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Berezyuk v. State (8/3/2012) ap-2366

Berezyuk v. State (8/3/2012) ap-2366

                                               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
 

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                         E-mail:   corrections @ appellate.courts.state.ak.us
 



               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 



YURI BEREZYUK, 

                                                             Court of Appeals No. A-10192 

                                Appellant,                 Trial Court No. 3AN-04-1825 Cr 



                        v. 

                                                                    O    P  I  N  I  O  N 

STATE OF ALASKA, 



                                Appellee.                    No. 2366    -    August 3, 2012 



                Appeal     from   the   Superior   Court,    Third   Judicial   District, 

                Anchorage, Larry D. Card, Judge. 



                Appearances:     Sarah T. White, contract attorney for the Public 

                Defender Agency (opening brief), Tracey Wollenberg, Assistant 

                Public    Defender    (reply  brief),  and   Quinlan   Steiner,   Public 

                Defender,     Anchorage,     for  the  Appellant.   Mary    A.   Gilson, 

                Assistant Attorney General, Office of Special Prosecutions and 

                Appeals,    Anchorage,     and   John  J.  Burns,   Attorney   General, 

                Juneau, for the Appellee. 



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

                Judges. 



                MANNHEIMER, Judge. 



                In   the   early   morning   of   February   23,   2004,   Anchorage   Airport   Police 



Officer Joseph Gamache spotted two young men in the terminal whom he recognized as 


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

suspects   in   the   shoplifting   of   a   camera   from   one   of   the   airport   stores   the   previous 



evening.    These two men were the defendant, Yuri Berezyuk, and his brother Ivan. 



                Gamache summoned two other officers to back him up, and then he made 



contact with the young men.  He told the brothers that he needed to speak with them.  He 



then asked them to bring their bags (each brother had a duffle) and to come with him to 



the police substation in the terminal.   Gamache subsequently moved Yuri to the nearby 



lost and found office, so that he could question the brothers separately about the stolen 



camera. 



                Ivan told Gamache that he had stolen the camera, and that his brother Yuri 



had nothing to do with it.        But a few minutes later, when Gamache questioned Yuri 



Berezyuk about the shoplifting, Berezyuk confessed that he was the one who had stolen 



the camera, and he told Gamache that the camera and its docking station were in his 



duffle. 



                Gamache       asked    Berezyuk     for  permission     to  search    the  duffle,   and 



(according to the facts as found by the superior court) Berezyuk consented.  During his 



search of the duffle, Gamache found the camera and the docking station.  But Gamache 



also found other things that led him to suspect that Berezyuk was trafficking in drugs: 



coffee, party balloons, some empty vials, and personal lubricant. 



                Gamache then asked Berezyuk for permission to search his jacket.  Again 



(according to the facts as found by the superior court) Berezyuk consented. In the jacket, 



Gamache found two bricks of heroin. 



                The total weight of this heroin was later determined to be slightly under 



320 grams - the equivalent of slightly under 11 ounces.                  According to testimony at 



Berezyuk's trial, this amount of heroin had a street value of up to a quarter of a million 



dollars. 



                                                 - 2 -                                             2366
 


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

                Berezyuk initially told Gamache that this heroin was for his personal use 



- that he purchased the drug in bulk.  However, Berezyuk ultimately conceded that the 



heroin was for distribution, and that he had agreed to transport the heroin for a drug 



dealer in Anchorage. 



                Based on the foregoing, Berezyuk was convicted of third-degree controlled 



substance misconduct (possession of heroin with intent to sell or otherwise distribute) 



and third-degree theft (theft of property worth at least $50 but less than $500) for the 



shoplifting of the camera. 



                In this appeal, Berezyuk argues that he never consented to the search of his 



duffle, and that (for this reason) the physical evidence discovered during the search of 



the duffle should be suppressed.         Berezyuk also argues that he did not consent to the 



search of his jacket - or that, even if he did, his consent was tainted by the evidence 



discovered during the prior (allegedly unlawful) search of his duffle. 



                In addition, Berezyuk argues that all the statements he made to Gamache 



and his fellow officers should be suppressed because (1) he was subjected to custodial 



interrogation but he did not receive Miranda warnings; or, in the alternative, (2) even if 



he   received  Miranda       warnings,   he   did  not   understand    those   warnings;   or,   in  the 



alternative, (3) even if he did understand the Miranda warnings, he never affirmatively 



waived his rights; or, in the alternative, (4) even if he did waive his Miranda rights, the 



police   improperly   obtained   his   waiver   through   threats   of   deportation   and   increased 



punishment if he did not cooperate. 



                In addition, Berezyuk contends that even if there was no Miranda violation 



of   any   kind,   his   statements   to   the   police   were   involuntary   (for   Fifth   Amendment 



purposes) because they were induced by improper threats. 



                Finally, Berezyuk argues that there was insufficient evidence presented at 



his trial to support his conviction for theft of the camera. 



                                                 - 3 -                                            2366
 


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

                 For the reasons explained here, we reject all of Berezyuk's claims except 



the claim that his statements were improperly induced by threats. This claim is colorably 



supported by the record.          However, we need not resolve this claim, because even if 



Berezyuk's statements to the police are suppressed, the remaining evidence of his guilt 



is   overwhelming.       Accordingly,   any   error   in   allowing   the   State   to   introduce   those 



statements at Berezyuk's trial was harmless beyond a reasonable doubt. 



        A prefatory note on our discussion of the underlying facts of Berezyuk's 

        case 



                 In Berezyuk's opening brief, all of his assertions about the underlying facts 



of   his   case   are   supported   by   references   to   the   testimony   presented   during   his   trial. 



However, the rulings that Berezyuk is attacking in this appeal were made before his trial, 



during the pre-trial litigation of his motions for suppression of evidence. 



                 The judge who made those rulings, Superior Court Judge Larry D. Card, 



based his decision on the evidence presented during a pre-trial evidentiary hearing:  the 



testimony of various airport police officers, plus the audio recording of the officers' 



interview   with   Berezyuk   and   the   transcript   of   that   recording   (both   of   which   were 



submitted in evidence). 



                 In our analysis of Berezyuk's arguments, we have endeavored to locate 



support for Berezyuk's various assertions of fact by examining the evidence that was in 



front of Judge Card when he made his rulings. However, to the extent that Berezyuk has 



made   assertions   of   fact   that   are  not supported   by   the   pre-trial   evidence,   we   must 



disregard Berezyuk's assertions. 



                 See Waters v. State, 64 P.3d 169, 171 (Alaska App. 2003), where we held 



that a defendant may not attack a trial court's pre-trial ruling on a suppression motion by 



                                                   - 4 -                                              2366
 


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

using evidence developed at the defendant's ensuing trial, unless the defendant expressly 



asks the court to revisit its ruling in light of the trial evidence.         As we stated in Waters, 



"[A] party challenging a trial court's ruling may not rely on an argument or on evidence 



that was not brought to the ... court's attention at the time the ... court made its ruling." 



Ibid. 



        Berezyuk's argument that he did not consent to the search of his duffle 



                At the beginning of Gamache's interview with Yuri Berezyuk in the lost 



and found office, Gamache told Berezyuk that he was not under arrest, but Gamache 



nevertheless advised Berezyuk of his Miranda rights. Before Gamache read the Miranda 



warnings, he told Berezyuk that he would answer any questions Berezyuk might have 



about   those   rights.   Gamache   then   read   the Miranda   warnings   and   asked   Berezyuk 



whether he understood his rights.         Berezyuk replied that he did. 



