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State v. Waterman (12/5/2008) ap-2198

State v. Waterman (12/5/2008) ap-2198

                             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


STATE OF ALASKA, )
) Court of Appeals No. A-9634
Appellant, ) Trial Court No. 1KE-04-1312 CR
)
v. ) O P I N I O N
)
RACHELLE WATERMAN, )
)
Appellee. ) No. 2198 December 5, 2008
)
          Appeal  from the Superior Court,  First  Judi
          cial   District,   Ketchikan,   Patricia   A.
          Collins, Judge.

          Appearances:   Diane L. Wendlandt,  Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Talis  J. Colberg, Attorney General,  Juneau,
          for   the   Appellant.   Beth  G.L.  Trimmer,
          Assistant  Public Advocate, and Joshua  Fink,
          Public  Advocate, Office of Public  Advocacy,
          Anchorage, for Appellee.

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

          COATS,  Chief Judge.
          MANNHEIMER, Judge, concurring.

          On November 14, 2004, near Craig, Alaska, hunters found
the body of Lauri Waterman.  Carl (Doc) Waterman, Lauris husband,
and her sixteen-year-old daughter, Rachelle, were out of town for
several  days,  returning  home to  Craig  on  the  afternoon  of
November  14, 2004.  Doc Waterman soon contacted the  police  and
told  them  that  both Lauri and her minivan were  missing.   The
police  interviewed both Doc and Rachelle Waterman on the evening
of November 15, 2004.
          The  police investigation began to focus on  two  young
men  who  were  friends of Rachelle Waterman:  Jason  Arrant  and
Brian  Radel.   On  the evening of November  17,  2004,  Troopers
Robert  Claus and Robert McPherron interviewed Rachelle Waterman.
The troopers met Waterman and her father at their home.  Waterman
agreed  to  talk with the troopers at the police station.   After
they  reached the station, Waterman was informed of her right  to
have  her  father  present.   She declined.   The  troopers  told
Waterman that she did not have to talk with them and that she was
free  to  leave  at  any  time.  During this  interview,  Trooper
McPherron  told Waterman that he suspected that Arrant and  Radel
were  involved in her mothers death and that Waterman might  have
unintentionally  motivated  them to kill  her  mother.   Waterman
denied   saying  anything  that  Arrant  or  Radel   might   have
misconstrued as a request to kill her mother.  But she did  claim
that  her  mother had physically abused her, and she acknowledged
that  she  had  told Arrant and Radel about the abuse.   Waterman
also stated that she may have told Arrant that she and her father
were going to be out of town.
          On  November  18, 2004, Arrant told the  troopers  that
Radel  had  killed  Lauri  Waterman.  Arrant  agreed  to  wear  a
recording  device  and talk with Radel.  When  Arrant  talked  to
Radel, Radel implicated himself in the murder.
          Several  hours  later, the troopers interviewed  Radel,
who  confessed to the murder.  The troopers arrested Radel.  They
arrested  Arrant  the next day.  In interviews  on  November  19,
2004,  Arrant  admitted his participation in  Lauris  murder  and
stated  that Rachelle Waterman was also involved.  Arrant  stated
that  Waterman  had  told  him  she  wanted  her  [mother]  dead.
According  to Arrant, Waterman told him when she and  her  father
would be out of town and that this would be a good opportunity to
kill her mother.
          After   the   troopers  interviewed   Arrant,   Trooper
McPherron  and  Craig  Police  Sergeant  Mark  Habib  interviewed
Waterman  the  same day, November 19.  They met Waterman  at  her
home.   Waterman  agreed to go with the officers  to  the  police
station, where the officers read Waterman her Miranda rights  and
again  informed  her  of her right to have  her  father  present.
Waterman  waived  her  rights and declined  to  have  her  father
present.
          Trooper   McPherron   confronted  Waterman   with   the
information that both Arrant and Radel had implicated her in  the
murder.  Waterman admitted that at one time she had mentioned  to
Arrant  and Radel something about killing her mother, but  stated
that  she was not serious and had told them that she did not want
it  done.  She admitted telling them when she and her father were
going to be gone, but she claimed that this information had  just
come  up  in casual conversation.  She admitted that she  had  an
idea  that  Arrant and Radel might try to kill  her  mother  that
weekend  but insisted that she had told them not to do  it.   She
claimed  that  she telephoned them when she was in Anchorage  and
told them not to do it.  Waterman called Arrant when she returned
on  Sunday,  and he told her that the murder was done.   Waterman
said she was horrified.
          Under   continued   questioning,  Waterman   ultimately
conceded  that  she was pretty sure that Arrant  and  Radel  were
going to kill her mother while she was away for the weekend.  She
admitted that, even though she had a telephone conversation  with
Arrant  that  weekend, she had not told him that she had  changed
her mind about the murder.
          The  State indicted Waterman on several felony  counts,
including  first-  and  second-degree murder  and  conspiracy  to
commit  murder.   Waterman  moved to  suppress  her  November  19
statement  on  the  ground  that the statement  was  involuntary.
Waterman also moved to dismiss the indictment based upon a  claim
that  the  allegedly involuntary statement had been presented  to
the  grand jury.  Superior Court Judge Patricia A. Collins  ruled
that  Watermans November 19 statement was voluntary.  She  denied
both motions.
          Following a three-week jury trial, the jury was  unable
to reach a verdict.  Judge Collins declared a mistrial.  Waterman
filed a motion for judgment of acquittal, arguing that there  was
insufficient  evidence  to  show that she  intended  her  mothers
death.    Judge  Collins  denied  the  motion  for  judgment   of
acquittal,  but  without notice to the parties,  she  sua  sponte
reconsidered her ruling on Watermans claim that her  November  19
statement was involuntary.  Judge Collins reevaluated her  ruling
in  light of the trial testimony and concluded that the State had
not  proven  that Watermans November 19 statement was  voluntary.
Judge  Collins suppressed the November 19 statement and concluded
that,  because that interview was the centerpiece  of  the  grand
jury  case  against  ...  Waterman ...  the  indictment  must  be
dismissed.  The State appeals.

