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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: firstname.lastname@example.org IN THE COURT OF APPEALS OF THE STATE OF ALASKA
|STATE OF ALASKA,||)|
|) Court of Appeals No. A-8851 Petitioner,||) Trial Court No. 3AN-01-5461 CR|
|) O P I N I O N|
|ANTONIO M. GARRISON,||)|
|Respondent.||) [No. 2030 February 3, 2006]|
Petition for Review from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Appearances: Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. M rquez, Attorney General, Juneau, for the Petitioner. Andrew J. Lambert, Kalamarides & Lambert, Anchorage, for the Respondent. Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges. STEWART, Judge. During interviews with the police, Antonio M. Garrison admitted that he removed a handgun from the scene of a homicide but consistently denied that he had any responsibility for this homicide. The grand jury returned an indictment charging Garrison with several crimes: felon in possession of a concealable firearm (Garrison had a prior felony conviction); two counts of tampering with physical evidence; first-degree murder; first-degree robbery; first-degree theft; and first-degree vehicle theft.1 Garrison moved to suppress his statements to the police in which he admitted removing the handgun, claiming a violation of his constitutional rights. The superior court suppressed Garrisons statements, finding that the police rendered Garrisons statements involuntary when they threatened him with harsher treatment. The superior court also concluded that Garrisons right to counsel had attached and was violated. Because no adversary proceedings had commenced when Garrison made his statements, the superior court erred in concluding that Garrisons right to counsel had attached and was violated. Furthermore, because the police did not subject Garrison to custodial interrogation when he made the disputed statements, the superior court erred in ruling that Garrisons Fifth Amendment right to counsel was violated. Moreover, we conclude that the detectives statements Garrison relied on to support his claim that the police threatened harsher treatment are not threatening statements under article I, section 9 of the Alaska Constitution. Even if we analyze the case assuming the statements are threatening as a matter of law, Garrison admitted that he removed the gun before the detectives made the statements that Garrison identifies as threats of harsher treatment. Thus, even if Garrisons will was overborne by the detectives later in the interview, Garrison had already made the damaging admissions before the police statements that Garrison relied on to claim that his admissions were involuntary. Finally, examining the totality of the circumstances, we conclude that Garrisons will was not overborne by the detectives statements. We conclude that the superior court erred in suppressing Garrisons admissions. Accordingly, we reverse the superior courts ruling and remand for further proceedings on the indictment. Background facts and proceedings On November 1, 2000, Paul Clinton was found shot to death in his place of business. Anchorage Police Detective Donald Krohn first interviewed Garrison on November 2, after the police discovered that Garrison had done business with Clinton on the day of his death. Garrison was given full Miranda2 warnings, and Garrison denied any involvement in the homicide. Detective Krohn contacted Garrison a second time on November 4 at Garrisons residence. Krohn did not give Garrison Miranda warnings at this second interview; Garrison again denied involvement in the homicide. On November 7, Garrison retained an attorney, Chad Holt. On December 11, the detectives contacted Garrison to arrange for another interview; Garrison agreed. On December 12, Garrison met Detectives Krohn and Timothy Landeis but told the detectives that Holt advised him not to talk with the police. This was the first time the detectives learned that Garrison had retained an attorney. Sometime later, Detective Landeis called Holt and left a message with specific questions he wanted to ask Garrison. Holt returned the call, leaving a message for Detective Landeis indicating that Garrison would not make any statements. In January 2001, the police recovered a handgun that had been pawned by Garrisons sister. The police suspected that this gun might have been used to shoot Clinton. They had the gun tested. The testing showed that it was possible that the gun was the murder weapon, but the testing was not conclusive. On January 18, 2001, Krohn and Detective Nick Vanderveur went to Garrisons house and were let in by his wife. The detectives did not give Garrison a Miranda warning before the interview started. The