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Carney v. State (3/4/2011) ap-2296

Carney v. State (3/4/2011) ap-2296

                                                NOTICE 
        The text of this opinion can be corrected before the opinion is published in thePacific 
        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
 
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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

CRESS CARNEY,                                    ) 
                                                 )         Court of Appeals No. A-10348 
                            Appellant,           )         Trial Court No. 3DI-06-612 CR 
                                                 ) 
             v.                                  ) 
                                                 )                O    P   I  N  I  O  N 
STATE OF ALASKA,                                 ) 
                                                 ) 
                            Appellee.            ) 
                                                 )           No. 2296 - March 4, 2011 

                Appeal      from   the   Superior    Court,   Third   Judicial   District, 
                Dillingham, Fred Torrisi, Judge. 

                Appearances:       Dan   S.   Bair,   Assistant   Public   Advocate,   and 
                Rachel Levitt, Public Advocate, Anchorage, for the Appellant. 
                W.H.     Hawley,    Assistant   Attorney    General,   Anchorage,     and 
                Daniel S. Sullivan, Attorney General, Juneau, for the Appellee. 

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

                BOLGER, Judge. 

                Cress Carney confessed to murder during an interview with the Dillingham 

police.  He now argues that the investigating officers coerced his confession when they 

promised not to arrest him and promised not to tell others about what he admitted.  He 

points out that we have suppressed confessions that were induced by similar promises 

of immunity.      But despite the coercive potential of the officers' promises, the record 

----------------------- Page 2-----------------------

demonstrates that Carney did not believe these promises and that Carney actually believed 

that he would be arrested and prosecuted for murder if he confessed.                We accordingly 

conclude that Carney's confession was not induced by the officers' promises. 

        Background 

                Carney was charged with first-degree murder, second-degree murder, and 

tampering with evidence.  He filed a motion to suppress the evidence obtained from his 

first police interview, arguing that his inculpatory statements during that interview were 

involuntary. Superior Court Judge Fred Torrisi held an evidentiary hearing on Carney's 

motion. 

                At the hearing, the parties stipulated to the admission of Carney's criminal 

record that included thirty-three prior convictions over a twenty-year period. Carney also 

presented the testimony of an Anchorage Police Department officer who spoke with 

Carney in February 2004 about an attempted sexual assault.                The officer testified that 

Carney had requested a lawyer after receiving Miranda warnings, and the officer had 

terminated the interview. 

                The State presented the testimony of Sergeant John Kirby of the Dillingham 

Police   Department.      Kirby   testified   that   Natalia   Timurphy   was   reported   missing   on 

September 12, 2006.         Her body was discovered on September 28 in the Nerka Pit area 

near Dillingham. Kirby and Sergeant Dan Pasquariello were assigned to the investigation 

in early November. 

                Kirby   testified   that   on   November   13,   he   and   Pasquariello   stopped   at   a 

convenience store called the Bristol Express for a break.  Carney came up to Kirby and 

asked about the Timurphy investigation. Kirby replied that Carney was about the twenty- 

first person on their list of witnesses to interview, and that they were currently on the 

                                                 - 2 -                                           2296
 

----------------------- Page 3-----------------------

eighteenth interview. Carney said that he would be available when the police were ready 

to talk to him. 

                On    November      15,   Kirby   contacted    Carney     at  the  home    of  Jackson 

McCormick.       Kirby asked if Carney was available for an interview and suggested that 

the interview could be at Carney's home, McCormick's home, or the police station. 

Carney said that he would call Kirby after he picked up his girlfriend, but an hour later, 

Carney arrived at the police station without calling ahead. 

                At the suppression hearing, the State submitted a recording of Carney's 

interview   with   Kirby   and   Pasquariello.       At   the   beginning   of   the   interview,   Kirby 

emphasized that he was not planning to arrest Carney or any of the other witnesses that 

they   were   interviewing.    Over   the   course   of   the   interview,   the   sergeants   frequently 

repeated their promise that Carney would not be arrested. 

                Sometimes the promise was all-encompassing:   "We're not going to arrest 

you, we're not going to arrest anybody else that we've talked to. I tell everybody the same 

thing:   You're going to leave here just like you came here and go on about your life, 

okay?"    Other times the promise was more limited in scope:             "I can reiterate that we're 

not going to arrest you today" (emphasis added). In all, the sergeants repeated some form 

of this "you will not be arrested" promise at least a dozen times. 

