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Stock v. State (8/22/2008) ap-2181

Stock v. State (8/22/2008) ap-2181

                             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


KEVIN M. STOCK, )
) Court of Appeals No. A-9732
Appellant, ) Trial Court No. 3PA-05-1156 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) No. 2181 August 22, 2008
)
Appeal    from     the
          Superior   Court,  Third  Judicial  District,
          Palmer, Eric Smith, Judge.

          Appearances: Brian T. Duffy, Assistant Public
          Advocate,   and   Joshua  P.   Fink,   Public
          Advocate,   Anchorage,  for  the   Appellant.
          Diane   L.   Wendlandt,  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.

          COATS,  Chief Judge.

          Kevin  M.  Stock was convicted, after a jury trial,  of
assault  in  the  first degree, a class A  felony.1    The  State
alleged  that  Stock invited David Lynch back to  his  apartment,
where  he beat up Lynch with a boot cast that belonged to  Lynch.
On  appeal,  Stock asserts that Superior Court Judge  Eric  Smith
          erred in admitting his statements to the police.  He contends
that  the  police violated his constitutional rights in obtaining
the statements.
          Stock  also  argues that Judge Smith erred in  allowing
Lynchs mother to testify, in response to a question submitted  by
a  juror,  about  whether  she noticed  injuries  to  Lynch  that
resulted  from the assault.  Stock argues that Lynchs mother  had
insufficient personal knowledge to answer the question  and  that
her  testimony  introduced a new theory of the case  (that  Lynch
suffered protracted impairment of his health as a result  of  the
assault).
          For the reasons explained here, we reject Stocks claims
of error.

          Factual and procedural background
          On  May  12, 2005, Palmer Police Officers Jamie Hammons
and  Kelly  J.  Turney  responded  to  a  911  call  reporting  a
disturbance  at an apartment building in Palmer.   Upon  arrival,
Officer  Hammons  placed Stock in handcuffs and  asked  him  some
questions while Officer Turney attempted to get a statement  from
Lynch,  who  was  injured.  Because Turney was unable  to  get  a
coherent statement from Lynch, he left Lynch with the medics  and
joined Hammons in questioning Stock.  Hammons told Turney that he
had   established  that  Stock  had  asked  Lynch  to  leave  his
apartment.  Stock stated that he told Lynch to leave four  times.
Turney  asked  Stock  why he had not called  the  police.   Stock
responded that he wanted to see if Lynch would leave on his  own.
At  this  point, Turney asked Hammons whether he had given  Stock
Miranda2  warnings.  When Hammons said he had  not,  Turney  read
Stock his Miranda rights.
          After  reading Stock his Miranda rights, Officer Turney
asked  Stock  whether  he understood each of  his  rights.  Stock
affirmatively  answered,  Yes, sir.   Turney  then  asked  Stock,
Having those rights in mind, do you want to answer some questions
for  me?   Stock  responded, It depends what the  questions  are.
Turney  suggested  go[ing]  one  [question]  at  a  time.   Stock
responded  by  stating, Ask me one.  From this  point  on,  Stock
chose  to  answer some questions but not others.  In refusing  to
answer  one question, Stock stated, I know my rights.  He refused
to  answer  some  questions by simply not  answering.   At  other
times, he told Turney, Ask  me another question.
          During this questioning, Stock stated that Lynch was  a
hitchhiker that he picked up and brought to his apartment.   They
consumed some alcohol.  Lynch then tried to steal some of  Stocks
things.   Stock  told Lynch to leave several times.   When  Lynch
refused  to  leave, Stock defended himself.  Turney  asked  Stock
several times what happened.  But Stock refused to answer some of
those questions, either by remaining silent or telling Turney  to
ask another question.
          Toward the end of this interview, Stock stated that  he
was tired of answering questions.

          Stock:  Im tired of answering questions.

          Officer  Turney:   Youre tired  of  answering
          questions?

          Stock:  Thats my right, right?

          Officer  Turney:  Of course it is.  So  youll
          tell  me  everything except for  how  he  got
          hurt.  Thats what I dont understand.  But  no
          one else was in the apartment but you two?

          Stock:  Yes, sir.

          Officer Turney:  So obviously ...

          Stock:  And ...

          Officer Turney:  Did he hurt himself?

          Stock:   (inaudible  reply)    [Note:    From
          listening to the tape, it is clear that Stock
          remains silent here.]