detectives told Garrison about the gun they retrieved from a pawnshop that his sister had pawned, and they told Garrison they had tested the gun (without telling him that the testing was not conclusive). Garrison claimed that he had sold the gun to Clinton the day before Clinton was killed. Garrison said that he went to Clintons office on November 1, discovered that he was dead, saw the gun lying near Clintons body, and took the gun in a panic and left. Garrison explained that he took the gun because he was on probation and did not want the gun linked to him. Garrison again denied killing Clinton. The detectives told Garrison where they were in the investigation. They informed Garrison that they would present the case they had to the district attorney, and they told Garrison that the evidence appeared to support a case of intentional murder, unless Garrison had something more he wanted to share with them. Detective Krohn told Garrison: [If] [y]ou dont talk to us, you dont tell us the story[, then] we have [just the] one story. And we go straight to the DA with it, Detective Vanderveur added. Detective Vanderveur then told Garrison ... were out on a limb ... we dont always ... do this for people. The detectives asked Garrison if he would agree to a polygraph examination. Garrison agreed and drove himself to the police station. Before the examination, Garrison waived his Miranda rights. After the polygraph, Garrison was interviewed again by Detectives Krohn and Landeis and then left the station. The grand jury indicted Garrison on July 13, 2001, charging him with two counts of tampering with physical evidence and one count of felon in possession of a firearm, first-degree murder, first-degree robbery, first-degree theft, and first- degree vehicle theft. Garrison moved to suppress his January 18, 2001 statements, arguing he was in custody on January 18 and, therefore, should have been given a Miranda warning. He also argued that his statements on January 18 were involuntary under the Fifth Amendment and, because his right to counsel had attached and been violated, were taken in violation of the Sixth Amendment. Superior Court Judge Michael L. Wolverton granted Garrisons motion. Judge Wolverton found that Garrison was not in custody at any point on January 18, 2001. Nevertheless, Judge Wolverton found that Detective Landeis knew Garrison had retained Holt as his attorney and knew that Holt advised Garrison not to talk to police. Judge Wolverton further found that the detectives threatened Garrison with harsher punishment if he did not talk to them, thereby making his admissions of tampering with evidence and illegal possession of the gun involuntary. The State petitioned for review of Judge Wolvertons ruling on the motion to suppress, and we granted review. Because adversary criminal proceedings had not begun when Garrison admitted his criminal activity, Garrisons Sixth Amendment right to counsel had not attached The State argues that the superior court erred when it concluded that Garrisons Sixth Amendment right to counsel was violated on January 18. The State points out that in Thiel v. State,3 we ruled that the right to counsel under the Sixth Amendment attaches only upon the commencement of adversary criminal proceedings and not during purely investigative stages of a case.4 The State asserts that adversary proceedings did not commence until July 13, 2001, the day Garrison was first formally charged by grand jury indictment. Accordingly, the State argues that Garrisons right to counsel had not yet attached on January 18, 2001. In addition, the State argues that the polices knowledge that Garrison had a lawyer and the lawyer told the police that Garrison did not wish to talk, did not bar the detectives from contacting and interviewing Garrison on January 18. Garrison argues his right to counsel had attached at the January 18 interview. He maintains that his right to counsel is also guaranteed under article I, section 11 of the Alaska Constitution, which provides, in part, In all criminal prosecutions, the accused shall have the right ... to have the assistance of counsel for his defense. Garrison argues that Alaska case law suggests that the right to counsel attaches not only when adversary proceedings begin but also when police actively interfere or impair [an existing] attorney-client relationship. In Thiel, we held that article I, section 11 of the Alaska Constitution mirrored the Sixth Amendment of the U.S. Constitution in providing a right to counsel only in criminal proceedings where there is commencement of a specified adversarial proceeding that trigger[s] the right to counsel.5 We acknowledged that the scope of Alaskas constitutional protection had enlarged beyond the