          Why  we  conclude that the State has  a  right  to
          appeal   Judge   Collinss  order  dismissing   the
          indictment
          
          Waterman contends that the State has no right to appeal
Judge Collinss dismissal of the indictment because Judge Collinss
decision  is not a final order for purposes of appeal.   Waterman
is correct that Judge Collinss dismissal of the indictment is not
a final order  the judge did not bar the State from seeking a new
indictment.   Nevertheless, we conclude that the  State  has  the
right  to  pursue  an  interlocutory  appeal  of  Judge  Collinss
decision.
          Alaska law formerly gave the State a very limited right
of  appeal:  The State could appeal only (1) the dismissal of  an
indictment or (2) a criminal sentence on the ground that  it  was
overly  lenient.1   But, as construed in State v.  Shelton,2  the
States right to appeal the dismissal of an indictment was a right
of  interlocutory appeal.3  In other words, the States  right  to
          appeal did not hinge on whether the State was barred from seeking
re-indictment.
          In  State  v. Michel,4 this court found that former  AS
22.07.020(d)(2) allowed the State to appeal any final decision in
a  criminal case, subject only to the restraint of the  guarantee
against double jeopardy if it were successful.5  But three  years
later, in Kott v. State,6 the Alaska Supreme Court rejected  this
interpretation of the statute.  The supreme court held  that  the
States  power  to appeal trial court decisions in criminal  cases
was  limited  to the appeals listed in the statute:   appeals  of
orders  testing the sufficiency of an indictment and  appeals  of
criminal sentences on the ground that they were too lenient.7
          As  we  explained  in  State  v.  Walker,8  the  Alaska
Legislature responded to the supreme courts decision in  Kott  by
amending AS 22.07.020(d)(2) to provide the State with a right  of
appeal  in  all  actions and proceedings  within  [the  Court  of
Appealss]  jurisdiction except that ...  the  [S]tates  right  of
appeal  in criminal cases is limited by the prohibitions  against
double  jeopardy contained in the United States Constitution  and
the Alaska Constitution.9
          In  Walker,  we  held that this new statute  implicitly
incorporated the rule that an order is not appealable  unless  it
is  final.10   However, Walker did not require us to examine  how
the  new statute affected the States pre-existing right to pursue
interlocutory appeals of non-final orders dismissing indictments.
          Based  on  the legislative history of the  statute,  we
conclude that the legislature did not wish to abrogate this  pre-
existing right.
          As  we  noted  in  Walker, the legislative  proceedings
leading   to   the   enactment  of   the   current   version   of
AS  22.07.020(d)(2) demonstrate an intent to  expand  the  States
right  of  appeal in criminal cases.11  In particular,  Assistant
Attorney  General Gayle Horetski told the legislature about  this
courts  decision  in  Michel and the supreme  courts  superseding
decision  in  Kott.12   The  intent of  the  proposed  amendment,
Assistant  Attorney General Horetski explained, was to alter  the
result  of the supreme courts decision and return the law to  its
former interpretation under Michel.13
          Based  on  this  legislative history, we  concluded  in
Walker  that  the  legislature intended to reestablish  the  rule
announced  by this court in Michel.14  And the holding in  Michel
was  that  the State could appeal the dismissal of an  indictment
for  any  reason  unless retrial would be barred  by  the  Double
Jeopardy  Clause.15  Although Michel refers to a  final  judgment
...  dismissing an indictment, this is because the order at issue
in  Michel was actually a final judgment  an order dismissing  an
indictment  and  barring  any  further  proceedings  against  the
defendant.16   Nothing in Michel suggests that this court  wished
to,  or  had  the  authority to, deprive the State  of  its  pre-
existing  right  to  pursue interlocutory  appeals  of  non-final
dismissals of an indictment.
          Accordingly,  even  though the current  version  of  AS
22.07.020(d)(2)  does not contain a clause expressly  authorizing
the  State  to  pursue  this  type of  interlocutory  appeal,  we
          conclude that the legislature did not intend to deprive the State
of this pre-existing appellate right and that this right survives
the amendment of the statute.

