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Olson v. State (9/2/2011) ap-2323

Olson v. State (9/2/2011) ap-2323

                                                 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 

LEHMAN OLSON,                                     ) 
                                                  )         Court of Appeals No. A-10597 
                            Appellant,            )       Trial Court No. 3AN-07-5784 CR 
                                                  ) 
             v.                                   )                   O P I N I O N 
                                                  ) 
STATE OF ALASKA,                                  ) 
                                                  ) 
                            Appellee.             )        No. 2323 - September 2, 2011 
                                                  ) 

                 Appeal     from    the  Superior     Court,   Third    Judicial   District, 
                 Anchorage, Michael Spaan, Judge. 

                 Appearances: Brooke V. Berens, Assistant Public Advocate, and 
                 Rachel Levitt, Public Advocate, Anchorage, for the Appellant. 
                 Diane    L.   Wendlandt,   Assistant   Attorney   General,   Office      of 
                 Special Prosecutions and Appeals, Anchorage, and Richard A. 
                 Svobodny, Acting Attorney General, Juneau, for the Appellee. 

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

                 COATS,      Chief Judge. 

                 Lehman Olson was convicted of assault in the third degree for assaulting 

his wife, Pamela Olson.        He was also convicted of tampering with a witness, failure to 

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appear, unlawful contact in the first degree, and two counts of violating his conditions 

of release on a felony charge.  These latter charges arose from his conduct while on bail 

release pending the assault charge. 

                On appeal, Olson contends that the   superior court erred in denying his 

motion to suppress statements he made to the police.               He argues that the State did not 

show that he waived his Miranda rights.             Although the superior court found that this 

issue was close, it ultimately concluded that the record was sufficient to show that Olson 

knowingly and intelligently waived his rights. We uphold the superior court's decision. 

                Olson also contends that the superior court erred in denying his mid-trial 

motion   for   a   continuance.     We   conclude   that   the   superior   court   did   not   abuse   its 

discretion in denying the motion. 

                Factual and procedural background 

                Lehman and Pamela Olson had an altercation on the evening of June 2, 

2007.  According to Pamela's trial testimony, she left the house after Olson slapped her. 

She went to a friend's house with their children.  Pamela and her friend, Melanie Blazka, 

then   drove   back   to   the   Olson   home   to   retrieve   some   belongings.   The   children   and 

Blazka waited in the car while Pamela went inside to get her things. Pamela testified that 

Olson grabbed her by the neck and threw her on the floor several times.                  She threw her 

cell phone off the balcony and told Blazka to call 911.                Blazka did.     Olson followed 

Pamela   onto   the   balcony   and   lifted   her   up   by   her   neck   and   threw   her   down   again. 

Pamela was four months pregnant at the time.                 Olson left, and Pamela stayed on the 

balcony until the police arrived. 

                The     police   obtained    a  warrant    for  Olson's    arrest.   Later    that  night, 

Anchorage Police Officer Samuel Flack stopped Olson, confirmed his identity, arrested 

                                                  - 2 -                                           2323
 

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

him, placed him in the back of his patrol car, and drove him to the Anchorage jail.  In the 

patrol car, before interrogating Olson about the assault, Officer Flack advised Olson of 

his rights from a state-issued Miranda  card.           Olson indicated that he understood his 

rights.    Officer    Flack   then  questioned     Olson   about    the  assault,  and   Olson   made 

incriminating admissions. 

                Why     we   uphold    the  decision   of  the  superior   court   that  Olson 
                knowingly and voluntarily waived his Miranda rights 

                Before trial, Olson moved to suppress the statements he made to Officer 

Flack when Flack interrogated him about the assault. As we previously explained, Flack 

interviewed Olson in the patrol car before taking him to the jail.               Flack recorded the 

conversation, which was played in court at a hearing on Olson's motion to suppress. 

