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Rockwell v. State (2/15/2008) ap-2149

Rockwell v. State (2/15/2008) ap-2149

                             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


MICHAEL L. ROCKWELL, )
) Court of Appeals No. A-9748
Appellant, ) Trial Court No. 3AN-04-508 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) No. 2149 - February 15, 2008
)
Appeal    from    the
          Superior  Court,  Third  Judicial  District,
          Anchorage,  Michael  L. Wolverton  and  John
          Suddock, Judges.

          Appearances:   Renee  McFarland,   Assistant
          Public Defender, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the  Appellant.
          Kenneth  M.  Rosenstein, Assistant  Attorney
          General, Office of Special Prosecutions  and
          Appeals,  Anchorage, and Talis  J.  Colberg,
          Attorney General, Juneau, for the Appellee.

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

          STEWART, Judge.

          Michael L. Rockwell appeals his convictions for  felony
driving  while  under  the influence and  driving  while  license
cancelled, suspended, or revoked.1  Rockwells principal  argument
on  appeal is that he was subjected to custodial interrogation in
violation  of  Miranda v. Arizona,2  and that the superior  court
should  have  suppressed  the  statements  he  made  during  that
interrogation.   As  explained in this opinion,  we  agree   that
Rockwells Miranda rights were violated during the latter portions
of  his  interrogation,  and we believe  there  is  a  reasonable
possibility  that  his  Miranda rights were  violated  during  an
earlier  portion  of  the  interrogation.   We  therefore  remand
Rockwells  case to the superior court for additional findings  on
what  specific  evidence  must  be  suppressed,  and  on  whether
Rockwells  conviction must be reversed because of the suppression
of this evidence.
          Rockwell   also   argues  that   the   superior   court
erroneously admitted certain hearsay evidence at his  trial.   We
conclude  that  each challenged item of evidence  was  admissible
under an exception to the hearsay rule.

          Underlying facts and proceedings
               In  the  early morning hours of  January  16,
     2004,  two  cars crashed at the intersection of  Dimond
     Boulevard  and  New  Seward  Highway.   Officer  Amanda
     Patton  of the Anchorage Police Department saw Rockwell
     exit  the  drivers  side of one of the  cars  and  walk
     towards  the  driver of the other car involved  in  the
     accident.  The two drivers started arguing, and  Patton
     separated  them.  When Patton spoke with  Rockwell,  he
     first  said  that  he  had been  driving,  but  shortly
     thereafter claimed that he had not been driving.
               Officer  Stephen Busby arrived at  the  scene
     and  contacted Rockwell while Officer Patton questioned
     the  driver  of  the  other  vehicle  involved  in  the
     accident.  The driver of the other vehicle told  Patton
     that he saw someone run away from the passenger side of
     Rockwells  car,  but  he  identified  Rockwell  as  the
     driver.
          When   Officer   Busby  contacted   Rockwell,
Rockwell  was  standing in the middle  of  the  street;
Busby  asked  Rockwell  to  step  over  to  his  patrol
vehicle.   Busby  noticed that Rockwell had  bloodshot,
watery  eyes and appeared to be intoxicated.   Rockwell
admitted  that he was intoxicated and that his  license
was revoked.  However, Rockwell told Busby that another
man  Joshua Fagg  had been driving the car.
          Busby  then  asked Rockwell  to  sit  in  the
backseat   of  his  patrol  car.   According   to   the
testimony, Busby asked Rockwell to get into the  patrol
car  because it was cold outside.  Busby told  Rockwell
that he was not under arrest.  However, Busby conducted
a  pat-down  search of Rockwells clothing  for  weapons
before  Rockwell got into the car. During this  search,
Busby found the keys to Rockwells car in Rockwells back
pocket.
          Once  in  the  vehicle, Busby  turned  on  an
audio  recorder  and  asked  Rockwell  more  questions.
During  this questioning, Busby informed Rockwell  that
he  was  going to take him to the police substation  at
the  Dimond  Mall, approximately two  blocks  away,  to
administer field sobriety tests.
          Once   they   arrived  at  the  Dimond   Mall
substation, Busby administered field sobriety tests  to
Rockwell  and  continued  to question  him.   Based  on
Rockwells  performance  on the  field  sobriety  tests,
Busby  arrested  Rockwell for driving while  under  the
influence.
          Busby  then took Rockwell to a second  police
substation  for  breath testing.   The  result  of  the
breath  test  was a .130 percent alcohol level.   After
Rockwell took the breath test, Busby advised him of his
Miranda rights.
          After Rockwell was advised of his rights,  he
demanded an attorney.   It was approximately 4:00  a.m.
at  this  time.  Busby offered Rockwell the  chance  to
immediately call an attorney, but Rockwell declined  to
make  a  phone call.  Busby then continued to  question
Rockwell.
          After   Rockwell  was  charged  with   felony
driving while under the influence and driving while his
license was cancelled, suspended, or revoked, he  asked
the  superior court to suppress the statements he  made
to  Busby.  Rockwell asserted that he was subjected  to
custodial  interrogation  before  he  received  Miranda
warnings.  He also asserted that, after he received the
warnings  and  invoked  his  right  to  counsel,  Busby
ignored  his  request  for  counsel  and  continued  to
interrogate him.
          Superior  Court  Judge Michael  L.  Wolverton
held  an  evidentiary hearing on Rockwells  suppression
motion.  Following this hearing, Judge Wolverton denied
Rockwells motion in a one-paragraph written order.   In
this order, Judge Wolverton declared that Rockwell  had
not  been  in  custody at any pertinent time,  but  the
judge did not make any specific findings of fact.
          Rockwells  trial  was  held  before  Superior
Court  Judge John Suddock.  Rockwells defense was  that
he  had  not been driving the car.  He again identified
Joshua  Fagg as the driver.  To rebut this  claim,  the
State called Fagg as a witness.  Fagg testified that he
had been traveling in South America at the time of this
incident.   Fagg produced his passport, a  bus  ticket,
and  an  Andean  immigration card  to  corroborate  his
testimony.
          Rockwell received copies of Faggs bus  ticket
and Andean immigration card on the afternoon before the
trial  started.   Rockwell asked Judge  Suddock  for  a
continuance  to  investigate these documents,  but  the
judge denied the requested continuance.
          The  jury convicted Rockwell of both  counts.
Rockwell now appeals.