                Kirby also promised that the police would not reveal the statements that they 

took from Carney and the other witnesses. He promised not to reveal Carney's statement 

to the victim's family or friends, to Carney's girlfriend, or to anyone else. 

                At first Carney denied knowing anything about Timurphy's death.  But 

eventually he admitted that he had strangled Timurphy after she threatened to accuse him 

of raping her. 

                The interview lasted for about three hours. After Carney confessed, he went 

outside the station with Kirby to smoke cigarettes.              Carney told Kirby that if he was 

                                                 - 3 -                                           2296
 

----------------------- Page 4-----------------------

arrested, he wanted Kirby to perform the arrest. Kirby clarified that Carney was not under 

arrest at that time, but Kirby agreed that he would be the one to arrest Carney "if it comes 

to that." When Kirby and Carney came back inside, Pasquariello explained that the police 

would be contacting the district attorney for direction. Carney then told Pasquariello that 

if he was arrested, he wanted Kirby to perform the arrest. 

                 The officers obtained an arrest warrant the following day and arrested Carney 

at his home.     Kirby told Carney that he was making the arrest himself, as Carney had 

requested.  Carney did not indicate any objection or surprise about his arrest.  After the 

officers transported Carney to the police station, Kirby advised him of hisMiranda rights. 

When Pasquariello indicated that they wanted to continue the interview, Carney said that 

he knew that they had recorded his interview from the day before.                   Carney waived his 

rights and repeated the confession he made the day before. 

                 After this second interview, Carney and Kirby went outside the station again 

to smoke cigarettes.  Carney asked about the district attorney's decision to press charges 

and indicated that he would like to talk with the district attorney.  Carney also indicated 

that he couldn't sleep the night before because he was worried about the police coming 

to arrest him. 

                 At the suppression hearing, Carney also presented the testimony and report 

of Dr. Richard Fuller, a neuropsychologist. Dr. Fuller reported that Carney had sustained 

a skull fracture and traumatic brain injury when he was nine years old and that he had 

a   long   history   of   substance   abuse.   Dr.   Fuller   reported   that   Carney   had   borderline 

intellectual functioning, with cognitive impairments in the areas of expressive language, 

abstract reasoning, and learning. He opined that Carney's understanding was more basic 

and   concrete   than   the   average   person,   but   that   he   was   generally   capable   of   making 

reasonable decisions. 

                                                   - 4 -                                             2296
 

----------------------- Page 5-----------------------

                Judge Torrisi denied Carney's motion to suppress in a detailed fourteen-page 

decision.   Based on Dr. Fuller's report and the interview transcript, the judge found that 

"Mr. Carney can follow the usual concrete-type conversation, he understands social norms, 

knows right from wrong, and comprehends cause and effect." 

                The judge found that the tone of the first interview was cordial, the two 

officers and Carney were the only ones present, and that an audio recorder was in view 

during the questioning.       He found that Carney was not mistreated in any way; the only 

question was whether his will was overborne by the officers' promises that he would not 

be   arrested   and   their   suggestions   that   the   offender   should   be   forgiven. The   judge 

concluded that Carney's will was not overborne:  he wanted to talk with the officers and 

did not actually believe that he would never be arrested. 

                Carney was convicted of all three charges, and he now appeals. 

        Discussion 

                The test to determine whether a defendant's statement is voluntary involves 

a three-part inquiry: "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."1 

                Applying the first part of this test, we will overturn the trial judge's findings 
only if  they were clearly erroneous.2       On the second and third parts of this test we must 

exercise our independent judgment:   "In determining the accused's mental state and its 

        1   State v. Ridgely, 732 P.2d 550, 554 (Alaska 1987). 

        2   Beavers v. State, 998 P.2d 1040, 1044 (Alaska 2000). 

                                                 - 5 -                                              2296 

----------------------- Page 6-----------------------

legal significance ... we conduct an independent examination of the entire record and base 
our conclusion upon the totality of circumstances surrounding the confession."3 

                When assessing the totality of the circumstances, we must consider "the age, 

mentality, and prior criminal experience of the accused; the length, intensity and frequency 

of interrogation; the existence of physical deprivation or mistreatment; and the existence 
of threat or   inducement."4       The ultimate standard is whether the police conduct has 

overcome   the   defendant's   will   to   resist   and   induced   a   confession   that   was   not   the 
defendant's voluntary choice.5 

                 The external facts are not disputed. 