                Gamache then asked whether Berezyuk, having these rights in mind, would 



be willing to answer some questions.  Berezyuk's response is largely indiscernible in the 



audio   recording;   only     the   tail   end   of   his   response   -  "have   the   right"   -  can   be 



understood.  But immediately after this response, Gamache explained that he wanted to 



talk to Berezyuk about the theft of the camera the preceding night, and Berezyuk began 



responding to Gamache's questions.   As we will describe more fully in a later section of 



this   opinion,   Judge   Card   concluded   that   Berezyuk   waived   his  Miranda          rights   and 



consented to be interviewed. 



                Soon thereafter, Gamache told Berezyuk that the theft of the camera had 



been captured on the store's video surveillance camera.                When Gamache said that he 



wanted to get the camera back, so that he could return it to the store, Berezyuk indicated 



that he had stolen the camera.  Berezyuk explained that his decision to take the camera 



                                                  - 5 -                                             2366
 


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

had been spur-of-the-moment, and that he did not discuss the theft with his brother Ivan 



beforehand. 



                About two minutes later, Berezyuk told Gamache that the stolen camera 



was in his duffle.     Gamache then asked Berezyuk if he could "look through his bag". 



Berezyuk   said   something   in   response,   but   his   words   are   indiscernible   in   the   audio 



recording.    Gamache then replied, "Okay". 



                This   was   immediately   followed   by   a   zipping     sound    -   the   sound   of 



Gamache unzipping Berezyuk's duffle and commencing his search. 



                At the evidentiary hearing, Officer Gamache testified that when he asked 



Berezyuk for permission to search his duffle, Berezyuk gave consent for this search. 



(Berezyuk did not testify at the hearing.) 



                In his pre-trial suppression motion, Berezyuk argued that the search of his 



duffle was conducted without his consent.  In the alternative, Berezyuk argued that even 



if he did consent to the search, he only consented because he did not believe he had the 



ability to refuse consent.  In the further alternative, Berezyuk argued that even if he did 



consent, his consent was limited to a search for the stolen camera.                 Thus, Berezyuk 



contended,   the   search   should   have   ended   after   Gamache   located   the   camera   and   its 



docking station, and Gamache acted beyond the scope of Berezyuk's consent when he 



continued to search through the duffle and found the drug-trafficking items. 



                When Judge Card issued his ruling on Berezyuk's suppression motion, he 



found that Gamache asked Berezyuk for permission to "look through Berezyuk's bag". 



Judge Card acknowledged that Berezyuk's response to this request is not audible in the 



recording of the interview, but Judge Card deduced that Berezyuk must have answered 



"yes", since Gamache then responded "Okay", and then Gamache unzipped the duffle 



and began his search. 



                                                 - 6 -                                            2366
 


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

                 In   reaching   this   conclusion,   Judge   Card   noted   that   both   Gamache   and 



Berezyuk were using calm tones of voice.   There was no indication of conflict between 



them, and Gamache's request for permission to conduct the search was not made in a 



threatening tone. 



                 On appeal, Berezyuk argues that Judge Card was clearly erroneous when 



he found that Berezyuk affirmatively consented to the search of the duffle.                    Berezyuk 



notes that, in the audio recording, when Gamache asked for permission to search the 



duffle, Berezyuk's response is not audible. Berezyuk further notes that the State bore the 



burden of proving that Berezyuk consented to the search, and he argues that, because of 



this burden, Judge Card was required to presume that all the inaudible portions of the 



recording were unfavorable to the State. 



                 Berezyuk   also   argues   that   it   "borders   on   absurdity"   to   think   that   he,   a 



resident alien who was subject to deportation if he committed a serious crime, "would 



simply ... hand over all sorts of incriminating evidence" to the police. 



                 Given all of these circumstances - i.e., an inaudible response, a strong 



motivation   to   refuse   consent,   and   the   State's   overall   burden   of   proof   -   Berezyuk 



contends   that   no   reasonable   fact-finder   could   have   concluded   that   the   State   met   its 



burden of proving that Berezyuk consented to the search of the duffle. 



                 We disagree.      When Gamache asked Berezyuk for permission to conduct 



this search, Gamache had already informed Berezyuk that the theft of the camera had 



been captured on the store's surveillance video, and Berezyuk had already confessed to 



Gamache (1) that he was the one who shoplifted the camera, (2) that he still had the 



camera, and (3) that the camera was in his duffle.              Moreover, even though Berezyuk's 



response is inaudible in the recording, Gamache testified at the evidentiary hearing that 



Berezyuk  did  consent   to   the   search.       Given   all   this,   Judge   Card   could   reasonably 



conclude that Berezyuk consented to the search of the duffle. 



                                                   - 7 -                                              2366
 


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

        Berezyuk's argument that, even if he did consent to a search of his duffle, 

        Gamache's search of the duffle exceeded the scope of Berezyuk's consent 



                In his opening brief, Berezyuk argues that even if he did consent to a search 



of his duffle, Gamache exceeded the scope of Berezyuk's consent when he continued to 



look through the duffle after he found the camera and the docking station - thus leading 



to the discovery of the items related to drug-trafficking. 



                This argument regarding the scope of Berezyuk's consent is contained in 



a single sentence of Berezyuk's opening brief. This sentence is not accompanied by any 



reference to the evidence presented in the superior court, nor any reference to Judge 



Card's findings, nor any further explanation of why Berezyuk's attorney thinks that 



Berezyuk's consent was limited to a search for the camera and docking station. 



                We note that the audio recording of the interview, as well as the evidentiary 



hearing testimony of both Officer Gamache and Officer Gary Delk (the other airport 



police officer who was present during Gamache's interview with Berezyuk), all support 



Judge Card's finding that Gamache asked for permission to "look through Berezyuk's 



bag", apparently without restriction. 



                We   further   note   that,   during   the   evidentiary   hearing,   when   Berezyuk's 



attorney was cross-examining Officer Delk, the attorney asked Delk a question which 



seemingly acknowledged that Gamache had asked Berezyuk for broad permission to 



search the duffle.    Specifically, the defense attorney asked Delk why Gamache would 



seek permission to look through Berezyuk's entire bag, when Berezyuk's brother Ivan 



had already told the officers the precise location within the bag where the camera was 



located. 



                Given these circumstances, we conclude that Berezyuk's single-sentence 



"argument", with no reference to the evidence presented in the superior court, or to Judge 



                                                - 8 -                                            2366
 


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

Card's finding on this issue, is insufficient to preserve this point.  See Wagner v. Wagner, 



218   P.3d   669,   678   (Alaska   2009),   where   the   supreme   court   held   that   an   issue   was 



inadequately briefed when it was "contained in a single conclusory sentence, without 



citation to any authority."  See also Petersen v. Mutual Life Insurance Co. of New York , 



803 P.2d 406, 410 (Alaska 1990) ("Where a point is not given more than a cursory 



statement   in   the   argument   portion   of   a   brief,   the   point   will   not   be   considered   on 



appeal."). 



