Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


Kalmakoff v. State (1/16/2009) ap-2207

Kalmakoff v. State (1/16/2009) ap-2207

                             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


BYRON M. KALMAKOFF, )
) Court of Appeals No. A-9700
Appellant, ) Trial Court No. 3NA-03-086 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2207 January 16, 2009
)
          Appeal  from the Superior Court,  Third  Judi
          cial   District,  Naknek,  Fred  J.  Torrisi,
          Judge.

          Appearances:   Margi A. Mock (opening  brief)
          and  Josie  Garton  (reply brief),  Assistant
          Public Defenders, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the   Appellant.
          Nancy  R.  Simel, Assistant Attorney General,
          Office  of Special Prosecutions and  Appeals,
          Anchorage,  and  Talis J.  Colberg,  Attorney
          General, Juneau, for the Appellee.

          Before:    Coats,  Chief  Judge,  Mannheimer,
          Judge,  and Stewart, Senior Court of  Appeals
          Judge.*
          [Bolger, Judge, not participating.]

          MANNHEIMER, Judge.

          Byron   M.  Kalmakoff  was  convicted  of  raping   and
murdering a young woman in Pilot Point.  At his trial, the  State
relied  on  statements that Kalmakoff made to the state  troopers
who  came  to Pilot Point to investigate the homicide.   In  this
          appeal, Kalmakoff argues that the statements introduced at his
trial  were the tainted fruit of violations of Kalmakoffs Miranda
rights.2   For the reasons explained here, we conclude that  even
though  the troopers may have violated Kalmakoffs Miranda rights,
the  major portion of the challenged evidence was not tainted  by
these Miranda violations and was properly admitted at trial.   We
therefore affirm Kalmakoffs convictions.

     Underlying facts  Kalmakoffs first interview  with  the
     troopers
     
               On  the  afternoon of February 10, 2002,  the
     naked  body of a young woman, B.K., was found near  the
     airport  in Pilot Point, a small village on the  Alaska
     Peninsula.  B.K. had two gunshot wounds to her head.  A
     later  autopsy  indicated that someone had  engaged  in
     vaginal and anal intercourse with B.K. near the time of
     her death.
               Following  B.K.s disappearance,  the  village
     public  safety officer, VPSO Molly Etuckmelra, summoned
     the state troopers.  Troopers John Shane Stephenson and
     Peter  Mlynarik  were  dispatched  to  Pilot  Point  to
     investigate.  By the time they arrived, B.K.s body  had
     been discovered.
               B.K.  had  last been seen alive  the  evening
     before,  at a party at the house of Rick Reynolds.   At
     the  request of the troopers, VPSO Etuckmelra  and  the
     city manager contacted everyone who attended this party
     and  asked them to come to the city office building  to
     be  interviewed.  One of these people was fifteen-year-
     old Byron Kalmakoff.
          The   troopers   conducted   all   of   their
interviews  in  the  meeting room of  the  city  office
building   a large room (approximately 20 by  32  feet)
that  was  well-lit, with several windows  and  two  or
three doors.  Several collapsible tables were set up in
this meeting room, and the two troopers conducted their
interviews at one of these tables.
          Late  in  the morning of February  12,  2002,
acting  at  the  direction of Trooper Stephenson,  VPSO
Etuckmelra  drove to the Pilot Point school and,  after
alerting  the  principal, she picked up  three  teenage
boys  Leon Neketa, Aaron Kalmakoff, and Byron Kalmakoff
and transported them to the city office building in her
patrol vehicle.
          Etuckmelra   testified   that,   before   she
transported  Byron  Kalmakoff  from  the  school,   she
telephoned  Byrons  grandmother (and adoptive  mother),
Martha  Kalmakoff.  According to Etuckmelra,  she  told
Martha  Kalmakoff that the troopers wanted to  talk  to
Byron, and Martha said that this was okay.
          But   at  the  evidentiary  hearing  in   the
superior  court,  Martha  Kalmakoff  testified   to   a
different version of events.  According to Martha, VPSO
Etuckmelra  never contacted her, and she  had  no  idea
          that Byron was being interviewed by the state troopers
until  the  mid-afternoon  (after  the  interview   was
underway), when she received a telephone call from  her
daughter,  Jackie Kalmakoff, who worked  in  the  Pilot
Point  community center (the building next to the  city
office  building).   Marthas  version  of  events   was
corroborated by the testimony of her daughter Jackie.
          The   superior  court  never  resolved   this
conflict in the testimony.
          The  troopers interview with Kalmakoff  began
at   1:35   p.m.  on  February  12th,  and  it   lasted
approximately one and a half hours.  During this  first
interview, the troopers asked Kalmakoff to describe his
whereabouts  and  activities  on  the  night   of   the
homicide.
          Kalmakoff told the troopers that he  attended
a  dance  early  in the evening, and that  he  drank  a
little  whiskey there.  Later, Kalmakoff and his friend
Aaron Kalmakoff (the brother of the victim) went to the
party at Rick Reynoldss house.  Kalmakoff admitted that
he drank some more liquor at the party.
          Kalmakoff told the troopers that he and Aaron
left  the  party  around 2:00 a.m. and went  to  Aarons
house.   Then,  somewhere between 3:00 and  4:00  a.m.,
they  left  the house to check on Aarons sister,  B.K..
The two boys first went to the home of Kalmakoffs aunt,
Jackie Kalmakoff, but B.K. was not there.  Jackie  told
them  that B.K. had gone back to Rick Reynoldss  house,
so the boys went there.
          When  the  boys entered Reynoldss house,  the
party  had  wound down and the house was  quiet.   They
went   upstairs  and  found  B.K.  lying  on  a  couch,
unconscious.   Kalmakoff tried  to  wake  her  up,  but
initially  she  could not be roused.  Then,  when  B.K.
finally  woke  up, she needed to use the  bathroom,  so
Kalmakoff went downstairs.  Kalmakoff told the troopers
that, a little later, B.K. got mad at the two boys  and
told them to leave the house  so they left.
          At  this point, however, the interview  moved
in  a new direction.  Kalmakoff admitted that, while he
was downstairs in Reynoldss house, he went snooping and
found  a  pistol.  He picked up the pistol and took  it
outside.   Kalmakoff  also told the  troopers  that  he
picked  up a box of ammunition for the pistol  although
he   repeatedly  and  consistently  claimed  that  this
ammunition consisted of blanks rather than bullets.
          Kalmakoff declared that he and Aaron took the
pistol  back  to Aarons house, where they proceeded  to
fire  it  several  times  (using  blanks).   Then  they
returned the pistol to Reynoldss house and put it  back
where  they  had found it.  Kalmakoff claimed  that  he
later  threw away the extra ammunition and the expended
blanks (i.e., the casings) in the trash.
          In   response   to  the  troopers   follow-up
questions, Kalmakoff denied that either he or Aaron had
fired  the  pistol at Reynoldss house.  Kalmakoff  also
denied that he ever used the pistol to scare B.K..  And
when Trooper Stephenson openly suggested that Kalmakoff
had  killed B.K., Kalmakoff immediately responded  that
he did not kill her, and that he did not know who did.
          Shortly  after  this conversation,  Kalmakoff
left the room (apparently, to use the bathroom or get a
drink).   During  this  interlude,  despite  Kalmakoffs
protestations of innocence, Stephenson told Mlynarik, I
think were hot on the trail now.
          The troopers turned the tape recorder back on
at  2:20  p.m..  At this point, the interview had  been
going  on  for 45 minutes (that is, since  1:35  p.m.).
When  Kalmakoff asked the troopers, How much more  time
[are]  we gonna be here?, Stephenson replied, a  little
bit [more].
          The  troopers asked Kalmakoff more  questions
about  the  pistol.  Kalmakoff told them  that  he  and
Aaron  each fired the pistol a half dozen times.   When
they got done firing the pistol, Aaron was the one  who
returned  the pistol to Reynoldss house, and  Kalmakoff
was the one who threw the spent casings into the trash.
          A  few  minutes later, the troopers asked  to
examine Kalmakoffs upper body (without his shirt),  and
they  also asked Kalmakoff to show them the bottoms  of
his  shoes.  The troopers were interested in  examining
Kalmakoffs  shoes (indeed, the shoes of  everyone  they
interviewed) because they had found a distinctive  shoe
print  at  the crime scene.  When Kalmakoff showed  the
troopers the bottom of his shoe, the troopers could see
that  the  pattern  on  the sole of  the  shoe  closely
resembled  the  shoe print found at  the  crime  scene.
(Later, when they were walking around the village  with
Kalmakoff, the troopers confirmed that the tracks  left
in  the snow by Kalmakoffs shoes were a close match  to
the shoe print found at the crime scene.)
          Just after Kalmakoff displayed his upper body
and  the  bottoms  of his shoes to  the  troopers,  the
troopers  asked  Kalmakoff to  lead  them  through  the
village  to  view  the places that Kalmakoff  had  been
describing during the interview.
          At  the  conclusion of this  tour,  Kalmakoff
asked  the troopers, Do I have to go back [to the  city
office building] again?  Stephenson replied, Yeah, were
not even done.  ...
          A  little later, after they returned  to  the
city office building, Stephenson seized Kalmakoffs four-
wheeler,  his  shoes,  and  his  coat  and  gloves   as
evidence.   Stephenson  also  told  Kalmakoff  and  his
grandmother,  Martha Kalmakoff, that he  did  not  want
Kalmakoff to go back to Marthas house or to his mothers
house (i.e., Ruby Moores house) until the troopers give
him  permission  which, according to Stephenson,  would
be sometime that evening.
          (The troopers wanted to keep Kalmakoff out of
those  places until they could get search  warrants  to
examine  the  clothing and other physical  evidence  at
these two homes.)
           The  first  interview ended at  this  point.
According to Martha Kalmakoffs later testimony  at  the
evidentiary  hearing, she and her daughter Jackie  took
Kalmakoff  to the community hall  because the  troopers
had said that they did not want him returning to either
Marthas home or his mothers home.  They waited  in  the
community  hall until late in the evening.  Finally,  a
trooper  came by and spoke to Jackie; he told her  that
it was now okay for them to go home.