          Officer Turney:  Did he break his own arm and
          cut his own head?

          Stock:  The arm, I dont know now.

          Officer Turney:  Okay.  Then how did he   did
          he cut his own head?

          Stock:    (inaudible  reply)   [Note:    From
          listening to the tape, it is clear that Stock
          remains silent here.]

          Officer Turney:  Did he hit himself with that
          boot by himself?

          Stock:  Im tired of answering questions.

          At  this  point, Turney placed Stock under  arrest  and
transported  him  to the police station. At the  police  station,
Turney asked Stock several questions about his sobriety and asked
Stock  to  take a breath test to determine his level of sobriety.
Turney  told  Stock  that  the jail needed  to  do  the  test  to
determine  if Stock was sober enough to be placed in the  general
population of the jail.  Stock refused to take a breath test.  He
told Turney that he was not sober.
          The  critical  part  of  the interview  occurred  next.
After  booking,  Stock  was placed in a holding  cell.    He  was
interviewed  in  the holding cell about one-half hour  after  the
interview  in  which he asserted his right to silence.    Officer
Turney initiated the interview in the following manner:

          Officer Turney:  Hi, Kevin.

          Stock:  Hi.

          Officer  Turney:  Can I come in and  talk  to
          you for a minute?

          Stock:  Sure.  Have a seat.

          Officer Turney:  Okay.  Okay.  Remember  your
          Miranda rights I read you before we left  the
          apartment building?

          Stock:    (inaudible  reply)   [Note:    From
          listening to the tape, it is clear that Stock
          remains silent here.]

          Officer Turney:  Remember?  That I read  that
          I read to you, do you remember those?

          Stock:  Yeah.

          Officer Turney:  Okay.

          Stock:  So I can deny any questions that  you
          do ask me.

          Officer   Turney:    Thats   correct.     You
          understand all those still?

          Stock:  Well (indiscernable).

          Officer Turney:  Okay.  Well, Im just  asking
          if you still understand.

          Stock:  Yes.

          Officer Turney:  Okay.  Id like to ask you  a
          couple more questions if I can.  Is that okay
          with you?  And we can go question by question
          again, like you talked about.

          Stock:  And I can refuse to answer?

          Officer  Turney:   Of  course  you  can.   Of
          course you can.

          Stock:  All right.  All right.

          During   this  interview,  Stock  made  several   self-
incriminating  statements.  Stock told Turney  that,  when  Lynch
refused  to leave, he wanted to kill him, and that he wanted  him
dead.   Stock stated that he wished Lynch was fucking  dead,  the
cocksucker.
          Before   trial,  Stock  moved  to  suppress   all   his
statements.   He argued that the police had taken the  statements
in  violation of his Miranda rights.  Judge Smith granted  Stocks
motion in part.  Judge Smith suppressed the statements that Stock
made  before Stock received Miranda warnings.  He ruled that  the
later   statements  that  Stock  made  to  Officer  Turney   were
admissible up to the time when Stock affirmed that he  was  tired
of  answering  questions.   Judge Smith  suppressed  the  ensuing
statements Stock made at the apartment, as well as the statements
Stock made at the police station when Turney asked him to take  a
breath test.  But Judge Smith held that the statements Stock made
to  Turney  later  in  the holding cell were  admissible.   Stock
appeals  this  decision.  He asserts that  the  entirety  of  the
interview in the holding cell should have been suppressed.
          At  trial,  Stock also challenged the admissibility  of
the  testimony  of  Ronilee Batey, Lynchs  mother.   Over  Stocks
objection,  Judge  Smith  allowed  Batey  to  answer  a  question
submitted  by  a  juror regarding whether  she  had  noticed  any
increased  injuries from the assault.  Judge Smith  also  allowed
the  prosecutor  to  ask Batey a follow-up  question  about  what
specific   injuries  she  had  noticed.   Stock   appeals   these
decisions.