          Voluntariness of self-incriminating statements
          Before  the  State  can introduce  a  defendants  self-
incriminating  statement, the State must show by a  preponderance
of evidence that the statement was voluntary.17  The State has  a
particularly  heavy  burden  of  proof  when  the  accused  is  a
juvenile.18  In determining whether a statement is voluntary,  we
focus  on whether the conduct of law enforcement was such  as  to
overbear  [the  defendants]  will  to  resist  and  bring   about
confessions not freely self-determined.19
          We   review  the  trial  courts  determination  of  the
voluntariness  of a confession as a mixed question  of  fact  and
law.20  The trial court engages in a three-part test to determine
if  a  defendants statement is voluntary:  First, the trial judge
must  find  the external, phenomenological facts surrounding  the
confession.   Second, from these external facts, the  judge  must
infer  an internal, psychological fact:  the mental state of  the
accused.   Finally, the judge must assess the legal  significance
of this inferred mental state.21
          On  appeal, we review the trial judges findings of fact
and   her   determination   of  the  credibility   of   witnesses
deferentially  we will reverse only if we find the  trial  judges
decision  was  clearly erroneous.22  In determining the  accuseds
mental  state and its legal significance, however, we conduct  an
independent  examination  of  the  entire  record  and  base  our
conclusion  upon  the totality of circumstances  surrounding  the
confession.23
          In Beavers v. State, the Alaska Supreme Court held that
when  the  police use threats of harsher punishment to  induce  a
confession   the  resulting  confession  should   be   considered
involuntary  unless  the  state can show affirmatively  that  the
confession  was voluntarily made.24  In a footnote,  the  supreme
court  acknowledged that its prohibition of the  use  of  threats
might  be  more demanding than federal constitutional law.25   It
therefore based its holding on article I, section 9 of the Alaska
Constitution.26
          In   Beavers,  two  Alaska  state  troopers  questioned
Beavers,  who  was  then  sixteen  years  old,  while  they  were
investigating two Anchorage robberies.27  The troopers approached
Beavers  at  the  restaurant where he  worked.   They  identified
themselves  and  told Beavers that they wanted  to  question  him
outside  of  the restaurant to avoid the noise inside.28   In  an
interview that lasted twenty-one minutes, the troopers talked  to
Beavers in their patrol car.29  The troopers told Beavers that he
was  not  under  arrest  and could leave at  any  time.30   After
Beavers answered several questions indicating his knowledge of  a
friends  involvement  in some burglaries, Trooper  Gerald  Graham
told Beavers that if he was involved in the burglaries, he needed
to  tell  him.31  Trooper Graham said that if he later found  out
that  Beavers had been involved in the burglaries, having  denied
it,  there  would  be  some problems.32  After  Beavers  answered
several  questions  concerning his friends and  the  location  of
various  stolen items, Trooper Graham said that he  knew  Beavers
was telling the truth because his statements were consistent with
information  from  the  troopers prior investigation.33   Trooper
          Graham then stated, But, if ... you try and hide it from me youre
really  going  to get hammered.34 After showing Beavers  a  photo
lineup  which  included Beavers and one of his  friends,  Trooper
Graham  stated,  Now if you want to lie to me  and  get  in  more
trouble,  thats  fine,  okay?35   After  this  exchange,  Beavers
admitted  his  participation in the robbery,  giving  a  detailed
account.36
          The  superior court found that Beaverss confession  was
involuntary.37   We reversed the superior court.38   The  supreme
court  reversed our decision.  The supreme court emphasized  that
[w]hen   the  accused  is  a  juvenile,  the  state   assumes   a
particularly heavy burden of proof.39  The supreme court stated:
               A  criminal  suspects  right  to  remain
          silent represents one of the most fundamental
          aspects  of our constitutional jurisprudence.
          It   includes  the  right  to  terminate   an
          interrogation  at  any time.  We  regard  any
          potential  encroachment upon this right  with
          the   utmost   concern.   A  law  enforcement
          officers   threat  of  harsher  than   normal
          treatment    however   phrased    essentially
          conveys  to criminal suspects that they  will
          be  punished for their silence, including any
          refusal to give further answers. ... Suspects
          are  told, in effect, that they must give  up
          their constitutional right to silence or they
          will suffer greater punishment.  We view such
          threats with disfavor.  Where they are  used,
          the resulting confession should be considered
          involuntary   unless  the  state   can   show
          affirmatively   that   the   confession   was
          voluntarily made.[40]
          