                Our review of the first part of the voluntariness test is not demanding because 

the external facts surrounding Carney's confession are not subject to any serious dispute. 

At the time of this interview, Carney was a forty-three-year-old man with borderline 

intellectual functioning and considerable experience with the criminal justice system. 

He came to the interview voluntarily, and he was allowed to leave after the interview. 

The interview was mostly cordial.  But the officers made repeated promises that Carney 

would not be arrested and that they would not reveal his statements to anyone else. 

                We conclude that Judge Torrisi's factual findings are not clearly erroneous. 

But there is a more serious question about the impact of these circumstances on Carney's 

mental state. 

        3   Id. 

        4   Sprague v. State, 590 P.2d 410, 414 (Alaska 1979) (quoting Brown v. United 

States, 365 F.2d 230, 232 (10th Cir. 1966)). 

        5   Stobaugh v. State, 614 P.2d 767, 771-72 (Alaska 1980). 

                                                  - 6 -                                               2296 

----------------------- Page 7-----------------------

               The    mental   state:  Carney     believed  that  he   would   be 
              prosecuted following his confession . 

               As noted above, we exercise our independent judgment on the second part 

of the voluntariness test, involving the defendant's mental state.     We must evaluate the 

actual impact of the police officer's promises on Carney's confession: "In contrast to the 

Miranda test, which focuses on the objective facts of the suspect's encounter with the 

police, the test for whether a statement is voluntary rests in large measure on the subjective 
effect of the police conduct on the suspect's will."6    We therefore focus on whether the 

officer's promises actually convinced Carney that he would not be prosecuted if he 

confessed. 

               There are at least two reasonable inferences from the officers' repeated 

promises that Carney would not be arrested. Carney could have believed that the officers 

would not be making any arrests at that time, at least until they had completed their witness 

interviews and consulted the district attorney.   On the other hand, the officers' repeated 

promises could have led Carney to believe that he would never be arrested or prosecuted, 

even if he confessed to murder. 

               There is a similar ambiguity in the officers' repeated promises not to reveal 

Carney's statements.    Carney could have believed that the officers were promising not 

to involve other people unnecessarily:   that they would not tell his girlfriend that he had 

sexual relations with Timurphy and that they would not tell Timurphy's relatives and 

friends about the details of her demise.   Or Carney could have believed that the officers 

would keep their investigation completely secret and that his statement would not be used 

for the purpose of a criminal prosecution. 

       6   Edwards v. State, 842 P.2d 1281, 1285 (Alaska App. 1992); see also Sovalik v. 

State, 612 P.2d 1003, 1007-08 (Alaska 1980);  Thompson v. State, 768 P.2d 127, 131-32 
(Alaska App. 1989). 

                                             - 7 -                                         2296 

----------------------- Page 8-----------------------

                Based on our independent review of the record, we agree with Judge Torrisi's 

conclusion that Carney did not actually believe that he would never be arrested and 

prosecuted. Carney was experienced with the criminal justice system, and he understood 

that   he   could   terminate   an   interview   upon   request.  He   knew   that   the   officers   were 

conducting a series of investigative interviews, and he was aware that his interview was 

being recorded for later use.       The officers' promises that Carney would not be arrested 

were combined with limiting assurances: that he could go home after the interview and 

that he would not be arrested that day. 

                At the end of the interview, Carney told both Kirby and Pasquariello that 

he wanted Kirby to perform his arrest. If Carney believed that the officers were promising 

not to prosecute him, then he would not have been concerned about how he would be 

arrested.  Carney expressed no surprise when Pasquariello explained that they would be 

contacting the district attorney for direction.         Carney stayed up all night worrying that 

the police were coming to arrest him, and he expressed no objection when the officers 

actually arrested him the next day.   Following his arrest, he asked about the decision to 

press charges and asked if he could speak with the district attorney. 

