Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Beavers v. State (3/10/00) sp-5247

Beavers v. State (3/10/00) sp-5247

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA


TIMOTHY BEAVERS,              )
                              )    Supreme Court No. S-8399
                              )
             Petitioner,      )    Court of Appeals
                              )    No. A-6250 
                              )
     v.                       )    Trial Court No.
                              )    3AN-S95-8563 Cr.
                              )
STATE OF ALASKA,              )
                              )    O P I N I O N
                              )
             Respondent.      )    [No. 5247 - March 10, 2000]
______________________________)



          Petition for Hearing from the Court of Appeals
of the State of Alaska, on Appeal from the Superior Court of the
State of Alaska, Third Judicial District, Anchorage, Milton M.
Souter, Judge.


          Appearances: Margi A. Mock, Quinlan Steiner,
Assistant Public Defenders, Barbara K. Brink, Public Defender,
Anchorage, for Petitioner.  John A. Scukanec, Assistant Attorney
General, Anchorage, Bruce M. Botelho, Attorney General, Juneau, for
Respondent.


          Before: Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.


          MATTHEWS, Chief Justice.
          BRYNER, Justice, with whom EASTAUGH, Justice,
joins, dissenting.



I.   INTRODUCTION
          The superior court dismissed Timothy Beavers's robbery
indictment on the ground that his confession was involuntary.  The
court of appeals reinstated the indictment, finding the confession
voluntary under the "totality of the circumstances."  Beavers
argues that his confession was presumptively involuntary because it
was partially induced by a police officer's threat of harsher
treatment.  Because we agree with Beavers, we reverse the court of
appeals decision and vacate Beavers's indictment.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          The facts of this case are uncontested.  On November 1,
1995, Alaska State Troopers Gerald Graham and David Tullis
questioned Beavers, then sixteen years old, during their
investigation of two Anchorage robberies.  At approximately 2:00
p.m. the troopers arrived at the restaurant where Beavers worked. 
They identified themselves and informed Beavers of their desire to
question him outside the restaurant in order to avoid the noise
inside.  At Graham's invitation, Beavers entered the troopers'
vehicle and sat in the passenger's seat; Graham and Tullis occupied
the driver's and rear seats, respectively.  The interview that
followed lasted twenty-one minutes. 
          Graham asked Beavers his age, and Beavers responded that
he was sixteen.  The troopers then informed Beavers that he was not
under arrest, had not been charged with any crime, and remained
free to terminate the interview and exit the vehicle at any time.
However, Graham emphasized to Beavers the importance of Beavers's
cooperation: "But, I do need to talk to you, it's real important. 
I think you know what it's about.  And,  I think you need to talk
with me about it.  Okay?"  
          Graham explained that he had recently interviewed several
of Beavers's friends who were also implicated in the robberies
under investigation and that the troopers now desired to obtain
Beavers's "side of the story."  The discussion shifted toward
various burglaries committed by one of Beavers's friends.  Beavers
answered a few questions indicating his knowledge of his friend's
involvement in the crimes.  Graham then reiterated his earlier
admonition concerning the importance of Beavers's cooperation in
the interview:
          And I want to make sure that uhm, I mean, if
you're involved in the burglaries, you need to tell me.  If you're
not, that's fine, but if I later come back and find out that you
are involved there's going to be some problems here, you
understand?  Okay.  I want to get this cleared up now.

He also repeated his previous assurance that Beavers was not under
arrest and could leave at will.  Graham then directly questioned
Beavers about his involvement in the burglaries.  Beavers denied
any participation.
          Following Beavers's initial denial, Graham asked him
several questions concerning his friends and the location of
various stolen items.  After Beavers had answered the questions to
the troopers' satisfaction, Graham spoke the words that form the
basis of Beavers's present appeal:
          Okay.  Well I know you're telling the truth
because it's the same stuff we've already been told.  I, but I have
to confirm it.  I mean, there's stuff I know and stuff I don't
know.  That's how I we do an interview.  And, if you're telling me
the truth, you'll be telling me stuff that I already know and I'll
know that you're telling me the truth.  This is important, okay? 
It, it's very important. I know that when you're young, you do some
stupid stuff, make a, make a wrong turn somewhere, okay.  And, and
you do some crazy stuff, okay?  But, if you're, if you try and hide
it from me you're really going to get hammered.  I mean it's, you
gotta come out and tell me the truth on this stuff, okay? I know
some stuff that you're into and we're going to have to talk about
that, okay? 

(Emphasis added.) 
          Beavers responded affirmatively.  Graham then asked
Beavers if he understood.  Beavers replied "[n]ot really.  Like
what kind of stuff?"  Graham indicated his desire to discuss one of
the robberies under investigation and showed Beavers a lineup
containing photographs of Beavers and one of the other youths
implicated in the robbery.  Graham asked Beavers to identify
himself and the other youth in the photograph, and Beavers
complied.
          Graham then asked Beavers if he understood what the
lineup photographs were used for.  Beavers gave a brief, inaudible
answer, after which Graham responded:
          That's right.  You walk up to a victim and you
say, "See anybody in here you recognize?" and they go (smack) "I
recognize this person, this person was there.  This person was one
of the guys that robbed me."  Now if you want to lie to me and get
in more trouble, that's fine, okay?  That's your decision.  This is
the only chance I can help you.  You're young, you need to get this
cleaned up now, okay?  You want to tell me the truth?