Underlying facts  Kalmakoffs second interview with  the
troopers

          The  following day (February 13,  2002),  the
troopers again asked Kalmakoff to leave school and talk
to  them  at  the  city office building.   This  second
interview began at 11:30 a.m. and lasted forty minutes.
          This  time,  the interview was  conducted  by
Trooper  Stephenson and Trooper Craig  Allen.   At  the
beginning  of  the  interview,  Trooper  Allen  assured
Kalmakoff that he was free to leave any time he wished.
However, when Kalmakoff immediately announced  that  he
did  not  want  to talk to the troopers,  the  troopers
refused   to   let  him  go,  and  they  continued   to
interrogate him:
     
          Allen:   You dont have to sit  here  and
     talk  with us, okay?  You can ... go back  to
     school  whenever  you want.   You  understand
     that?
     
          Kalmakoff:  Yeah.
     
          Allen:   The  reason we [are]  tell[ing]
     you  that  is so that you know that ...  when
     youre finished talking to us, you just let us
     know and get up and ... go; well get you back
     to school.  Okay?
     
          Kalmakoff:  I [can] go back right now if
     I want to?
     
          Allen:  Yeah, [you] sure can.  Okay?  Is
     that what you want to do?  Or do you want  to
     talk   with  us  a  little  bit,  so  I   can
     understand whats going on?
     
          Kalmakoff:  I feel like going  back  [to
     school].
     
          Allen:   Yeah.  Okay.  Is  is there  any
     reason  you  dont want to talk to [us]  about
     stuff ... that Im going to ask you about?
     
          Kalmakoff:    I  cant  barely   remember
     anything.
     
          Allen:  Cant barely remember anything?
     
          Kalmakoff:  Sometimes I black out.
     
          Allen:   Maybe if we talk a little  bit,
     maybe I could help you remember some stuff.
     
     Kalmakoff:  I dont know.  [Im]  sort  of
scared.

     Allen:    Yeah?   What  are  you  scared
about, Byron?

     Kalmakoff:  That I did it.

     Allen:  You dont just wake up [one]  day
...  and  wonder[,] Did you do it?  ...   You
might  have  some  things ...  that  you  can
really remember, [or things] that you saw the
next  day to make you think ... that.  Right?
And  you  probably have some of those  ideas.
You  want to share those with me?   ...   And
maybe  ... well understand why this happened,
okay?  ...  Wouldnt you like to be able to go
to  bed  tonight  knowing why something  like
this  happened, rather than [it]  just  being
something ... that youll never have an answer
to?

     Kalmakoff:  Yes.
     .  .  .

     Allen:  Where do you want to start?  You
want to start with what happened to [B.K.]?

     Kalmakoff:  [I] cant really remember.

     Allen:  [You] cant really remember,  but
... youve thought about it since then, havent
you?   I  mean, you might not remember  every
little  detail, but you ... can talk with  me
about  what  happened, [about] what  you  can
remember, cant you?

     Kalmakoff:   Can  I  just  go  back   to
school?

     Allen:   You  can go back to school  any
time  you  want.  Weve told  you  that.   ...
Thats entirely up to you.

     Kalmakoff:  I just want to go back now.

     Allen:  Okay.

     Kalmakoff:  Im gonna go home and talk to
my grandma.  (Pause)  Can I go back now?

     Allen:  Beg pardon?

     Kalmakoff:  Can we go back there?

     Allen:   You can go back there any  time
you want.  Its up to you.

     Kalmakoff:  All right.

     Stephenson:   Um, actually,  ...  Byron,
um,  Im going to have to ask you to stay here
...  and  talk  with me, okay?   Theres  some
things that I just absolutely have to know.