federal minimum, but we did not find that the need for some form of adversary proceeding can be dispensed with altogether or that Alaskas right to counsel attaches in the abstract to all attorney-client relationships.6 In Thiel, we relied on Loveless v. State,7 a case in which the Alaska Supreme Court held that the right to counsel has been extended to investigatory proceedings but only when conducted in an adversary context.8 Garrison asks this court to extend the right to counsel to situations where police interfere with an existing attorney- client relationship, even when no adversary proceeding has yet commenced. For support, Garrison cites Blue v. State,9 Thiel v. State, and Carr v. State,10 three cases that dealt with the right to counsel under the Alaska Constitution. In Blue, the Alaska Supreme Court held that a suspect who is in custody is entitled to have counsel present at a pre- indictment lineup unless exigent circumstances exist so that providing counsel would unduly interfere with a prompt and purposeful investigation.11 Blue is not directly controlling here because, unlike the defendant in Blue who was in custody during the police interview, Judge Wolverton found Garrison was not in custody during the January 18 interview at his home. Our remarks in Thiel and Carr might be subject to broader interpretation. In Thiel, we declined to extend the right to counsel under the Alaska Constitution to instances where adversarial proceedings had not begun but noted that police conduct involving ... actual interference [with an attorney- client relationship] might well raise serious issues of fundamental fairness ... .12 And in Carr, we announced that the right to counsel may be offended before formal charges in situations where the attorney-client relationship has been impaired.13 Objectively, the transcripts of the interviews do not show that the detectives actively discouraged Garrison from contacting Holt. The police even reminded Garrison of his right to an attorney and suggested that the attorney would likely repeat the advice not to discuss the case with the police. The record does not support a conclusion that the detectives improperly interfered with Garrisons attorney-client relationship. We are not limited by the scope of the Sixth Amendment when we construe the right-to-counsel provision of the Alaska Constitution.14 But in Thiel, a case that parallels Garrisons situation, we concluded that right to counsel under article I, section 11 of the Alaska Constitution was coextensive with the right under the Sixth Amendment.15 Finally, Garrison urges this court to uphold Judge Wolverton by applying the holding of the New York Court of Appeals in People v. Skinner16 to the facts of this case. Skinner announced a rule of law that, where a defendant is known to have invoked the right to and obtained the services of counsel on the matter about which the person is questioned, the State may not use statements elicited from that person in the absence of a waiver of counsel made in the presence of the attorney.17 In Skinner, the defendant retained an attorney who instructed police not to question the defendant unless the attorney was present.18 Almost two years later, police contacted the defendant and, after reading him Miranda warnings, conducted an interview in which the defendant made damaging admissions.19 Even though no formal proceedings against the defendant had commenced, the New York Court of Appeals found that the defendants right to counsel under the New York Constitution was violated:20 In retaining an attorney specifically in response to repeated police-initiated contacts, [the] defendant unequivocally indicated that he felt himself unable to deal with the authorities without legal assistance. In a real sense, he had activated his constitutional right to interpose an attorney between himself and the overwhelming power of the State. ... That right is rendered illusory if the States agents are permitted to subject an individual represented by counsel to questioning in a noncustodial setting. The effects of a waiver of counsel are no less real in that setting; waiver of the right to counsel once invoked should be no less ineffective than when made by a person in custody.21 The holding in Skinner is based on New Yorks Donovan-Arthur- Hobson rule, which prohibits virtually all police interrogation once a defense attorney is retained, regardless of whether judicial proceedings have commenced.22 In People v. Hobson,23 the New York Court of Appeals defended this approach as a more robust constitutional protection against involuntary waiver of counsel, stating that the rule breathes life into the requirement that a waiver of a constitutional right must be competent, intelligent