         Berezyuk's argument that, even if he did consent to the search of his duffle 

         and the search of his jacket, his consent was involuntary 



                 At pages 19-22 of his opening brief, Berezyuk presents an argument which 



he titles, "The search and purported consent were involuntary". 



                 In   the  two-sentence   opening        paragraph      of  this  argument,   Berezyuk's 



attorney asserts, in conclusory fashion, that Berezyuk was "essentially forced to act on 



the state's behalf in conducting [the] warrantless searches [of his duffle and jacket]", and 



that   "[Judge   Card]   erred   in   finding   that   [Berezyuk's]   purported   consents   [to   these 



searches] were voluntary." 



                 This voluntariness argument was not raised in the superior court.                    In his 



pre-trial   suppression   motion,   Berezyuk   argued   that   his  confession   was   involuntary 



because   it   was   the   result   of   improper   threats.   But   Berezyuk   did   not   argue   that   his 



consents to the searches of his duffle and jacket - searches that preceded his confession 



- were also involuntary.  And because Berezyuk did not raise this claim in the superior 



court, Judge Card made no finding on this matter. 



                 Moreover, other than the conclusory introductory paragraph that we have 



just quoted, the four pages that comprise this section of Berezyuk's opening brief contain 



                                                    - 9 -                                               2366
 


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

no discussion of voluntariness.   Instead, in these four pages, Berezyuk's attorney raises 



several other arguments - all aimed at showing that Berezyuk never consented to the 



searches at all: 



                 (1) Berezyuk   argues that it is absurd to think that he would consent to 



        searches that he knew would reveal incriminating evidence; 



                 (2) Berezyuk argues that the audio recording of the police interview had so 



        many inaudible portions that no reasonable finder of fact could have concluded 



        that the State had proved that Berezyuk gave his consent; 



                 (3) Berezyuk argues that Judge Card erred by not holding the State to its 



        burden of proof, and by not presuming that any inaudible or indiscernible portion 



        of the audio recording should be construed against the State; and 



                 (4) Berezyuk argues that even if he consented to the search of his jacket, 



        that consent was tainted by the preceding unlawful search of his duffle. 



                 We acknowledge that, within Berezyuk's single-paragraph argument of this 



last point - the argument that his consent to the search of the jacket was tainted by the 



preceding   search   of   the   duffle   -   there   is   one   sentence   that   could   be   construed   as 



addressing   a   true   claim   of   involuntariness.      Here   is   that   paragraph,   with   the   single 



pertinent sentence in italics: 



                         Here,   the   state   cannot   show   a   break   in   the   causal 

                 connection between the prior illegal search of [Berezyuk's] 

                 bag and [his] purported consent to [the] search [of his] wallet 

                 and    jacket.   ...   The    fact  that  [Officer]    Gamache      found 

                 evidence      of  drug    trafficking    [in   Berezyuk's      bag]    was 

                 sufficient to overbear [Berezyuk's] will.  He [i.e., Berezyuk] 

                 was aware that Gamache suspected him of drug trafficking. 

                 Then     Gamache       threatened     [Berezyuk]     with   deportation, 

                 among   other   things.      The   fact   that   Gamache   had   already 

                 recovered incriminating evidence [from Berezyuk's bag,] and 



                                                   -  10 -                                             2366
 


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

                 was   likely    to  use   it   against  [Berezyuk],   was   sufficiently 

                 coercive      to   destroy     [Berezyuk's]       ability    ...  to   resist 

                 [Gamache's   requests   for   permission   to   search   Berezyuk's 

                 wallet and jacket].       Therefore, [his] purported consent was 

                 involuntary and ineffective. 



                 But the fact remains that Berezyuk never challenged the voluntariness of 



his consent during the trial court proceedings, and Judge Card made no finding on this 



issue (because no one asked him to). 



                 Moreover, even though the title of this section of Berezyuk's brief declares 



that   his   consent   was   "involuntary",   the   italicized   sentence   quoted   above   is   the   sole 



sentence that could be construed as substantively addressing the issue of voluntariness. 



As   we   have   explained,   this   sentence   is   hidden   in   the   middle   of   a   paragraph   that   is 



otherwise devoted to arguing that Berezyuk's consent to the search of his jacket was 



tainted by the preceding search of his duffle.  This single sentence is unaccompanied by 



any   further   analysis   of   the   facts   of   Berezyuk's   case,   nor   is   it   accompanied   by   any 



discussion   of   the   pertinent   legal   authorities   on   this   issue.   And   the   paragraph   that 



contains   this   one   relevant   sentence   is,   itself,   nestled   within   four   pages   of   argument 



addressed to other topics. 



                 Accordingly, we conclude that this issue is waived.  See Wagner, 218 P.3d 



at 678; Petersen , 803 P.2d at 410. 



        Berezyuk's claim that he never received Miranda warnings 



                 In   Berezyuk's   opening   brief,   he   notes   that   he   made   self-incriminating 



statements while he was questioned by Officer Gamache. Berezyuk's brief then declares, 



"Because these admissions were made while in custody with no Miranda advisements, 



they are inadmissible." 



                                                   -  11 -                                               2366
 


----------------------- Page 12-----------------------

                Berezyuk   provides   no   citation   to   the   trial   court   record   to   support   his 



assertion that he never received Miranda warnings.  In fact, there is absolutely nothing 



in the record to support this assertion. 



                The evidence presented to the superior court indisputably establishes that 



Gamache       advised    Berezyuk     of  his  Miranda    rights   at  the  very  beginning     of  their 



conversation.     Officer Gamache testified that he gave Miranda warnings to Berezyuk, 



and the audio recording of the interview clearly shows that the Miranda warnings were 



given.  There was no contrary evidence. Judge Card expressly found that Berezyuk was 



advised of his Miranda rights. 



                (Indeed, in Berezyuk's suppression motion, he conceded that he did receive 



Miranda warnings.        Berezyuk argued for suppression of his statements on the theories 



that he did not understand his rights, or that he did not affirmatively waive them, or 



(alternatively) that his waiver was coerced.) 



                For   these   reasons,   we   reject   Berezyuk's   contention   that   he   was   never 



advised of his Miranda rights. 



        Berezyuk's contentions that, if he received Miranda warnings, he did not 

        understand them - or, if he did understand his rights, he never waived 

        them 



                In Berezyuk's opening brief, he asserts that even though Officer Gamache 



may have advised him of his Miranda rights, the State failed to prove that Berezyuk ever 



validly waived his Miranda rights. 



                Berezyuk notes that in Moran v. Burbine , 475 U.S. 412, 106 S.Ct. 1135, 89 



L.Ed.2d 410 (1986), the United States Supreme Court explained that a valid waiver of 



Miranda rights has two components:             the suspect must have understood "the nature of 



the right[s] being abandoned and the consequences of the decision to abandon [them]", 



                                                 -  12 -                                           2366
 


----------------------- Page 13-----------------------

and the suspect's decision to waive these rights must have been "free and deliberate" 



rather than the product of "intimidation, coercion, or deception".               475 U.S. at 421, 106 



S.Ct. at 1141. 



                In his brief, Berezyuk argues that the government failed to prove the first 



component of this test - the requirement that Berezyuk understood the nature of his 



rights and the consequences of waiving them. 