          At  this  point, Trooper Stephenson
advised  Kalmakoff  of  his  Miranda  rights.
Following  this advisement, Stephenson  asked
Kalmakoff  if he wanted to waive  his  rights
and  talk  to the troopers.  Kalmakoff  shook
his head no.
          Immediately  following   Kalmakoffs
non-verbal statement that he did not wish  to
talk  to  the  troopers,  Trooper  Allen  re-
entered  the conversation and told  Kalmakoff
that, because he was 15 years old, he had the
choice  of  whether  to  have  a  parent   or
guardian  sit  in  on  the  interview.   When
Kalmakoff  replied, Do I have to stay  here?,
Allen told him, Yeah, were going to have  you
stay   here   for  a  little  while,   Byron.
Stephenson then added, So you can either talk
to  us  [alone], or you can have your mom  or
your grandma come down and be with you.
          The  troopers  then suggested  that
Kalmakoff could listen to them describe  what
they had learned from their investigation  so
far,  and  that perhaps (after hearing  this)
Kalmakoff would want to make some comments.
          In   response   to   this   tactic,
Kalmakoff    made    one   self-incriminating
admission:   he  admitted to  drinking  about
half a pint of whiskey on the evening of  the
homicide.   But almost immediately afterward,
he  again  told the troopers, I  dont  really
feel like answering questions.
          At this point, the troopers finally
honored Kalmakoffs invocation of his right to
silence;  they  stopped  interrogating   him.
However,  the  troopers told  Kalmakoff  that
they   had  some  other  stuff  that   [they]
need[ed] to do.  They then proceeded to serve
a  search  warrant  that authorized  them  to
photograph Kalmakoff without his clothes  on,
to take hair samples from his head, arm, leg,
and  pubic area, and to take swabs  from  his
penis and the inside of his mouth.
          After taking these photographs  and
body  samples,  the troopers  told  Kalmakoff
that   they   remained  very  interested   in
understanding  what  had  happened  to  B.K..
They  suggested  that sometimes,  bad  things
happen  ...  because things just get  out  of
control,  and  they encouraged  Kalmakoff  to
contact  them  later if [at]  any  time  [he]
change[d] [his] mind and want[ed] to  get  it
off  [his] chest.  The troopers then  allowed
Kalmakoff to return to school.
          This  second  interview  ended   at
12:10 p.m..

Underlying facts  Kalmakoffs third interview with the
troopers

     About  three and a half hours later (at  3:35
p.m.  on  the  afternoon of  February  13,  2002),
Troopers  Stephenson and Allen visited  Kalmakoffs
home   the  residence  of  his  grandparents  (and
adoptive  parents), Micarlo and Martha  Kalmakoff.
School was over for the day, so both Kalmakoff and
his two grandparents were home.
     The   troopers   told   Kalmakoff   and   his
grandparents   that  they  wanted   to   interview
Kalmakoff one more time:

     Stephenson:  [We] just thought  wed  all
get   together  and  ...  talk  [for]  a  few
minutes,  and see if we cant get  this  thing
taken  care of, and get on with life.  So  we
wanted  to stop in and ... [we] thought  your
grandma  and  grandpa could be  in  on  this,
okay?
     .  .  .

     Allen:   Because, you know,  ...  theres
some  things that you mightve told us already
that  [your grandparents] might not even know
about.   You  think that would be  fair,  you
think?   And were not doing this to embarrass
you,   or  anything  like  that,  with   your
grandparents.     Eventually,     all     the
information is going to be available, okay?

     Kalmakoff:     You    want     me     to
(indiscernible).

     Allen:  So, would you like to start off,
so that you can bring your grandparents up to
speed  on everything that youve talked to  us
about already?

     Stephenson:   Byron,  I  just  want   to
remind  you  that what I read to you  earlier
still  applies.  But ... like  I  said,  were
hoping we can just get everything out in  the
open,  [so]  we can get on an airplane,  head
back to town.

     Allen:  Its your choice, but  you  know,
if you want to talk to us about this in front
of  your  grandparents or not, thats entirely
your choice.

     Kalmakoff:  Yeah.  I dont know where  to
start from, though.

     Allen:  Well, let me  you know, ...  you
could   Did  you talk with Trooper Stephenson
about ... a gun?

     Kalmakoff:  Yeah.

     Allen:   [Do]  your  grandparents   know
about that?

     Kalmakoff:     (Indiscernible)     about
(indiscernible).

     Micarlo Kalmakoff:  Yeah, hes told me  a
little bit about that yesterday.

     Allen:  Okay.

     Stephenson:   Okay, why  dont  we  start
there.   Thats ... a good point  [to  start].
Um,  you told me yesterday that you and Aaron
went  down [to Rick Reynoldss house] to check
on [B.K.], and you ... were snooping a little
bit [and] found a pistol.  Is that correct?

     Kalmakoff:  Yeah.

     Stephenson:  Okay.  Why dont we just  go
from there:  what you guys did while you were
in  the  basement snooping around,  and  then
well just go from there.  You tell me in your
own  words  what  you told me yesterday,  and
well fill in the blanks ... .

          The  troopers  proceeded  with  the
interview, and Kalmakoff made statements that
were  more  and more self-incriminatory.   He
never  expressed a desire to stop, or even  a
reluctance to continue answering questions.
          By  the  time this third  interview
ended,  Kalmakoff admitted that he  and  B.K.
got  into an argument at Reynoldss house  she
was  criticizing  him for  being  drunk   and
that,   during   this   argument,   Kalmakoff
accidentally   shot  her.    Kalmakoff   also
admitted  that he carried B.K.s body  outside
and placed it in some bushes.
          The  interview ended a few  minutes
later,  at  4:00 p.m..  All told, this  third
interview   lasted  less  than  25   minutes.
Despite  Kalmakoffs admission that he  killed
B.K.,  the  troopers did not  take  him  into
custody; they left him at home.

Underlying facts  Kalmakoffs fourth interview with the
troopers

     The  following  afternoon (at 12:55  p.m.  on
February 14, 2002), the troopers went to the Pilot
Point  school to take Kalmakoff into  custody  and
fly   him  to  the  McLaughlin  Youth  Center   in
Anchorage.
     When  the  troopers picked up Kalmakoff  from
school,  they  asked him if he would  ride  around
with   them  and  talk  with  [them]  about   what
happened.   Kalmakoff  agreed,  and  he  left  the
school  with  the  troopers.   The  troopers  then
informed  Kalmakoff that he would have  to  go  to
Anchorage  with them, and that he  would  have  to
stay in Anchorage for at least a few days.
     Kalmakoff asked the troopers if they had told
anyone  else in the village about the things  that
Kalmakoff had told them the day before.  Kalmakoff
also  repeatedly declared that he didnt do  it  on
purpose  and he insisted that, if the troopers did
tell  other  people  in  the  village  about  what
Kalmakoff  had done, they clarify that [he]  didnt
do   it  on  purpose.   Kalmakoff  also  told  the
troopers, Its that dang booze.
     At   this   point,  Trooper   Allen   advised
Kalmakoff  of his Miranda rights, as well  as  his
right  to  have  a  parent  or  guardian  present.
Kalmakoff waived his rights.
     The   troopers  then  commenced  the   fourth
interview  with Kalmakoff.  This interview  lasted
approximately   45-50   minutes.    During    this
interview,  Kalmakoff  described  shooting   B.K.,
transporting  her  body on his  four-wheeler,  and
then disrobing B.K. and having sex with her.   The
main portion of this interview ended at 1:50 p.m..