and voluntary.24 Further, the court found the rule served to protect the individual, often ignorant and uneducated, and always in fear, when faced with the coercive police power of the State.25 Professor Yale Kamisar has observed, however, that this rule actually favors the professional criminal, as it is this individual who is most likely to have already obtained counsel in advance of or during a police investigation.26 Other jurisdictions that have been urged to follow Skinner have declined.27 We decline to follow the approach of the New York Court of Appeals in Skinner. Instead, we adhere to Thiel. Because Garrison had not been formally charged with a crime, we conclude that Garrisons right to counsel under either the Sixth Amendment or the Alaska Constitution had not attached when the police interviewed him on January 18. Therefore, the superior court erred when it concluded that the police interviews on January 18 violated Garrisons right to counsel either under the Sixth Amendment or article I, section 11 of the Alaska Constitution. Because Garrison was not subjected to custodial interrogation on January 18 at his home, his Fifth Amendment right to counsel was not violated Garrison argues that he made an equivocal reference to an attorney during the January 18 interview at his home when he said the attorney freaks me out more than you do. All I did was get advice ... . Garrison asserts that, at that point, the detectives were required to narrow the scope of their questioning to ascertaining whether or not Garrison was evoking his rights. The State argues that Garrisons right to counsel under the Fifth Amendment was not violated because he was not in custody when he was questioned and, therefore, was not entitled to the protections required by Miranda. In Eben v. State,28 the Alaska Supreme Court announced that [b]oth custody and interrogation must be involved in the procurement of an inculpatory statement by law enforcement officials before the standards enunciated in Miranda are applicable.29 Judge Wolverton found that Garrison was not in custody at any time on January 18. Garrison does not dispute this finding with regards to the interview conducted in his home. Because Garrison was not in custody at the time he was interviewed in his home, under Eben, he was not subjected to custodial interrogation. Therefore, his Fifth Amendment right to counsel, under Miranda, was not violated.30 In Alaska, police have a duty in some circumstances to narrow questioning to determine whether a suspect is invoking Fifth Amendment rights.31 But this duty applies when the police subject a suspect to custodial interrogation, and we have already noted that Judge Wolverton found that Garrison was not in custody.32 To the extent that Garrison argues that the police had to stop and clarify Garrisons reference to an attorney, that argument has no merit because Garrison was not in custody, and the requirement, under Edwards v. Arizona,33 that the police stop an interview when a defendant makes an equivocal request for counsel applies to custodial interrogations.34 Police are bound by the restrictions placed on them by the Fifth Amendment guarantee against self-incrimination when they conduct a custodial interrogation. Because Garrison was not in custody during the interview in his home and, therefore, not subject to a custodial interrogation, the superior court erred to the extent it found that Garrisons Fifth Amendment privilege against self-incrimination was violated. The superior court erred in finding that the police threatened harsher treatment if Garrison did not speak to them about the crime The voluntary nature of a confession is a mixed question of fact and law.35 In Beavers v. State,36 the Alaska Supreme Court outlined a three-part inquiry for ascertaining the voluntariness of a confession: the appellate court will review the trial courts findings regarding the external, phenomenological facts surrounding the confession for clear error and then will determine independently the accuseds mental state and the legal significance of that mental state after an examination of the entire record and the totality of the circumstances surrounding the confession.37 In his motion to suppress, Garrison argued that the detectives induced statements from him during the January 18 interview at his home with offers of leniency, promising Garrison he would not be arrested that day regardless of what he told the detectives. In addition, Garrison asserts, the detectives implied Garrison should say he accidentally shot Clinton as the detectives thought the D.A. would understand that ... and that it would be hard to sell the D.A. the story that Garrison was not involved in Clintons murder. Garrison points