  emotional  overbearing.
Rather,  Noyakuk argued that it was  improper
for  the troopers to say anything to Noyakuk,
other   than  to  ask  questions  that   were
strictly  limited  to  ascertaining   whether
Noyakuk  wanted an attorney before proceeding
with  the  interview.  As we  have  explained
here,  the  rule  is  not  so  strict.    The
ultimate issue is not what the troopers said,
but  whether  (given what the troopers  said)
Noyakuk knowingly and voluntarily waived  his
right  to counsel.  We agree with Judge  Esch
that he did.
Noyakuks sentence appeal

          We  have rejected Noyakuks challenges to  the
admission of the evidence against him.  Accordingly, we
affirm  his conviction for murder.  We now turn to  the
remaining issue in this case:  Noyakuks appeal  of  his
sentence.
          Noyakuk was convicted of first-degree  murder
intentionally  killing  another  human   being.    This
offense  is  an  unclassified felony with  a  mandatory
minimum sentence of 20 years imprisonment and a maximum
sentence  of  99  years  imprisonment.23   Judge   Esch
sentenced  Noyakuk to 99 years with 24 years  suspended
i.e., 75 years to serve.
          Noyakuk argues that his conduct was more akin
to  second-degree murder (i.e., an unintended  homicide
committed under circumstances where there is great risk
of  death).  Thus, Noyakuk contends that he should have
received  a sentence more in line with the 20-  to  30-
year  benchmark  range that this Court has  established
for  first  felony offenders convicted of second-degree
murder.24
          In arguing that his conduct was similar to  a
second-degree  murder,  Noyakuk  points  out  that  the
killing was not premeditated, that he did not kill  his
victim merely for the thrill of it, and that he did not
torture  or  engage  in deliberate cruelty  toward  his
victim.  But all of these are factors that aggravate  a
first-degree murder.  That is, if one or more of  these
factors  had been present, this would have  shown  that
Noyakuks crime was more serious than the typical first-
degree  murder.25  It does not follow that the  absence
of  these  factors establishes that Noyakuks crime  was
less serious than a typical first-degree murder.
          Noyakuks act of murdering Martha Butler was a
crime  of  domestic violence, since Noyakuk and  Butler
shared  a  household.26  Judge Esch found that  Noyakuk
had a history of repeated assaultive conduct, including
two  prior assaults against Butler.  In addition, Judge
Esch  noted  that Noyakuk engaged in a significant  and
protracted  effort to conceal the murder and  to  avoid
apprehension.   Judge  Esch could  reasonably  conclude
that  these  factors called for a sentence  within  the
upper range of the penalties for first-degree murder.
          (Compare Sakeagak v. State, 952 P.2d 278, 285
(Alaska  App.  1998), where we held  that  a  defendant
challenging  the  reasonableness of a 99-year  sentence
for first-degree murder was obliged to show some reason
to  believe  that their offense was mitigated  or  that
their background was atypically favorable.)
          After  independently reviewing the record  in
Noyakuks  case,  we conclude that Judge  Esch  was  not
clearly mistaken when he sentenced Noyakuk to serve  75
years in prison.27

Conclusion

          The  judgement  of  the  superior  court   is
AFFIRMED.

_______________________________
     1See  Miranda  v. Arizona, 384 U.S. 436, 86 S.Ct.  1602,  16
L.Ed.2d 694 (1966).

2AS 28.35.030(a).

3AS 11.61.210(a)(1).

4Federal courts:  See United States v. Chamberlain, 163 F.3d
499,  501-02  (8th Cir. 1998); United States v.  Menzer,  29
F.3d 1223, 1231-32 (7th Cir. 1994); United States v. Turner,
28  F.3d  981, 983-84 (9th Cir. 1994); Garcia v. Singletary,
13  F.3d 1487, 1492 (11th Cir. 1994); United States v. Lugo,
289  F.Supp.2d  790,  794-96 (S.D.  Tex.  2003);  Dallio  v.
Spitzer, 170 F.Supp.2d 327, 338-39 (E.D. N.Y. 2001).
     State  courts:  See Fairchild v. State, 76 S.W.3d  884,
890  (Ark. 2002); People v. Denison, 918 P.2d 1114,  1116-17
(Colo.  1996);  State v. Peterson, 663  N.W.2d  417,  427-28
(Iowa  2003);  State v. Deases, 518 N.W.2d  784,  789  (Iowa
1994);  Commonwealth v. Larkin, 708 N.E.2d 674,  681  (Mass.
1999), and the cases cited in footnotes 6-8 of Larkin; State
v.  Tibiatowski, 590 N.W.2d 305, 308-09 (Minn. 1999);  State
v. Ford, 738 A.2d 937, 943 (N.H. 1999); State v. Conley, 574
N.W.2d 569, 573-74 (N.D. 1998).
     See  also  Judge Bryners dissenting opinion in Kochutin
v. State, 813 P.2d 298, 309 & n. 2 (Alaska App. 1991), where
he  cited  the  wealth  of authority ...  that  a  sentenced
prisoner serving time in a correctional facility is not ipso
facto in Miranda custody.