          Why  we  uphold Judge Smiths ruling admitting
          Stocks statements to the police

          On  appeal,  Stock does not challenge the  portions  of
Judge  Smiths ruling that were favorable to him:  the suppression
of  Stocks pre-Miranda warning statements, the suppression of the
portion  of  Officer Turneys first interview that occurred  after
Stock  asserted  his  right to silence, and  the  suppression  of
Stocks  statements made during booking.  Stock argues that  these
violations tainted his later confessions, and that the resolution
of  this  case  turns on an analysis under Brown v. Illinois3  or
Oregon  v.  Elstad.4            Under the Brown test,  which  was
superseded  by  Elstad under federal law, if a  suspect  made  an
unwarned confession, then any post-Miranda warning statement  was
presumptively  inadmissible.  To rebut the presumption  that  the
later statements were tainted by the suspects initial admissions,
the government needed to show that there was a break in the chain
of  events.5  But in Elstad, the United States Supreme Court held
that an initial failure of law enforcement officers to administer
Miranda  warnings,  without more, did not presumptively  taint  a
subsequent  confession obtained after the suspect had been  fully
advised  of  and  waived those rights.6  Alaska courts  have  not
ruled  which test, Elstad or Brown, applies as a matter of Alaska
constitutional law.
          Judge  Smith  found a Miranda violation and  suppressed
Stocks  initial statements.   Stock asserts that his  pre-Miranda
warning   statements   tainted  all  his   post-Miranda   warning
statements.  We think it is plausible that Officer Hammonss  pre-
Miranda  warning  questions were on-the-scene questions  and  not
custodial  interrogation.  But even if  we  accept  Judge  Smiths
ruling  that  there was a Miranda violation, nothing  that  Stock
said during this initial portion of the interview let the cat out
          of  the  bag.7  In other words, Stock did not make  any
significantly  incriminating  statements  prior  to  being  given
Miranda warnings.8  He told Hammons only that he had asked  Lynch
to  leave  his apartment, that he had asked Lynch to  leave  four
times, and that he did not call the police to get Lynch to  leave
the  apartment because he wanted to see if Lynch would  leave  on
his  own.   Even under Brown, we think Officer Turneys subsequent
full  advisement of Miranda warnings was sufficient to  dissipate
any taint from these pre-Miranda warning statements.9
          But  the  crux  of Stocks argument is not  resolved  by
either  Brown  or Elstad.  Stock argues that Turneys  failure  to
respect  Stocks  invocation of his right to silence  tainted  not
only  the  remainder  of  the initial  interview,  but  also  the
subsequent interview in the holding cell.
          The  parties  do  not  contest  that,  prior  to  these
statements in the holding cell, Stock had exercised his right  to
silence  by asserting that he was tired of answering questions.10
In  Elstad,  the  Supreme Court made clear that cases  concerning
suspects whose invocation of their rights to remain silent and to
have  counsel present were flatly ignored while police  subjected
them  to continued interrogation are inapposite to the discussion
in  Elstad.11  The pertinent analysis is whether Stocks right  to
cut  off  questioning was scrupulously honored,  as  required  by
Michigan v. Mosley.12
          Under  Miranda, once a person in custody  indicates  in
any  manner, at any time prior to or during questioning, that  he
wishes  to  remain  silent, the interrogation must  cease.13   As
recognized  in  Mosley,  this passage  could  be  interpreted  to
prohibit  all  subsequent custodial interrogation by  any  police
officer,  at  any time or place, on any subject.  Or the  passage
could  require merely the immediate cessation of questioning  and
allow  resumption after a momentary respite.14  In order to avoid
the  absurd and unintended results from either of these  possible
interpretations,   the   Mosley   Court   concluded   that    the
admissibility  of statements obtained after a person  in  custody
asserts  the right to remain silent depends on whether the  right
to cut off questioning was scrupulously honored.15  In Mosley, the
Supreme Court stated:

          The critical safeguard ... is a persons right
          to cut off questioning.  Through the exercise
          of his option to terminate questioning he can
          control the time at which questioning occurs,
          the  subjects discussed, and the duration  of
          the  interrogation.  The requirement that law
          enforcement   authorities  must   respect   a
          persons  exercise of that option  counteracts
          the   coercive  pressures  of  the  custodial
          setting.   We  therefore  conclude  that  the
          admissibility  of statements  obtained  after
          the  person in custody has decided to  remain
          silent depends under [Miranda] on whether his
          right to cut off questioning was scrupulously
          honored.[16]
          In   the   Mosley  opinion,  the  Court  reviewed   the
circumstances  leading to Mosleys confession and determined  that
his  right  to cut off questioning was fully respected.17   After
being fully advised of his rights, Mosley stated that he did  not
wish  to discuss the robbery offense for which he was being held,
and  the  interrogation promptly stopped.18  More than two  hours
later,  a  different  officer carefully  advised  Mosley  of  his
Miranda  rights, obtained a waiver, and questioned Mosley  on  an
unrelated homicide.19  The police, in summary, immediately ceased
the interrogation, resumed questioning only after the passage  of
a  significant period of time and the provision of a fresh set of
warnings, and restricted the second interrogation to a crime that
had not been a subject of the earlier interrogation.20  The Court
held  that  the  statements made during the second  interrogation
were admissible and did not violate the principles of Miranda.21
          Whether   Stocks  right  to  silence  was  scrupulously
honored turns on our application of Mosley to Stocks case.  Stock
exercised  his right to silence at the end of the first interview
with  Officer Turney by asserting that he was tired of  answering
questions.   Turney did not stop the first interview until  Stock
had  asserted  twice  that he was tired of  answering  questions.
About  one-half hour later, Turney re-initiated an  interrogation
on  the  same  subject  matter as the first interrogation   after
reminding  Stock  of his Miranda rights, but not fully  repeating
them.
          Some  courts  have  interpreted  Mosley  literally  and
strictly.    For  example,  the Tenth Circuit  has  stated  that,
[O]fficers can reinitiate questioning only if:  (1) at  the  time
the defendant invoked his right to remain silent, the questioning
ceased;  (2)  a  substantial interval passed  before  the  second
interrogation; (3) the defendant was given a fresh set of Miranda
warnings;  [and] (4) the subject of the second interrogation  was
unrelated to the first.22   Under this test, Stocks statements in
the holding cell would be suppressed.
          However,  the  Tenth  Circuit  has  acknowledged   that
reasonable  judges could conclude that Mosley  does  not  require
such   a   broad  restriction  on  the  resumption  of  custodial
interviews.   In  an  unpublished  decision,  the  Tenth  Circuit
          concluded that the Kansas Supreme Courts more  flexible
interpretation of Mosley was not unreasonable.23
          Most courts have not interpreted Mosley as dictating  a
list of requisites, but instead as providing guidance for a case-
by-case  inquiry into all the relevant facts to determine whether
the suspects rights have been respected.24  As the Fourth Circuit
stated, Mosley does not prescribe a bright-line test to determine
whether  a suspects right to cut off questioning was scrupulously
honored.   Instead, the touchstone is whether  a  review  of  the
circumstances leading up to the suspects confession reveals  that
his right to cut off questioning was fully respected.25
           Some  courts have determined that before  an  accuseds
previously asserted right to remain silent may be deemed to  have
been  scrupulously honored, law enforcement officers must,  at  a
minimum,  re-administer Miranda warnings.  For example, in  State
v. Hartley,26 Hartley was arrested and stated, after being advised
of  his Miranda rights, I dont believe I want to make a statement
at  this  time.27  The authorities asked Hartley no questions  at
that time.  More than one hour later, the same agent told Hartley
that  he wanted him to reconsider and now is the time if you  are
going  to make a statement.28  Subsequently, Hartley gave a  full
confession.29  The New Jersey Supreme Court held that an assertion
of the right to silence can be scrupulously honored only if, at a
minimum, the suspect is given fresh Miranda warnings.30   Because
the agent re-interviewed Hartley without re-administering Miranda
warnings, the court concluded that the right to remain silent was