The superior courts ruling

          Following Kalmakoffs indictment, he asked the
superior court to suppress all four statements that  he
gave to the state troopers.
          With  respect to the first interview  at  the
city  office building, Kalmakoff argued that he was  in
custody  for  Miranda purposes, and that  the  troopers
failed to advise him of his Miranda rights.
          With  respect to the second interview at  the
city  office  building, Kalmakoff argued  that  he  was
again  in  custody  for  Miranda  purposes,  that   the
troopers  at first failed to advise him of his  rights,
and  that the troopers later advised him of his  rights
but then failed to honor his invocation of his right to
silence.
          With respect to the interview at his (and his
grandparents)   home,  Kalmakoff   argued   that   this
interview  was, in essence, an extension of the  second
interview,  and that even though the troopers  reminded
him of his Miranda rights, his statements at this third
interview   were   tainted  by  the  previous   Miranda
violations   in  particular, by the  troopers  flagrant
failure to honor his invocation of his right to  remain
silent at the second interview.
          Finally, with respect to the fourth interview
(the  one  that  took place on the  day  of  Kalmakoffs
arrest), Kalmakoff conceded that he was advised of  his
Miranda  rights and that he told the troopers  that  he
wished to waive those rights, but Kalmakoff argued that
his  waiver and his ensuing statements to the  troopers
were  tainted by the earlier Miranda violations.  Based
on  the  troopers earlier failure to honor his  rights,
Kalmakoff  contended that he did not  truly  understand
that  he  could not be compelled to answer the troopers
questions.  Kalmakoff further contended that, when  the
troopers   discussed   his   juvenile   status,    they
effectively  misled him concerning the consequences  of
any self-incriminatory statements.
          Superior Court Judge Fred J. Torrisi  granted
Kalmakoffs suppression motion in part.
          The  judge  ruled that Kalmakoff was  not  in
custody  when the first interview began.  However,  the
judge    concluded    that   the   situation    altered
significantly when the troopers took a break, Kalmakoff
left   the   interview  room,  and  Trooper  Stephenson
remarked  to  his  partner that they were  hot  on  the
trail.   At  that  point, Judge Torrisi concluded,  the
interview  became  custodial   and  therefore,  because
Kalmakoff  did not receive Miranda warnings, his  post-
break statements had to be suppressed.
          Judge  Torrisi also concluded that  Kalmakoff
was   in   custody  throughout  the  second  interview.
Accordingly, the judge suppressed all of the statements
that  Kalmakoff  made before the troopers  administered
the Miranda warnings.  The judge also suppressed all of
the  statements that Kalmakoff made after  he  received
the  Miranda warnings  because the troopers  failed  to
honor Kalmakoffs assertion of his right to silence.
          However,  Judge Torrisi concluded that  these
Miranda  violations did not taint the third and  fourth
interviews  i.e., the interview at Kalmakoffs house  on
the  afternoon  of February 13, 2002 and the  interview
that took place the next day when the troopers went  to
the village school to take Kalmakoff into custody.
          Judge  Torrisi  noted that, even  though  the
second  interview  at  the  city  office  building  was
custodial  in its entirety, Kalmakoff was  released  at
the  conclusion of that interview.  The third interview
began  three  and  a  half hours later,  and  Kalmakoff
remained  out  of custody during that entire  interval.
And, on the issue of whether the troopers violation  of
Miranda  at  the  second interview  tainted  the  third
interview,  Judge  Torrisi declared that  the  troopers
violation  of Miranda at the second interview  was  not
flagrant.
          Judge  Torrisi  further  concluded  that  the
third interview was non-custodial.  The judge noted (1)
that  the  interview took place in the home  shared  by
Kalmakoff and his grandparents, (2) that Kalmakoff  was
at liberty for several hours before the interview, thus
giving him the opportunity to consult his grandparents,
and (3) that the interview occurred in the presence  of
his grandparents.
          In  addition, Judge Torrisi noted  that  even
though the troopers did not formally repeat the Miranda
warnings  at  this third interview, they did  at  least
remind  [Kalmakoff] of his rights.  For  these  reasons
i.e.,  the  fact  that the interview was non-custodial,
and  the fact that Kalmakoff was reminded of his rights
Judge  Torrisi  concluded that the third interview  was
not tainted by the earlier Miranda violations.
          With  respect to the fourth interview,  Judge
Torrisi  concluded  that Kalmakoffs statements  to  the
troopers  were fully admissible.  The judge noted  that
the  troopers formally advised Kalmakoff of his  rights
at  the beginning of this interview, and that Kalmakoff
(for the first time) explicitly waived those rights and
consented to talk to the troopers about the homicide.
          Regarding Kalmakoffs argument that he did not
fully  understand his rights, Judge Torrisi noted  that
it   was  not  uncommon  for  a  suspect  to  ask   for
clarification of his rights, and the judge  noted  that
the troopers statements and responses to Kalmakoff were
[not] overbearing or coercive.

The issues raised on appeal

          As  just  explained, Judge Torrisi suppressed
the   latter  portion  of  the  first  interview   (the
interview  that took place at the city office  building
on  February 12, 2002) and the entirety of  the  second
interview  (the interview that took place at  the  city
office  building the following day, February 13,  2002)
on  the  grounds that the troopers violated  Kalmakoffs
Miranda   rights   by  failing  to  administer  Miranda
warnings  at  the first interview, and  by  failing  to
honor Kalmakoffs invocation of the right to silence  at
the second interview.  In this appeal, Kalmakoff argues
that Judge Torrisis ruling did not go far enough.
          Kalmakoff  contends that he  was  in  custody
(for  Miranda purposes) throughout the first interview,
and  that, as a consequence, the entirety of that first
interview   should  have  been  suppressed.   Kalmakoff
further  contends that the troopers used his statements
during that first interview as investigative ammunition
during  the third and fourth interviews, and  that  the
statements  he gave during those latter two  interviews
are therefore the tainted fruit of the first interview.
          Alternatively, Kalmakoff  argues that even if
Judge  Torrisi  was correct about the  first  interview
that  is,  even if Kalmakoff was not in custody  during
the  initial portion of that first interview,  so  that
the  statements he made during that first portion  were
properly  admissible against him  the third and  fourth
interviews  were nevertheless tainted  by  the  Miranda
violations that occurred during the second half of  the
first interview and at the second interview.
          Kalmakoff  argues that even though the  third
interview took place at his home, he was in custody for
Miranda  purposes during that interview, owing  to  the
coercive  effects of the earlier Miranda violations  at
his first and second interviews.
          Kalmakoff further argues that even though  he
received  full Miranda warnings, and explicitly  waived
his  rights before the fourth interview (the  one  that
took  place  when the troopers came to the Pilot  Point
school on February 14, 2002 to arrest him and take  him
to Anchorage), that fourth interview was tainted by the
Miranda  violations  at the first,  second,  and  third
interviews.

Was  Kalmakoff in custody for Miranda purposes from the
beginning of the first interview?