                Officer Flack began the interview by saying, "The rules are kind of strict 

when I want to have a conversation with you and you're in my car, I have to read you 

Miranda .    Only because, that's the way the rules are.           You understand that?"        Flack 

continued, "I'm going to go ahead and read you Miranda, and that way we are allowed 

to   have   our   conversation   without   me   getting   in   trouble."  Flack   then   read   from   the 

Miranda card: 

                Mr. Olson, you have the right to remain silent, anything you 
                say can and will be used against you in a court of law, you 
                have the right to talk to a lawyer and have him present with 
                you while you're being questioned.           If you cannot afford to 
                hire a lawyer one will be appointed to represent you before 
                any questioning if you wish.       You can decide at any time to 
                exercise these rights and not answer any questions or make 
                any statements. You understand each of these rights that I've 
                explained to you? 

                                                 - 3 -                                         2323
 

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

Olson answered, "Yes."          Flack did not read the last sentence from the Miranda card, 

which states:    "Having these rights in mind, are you willing to talk to me?"              Flack then 

paused for about fourteen seconds during which time Olson did not speak.                    Following 

this   pause,   Flack   began   questioning   Olson.     During   the   conversation,   Olson   made 

incriminating statements.         In particular, Flack testified at trial that Olson admitted to 

slapping his wife and placing her in a headlock "because she was out of control." 

                Superior Court Judge John Suddock conducted the evidentiary hearing on 

Olson's motion to suppress.          The recording of Olson's statements was played at the 

evidentiary hearing.   In addition, Officer Flack testified that he had been trained that he 

did not have to ask the last question on the Miranda card. He testified that, based on that 

training, he did not ask suspects for a waiver by reading this sentence. 

                Judge   Suddock   reserved   ruling   on   the   motion   to   suppress   to   give   the 

defense an opportunity to file a brief addressing the officer's failure to read the last line 

of the card. 

                The   motion   was   ultimately   decided   by   Superior   Court   Judge   Michael 

Spaan, who issued a written order denying the motion to suppress.                  In the order, Judge 

Spaan found that: 

                [Olson] was administeredMiranda warnings but was not read 
                the final sentence on the Miranda card which reads, "Having 
                these rights in mind are you willing to talk to me?"            Officer 
                Flack     simply    read   the  rights,   purposefully     omitted    the 
                question,   and   asked   if   [Olson]   understood   them   to   which 
                [Olson] responded in the affirmative.  Officer Flack testified 
                that he was trained not to read   the questions asking if the 
                suspect would waive his rights. 

Looking at the totality of the circumstances, Judge Spaan found that Olson "provided a 

voluntary, knowing and intelligent waiver": 

                                                  - 4 -                                          2323
 

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

                 [Olson]     was    cooperative     with   Officer    Flack    during    the 
                 interview. [Olson] provided clear answers to questions and 
                 provided   information   that   had   not   been   requested.       More 
                 importantly, [Olson] was read each of his rights off of the 
                 issued card and then specifically asked by Officer Flack if 
                 [he] understood those rights.         [Olson] clearly stated that he 
                 understood and then proceeded to talk to the officer.  Further 
                 support for the conclusion that Olson knowingly, intelligently 
                 and voluntarily waived his rights is his statement during the 
                 interview,   "Let's   stop   talking   about   this."   This   statement 
                 indicates    that   Olson   understood      that   he  had  the   right   to 
                 silence,    but    chose    to   continue     talking   to   the   officer 
                 immediately after making this statement. 

Judge Spaan concluded:           "While no express waiver was given, the defendant's actions 

after   he   affirmatively   stated   that   he   understood   his   rights   point   to   a   knowing   and 

intelligent waiver by a preponderance of the evidence." 

                 Judge Spaan also stated that the case was "a close case that could have led 

to the court suppressing [Olson's] statement."             He was concerned by "Officer Flack's 

statement that it is his practice to not read the final warning on the card."               Judge Spaan 

remarked that Officer Flack's statement that he "needed to read Olson his Miranda rights 

so that the officer would not get in trouble is misleading and minimizes the importance 

of the warnings." 