not  honored and that Hartleys statement must therefore be deemed
to have been unconstitutionally compelled.31  The New Jersey court
declared   that   administering   fresh   Miranda   warnings   is
indispensable   to   a   permissible  resumption   of   custodial
interrogation of a previously-warned suspect.32
          Similarly, the Ninth Circuit in United States v. Hsu,33
found  that  re-administration of Miranda warnings was  the  most
important Mosley factor.  In Hsu, a DEA agent arrested Hsu,  read
him  his  Miranda  rights,  and obtained  a  waiver.   But  after
answering  a few questions, Hsu asked if he could remain  silent.
The agent promptly stopped the interview.34  Subsequently, another
agent  placed Hsu in her car, drove him to a co-defendants house,
and  conducted a search of that house.  After the search, another
agent, who did not know that Hsu had previously invoked his right
to  remain silent, advised Hsu of his Miranda rights, obtained  a
waiver,  and  interrogated Hsu  obtaining  a  confession.35   The
parties agreed that the amount of time between the interviews was
at  most  thirty minutes.36  On appeal, Hsu argued that,  because
such  a short period of time elapsed between the first and second
interviews  and  because the agent questioned  him  on  the  same
subject  matter,  the  second interrogation  violated  the  Fifth
Amendment.37   The Ninth Circuit concluded that while  the  short
passage  of  time might ordinarily incline us toward a conclusion
that [the] right to cut off questioning was not respected,38 they
rejected  a  bright-line rule barring any questioning that  takes
place  within an hour of an invocation of Miranda rights.39   The
Ninth  Circuit  emphasized  that the most  important  factor   or
perhaps  even [t]he crucial factor  was the provision of a  fresh
          set of Miranda warnings.40  The court determined that the fresh
warnings  and  a  valid waiver, in addition  to  the  deferential
conduct of the agents involved, militat[ed] toward a finding that
Hsus right to cut off questioning was scrupulously honored.41
          But  other  courts  view the question  of  whether  the
suspect  was re-advised of his Miranda rights as just one  factor
to   consider  when  determining  if  the  suspects  rights  were
scrupulously  honored.  In State v. Murphy,42 the North  Carolina
Supreme  Court considered a case in which a defendant waived  his
Miranda rights and talked with police agents regarding the events
that  led  to termination from his job.  When the agents informed
Murphy  that  he was going to be charged with the murder  of  his
previous  co-worker, Murphy twice denied knowing  anything  about
the  homicide and eventually stated, I got nothing to say.43  The
agents immediately ceased the interrogation, charged Murphy  with
the  murder, and turned him over to another agent for  booking.44
Within   fifteen  minutes  of  the  conclusion   of   the   first
interrogation,  the booking agent initiated a  conversation  with
Murphy,  without  re-administering Miranda rights,  in  which  he
encouraged  Murphy to tell the truth so that the bad  feeling  in
his  stomach would go away.45  Murphy responded,Man, you know the
position  Im in, I cant tell you about it.46  The North  Carolina
Supreme  Court  emphasized  that  the  question  of  whether  the
defendant  had  been re-advised of Miranda rights  was  just  one
factor to consider when determining if the defendants rights were
scrupulously honored.47  But the court reversed Murphys conviction
because  the  police  resumed  the interrogation  within  fifteen
minutes  of  the time Murphy invoked his right to remain  silent,
the  second interrogation involved the same subject matter as the
earlier  interrogation, and the defendant was not  re-advised  of
his Miranda rights.48
          In  Weeks  v. Angelone,49 the Fourth Circuit  concluded
that  the  Supreme Court of Virginia had reasonably  applied  the
Mosley test when the Virginia court concluded that the police had
scrupulously  honored a defendants right to  remain  silent  even
though  the officer asked Weeks only if he remembered his  rights
prior  to the second interrogation, and Weeks responded  that  he
did.   At 7:40 a.m., Weeks was read his Miranda rights, and after
he   invoked   his  right  to  remain  silent,  the   questioning
immediately  ceased.50 At 6:00 p.m., Weeks  was  brought  to  the
lounge  of  the prosecutors office and interviewed again  by  the
same officer.  The officer asked Weeks whether he remembered  the
rights  he  had been read earlier in the day, and Weeks  answered
affirmatively.   The  officer  then proceeded  to  summarize  the
evidence against Weeks and explained to Weeks that this  was  his
opportunity  to provide his explanation of what happened  at  the
shooting.  Weeks then confessed.51  On appeal, Weeks argued  that