          Beavers immediately admitted his participation in the
robbery.  Responding to Graham's request that he describe the
incident "in [his] own words," Beavers provided a detailed account
of the robbery and explained how the youths had disposed of the
stolen property.  When Graham subsequently inquired about the other
robbery under investigation, Beavers likewise admitted his
involvement and described that incident for the troopers. 
          Graham acknowledged Beavers's forthrightness during the
interview.  He asked Beavers to submit a palm print and to assist
the troopers in retrieving the stolen property.  Graham repeatedly
informed Beavers that his cooperation in these matters was
voluntary, providing Beavers with the opportunity to refuse. 
Beavers indicated his willingness to assist the troopers in
retrieving the stolen property, but expressed reluctance at
submitting a palm print.  Graham responded by suggesting that the
officers would obtain a search warrant if Beavers refused, and also
informed Beavers that he might ultimately be arrested
notwithstanding his cooperation.  Beavers eventually acquiesced,
was taken to the troopers' station for a palm print to be taken,
and was later returned to his mother's residence by the troopers. 
     B.   Proceedings         
          In presenting its case to the grand jury, the prosecution
relied in part upon Beavers's confession to Trooper Graham.  The
grand jury returned an indictment for first-degree robbery against
Beavers.
          Beavers moved to suppress his confession in superior
court, alleging that it had been involuntarily given and obtained
in violation of his Miranda rights. [Fn. 1]  The state opposed
Beavers's motion.  After an evidentiary hearing, the superior court
ruled that the troopers had not violated Beavers's Miranda rights
because Beavers was not in custody during the interview. 
          However, the superior court also found that Beavers's
confession had been involuntary.  The court noted the "politely
confrontational" tone of Graham's interrogating tactics; that
Beavers was only sixteen at the time of the interview; that the
interview had occurred in the troopers' vehicle; that the troopers
had subjected Beavers to "coercive suggestion" by identifying
themselves as law enforcement officers; that Graham had represented
to Beavers his alleged knowledge of numerous details surrounding
the crimes; and that Graham had dominated the conversation through
his constant questions.  The court also emphasized Graham's
statements that Beavers would be "hammered" if he tried to conceal
the truth from the troopers, that Beavers "need[ed] to get this
cleaned up," and that he should tell the troopers the truth about
the robberies.
          Based upon Graham's statements to Beavers and the
circumstances surrounding the interview, the superior court found
that Graham had excessively pressured Beavers and essentially
indicated to him that he lacked any choice but to confess.  As a
result, the court concluded that Beavers's will had been overcome
and that his confession was coerced.  The court thus granted
Beavers's motion to suppress the confession and dismissed the
indictment against him.
          The state appealed the superior court's disposition of
the voluntariness issue to the court of appeals, [Fn. 2] which
reversed the lower court's determination.  After reviewing the
circumstances surrounding Beavers's confession, the court of
appeals concluded that his age, the troopers' tactics, and the tone
of the interview were insufficient to overcome Beavers's will.
          The court of appeals also held that Graham's statement to
Beavers that he would be "hammered" if he lied did not render
Beavers's confession involuntary.  Analogizing the trooper's threat
to a promise of more favorable treatment, the court of appeals
analyzed Beavers's confession under the "totality of circumstances"
approach and determined that his statement was voluntary
notwithstanding the threat.  The court of appeals thus reversed the
superior court's order and reinstated Beavers's indictment.
          Beavers seeks reversal of both the reinstatement of his
indictment and the determination that his confession was voluntary. 
We granted Beavers's petition, directing the parties to address,
inter alia, the issue of whether an officer's threat of harsher
treatment should be analyzed in the same manner as a promise of
leniency when evaluating the voluntariness of a suspect's
confession. 
III. STANDARD OF REVIEW
          We review the trial court's determination concerning the
voluntariness of Beavers's confession as a mixed question of law
and fact. [Fn. 3]  Our review reflects the three-part nature of the
lower court's inquiry: "First, the trial judge must find the
external, phenomenological facts surrounding the confession. 
Second, from these external facts, the judge must infer an
internal, psychological fact: the mental state of the accused. 
Finally, the judge must assess the legal significance of this
inferred mental state." [Fn. 4]    
          The first step of this process involves the trial judge's
role in fact-finding and weighing the credibility of witnesses; we
review the judge's findings of historical fact deferentially, and
will overturn them only if clearly erroneous. [Fn. 5]  In
determining the accused's mental state and its legal significance,
however, we conduct an independent examination of the entire record
and base our conclusion upon the totality of circumstances
surrounding the confession. [Fn. 6]
IV.  DISCUSSION
     A.   Alaska Law Regarding the Voluntariness of Confessions
     
          Legal principles derived from our previous decisions
provide the framework for addressing the issues in the present
case.  "A confession is not admissible into evidence unless it is
voluntary.  In determining whether a confession is the product of
a free will or was the product of a mind overborne by coercion the
totality of circumstances surrounding the confession must be
considered." [Fn. 7]  Among the circumstances relevant to the
court's determination of voluntariness are "the age, mentality, and
prior criminal experience of the accused; the length, intensity and
frequency of interrogation; the existence of physical deprivation
or mistreatment; and the existence of threat or inducement." [Fn.
8]   
          The prosecution must prove the voluntariness of the
confession by a preponderance of the evidence. [Fn. 9]  When the
accused is a juvenile, the state assumes a particularly heavy
burden of proof. [Fn. 10]  We have also recognized "[t]he manner of
interrogation, including whether any threats or promises induced
the confession, . . . [as] an important factor to be considered."
[Fn. 11]  We have repeatedly quoted the test enunciated in Bram v.
United States [Fn. 12] as a baseline for voluntariness analysis:
          [A] confession, in order to be admissible,
must be free and voluntary; that is, must not be extracted by any
sort of threats or violence, nor obtained by any direct or implied
promises, however slight, nor by the exertion of any improper
influence.[ [Fn. 13]]

          Significantly, however, Bram's seemingly absolute
prohibition on all promises is not dispositive: [Fn. 14]   
          That language has never has never been applied
with . . . wooden literalness . . . .  The Supreme Court has
consistently made clear that the test of voluntariness is whether
an examination of all the circumstances discloses that the conduct
of law enforcement was such as to overbear (the defendant's) will
to resist and bring about confessions not freely self determined.[[Fn. 15]] 