          The  court  then  went on to discuss United  States  v.
Harrison.41  Harrison, investigating a noise outside  her  house,
discovered  approximately  fifteen federal  agents  with  weapons
drawn.42  After arresting Harrison and her companion, the  agents
searched her home.43  The agents advised Harrison of her  rights,
and  an  agent informed her of the evidence linking her to  money
laundering.44  According to the Alaska Supreme Court:
          The  agent then told Harrison that she  could
          potentially  receive  a twenty-year  sentence
          for her participation in the crime, and asked
          whether she thought it would be better if the
          judge  was  told of her cooperation  or  non-
          cooperation.   Harrison  responded  that   it
          would be better if the judge was informed  of
          her cooperation, and she proceeded to confess
          her criminal involvement to the agents. ...
          
               ....   While  expressing  its  continued
          adherence  to  the totality of  circumstances
          approach,  the court nevertheless established
          an   exception  for  confessions  induced  by
               police threats to inform the prosecutor of a
          suspects refusal to cooperate.  According  to
          the  court,  there  are no  circumstances  in
          which  law  enforcement officers may  suggest
          that  a  suspects exercise of  the  right  to
          remain silent may result in harsher treatment
          by a court or prosecutor.[45]
          
The supreme court quoted the Ninth Circuit Court of Appeals:
          Refusal  to  cooperate  is  every  defendants
          right  under the [F]ifth [A]mendment.   Under
          our  adversary system of justice, a defendant
          may  not  be made to suffer for his  silence.
          Because  there is no legitimate  purpose  for
          the  statement that failure to cooperate will
          be  reported  and because its  only  apparent
          objective  is  to coerce, we  disapprove  the
          making of such representations.[46]
          
The Alaska Supreme Court summarized:

               The  Ninth  Circuit  thus  rejected  the
          governments  request  to  examine   Harrisons
          inculpatory statement in context of  all  the
          circumstances involved in the case  and  held
          the  agents  suggestion that he might  inform
          the  judge  of Harrisons failure to cooperate
          inherently coercive.
          
               We  find  Harrisons reasoning persuasive
          and agree with the Ninth Circuits distinction
          between  promises of leniency and threats  of
          harsher treatment.[47]
          