out that the detectives used phrases such as please tell me now. Dont make me come back later because if I have to come back later ... and Please dont make me prove this [because] if they make me prove this its gonna turn out a whole lot different than probably what it really was or what you think it was. Garrison further notes that Detective Krohn testified at the suppression hearing that the detectives were trying to get Garrison to talk by telling him it would be worse for him if he did not. Garrison argues that, because his inculpatory statements were made in response to these statements, they were presumptively involuntary and should be suppressed. The State argues that nothing in the detectives statements that Garrison relies on suggests Garrison would receive any punishment for refusing to talk to the detectives. In Beavers, the Alaska Supreme Court held that [t]hreat-induced confessions should be considered presumptively involuntary absent evidence affirmatively indicating that the suspects will was not overcome by the threats.38 The police told Beavers that he might be hammered subjected to harsher treatment during a non-custodial interview after which Beavers confessed to participation in a robbery.39 The court concluded that Beavers confession was involuntary because the interviewing troopers threat that he would be hammered if he attempted to hide his involvement in the robberies conveyed an unmistakable message that Beavers would be punished for exercising his constitutional right to silence.40 Here, Judge Wolverton found, relying on Beavers, that Garrisons admission that he moved the gun from the murder scene was presumptively involuntary because of threats of harsher treatment made by the detectives. Judge Wolverton ruled on the motion to suppress from the bench and did not specify which statements by the detectives he based his decision on. An examination of the record shows that there are numerous instances during the January 18 interview where the detectives seemingly took a confrontational tone. For the purposes of determining whether Garrisons admissions were involuntary, however, the relevant statements to consider are those the detectives made before Garrison admitted that he removed the handgun from the scene of the homicide.41 All of the detectives statements Garrison referred to in the superior court and in this court were made after Garrison already admitted that he took the handgun. A finding that police threats provoked an involuntary confession logically requires a finding that the threats preceded the confession. Because Garrisons admissions occurred before the detectives made the statements Garrison identifies as threatening, the superior court erred in finding Garrisons statements were involuntary. While Detective Krohn testified at the evidentiary hearing that he hoped to sway Garrison to talk during the January 18 interview, we review the objective events that occur in the interview. An officers subjective aims do not control our analysis. Before Garrisons initial admissions, the detectives had only asked Garrison whether his family should leave the room for the interview and told Garrison the results of their continued investigation, including the fact that they had recovered a handgun pawned by his sister and subjected it to testing. Detective Krohn said And I what Im asking you is to tell me what happened so that I can tell the district attorney. Otherwise, it looks like plain-out murder. Garrison then reaffirmed that he was not involved in Clintons homicide but said that he discovered Clintons body and took the gun that Garrison had sold him earlier. He claimed that he took the gun because he was on probation and did not want to be tied to the gun. From our review of the circumstances of the interview, we conclude that none of the detectives statements before Garrisons admissions constituted threats of harsher treatment under Beavers. The detectives explained to Garrison that the evidence they had developed suggested that the homicide appeared to be murder and that, absent some mitigating information from Garrison, they would present the existing evidence they had to the district attorney. These statements do not suggest that Garrison would be subjected to harsher than normal treatment unless he admitted his involvement in the homicide.42 Rather, the detectives offered Garrison a chance to provide additional information that might tend to exculpate him or mitigate his conduct. We next consider Garrisons claim that the detectives statements later in the interview were threatening. Viewed objectively, the statements do not tell Garrison that he would receive harsher treatment unless he admitted involvement in Clintons homicide. Viewed in