     Analysis of Rockwells claims
     The Miranda issues
          A  police  officer must advise a  suspect  of
the Miranda rights, and must obtain the suspects waiver
of  those  rights,  before subjecting  the  suspect  to
custodial interrogation.3
          Normally,  an  investigative  stop   is   not
considered custody for Miranda purposes.4  In  Berkemer
v.  McCarty,5 the United States Supreme Court held that
a  police officer need not give Miranda warnings  to  a
motorist  who  is  subjected  to  roadside  questioning
during a routine traffic stop.6  We followed this  rule
in  Blake  v. State,7 holding that police officers  are
not  required to give Miranda warnings during a traffic
stop unless and until the initial stop ripens into full-
blown custody.8
          In  Hunter  v.  State,9  the  Alaska  Supreme
Court  announced  an  objective  test  for  determining
whether  a  person  is  in  custody  for  purposes   of
Miranda.10   Custody occurs when there is  some  actual
indication  of  custody, such that a reasonable  person
would  feel  he  was not free to leave  and  break  off
police questioning.11
          The  supreme  court defined  the  factors  to
consider as follows:

          At  least  three  groups of facts  would  be
          relevant  to this determination.  The  first
          are    those   facts   intrinsic   to    the
          interrogation:  when and where it  occurred,
          how  long  it  lasted, how many police  were
          present, what the officers and the defendant
          said   and  did,  the  presence  of   actual
          physical  restraint  on  the  defendant   or
          things  equivalent to actual restraint  such
          as drawn weapons or a guard stationed at the
          door,  and  whether the defendant was  being
          questioned  as  a suspect or as  a  witness.
          Facts   pertaining  to  events  before   the
          interrogation are also relevant,  especially
          how  the  defendant  got  to  the  place  of
          questioning   whether he came completely  on
          his own, in response to a police request, or
          escorted by police officers.  Finally,  what
          happened  after  the interrogation   whether
          the  defendant left freely, was detained  or
          arrested    may   assist   the   court    in
          determining  whether  the  defendant,  as  a
          reasonable person, would have felt  free  to
          break off the questioning.[12]

                    For  present  purposes,  we  divide
          Busbys  interrogation of Rockwell  into  four
                    phases:
                (1) the initial contact on the street at the scene of the
                    accident;
 (2) the interrogation inside Busbys patrol car up to the point
when Busby announced to Rockwell that he was going to transport
him to the Dimond Mall police substation;
 (3) the continued interrogation inside the patrol car after
Busbys announcement, as well as the ensuing interrogation at the
two police substations until Rockwell was finally advised of his
Miranda rights; and
 (4) the interrogation that took place after Rockwell was advised
of his Miranda rights and asserted his right to counsel.
          