                 Both the United States and the Alaska Constitutions require that, prior to 

a custodial interrogation, a suspect be informed of his right to remain silent and his right 
to counsel.1    The State must show, by a preponderance of the evidence, that the suspect 

        1   U.S. Const. amend. V; Alaska Const. art. I,  9; Miranda v. Arizona, 384 U.S. 436, 

479, 86 S. Ct. 1602, 1630 (1966); Munson v. State, 123 P.3d 1042, 1045-46 (Alaska 2005). 

                                                   - 5 -                                            2323 

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

waived these rights Miranda rights.2         Here, the State presented evidence that Olson knew 

and understood his Miranda rights.            Officer Flack told Olson that:      (1) he had the right 

to remain silent; (2) anything he said could and would be used against him; (3) he had 

the right to the presence of a lawyer; (4) if he could not afford a lawyer, one would be 

provided to him; and (5) he could decide at any time to exercise any of these rights. 
These are the Miranda  warnings.3           Olson responded with a clear "yes" when Officer 

Flack asked him if he understood these rights.             We conclude that the record supports 

Judge Spaan's conclusion that Olson was sufficiently informed of his Miranda rights. 

                The harder question, as Judge Spaan recognized, is whether   the record 

shows that Olson knowingly and voluntarily waived those rights.                   Although it is clear 

that a   valid   waiver of Miranda rights may be inferred from the circumstances of an 
interrogation, it is less clear what circumstances constitute such a waiver.4               Addressing 

the question of whether a defendant's understanding of Miranda warnings, followed by 

an incriminating statement, amounts to "a showing of 'an understanding of his rights and 

a course of conduct indicating waiver,'" Professor LaFave notes: 

                         The point ... is that an understanding of rights and an 
                intention to waive them are two different things, and the latter 
                should   not   be   inferred   merely   because   the   former   is   now 
                clearly   established.   That   is   true,   yet   when   it   is   clear   the 
                defendant does understand his rights it is somewhat easier to 
                make      some     judgments      about    the   significance     of   his 
                subsequent conduct in terms of whether or not those rights 
                are being invoked. 

        2   Giacomazzi v. State, 633 P.2d 218, 222 & n.4 (Alaska 1981); Forster v. State, 236 

P.3d 1157, 1161 (Alaska App. 2010). 

        3   Miranda, 384 U.S. at 479; State v. Cassell, 602 P.2d 410, 412 n.4 (Alaska 1979). 

        4   See 2 Wayne R. LaFave, Criminal Procedure  6.9(d) at 831 (3d ed. 2007). 

                                                  - 6 -                                           2323
 

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

                          Thus,     while   an   acknowledgment         of   understanding 
                 should not inevitably carry the day, it is especially significant 
                 when        defendant's       incriminating         statement       follows 
                 immediately        thereafter.    ...  [C]ourts   have   also   taken    into 
                 account the fact that the defendant initiated the conversation 
                 which occurred after the warnings were given and that the 
                 defendant's contact with the police was attributable to his 
                 cooperation.      Moreover, a finding of waiver is likely when 
                 the   defendant   has   engaged   in   certain   conduct   falling   a   bit 
                 short    of   an  express     waiver,    such    as  a  declaration     of   a 
                 cooperative attitude or even a nod or a shrug.5 

                 LaFave points out that the United States Supreme Court recently held, in 
Berghuis   v.   Thompkins,6        that   a   suspect   who   receives   and   understands   the  Miranda 

warnings and does not invoke his Miranda rights waives those rights if he makes an 

uncoerced statement to the police.  LaFave suggests that Berghuis "largely swept aside" 
limitations on the implied waiver rule.7          It therefore appears that under the current federal 

rule, Olson's conduct was sufficient to show an implicit waiver of his Miranda rights. 

                 Olson points out that Alaska appellate courts are free to be more protective 

                                                                                                8 
of individual rights than is required by federal standards. In Munson v. State,  the Alaska 

Supreme Court declared that it could grant more protection than federal constitutional 
law based upon article I, section 9 of the Alaska Constitution.9               The supreme court noted 

that,   although   the   wording   of   article   I,   section   9   is   "virtually   identical"   to   the   Fifth 

         5   Id. at 832. 

         6   _____ U.S. _____, 130 S. Ct. 2250, 2264 (2010). 