We have noted that the facts of Bram do not require a blanket rule
against promise-induced confessions; that subsequent Supreme Court
decisions demonstrate the importance of case-specific factual
nuances in determining voluntariness; and that a per se approach
might result in the loss of reliable and probative confessions.
[Fn. 16]
          We have thus expressly "reject[ed] a per se rule which
would condemn any incriminatory statement obtained by means of a
promissory inducement," and have instead adopted a "totality of
circumstances" approach in examining the voluntariness of an
accused's confession. [Fn. 17]  We have employed this multi-factor
analysis even when police have engaged in improper conduct to
induce confessions, and we have affirmed the voluntariness of
inculpatory statements induced by police trickery and
misrepresentation of evidence. [Fn. 18]  
          But in Webb v. State we recognized that "certain improper
conduct is so coercive as to render a Miranda waiver involuntary
without regard to the totality of circumstances."  The police
officer in Webb had conditioned the return of a suspect's driver's
license to him upon his agreement to provide a statement.  We
concluded that the officer's conduct was sufficiently coercive to
render the suspect's confession involuntary notwithstanding the
other factors surrounding the interrogation. 
          We noted that the suspect in Webb was "presented with the
illusory choice of exercising his right to remain silent and losing
a valuable property interest, his driver's licence, and making an
incriminating statement to secure [its] return."  Condemning this
Hobson's choice, we held that Miranda waivers "obtained by
conditioning the exercise of the constitutional guarantee against
self-incrimination against the loss of another constitutionally
protected interest" were per se involuntary.
     B.   Police Threats Are Presumptively Coercive.
     
          Although we have repeatedly stated that a police
officer's promissory inducement represents only one factor in the
"totality of circumstances" approach, we have never expressly
evaluated a police officer's threat of harsher treatment under the
same analysis.  The issue of whether courts should analyze promises
and threats identically constitutes the central issue in the
present appeal, and it is one of first impression for this court.
          Beavers asks us to hold police threats per se coercive,
obviating judicial examination of the other factual circumstances
surrounding an accused's confession.  The state argues that a
threat should, like an officer's promise of leniency, represent
merely one of several factors for consideration under this court's
"totality of circumstances" approach.
          A criminal suspect's right to remain silent in the face
of police interrogation represents one of the most fundamental
aspects of our constitutional jurisprudence.  It includes the right
to terminate an interrogation at any time.  We regard any potential
encroachment upon this right with the utmost concern.  A law
enforcement officer's threat of harsher than normal treatment --
however phrased -- essentially conveys to criminal suspects that
they will be punished for their silence, including any refusal to
give further answers.  Threats of harsher treatment for refusing to
confess present suspects with the same type of choice which we
found to be unacceptable in Webb.  Suspects are told, in effect,
that they must give up their constitutional right to silence or
they will suffer greater punishment.  We view such threats with
disfavor.  Where they are used, the resulting confession should be
considered involuntary unless the state can show affirmatively that
the confession was voluntarily made. 
          In reaching our conclusion, we draw guidance from the
Ninth Circuit's decision in United States v. Harrison.  Harrison
was suspected by federal authorities of money laundering.  Without
warning, fifteen federal agents entered Harrison's house with
weapons drawn, arrested Harrison and her companion, and searched
her home.  The agents advised Harrison of her Miranda rights, after
which an agent informed her of evidence linking her to the crime
under investigation.  The agent then told Harrison that she could
potentially receive a twenty-year sentence for her participation in
the crime, and asked whether she thought it would be better if the
judge was told of her cooperation or noncooperation.  Harrison
responded that it would be better if the judge was informed of her
cooperation, and she proceeded to confess her criminal involvement
to the agents.  The district court found Harrison's confession
voluntary and ultimately convicted her of money laundering. 
          The Ninth Circuit reversed Harrison's conviction, holding
her confession involuntary.  While expressing its continued
adherence to the "totality of circumstances" approach, the court
nevertheless established an exception for confessions induced by
police threats to inform the prosecutor of a suspect's refusal to
cooperate.  According to the court, "there are no circumstances in
which law enforcement officers may suggest that a suspect's
exercise of the right to remain silent may result in harsher
treatment by a court or prosecutor." 
          The Harrison court reiterated the permissibility of
confessions secured by an officer's promise of leniency.  The court
also acknowledged the arguable equivalence between such promises
and police threats to inform the prosecutor of a suspect's refusal
to cooperate, noting that "[i]n many ways, both types of statements
are simply different sides of the same coin: 'waive your rights and
receive more favorable treatment' versus 'exercise your rights and
receive less favorable treatment.'"  The Ninth Circuit determined,
however, that
          [t]he two types of statements are not entirely
interchangeable.  Defendants may get some benefit from learning
about the possibility of reduced sentences, though that benefit
would hardly vanish if the government communicated the prospect of
leniency through defendants' attorneys rather than at the time of
arrest.  We also have observed that in most circumstances,
speculation that cooperation will benefit the defendant or even
promises to recommend leniency are not sufficiently compelling to
overbear a defendant's will.[] 

In distinguishing promises to communicate a suspect's cooperation
to the prosecutor from threats to inform the prosecutor of the
suspect's lack of cooperation, the Harrison court reasoned:
          Refusal to cooperate is every defendant's
right under the fifth amendment.  Under our adversary system of
criminal justice, a defendant may not be made to suffer for his
silence.  Because there is no legitimate purpose for the statement
that failure to cooperate will be reported and because its only
apparent objective is to coerce, we disapprove the making of such
representations.[]