          The lack of factual findings by the superior court
     
          As  we  noted above, Judge Wolverton made  no
findings  of fact when he decided Rockwells suppression
motion.  In this omission, the judge departed from  the
mandate  of  Alaska Criminal Rule 12(d),  which  states
that  [when] factual issues are involved in determining
a  motion  to suppress evidence, the court shall  state
its  essential findings on the record.  In other words,
a  trial  judge  ruling  on a suppression  motion  must
explicitly  state all findings of fact essential  to  a
determination of the issues raised.
          In  the  past,  when trial judges  failed  to
make  the findings required by Criminal Rule 12(d),  we
have declined to apply the normal presumption that  all
factual issues not specifically addressed by the  judge
were resolved in the manner most favorable to upholding
the  judges  ruling.  Instead, we have  directed  trial
judges  to  comply  with Rule 12(d)  and  make  express
findings  on the essential factual issues presented  by
the suppression motion.13
          However, we conclude that we can resolve  the
admissibility of Rockwells statements during the first,
third, and fourth portions of the interrogation without
explicit findings of fact.
          Even  viewing the evidence in the light  most
favorable to Rockwell, his statements during the  first
portion  of  the interrogation  that is, the statements
he  made when he and Busby were standing on the  street
at  the scene of the accident  were not the product  of
custodial interrogation.
          And,  even viewing the evidence in the  light
most  favorable to the State, Rockwell was  in  custody
for  Miranda  purposes  during  the  third  and  fourth
portions  of  the interrogation  that is,  after  Busby
told Rockwell that he was going to transport him to the
police substation.
          This  leaves  the  statements  that  Rockwell
made  during  the  second portion of the  interrogation
the  statements that Rockwell made while he was sitting
in  Busbys patrol car, but before Busby announced  that
Rockwell  would be taken to the police substation.   We
          conclude that we must direct the superior court to make
explicit findings concerning the facts of this  portion
of the interrogation.
     
     The initial contact on the street
          When  Busby  arrived  at  the  scene  of  the
accident, Rockwell was engaged in an argument with  the
driver of the other car involved in the accident.  Both
Officer  Patton  and the driver of  the  other  vehicle
identified  Rockwell as the driver of  his  car.  Busby
noticed  that  Rockwell  smelled  of  alcohol.    Busby
approached  Rockwell and asked him about  the  accident
that  had just occurred, including questions about  who
had  been  driving Rockwells car, and whether  Rockwell
had  been  drinking.   Rockwell conceded  that  he  was
drunk, but he told Busby that he was not the driver  of
the  car.   Rockwell identified the  driver  as  Joshua
Fagg.    Rockwell  claimed  that  Fagg  had  run   away
following the crash.
          This  initial portion of Rockwells  encounter
with  Busby  resulted from the fact that  Rockwell  had
been  in  a  traffic  accident,  and  the  police   had
responded  to  render  assistance and  investigate  the
accident.  Busby questioned Rockwell while both of them
were  standing  on  the  street,  close  to  where  the
collision occurred.  The questions that Busby posed  to
Rockwell were appropriate, given the circumstances  and
Busbys legitimate investigative purpose.
          The  test  for  Miranda  custody  is  usually
stated as whether a reasonable person would feel he was
not  free  to leave and break off police questioning.14
This  formulation  of the test arguably  suggests  that
Miranda warnings are required in any situation where  a
person  is  detained  or seized  for  Fourth  Amendment
purposes,  but  the  rule is not  that  broad.   As  we
explained in Winterrowd v. Anchorage,15

     The  cases  applying Miranda recognize  that
     there are some Fourth Amendment seizures  of
     temporary  duration  most  notably,  routine
     traffic stops and other investigative  stops
     in  which Miranda warnings are not required,
     even  though  the person is  temporarily  in
     custody and the police can properly ignore a
     request  that the officers depart and  leave
     the person alone.[16]
     It is true that Busby testified that he would
     not  have  allowed Rockwell to leave,  and  a
     reasonable person in Rockwells position would
     probably  not  have believed that  they  were
     free   to   walk  away  during  the  accident
     investigation.  Nevertheless,  this  type  of
     brief   investigative  detention   does   not
     constitute Miranda custody.  Therefore, Busby
     was  not  required  to give Miranda  warnings
     before  questioning Rockwell on  the  street,
     and    Rockwells   statements   during   this
     encounter are admissible.
     