three  of  the  Mosley factors had been violated:  a  significant
amount  of  time  had not passed between interrogations,  no  new
Miranda   warnings  were  given,  and  the  second  interrogation
concerned  the  same  crime that was the  subject  of  the  first
interrogation.52           In  addressing  Weeks  challenge,  the
Fourth Circuit noted that whether the police waited a significant
period  of  time  does not require a durational minimum   instead
          courts look to what degree the police persist[ed] in repeated
efforts  to  wear  down [the suspects] resistance  and  make  him
change his mind.53  The court found it reasonable for the Supreme
Court  of  Virginia  to conclude that more  than  ten  hours  was
sufficient in this case.54  With regard to the fact that Weeks had
not  received a fresh set of Miranda warnings prior to the second
interview, the court noted that, The fact that incomplete Miranda
warnings,  or no warnings at all, are given prior to  the  second
interrogation is not decisive.55  The court found this  principle
particularly  apt in this situation, where Weeks  apparently  was
aware of his Miranda rights and voluntarily chose not to exercise
them.56  The fact that Weeks chose to speak with the same officer
to  whom  he  had  previously  asserted  his  right  to  cut  off
questioning  was  evidence that Weeks was comfortable  exercising
his  rights   an  indication that his decision  to  talk  to  the
officer was a product of volition rather than coercion.57  Lastly,
with regard to whether the second interrogation concerned a crime
that  was  the  subject  of  the first interrogation,  the  court
concluded  that  when other factors indicate  that  a  defendants
right   to   cut   off  questioning  was  scrupulously   honored,
questioning  about the same crime does not necessarily  render  a
confession     derived    from    the    second     interrogation
unconstitutionally invalid under Mosley.58  Overall,  looking  at
the  totality of the circumstances, the Fourth Circuit  found  it
reasonable for the Supreme Court of Virginia to conclude that the
police scrupulously honored Weekss right to cut off questioning.59
          Having considered all of the foregoing authorities,  we
find ourselves in agreement with those jurisdictions that do  not
view Mosley as creating a set of hard-and-fast requirements.   We
conclude that the Mosley decision points to the factors that must
be  considered when assessing whether a suspects right to cut off
questioning was scrupulously honored.  Each of these factors must
be  considered, but no single factor is determinative, either  in
its presence or its absence.
          Under  this interpretation of Mosley, there are several
problematic  aspects  of Officer Turneys renewed  interview  with
Stock  in the holding cell.  Turney was the same officer who  had
interviewed  Stock  the first time.  This second  interview  took
place  about one-half hour after the first interview.   Moreover,
the  second interview focused on the same subject matter  as  the
first  and it is clear that Turney was attempting to get Stock to
answer the type of question that Stock had previously refused  to
answer:   questions dealing with how Lynch had come to be injured
at  Stocks  apartment.  And finally, Turney did not re-administer
full  Miranda warnings to Stock; rather, he simply reminded Stock
of the earlier advisement of rights.
          On  the  other  hand, several aspects of the  situation
support  the superior courts ruling.  When Turney came to  Stocks
holding cell, he asked Stock for permission to enter, and  Stocks
immediate  response was, Sure.  Have a seat.  Even though  Turney
did  not  repeat  the full set of Miranda warnings,  when  Turney
asked  Stock  whether  he remembered his Miranda  rights,  Stocks
response  showed  that he did recall his right to  remain  silent
Stock  immediately  asserted (and Turney agreed)  that  he  could
          refuse to answer any questions.  Turney then proposed that the
holding  cell interview proceed in the same manner as the earlier
interview:  with Stock having the right to decide, on a question-
by-question  basis,  whether he would answer  Turneys  inquiries.
Stock replied, All right.  All right.
          Weighing all of these factors, we conclude that  Turney
satisfied  Mosleys mandate of scrupulously honoring Stocks  right
to  cut  off  questioning.  Accordingly, we affirm  the  superior
courts  decision to allow the State to introduce  the  statements
Stock made during the holding cell interview.
          Stock   also  argues  that  his  statements  were   not
voluntary.  But Stock never obtained a ruling from Judge Smith on
this issue.  He therefore did not preserve this issue for appeal.60
We  find  no  plain error.   The record shows that  Stock  was  a
relatively  sophisticated  defendant  who  knew  his  rights  and
exercised them.