          As explained above, when the troopers arrived
in  Pilot Point to investigate the homicide, they asked
local  officials to contact everyone who  had  attended
the  party  at Rick Reynoldss house, and to have  these
people  come  to  the  city  office  building   to   be
interviewed.   Acting  on  the troopers  request,  VPSO
Etuckmelra went to the Pilot Point school to get  three
boys:    Leon  Neketa,  Aaron  Kalmakoff,   and   Byron
Kalmakoff.   Etuckmelra notified the  school  principal
that  the  boys would be leaving class, and  (as  later
found  by  Judge Torrisi) she told Kalmakoff  that  the
troopers  needed some information from him.  Etuckmelra
then  transported  the three boys to  the  city  office
building in her patrol vehicle.
          As  we also explained, there is an unresolved
conflict  in  the  testimony as to  whether  Etuckmelra
notified  Byron  Kalmakoffs grandmother  and  guardian,
Martha  Kalmakoff, about what was happening.  According
to   Etuckmelras   testimony,  she  telephoned   Martha
Kalmakoff and told her that she was taking Byron to the
city office building to be interviewed  to which Martha
responded  that  this was fine.  But according  to  the
testimony of Martha Kalmakoff and her daughter,  Jackie
Kalmakoff (Byron Kalmakoffs aunt), Etuckmelra  did  not
notify  Martha about the interview  and Martha did  not
find  out  that  Byron  was being  interviewed  by  the
troopers until the interview was underway, when  Jackie
called her.
          In  his written decision, Judge Torrisi noted
this  conflict in the testimony but he did not  resolve
it.
          In his briefs to this Court, Kalmakoff argues
that  this  first  interview  was  custodial  from  its
inception.  Kalmakoff notes that students are not  free
to  leave school on their own.  From this, he concludes
that  a  reasonable person in his position  would  have
believed  that  he  was not free to refuse  Etuckmelras
request  to accompany her to the city office  building,
nor  free  to  leave  the  city office  building  until
Etuckmelra or the troopers told him that he was free to
go.
          For  its  part,  the State notes  that  Judge
Torrisi   found  that  Kalmakoff  didnt   express   any
reluctance   to   accompany   Etuckmelra,   and    that
Etuckmelras act of transporting the boys in  her  truck
could  easily  be explained in terms of efficiency  and
comfort,  rather than a desire to isolate or intimidate
the  boys.   The State also notes that, after Kalmakoff
arrived  at  the  city office building,  he  apparently
waited  for some time in the outer hallway, with  other
Pilot   Point   residents,  while  the  troopers   were
interviewing  other people. And the State  notes  that,
during  a  bathroom break, Kalmakoff went  through  the
outer  lobby,  saw his grandmother sitting  there,  and
merely  smiled at her and continued walking   in  other
words, Kalmakoff had access to his grandmother, but did
not  attempt to talk to her about his situation, or  to
seek her help or advice.
          Although  both Kalmakoff and the  State  have
done  an  admirable job of assembling and  arguing  the
facts   of  the  case  in  light  of  their  respective
positions, neither Kalmakoff nor the State has provided
this   Court  with  case  law  addressing  the  primary
underlying   legal  issue:   whether,   and   how,   an
adolescents  status  as  a  secondary  school   student
affects the assessment of whether a police interview is
custodial  for purposes of Miranda when the  adolescent
is summoned from class to be interviewed.
          There  are,  in  fact, many  appellate  court
decisions  dealing  with this  issue.   Although  these
decisions reach differing conclusions regarding whether
a particular juvenile was in Miranda custody, depending
on the facts of each case, they are virtually unanimous
in  recognizing  that  a directive  or  request  for  a
secondary school student to leave class for the purpose
of being questioned by a police officer can result in a
custodial  interrogation  for  Miranda  purposes.   The
factors  that  courts consider are:  (1)  the  age  and
sophistication of the student, (2) whether the  student
was  told that they were free to leave or to break  off
the  questioning  if they wished, and (3)  whether  the
student was given the opportunity to consult or  obtain
the presence of a parent or guardian.
          Two  of  the  major cases in this  area  were
decided by the Oregon Court of Appeals:  State ex  rel.
Juvenile Department of Lane County v. Killitz, 651 P.2d
1382  (Or.  App.  1982),  and State  ex  rel.  Juvenile
Department of Multnomah County v. Loredo, 865 P.2d 1312
(Or. App. 1993).
          In   Killitz,  a  junior  high  student   was
summoned  to  the  principals  office,  where  he   was
interviewed by a uniformed, armed police officer in the
principals  presence.   The court  concluded  that  the
student  was  in custody during this interview  because
(1) the student would have been subject to disciplinary
measures if he had not come to the office when told  to
do  so,  (2)  the student was never told by either  the
officer or the principal that he was free to leave  the
office, and (3) the student was being interviewed as  a
suspect  rather than a witness. As a result, the  court
concluded   that   the  interrogation  was   custodial.
Killitz, 651 P.2d at 1383-84.
          In  Loredo,  a thirteen-year-old student  was
summoned  to  the  principals  office  where   he   was
interviewed  by  a  police officer  in  plain  clothes.
However,  in contrast to the situation in Killitz,  the
officer  immediately informed the student that  he  was
not  under arrest, that he could leave if he wanted to,
and  that he did not have to answer any of the officers
questions.  Loredo, 865 P.2d at 1313-1314.   The  court
concluded  that  the  student was not  in  custody  for
purposes  of Miranda  but the court made the  following
observation:
     
     [Because]  the  school setting  is  more
constraining than other environments,  it  is
especially  important that police  interviews
with  children,  when  carried  out  in  that
setting,  are conducted with due appreciation
of  the age and [level of] sophistication  of
the particular child. An interview that would
not   be   compelling  for  an  adult   might
nonetheless  frighten a child into  believing
that  he  or  she was required to  answer  an
officers questions.  Accordingly, special pre
cautions  should  be  taken  to  ensure  that
children   understand  that  they   are   not
required to stay or answer questions asked of
them by a police officer.