                Berezyuk   notes   that   he   is   not   a   native   speaker   of   English   (his   native 



language is Ukrainian), and he asserts that, because he had lived in the United States for 



only   nine   years   preceding   these   events,   he   had   "[a]   limited   comprehension   of   the 



American legal system".          More particularly, Berezyuk's appellate attorney asserts that 



"the right to remain silent and the right to an attorney   ... were unknown [in] Soviet 



Russia, and [were] unknown to [Berezyuk]." 



                These assertions - that Berezyuk did not understand his rights because of 



his difficulty with the English language, and because he had no previous knowledge of 



the right to silence and the right to an attorney - are not supported by any citations to 



the trial court record.    This is because they have no support in the trial court record. 



                Berezyuk did not testify during the litigation of his suppression motion. 



And neither the testimony of Officer Gamache nor the testimony of Officer Delk - the 



two   officers   who   interviewed   Berezyuk   -   gives   any   indication   that   Berezyuk   had 



linguistic difficulties that impeded the officers' communication with him.                   Moreover, 



even   though   one   of   the   claims   in   Berezyuk's   suppression   motion   was   that   he   had 



unanswered questions about his Miranda rights, Berezyuk made no assertion that these 



unanswered questions arose from Berezyuk's difficulties with the English language. 



                We acknowledge that the audio record of Berezyuk's police interview does 



provide some arguable support for Berezyuk's claim that he had unanswered questions 



about his Miranda rights: 



                                                 -  13 -                                            2366
 


----------------------- Page 14-----------------------

                After Gamache finished reading the Miranda rights to Berezyuk, Gamache 



told Berezyuk that he would answer any questions Berezyuk might have about those 



rights.  There was a slight pause in the conversation, and then Gamache asked Berezyuk 



whether he understood his rights.         Berezyuk replied that he did. 



                But then, when Gamache asked whether Berezyuk, having these rights in 



mind, would be willing to answer some questions, Berezyuk made a response that is 



largely indiscernible.     Only the tail end of Berezyuk's response - "have the right" - 



can   be   understood.    This   portion   of   the   audio   record   lends   arguable   support   to   the 



inference that Berezyuk had one or more questions about his rights. 



                But the record does not establish that Berezyuk had unanswered questions 



about   his   rights;   the   record   is   merely   potentially   ambiguous   on   this   point   because 



Berezyuk's response is largely indiscernible.            Other portions of the record support a 



finding   that   Berezyuk   understood   his   rights.    Immediately   after   Berezyuk   made   his 



indiscernible response, Gamache explained that he wanted to talk to Berezyuk about the 



theft of the camera the preceding night, and Berezyuk began responding to Gamache's 



questions - thus suggesting that Berezyuk did not have unanswered questions, and that 



he was willing   to   begin talking to Gamache.           Moreover, at the evidentiary hearing, 



Gamache testified (both on direct examination and on cross-examination) that Berezyuk 



waived his Miranda rights. 



                 Based on this record, Judge Card found that Berezyuk had in fact told 



Gamache that he understood his rights.           Judge Card also found, based on the fact that 



Berezyuk proceeded to answer Gamache's questions without hesitation or objection, that 



Berezyuk had indeed waived his Miranda rights. 



                As this Court recently noted in Olson v. State, 262 P.3d 227, 231 (Alaska 



App. 2011), the circumstances of a custodial interrogation - "the actions and words of 



the   person   interrogated"   -   may   give   rise   to   a   reasonable   inference   that   the   person 



                                                 -  14 -                                           2366
 


----------------------- Page 15-----------------------

waived their Miranda rights, even in the absence of an explicit waiver.  Here, the record 



supports Judge Card's findings that Berezyuk understood his rights and waived them. 



               We accordingly reject Berezyuk's contentions that he did not understand 



his Miranda rights, or that he never waived his Miranda rights. 



       Berezyuk's contention that, if he waived his Miranda rights and agreed to 

       answer the officers' questions, his decision to talk was involuntary because 

        it was the result of threats of deportation and increased punishment if he 

       did not cooperate with the police 



               Berezyuk's next contention is that, even if he waived his Miranda rights, 



the police obtained that waiver improperly - by threatening him with deportation and 



increased punishment if he did not cooperate.        To analyze this claim, we must examine 



(1) the underlying facts of the officers' interview with Berezyuk, (2) the way in which 



this claim was litigated in the superior court, (3) the way in which this claim was briefed 



on appeal, (4) the law relating to the forfeiture of appellate claims due to inadequate 



briefing, and (5) the law limiting claims of plain error when the claim is that physical 



evidence should be suppressed. 



           (a) The underlying facts 



               The audio recording of Berezyuk's police interview indicates that, after 



Officer Gamache discovered the drug-related paraphernalia in Berezyuk's duffle (the 



coffee,   the  party  balloons,  the  vials,  and  the  personal   lubricant),  Gamache    asked 



Berezyuk to explain the purpose of these items. Gamache told Berezyuk that these items 



made it appear that Berezyuk was involved in transporting drugs.  Berezyuk responded 



to Gamache's questions, but his replies are not discernible in the audio recording. 



                                             -  15 -                                       2366
 


----------------------- Page 16-----------------------

                 At this point, Officer Delk joined the conversation.   He told Berezyuk that 



the airport police might contact "the federal people" because the duffle contained these 



items of apparent drug paraphernalia.           Officer Gamache then asked Berezyuk whether 



somebody was pressuring Berezyuk to bring drugs into Alaska.                     Berezyuk said no. 



                 In response to a further question posed by Delk, Berezyuk disclosed that 



he was not a United States citizen; rather, he was a resident alien with a green card.  Delk 



then informed Berezyuk that, if it turned out that Berezyuk was trafficking drugs and 



"not being truthful with the police", this could adversely affect Berezyuk's residency in 



the United States. 



                 Delk    told   Berezyuk     that   he  was    not  "threatening"      him,   but   merely 



informing   Berezyuk   that   if   he   did   not   cooperate   with   the   police,   and   if   he   was   not 



truthful,   and   if   the  police   ended   up  contacting     the  federal   authorities,   the   federal 



government "[might] revoke [his] citizenship [sic], [his] green card and everything, and 



deport [him]."      Delk told Berezyuk that he was not saying that this would inevitably 



happen, but he wanted Berezyuk to know that this was a possibility.   Here is the precise 



wording of this exchange: 



                         Delk :  You have a green card? 



                         Berezyuk :     Yeah. 



                         Delk :  Do you know what - especially if ... we find 

                 out that you're being dishonest with us now ... 



                         Berezyuk :    Well, I have a green card (indiscernible). 



                         Delk :   Well, hang on a sec.      I'm just telling you what 

                 I know, okay?      But if you're being dishonest with us, and ... 

                 you're   running   ...   this   drug   operation   ...   [and]   you   don't 

                 cooperate and tell us what's going on here, and we end up 



                                                  -  16 -                                             2366
 


----------------------- Page 17-----------------------

                contacting the federal government [about] this, and if the feds 

                get into this thing, you could - I'm not saying that you will, 

               you know; I'm not threatening you or anything ... .           I'm just 

                saying [that] there's a concern with you trafficking [drugs]. 

               And     [if]  you're   not   being   truthful  to   us,  and   they're 

                concerned about what's going on, they [might] revoke your 

                citizenship [sic], your green card and everything, and deport 

               you. 