          The Ninth Circuit thus rejected the government's request
to examine Harrison's inculpatory statement in context of all the
circumstances involved in the case and held the agent's suggestion
that he might inform the judge of Harrison's failure to cooperate
inherently coercive.  
          We find Harrison's reasoning persuasive and agree with
the Ninth Circuit's distinction between promises of leniency and
threats of harsher treatment.  We also note that at least two other
cases have taken a similar approach. 
           In United States v. Tingle, a credit union employee
(Tingle) was under suspicion of stealing funds.  After claiming
that she had been attacked by an unknown assailant who had tied her
up and stolen money from the safe of the credit union, Tingle was
escorted by two FBI agents to their vehicle for further
questioning.  During the hour-long interview, Tingle initially
repeated the alibi she had given earlier.  The agents accused her
of lying and explained to her the advantages of truthfully
cooperating with the investigation.  They enumerated the crimes --
and corresponding prison terms -- for which she might be found
guilty.  Tingle continued to deny the accusations.  
          The agents explained to Tingle that it was in her best
interest to cooperate, and told her that, depending on her
decision, they would inform the prosecutor either of her
cooperation with the investigation or her refusal to do so.  They
also indicated that she might lose contact with her young child if
she was ultimately jailed.  Tingle began to sob and visibly shake
during the interview.  She eventually confessed to the crime and
was convicted.  The Ninth Circuit reversed the conviction, holding
that the agent's threats had invalidated her confession.
          In State v. Strayhand, a theft and robbery suspect was
arrested and interrogated at the police station.  The interviewing
detectives repeatedly threatened Strayhand with enhanced punishment
for failure to cooperate with the investigation, warning him that
they would ask for "a lot of jail time," would "hang him in court,"
and would "have it made" after informing the judge of his refusal
to confess.  During a subsequent interview later that day,
Strayhand admitted his guilt and was eventually convicted at trial. 
The Arizona Court of Appeals reversed Strayhand's conviction,
holding his confession involuntary due to the detectives' threats
of harsher treatment. 
V.   CONCLUSION
          Threat-induced confessions should be considered
presumptively involuntary absent evidence affirmatively indicating
that the suspect's will was not overcome by the threats.  We have
reviewed the record in the present case and agree substantially
with the trial court's view of the evidence.  Trooper Graham's
threat to Beavers that he would be "hammered" if he attempted to
hide his conduct from Graham and that "we're going to have to talk
about that" conveyed an unmistakable message that Beavers would be
punished for exercising his constitutional right to silence.  There
are no affirmative indications that the trooper's threats of
harsher treatment were ineffective.  We therefore hold that the
court of appeals' decision must be REVERSED and the superior
court's ruling reinstated.  

BRYNER, Justice, with whom EASTAUGH, Justice, joins, dissenting.
          I dissent from this opinion because it muddles the law of
confessions and suppresses a statement that, by our traditional
test, is voluntary.    
          Today's opinion announces that "threat-induced"
confessions must now be considered "presumptively involuntary
absent evidence affirmatively indicating that the suspect's will
was not overcome by the threats." [Fn. 1]  The court takes this
rule from article I, section 9, of the Alaska Constitution with
scarcely a glance to see whether it finds support in the text,
context, or history of this constitutional provision. [Fn. 2]  
          In fact this new rule finds little support in our
constitution or jurisprudence.  We have consistently viewed the
Alaska Constitution as protecting against involuntary confessions
to the same extent as the federal constitution. [Fn. 3]  Until now
we have resisted adopting more stringent "per se" rules for
confessions. [Fn. 4]          In Stobaugh v. State, we expressly
declined to hold that a confession induced by a promise should be
deemed involuntary as a matter of law. [Fn. 5]  Refusing to read
"wooden literalness" [Fn. 6] into the United States Supreme Court's
admonition in Bram v. United States that confessions not be
"extracted by any sort of threats or violence, nor obtained by any
direct or implied promises, however slight," [Fn. 7] we found three
reasons to reject a per se rule excluding confessions obtained by
promissory inducements: 
          First, the facts of Bram do not require such a
per se rule.  Second, subsequent cases demonstrate that factual
nuances may be very important in determining voluntariness.  Third,
the probable loss of reliable and probative confessions that would
result from rigid adherence to a per se rule militates in favor of
examining all the circumstances surrounding a promise-induced
confession.[ [Fn. 8]]

Thus, we opted to adhere to the traditional test of voluntariness,
which simply determines from the totality of the circumstances
whether the police overbore the defendant's free will. [Fn. 9]
          Though Stobaugh considered only confessions induced by
promises, the three reasons it gives for rejecting a per se rule
apply with equal force to confessions induced by threats.  First,
here, as in Stobaugh, "the facts of Bram do not require such a per
se rule." [Fn. 10]  The court's decision today pinpoints a valid
distinction between threats and promises -- a distinction missed by
the court of appeals: threats are generally more coercive than
promises. [Fn. 11]  But this hardly requires a rule that would
exempt all threats from the traditional voluntariness analysis and
categorically declare threat-induced statements to be involuntary. 
          Second, with promises and threats alike, "factual nuances
may be very important in determining voluntariness." [Fn. 12] 
There are limitless forms of threats, and they can occur under an
infinite variety of circumstances; often the difference between a
threat and a promise is a matter of subtle interpretation. [Fn. 13] 
Many settings can be imagined in which a particular threat -- just
like a promise -- would have no realistic tendency to overbear a
particular person's will.  And nothing in the generally more
coercive nature of threats makes the coercive effect of a specific
threat inherently more difficult to gauge on a case-by-case basis
than the coercive effect of a promise.  
          Third, for both promises and threats, "the probable loss
of reliable and probative confessions that would result from rigid
adherence to a per se rule militates in favor of examining all the
circumstances surrounding a . . . confession." [Fn. 14]  The
reasoning in Stobaugh thus refutes the per se rule that the court
adopts in this case.  
          The court nevertheless cites three cases as favoring its
decision to immunize threats from analysis under the traditional
voluntariness test: [Fn. 15] United States v. Tingle, [Fn. 16]
United States v. Harrison, [Fn. 17] and State v. Strayhand. [Fn.
18]  But none of these cases supports the court's "woodenly
literal" presumption.  They all involve blatantly coercive
custodial interrogation and are distinguishable on their facts.
[Fn. 19]  Here, by contrast, we have a brief, non-custodial
interrogation that would be unremarkable but for a single, passing
mention of getting "hammered."  
          A second point of distinction between Beavers's case and
the three cases relied on by the court is that none of these cases
categorically condemns all potentially threatening comments uttered
during an interrogation.  Each case involved overt or thinly veiled
threats of reprisal for the accused's exercise of the
constitutional right to silence; this particular type of threat --
the threat that a defendant may "be made to suffer for his silence"
-- is the only type these cases condemn as without "legitimate
purpose." [Fn. 20] 
          There can be no plausible claim of any such threat in
this case.  Beavers could not have understood the trooper's
reference to getting "hammered" as a threat of reprisal for
exercising his right to remain silent.  When the comment occurred,
Beavers had already abandoned his right to silence and was freely
talking to the police about himself and his friends.  He had been
repeatedly told -- and by all indications fully understood -- that
he was free to stop talking and leave at any time.  In context,
then, if the trooper's remark about getting "hammered" threatened
any reprisal, the only reprisal it threatened was for lying -- it
anticipated Beavers's willingness to keep talking and warned him in
realistic terms of the consequences that he was likely to face if
he actively misrepresented the facts: "[I]f you're telling me the
truth, . . . I'll know that you're telling me the truth.  This is
important, okay? . . . But, if you're, if you try and hide it from
me you're really going to get hammered."  
          The final, and perhaps most crucial, point distinguishing
this case from Tingle, Harrison, and Strayhand is that none of
those cases applies an artificial "presumption of involuntariness"
like the constitutional presumption this court creates today. 
Although these cases all roundly condemn threats of reprisal for
exercising the constitutional right to silence, they do not pretend
that such threats automatically render confessions invalid; to the
contrary, each case carefully and faithfully adheres to the
traditional law of confessions, determining, from the totality of
the circumstances, that the police actually overbore the
defendant's free will. [Fn. 21] 