         7   2 Wayne R. LaFave, Criminal Procedure  6.9(d), pocket part at 75 (Supp. 2010-11). 

         8   123 P.3d 1042 (Alaska 2005). 

         9   Id. at 1048 n.48. 

                                                    - 7 -                                             2323
 

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

Amendment, the supreme court has interpreted it more broadly than the United States 
Supreme Court has interpreted the Fifth Amendment.10 

                In this case, we need not decide whether Alaska will follow the rule in 

Berghuis.    There is prior Alaska authority which holds that a court may infer a waiver 
of rights from the circumstances surrounding the interrogation.11            In some cases a waiver 

of Miranda rights "can be clearly inferred from the actions and words of the person 
interrogated."12     Judge Spaan found that Officer Flack read Olson his rights and that 

Olson responded that he understood those rights.              Judge Spaan also found that Olson 

volunteered information that Officer Flack had not requested. Furthermore, Judge Spaan 

concluded from the circumstances of the interview that Olson was cooperative.                      This 

record   supports   Judge   Spaan's   conclusion   that   a   knowing   and   intelligent   waiver   of 

Miranda rights can be inferred from Olson's actions and words during the interview. 

                Why   we   conclude   Judge   Spaan   did   not   err   in   denying   Olson's 
                motion for a mid-trial continuance 

                During Olson's trial, an incident arose concerning Pamela Olson, Olson's 

wife and the victim of his assault.       Pamela had been staying with Jeremy and Virginia 

Baker.    After Pamela testified for the State against Olson on May 27, the Bakers asked 

her to leave.    The defense had talked to Mr. Baker about testifying.               Pamela and her 

friend Melanie Blazka , along with another individual named Mark Martin, went back 

        10  Id. (citing Biele v. State, 371 P.2d 811, 813 n.6 (Alaska 1962) and Scott v. State, 519 

P.2d 774, 785 (Alaska 1974)). 

        11  Pierce v. State, 627 P.2d 211, 217 (Alaska App. 1981);McMahan v. State, 617 P.2d 

494, 499 (Alaska 1980). 

        12  McMahan, 617 P.2d at 499 (Alaska 1980) (quotingNorth Carolina v. Butler, 441 U.S. 

369, 375-76, 99 S. Ct. 1755, 1757 (1979)). 

                                                 - 8 -                                          2323
 

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

to  the  Bakers'   house  on  Thursday,   May   28,   to  retrieve  Pamela's  belongings.  A 

confrontation ensued between Pamela, Blazka, Martin, and the Bakers.          As a result of 

what happened that evening, Martin was arrested. 

              At trial, Olson asked for a two-day continuance to investigate the incident. 

He stated that Olson's sister was afraid to testify because of what had happened.  He 

stated that Martin's testimony about the incident might raise Fifth Amendment concerns. 

He also alluded to potential admissible evidence showing that Pamela (and Blazka) had 

a pattern of picking fights with people, calling the police, and having them arrested. 

              Judge Spaan indicated that he did not see why a continuance was necessary. 

He denied the continuance request. 

              Olson ultimately presented Pamela as a witness and asked her about the 

incident.  Baker and Olson's sister also testified for the defense. 

              Olson argues that Judge Spaan erred in denying his motion for a mid-trial 
continuance.  But a trial judge has broad discretion to deny such a request.13    Olson had 

the weekend to investigate the incident.    He was able to call Pamela and the Bakers to 

testify about the incident.  In fact, he had the opportunity to question many witnesses 

about the incident.  After he presented his evidence and explored the incident, he did not 

renew his continuance request or otherwise suggest to the trial court that he had been 

prejudiced.  He has not shown on appeal how he was prejudiced. 

              We conclude that Judge Spaan did not abuse his discretion in denying the 

motion for a mid-trial continuance. 

       13  Nielsen v. State, 623 P.2d 304, 307 (Alaska 1981). 

                                            - 9 -                                     2323 

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Conclusion 

The judgment of the superior court is AFFIRMED. 

                             -  10 -                                     2323
 
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