     The questioning inside the patrol car
          After  this initial questioning, Busby  asked
Rockwell  to  get into the backseat of his patrol  car.
According  to  Busbys testimony, he made  this  request
because  it was cold outside, and because he wanted  to
get Rockwell away from traffic and away from the driver
of the other car.
          Busby  told  Rockwell that he was  not  under
arrest,  and he did not handcuff Rockwell when Rockwell
got  into the patrol car.  However, before Rockwell got
into  the  car,  Busby conducted a pat-down  search  of
Rockwells clothing.  During this pat-down, Busby felt a
lump  in  Rockwells back pocket.  The  officer  reached
into  Rockwells  pocket  and removed  the  lump   which
proved to be the keys to Rockwells car.
          Busby  recorded his questioning  of  Rockwell
inside  the  patrol  car.   Busby  questioned  Rockwell
concerning  his  identity, his car insurance,  and  how
Busby  might  contact  Joshua  Fagg,  the  person   who
Rockwell  identified as the driver of the  car.   Busby
then got out of the patrol car, leaving Rockwell in the
backseat.
          When  Busby  returned, he  informed  Rockwell
that  he  was  going to drive him to  the  Dimond  Mall
police substation because he wanted Rockwell to perform
field  sobriety  tests there.  Busby then  resumed  his
questioning  of Rockwell.  Busby asked Rockwell  if  he
had  been riding in the passenger seat of the  car  the
entire time before the accident; Rockwell answered yes.
Busby then asked Rockwell to explain how he had the car
keys in his pocket.  Rockwell answered that he was  not
sure,  but that he must have  grabbed the keys at  some
point.
          At  this  point,  Busby stepped  out  of  the
patrol car again.  When he re-entered the car, he again
asked  Rockwell how to contact Fagg, and he also  asked
if  Rockwell needed any medical assistance.  Busby then
drove Rockwell to the Dimond Mall substation.
          We  conclude that, even viewing the  evidence
in  the light most favorable to the State, Rockwell was
in  custody  for Miranda purposes from the  time  Busby
told  him  that he was going to be transported  to  the
police substation for testing.  When the police conduct
an investigative stop, they must not require the person
stopped to travel an appreciable distance.17
          Here,  Busby did not ask Rockwell to  consent
to  be  transported to the police substation.   Rather,
Busby  simply announced to Rockwell that  he  would  be
transported.  From  this  point  on,  Rockwell  was  in
custody, and he should have been advised of his Miranda
rights  before  any  further  questioning.   Thus,  any
          subsequent answers that Rockwell gave to Busby without
a Miranda warning must be suppressed.
          This  leaves  the issue of the  admissibility
of  the statements Rockwell made inside the patrol car,
before Busby announced that Rockwell would be taken  to
the substation.  Rockwell argues that he was in custody
for  Miranda  purposes from the time he  first  entered
Busbys patrol car.
          The  mere fact that Rockwell took a  seat  in
the patrol car does not establish that Rockwell was  in
custody for purposes of Miranda.  However, in Waring v.
State18  the  Alaska Supreme Court ruled  that  when  a
police  officer  instructs  as opposed  to  invites   a
person  to  sit  in  a  patrol  car,  the  officer   is
conducting a Fourth Amendment seizure.19
          In  Rockwells case, Busby testified  that  he
did  not  instruct Rockwell to sit in the  patrol  car.
Rather, Busby testified that he asked Rockwell  to  sit
in  the patrol car, and that Rockwell agreed to do  so,
or  at  least did not protest.  This testimony suggests
that Rockwell was not in custody.
          However,   just before Rockwell got into  the
patrol  car,  Busby conducted the pat-down  search  and
removed  Rockwells car keys from his pocket.  In  their
briefs  to  this court, both parties assume that  Busby
retained  these   keys   but this  is  not  immediately
apparent from the record.
          The  only  mention of the  car  keys  at  the
evidentiary  hearing was Busbys testimony that  he  had
asked Rockwell about the keys being in his pocket.   At
trial, Busby testified that when he conducted the  pat-
down  search  of Rockwell, he felt a lump in  Rockwells
back  pocket, then reached in and removed a set of keys
that  Rockwell identified as the keys to  his  vehicle.
But  Busbys  testimony  did not address  the  issue  of
whether he retained these keys after he found them.
          Rockwell  also points out that he  could  not
get  out  of the back seat of Busbys patrol car without
Busbys assistance  since the rear doors of  the car did
not  open  from the inside.  (Busby testified that  the
rear  doors  of  the  patrol car  open  only  from  the
outside.)   But  there was no testimony  that  Rockwell
knew  that he was unable to get out of the backseat  of
the patrol car unless the officer let him out.
          Given   all   of  these  circumstances,   and
depending  on  how the facts are viewed,  there  is  at
least  a  reasonable possibility that Rockwell  was  in
custody  for  Miranda purposes when he  entered  Busbys
patrol car.  Because we do not have findings on all the
pertinent  facts,  we cannot resolve  this  issue.   We
therefore direct the superior court to make findings on
this issue as required by Criminal Rule 12(d).

     The questioning at the Dimond Mall substation
          Busby  transported  Rockwell  to  the  Dimond
          Mall substation for field sobriety testing.  Upon
arriving  at the substation, Busby engaged  in  further
interrogation   of   Rockwell.    And    after    Busby
administered the field sobriety tests, he continued  to
ask  Rockwell questions about what, when, and where  he
had  been drinking, how much he had to drink,  and  who
was  with him at the time.  After this questioning, and
based  on  Rockwells performance on the field  sobriety
tests, Busby informed Rockwell that he was under arrest
for   driving  while  under  the  influence.   He  then
transported  Rockwell to a different police  substation
for breath testing.
          As  we  explained  in  the preceding  section  of  this
opinion,  Rockwell was in custody for Miranda purposes throughout
this questioning at the Dimond Mall substation.  Because Rockwell
did  not  receive  Miranda  warnings before  he  answered  Busbys
questions,  all  of  Rockwells statements in  response  to  these
questions must be suppressed.