Id.  at  1315.  Accord, State v.  Budke,  372
N.W.2d  799,  801 (Minn. App. 1985)  (holding
that  an  eighteen-year-old suspect  who  was
summoned  to  a  police  interview   in   the
principals office was not in custody  because
he  was informed by the interrogating officer
that  he  was  free to leave  the  principals
office at any time).
          The  Oregon decision in Killitz  is
representative  of the approach  followed  by
many  courts  when  they  assess  whether  an
interview  is custodial for Miranda  purposes
when   a   student  is  compelled  by  school
authorities  to leave their normal  classroom
setting to speak with the police in a private
location.
          See  In  re Welfare of R.J.E.,  642
N.W.2d 708, 709-710 (Minn. 2002), where   the
court   affirmed   the   suppression   of   a
confession made by a high school student  who
was  interrogated in the school office  by  a
uniformed police officer acting as  a  school
liaison  officer.  The officer did  not  give
Miranda  warnings  to the  student,  did  not
inform  the student that he could decline  to
answer  questions, did not inform the student
that  he was free to leave if he wished,  and
did not inform the student that he could have
a parent present during the interview.
          See  also In re Welfare of  G.S.P.,
610  N.W.2d  651, 657-58 (Minn.  App.  2000),
where  the  court suppressed  the  statements
made   by  a  twelve-year-old  middle  school
student   with  no  prior  criminal   justice
experience who was summoned to the principals
office and subjected to interrogation by  the
principal and a police officer.  The  student
was  not  told that he was free to leave;  in
fact,  the  student was told that he  had  to
answer  the questions.  The court  held  that
the   student  was  in  custody  for  Miranda
purposes   and  that the students  statements
had  to  be  suppressed because  he  did  not
receive Miranda warnings.
          See  also  State v. D.R., 930  P.2d
350,  353 (Wash. App. 1997), where the  court
suppressed   the   statements   made   by   a
fourteen-year-old boy who was interrogated by
a  police  officer  in the  presence  of  the
assistant  principal  and  a  school   social
worker.   The  interview took  place  in  the
assistant principals office. The boy was told
that he did not have to answer questions, but
he  was not otherwise given Miranda warnings.
The court declared that the pertinent inquiry
was   whether  a  fourteen-year-old  in   the
students   position  would  have   reasonably
supposed his freedom of action was curtailed.
The  court concluded that the student was  in
custody  during his interview, based  on  the
police officers failure to inform him that he
was  free  to leave, the students youth,  the
fact   that  the  principals  office  was   a
coercive environment for a child his age, and
the accusatory nature of the interrogation.
          See  also  State v. Doe,  948  P.2d
166, 172-74 (Idaho App. 1997).  In Doe, a ten-
year-old  boy  was  directed  to  leave   his
fifth-grade  classroom  and  report  to   the
faculty  room, where he had been  disciplined
previously.  There, he was interrogated by  a
police  officer assigned to the school.   The
boy   was  not  informed,  either  by  school
officials  or by the officer who interrogated
him,  that  he  did not have  to  answer  the
officers questions or that he could terminate
the  questioning  at any  time.   No  parent,
guardian,  or  other  adult  was  present  to
protect the boys interest.  And although  the
boy  was ultimately informed that he was free
to go, this did not occur until after the boy
confessed.   The court concluded that,  under
these  circumstances, the boy was in  custody
and was entitled to Miranda warnings:

     We    think   it   unlikely   that   the
environment  of  a  principals  office  or  a
faculty  room is considered by most  children
to  be a familiar or comfortable setting, for
students  normally report to these  locations
for  disciplinary reasons, as Doe had in  the
past.    It   is  also  unlikely   that   any
ten-year-old would feel free to simply  leave
the  administrative area of the school  after
having   been   summoned  there   by   school
authorities for a police interview.   We  are
persuaded  that  under these circumstances  a
child  ten years of age would have reasonably
believed   that   his   appearance   at   the
designated  room  and his submission  to  the
questioning  was compulsory and that  he  was
subject  to  restraint  which,  from  such  a
childs   perspective,   was   the   effective
equivalent of arrest.  We hold that  Doe  was
in  custody  for the purpose of  Miranda  and
therefore  could not properly  be  questioned
without prior advisement of his rights.

Id. at 173-74.
          See  also In re I.J., 906 A.2d 249,
263-64  (D.C.  App. 2006); In re  Welfare  of
T.J.C.,  662  N.W.2d  175,  181  (Minn.  App.
2003),  reversed on other grounds, 667 N.W.2d
108  (Minn.  2003); In re D.A.R.,  73  S.W.3d
505,  512  (Tex. App. 2002); In re L.M.,  993
S.W.2d 276, 290-91 (Tex. App. 1999).
          Compare In re C.S.C., 118 P.3d 970,
976  (Wyo. 2005) (holding that a high  school
student   was  not  in  custody   during   an
interview   conducted  in  a   large   school
conference room by four police officers and a
school  official; the court analyzed  several
factors, including the fact that the  student
was  told that he did not have to talk to the
officers, that he was free to leave, and that
he  was  not under arrest); Doe v. Bagan,  41
F.3d  571, 575 n. 3 (10th Cir. 1994) (holding
that even though a nine-year-old suspect  may
not  have felt free to leave, he was  not  in
Miranda  custody when he was  interviewed  by
two  social  service workers  in  the  school
principals office); In re J.H., 928 A.2d 643,
649-651  (D.C.  App. 2007)  (holding  that  a
student  was not in custody, even though  the
student  was never informed that he  had  the
right not to answer questions or the right to
leave;  the court relied on the trial  courts
findings  that the officer who conducted  the
interview   was   quiet,   soft-spoken,   and
avuncular   engaging in about  as  gentle  an
interview  as one could imagine  under  those
circumstances); Dillard v. State, 612  S.E.2d
804,  807-08 (Ga. App. 2005) (holding that  a
high  school student was not in custody, even
though  the  school  principal  summoned  the
student  to  an  interview conducted  by  two
police officers, and even though, at the  end
of  this  interview, the  student  agreed  to
accompany   the   officers  to   the   police
department for further questioning; the court
noted that the school interview took only  15
minutes,   that  the  officers   manner   was
conversational,  that  the   officers   never
threatened the student, that the student  was
reasonably intelligent and did not appear  to
be  frightened,  and that the  student  never
objected  to  the  questioning  or  asked  to
terminate the interview.).
          See  also People v. Pankhurst,  848
N.E.2d  628 (Ill. App. 2006), which discusses
the related issue of whether a student is  in
custody   for  Miranda  purposes  if   school
officials question the student about  illegal
acts,  even though this questioning might  be
prompted  by  a  police  investigation.   The
Pankhurst court held that such interrogations
are not custodial if (1) the school officials
are legitimately concerned about the students
potential misdeeds because of their  role  as
school  administrators, and  (2)  the  school
administrators are not acting merely as  cats
paws  for the police in situations where  the
police  would  themselves lack  authority  or
justification for the investigation.  Accord,
J.D.  v.  Commonwealth, 591 S.E.2d  721,  725
(Va.  App. 2004); Interest of J.C., 591 So.2d
315-16 (Fla. App. 1991) (holding that a  high
school  student  was  not  in  custody   when
interrogated  by  the school principal,  even
though a police officer was present; however,
the  court indicated that if the officer  had
asked  the questions, Miranda warnings  would
have been required).
          Given the case law in this area, it
is  clear  that the circumstances leading  to
Kalmakoffs first interview with the  troopers
have  not  been  sufficiently  litigated,  or
clarified,  to allow us to make  an  informed
decision  as  to  whether  Kalmakoff  was  in
custody   (and  thus  entitled   to   Miranda
warnings) at the beginning of that interview.
          We  acknowledge that Kalmakoff  was
relatively young at the time of the interview
(he  had  only recently turned fifteen),  and
the  transcript of the interview  shows  that
the  troopers  never told Kalmakoff  that  he
could  decline to answer their questions,  or
that he was free to leave whenever he wished,
or   that  he  had  the  right  to  have  his
grandparents  (i.e.,  his  adoptive  parents)
present during the interview.
          On  the  other hand, certain  other
important   circumstances  surrounding   this
first  interview  remain vague.   Etuckmelras
conversation with Kalmakoff at the school was
apparently  not  recorded, and  the  superior
court made no findings on two crucial issues:
what  Etuckmelra or the school principal  may
have  said  or implied to Kalmakoff regarding
(1)  whether he was required to leave  school
and  attend the interview at the city  office
building,  and (2) whether he was obliged  to
answer  the troopers questions if he did  not
wish  to.  The only express finding that  the
superior court made on these issues was  that
Etuckmelra  checked  in  with  the   [school]
principal  and  that she told Kalmakoff  that
the  troopers  needed some  information  from
him.
          For  these reasons, if we  believed
that  the  resolution  of  Kalmakoffs  appeal
required us to reach a firm conclusion as  to
whether he was in custody at the beginning of
this first interview, we would have to remand
Kalmakoffs  case  to the superior  court  for
additional   findings   on   these    issues.
However,  as  we  are about  to  explain,  we
conclude  that the statements Kalmakoff  made
at   the  third  and  fourth  interviews  are
admissible even if we assume that the  entire
first  interview  should be  suppressed.   We
further    conclude    that,    given     the
admissibility   of  the  third   and   fourth
interviews, even if it was error to introduce
Kalmakoffs   statements   from   the    first
interview  at  his  trial,  that  error   was
harmless.