               A    few   minutes   later  in  the  interview,   Gamache     obtained   Berezyuk's 



permission to search his jacket, and that was when the police discovered the two bricks 



of heroin.  Berezyuk told the officers that the two packages contained approximately 



three to four grams of heroin, and that this heroin was for his own personal use.  But the 



two packages obviously contained much more than three or four grams of heroin. 



                (In fact, as we have already explained, the two packages (taken together) 



contained slightly less than 320 grams of heroin.) 



               Delk asked Berezyuk if this heroin was the reason he needed the balloons 



and the personal lubricant - to transport the heroin inside his body; Berezyuk replied 



"no". 



               At this point, Delk warned Berezyuk that he faced "hard time" if he was 



convicted of trafficking drugs. In response, Berezyuk again denied that he was involved 



in drug trafficking. 



               Delk     then  suggested     that  if  someone    else  had   put  Berezyuk     up  to 



transporting the heroin, Berezyuk's cooperation "could go a long way".                He also told 



Berezyuk that a drug-trafficking conviction could result in a sentence of twenty or more 



years. 



               A short time later, Delk repeated that if Berezyuk cooperated and told the 



police   where   he   got   the   heroin,   "something"   could   be   worked   out. But   Berezyuk 



                                               -  17 -                                         2366
 


----------------------- Page 18-----------------------

continued to deny that he was trafficking heroin.       When Gamache suggested that the 



amount     of  heroin  in  Berezyuk's   possession   was   too  much   for  strictly  personal 



consumption, Berezyuk responded that he bought the drug in quantity. 



              This discussion was interrupted by the arrival of the clerk who worked at 



the store where the camera was shoplifted. He identified Berezyuk, and he indicated that 



he wished to make a citizen's arrest for this misdemeanor offense. 



              When the conversation returned to the subject of the heroin, Berezyuk now 



confessed that he was transporting heroin for someone else.  Berezyuk told the officers 



that he had gotten the heroin in Anchorage, and that the drug dealer who gave him the 



heroin threatened to have him deported if he did not transport the heroin. 



              Delk repeated that Berezyuk was facing a prison sentence of 20 years or 



more, and potential deportation. Gamache added that a person could do "a lot of living" 



in 20 years.   He also told Berezyuk that a lot of "good people" were waiting to come to 



America - so if somebody was caught abusing their privilege of residency, they would 



do jail time and then they would get kicked out of the country.       Delk then commented 



that if a person was deported and sent back to their home country, their situation might 



be much worse in that country. 



              At this point, Berezyuk became more forthcoming about where and how 



he had obtained the heroin. 



              Delk then suggested that Berezyuk should be concerned about what the 



drug dealers might do to him - because if the people who enlisted Berezyuk to transport 



the heroin found out that their drugs were gone, and that the police had seized their 



heroin, they would be angry about this loss, even if they believed that Berezyuk had not 



said anything to the police.   After hearing this, Berezyuk disclosed the identity of the 



person who had given him the heroin, and he explained how he had gotten involved in 



transporting drugs for this person. 



                                            -  18 -                                      2366
 


----------------------- Page 19-----------------------

            (b) The litigation of this claim in the superior court 



                In Berezyuk's suppression motion in the superior court, he argued that the 



officers' statements about the benefits of cooperation, and the potential consequences of 



not   cooperating,   constituted   improper   coercion   that   caused   Berezyuk   to   waive   his 



Miranda rights and respond to the officers' questions.  Relying on the Alaska Supreme 



Court's decision in Beavers v. State , 998 P.2d 1040 (Alaska 2000), and this Court's 



decision in Jones v. State , 65 P.3d 903 (Alaska App. 2003), Berezyuk argued that his 



waiver of Miranda rights was involuntary because he was essentially promised that he 



would not be charged with a drug-trafficking offense if he confessed, and he was told 



that his cooperation would make the difference between simply being deported and (on 



the other hand) serving 20 years in prison and then being deported.  Berezyuk also 



argued that, for these same reasons, his confession should be deemed involuntary. 



                Based on these assertions, Berezyuk asked the superior court to suppress 



his statements .   However, Berezyuk did not argue that the officers' coercive behavior 



should also lead to suppression of the physical evidence (i.e., the heroin found in his 



jacket). 



                Judge Card rejected Berezyuk's argument that the officers' statements were 



improperly coercive.      The judge agreed that Berezyuk had been told that, if he was not 



truthful, he might be deported.  The judge further agreed that, after Gamache found the 



heroin in Berezyuk's jacket, Berezyuk was told that "drug trafficking ... is a serious 



crime, and that he should be truthful with the police ... because ... he didn't ... want [to 



be convicted of] a trafficking offense ... that might put him away for 20 years or more." 



                But Judge Card found that these statements were neither a threat of worse 



treatment if Berezyuk remained silent, nor a promise of better treatment if Berezyuk 



                                               -  19 -                                         2366
 


----------------------- Page 20-----------------------

waived   his   rights   and   cooperated.    Specifically,   Judge   Card   declared   that   Berezyuk 



"wasn't promised that, by talking, he could get better treatment ... than if he didn't talk." 



            (c) Berezyuk's briefing of this claim on appeal 



                As we just explained, Berezyuk argued in the trial court that the officers 



made improper threats and promises that gave rise to a Miranda violation and to an 



involuntary confession.        The relief that he sought was suppression of his statements . 



Berezyuk did not argue that any physical evidence should be suppressed on account of 



these purportedly improper threats and promises. 



                In contrast, Berezyuk's opening brief to this Court does not present a claim 



of coercion.    Twelve pages of Berezyuk's opening brief to this Court (about one-third 



of the brief) are devoted to the argument that his Miranda rights were violated in various 



ways - and that, as a result, his statements   should be suppressed.                  However, even 



though Berezyuk's opening brief suggests various reasons why his understanding of his 



Miranda      rights   was   flawed,   and   various   reasons   why   his   purported   waiver   of   his 



Miranda rights was invalid, Berezyuk's opening brief does not argue that his Miranda 



waiver or his ensuing statements to the officers were coerced by improper threats or 



promises. 



                Among   the   twelve   pages   of   Berezyuk's   opening   brief   devoted   to   the 



Miranda issue, there are two sentences that refer to coercion.              These sentences are not 



accompanied by a reference to any legal authority, apart from a citation to the Alaska 



Supreme Court's decision in Hunter v. State , 590 P.2d 888 (Alaska 1979) - a case 



which   describes   the   test   for   determining   when   a   suspect   is   in   custody   for  Miranda 



purposes. 



                                                 - 20 -                                             2366
 


----------------------- Page 21-----------------------

                 Moreover,   reading   these   two   sentences   in   context,   it   is   not   clear   that 



Berezyuk       is  arguing   that  the   police   employed      coercion    to  improperly     obtain    his 



statements.     From the wording of the surrounding text, it appears that Berezyuk might 



be trying to argue that the officers' coercive statements provide support for his claim that 



he was in custody for Miranda purposes - because these statements made him feel that 



he was not at liberty to break off the questioning and leave. 