isolation, one of Detective Krohns statements, made very close to the end of the interview at Garrisons home, could be described, arguably, as threatening: Please dont make me prove this [because] if they make me prove this its gonna turn out a whole lot different than probably what it really was or what you think it was. Now damn it, if this was an accident tell us now. Dont let me find out later it was murder for the money. But Krohn did not explicitly threaten any harsher treatment for Garrison if Garrison did not admit involvement in the homicide. And, viewed in the context of the detectives other statements, it is a repetition, admittedly in stronger language, of the detectives assertion that Garrison might be better served if he advanced exculpatory or mitigating information sooner. Viewing the interviews on the 18th collectively, we conclude that the detectives statements are not threats under Beavers. The State next argues that Garrisons statements were improperly suppressed because Garrisons will was not overborne.43 The State asserts that Garrisons unwavering adherence to his story effectively rebuts any presumption of coercion and establishes that the detectives did not overbear his free will. The State argues that Garrison was merely engag[ing] in a calculated effort to assuage police suspicions and to make it appear that he was reluctantly but honestly cooperating with their investigative efforts.44 The determination of whether a statement is involuntary rests in large measure on the subjective effect of the police conduct on the suspects will.45 Statements may be deemed involuntary if officers, through threats, undermine a suspects will to resist and elicit a confession that would otherwise not be freely given.46 In Edwards v. State,47 the suspect argued his statement to officers was involuntary because the police officers threatened him with immediate arrest on a murder charge if he failed to talk to them.48 We found that, despite the threat, the statements were not involuntary: The main impediment to such a finding [that the statements were involuntary] is that Edwards, despite police pressure to talk, said nothing to directly inculpate himself in [the crime].49 The holding in Edwards was affirmed in Malloy v. State,50 where we again found the suspects statement was voluntary, despite officer threats, primarily because the suspect said nothing to directly inculpate herself.51 Nevertheless, Judge Wolverton ruled that Garrison did make inculpatory statements: Im further persuaded ... that, contrary to Edwards and Malloy, the ultimate result was that Mr. Garrison admitted two felonies: [evidence] tampering and felon in possession. But Garrison consistently denied that he was responsible for Clintons death the focus of the investigation and the interviews. Even though his statements directly inculpated him in the offenses of tampering with evidence and felon in possession of a concealable firearm, the obvious purpose of these statements was to explain how Garrisons sister came to be in possession of the gun in a way that did not implicate Garrison in Clintons death. As we noted above, Garrisons admissions preceded any statements identified by Garrison as coercive or threatening.52 The timing of Garrisons admissions, before any arguably threatening or coercive statements were made by the detectives, and the exculpatory nature of the admissions with respect to the homicide, establishes that Garrisons will was not overborne.53 The superior court erred in ruling that Garrisons statements were involuntary. Garrisons claim that he was in custody during the interviews at the police station At the suppression hearing, Judge Wolverton found that Garrison was not in custody at any time on January 18, 2001. Garrison challenges this finding as to the interviews at the Anchorage Police Department that followed the interview at his home. But this contention appears to be moot because the police advised Garrison of his Miranda rights at the police station before the polygraph examination. The record shows that Garrison said that he understood his rights, and with those rights in mind, he waived his rights and agreed to talk with the police. Even if Judge Wolverton erred when he concluded that Garrison was not in custody, (and we are not convinced that this conclusion is erroneous) the police advised Garrison of his Miranda rights at the police station, and Garrison waived those rights. Conclusion We REVERSE the superior courts order granting Garrisons motion to suppress his statements. We remand the case to the superior court for further proceedings on the indictment. _______________________________ 1 AS 11.61.200(a)(1); AS 11.56.610(a)(1) & (4); AS 11.41.100(a)(1); AS 11.41.500(a)(1); AS 11.46.120; AS 11.46.360(a)(1), respectively. 