Why we conclude that Kalmakoffs statements from the
third and fourth interviews are admissible

          As  explained above, Judge Torrisi suppressed
all of Kalmakoffs statements from the second interview,
and  we will now assume that Kalmakoffs statements from
the   first   interview  should  likewise   have   been
suppressed.  The next question is whether these Miranda
violations require suppression of Kalmakoffs statements
from  the  two ensuing interviews  the third  interview
(the one that took place at Kalmakoffs home in the mid-
afternoon   of  February  13,  2002)  and  the   fourth
interview  (the one that took place when Kalmakoff  was
taken  from  school  and arrested  on  the  morning  of
February 14, 2002).
          The method for analyzing this question is set
forth  in  Halberg v. State, 903 P.2d  1090,  1097-1100
(Alaska App. 1995).
          The  defendant  in Halberg was questioned  by
the  state troopers regarding the death of her husband.
Halberg  was advised of her Miranda rights, and invoked
her rights, but the trooper who was questioning Halberg
continued  to interview her in spite of her  invocation
of rights.  Later, Halberg was questioned a second time
by  the  troopers. At this second interview, she  again
received Miranda warnings, and this time she explicitly
waived  her rights.  The question on appeal was whether
the  statements  obtained from  Halberg  at  the  first
interview tainted the statements obtained at the second
interview.  Id. at 1092-93.
          It  was  clear that the content of the second
interview was influenced by the statements Halberg made
at the first interview.  The troopers who conducted the
second   interview   referred   to   Halbergs   earlier
statements  or implicitly relied on knowledge  obtained
from those earlier statements.  Indeed, the trial judge
in  Halberg expressly found that, given the  fact  that
the  officers  at  various points  refer[red]  back  to
[Halbergs]  prior answers or statements,  it  would  be
impossible  to conclude that the contents of [Halbergs]
second and subsequent statements would [have been]  the
same without the first statement.  Id. at 1093.
          But even though the second interview could be
viewed  as  the  fruit of the first interview,  in  the
sense  that  the  troopers  who  conducted  the  second
interview  either  explicitly  referred  to  statements
Halberg  made at the first interview or ...  relied  on
knowledge  obtained from Halbergs answers at the  first
interview, we held that this fact, standing alone,  was
not determinative of whether the statements made at the
second interview should be suppressed.  Id. at 1097-98.
We  explained  that, even under the law as  it  existed
before Oregon v. Elstad,3
     
     it  [would  be] error to employ [a]  but  for
     test  to  analyze whether Halbergs subsequent
     statements  were  the  fruit  of  her   first
     interview.   Long before Elstad, the  Supreme
     Court explicitly rejected a causation or  but
     for test as the method for judging whether  a
     defendants statement is the result of a prior
     occurrence.   Brown  v.  Illinois,  422  U.S.
     [590,]  603,  95  S.Ct.  [2254,]  2261[,   45
     L.Ed.2d 416 (1975)]; Hutto v. Ross, 429  U.S.
     [28,] 30, 97 S.Ct. [202,] 203-04[, 50 L.Ed.2d
     194 (1976) (per curiam)].
     
          The  question is not whether the content
     of the second and subsequent interviews would
     have  been  the same if the initial interview
     had  not  taken place.  Instead, the question
     is whether Halbergs decision to submit to the
     second   and   subsequent   interviews    was
     sufficiently an act of free will to purge the
     ...  taint  of the Miranda violation  at  the
     first interview.  Brown v. Illinois, 422 U.S.
     at  602, 95 S.Ct. at 2261.  Under this  test,
     we  must  concentrate on Halbergs consent  to
     participate in the subsequent interviews  and
          decide whether this consent was tainted by
     the  statements  she made  during  the  first
     interview.
     
     Halberg, 903 P.2d at 1097.
          We  then explained that, under pre-
Elstad   law,   courts  looked   to   several
different  factors  when  assessing   whether
there  had  been a sufficient  break  in  the
stream  of  events to insulate  a  defendants
subsequent interview from a preceding Miranda
violation.   Here  is our  listing  of  these
factors:

the  purpose  and flagrancy  of  the  initial
illegal  act, the amount of time between  the
illegal  act  and  the defendants  subsequent
statement, the defendants physical and mental
condition  at  the  time  of  the  subsequent
statement, whether the defendant remained  in
custody   or  was  at  liberty  during   this
interval,  whether  the  defendant  had   the
opportunity  to  contact  legal  counsel   or
friends  during  this interval,  whether  the
subsequent   interview  took   place   at   a
different  location, whether  the  defendants
interrogators  were  the  same  officers  who
committed the prior illegal act, whether  the
evidence obtained from the prior illegal  act
affected the defendants decision to submit to
a  subsequent interview, whether  the  police
used  lies  or  trickery  to  influence   the
defendants  decision, and whether there  were
other  intervening events that  affected  the
defendants decision.