                 The    two   sentences     that  we   are  describing     are  contained     in  a  single 



paragraph, which we are about to quote.            Before we do, we need to explain that, in this 



paragraph, Berezyuk's attorney falsely asserts that Officer Gamache threatened Berezyuk 



with the loss of his child unless he cooperated.              Officer Gamache never said this (or 



anything like this) to Berezyuk.          Rather, it was the drug dealer who made this threat to 



Berezyuk, in order to get Berezyuk to agree to transport the heroin for him.                    With this 



clarification, here is the text of the paragraph: 



                         Officer Gamache's statements to Yuri regarding his 

                 immigration status, [his] possible deportation, and having his 

                 child taken away from him [sic] reek[] of coercion, especially 

                 given    the   fact  that  he   was   in  custody    and   [was]    being 

                 interrogated.  Under Hunter , Yuri could not have felt free to 

                 break off questioning and get up and leave.   These factors are 

                 also indicative of coercive pressure. 



After making the above-quoted assertions, Berezyuk's attorney immediately turns to a 



different argument - the argument that Berezyuk never affirmatively stated that he 



wished to waive his rights. 



                 Berezyuk's briefing of the Miranda issue continues for another ten pages 



in his opening brief, but he never returns to the subject of potential coercion.                  And he 



never argues that the officers' alleged coercion should lead to the suppression of physical 



evidence - only the suppression of his statements to the officers. 



                                                  - 21 -                                              2366
 


----------------------- Page 22-----------------------

                 In   its  responding     brief,  the   State   notes   that  even    though    Berezyuk 



challenged the voluntariness of his confession in the trial court, he failed to pursue that 



argument in his opening brief, at least not in any meaningful way.                   Based on this, the 



State argues that this Court should consider Berezyuk's claim of coercion waived due 



to inadequate briefing. 



                 We   agree   with   the   State   that   the   two   isolated   sentences   in   Berezyuk's 



opening brief are insufficient to preserve a claim that his confession was involuntary. 



And if the State had stopped there, the decision of this appeal would be significantly 



easier. 



                 But,   in   an   abundance   of   caution,   the   State   then   proceeded   to   brief   the 



question of whether Gamache's and Delk's statements to Berezyuk constituted improper 



threats or promises, and whether Berezyuk's statements to the officers were voluntary. 



                 Apparently, the State's extensive discussion of this issue alerted Berezyuk's 



second appellate attorney - the attorney who wrote Berezyuk's reply brief - that here 



was an issue that Berezyuk should pursue.   As a result, Berezyuk's reply brief contains 



a lengthy factual and legal argument (comprising thirteen pages) as to why Berezyuk's 



confession should be deemed involuntary (and should be suppressed) because it was the 



product of improperly coercive questioning. 



                 Then, four pages later, in a single paragraph, Berezyuk's reply brief raises 



an issue that had never been raised before, either in the trial court or in the two preceding 



briefs:   the claim that Berezyuk's consent to the search of his jacket - the search that 



yielded the bricks of heroin - was invalid because it was the product of Officer Delk's 



threats of deportation.  This represents the first time, either in the trial court or on appeal, 



that Berezyuk has claimed that the officers' interrogation tactics should result in the 



suppression       of  physical    evidence     (as  opposed     to  the   suppression     of  Berezyuk's 



statements). 



                                                  - 22 -                                              2366
 


----------------------- Page 23-----------------------

                 This new claim - the claim that the coercive aspects of the interrogation 



should   result   in   suppression   of   the   physical   evidence,   and   not   just   suppression   of 



Berezyuk's statements - has a potentially crucial effect on the outcome of this litigation. 



This is because Berezyuk's case is one of those rare instances where suppression of his 



confession, by itself, would not require us to reverse his conviction. 



                 Berezyuk was convicted of possessing heroin with the intent to sell or 



distribute it.   The amount of heroin in his possession was approximately 320 grams. 



According to the evidence at Berezyuk's trial, this amount of heroin was worth up to a 



quarter of a million dollars.   Even if the jury never heard Berezyuk's confession that he 



was transporting this heroin for a drug dealer, it was obvious that this amount of heroin 



was intended for sale or distribution, and not merely for Berezyuk's personal use. 



                 Thus, even if we concluded that Berezyuk was entitled to suppression of 



his statements, we would uphold his conviction on the basis that the error in admitting 



these statements was harmless beyond a reasonable doubt. But if Berezyuk were entitled 



to suppression of the heroin itself, then we would be obliged to reverse his conviction. 



                 For this reason, we must decide whether Berezyuk's request for suppression 



of the heroin (as opposed to suppression of his statements) is properly before us in this 



appeal. 



             (d)  Why   we   conclude   that   Berezyuk's   claim   of   involuntariness   was 

            forfeited   because of his failure to adequately brief this claim in his 

            opening brief 



                 One   of   the   precepts   of   appellate   procedure   is   that   an   appellant   is   not 



allowed to raise new claims in their reply brief.   Rather, the reply brief is meant to give 



the appellant a chance to further explain the claims already raised in their opening brief, 



or to respond to claims raised by the appellee.            Thus, if a litigant raises a claim for the 



                                                  - 23 -                                              2366
 


----------------------- Page 24-----------------------

first time in their reply brief, that claim is deemed waived or forfeited (even if the claim 

was litigated in the lower court). 1 



                 This   rule   of   forfeiture   applies   not   only   to   claims   that   go   completely 



unmentioned in the appellant's opening brief, but also to claims that receive only cursory 

discussion in the opening brief. 2 



                 On the other hand, when a claim is clearly identified and argued in the 



opening      brief,   this  rule  of  forfeiture  does   not   apply,   even   though    the   appellant's 

explanation or argument of this issue might be plainly deficient. 3 



                 Thus, the question of waiver often turns on an assessment of whether the 



appellant's discussion of the issue in their opening brief exceeds the confines of the 



"cursory".     The supreme court has indicated that an appellant's discussion of an issue 



will be deemed sufficient if that discussion contains citations to pertinent legal authority 

supporting      the   appellant's    argument, 4    and   if  the  discussion     contains    a  sufficient 



    1   See, e.g., Diaz v. Alaska Dept. of Corrections , 239 P.3d 723, 730 n. 30 (Alaska 2010); 



Maines v. Kenworth Alaska, Inc. , 155 P.3d 318, 326 (Alaska 2007) (issues raised for the first 

time in a reply brief are waived). 



    2   See Iverson v. Griffith , 180 P.3d 943, 946 n. 12 (Alaska 2008) (holding that a litigant 



waived a due process claim when she mentioned this due process claim only in passing in her 

opening brief, and then attempted to develop the argument more fully in her reply brief); 

Adamson v. University of Alaska , 819 P.2d 886, 889 n. 3 (Alaska 1991) (holding that when 

an issue is given only cursory treatment in the argument portion of an appellant's opening 

brief, the issue is waived, and the waiver is not correctable by arguing the issue in the reply 

brief). 



    3   See Rofkar v. State , 273 P.3d 1140, 1141-42 (Alaska 2012); State v. Jacob, 214 P.3d 



353, 361-62 (Alaska 2009); Maisy W. v. Alaska Office of Children's Services , 175 P.3d 1263, 

1267-68      (Alaska   2008);  Winschel   v.   Brown,   171    P.3d   142,   151  n.   40  (Alaska   2007); 

Anchorage Chrysler Center, Inc. v. DaimlerChrysler Corp. , 129 P.3d 905, 913 n. 17 (Alaska 

2006). 