          Applying   this  analysis  to  Watermans  November   19
statement
          Waterman  was  sixteen years old at  the  time  of  the
November  19 interview.  She was intelligent and a good  student.
She  had  not  had  any prior contact with the  criminal  justice
system, although she had been interviewed twice before about  her
mothers  death.  She apparently went voluntarily  to  the  police
station.
          When  Waterman  arrived at the police station,  Trooper
McPherron advised her of her rights.  Waterman agreed to talk  to
the authorities.  McPherron told her that she had a right to have
her father present.  Waterman declined.  McPherron confirmed that
she  was  talking with them voluntarily and assured her that  she
was free to go.  Trooper McPherron then told Waterman that Arrant
and  Radel had told them everything about her participation in  a
plot  to  kill  her mother.  McPherron confronted  Waterman  with
Arrants and Radels statements about their prior plots to kill her
mother  and  their description of how the last plan  was  carried
out.   Waterman  cried and acknowledged that  she  had  mentioned
killing her mother to Arrant and Radel, but insisted that she was
          not serious.  She insisted that she had told them that she did
not  want  them to do anything to her mother.  Although  Waterman
admitted  that  she had told Arrant and Radel that  she  and  her
father  would  be out of town for the weekend, Waterman  insisted
that she had only brought it up in passing, telling them that her
team  was going to the state volleyball tournament.  She admitted
that  she had an idea that they might do something to her  mother
that  weekend, but she insisted that she told them not to do  it.
Waterman  claimed that she had telephoned Arrant  from  Anchorage
because  she  knew that he and Radel were thinking about  killing
her  mother,  and she told them not to do anything.   She  stated
that when she came back on Sunday, Arrant called her and told her
that  he  had  carried  out  the plan.   Waterman  said  she  was
horrified.  She admitted that she had not told anyone,  including
the police, that she knew what had happened to her mother.
          At  this  point, Trooper McPherron told  Waterman  that
although  she  was sixteen, this was a serious  offense  and  she
would be automatically waived into adult court; she would not  be
treated  as a juvenile.  She was now playing in the big  leagues.
Trooper  McPherron told Waterman that he did not  understand  why
she  continued  to  lie.  If she continued to lie,  it  would  be
difficult  for anyone to believe her.  He told her,  A  bunch  of
strangers are going to look at you and judge you based upon  your
behavior,  based on how you deal with this, and  how  you  answer
these following questions.
          Arguably,  this speech constitutes a prohibited  threat
under Beavers  that is, a threat of harsher treatment if Waterman
declined  to  cooperate.  In Beavers, the  Alaska  Supreme  Court
expressed its approval of the Ninth Circuits holding in Harrison.
In  Harrison,  the agent, after telling Harrison that  she  could
receive a 20-year sentence, asked Harrison whether she thought it
would be better if the judge were told that she had cooperated or
not  cooperated.48  The Alaska Supreme Court noted with  approval
the  Ninth  Circuits  holding that the law  enforcement  officers
suggestion  that  he might inform the judge of  [the  defendants]
failure  to  cooperate  [was] inherently  coercive.49   Arguably,
Trooper  McPherrons statement was a similar threat  that  a  jury
would be told of Watermans lack of cooperation.
          However,  even if Trooper McPherrons statement  was  an
improper   threat  under  Beavers,  we  conclude  that  Watermans
statements  directly following that exchange  rebut  the  Beavers
presumption of involuntariness.  Under Beavers, a threat makes  a
defendants   statements   following  the   threat   presumptively
involuntary.50  But if there is evidence affirmatively indicating
that  the  suspects  will was not overcome by  the  threats,  the
statements   can   still  be  voluntary.51    Following   Trooper
McPherrons statement, Waterman continued to insist that  she  had
telephoned Arrant and told him not to go through with the murder.
It  thus  seems  clear  that Watermans will  to  resist  was  not
overcome.
          Later  in  the  interview, Trooper McPherron  suggested
that  they take a break.  The officers were gone for about  eight
minutes.   Then  Sergeant  Habib reentered  the  room.   He  told
Waterman   that  three  homicide  investigators  and  crime   lab
          technicians had been working on the case constantly for five
days.    They  had  gathered  evidence  and  conducted   numerous
interviews.   He  claimed that the police had  an  airtight  case
against Arrant and Radel  they had confessed and told them all of
the  details  about what happened.  He further claimed  that  not
only  had  Arrant  and Radel told the police all about  Watermans
involvement,   but  the  police  had  other   evidence   of   her
involvement.  He told Waterman that Trooper McPherron was one  of
the  top  homicide investigators and interviewers in  the  state.
Sergeant Habib told her, [McPherrons] got you.  Hes got you.  Hes
got your involvement in this case.  Habib then stated:
               You have a choice.  And this is the only
          choice  you have.  This is the only  decision
          you  have to make right now.  This is  not  a
          game.  This is not high school.
          
               Do  you  want  us to stand up  with  the
          district  attorney  and tell  them  that  you
          cooperated?   You  screwed  up?   You  werent
          thinking?  Or do you want us to stand up  and
          say  five days you lied to us?  Down  to  the
          end  when  we  present all this  evidence  in
          front  of a jury, you continued to lie to  us
          and  bullshit us in trying to show  us  youre
          smarter?  Im tougher.
          
               MS.    WATERMAN:     I    (indiscernible
          simultaneous speech)....
          
               SGT.  HABIB:  Listen to me.  Do you want
          us  to  do that?  Do you want a jury to  hear
          that?  Do you want a judge to hear that?   Or
          do  you want us to stand up and say this  kid
          screwed  up, she at least stepped up  to  the
          plate  and  was honest with us?   Which  one?
          Those are your two choices.
          
               MS. WATERMAN:  The first one.
          