          Why  we  conclude that Judge  Smith  did  not
          abuse   his   discretion  in  admitting   the
          testimony of Lynchs mother

          We  next address Stocks claim that Judge Smith erred by
admitting the testimony of Ronilee Batey, the victims mother.
          By  the time of Stocks trial, David Lynch had died from
causes unrelated to the injuries he received from Stocks assault.
The  State  called  Lynchs mother, Batey, as  a  witness.   Batey
explained how, prior to the assault in this case, Lynch broke his
ankle  when he slipped in her driveway.   He had surgery  on  the
ankle  and was using a cane and wearing a hard plastic boot  cast
to protect the ankle.
          Judge  Smith  had  established  a  procedure  where  he
allowed  jurors  to submit proposed questions  for  witnesses.  A
juror  submitted a proposed question for the court to ask  Batey:
Did you notice increased injuries from the assault?
          In a bench conference, Stocks attorney objected to this
question.    She  asserted  that  Lynch  led  a  very   unhealthy
lifestyle.   She argued that Bateys answer to this question would
not  have  any  foundation and would open up Lynchs lifestyle  of
alcohol  abuse.   But  Judge  Smith  allowed  the  question.   In
response  to the question whether she noticed increased  injuries
from  the assault, Batey simply answered Yes.  Judge Smith  asked
whether  Lynch was on any pain medication.  Batey again  answered
Yes.  When Judge Smith asked how strong the medication was, Batey
responded that she thought he was taking codeine.
          At this point, the prosecutor asked Batey what specific
injuries from the assault she had noticed.  Stocks attorney again
objected.   But  Judge  Smith overruled the objection,  directing
Batey to restrict her answer to what she personally knew, and not
to  testify  about what Lynch or the doctor had told her.   Batey
testified  that there was a definite change in [Lynch] after  the
assault.   She  stated that he had gone to the  hospital  several
times, was in the hospital four days, and the doctors had run all
kinds  of  tests.  She said that the tests were inconclusive  but
that  they were based upon head injuries.  She stated that  Lynch
          would sit at home, cry, and just kind of space out.
          Stocks attorney again objected.  Although she initially
asked  for a mistrial, she ultimately asked for either a mistrial
or  the opportunity to cross-examine Batey about Lynchs lifestyle
to  provide  an  alternative  explanation  for  his  post-assault
behavior.    She  also  asked  for discovery  of  Lynchs  medical
records.   Judge  Smith allowed Stocks attorney to  cross-examine
Batey about the limits of Bateys knowledge of Lynchs injuries and
her  knowledge of his severe alcoholism as an explanation for his
post-assault symptoms.  Judge Smith told Stocks attorney that she
could  subpoena the hospital records and that he would allow  her
to  further develop explanations for Lynchs post-assault behavior
based on those records.
          On   appeal,   Stock   argues  that  Bateys   testimony
introduced an entirely new theory of assault in the first degree.
One  of the elements that the State had to prove to convict Stock
of  assault  in  the first degree was that Stock  caused  serious
physical injury to Lynch.  By statute, there are two ways to show
serious physical injury.  First, the State could show that  Stock
caused  physical  injury  to  Lynch by  an  act  performed  under
circumstances  that  create[d]  a substantial  risk  of  death.61
Second,  the  State could show that Stock had inflicted  physical
injury to Lynch that caused serious and protracted impairment  of
health.62  Stock argues that the State had only asserted the first
theory of serious physical injury  physical injury caused  by  an
act  performed  under circumstances that create[d] a  substantial
risk  of  death.  Stock argues that Bateys testimony  interjected
the  second theory of serious physical injury into the case  that
Lynch  suffered protracted impairment of [his] health.  He argues
that he was prejudiced.
          But  Stock never objected to Bateys testimony  on  this
ground.   And  he  never objected to the jury  instructions  that
allowed  the jurors to consider both theories of serious physical
injury.  He therefore did not preserve this issue for appeal, and
we do not find plain error.
          There  remains Stocks objection that Judge Smith abused
his  discretion in allowing Batey to testify about  Lynchs  post-
assault  injuries.  But, as we have previously set out, the  only
remedy  Stocks attorney ultimately asked for was to cross-examine
Batey  about  Lynchs unhealthy lifestyle to provide an  alternate
explanation  for his post-assault symptoms.  Judge Smith  allowed
this  cross-examination and left open the possibility that  Stock
could  present other evidence if Lynchs medical records supported
additional  cross-examination.  Stock never asked for  additional
cross-examination.  We accordingly conclude that  Stock  did  not
preserve this issue for appeal.  We do not find plain error.   It
appears  that  Stock  may well have had  a  tactical  reason  for
bringing out Lynchs unhealthy lifestyle and alcoholism to suggest
alternative explanations for how he was injured and the extent of
his injuries.
          Conclusion
          We  conclude that Judge Smith did not err  in  allowing
the  State  to  introduce Stocks statements into  evidence.   The
State  did  not  violate Stocks Miranda rights in  obtaining  the
          statements.  We also conclude that Judge Smith did not commit
plain  error in allowing Lynchs mother to testify about her  sons
post-assault behavior.
          The judgment of the superior court is AFFIRMED.