          If anything, these cases illustrate that we add nothing
to the law when we conclude that "[t]hreat-induced confessions
should be considered presumptively involuntary absent evidence
affirmatively indicating that the suspect's will was not overcome
by the threats." [Fn. 22]  As the court in Strayhand declared,
existing law already presumes that every confession is involuntary:
"All confessions are presumed to be involuntary, and the state
bears the burden of proving by a preponderance of the evidence that
any confession is voluntary and freely given." [Fn. 23]  This
court's opinion acknowledges as much and further recognizes that
under Alaska law "[w]hen the accused is a juvenile, the state
assumes a particularly heavy burden of proof." [Fn. 24]  
          Thus, at best, the court creates a superfluous layer of
presumption that distracts attention from the critical question:
did Beavers voluntarily confess?  At worst, the court creates a new
presumptive test of voluntariness that bypasses the traditional,
totality of the circumstances determination.  
          The court's insistence on affirmative evidence of
voluntariness is troubling and will surely confound judges,
practitioners, and police officers.  If the court means by
"affirmative evidence" only that, because all threats are
potentially coercive and this case involves a threat, the state has
failed to meet its heavy burden of proving voluntariness by a
preponderance under the totality of the circumstances, then the
presumption serves no purpose.  A straightforward application of
the conventional totality of the circumstances test would yield the
same conclusion.  
          But the court seems to mean something more since its
decision reversing the court of appeals relies on the absence of
"affirmative indications" of voluntariness and appears to stop
short of independently reviewing the totality of the circumstances
to determine whether the police actually "hammered" Beavers into an
involuntary confession. 
          Yet there is no dispute here about the circumstances
surrounding Beavers's confession, and the confession itself is
entirely recorded.  Short of an admission by Beavers that he
confessed voluntarily, it is hard to conceive of any other
"affirmative" evidence of voluntariness that the state might have
presented.  This situation is not unusual: the police currently
record almost all interrogations.  If a full recording of the
confession does not suffice to dispel the presumption of
involuntariness and require voluntariness to be determined under
the totality of the circumstances, then the court's per se rule is
something more than a conventional presumption: [Fn. 25]  it is
essentially a blanket rule suppressing all confessions in
interrogations that involve an arguable threat.  
          This of course would be the functional equivalent of
Bram's now universally disavowed "woodenly literal" prohibition.
[Fn. 26]  I doubt that the court actually has such a rule in mind. 
But if the court means to land somewhere between the conventional
test and Bram, its intended target is uncertain; it fashions a rule
that will be misinterpreted and misapplied.  And the price of this
uncertainty will be paid in the needless suppression of voluntary
confessions.
          In my view, the present case provides a good example. 
Two troopers subjected Beavers to a brief, matter-of-fact
interrogation.  Beavers was not in custody.  Though only sixteen
years old, he had a regular job and was contacted at his place of
employment.  When asked if he would mind accompanying the troopers
to the station to "talk where it's a little quieter," Beavers had
the assertiveness and presence of mind to respond, "I prefer if we,
like, talked here."  The troopers immediately honored his request. 
It seems apparent, then, that Beavers was capable of understanding
that he had control over his own situation and had good reason to
think that the troopers would not ignore his choices.
          Once the interview began, Trooper Graham immediately
reassured Beavers that he was not under arrest and was free to go
at any time.  Beavers understood.  He freely discussed his
knowledge of some recent burglaries, truthfully denying any
involvement.  In the course of this discussion, Trooper Graham
reminded Beavers, "Like I told you, you're not under arrest, you're
free to go.  Ah you know, I'm not holding you here."  Beavers
continued to answer questions.  
          Trooper Graham soon shifted the discussion to a recent
robbery, exhorting Beavers to tell him the truth; in the midst of
this exhortation, the trooper uttered the "hammering" threat: 
          GERRY GRAHAM: Okay.  Well I know you're
telling the truth because it's the same stuff we've already been
told.  I, but I have to confirm it.  I mean, there's stuff I know
and stuff I don't know.  That's how I we do an interview.  And, if
you're telling me the truth, you'll be telling me stuff that I
already know and I'll know that you're telling me the truth.  This
is important, okay?  It, it's very important.  I know that when
you're young, you do some stupid stuff, make a, make a wrong turn
somewhere, okay.  And, and you do some crazy stuff, okay? But, if
you're, if you try and hide it from me you're really going to get
hammered.  I mean it's, you gotta come out and tell me the truth on
this stuff, okay?  I know some stuff that you're into and we're
going to have to talk about that, okay?