                Taking   all   of   these   circumstances   into   consideration,   we   conclude   that 

Carney believed that the officers' promises were limited.                He did not believe that the 

officers were promising not to prosecute him; he believed that they were promising not 

to arrest him immediately following the interview, at least until they completed their 

investigation. He did not believe that the officers were promising not to use his statement 

as part of a prosecution; he believed that the officers were promising not to reveal his 

statement unnecessarily to his girlfriend or Timurphy's family.                This conclusion takes 

us to the third part of the test - the legal significance of Carney's mental state. 

                                                  - 8 -                                            2296
 

----------------------- Page 9-----------------------

                 The legal significance:       Carney's confession was voluntary. 

                 To   determine   the   legal   significance   of   Carney's   confession,   we   must 

determine whether it was his voluntary choice or the product of the officers' promises 

of leniency. In the past, the United States Supreme Court has stated that a confession must 
not be "obtained by any direct or implied promises, however slight."7                  But this language 

has not been applied literally.8         The final test is whether the officers' promises were 

"sufficiently compelling   to   overbear the suspect's will in light of all [the] attendant 
circumstances."9 

                 Carney relies on Alaska cases holding that confessions induced by promises 

not to prosecute are involuntary. In one case, the defendant admitted that he was the driver 

of   an   abandoned   vehicle   immediately   after   an   officer   assured   him   that   he   was   "not 
interested in prosecuting anyone for drunk driving."10 We concluded that the defendant's 

confession      was    illegally   coerced    by   the  officer's   promise     that   he  would     not  be 
prosecuted.11 

                 In a second case, a vagrant admitted that he had accidentally set an empty 

warehouse on fire after the police told him that if he started the fire accidently "[i]t's an 

        7   Beavers, 998 P.2d at 1049 (quoting Bram v. United States, 168 U.S. 532, 542-43 

(1897)). 

        8    See Arizona v. Fulminante, 499 U.S. 279, 285 (1991). 

        9    United States v. Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988).
 

         10  Smith v. State, 787 P.2d 1038, 1039 (Alaska App. 1990).
 

         11  Id.
 

                                                   - 9 -                                              2296
 

----------------------- Page 10-----------------------

over and done deal."12  We ruled that the defendant's confession was improperly induced 

by the officers' promises.13 

                 Likewise, in a   third case, the defendant confessed to sexual abuse of a 

fourteen-year-old girl only after an officer told him that his statement would be "off the 
record."14   We held that this assurance of confidentiality was equivalent to a promise of 

immunity, and that the defendant's resulting confession was involuntary.15 

                 These cases suggest that a confession is involuntary if it is induced by 
promises   implying   immunity   from   prosecution.16            In   the   present   case,   the   officers' 

promises that they would not arrest Carney and their assurances that they would not reveal 

his statements to others are similar to the promises of immunity in these prior cases.  If 

Carney had actually believed that he would not be arrested and prosecuted, then these 

promises would have rendered his confession inadmissible. 

                 But Carney's reaction to the officers' promises distinguishes this case.  If 

a suspect does not rely on a promise when he decides to confess, then the promise does 
not render the confession involuntary.17          Carney's statements and conduct reveal that he 

expected to be prosecuted if he confessed.  We agree with Judge Torrisi's conclusion that 

Carney did not rely upon the officers' promises, and that he "had the intellectual and 

        12   Miller v. State, 18 P.3d 696, 698 (Alaska App. 2001).
 

        13   Id. at 701.
 

        14  Jones v. State, 65 P.3d 903, 905 (Alaska App. 2003).
 

        15  Id . at 909.
 

        16  Id .; Smith, 787 P.2d 1038.
 

        17  See Gilchrist v. State, 585 So. 2d 165, 179 (Ala. Crim. App. 1991); State ex rel.
 

Collins v. Superior Court, 702 P.2d 1338, 1340 (Ariz. 1985); Reynolds v. State, 610 A.2d 
782, 789 (Md. 1992). 

                                                  - 10 -                                             2296
 

----------------------- Page 11-----------------------

emotional capacity to understand what was happening, and to resist and leave if that is 

what he had wanted to do." 

       Conclusion 

             We conclude that Carney's confession was not induced by promises of 

leniency or immunity.   We AFFIRM the superior court's judgment. 

                                         - 11 -                                   2296
 
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