               SGT.  HABIB:   Then you  need  to  start
          doing  it.  Were not dumb.  That man  is  not
          dumb.   Youre giving him a little piece  here
          trying  to appease us.  Im sitting over  here
          shaking my head watching you lie, and its not
          helping you any.  Its not helping you at all.
          Hes  pissed.  Hes ready to just  go  for  it.
          Lets do it.
          
               Youre  a  kid.  Its time to act like  an
          adult.  Now do you want to talk to him  again
          and  be straight with him?  If youre straight
          with that man, I will stand up, he will stand
          up,  and  the  DA will stand up and  say  she
          cooperated.   Its your choice.   Thats  where
          were at.
          
          In other words, Sergeant Habib threatened Waterman with
harsher  consequences for not cooperating with the investigators.
As  in Harrison, the officers had already told Waterman that  she
was  facing a serious offense, would be waived into adult  court,
and  that she would be playing in the big leagues.  She was  told
that  a jury, a bunch of strangers, would be judging her behavior
and  how she answered the questions.  In his statements following
the  break, Sergeant Habib told Waterman that she had one choice:
Did  she  want  the  officers to tell the  judge  and  jury  that
Waterman  cooperated and had just made a mistake or did she  want
the officers to say that she had lied to them for five days?   In
our  view, Sergeant Habibs statements constitute an impermissible
threat  under Beavers.  The threats that Sergeant Habib  made  to
Waterman are similar to the threats the Beavers court set out  in
discussing the Harrison case.  Waterman was told that  she  faced
harsh  punishment as an adult.  And Sergeant Habib made it  clear
that Watermans cooperation or non-cooperation would be brought to
the attention of the judge and jury.  She was asked if she wanted
the  officers  to  be  on  her side and  stand  up  and  say  she
cooperated  or  whether  she wanted them  to  say  that  she  had
continued to lie to them.
          Watermans  statements following this threat  no  longer
rebut the presumption of involuntariness.  When Trooper McPherron
reentered the room, Waterman apologized for her behavior.   After
Sergeant Habibs statements, Waterman made admissions that she was
pretty sure that Arrant and Radel planned to kill her mother that
weekend.   Waterman  conceded that, although she  had  talked  to
Arrant  while she was away in Anchorage, she had not told  Arrant
that  she  had changed her mind and that he should not  kill  her
mother.   According to the analysis set out in Beavers, when  the
police  use threats of harsher punishment to induce a confession,
the  resulting confession should be considered involuntary unless
the   State  can  show  affirmatively  that  the  confession  was
voluntarily made.52  Waterman made her admissions after  Sergeant
Habibs  statements.  Therefore, her statements are  presumptively
involuntary.   We  conclude that the evidence is insufficient  to
rebut the presumption.
          The  State  argues that the facts in Waterman  are  not
similar  to the facts in Beavers.  The State argues that Sergeant
Habib did not threaten Waterman with harsher consequences if  she
did  not  choose to talk with them, but only told her  truthfully
what  was  going to happen at trial. The problem with the  States
argument  is  that it seems to conflict with the  Ninth  Circuits
reasoning  in  Harrison.  In Beavers, the  Alaska  Supreme  Court
quoted  with approval the language in Harrison that there  is  no
legitimate  purpose for the statement that failure  to  cooperate
will  be reported and because its only apparent objective  is  to
coerce, we disapprove the making of such representations.53   The
courts  condemnation  of such representations  is  sweeping.   It
appears to condemn such representations as coercive, even if they
are true.
          The   State  also  argues  that  Sergeant  Habib   only
suggested  that Waterman would suffer consequences if  she  lied,
not  from  exercising her right to remain silent.   But  Sergeant
Habibs  statements appear to be more coercive than the statements
          that the federal agent made in Harrison.  The State may be
arguing  that Waterman had already given up her right  to  remain
silent  by  talking  to the police.  But, as the  Alaska  Supreme
Court pointed out in Beavers, the right to remain silent includes
the  right  to  terminate an interrogation at  any  time.54   And
Sergeant  Habibs  statements  seem  more  threatening  than   the
statement  the court found was inherently coercive  in  Harrison,
that  the  agent  might inform the judge that  Harrison  had  not
cooperated.55
          In  carrying  out  our duty to conduct  an  independent
review  of  the voluntariness of Watermans November 19 statement,
we  have  carefully reviewed the videotape of the  interview,  as
well  as  the transcript.  We have reviewed and considered  Judge
Collinss  findings.  We conclude that most of Watermans  November
19  statement  was  voluntary.  But we find that  the  statements
Sergeant  Habib  made  to Waterman after  the  break  constituted
threats  that  are forbidden under Beavers, and we conclude  that
the  statements  that  Waterman made  after  those  threats  were
involuntary and therefore must be suppressed.