     The advisement of Miranda rights, and the questioning at the
second    police substation
          After  Busby formally arrested Rockwell and transported
him  to  the  second police substation for breath testing,  Busby
finally  advised Rockwell of his Miranda rights.   Rockwell  then
asked  for  an  attorney.  Busby offered Rockwell  a  phone,  but
Rockwell declined to call an attorney.
          Busby  then  asked  Rockwell if he  would  answer  more
questions.  Rockwell agreed, and Busby resumed his interrogation.
          On  appeal,  Rockwell argues that  Busby  violated  his
right  to  counsel  when he continued to question  him  after  he
requested an attorney.  The State relies on Hampel v. State,20 in
which this court ruled that, after a suspect in custody refers to
his  right  to  counsel  in an ambiguous or  equivocal  way,  any
further  police  questioning must be limited  to  clarifying  the
reference.21   But  there was nothing equivocal  about  Rockwells
demand  for  an attorney.  Rockwell exclaimed that  he  wanted  a
lawyer now!
          When  a suspect in custody invokes his  right
to  counsel, the police must stop all questioning until
counsel is present, unless the defendant initiates  the
discussion.22   In  Edwards v.  Arizona,23  the  United
States  Supreme Court held that when a suspect  invokes
his  right  to  counsel,  the  police  must  cease  all
questioning  of  the  suspect  and  cannot  re-initiate
questioning  until the suspect has had the  opportunity
to consult an attorney.24  The Supreme Court stated:

     [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,
     having 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.[25]

               Rockwell  did  not initiate  a  new
     discussion with Busby after he stated that he
     wanted  an  attorney.  Instead,  Busby  asked
     Rockwell  if  he was willing to  answer  more
     questions.   After  Rockwell  agreed,   Busby
     continued  to  interrogate  Rockwell.    This
     procedure does not satisfy Edwards.  The fact
     that  Rockwell agreed to respond  to  further
     police-initiated questioning was not a  valid
     waiver  of  his right to counsel.  Therefore,
     Rockwells   ensuing   statements   must    be
     suppressed.
     
     What the superior court must do on remand
          As  we  have  explained here, the  statements
that  Rockwell  made  to  Busby  during  their  initial
encounter  on  the  street at the scene  of  the  motor
vehicle  accident  are admissible.   However,  all  the
statements  that  Rockwell made to  Busby  after  Busby
announced  that he was going to transport  Rockwell  to
the Dimond Mall substation should have been suppressed.
Some  of  these  statements must be suppressed  because
Rockwell   was  subjected  to  custodial  interrogation
without first being advised of his Miranda rights,  and
the  remainder  of  the statements must  be  suppressed
because,  after  Rockwell was advised  of  his  rights,
Busby  ignored  Rockwells invocation of  the  right  to
counsel.
          This  leaves  the issue of the  admissibility
of  the statements that Rockwell made while sitting  in
Busbys patrol car, before Busby announced that Rockwell
was  going  to be transported to the police substation.
The superior court must make findings of fact regarding
the  precise  circumstances  of  this  portion  of  the
encounter.  Based on these findings, the superior court
must then detemine whether Rockwell was in custody  for
Miranda purposes.  If Rockwell was in custody, then his
Miranda  rights  were violated, and the  statements  he
made   in  response  to  Busbys  questioning  must   be
suppressed.
          After the superior court determines which  of
Rockwells statements must be suppressed, the court must
determine which of these statements were introduced  by
the  State  at  Rockwells  trial,  and  then  determine
whether  the introduction of these statements  requires
reversal of Rockwells convictions.
          (On  this  last issue, we note that  many  of
Rockwells  statements  to  Busby  during  these  latter
          portions of the interrogation seemingly support the
defense  that Rockwell offered at trial, and  they  are
seemingly  redundant of the admissible statements  that
Rockwell  made when Busby first questioned him  on  the
street  i.e., Rockwells assertion that Joshua Fagg  had
been  driving the car, and that Fagg had fled the scene
following the accident.)