    4   See State v. Jacob, 214 P.3d at 361-62. 



                                                  - 24 -                                              2366
 


----------------------- Page 25-----------------------

description of the operative facts so that the appellate court can understand what the 

claim is, and can understand the legal and factual bases of the claim. 5 



                 In   contrast,   when   the   opening   brief   merely   mentions   a   claim,   with   no 



substantive argument of the issue, and with no citation to pertinent legal authority, the 

claim will be deemed waived. 6 



                 Turning     to   Berezyuk's   case,   and     to   the   issue   of   whether   Berezyuk's 



statements      to  the  airport   police    should    be  deemed     "involuntary"      under    the  Fifth 



Amendment, we conclude that Berezyuk's opening brief does not contain a sufficient 



discussion of this issue to preserve this claim. 



                 As we explained before, there are twelve pages of Berezyuk's opening brief 



devoted to the argument that Berezyuk's Miranda rights were violated in various ways. 



However, in these twelve pages, Berezyuk never argues that his statements were coerced 



by improper threats or promises, and thus were involuntary under the Fifth Amendment. 



                 As we have explained, among the pertinent twelve pages of Berezyuk's 



opening brief, there are only two sentences that refer to coercion.  These two sentences 



are   conclusory,   and   they   are   not   accompanied   by   a   reference   to   any   pertinent   legal 



authority (i.e., legal authority on the question of when a confession should be deemed 



involuntary for Fifth Amendment purposes). 



    5   See  Maisy   W.   v.   Office   of   Children's   Services ,   175   P.3d   at   1267-68;  Winschel   v. 



Brown , 171 P.3d at 151 n. 40; Anchorage Chrysler Center v. DaimlerChrysler Corp. , 129 

P.3d at 913 n. 17. 



    6   See Zok v. State , 903 P.2d 574, 576 n. 2 (Alaska 1995) (holding that where a litigant 



"provided no substantive argument on point in his opening brief, and only [explained] the 

court's alleged [error] in his reply brief," the issue was waived).            See also Peterson v. Ek , 

93 P.3d 458, 464 n. 9 (Alaska 2004), and Petersen v. Mutual Life Insurance Co. of New York , 

803 P.2d 406, 410 (Alaska 1990) (issues that are raised only in a cursory fashion, without 

citing any pertinent legal authority, are waived). 



                                                   - 25 -                                              2366
 


----------------------- Page 26-----------------------

                 If   one   were   not   already   well-acquainted   with   the   trial   court   record   - 



specifically, if one did not already know that the issue of voluntariness was litigated in 



the superior court - one would never suspect that Berezyuk was trying to argue that 



something worse than a Miranda violation occurred in his case, and that his statements 



to Officers Gamache and Delk were involuntary for Fifth Amendment purposes. 



                 We accordingly conclude that the passing mention of "coercion" in these 



two   sentences   in   Berezyuk's   opening   brief   is   insufficient   to   preserve   this   claim   for 



appeal. 



                 The    next    question    is  whether     the   State   saved    Berezyuk      from    the 



consequences of this waiver when the State chose to brief the voluntariness issue. 



                 As we explained earlier, the State's brief contains two arguments on this 



point:   first, that Berezyuk's briefing of the issue was inadequate to preserve the claim, 



and second, that there was no merit to the claim in any event.                  The State was able to 



make this second argument because the issue was litigated in the superior court, and was 



decided by Judge Card. 



                 One might argue that, because both sides were ultimately able to brief this 



issue (the State in its brief, and then Berezyuk in his reply brief), there is no unfairness 



in allowing Berezyuk to litigate the claim.   But the order in which the issue was briefed 



does potentially prejudice the State. 



                 Here, the State was required to speculate, to a certain extent, as to exactly 



how   Berezyuk   might   argue   this   issue   on   appeal.       It   is   true   that   Berezyuk   filed   a 



suppression motion in the trial court addressing this issue, but Berezyuk's motion was 



filed before the evidentiary hearing, and before Judge Card made his findings.  Thus, the 



State could not know for sure (1) precisely what evidence Berezyuk would rely on in his 



appellate argument, (2) whether Berezyuk would take issue with any of Judge Card's 



                                                  - 26 -                                              2366
 


----------------------- Page 27-----------------------

findings of fact, and (3) which aspects of Judge Card's legal analysis Berezyuk would 



attack. 



               An appellee (that is, the party responding to an appeal) is entitled to know 



what legal and factual arguments the appellant is relying on.  When the appellant's brief 



does not specify these matters, the appellee is placed at a disadvantage; the appellee is 



essentially forced to guess how the appellant might wish to attack the trial court's ruling 



- forced to anticipate the arguments that the appellant might raise in their reply brief. 



                It is true, as our supreme court recently indicated in Rofkar v. State , 273 



P.3d 1140 (Alaska 2012), that an appellate court has the authority to vary its procedure 



and allow an appellee in this situation to file yet another brief - a brief responding to 



the arguments contained in the appellant's reply brief.         But we do not interpret Rofkar 



as saying that this kind of procedure should be followed in cases where the appellant's 



opening brief is insufficient to preserve the issue in the first place. 



                In Rofkar , the supreme court did not repudiate or cast doubt on its line of 



decisions holding that an appellant forfeits a claim if that claim is not mentioned, or is 



given only cursory attention, in the opening brief.  Rather, the supreme court concluded 



that Rofkar's claim should be litigated because Rofkar's discussion of this claim in his 



opening brief was  sufficient to preserve the claim (even though that discussion was 



deficient   in   certain   ways). See  Rofkar ,   273   P.3d   at   1142: "[W]hen   an   appellant 



adequately raises an issue in the opening brief, the fact that the appellant does not argue 



that important [case] authority must be overruled, or distinguished, until [the] reply brief 



does not justify [an appellate court] in refusing to consider the issue on the merits." 



(Emphasis added) 



                In Berezyuk's case, the passing mention of "coercion" in his opening brief 



was not adequate to raise the claim that his statements were involuntary.               The State, 



out of caution, chose to brief the voluntariness issue because the State could not be sure 



                                               - 27 -                                          2366
 


----------------------- Page 28-----------------------

that we would agree with its primary contention that the issue was abandoned.                     If we 



were to hold that the State, by briefing the merits of this issue, thereby waived its right 



to argue that the issue was abandoned, we would simply encourage irregular appellate 



procedure - and, potentially, we would also encourage gamesmanship in briefing by 



appellees. 



            (e) Why we conclude that, even if Berezyuk should be allowed to litigate 

            the   claim   that   his   statements   were   involuntary,   he   is   nevertheless 

            precluded from arguing that the heroin found in his jacket should also 

            be suppressed on this basis - because that claim was not raised in the 

            trial court, nor was it raised in his opening brief 



                As we have already explained, Berezyuk argued in the superior court that 



his confession should be deemed involuntary (and should be suppressed) because it was 



the product of improperly coercive questioning - in particular, the officers' statements 



suggesting that Berezyuk would face deportation and a lengthy prison sentence unless 



he was honest and cooperative with the officers. 