          Beavers hardly seemed cowed by the prospect of
"hammering."  In response to Trooper Graham's ensuing question, "I
know some stuff that you're into and we're going to have to talk
about that, okay?"  Beavers answered, "Alright."  The trooper
followed up by asking, "Do you understand that?"  Beavers
responded, "Not really.  Like what kind of stuff?"  Trooper Graham
answered that he was talking about the MAPCO robbery.
          At that juncture, the trooper showed Beavers a photo
lineup, asking him if he knew what it was.  The lineup included
photographs of Beavers and his friend, Danny.  After making sure
that Beavers recognized his own photograph and understood the
significance of the lineup, Trooper Graham promised to help Beavers
if he told the truth.  Beavers immediately got the message and
confessed: 
          GERRY GRAHAM: Do you know what these are?
          TIM BEAVERS: Mug shots?
          GG:  Photo line ups, man. Who's that?
          TB:  Me.
          GG:  Who's that?
          TB:  Danny?
          GG:  Do you know what these are used for?
          TB:  (Inaudible)
          GG:  That's right.  You walk up to a victim and you
say, "See anybody in here you recognize?" and they go (smack) "I
recognize this person, this person was there.  This person was one
of the guys that robbed me."  Now if you want to lie to me and get
in more trouble, that's fine, okay?  That's your decision.  This is
the only chance I can help you.  You're young, you need to get this
cleaned up now, okay? You want to tell me the truth?

          TB:  I was there.
          My review of the record, including the transcript and
audio tape of Beavers's interrogation, persuades me that Trooper
Graham's brief mention of "hammering" did nothing to induce
Beavers's confession and failed even to come close to overbearing
his will.  It seems to me that Beavers understood his position and
had full control of his situation until Trooper Graham displayed
the photo lineup.  Beavers incorrectly assumed that he had been
identified in the lineup, and this triggered his confession. 
Beavers did not confess for fear of being hammered but for fear of
having been nailed.  His choice was one motivated by self-interest,
not panic. 
          If anything in the interrogation overbore Beavers's free
will, it was Trooper Graham's use of the photo lineup to create the
false impression that Beavers had been identified, coupled with the
trooper's simultaneous offer to help Beavers if he told the truth. 
Yet these tactics -- ruses and promises of assistance -- fall
within the generally accepted range of proper interrogation. [Fn.
27]  And Beavers does not challenge this aspect of his
interrogation. 
          Yet by relying on an artificial presumption of
involuntariness, the court assigns conclusive significance to a
mild and passively phrased threat that seemingly had no bearing on
Beavers's free will.  The court fails even to acknowledge as
"affirmative indications that the trooper's threats . . . were
ineffective" [Fn. 28] the permissible and potentially far more
powerful psychological tactics that immediately preceded Beavers's
confession.  Because the court's newly adopted presumption obscures
its inquiry into voluntariness and leads it to suppress a valid and
reliable confession, I dissent from its decision reversing the
court of appeals.



                            FOOTNOTES


Footnote 1:

     See Miranda v. Arizona, 384 U.S. 436 (1966).


Footnote 2:

     Beavers cross-appealed the superior court's determination that
he was not in custody for Miranda purposes.  The court of appeals
affirmed the superior court's custody ruling, and Beavers does not
raise the issue in his petition to this court.   


 [Fn. 19]Footnote 3:

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


Footnote 4:

     Id. (citation omitted).


Footnote 5:

     See id.


Footnote 6:

     See id.


Footnote 7:

     Sovalik v. State, 612 P.2d 1003, 1006 (Alaska 1980) (quoting
Ladd v. State, 568 P.2d 960, 967 (Alaska 1977)).


Footnote 8:

     Sprague v. State, 590 P.2d 410, 414 (Alaska 1979) (citation
omitted).


Footnote 9:

     See id. at 413.


Footnote 10:

     See S.B. v. State, 614 P.2d 786, 789 (Alaska 1980) (citing
Quick v. State, 599 P.2d 712, 720 (Alaska 1979)).


Footnote 11:

     Id. (citing Sprague, 590 P.2d at 414).


Footnote 12:

     168 U.S. 532, 542-43 (1897).


Footnote 13:

     Webb v. State, 756 P.2d 293, 296 (Alaska 1988); Stobaugh v.
State, 614 P.2d 767, 771 (Alaska 1980); Sovalik, 612 P.2d at 1006;
S.B., 614 P.2d at 789; Sprague, 590 P.2d at 413 n.6.


Footnote 14:

     See Stobaugh, 614 P.2d at 771.


Footnote 15:

     Id. at 771-72 (quoting United States v. Ferrara, 377 F.2d 16,
17 (2d Cir. 1967), cert. denied, 389 U.S. 908 (1967)). 


Footnote 16:

     See id. at 772 (citing United States v. Williams, 447 F. Supp.
631, 636-37 (D. Del. 1978)).


Footnote 17:

     Id.  As noted infra, however, we have recognized that some
police conduct is so coercive as to automatically render a
confession involuntary notwithstanding other factors surrounding
the accused's interrogation. 


Footnote 18:

     See Sovalik, 612 P.2d at 1007 & n.4 (confession induced in
part by police misrepresentation of inculpatory evidence; trickery
in obtaining confession merely one factor in analysis of
voluntariness).


Footnote 19:

     756 P.2d 293 (Alaska 1988).



                       FOOTNOTES (Dissent)


Footnote 1:

     Op. at 19. 