          Rockwells hearsay claims
               The State called Joshua Fagg as a witness  at
     trial.  Fagg  testified that he knew Rockwell  because,
     several years earlier, they both worked at an Anchorage
     restaurant.   Fagg  further  testified  that   he   was
     traveling  in  Ecuador  and  Peru  from  November  2003
     through March 2004.
               During  Faggs testimony, the State asked  him
     to  identify  several documents that  corroborated  his
     assertion about being out of the country:  Faggs United
     States  passport, an Andean immigration card that  Fagg
     filled out in preparation for his entry into Peru,  and
     a bus ticket that Fagg purchased in Peru.
               Fagg  pointed out that his passport contained
     dated  stamps  that  were placed  in  his  passport  by
     government officials when he entered and returned  from
     these  foreign countries.  These passport stamps showed
     that Fagg entered Ecuador on November 26, 2003, that he
     entered Peru on December 27, 2003, and that he departed
     Peru  on  March  23,  2004.  Fagg  also  identified  an
     immigration card that he prepared while on  the  flight
     from  Ecuador  to  Peru  on December  27,  2003.   Fagg
     testified  that this immigration card was  date-stamped
     by  a Peruvian government official when Fagg arrived in
     Peru.   He also identified a bus ticket that was issued
     to him on February 1, 2004, for a bus trip in Peru.
               The  superior  court admitted  all  of  these
     exhibits over Rockwells hearsay objections.
          On  appeal,  Rockwell  argues  that  the  bus
ticket  and  immigration card offered by the  State  to
show  that Fagg was out of the country on the  date  of
the  accident were irrelevant.  He points out that  the
date  on  the  bus ticket  02-01-2004  was  January  2,
2004,  and not February 1, 2004, as the parties assumed
at  trial.   (In most countries in the world, including
all  of South America, the first digits in a date refer
to  the day, not the month.)26  Rockwell argues that if
the  immigration card had a date stamp of December  27,
2003,  and  the bus ticket was dated January  2,  2004,
then  both  pieces of evidence were irrelevant  because
they do not show that Fagg was outside of Anchorage  on
January 16, 2004, the date of the accident.
          At  trial,  Rockwell did not claim  that  the
evidence was irrelevant, so he must show plain error.27
Even if there was a misunderstanding regarding the date
that  the  bus ticket was issued in Peru, the  evidence
was  still relevant.  Rockwell contended that Fagg  was
          driving on January 16, 2004, and the immigration card
and  the  bus ticket supported Faggs testimony that  he
was  out  of  the  country on January 16,  2004.   This
evidence tended to disprove Rockwells defense  and,  in
context,  tended to prove the States case that Rockwell
was driving.
          Rockwell  contends that while  passports  may
be  admissible under Evidence Rule 803(8)  (the  public
records  exception),  the  stamps  contained  in  Faggs
passport  constituted  hearsay.  Rockwell  argues  that
under United States v. Friedman,28 in order for records
to  be  admissible under the public records  exception,
they  must  be  kept by the country that  issues  them.
Because  the passport stamps are not records  that  are
kept   by   a   country,  Rockwell  argues   they   are
inadmissible.
          But  Friedman does not require that  evidence
be  kept  by the public office that issues it in  order
for  it  to  qualify  as admissible hearsay  under  the
public   records   exception.    Friedman   held   that
immigration  records that were physically kept  by  the
Chilean  government and could be made  into  a  written
summary  by  a  Chilean official qualify as  admissible
hearsay  under  Rule 803(24) of the  Federal  Rules  of
Evidence, the catch all exception.29
          The  State,  relying  on Harris  v.  State,30
contends  that  there is no requirement that  a  public
record  be  kept  by  a  government  in  order  to   be
admissible to public records exception.  In Harris, the
record  at  issue was a business record.31   The  State
argues that [t]here is no sound reason for treating the
public records differently.
          Harris  was  charged with  forging  travelers
checks.32  During his trial, Harris objected to a  bank
officers  identification  of  stamps  on  the  face  of
travelers  checks, and his testimony  that  the  stamps
were part of the normal procedure when dealing with the
checks.33   Harris  argued that the officers  testimony
was  hearsay.  We upheld the trial courts  ruling  that
the testimony was admissible as a business record under
Evidence Rule 803(6).34
          Other  cases  have  upheld the  admission  of
passports  into  evidence.  United  States  v.  Pluta35
addressed the admission of passports and their  content
as  public records.36  In Pluta, the passport  evidence
was   admitted  to  identify  the  nationality  of  the
passport holders.37  In United States v. Eltayib,38 the
court  upheld  the  admission of passport  evidence  to
prove that a person entered a country.39  The crew of a
freighter traveling from Venezuela off loaded  a  large
cocaine  shipment  eighty miles off the  coast  of  New
Jersey.40   The government introduced the passports  of
the ships crew to establish that the defendants entered
Venezuela.41   The  court concluded that  the  passport
evidence had important probative value on the issue  of
          whether the defendants had entered Venezuela.42  In
United  States v. Akbar,43 the court upheld  the  trial
courts  admission of the defendants passport  that  was
marked with a Cuban stamp as evidence that the passport
was   stamped   in   Cuba  while  in   the   defendants
possession.44
          Faggs  passport and the stamps placed in  his
passport  by  foreign  government  officials  when   he
entered  the  foreign country (as  reflected  in  Faggs
testimony) fall within the public records exception  to
the  hearsay rule, Evidence Rule 803(8).  The  passport
and  stamps  are  records that are  administered  by  a
public  office or agency.  A passport is issued by  the
government to an individual to show the citizenship and
identity of the holder.  The government officials  that
stamp passports do so on a regular basis to record  the
entry  of  travelers holding passports.  Judge  Suddock