_______________________________
     1 AS 11.41.200(a)(1), (b).

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

     3 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975).

     4 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985).

     5 Brown, 422 U.S. at 603-04, 95 S. Ct. at 2261-62.

     6 Elstad, 470 U.S. at 300, 105 S. Ct. at 1288.

     7 Halberg v. State, 903 P.2d 1090, 1099 (Alaska App. 1995).

     8 See id.

     9 See id. at 1093.

     10 See Munson v. State, 123 P.3d 1042, 1046-49 (Alaska 2005)
(holding  that a suspects statement, Well, Im done  talkin  then,
was an unequivocal invocation of his right to silence).

     11 Elstad, 470 U.S. at 314 n.3, 105 S. Ct. at 1296 n.3.

     12  423  U.S. 96, 104, 96 S. Ct. 321, 326, 46 L. Ed. 2d  313
(1975).

     13 Miranda, 384 U.S. at 473-74, 86 S. Ct. at 1627.

     14 Mosely, 423 U.S. at 101-02, 96 S. Ct. at 325-26.

     15 Id. at 102-04, 96 S. Ct. at 326.

     16  Id.  at  103-04,  96 S. Ct. at 326  (internal  citations
omitted).

     17 Id. at 104, 96 S. Ct. at 326-27.

     18 Id. at 104, 96 S. Ct. at 327.

     19 Id. at 97-98, 96 S. Ct. at 323-24.

     20 Id. at 106, 96 S. Ct. at 327.

     21 Id. at 107, 96 S. Ct. at 328.

     22 United States v. Rambo, 365 F.3d 906, 911 (10th Cir. 2004)
(quoting United States v. Glover, 104 F.3d 1570, 1580 (10th  Cir.
1997)).   Accord United States v. Alexander, 447 F.3d 1290,  1294
(10th Cir. 2006).

     23  Robinson  v.  Attorney General of State  of  Kansas,  28
Fed.Appx. 849, 853,  2001 WL 1515841 at *3-4 (10th Cir. Nov.  29,
2001).

     24  See, e.g., Weeks v. Angelone, 176 F.3d 249, 267-68  (4th
Cir.  1999);  Kelly  v. Lynaugh, 862 F.2d 1126,  1130  (5th  Cir.
1988); State v. Murphy, 467 S.E.2d 428, 435 (N.C. 1996).

     25  Angelone, 176 F.3d at 268 (quoting Mosley, 423  U.S.  at
104, 96 S. Ct. at 326-27) (other citations and internal quotation
marks omitted).  Accord Dewey v. State, 169 P.3d 1149, 1154 (Nev.
2007)  (holding  that  the  Mosley  factors  are  not  inflexible
constraints but instead are relevant factors to be considered  in
determining  if  the police scrupulously honored  the  defendants
right  to  remain silent (citing United States v. Hsu,  852  F.2d
407, 410 (9th Cir. 1988))).

     26 511 A.2d 80 (N.J. 1986).

     27 Id. at 83.

     28 Id.

     29 Id.

     30 Id. at 84.

     31 Id. at 85.

     32 Id. at 88.

     33 852 F.2d 407 (9th Cir. 1988).

     34 Id. at 409.

     35 Id.

     36 Id. at 411.

     37 Id. at 409.

     38 Id. at 412.

     39 Id. at 411.

     40  Id. (quoting United States v. Heldt, 745 F.2d 1275, 1278
n.5 (9th Cir. 1984)).

     41 Id.

     42 467 S.E.2d 428 (N.C. 1996).

     43 Id. at 433.

     44 Id.

     45 Id.

     46 Id.

     47 Id. at 435.

     48 Id.

     49 176 F.3d 249 (4th Cir. 1999).

     50 Id. at 267.

     51 Id.

     52 Id. at 267-68.

     53  Id. at 268 (alteration in original) (quoting Mosley, 423
U.S. at 105-06, 96 S. Ct. at 327).

     54 Id.

     55 Id. (citations omitted).

     56 Id. at 269.

     57 Id.

     58 Id. (citations omitted).

     59 Id.

     60  See,  e.g., Marino v. State, 934 P.2d 1321, 1327 (Alaska
App.  1997)  (finding that a defendant cannot raise an  issue  on
appeal  if he chose to proceed at trial without seeking a  ruling
on  the  merits of his motion on that issue); Erickson v.  State,
824  P.2d  725,  733 (Alaska App. 1991) ([I]n order  to  properly
preserve this issue for appeal, it was [the defendants]  duty  to
insist that the trial court rule on his motion.).

     61 AS 11.41.200(a)(1) and AS 11.81.900(b)(56)(A).

     62 AS 11.41.200(a)(1) and AS 11.81.900(b)(56)(B).

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