                But   Berezyuk   did   not   argue   that   the   officers'   statements   affected   the 



voluntariness of his consent to the search of his jacket - the search that uncovered the 



bricks of heroin.     Berezyuk argued only that his statements were the result of improper 



coercion.  As a result, Judge Card made no ruling on the question of whether Berezyuk's 



consent to the search of his jacket might be viewed as involuntary. 



                Likewise, neither Berezyuk's opening brief nor the State's responding brief 



addressed the issue of whether the heroin should be deemed the fruit of improperly 



coercive statements.       This possibility was not raised until Berezyuk's second appellate 



attorney identified this issue in Berezyuk's reply brief. 



                                                 - 28 -                                            2366
 


----------------------- Page 29-----------------------

                As we have also explained, this new claim - the claim that the coercive 



aspects of the interrogation should result in suppression of the physical evidence, and not 



just   suppression   of   Berezyuk's   statements   -   has   a   potentially   crucial   effect   on   the 



outcome of this litigation.  Suppression of Berezyuk's confession, by itself, would not 



require us to reverse his conviction.   The heroin in Berezyuk's possession was worth up 



to a quarter of a million dollars. Even if the jury never heard Berezyuk's confession that 



he was transporting this heroin for a drug dealer, it was obvious that this amount of 



heroin was intended for sale or distribution, and not merely for Berezyuk's personal use. 



                Thus, any error in admitting Berezyuk's statements would be harmless 



beyond a reasonable doubt.         But if Berezyuk were entitled to suppression of the heroin 



itself, then we would be obliged to reverse his conviction. 



                We conclude that Berezyuk forfeited the claim that the heroin should be 



suppressed by failing to raise this claim in the superior court, and by failing to raise this 



claim in his opening brief.       We reach this conclusion for three reasons. 



                First, Berezyuk's failure to raise this claim in the trial court meant that 



Judge Card never made findings regarding the facts that would be necessary to analyze 



this claim. 



                Here, we need to explain (or emphasize) that Officers Gamache and Delk 



made a series of potentially coercive statements to Berezyuk. Berezyuk consented to the 



search of his jacket in the middle of this series of statements, but he did not confess that 



he was transporting heroin for a drug dealer until the end of the series of questionable 



statements. 



                This is not a situation where Berezyuk heard an entire series of potentially 



coercive statements and then he decided to both confess and allow the police to search 



his jacket.   If that had been the situation, then the only question would be whether the 



                                                 - 29 -                                             2366
 


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series of coercive statements, taken as a whole, overbore Berezyuk's will - and, if so, 



then both his statements and the physical evidence should be suppressed. 



                But   here,   Berezyuk   had   heard   only   a   few   of   the   potentially   coercive 



statements when he consented to have Officer Gamache search his jacket.                       Thus, the 



evidence pertaining to the voluntariness of that consent was different from the evidence 



pertaining to the voluntariness of his later confession. 



                Equally as important, the record of the interrogation shows that Berezyuk 



continued to resist the officers' interrogative efforts, and continued to deny that he was 



a drug courier, even after Gamache discovered the heroin in Berezyuk's jacket.                     Even 



though the officers now had the bricks of heroin, Berezyuk continued to insist that this 



was only a small amount, and that the heroin was purely for his personal use.                   In other 



words,   he   continued   to   oppose   the   officers   -   thus   indicating   that   his   will   was  not 



overborne, at least at that point in the interrogation. 



                SeeEdwards v. State , 842 P.2d 1281, 1285 (Alaska App. 1992), and Malloy 



v. State, 1 P.3d 1266, 1276 (Alaska App. 2000), where we rejected the defendants' 



claims of involuntariness because, despite the officers' potentially coercive statements, 



the defendants continued to protest their innocence. 



                For these reasons, the answer to whether Berezyuk's statements should be 



suppressed as involuntary does not necessarily yield the answer to whether the heroin 



should be suppressed.   It therefore follows that Berezyuk's failure to explicitly raise this 



issue in the trial court should preclude him from raising this issue on appeal. 



                The second reason why Berezyuk should be precluded from challenging 



the admissibility of the heroin for the first time on appeal is the Alaska Supreme Court's 



decision in Moreau v. State , 588 P.2d 275 (Alaska 1978).  In Moreau , the supreme court 



held that claims involving the exclusionary rule are "not appropriately raised for the first 



time on appeal."  Id. at 280.      The supreme court explained: 



                                                 - 30 -                                             2366
 


----------------------- Page 31-----------------------

                         The     exclusionary      rule  is  not  the   type   of  doctrine 

                 designed      to  protect    against    conviction     of  the   innocent. 

                 Rather, it is a prophylactic device to curb improper police 

                 conduct and to protect the integrity of the judicial process. 

                 Thus, justice does not generally require that it be applied on 

                 appeal where it is not urged at trial or where new grounds for 

                 its invocation are presented on appeal. 



Moreau , 588 P.2d at 280. 



                 As the Moreau decision points out, there is a significant difference between 



coercive police conduct that leads to a confession and coercive police conduct that leads 



to the discovery of physical evidence.   The confession is untrustworthy because it is the 



product   of   coercion,   and   it   is   therefore   improper   for   the   trier   of   fact   to   rely   on   this 



evidence.      But     physical    evidence     obtained    through     police   misconduct      retains   its 



probative value. This evidence is withheld from the jury, not because it is unreliable, but 



rather to deter police misconduct. Therefore, even if the defendant can identify a ground 



for suppressing this evidence on appeal, this does not impugn the fairness of the fact- 



finding process at the defendant's trial, and so there is no plain error. 



                 Third and finally, the claim under consideration - whether the heroin 



should have been suppressed on the basis that it was the fruit of police coercion - was 



not raised until Berezyuk's reply brief.  And, as we have explained, claims raised for the 



first time in a reply brief are waived. 



                 For   these   three   reasons,   we   conclude   that   even   if   Berezyuk   should   be 



allowed to litigate the voluntariness of his statements , he is still precluded from litigating 



the voluntariness of his consent to the search of his jacket, and from seeking suppression 



of the heroin on this basis. 



                 And   because   any   error   in   admitting   Berezyuk's   statements   at   trial   was 



harmless beyond a reasonable doubt (given the evidence that he possessed a quarter- 



                                                   - 31 -                                               2366
 


----------------------- Page 32-----------------------

million dollars' worth of heroin), we conclude that Berezyuk's conviction for possessing 



heroin with intent to distribute should be affirmed. 



        The sufficiency of the evidence to support Berezyuk's conviction for the 

        theft of the camera 



               Berezyuk     argues   that  the  evidence   presented   at  his  trial  was  legally 



insufficient to support his conviction for stealing the camera from the store at the airport. 



Specifically, he argues that the camera might have been taken by his brother, Ivan. 



               But when a defendant claims that the evidence is insufficient to support a 



criminal conviction, an appellate court must decide that claim by viewing the evidence 



in the light most favorable to the jury's verdict, even though contrary evidence may have 

been presented at trial. 7   Viewing the evidence at Berezyuk's trial in that manner, the 



evidence was sufficient to support Berezyuk's conviction for theft. 



        Conclusion 



               The judgement of the superior court is AFFIRMED. 



    7  See, e.g., Richards v. State , 249 P.3d 303, 304-05 (Alaska App. 2011); Rantala v. 



State, 216 P.3d 550, 562 (Alaska App. 2009). 



                                             - 32 -                                          2366 

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