properly rejected Rockwells hearsay objection  to  this
evidence.
          Rockwell also argues that the bus ticket  and
the  immigration card were not admissible.  We conclude
that the immigration card was admissible under Evidence
Rule  803(8).  Faggs testimony provided the  foundation
for  the  card.   He prepared the card for  entry  into
Peru, and the card was stamped by a Peruvian government
official  in the course of normal governmental  duties.
The   card   was   not  prepared  in  anticipation   of
litigation.
          We   conclude   that  the  bus   ticket   was
admissible  as  a business record under  Evidence  Rule
803(6).  Fagg testified that he purchased the ticket in
Peru  to  travel  between  two  cities.  His  testimony
provided the foundation for the admission of the ticket
because  his  testimony showed  that  he  obtained  the
ticket  after paying for it in order to travel.   Thus,
his  testimony showed that the ticket he possessed  was
issued in the course of a regularly conducted business,
and  that it reflected his payment of the bus fare  for
the scheduled travel.
          Rockwell  next argues that the  admission  of
the  passport  and the immigration stamps violated  his
right  to  confrontation under the Sixth  Amendment  as
interpreted  by  the  United States  Supreme  Court  in
Crawford  v. Washington.45  Crawford holds  that  under
the   Confrontation   Clause,  the  government   cannot
introduce   testimonial  hearsay  against  a   criminal
defendant  unless  the hearsay declarant  testifies  at
trial,  or  the  government  proves  that  the  hearsay
declarant   is  unavailable  and  that  the   defendant
previously had a fair opportunity to cross-examine  the
declarant.46  The Supreme Court gave three formulations
of  the core class of testimonial statements:  (1) [E]x
parte  in-court testimony or its functional  equivalent
...  such  as  affidavits, custodial examinations,  and
prior testimony where the defendant was unable to cross-
          examine, or similar pretrial statements that declarants
would  reasonably  expect to be used prosecutorially[];
(2)  [E]xtrajudicial statements contained in formalized
testimonial materials, such as affidavits, depositions,
prior testimony, or confessions[]; and (3) [S]tatements
that were made under circumstances which would lead  an
objective  witness  reasonably  to  believe  that   the
statement  would  be  available  for  use  at  a  later
trial[.]47
          Rockwell  argues  that,  according   to   the
holding   in   Crawford,  the   passport   stamps   and
immigration  card should not have been admitted  unless
he   had  the  opportunity  to  confront  the  Peruvian
official who stamped them.
          In  Abyo  v.  State,48 we  addressed  whether
documents  used  to  verify  the  calibration  of   the
DataMaster   breath  test  machine  were   covered   by
Crawford.49  We noted that, although the Supreme  Court
did  not explicitly define testimonial in Crawford, the
Court  stated  that  business  records  are,  by  their
nature, not testimonial.50  Even though the calibration
documents  were  admitted  under  the  public   records
exception,  not  the  business  records  exception,  we
followed substantial authority holding that calibration
documents,  whether  admitted as  business  records  or
public  records,  are not barred by  the  Confrontation
Clause.51
          The  passport stamps and immigration card  at
issue here were not made and maintained for the primary
purpose  of criminal investigations, and the government
employees   who  stamped  the  documents  performed   a
ministerial   duty  that  had  nothing   to   do   with
prosecuting a particular person for criminal  activity.
We  hold that the passport and immigration card are not
testimonial hearsay barred by Crawford.
          The  superior  court  properly  denied  the  motion  to
continue
               Finally,  Rockwell argues that  the  superior
     court  erred when it denied his motion to continue  the
     trial  based on the States disclosure of the bus ticket
     and the immigration card shortly before trial.
               When  the parties were in court on April  17,
     2006,  Rockwell had just been informed that  the  State
     had  located  Fagg  and  that  Fagg  was  available  to
     testify.   The State provided Rockwell with a  copy  of
     Faggs  passport.   The court granted Rockwells  request
     for a continuance to the week of April 24, 2006.
               The  afternoon of April 24, 2006,  the  State
     obtained  copies  of  Faggs immigration  card  and  bus
     ticket  and  immediately provided copies  to  Rockwell.
     The  trial began on April 25, 2006.  Rockwell requested
     another  continuance  so that  he  could  research  and
     investigate these materials.  He claimed that he  would
     be   prejudiced  by  the  introduction  of  the   newly
     disclosed  evidence at trial because he  did  not  have
               time to investigate the documents.  The trial court
     denied  Rockwells  request for a  continuance,  finding
     that  he  had adequate notice in advance of trial  that
     the  State intended to show that Fagg had been  out  of
     the country at the time of the accident.
               For  this  court to reverse the trial  courts
     denial   of   Rockwells  continuance,   Rockwell   must
     demonstrate  that  the  denial  embarrassed  [him]   in
     preparing  his  defense  and prejudiced  his  rights.52
     Rockwell  does  not  assert  that  the  denial  of  the
     continuance in some way embarrassed him in preparing  a
     defense  or prejudiced his rights.  He does argue  that
     the continuance should have been granted because he was
     not  able to investigate the immigration card  and  bus
     ticket.    But   he   makes  no  claim   that   further
     investigation would have yielded anything of benefit.
          At   the  time  that  Rockwell  requested   a
continuance to permit him to investigate the bus ticket
and  immigration  card,  he knew  that  Fagg  would  be
testifying that he was out of the country at  the  time
of  the  accident, and the State had provided  Rockwell
with  a  copy of Faggs passport.  Faggs passport showed
that  he  was out of the country before and  after  the
dates  of  the accident; the immigration card  and  bus
ticket  merely  corroborated  what  was  shown  by  the
passport.   Therefore, we uphold Judge Suddocks  denial
of Rockwells motion to continue.