5Halberg  v.  State,  903  P.2d  1090  (Alaska  App.  1995);
Crawford v. State, 100 P.3d 440 (Alaska App. 2004).

6422  U.S.  590,  602; 95 S.Ct. 2254, 2261; 45  L.Ed.2d  416
(1975).

7A finding of fact is clearly erroneous when it leaves the
[reviewing  court] with a definite and firm  conviction
... that a mistake has been made, although there may be
evidence  to support the finding. Geczy v. LaChappelle,
636 P.2d 604, 606 n. 6 (Alaska 1981), quoting Mathis v.
Meyeres, 574 P.2d 447, 449 (Alaska 1978).

8Compare Lewis v. State, 862 P.2d 181, 186-87 (Alaska App.
1993),  and  Gustafson  v. State,  854  P.2d  751,  756
(Alaska App. 1993), where we held that, for purposes of
applying  the suppression rule announced  in  State  v.
Malkin,   722  P.2d  943  (Alaska  1986),  a  conscious
misstatement   or   omission  in   a   search   warrant
application  is intentional only if it was  done  in  a
deliberate  attempt to mislead the issuing  magistrate.
(See  also  Judge Singletons concurrence  in  Davis  v.
State,  766 P.2d 41, 47 n. 3 (Alaska App. 1988),  where
he  advocated  this same interpretation of  intentional
for Malkin purposes.)

9451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

10Our original opinion in Kochutin was later vacated, see
875  P.2d  778 (Alaska App. 1994), because our decision
rested  on the false factual premise that Kochutin  had
been  continuously  in  custody  between  the  time  he
invoked his right to counsel and the time the police re-
interviewed  him.   However,  our  discussion  of   the
Edwards rule remains good law.

11Hampel, 706 P.2d at 1181.

12Davis, 512 U.S. at 455, 114 S.Ct. at 2353.

13Davis, 512 U.S. at 456, 114 S.Ct. at 2353-54.

14Davis, 512 U.S. at 461-62, 114 S.Ct. at 2356.

15Hampel, 706 P.2d at 1181.

16Id.

17Varie, 26 P.3d at 34.

18Id.

19Id. at 36.

20Mueller, 181 F.3d at 573-74.

21Id.

22Id.

23AS 11.41.100(b); AS 12.55.125(a).

24See Page v. State, 657 P.2d 850, 855 (Alaska App. 1983).

25See  Hamilton  v.  State, 59 P.3d 760,  772  (Alaska  App.
2002):

     We  have repeatedly held that premeditated  murder
is  among  the  most  serious  conduct  within  Alaskas
definition  of  first-degree  murder   and   that,   in
first-degree  murder cases, a defendants premeditation,
standing  alone, will support a sentence  of  99  years
imprisonment.  Moreover, even in cases of second-degree
murder   (i.e.,   cases  in  which  the   killing   was
unintended), we have repeatedly upheld sentences in the
upper  end  of  the  penalty range for  defendants  who
committed gratuitous or otherwise inexplicable acts  of
extreme violence.

And see Harmon v. State, 908 P.2d 434, 444 (Alaska App. 1995)
(holding  that a first-degree murder is aggravated when  the
defendant  tortures  or  inflicts  gratuitous  pain  on  the
victim).

26Compare AS 12.55.155(c)(18)(A), which provides that crimes
against  household members are aggravated  for  purposes  of
presumptive sentencing.

27See  McClain v. State, 519 P.2d 811, 813-14 (Alaska  1974)
(an  appellate  court  is to affirm  a  sentencing  decision
unless the decision is clearly mistaken).

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