Footnote 2:

     Although "we are free, and we are under a duty, to develop
additional constitutional rights and privileges under our Alaska
Constitution," we generally do so only "if we find such fundamental
rights and privileges to be within the intention and spirit of our
local constitutional language and to be necessary for the kind of
civilized life and ordered liberty which is at the core of our
constitutional heritage."  Baker v. City of Fairbanks, 471 P.2d
386, 402 (Alaska 1970).  Cf.  State v. Zerkel, 900 P.2d 744, 758
n.8 (Alaska. App. 1995) (citing Abood v. League of Women Voters,
743 P.2d 333, 340-43 (Alaska 1987); State v. Wassillie, 606 P.2d
1279, 1281-82 (Alaska 1980); Annas v. State, 726 P.2d 552, 556 n.3
(Alaska App. 1986); State v. Dankworth, 672 P.2d 148, 151 (Alaska
App. 1983)) (observing that a provision of the Alaska Constitution
will be interpreted to provide greater protection than a
corresponding provision of the federal constitution only if there
is "something in the text, context, or history of the Alaska
Constitution that justifies this divergent interpretation"). 


Footnote 3:

     See, e.g., State v. Ridgely, 732 P.2d 550, 554 (Alaska 1987);
Stobaugh v. State, 614 P.2d 767, 771-72 (Alaska 1980); Troyer v.
State, 614 P.2d 313, 318 (Alaska 1980); Sprague v. State, 590 P.2d
410, 413 and n.6 (Alaska 1979); cf. Quick v. State, 599 P.2d 712,
719-20 (Alaska 1979); Cole v. State, 923 P.2d 820, 822-23 (Alaska
App. 1996).


Footnote 4:

     See, e.g., Stobaugh, 614 P.2d at 772 ("We therefore reject a
per se rule which would condemn any incriminating statement
obtained by means of a promissory inducement."); Ridgely, 732 P.2d
at 556 (noting, in reversing a finding of involuntariness, that the
mere fact of minority did not automatically preclude a voluntary
waiver).

          In this regard, the court's reliance on Webb v. State,
756 P.2d 293, 297 (Alaska 1988), is unpersuasive.  See Op. at 11-
12.  Webb did not involve the voluntariness of a confession; it
dealt with the voluntariness of a Miranda waiver -- an area of the
law in which adherence to bright-line rules is the norm and
deterrence to ensure police compliance with these bright lines is
the primary goal.  By contrast, in cases involving involuntary
confessions, where the primary goal is to enforce "the strongly
felt attitude of our society that important human values are
sacrificed where . . . the government . . . wrings a confession out
of an accused against his will," the norm has long been a case-
specific inquiry to determine actual voluntariness.  See Cole v.
State, 923 P.2d at 829-30 & n.16 (quoting Jackson v. Denno, 378
U.S. 368, 386 (1964)).


Footnote 5:

     614 P.2d at 771-72.


Footnote 6:

     Stobaugh, 614 P.2d at 771-72 (quoting United States v.
Ferrara, 377 F.2d 16, 17 (2d Cir. 1967)).


Footnote 7:

     Bram v. United States, 168 U.S. 532, 542-43 (1897).


Footnote 8:

     Stobaugh, 614 P.2d at 772 (citing United States v. Williams,
447 F. Supp. 631, 636-37 (D. Del. 1978)).


Footnote 9:

     Stobaugh, 614 P.2d at 772.


Footnote 10:

     Id.


Footnote 11:

     Op. at 15-17.


Footnote 12:

     Stobaugh, 614 P.2d at 772.


Footnote 13:

     For example, in Malloy v. Hogan, 378 U.S. 1, 7 (1964), the
Supreme Court noted, "[w]e have held inadmissible even a confession
secured by so mild a whip as the refusal, under certain
circumstances, to allow a suspect to call his wife until he
confessed."  Should it make any difference, under the same
circumstances, that the police rephrased the threat as a promise to
allow the suspect to call if he confessed?


Footnote 14:

     Stobaugh, 614 P.2d at 772.


Footnote 15:

     Op. at 14-19.


Footnote 16:

     658 F.2d 1332 (9th Cir. 1981).


Footnote 17:

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


Footnote 18:

     911 P.2d 577 (Ariz. App. 1995).


Footnote 19:

     In each case, interrogation occurred in a particularly
coercive setting; the accused either attempted to remain silent
while under interrogation or adamantly denied guilt; and the police
bluntly threatened harsher punishment unless the accused
surrendered the right to silence.  These factual distinctions
deserve emphasis to demonstrate the extent to which the "threat" in
this case differs from the kinds of threats that other courts have
condemned.

          The court in Tingle described the interrogation as
follows:

          The Federal Bureau of Investigation (FBI) was
notified of the "robbery."  FBI Special Agents Sibley and Ayers
arrived at the credit union, spoke to the local police officer, and
escorted Tingle to their automobile parked in front of the credit
union in order to speak with her privately.

               Tingle sat in the back seat of the
automobile with Sibley while Ayers sat in the front seat.  The
interrogation which followed lasted for approximately one hour. 
Tingle repeated to the special agents what she had told the local
officer.  Sibley gave Tingle a standard FBI Advice of Rights form
and asked her to read it aloud.  Tingle read the form, indicated
that she understood her rights and was willing to answer questions,
and signed the written waiver.

               Sibley then accused Tingle of lying.  He
told her that he believed she and her boyfriend had staged the
robbery.  Tingle denied her involvement.  At that point, both
agents were firmly convinced that Tingle had staged the "robbery"
because of what they viewed as its amateurish commission.  Sibley
began to explain to Tingle the advantages of cooperating in an
effort to get her to tell the truth.  He enumerated the crimes of
which she might be guilty.  He told her that she faced a twenty
year sentence for bank robbery, twenty-five years if it was armed
robbery, five years for conspiracy, five years for lying to a
federal agent, and an additional potential penalty of five years if
Tingle were to lie to a grand jury.  Tingle repeatedly maintained
her innocence.