          Why  we  conclude that we must remand the decision
          on whether to dismiss the indictment
          
          After   she   concluded  that  Watermans  November   19
interview  was  involuntary  and  therefore  inadmissible,  Judge
Collins concluded that this interview was the centerpiece of  the
grand  jury  case  against Ms. Waterman.  Judge Collins  reasoned
that  since the indictment was based upon inadmissible  evidence,
the indictment should be dismissed.
          On  appeal, the State contends that, even if we  affirm
Judge Collinss decision that the interview is inadmissible, Judge
Collins  erred  in dismissing the indictment.  The  State  argues
that  it  presented sufficient evidence to support the indictment
even if Watermans November 19 interview is inadmissible.
          We  held  in  Stern v. State,56 that when  inadmissible
evidence  is  presented  to a grand jury,  the  validity  of  the
indictment will hinge on the answer to two questions:  First,  is
the remaining evidence sufficient to support the indictment?  And
second  (if  the  remaining evidence is  sufficient),  [was]  the
probative force of [the] admissible evidence ... so weak and  the
unfair  prejudice  engendered by the  improper  evidence  ...  so
strong that it appears likely that the improper evidence was  the
decisive factor in the grand jurys decision to indict?57
          Given  our  conclusion that only the final  portion  of
Watermans  statement must be suppressed, it is obvious  that  the
remaining  evidence  presented to the  grand  jury  must  now  be
reevaluated under the Stern test.
          On  this  point,  we  note that the  grand  jury  heard
excerpts  of  the statements that Radel and Arrant  gave  to  the
authorities.   However, when Judge Collins issued her  ruling  on
the  sufficiency of the indictment, she acknowledged that she did
not  know  what evidence was contained in these excerpts  because
the  transcript of the grand jury proceedings does not contain  a
transcription  of  these excerpts.  (The  grand  jury  transcript
          merely contains notations indicating that the excerpts were
played.)  To make a proper assessment of the indictment under the
Stern  test,  Judge Collins must obtain copies or transcripts  of
these excerpts from Radels and Arrants statements.

          Conclusion
          Regarding  the suppression of Watermans statement,  the
decision  of the superior court is AFFIRMED IN PART and  REVERSED
IN PART.
          Regarding the validity of the indictment, the  decision
of the superior court is VACATED.  The superior court is directed
to  re-assess  the validity of the indictment by  evaluating  the
remaining admissible evidence under the Stern test.
MANNHEIMER, Judge, concurring.

          I  write  separately to address the issue of  procedure
presented in this case.
          As  explained by Judge Coats in the lead opinion, Judge
Collins  initially ruled (before trial) that Watermans  statement
to  the  authorities was voluntary and admissible.  Then, at  the
end  of  trial,  when the judge was asked to  rule  on  Watermans
motion  for  a  judgement  of acquittal,  she  issued  a  written
decision that essentially contained two parts:  a short denial of
Watermans  request for a judgement of acquittal,  followed  by  a
lengthy  sua  sponte reconsideration and reversal of her  earlier
decision concerning the admissibility of Watermans statement.
          I  concede that no statute or court rule required Judge
Collins  to alert the parties that the voluntariness of Watermans
statement  was  again at issue.  I do note,  however,  that  when
Judge  Collins decided to revisit this issue, she was not  merely
re-evaluating  the evidence and law presented to her  during  the
pre-trial  litigation of this issue.  Rather, the  basis  of  her
ruling  was her sua sponte conclusion that the evidence presented
at  Watermans  trial  differed significantly  from  the  evidence
presented during the pre-trial litigation of this issue  and that
this new evidence required her to reverse her earlier decision.
          This kind of judicial action presents three problems.
          First,  the judges decision to revisit this  issue  sua
sponte  at  the  end  of the trial might be perceived  as  unfair
because  the  parties were not aware, when they  were  presenting
their  evidence  at  trial, that this issue was  being  litigated
again  that the voluntariness of Watermans statement was being re-
assessed in light of the trial testimony.  The content or  detail
of  the  testimony,  and  the types of  questions  posed  to  the
witnesses, might have been significantly different if the parties
had been aware that Judge Collins was re-evaluating this issue.
          Second,  because  Judge  Collins  did  not  notify  the
parties that she was re-evaluating her earlier decision, she  did
not  have  the benefit of adversarial briefing and argument  when
she  (1)  analyzed  the testimony presented at  Watermans  trial,
(2)  compared that testimony to the evidence presented during the
pre-trial litigation of this issue, and then (3) applied the  law
to  the facts as she found them.  As this Court noted in State v.
Angaiak,  when  a  court decides an issue sua  sponte   that  is,
decides the issue without a request by a party, and without input
from  the  parties  the courts action provides fertile conditions
for  the creation of judicial error.  847 P.2d 1068, 1073 (Alaska
App. 1993).
          It is true that Judge Collins allowed the State to seek
reconsideration of her ruling.  But the fact that the  issue  was
litigated in this manner illustrates the third problematic aspect
of the procedure employed in this case.
          Once   a   judge  has  publicly  announced  a  decision
(especially  in  writing), it is often psychologically  difficult
for  the  judge  to  admit  that  he  or  she  might  have  acted
precipitously  and might have reached the wrong conclusion.   One
would  hope that a judge would always have the candor (at  times,
the  courage) to concede that an earlier decision was wrong.  But
as  a practical matter, a lawyer asking for reconsideration of  a
publicly  announced decision faces an uphill  battle.   For  this
reason,  a lawyers right to seek rehearing or reconsideration  of
an  announced decision is not a ready substitute for the right to
litigate  the  issue  before  the court  publicly  announces  its
decision.
          As  I  said  before, Judge Collins  broke  no  rule  of
procedure  when  she  decided, sua  sponte,  to  re-evaluate  the
voluntariness of Watermans statement after hearing the  testimony
presented at Watermans trial.  But I urge judges who face similar
situations in the future to (1) give the parties notice that  the
issue  is  being reconsidered, (2) give the parties a description
of the particular reasons why the earlier ruling is now perceived
as  wrong, and (3) allow the parties to brief or argue the  issue
before announcing a final ruling.
_______________________________
     1 Former AS 22.05.010, as construed in State v. Shelton, 368
P.2d  817, 820 (Alaska 1962), and as enacted with respect to  the
court of appeals in former AS 22.07.020(d)(2).