     Conclusion
          We  reject  Rockwells attack on the  superior
courts  evidentiary  rulings  and  on  the  denial   of
Rockwells  request for a continuance.   We  remand  the
case  for  additional  findings  as  discussed  in  the
section  addressing Rockwells Miranda  claims.   Within
ninety  days,  the  superior court shall  transmit  its
findings  to this court.  When we receive the  superior
courts  findings,  we will resume our consideration  of
the case.

_______________________________
     1 AS 28.35.030(n) & AS 28.15.291(a)(1), respectively.

     2 384 U.S. 436, 86 S. Ct. 1602, 16 L .Ed. 2d 694 (1966).

3 Halberg v. State, 903 P.2d 1090, 1093 (Alaska App. 1995).

4  Tagala  v.  State, 812 P.2d 604, 608 (Alaska  App.  1991)
(citing  Berkemer v. McCarty, 468 U.S. 420, 440-43,  104  S.
Ct. 3138, 3150-52, 82 L. Ed. 2d 317 (1984)).

5 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984).

6  Id. 468 U.S. at 440, 104 S. Ct. at 3150 (citing Terry  v.
Ohio, 392 U.S. 1, 29, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889
(1968)).

7 763 P.2d 511 (Alaska App. 1988).

8 Id. 763 P.2d at 515.

9 590 P.2d 888 (Alaska 1979).

10   Id. 590 P.2d at 895.

11   Id.

     12   Id.  (footnote omitted).

13    See  Flynn v. State, 847 P.2d 1073, 1077  n.2  (Alaska
App.  1993);  Long v. State, 837 P.2d 737, 742 (Alaska  App.
1992);  Burks  v.  State, 706 P.2d 1190, 1191  (Alaska  App.
1985);  Johnson v. State, 631 P.2d 508, 513-14 (Alaska  App.
1981).

14   Hunter, 590 P.2d at 895.

15   139 P.3d 590 (Alaska App. 2006).

16   Id. at 591.

17   Howard v. State, 664 P.2d 603, 610 (Alaska App. 1983).

18   670 P.2d 357 (Alaska 1983).

19    Id. at 364 (citing 3 W. LaFave, Search and Seizure:  A
Treatise  on  the  Fourth Amendment 9.2, at  53,  54  (1978)
(footnote omitted)).

20   706 P.2d 1173 (Alaska App. 1985).

21    Id.  at  1180  (citing Giacomazzi v. State, 633  P.2d  218,  222
(Alaska 1981)).

22    Tagala v. State, 812 P.2d 604, 609 (Alaska App.  1991)
(citing Arizona v. Roberson, 486 U.S. 675, 677, 108  S.  Ct.
2093,  2096,  100 L. Ed. 2d 704 (1988); Edwards v.  Arizona,
451 U.S. 477, 484-85, 101 S. Ct. 1880, 1884-85, 68 L. Ed. 2d
378 (1981)).

23   451 U.S. 477, 101 S.Ct. 1880, 68 L. Ed. 2d 378 (1981).

24   Id. 451 U.S. at 484-85, 101 S. Ct. at 1884-85.

25   Id.

26   See the Wikipedia article, Calendar Date, found at:
http://en.wikipedia.org/wiki/Calendar_date

27    See,  e.g., Gilbert v. State, 598 P.2d 87, 92  (Alaska
1979)  (noting  that, pursuant to Rule 47(b) of  the  Alaska
Rules  of Criminal Procedure, error that was not brought  to
the  attention of the trial court will not be considered  on
appeal  unless  it  affects  a  substantive  right  and   is
obviously prejudicial).

28   593 F.2d 109 (9th Cir. 1979).

29   Id. at 118-19.

30   678 P.2d 397 (Alaska App. 1984), revd on other grounds,
Stephan v. State, 711 P.2d 1156 (Alaska 1985).

31   Id. at 406.

32   Id. at 399.

33   Id. at 406.

34   Id.

35   176 F.3d 43 (2nd Cir. 1999).

36   Id. at 50-51.

37   Id.

38   88 F.3d 157 (2nd Cir. 1996).

39   Id. at 169.

40   Id. at 161-64.

41   Id. at 169.

42   Id.

43   698 F.2d 378 (9th Cir. 1983).

44   Id. at 379.

45   541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

46   Id. 541 U.S. at 68, 124 S. Ct. at 1374.

47   Id. at 551-52, 124 S. Ct. at 1364 (citations omitted).

48   166 P.3d 55 (Alaska App. 2007).

49   Id. at 58-59.

50    Id. at 59 (citing Crawford, 541 U.S. at 56, 124 S. Ct.
at 1367).

51   Id. at 59-60 & n.13.

     52    Nielsen  v.  State, 623 P.2d 304,  307  (Alaska  1981)
(citing Klockenbrink v. State, 472 P.2d 958, 964 (Alaska 1970)).

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