               Sibley explained that it would be in
Tingle's best interest to cooperate.  There was some discussion
about Tingle's release on her own recognizance during court
proceedings.  Sibley stated that he would inform the prosecutor if
Tingle were to cooperate, or would alternatively inform the
prosecutor that she was "stubborn or hard-headed" if she refused. 
Sibley suggested that it was quite possible that he had been told
by Tingle's boyfriend that she was the one responsible for the
entire planning and execution of the staged robbery.

               At the beginning of the interrogation
Sibley had determined that Tingle was the mother of a two-year-old
child.  In an effort to obtain a confession, Sibley told her either
that she would not see the child for a while if she went to prison
or that she might not see the child for a while if she went to
prison.  His purpose was to make it clear to her that she had "a
lot at stake."

               During Sibley's interrogation Tingle
began to sob.  She was noticeably shaking.  She continued to cry
for at least ten minutes.  
Tingle, 658 F.2d at 1333-34 (footnotes omitted).

          In Harrison, the accused

          heard noises outside her house.  Upon opening
her front door, she discovered approximately fifteen federal agents
with their guns drawn.  The agents searched the house and arrested
Harrison and [her companion] Marshall. 

          . . . .

          [T]he agents advised Harrison of her rights. 
She replied that she understood those rights.  After a brief
silence, an agent told Harrison that he had documents showing that
she was involved in money laundering.  He said that the government
had seized packages of drugs that had been mailed to Marshall and
could determine whether her fingerprints were on the packages.  The
agent informed her that she might be facing up to twenty years in
prison.  He asked her whether she thought it would be better if the
judge were told that she had cooperated or had not cooperated. 
Harrison responded that it would be better if she talked to the
agents and they told the judge that she had cooperated.  She then
gave a statement to the agents. 

Harrison, 34 F.3d at 890.

          And in Strayhand, the defendant, who had been arrested
and jailed on suspicion of robbery, was removed from jail and
subjected to a lengthy interrogation at the police station. 
Strayhand repeatedly refused to make a statement and asked to be
taken back to jail, but the police continued the interrogation,
repeatedly threatening to ask for an increased sentence if
Strayhand refused to cooperate.  The interrogation ultimately ended
with the following statement to Strayhand: "I'm going to go ahead
and file cases and I get to go in and say you were uncooperative
and didn't want to help me so I've got it made.  Makes me real easy
here.  But it's never too late."  Strayhand later confessed. 
Strayhand, 911 P.2d at 581-84.


Footnote 20:

     Tingle, 658 F.2d at 1336 n.5.  See also Harrison, 34 F.3d at
891 (quoting Tingle, 658 F.2d at 1336 n.5); Strayhand, 911 P.2d at
586 ("A defendant should not be penalized for exercising his
rights."). 


Footnote 21:

     The Tingle court noted: 

               When we consider the totality of the
circumstances, we conclude that the psychological coercion brought
to bear upon Tingle produced her confession.  We hold, therefore,
that Tingle's confession was not "the product of a rational
intellect and a free will" and was involuntary.

Tingle, 658 F.2d at 1337 (footnote omitted).  Similarly, in
Harrison:

          While none of the agents made explicit
threats, subtle psychological coercion can effectively overbear a
suspect's free will.

               . . . Harrison broke her silence only
after the agent asked whether she thought it preferable if the
judge were informed that she had cooperated or not cooperated.  The
first thing she said was that she thought it would be better if she
talked to the agents and they informed the judge that she had
cooperated.

               "[T]he Fifth Amendment guarantees . . .
the right of a person to remain silent unless he chooses to speak
in the unfettered exercise of his own will, and to suffer no
penalty . . . for silence."  The agent's question was improper. 
The government cannot meet its burden of proving that Harrison
decided of her own free will to give a statement.

Harrison, 34 F.3d at 892 (internal citations omitted).  Finally, in
Strayhand, the court found that it

          must look to all of the circumstances
surrounding a confession or confessions in determining whether the
Defendant's will was overborne.  Here, even in the absence of an
explicit statement by the Defendant at the hearing on the motion to
suppress that he confessed because the detectives persisted in
questioning him and threatened him, that conclusion is inescapable
on this record.  The State had the burden of proof on this point,
and it came forward with nothing to suggest anything but that the
detectives' impermissible tactics bore fruit.

               . . . .
     
               Keeping in mind that the question of
whether a confession is voluntary must be decided upon the totality
of circumstances, we believe that the flagrant refusal of the
officers to honor the Defendant's repeated requests to remain
silent had a significant effect on procuring his confession.  The
detectives recited the litany of rights and then ran roughshod over
them.  This is coercive in itself.  Further, had the officers
honored the Defendant's request, the dialogue which led to and
included the threats would never have taken place.

Strayhand, 911 P.2d at 588, 592.        


Footnote 22:

     Op. at 19.


Footnote 23:

     Strayhand, 911 P.2d at 585.


Footnote 24:

     Op. at 9.


Footnote 25:

     Under Alaska Evidence Rule 303, a presumption directed against
the state in a criminal case ordinarily is "treated in the same
manner as a presumption in a civil case under Rule 301."
 
          Under Evidence Rule 301 a presumption in a civil action
normally "imposes on the party against whom it is directed the
burden of going forward with evidence to rebut or meet the
presumption, but does not shift to such party the burden of proof
in the sense of the risk of nonpersuasion."  


Footnote 26:

     See, e.g., United States v. Thomas, 595 A.2d 980, 981 (D.C.
1991) (recognizing that the Bram test "under current precedent does
not state the standard for determining the voluntariness of a
confession").


Footnote 27:

     See, e.g., Cole v. State, 923 P.2d at 820, 831 (Alaska App.
1996) ("[I]t is now well established that the Constitution does not
altogether forbid the police from making promises or offering
inducements to a suspect under interrogation."); Sovalik v. State,
612 P.2d 1003, 1007 n.4 (Alaska 1980) ("[T]he use of trickery does
not per se render a confession involuntary and most authorities
hold that confessions produced by trickery are admissible so long
as the device employed would have no tendency to produce an
untruthful confession.").


Footnote 28:

     Op. at 19.