     2 368 P.2d 817.

     3 Id. at 820.

4 634 P.2d 383 (Alaska App. 1981).

     5 Id. at 384-86.

     6 678 P.2d 386 (Alaska 1984).

     7 Id. at 388-390.

     8 887 P.2d 971 (Alaska App. 1994).

     9 Ch. 71  2 SLA 1993; Walker, 887 P.2d at 975.

     10   Walker, 887 P.2d at 975-76.

     11   Id. at 975 (emphasis added).

     12   Id. at 976.

     13   Id.

     14   Id.

     15   Michel, 634 P.2d at 385.

     16   Id. at 384.

17     Stobaugh  v.  State,  614  P.2d  767,  771  (Alaska  1980)
(citing Schade v. State, 512 P.2d 907, 917 (Alaska 1973)).

     18    Beavers  v.  State, 998 P.2d 1040, 1044 (Alaska  2000)
(citing S.B. v. State, 614 P.2d 786, 789 (Alaska 1980)).

     19    Stobaugh,  614 P.2d at 772 (quoting United  States  v.
Ferrara, 377 F.2d 16, 17 (2d Cir. 1967)).

     20    Beavers, 998 P.2d at 1044; State v. Ridgely, 732  P.2d
550, 554 (Alaska 1987).

     21   Ridgely, 732 P.2d at 554 (citation omitted).

     22   Beavers, 998 P.2d at 1044.

     23   Id.

     24   Beavers, 998 P.2d at 1046.

     25   Id. at 1046 n.30.

     26   Id.

     27   Id. at 1041.

     28   Id.

     29   Id. at 1042.

     30   Id.

     31   Id.

     32   Id.

     33   Id.

34   Id.

     35   Id.

     36   Id.

     37   Id. at 1043.

     38   Id.

     39   Id. at 1044 (citation omitted).

     40   Id. at 1045-46 (citations omitted).

     41   34 F.3d 886 (9th Cir. 1994).

     42   Id. at 890.

     43   Id.

     44   Id.

45   Beavers, 998 P.2d at 1046-47 (citations omitted).

     46   Id. at 1047 (quoting Harrison, 34 F.3d at 891).

     47   Id. (footnote omitted).

48   Harrison, 34 F.3d at 890.

     49   Beavers, 998 P.2d at 1047 (citation omitted).

     50   Id. at 1048.

     51   Id.

52   Id. at 1046 (citation omitted).

     53   Id. at 1047 (quoting Harrison, 34 F.3d at 891).

54   Id. at 1045-46.

     55   Harrison, 34 F.3d 886.

     56   827 P.2d 442 (Alaska App. 1992).

     57   Id. at 446 (citation omitted).

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