2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 3 762 P.2d 478 (Alaska App. 1988). 4 Id. at 481. 5 Id. at 482-83. See also Eben v. State, 599 P.2d 700, 706 (Alaska 1979) (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S. Ct. 1877, 1882, 32 L. Ed. 2d 411, 417 (1972)) (Ebens sixth amendment rights were not implicated ... because no adversary judicial criminal proceedings whether by way of formal charge, preliminary hearing, indictment, information, or arraignment had been initiated against him.). 6 Thiel, 762 P.2d at 482 (citing Flores v. Flores, 598 P.2d 893 (Alaska 1979) (conferring the right to counsel to a parent in a child custody case when the other parent was represented by state counsel); Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977) (conferring the right to counsel to a defendant in a paternity suit when the plaintiff was represented by state counsel); Blue v. State, 558 P.2d 636 (Alaska 1977) (finding a defendant subject to a pre-indictment lineup while in custody was entitled to representation); Otton v. Zaborac, 525 P.2d 537 (Alaska 1974) (extending the right to counsel to civil contempt proceedings involving failure to make child support payments); Alexander v. Anchorage, 490 P.2d 910 (Alaska 1971) (extending the right to counsel to all criminal prosecutions involving the possibility of incarceration); Roberts v. State, 458 P.2d 340 (Alaska 1969) (extending the right to counsel to a prisoner from whom the police sought to obtain a post-indictment handwriting exemplar)). 7 592 P.2d 1206 (Alaska 1979). 8 Id. at 1210 (citing Blue v. State, 558 P.2d 636 (Alaska 1977); Roberts v. State, 458 P.2d 340 (Alaska 1969)). 9 558 P.2d 636 (Alaska 1977). 10 840 P.2d 1000 (Alaska App. 1992). 11 Blue, 558 P.2d at 642 (citations omitted). 12 Thiel, 762 P.2d at 483. 13 Carr, 840 P.2d at 1005. 14 Blue, 558 P.2d at 641. See also Roberts v. State, 458 P.2d 340, 342 (Alaska 1969) (We are not bound in expounding the Alaska Constitutions Declaration of Rights by the decisions of the United States Supreme Court, past or future, which expound identical or closely similar provisions of the United States Constitution.). 15 Thiel, 762 P.2d at 482. 16 417 N.E.2d 501 (N.Y. 1980). 17 Skinner, 417 N.E. 2d at 505. 18 Id. at 502. 19 Id. 20 Id. at 503. 21 Id. at 505. 22 Yale Kamisar, Police Interrogations and Confessions 213 (1980) (citing People v. Hobson, 348 N.E.2d 894 (N.Y. 1976); People v. Arthur, 239 N.E.2d 537 (N.Y. 1968); People v. Donovan, 193 N.E.2d 628 (N.Y. 1963)). 23 348 N.E.2d 894 (N.Y. 1976). 24 Id. at 898. 25 Id. 26 Kamisar, supra, at 221. 27 See State v. Luton, 927 P.2d 844, 852 (Haw. 1996); State v. Scarborough, 470 A.2d 909, 914 (N.H. 1983); State v. Smart, 622 A.2d 1197, 1213 (N.H. 1993); Lara v. State, 740 S.W.2d 823, 835 (Tex. App. 1987). 28 599 P.2d 700 (Alaska 1979). 29 Id. at 707 (emphasis in the original). 30 See id. 31 See Hampel v. State, 706 P.2d 1173, 1180 (Alaska App. 1985) (Whenever even an equivocal request for an attorney is made by a suspect during custodial interrogation, the scope of that interrogation is immediately narrowed to ... clarifying that request until it is clarified.) (emphasis in the original). See also Giacomazzi v. State, 633 P.2d 218, 222 (Alaska 1981) (finding that officers may clarify whether a statement is a request for counsel or an invocation of the right to remain silent); Davis v. U.S., 512 U.S. 452, 459, 114 S. Ct. 2350, 2355, 129 L. Ed. 2d 362 (1994) (finding officers are not required to cease questioning immediately upon an ambiguous or equivocal reference to an attorney). 32 See Hampel, 706 P.2d at 1180. 33 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). 34 Id. at 484-85, 101 S. Ct. at 1884-85. 35 Beavers v. State, 998 P.2d 1040, 1044 (Alaska 2000). 36 998 P.2d 1040 (Alaska 2000). 37 Id. at 1044. 38 Id. at 1048. 39 Id. at 1042. 40 Id. at 1048. 41 See id. at 1046 (finding confessions resulting from threats are presumptively involuntary). 42 See id. 43 See id. 998 P.2d at 1048 (Threat-induced confessions should be considered presumptively involuntary absent evidence affirmatively indicating that the suspects will was not overcome by the threats.). 44 Edwards v. State, 842 P.2d 1281, 1285 (Alaska App. 1992). 45 Id. at 1285. 46 Malloy v. State, 1 P.3d 1266, 1276 (Alaska App. 2000); Edwards, 842 P.2d at 1285. 47 842 P.2d 1281 (Alaska App. 1992). 48 Id. at 1285. 49 Id. 50 1 P.3d 1266 (Alaska App. 2000). 51 Id. at 1276. 52 See id. (Statements are involuntary if the police, through promises or threats, undermine a suspects will to resist and elicit a confession that is not freely given.). 53 See Beavers, 998 P.2d at 1048.
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