Halberg, 903 P.2d at 1098.  We also explained
that, under pre-Elstad law, the admissibility
of  a  subsequent interview is determined  by
assessing  all  of  these  factors,  with  no
single factor being dispositive.  Id. (citing
Brown  v. Illinois, 422 U.S. at 603, 95 S.Ct.
at 2261).
          We  now analyze Kalmakoffs case  in
light of these factors.
          When  assessing  the  purpose   and
flagrancy  of the Miranda violations  at  the
first   two  interviews,  we  must   draw   a
distinction between the troopers  conduct  at
the  first interview and the troopers conduct
at the second interview.
          We  have assumed that there  was  a
Miranda  violation  at  the  first  interview
because  Kalmakoff was taken from  school  by
the    village    public   safety    officer,
transported  to  the interview  at  the  city
office  building, and never expressly advised
that  he could refuse to participate  in  the
interview,   or   could  refuse   to   answer
particular questions, or could insist on  the
presence  of  a parent or guardian.   But  as
Judge  Torrisi noted in his written decision,
the   tone   of  this  first  interview   was
generally polite and non-confrontational, and
Kalmakoff   was  not  threatened,   deprived,
bullied[,] or lied to.
          In  this first interview, Kalmakoff
admitted  only  two violations  of  the  law:
under-age drinking, and temporarily  stealing
a pistol and blanks so that he and his friend
Aaron could go back to Aarons house and shoot
the gun.
          We  acknowledge that, at one  point
during  this  first interview,  the  troopers
suggested  that Kalmakoff might  have  killed
B.K., or might have at least threatened  B.K.
with  the  pistol,  or  (alternatively)  that
Kalmakoff  might know who killed  B.K..   But
Kalmakoff  immediately  denied  any  personal
guilt  and  any knowledge of who  was  guilty
and  the  troopers did not make  any  further
accusations.
          With    regard   to   the    second
interview,  our  analysis of this  factor  is
significantly  different.   In   the   second
interview,     the    troopers     repeatedly
disregarded Kalmakoffs requests to leave  the
interview   requests that began at  the  very
beginning of the interview.  Then,  when  the
troopers finally told Kalmakoff directly that
he  was  not  free  to leave,  and  when  the
troopers  finally  advised Kalmakoff  of  his
Miranda  rights,  they failed  to  honor  his
invocation of his right to silence.  As  soon
as Kalmakoff was told that he did not have to
speak   to   the  troopers,  he   immediately
indicated  that he did not wish to  speak  to
them.   But  instead of ending the interview,
the troopers continued to question Kalmakoff.
They  implied that he did have  to  speak  to
them, and that his only choice was whether to
be questioned alone or in the presence of his
grandparents.  The troopers also demanded  to
know  why Kalmakoff was not willing to  speak
to  them, and they tried to get him to  agree
to  be interrogated on a question-by-question
basis.
          In  short, the conduct of  the  two
troopers during this second interview was  an
egregious violation of Miranda.
          Nevertheless, the troopers obtained
little  information from this violation.   In
response  to the troopers unlawful  cajoling,
Kalmakoff  made  only one  self-incriminating
admission:  that he had consumed about half a
pint  of  whiskey  on  the  evening  of   the
homicide.      Then,    almost    immediately
afterward, Kalmakoff again told the troopers,
I  dont really feel like answering questions.
At  this  point, the troopers finally honored
Kalmakoffs   invocation  of  his   right   to
silence, and they stopped interrogating him.
          Turning to the next several factors
we  note that there was a significant  amount
of time  approximately three and a half hours
between  the second interview and  the  third
interview.   During this interval,  Kalmakoff
remained at liberty; he apparently went  back
to school at the end of the second interview,
and  then  he  went home at the  end  of  the
school  day.  Because of this, Kalmakoff  had
the   opportunity  to  speak  to  family  and
friends  during  the several hours  preceding
the third interview.
          At  the third interview, Kalmakoffs
interrogators  were  the  same  two  troopers
Stephenson and Allen  who repeatedly violated
but   then   eventually  honored   Kalmakoffs
Miranda   rights  at  the  second  interview.
However,  this third interview took place  at
Kalmakoffs  home  rather  than  at  the  city
office  building (the site of the  first  two
interviews).   Kalmakoff was not  in  custody
during this third interview, and both of  his
grandparents  (his  adoptive  parents)   were
present with him during this interview.
          The  troopers  did  not  use  lies,
trickery,   or  other  deception  to   induce
Kalmakoff  to agree to this third  interview.
Indeed,  they  did not even ask Kalmakoff  to
make  any  further statements  regarding  his
role  in,  or  knowledge  of,  the  homicide.
Instead,  the troopers merely asked Kalmakoff
if  he  was willing to repeat the same things
that   he  had  already  told  them  in   the
preceding   two  interviews,  so   that   his
grandparents would be aware of these things.
          Finally, on the question of whether
Kalmakoffs  decision to  participate  in  the
third  interview was materially  affected  by
the  statements obtained from him during  the
first and second interviews, we conclude that
the answer is no.
          As  we  have  explained,  Kalmakoff
made  only two significant admissions  during
the  first two interviews.  He admitted  that
he  had engaged in under-age drinking on  the
night  in question, and he admitted  that  he
and his friend Aaron had temporarily stolen a
pistol  and blanks from Rick Reynoldss  house
(and  then  had  shot  the  pistol  at  Aaron
Kalmakoffs house before returning it).
          It   is   true  that  the  troopers
initiated  the  conversation  at  the   third
interview  by asking Kalmakoff  to  tell  his
grandparents  about  the  incident  with  the
pistol.   But  if Kalmakoff had  merely  done
what   the  troopers  asked  (that   is,   if
Kalmakoff  had simply repeated  what  he  had
already   said   about  the   pistol),   this
information  would  not have  implicated  him
further   in   the  homicide.   Instead,   as
Kalmakoff began talking, he revealed more and
more of his involvement in the homicide   far
beyond anything that he had previously  said.
As   the   interview  progressed,   Kalmakoff
admitted  that  he  and  B.K.  got  into   an
argument at Reynoldss house (because she  was
criticizing  him for being drunk)  and  that,
during  this argument, Kalmakoff accidentally
shot   her.   Kalmakoff  then  stated   that,
following  this  shooting, he  carried  B.K.s
body outside and placed it in some bushes.
          The  interview lasted less than  25
minutes   and,   as   we  noted   previously,
Kalmakoff  never expressed a desire  to  stop
the interview, nor any reluctance to continue
answering questions.
          When  we  evaluate the totality  of
these  circumstances, we conclude that,  even
under  pre-Elstad law, this  third  interview
was  sufficiently insulated from the  Miranda
violations  that occurred at  the  first  and
second   interviews.   The  statements   that
Kalmakoff  made at this third interview  were
therefore properly introduced against him  at
his trial.
          Our  conclusion with respect to the
third   interview  leads  us  to   the   same
conclusion   with  respect  to   the   fourth
interview:  Kalmakoffs statements during  the
fourth interview were likewise admissible.
          Finally,    given   the    relative
unimportance  of  Kalmakoffs statements  from
the first and second interviews when compared
to  the  expressly  incriminating  statements
that  Kalmakoff  made during  the  third  and
fourth  interviews, we conclude that even  if
it  was  error to admit statements  from  the
first  interview  at Kalmakoffs  trial,  that
error   was   harmless  beyond  a  reasonable
doubt.4

Conclusion

     The  judgement  of  the  superior  court   is
AFFIRMED.

_______________________________
  *  Sitting  by assignment made pursuant to Article IV,  Section
11 of the Alaska Constitution and Administrative Rule 23(a).

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

3 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985).

4See Chapman v. California, 386 U.S. 18, 24; 87 S.Ct. 824,
828; 17 L.Ed.2d 705 (1967), holding that constitutional
error  will  require reversal of a criminal  conviction
unless  the  error  is shown to be  harmless  beyond  a
reasonable doubt.  And see Motta v. State, 911 P.2d 34,
39-40 (Alaska App. 1996) (citing Arizona v. Fulminante,
499  U.S.  279,  306-12; 111 S.Ct. 1246,  1262-66;  113
L.Ed.2d  302  (1991)),  acknowledging  that  this  test
applies  when the government introduces evidence  of  a
confession  obtained  in violation  of  the  defendants
Miranda rights.

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC