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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kalmakoff v. State (7/29/2011) sp-6583

Kalmakoff v. State (7/29/2011) sp-6583, 257 P3d 108

        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, email 
        corrections@appellate.courts.state.ak.us. 

                 THE SUPREME COURT OF THE STATE OF ALASKA 

BYRON KALMAKOFF,                                ) 
                                                )       Supreme Court No. S-13439 
                        Petitioner,             ) 
                                                )       Court of Appeals No. A-9700 
        v.                                      )       Superior Court No. 3NA-03-00086 CR 
                                                ) 
STATE OF ALASKA,                                )       O P I N I O N 
                                                ) 
                        Respondent.             )      No. 6583 - July 29, 2011 
                                                ) 

                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, Naknek, Fred Torrisi, Judge. 

                Appearances: Josie Garton, Assistant Public Defender, and 
                Quinlan Steiner, Public Defender, Anchorage, for Petitioner. 
                Nancy     R.   Simel,   Assistant   Attorney     General,   Office    of 
                Special Prosecutions & Appeals, Anchorage, and Daniel S. 
                Sullivan, Attorney General, Juneau, for Respondent. 

                Before:   Carpeneti,   Chief   Justice,   Fabe,   Winfree,   Christen, 
                and Stowers, Justices. 

                FABE, Justice. 

I.      INTRODUCTION 

                A jury convicted Byron Kalmakoff of raping and murdering his cousin in 

the village of Pilot Point.   Kalmakoff had just turned 15 when the crime was committed. 

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

The Alaska State Troopers sent to investigate the murder conducted four interviews with 

Kalmakoff while they were in Pilot Point.  Before trial Kalmakoff moved to suppress his 
statements from those interviews based on violations of Miranda v. Arizona .1               The trial 

court suppressed a portion of the first interview and all of the second interview but 

admitted     all  of  the  third  and  fourth   interviews.    The     court  of   appeals   affirmed 

Kalmakoff's convictions, concluding that any error in admitting portions of the first 

interview     was   harmless   and   that   the   third   and   fourth   interviews   were   sufficiently 

insulated from any Miranda violations that occurred during the first two interviews.  We 

granted Kalmakoff's petition for review and remanded the case to the trial court for 

additional factual findings, retaining jurisdiction.        We now conclude that the Miranda 

violations in the first and second interviews violated Kalmakoff's right to remain silent 

and that the third and fourth interviews were tainted by the violations in the first and 

second interviews.   We therefore reverse Kalmakoff's convictions and remand the case 

for a new trial. 

II.     FACTS 

                On February 10, 2002, a 27-year-old woman, B.K., was reported missing 

in Pilot Point, a small village on the Alaska Peninsula with a population of less than 100. 

Molly   Etuckmelra,   the   Village   Public     Safety   Officer   (VPSO),   called   Alaska   State 

Trooper Shane Stephenson to report that B.K. was missing and called him again later to 

report that B.K.'s body had been found.  B.K. had been shot twice in the head, and a later 

autopsy revealed injuries consistent with sexual penetration shortly before her death. 

        1       384 U.S. 436 (1966) (holding that statements obtained from defendants 

during custodial interrogation without warning of constitutional rights are inadmissible). 

                                                 -2-                                              6583 

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

                Trooper Stephenson and Trooper Pete Mlynarik flew from King Salmon 
to Pilot Point to begin the investigation.2       Trooper Stephenson first visited the location 

where the victim's nude body had been discovered and attempted to secure the crime 

scene from the wind and snow.           After learning that B.K. had attended a party at Rick 

Reynolds's house the previous night, Trooper Stephenson secured two additional crime 

scenes: Reynolds's house, where Stephenson believed B.K. had been shot, and an airport 

hangar where tire tracks, footprints, and blood had been found. Trooper Stephenson also 

began talking to the residents of Pilot Point "to get a general overview of the situation." 

        A.      The First Interview 

                On Tuesday, February 12, Troopers Stephenson and Mlynarik interviewed 
Byron Kalmakoff for the first time.3        The troopers conducted interviews throughout the 

day in a meeting room at the Pilot Point city offices.  The city offices were used for many 

purposes and contained the VPSO office.             The room where the troopers conducted the 

interviews was approximately 20 feet by 30 feet, was well-lit with large windows, and 

had more than one door.   The doors to the room were closed during the interviews, but 

no guards were stationed outside.         The troopers were in uniform and visibly armed. 

        2       Trooper   Stephenson   arrived   the   evening   of   February   10   and   Trooper 

Mlynarik arrived the morning of February 11. 

        3       Throughout   Kalmakoff's   pre-trial   motions,   trial,   and   appeal,   the   facts 

surrounding the first interview were somewhat vague. See Kalmakoff v. State (Kalmakoff 
II), 199 P.3d 1188, 1199-1200 (Alaska App. 2009).  After granting Kalmakoff's petition 
for   review,   we   remanded   the   case   to   the   trial   court   for   additional   factual   findings 
pertaining to the first interview.       See infra Part III.C.      To avoid confusion, the facts 
recounted   here   reflect   the   trial   court's   additional   findings   on   remand. One   specific 
inconsistency in the record is whether Kalmakoff's first interview took place on Monday, 
February 11, or Tuesday, February 12. The trial court's findings on remand note that the 
date "actually appears to have been Tuesday, February 12." 

                                                  -3-                                             6583
 

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

                With the help of VPSO Etuckmelra, Trooper Stephenson put together a list 

of   the   people   who   had   likely   attended   the   party   at   Reynolds's   house. Etuckmelra 

contacted the people on the list to let them know that the troopers wanted to speak with 

them.   Three people on the list, including Byron Kalmakoff, were students who were in 

school.   Kalmakoff had turned 15 only a few weeks before.                 Etuckmelra drove to the 

school and informed the principal teacher, Jodi Mallonee, that she "needed to get Byron 

for the troopers so they could interview him."           Mallonee had also received a phone call 

from   the   school   superintendent's   office   in   King   Salmon   authorizing   her   to   release 

students for interviews with the troopers.         Mallonee called Kalmakoff out of class and 

Etuckmelra drove him and two other students to the city offices in the VPSO truck.  All 

that Etuckmelra told the students was that the troopers needed to get some information 

from them.  The trial court found on remand that Kalmakoff "was not told that he did or 

did not have to accompany the VPSO to the city offices, and that it is likely that he 

believed     that  he  had  to  go."   Neither    Mallonee     nor   Etuckmelra     said  anything    to 

Kalmakoff about whether he had to answer the troopers' questions.  Nobody contacted 

Kalmakoff's grandparents - who were also his adoptive parents - to inform them 

about the interview. 

                Troopers   Stephenson       and   Mlynarik     began   interviewing     Kalmakoff   at 

1:35 p.m. on Tuesday, February 12.  The interview lasted just under an hour and a half, 

ending at 2:52 p.m. Trooper Stephenson described the interview as "informal and quiet." 

Trooper Mlynarik testified that he considered Kalmakoff a suspect because "[h]e was 

somebody that - that we had learned about due to some other situations," but Trooper 

Stephenson explained that he had not narrowed his list of suspects yet and at that point 

everyone who had attended Reynolds's party was a suspect. 

                The troopers did not tell Kalmakoff that he was free to leave or that he did 

not have to answer their questions; instead, they emphasized that Kalmakoff needed to 

                                                  -4-                                            6583
 

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

tell them the truth.    After taking Kalmakoff's basic background information, Trooper 

Stephenson told Kalmakoff: "I need for you to[,] um[,] be very specific and very ah[,] 

truthful with me[,] on everything that you answer so I don't have to come back[,] and ask 

you why okay[?]        It'll look good . . . on your part."        A few minutes later, Trooper 

Stephenson reminded Kalmakoff: "I want you to make sure that you're perfectly truthful 

with me . . . I will probably know if you're lying to me, okay[?]"             The troopers did not 

administer Miranda warnings to Kalmakoff.  Kalmakoff admitted to the troopers that he 

had been drinking on the night of the murder, that he had returned to Reynolds's house 

with his cousin (B.K's brother) to "check on" B.K. shortly before she was killed, and that 

B.K. was mad at them. 

                Once Kalmakoff made these admissions, the troopers' questions became 

more pointed and accusatory.          After Kalmakoff admitted to being in Reynolds's house 

not long before the murder, Trooper Stephenson asked him: "I know   that you were 

snooping,   snooping   around   .   .   .   which   one   of   you   picked   up   the   gun?" Kalmakoff 

admitted that he had picked up a pistol and taken it outside.  Trooper Stephenson began 

asking Kalmakoff about the details of the gun, reminding him:                "I'm asking questions 

because I know[,] I know certain things, okay[?]"  A few minutes later, after Kalmakoff 

described his conversation with B.K., Trooper Stephenson asked, "[A]nd[,] that's when 

things got out of control wasn't it[,] all messed up?" Kalmakoff denied this and repeated 

that he and his cousin had left Reynolds's house.   Trooper Stephenson replied, "You're 

missing a chunk," and then asked a variety of questions implying that Kalmakoff was 

involved in the murder, including: "[Did] you guys cover her up?"; "How'd you get her 

downstairs?"; "Did you think you killed her[,] at that point?"; "Did you think that you 

did[,] because you thought they were blanks?"             Kalmakoff responded, "I never killed 

her," and repeated that he and his cousin had taken the pistol and shot blanks outside his 

cousin's house. 

                                                  -5-                                            6583
 

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

                 Trooper     Stephenson   then   took   a   break   to   have   a   drink   of   water   and 

purchased a soda for Kalmakoff.            During the break, Trooper Stephenson remarked to 

Trooper Mlynarik, "I think we're hot on the trail now . . . I haven't looked at the bottom 
of his shoes yet, but . . . ."4   Kalmakoff's grandmother, Martha Kalmakoff, also arrived 

at the city offices during the break.5      Trooper Stephenson saw Martha but did not ask her 

to join the interview, and Martha did not ask if she could join. 

                 After the break, Kalmakoff asked how much longer the interview was going 

to continue.  Trooper Stephenson answered "a little bit" but neither informed Kalmakoff 

that   he   was   free   to   leave   nor   read   him   his  Miranda   rights. The   troopers   resumed 

questioning Kalmakoff about the gun, the ammunition, and the shell casings from the 

shots he fired with his cousin.        The troopers then looked at the bottom of Kalmakoff's 

shoes and directed Kalmakoff to take off his jacket and shirt.  Trooper Stephenson later 

testified that the sole of Kalmakoff's shoe resembled the prints that were found at the 

airplane hangar crime scene. 

                 The troopers then took Kalmakoff outside so that he could show them the 

dumpster where he allegedly threw away the shell casings from the pistol.                     Kalmakoff 

also   showed   them   his   cousin's   house      where   he   and   his   cousin   had   shot   the   gun. 

Kalmakoff   then   asked   if   he   had   to   go   back   to   the   city   building   where   he   had   been 

questioned and Trooper Stephenson answered, "Yea[h], we're not even done."  Trooper 

Stephenson later testified that at this point Kalmakoff was considered a prime suspect. 

        4        Blood-stained shoe prints had been found at the airplane hangar crime 

scene. 

        5        Martha learned about the interview when her daughter (Byron's aunt) called 

to   tell  her  that  she   had   heard   that  Byron    had   been    taken   to  the   city  offices   for 
questioning. 

                                                    -6-                                              6583
 

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

                Upon returning to the city building, the troopers introduced themselves to 

Martha Kalmakoff.        Trooper Stephenson informed Martha that he would be seizing 

Kalmakoff's four-wheeler, coat, shoes, and gloves, and asked her to get Kalmakoff some 

different clothes.    Trooper Stephenson told Kalmakoff that he could go back to school 

but that he could not return to his grandmother's house or his biological mother's house 
until Trooper Stephenson gave him permission.6  Trooper Stephenson later explained that 

he did not want Kalmakoff to return to those houses because he planned to obtain search 

warrants for them and because he was concerned that Kalmakoff might hurt himself if 

left alone at home. 

        B.      The Second Interview 

                The    following    day,   February     13,  Trooper     Stephenson     interviewed 
Kalmakoff again, this time accompanied by Trooper Craig Allen.7                 The setting of the 

interview was the same as the previous day and Kalmakoff was again transported to the 

interview   from   school.    Trooper   Allen   began   the   interview   by   explaining   that   even 

though he and Trooper Stephenson had asked Kalmakoff to come speak with them, 

Kalmakoff      was   free  to  leave  and   could   go  back   to  school   at  any  time.  Almost 

immediately, Kalmakoff asked to go back to school: 

                KALMAKOFF:          I go back right now if I want to? 

                ALLEN:  Yeah, sure can.  Okay?  Is that what you want to do 
                or do you want to talk with us a little bit so I can understand
 
                what's going on[?]
 

                KALMAKOFF: I feel like going back.
 

        6       Although Kalmakoff lived with his grandparents, his biological mother still 

lived in Pilot Point and Kalmakoff told the troopers that he had slept at her house on the 
night of the murder. 

        7       Troopers Stephenson and Allen conducted the remaining interviews. 

                                                 -7-                                             6583 

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

               ALLEN: Yeah.  Okay.  Is, is there any reason you don't want 
               to talk to [us] about stuff that, that, that I'm going to ask you 
               about? 

               KALMAKOFF:         I can't barely remember anything.
 

               ALLEN:     Can't barely remember anything?
 

               KALMAKOFF:         Some times I black out.
 

               ALLEN: Maybe, maybe if we talk a little bit maybe I could
 
               help you remember some stuff?
 

               KALMAKOFF: I don't know, sorta scared.
 

               ALLEN: Yeah, what are you scared about Byron?
 

               KALMAKOFF: That I did it.
 

               Trooper Allen continued to urge Kalmakoff to answer more questions, but
 

Kalmakoff explained that it was hard because he felt ashamed.            When Trooper Allen 

tried to ask questions about what happened to B.K., Kalmakoff again asked to leave: 

               KALMAKOFF: Can I just go back to school? 

               ALLEN:   You   can   go   back   to   school   any   time   you   want. 
               We've told you that.    That's, that's entirely up to you.
 

               KALMAKOFF: I just want to go back now.
 

               ALLEN: Okay.
 

               KALMAKOFF:           I'm   gonna   go   home    and   talk  to  my
 
               Grandma.    (pause) I can go back now?
 

               ALLEN: Beg pardon?
 

               KALMAKOFF: Can we go back there?
 

               ALLEN: You can go back there any time you want.            It's up
 
               to you.
 

               KALMAKOFF: Alright (inaudible).
 

               STEPHENSON:   Um,   actually   Brian,   Byron,   uh,   um       I'm
 
               going to have to ask you to stay here and, and talk with me.
 

                                               -8-                                         6583
 

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

                It was only at this point that Trooper Stephenson first advised Kalmakoff 

of   his  Miranda    rights   and   asked,   "Do   you   understand   each   of   these   rights   I   have 

explained to you?"       Kalmakoff nodded his head yes.           Trooper Stephenson then asked, 

"Okay having these rights in mind do you wish to talk to me now?"                   Kalmakoff shook 

his   head   no.  The   troopers   then   advised   Kalmakoff   that   he   could   have   a   parent   or 

guardian present and tried to convince him to talk to them.  They told him that he could 

decide to talk to them at any time, and that a lot of people decide to talk "because it's just 

such a heavy burden to carry . . . sometimes it's just best just to get it out."               Trooper 

Stephenson told Kalmakoff:   "Yesterday you and I had an agreement to be honest with 

each other. Um I, I want that agreement to stand today.  I want you to be honest with me 

and we're going to be honest with you." 

                Kalmakoff again indicated that he wanted to remain silent and not answer 

any   questions.    Trooper   Allen   then   told   Kalmakoff   that   the   troopers   were   going   to 

describe their progress in the investigation and that Kalmakoff should let them know if 

something they said made him want to talk.  Trooper Allen explained that they had been 

collecting physical evidence and that they wanted to understand what happened "[s]o that 

[when] people years from now look back at this, they don't think that the person who is 

responsible for this is a mean, evil, bad person."          He asked Kalmakoff again:          "Would 

you like to answer questions from me, even though you already told us before you didn't 

want to?"  Kalmakoff again said no.  But the troopers continued to question Kalmakoff, 

and Kalmakoff eventually admitted that he had drunk approximately half a bottle of 

whiskey on the night of the murder.  A few minutes later, he repeated, "I don't really feel 

like answering questions." 

                Only then did the troopers finally honor Kalmakoff's invocation of his right 

to remain silent and stop interrogating him.           But they did execute a search warrant of 

                                                   -9-                                             6583
 

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

Kalmakoff's   person   that   allowed       them   to   photograph   Kalmakoff   naked,   take   hair 

samples from his head, arm, leg, and pubic area, and take swabs from his penis and the 

inside of his mouth.  The interview ended at 12:10 p.m. and the troopers gave Kalmakoff 

a ride back to school. 

        C.      The Third Interview 

                Just over three hours after the end of the second interview, the troopers 

went to the house where Kalmakoff lived with his grandparents, Martha and Micarlo 

Kalmakoff, to serve the list of seized items from the night before.               When the troopers 

arrived, Micarlo told them that he had spoken with his grandson but that Kalmakoff 

could not remember anything.  Micarlo asked if the troopers could do something to help 

Kalmakoff remember, such as hypnotize him.  Trooper Stephenson suggested that if the 

troopers talked to Kalmakoff they might be able to help him remember. 

                This    third   interview    took   place   in  the  living   room    of  Kalmakoff's 

grandparents' home and began at 3:35 p.m., about an hour after Kalmakoff returned 

home   from   school   and   about   three   hours   after   termination   of the   second   interview. 

Trooper Stephenson asked Kalmakoff if he would talk to the troopers for a few minutes 

and suggested that Martha and Micarlo be present for the interview.                When Kalmakoff 

did not respond, Trooper Allen encouraged him to speak with them and include his 

grandparents to bring them "up to speed" on what he had already told the troopers: 

                Because you know there's - there's some things that you 
                might've   told   us   already   that   they   might   not   even   know 
                about.    You think that'd be fair, you think?         And we're not 
                doing   it   to   embarrass   you   or   anything   like   that   with   your 
                [g]randparents.      Eventually all the information's gonna be 
                available. Okay. [unknown indiscernible speaker]                 So   . . . 
                would     you   like  to  start  off  so  that  you   can   bring   your 
                [g]randparents up to speed on everything that you've talked 
                to us about already[?] 

                                                  -10-                                            6583
 

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

At that point, Trooper Stephenson added, "Byron, I just want to remind you that what 

I read to you earlier, still applies, but um, like - like I said, we're hoping we can just ah, 

get everything out in the open." The troopers did not administer new Miranda warnings. 

When Kalmakoff said that he didn't know where to start, Trooper Allen prompted him 

by referring to his earlier statement: "Well, let me, you know you - you could, did you 

talk with Trooper Stephenson about - about a gun?" 

                Kalmakoff      then   answered     the  troopers'    questions    and   made    several 

incriminating   statements.      Although   he   maintained   that   he   had   been    too   drunk   to 

remember what happened, he admitted that he remembered moving B.K.'s body onto his 

four-wheeler; that he thought the gun went off in Rick Reynolds's house; and that he put 

B.K.'s body in the bushes.        The interview ended at 4:00 p.m. and the troopers did not 

arrest Kalmakoff.      The troopers flew back to King Salmon that night. 

        D.      The Fourth Interview 

                The next morning, February 14, Troopers Stephenson and Allen returned 

to   Pilot   Point   with   orders   to   make   a   video   of   what   they   had   learned   during   their 

investigation.    The troopers contacted Martha and Micarlo Kalmakoff to inform them 

that the troopers would be taking Kalmakoff to Anchorage.                The troopers then went to 

get Kalmakoff from school.         To avoid making a scene, the troopers asked a teacher to 

remove Kalmakoff from class. 

                Once they were outside, Kalmakoff repeatedly asked the troopers when he 

could return to school.   The troopers first ignored these requests or provided misleading 

answers such as "we're going to sneak you out of class for a little while"; "what I wanted 

to do is have you spend a little bit of time with us today"; and "maybe an hour or so." 

Trooper   Allen   instructed   Kalmakoff,   "I      wanna   have   you   talk   with   us   about   what 

happened so that we can understand it very clearly[,] okay, so that nobody . . . has any 

                                                 -11-                                            6583
 

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

questions   about   stuff   okay[,]   would   you   like   to   go   around   with   us   and   do   that?" 

Kalmakoff responded, "I guess so," and then a few seconds later asked the troopers if 

they knew what would happen to him.             No Miranda warnings were administered. 

                Trooper Allen then told Kalmakoff that the troopers would be taking him 

to Anchorage to appear in front of a judge.            Kalmakoff responded, "I didn't do it on 

purpose," and asked if B.K.'s mother had been told of his involvement.  Trooper Allen 

said no, and Kalmakoff requested, "If you guys do tell 'em, tell them I didn't mean to do 

it   on   purpose."   Trooper   Stephenson   said   that   he   understood   and      that   bad  things 

happened; Kalmakoff replied, "It's that dang booze." 

                At that point, after the troopers had convinced Kalmakoff to participate in 

the interview and Kalmakoff had made additional incriminating statements, Trooper 

Allen administered  Miranda warnings to Kalmakoff.                  Trooper Allen prefaced those 

warnings by saying:       "I want to go through this with you real quick okay cause we've 

done this before but this is, this is more official now cause I've told you I'm taking you 

with me, to McLaughlin," apparently referring to McLaughlin Youth Center, a juvenile 

detention center.      Kalmakoff said that he had heard of McLaughlin.                 Trooper Allen 

continued:   "So I, listen to what I read to you[,] and I'm gonna ask you these questions 

again, we did this before but I just want to do it again for you all right." 

                Trooper Allen read Kalmakoff his rights and Kalmakoff agreed that he 

understood those rights and that he would speak with the troopers.                 The troopers then 

drove Kalmakoff to the various crime scenes so that Kalmakoff could show them what 

happened   to   the   best   of   his   recollection   and   they  could   videotape   it. During   the 

videotaped   interview,   Kalmakoff   described   shooting   B.K.,   moving   her   body   to   the 

airplane hangar on his four-wheeler, removing B.K.'s clothes and having sex with her, 

and leaving B.K.'s body in the bushes.          The interview lasted for a little over an hour. 

                                                  -12-                                            6583
 

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

III.    PROCEEDINGS 

                Kalmakoff was charged as a juvenile with first-degree murder, second- 

degree murder, manslaughter, kidnapping, first-degree sexual assault, second-degree 

sexual assault, first-degree burglary, second-degree theft, and tampering with physical 

evidence.8    The State filed a petition in the superior court to waive juvenile jurisdiction 

so that Kalmakoff could be prosecuted as an adult.9              The superior court conducted a 

waiver hearing and granted the petition.10          Kalmakoff was then indicted for the same 

offenses.     Following      trial,  a  jury  convicted   Kalmakoff     of  second-degree      murder, 

manslaughter,   kidnapping,   first-degree   sexual   assault,   second-degree   sexual   assault, 

second-degree theft, and tampering with physical evidence.               He was acquitted of first- 

degree murder and first-degree burglary.  Kalmakoff was sentenced to a composite term 

of 75 years with 50 years suspended. 

        A.      The Suppression Motion 

                Prior to trial Kalmakoff filed a motion to suppress the statements he made 

to the Alaska State Troopers during the interviews in Pilot Point. The superior court held 

an evidentiary hearing and issued a written decision granting Kalmakoff's suppression 

motion in part and denying it in part. 

        8       State v.  Kalmakoff (Kalmakoff I), 122 P.3d 224, 225 (Alaska App. 2005). 

        9       Id. 

        10      Id.  After his conviction but prior to sentencing, Kalmakoff filed a motion 

to return jurisdiction to the juvenile court, and the superior court granted the motion.  But 
the   State   petitioned   the   court   of   appeals   for   review   of   the   order   granting   juvenile 
jurisdiction.   The court of appeals reversed and Kalmakoff was sentenced as an adult 
rather than a juvenile offender.  Id. at 225-26. 

                                                 -13-                                            6583
 

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

               The trial court ruled that Kalmakoff was not in custody during the first part 

of the first interview.   The trial court decided, however, that the first interview became 

custodial during the break when Trooper Stephenson left to get a drink of water.  The 

trial court considered Trooper Stephenson's comment that the troopers were "hot on the 

trail now," the troopers' refusal to answer Kalmakoff's subsequent questions about how 

long the interview would last, and the troopers' order directing Kalmakoff to remove his 

shirt.  The trial court concluded that the second part of the first interview was custodial 

and that Kalmakoff's statements from that part of the interview should be suppressed 

because the troopers failed to administer Miranda warnings. 

               Regarding   the   second   interview,   the   State   conceded   that   Kalmakoff's 

statements   made   after  Miranda     warnings   were   administered   should   be   suppressed 

because the troopers ignored Kalmakoff's invocation of his right to remain silent.  The 

trial court went further and concluded that Kalmakoff's statements made prior to the 

Miranda     warnings    should   also  be  suppressed    because   Kalmakoff     was   in  custody 

throughout the interview.      The trial court noted Kalmakoff's age, the fact that "[o]nce 

again, he had been taken from school and not afforded an opportunity to consult with a 

trusted adult," and that he "twice suggested that he would like to leave, and twice he was 

ignored." 

               The trial court also considered whether the violations during the first and 

second interviews tainted Kalmakoff's later statements made during the third and fourth 

interviews.  The trial court concluded that because the third interview was not custodial 

and "[t]he prior illegality was not flagrant," "no admission from the first two [interviews] 

likely affected [Kalmakoff's] decision to talk" and the third interview was not tainted by 

the previous Miranda violations.       Finally, with respect to the fourth interview, the trial 

court ruled that the troopers administered properMiranda warnings and Kalmakoff gave 

                                               -14-                                          6583
 

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

a valid waiver of his rights.         The   trial court therefore did not suppress Kalmakoff's 

statements from the third and fourth interviews. 

        B.       The Court Of Appeals' Decision 

                 Following his conviction and sentence, Kalmakoff appealed the superior 

court's     partial  denial    of  his   suppression     motion;     the   court   of  appeals    affirmed 

Kalmakoff's convictions.11         The court of appeals held that "the circumstances leading to 

Kalmakoff's first interview with the troopers have not been sufficiently litigated, or 

clarified, to allow us to make an informed   decision as to whether Kalmakoff was in 

custody (and thus entitled to Miranda warnings) at the beginning of that interview."12 

But the court of appeals explained that because the third and fourth interviews were 

admissible,   "even   if   it   was   error   to   introduce   Kalmakoff's   statements   from   the   first 

interview at his trial, that error was harmless."13 

                 In determining that the third and fourth interviews were admissible, the 

court    of  appeals    considered     whether     these   interviews     were   tainted   by   the  earlier 

violations under the factors articulated in Halberg v. State.14              The court first examined 

         11      Kalmakoff v. State (Kalmakoff II), 199 P.3d 1188 (Alaska App. 2009). 

        12       Id.   at   1199. Prior   to   the   additional   factual   findings   on   remand,   it   was 

unclear what the school principal or the VPSO might have said to Kalmakoff regarding 
whether he had to attend the interview or answer the troopers' questions.  There was also 
conflicting testimony regarding whether Kalmakoff's grandparents had been notified 
prior to the interview.      Id. at 1199-1200, 1190. 

         13      Id. at 1200. 

         14      Id.;  see   Halberg   v.   State,   903   P.2d   1090,   1098    (Alaska   App.   1995). 

Halberg instructs courts to consider: 

                 [T]he   purpose   and   flagrancy   of   the   initial   illegal   act,   the 
                                                                                           (continued...) 

                                                    -15-                                              6583
 

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

the purpose and flagrancy of the illegalities at the first two interviews and concluded that 

although the first interview was polite and free of threats, bullying, or deprivation, the 

"conduct of the two troopers during [the] second interview was an egregious violation 

of Miranda ."15 

                But the court of appeals decided that other Halberg factors outweighed the 

egregious nature of the violation that occurred during the second interview.16                The court 

emphasized that three and a half hours elapsed between the second and third interviews.17 

The court of appeals noted that "[d]uring this interval, Kalmakoff remained at liberty" 

and explained that Kalmakoff returned to school and then went home, which gave him 

"the opportunity to speak to family and friends during the several hours preceding the 

        14(...continued) 

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

903 P.2d at 1098 (citations omitted). 

        15      Kalmakoff II, 199 P.3d at 1201-02. 

        16      Id. at 1202-03. 

        17      Id. at 1202. 

                                                  -16-                                             6583
 

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

third interview."18     The court did consider that the same troopers conducted the second 

and third interviews, but observed that the third interview took place at Kalmakoff's 

home; that the troopers did not use lies, trickery, or other deception to induce Kalmakoff 

to submit to the third interview; and that the third interview lasted less than 25 minutes.19 

                 Finally,    the  court   of  appeals    concluded     that   Kalmakoff's      decision    to 

participate   in   the   third   interview   was   not   materially   affected   by   the   statements   the 

troopers illegally obtained from him during the first two interviews. The court explained 

that   in   its   view,   Kalmakoff   made   only   "two   significant   admissions"   in   the   earlier 

interviews - that he was drinking on the night in question and that he and his friend had 

stolen a gun and blanks from Reynolds's house.20                  The court acknowledged that the 

troopers had initiated the third interview by asking Kalmakoff to tell his grandparents 

about   the   gun,   but   suggested     that   if   Kalmakoff   had   merely   repeated   his   previous 

admissions, he would not have further implicated himself.21                   Based on the totality of 

these circumstances, the court of appeals held that Kalmakoff's statements from the third 

interview were sufficiently insulated from any earlier constitutional violations and were 

thus admissible at trial. The court also held that this same reasoning applied to the fourth 

interview and therefore Kalmakoff's statements from that interview were also properly 

admitted.22 

        18       Id. at 1202. 

        19       Id. at 1202-03. 

        20       Id. at 1202. 

        21       Id. 

        22       Id. 

                                                    -17-                                              6583
 

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

        C.       Petition For Review And Findings On Remand 

                 Kalmakoff petitioned this court for review of the court of appeals' decision 

and we granted the petition.         After briefing and oral argument, we issued an order on 

June 1, 2010, retaining jurisdiction and remanding to the trial court for additional factual 

findings.23   We noted that in determining whether Kalmakoff's statements from the third 

and fourth interviews were tainted by earlier violations, "the court of appeals correctly 

looked to the factors articulated in Halberg v. State."24               However, we expressed our 

disagreement with the court of appeals' determination that Kalmakoff made "only two 

significant admissions during the first two interviews" and that these admissions did not 

play a significant role in convincing Kalmakoff to participate in the third interview.25 

We explained: 

                 Our review of the transcripts indicates that during the first 
                 half   of   the   first   interview,   Kalmakoff   made   three   highly 
                 significant   admissions   that   may   have   influenced   his   later 
                 decision     to  confess    in  the  third   interview:    that  he   was 
                 drinking on the night of the murder; that he and his cousin 
                 found the murder weapon in the house where the victim was 
                 sleeping and took it with them; and that he and his cousin 
                 returned to "check on" the victim several times and the victim 
                became angry with him.[26] 

Thus,   to   conduct   a   proper   taint   analysis   for   the   third   and   fourth   interviews,   it   was 

necessary to know whether these admissions were obtained legally or were the result of 

an interview conducted in violation of Miranda . 

        23       Alaska Supreme Court Order No. 69 (June 1, 2010). 

        24      Id.  2. 

        25      Id.  4. 

        26      Id. 

                                                   -18-                                              6583
 

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

               Because     the  court  of  appeals    had  held   that  the  facts  surrounding 

Kalmakoff's first interview were not sufficiently clear to determine whether Kalmakoff 

was in custody throughout that interview, we remanded to the trial court for additional 

factual findings.27  The trial court issued additional factual findings on August 31, 2010. 

We then ordered supplemental briefing addressing whether, in light of the additional 

findings on remand, Kalmakoff was in custody throughout the first interview and what 

effect Kalmakoff's statements in that interview might have on the taint analysis for the 

third and fourth interviews. 

IV.     STANDARD OF REVIEW 

               "We     accept   the  trial  court's  factual  findings   except   when    clearly 

erroneous."28   We review questions of law de novo and "adopt the rule of law that is 

most persuasive in light of precedent, reason, and policy."29     Whether the facts found by 

the trial court "lead to the conclusion that the defendant [was] in custody for Miranda 

purposes" is a mixed question of law and fact, and we therefore "apply de novo review 

to the ultimate Miranda custody determination" on appeal.30            Whether a defendant's 

subsequent statement is tainted by a prior illegality is a question of law, and we thus 

"independently determine[] whether, under [the trial court's findings of historical fact], 

       27      Id.  6-8. 

       28      State v. Smith, 38 P.3d 1149, 1153 (Alaska 2002). 

       29      Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979). 

       30      Smith, 38 P.3d at 1153. 

                                              -19-                                         6583
 

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

the defendant's decision to speak with the police was voluntary and sufficiently insulated 

from the prior illegality to escape its taint."31 

V.	     DISCUSSION 

                Kalmakoff       argues   that  he  was   in  police   custody    throughout   his   first 

interview with the Alaska State Troopers and was thus entitled toMiranda warnings; that 

the   troopers   violated Miranda   and   Kalmakoff's   right   to   remain   silent   in   the   second 

interview; and that these violations tainted the statements obtained in the third and fourth 

interviews,     ultimately    requiring    that  the   statements    from    all  four  interviews    be 

suppressed.32      We     begin   our   analysis   by   reviewing    the   protections    against   self- 

incrimination guaranteed by the United States Constitution and the Alaska Constitution. 

We then turn to whether Kalmakoff was in custody throughout the first interview and 

whether Kalmakoff's statements made during the third and fourth interviews were tainted 

by prior illegalities and thus should have been suppressed. 

        A.	     The Protections Guaranteed By The Fifth Amendment To The United 
                States     Constitution       And    Article    I,   Section    9   Of   The    Alaska 
                Constitution 

                "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."33     The Fifth Amendment to the United States Constitution and article I, 

        31	     Halberg v. State, 903 P.2d 1090, 1095 (Alaska App. 1995). 

        32      Kalmakoff also maintains that he was in police custody during the third 

interview   at   his   grandparents'   home   and   that   this   interview   contained   independent 
Miranda violations.   We need not address this question because we conclude that even 
if Kalmakoff was not in custody during the third interview, that interview was tainted by 
the violations that occurred in the first and second interviews.            See infra Part V.C.2. 

        33      Beavers v. State, 998 P.2d 1040, 1045 (Alaska 2000). 

                                                  -20-	                                           6583
 

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

section 9 of the Alaska Constitution guarantee that no person "shall be compelled in any 

criminal   [case   or   proceeding]   to   be   a   witness   against   himself."34   "While   the   core 

protection is a prohibition on compelling a defendant to testify against himself at trial,"35 

the privilege against self-incrimination is also "enforceable in any setting where a suspect 

is subject to custodial police interrogation."36 

                 In the landmark case of Miranda v. Arizona, the United States Supreme 

Court recognized that because custodial interrogation involves inherent pressures that 

can compel a suspect to speak against his will, "[u]nless adequate protective devices are 

employed to dispel the compulsion inherent in custodial surroundings, no statement 

obtained from the defendant can truly be the product of his free choice."37                   The Court 

therefore held that "[i]n order to combat these pressures and to permit a full opportunity 

to exercise the privilege against self-incrimination, the accused must be adequately and 

effectively     apprised    of  his  rights   and   the  exercise    of  those    rights  must    be  fully 

        34       The due process clause of the Fourteenth Amendment incorporates the Fifth 

Amendment privilege against self-incrimination such that it is protected from abridgment 
by    the  States.   Malloy     v.   Hogan,    378   U.S.   1,  6  (1964).     To   the  extent   that  our 
interpretation of this privilege may be more protective than federal constitutional law, 
we base our ruling on article I, section 9 of the Alaska Constitution.                See Beavers, 998 
P.2d   at   1046   n.30.  "While   we   have   observed   that   the   language   of      9   is   'virtually 
identical' to the wording of the Fifth Amendment of the United States Constitution, we 
have interpreted  9 more broadly than the U.S. Supreme Court has construed the Fifth 
Amendment of the Federal Constitution."              Munson v. State, 123 P.3d 1042, 1049 n.48 
(Alaska 2005) (internal citations omitted). 

        35      Munson, 123 P.3d at 1047 (citing United States v. Patane, 542 U.S. 630, 

638 (2004)). 

        36      Id. at 1047 (citing Miranda v. Arizona, 384 U.S. 436, 477 (1966);Beavers, 

998 P.2d at 1045 & n.25). 

        37       384 U.S. at 458. 

                                                   -21-                                              6583
 

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

honored."38      The Court specified that prior to questioning, a suspect in police custody 

must be warned "that he has the right to remain silent, that anything he says can be used 

against him in a court of law, that he has the right to the presence of an attorney, and that 

if he cannot afford an attorney one will be appointed for him prior to any questioning if 

he so desires."39 

                  The Miranda warnings are "concrete constitutional guidelines" that act as 

critical procedural safeguards of a suspect's privilege against self-incrimination.40                        The 

warnings   are   "absolute   prerequisite[s]   in   overcoming   the   inherent   pressures   of   the 

interrogation atmosphere."41          For that reason, "[f]ailure to administer Miranda warnings 

creates a presumption of compulsion," and any unwarned statements must be excluded 

                      , 
from evidence.42 43 

         38      Id. at 467. 

         39      Id. at 479. 

         40      Id. at 442, 444; see also Dickerson v. United States, 530 U.S. 428, 434-35 

(2000) (holding that Miranda is a constitutional rule). 

         41      Miranda, 384 U.S. at 468. 

         42       Oregon v. Elstad, 470 U.S. 298, 307 (1985); see also New York v. Quarles, 

467   U.S.   649,   654   (1984)   ("[S]tatements   made   under   [custodial   interrogation]   are 
inadmissible unless the suspect is specifically informed of his Miranda rights and freely 
decides to forgo those rights."); Munson v. State, 123 P.3d 1042, 1047 (Alaska 2005) 
("The   failure   to   provide   proper   warnings   .   .   .   is   generally   sufficient   to   exclude   any 
statements obtained.") (citing Missouri v. Seibert, 542 U.S. 600, 608 (2004)). 

         43       For a suspect's statement to be admissible, that statement must also have 

been   voluntarily   made,  see   Elstad,   470   U.S.   at   304   (explaining   that   statements   are 
involuntary   under   the   Due   Process   Clause   if   they   are   obtained   by   techniques   and 
methods offensive to due process); Hunter v. State, 590 P.2d 888, 899 (Alaska 1979) 
(describing an involuntary confession as one where "a defendant's will was overborne" 
                                                                                                (continued...) 

                                                      -22-                                                  6583
 

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

                Not   only   must   police   apprise   a   suspect   of   his   constitutional   rights   by 

administering the Miranda warnings, they must also fully honor the exercise of those 

rights: 

                 Once warnings have been given, the subsequent procedure is 
                 clear.  If the individual indicates in any manner, at any time 
                prior to or during questioning, that he wishes to remain silent, 
                 the interrogation must cease.  At this point he has shown that 
                 he intends to exercise his Fifth Amendment privilege; any 
                 statement taken after the person invokes his privilege cannot 
                be other than the product of compulsion, subtle or otherwise. 
                 Without     the   right  to  cut   off  questioning,     the  setting   of 
                 in-custody      interrogation     operates     on   the   individual    to 
                 overcome   free   choice   in   producing   a   statement   after   the 
                privilege has been once invoked.[44] 

Post-Miranda United States Supreme Court decisions have reiterated that a suspect's 

right to cut off questioning includes the right to "control the time at which questioning 

occurs, the subjects discussed, and the duration of the interrogation," and that the police 

must "scrupulously honor[]" a suspect's invocation of his right to silence.45 

        43(...continued) 

by coercive tactics), and the suspect must have made a knowing and intelligent waiver 
of his Miranda rights, see Munson, 123 P.3d at 1047 (citing Smith v. Illinois, 469 U.S. 
91, 95 (1984)).     Voluntariness and waiver are not at issue in this appeal. 

        44      Miranda, 384 U.S. at 473-74; see also Beavers v. State, 998 P.2d 1040, 

1045-46 (Alaska 2000) ("A criminal suspect's right to remain silent . . . includes the right 
to terminate an interrogation at any time." (internal citations omitted)). 

        45       Munson, 123 P.3d at 1048 (quotingMichigan v. Mosley, 423 U.S. 96, 103- 

04 (1975)). 

                                                   -23-                                              6583
 

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

        B.	      Kalmakoff Was In Custody For Miranda Purposes Throughout His 
                 First Interview With The Troopers. 

                 For the Miranda safeguards to apply, a person must be subject to custodial 

police     interrogation.     The    Miranda       Court    described     custodial    interrogation      as 

"questioning initiated by law enforcement officers after a person has been taken into 

custody   or   otherwise   deprived   of   his   freedom   of   action   in   any   significant   way."46 

Accepting the findings of historical fact made by the trial court, we apply de novo review 

to the Miranda custody determination.47 

                 Our   test   for   determining   whether   a   person   is   in   custody   for  Miranda 

                                                            48	                       49 
purposes is set out in two cases: Hunter v. State              and State v. Smith.        In Hunter, we 

adopted   an   objective   "reasonable   person"   test,50     holding   that   "custody   occurs   if   the 

suspect is physically deprived of his freedom of action in any significant way or is led 

to believe, as a reasonable person, that he is so deprived."51              We further described this 

test as requiring "some actual indication of custody such that a reasonable person [in the 

suspect's     position]     would    feel   he  was    not   free   to  leave   and   break    off   police 

        46	     Miranda, 384 U.S. at 444. 

        47	      State v. Smith, 38 P.3d 1149, 1153 (Alaska 2002). 

        48	      590 P.2d 888 (Alaska 1979). 

        49       38 P.3d 1149 (Alaska 2002). 

        50      Hunter, 590 P.2d at 895. 

        51      Id. at 894-95 (quoting People v. Arnold, 426 P.2d 515, 521 (Cal. 1967) (in 

bank), overruled on other grounds by Walker v. Super. Ct., 763 P.2d 852 (Cal. 1988) (in 
bank)). 

                                                   -24-	                                             6583
 

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

questioning."52     In Smith, we reaffirmed the Hunter test53  but clarified that the "ultimate 

inquiry"   is   whether   there   was   a   "restraint   on   freedom   of   movement   of   the   degree 

associated with a formal arrest."54 

                 Both Hunter and Smith describe three categories of facts that are relevant 

to the custody determination:          (1) "facts pertaining to events before the interrogation," 

particularly whether the defendant came to the place of questioning "completely on his 

own, in response to a police request, or [was] escorted by police officers"; (2) "facts 

intrinsic to the interrogation," such as when and where it occurred, how long it lasted, 

how many officers were present, what the officers and defendant said and did, whether 

there   were   physical   restraints,   drawn   weapons,   or   guards   stationed   at   the   door,   and 

whether   the   defendant   was   being   questioned   as   a   suspect   or   witness;   and   (3)   post- 

interrogation events, particularly whether the defendant "left freely, was detained, or was 

arrested."55   We noted in Smith, however, that "[t]he post-interview events factor is of 

limited weight."56 

                 As the court of appeals recognized, the Miranda custody determination in 

this case is complicated by Kalmakoff's age and the fact that he was removed from 

        52      Id. at 895. 

        53       Smith, 38 P.3d at 1154 (reiterating that we must decide "given the totality 

of [the] circumstances, whether a reasonable person would have felt he or she was not 
at liberty to terminate the interrogation and leave"). 

        54      Id. (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)). 

        55      Id. at 1154; Hunter, 590 P.2d at 895. 

        56       Smith, 38 P.3d at 1159. 

                                                   -25-                                              6583
 

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

school for the police interview.57      The court of appeals conducted a survey of relevant 

case law regarding "whether, and how, an adolescent's status as a secondary school 

student affects the assessment of whether a police interview is 'custodial' for purposes 

ofMiranda when the adolescent is summoned from class to be interviewed."58                 The court 

of appeals concluded that other courts "are virtually unanimous in recognizing that a 

directive or 'request' for a secondary school student to leave class for the purpose of 

being questioned by a police officer can result in a custodial interrogation for Miranda 

purposes."59    The court of appeals further explained that factors generally considered by 

other courts include: (1) "the age and sophistication of the student"; (2) "whether the 

student was told that [the student was] free to leave or to break off the questioning if [the 

student] wished"; and (3) "whether the student was given the opportunity to consult or 

obtain the presence of a parent or guardian."60 

                We agree with the court of appeals that these factors are relevant to the 

Miranda      custody   determination   in   this   case  and   fit   within   the   framework   already 

        57      Kalmakoff   v.   State  (Kalmakoff   II),   199   P.3d   1188,   1197   (Alaska   App. 

2009). 

        58      Id. at 1197-99 (citing Doe v. Bagan, 41 F.3d 571, 575 n.3 (10th Cir. 1994); 

In re J.H., 928 A.2d 643, 649-51 (D.C. 2007); In re J.C., 591 So. 2d 315, 316 (Fla. App. 
1991);Dillard v. State, 612 S.E.2d 804, 807-08 (Ga. App. 2005); State v. Doe, 948 P.2d 
166, 172-74 (Idaho App. 1997);People v. Pankhurst, 848 N.E.2d 628, 632-36 (Ill. App. 
2006); In re G.S.P., 610 N.W.2d 651, 657-59 (Minn. App. 2000); State v. Budke, 372 
N.W.2d 799, 801-02 (Minn. App. 1985); In re Loredo, 865 P.2d 1312 (Or. App. 1993); 
In re Killitz, 651 P.2d 1382 (Or. App. 1982); J.D. v. Commonwealth, 591 S.E.2d 721, 
725 (Va. App. 2004); State v. D.R., 930 P.2d 350, 352-53 (Wash. App. 1997); In re 
C.S.C. v. State, 118 P.3d 970, 976-78 (Wyo. 2005)). 

        59      Id. at 1197. 

        60      Id. 

                                                 -26-                                           6583
 

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

established   by  Hunter   and  Smith.       The   factors   listed   in  Hunter   and  Smith   are   not 

exhaustive, and when a student is summoned from class to speak with a police officer, 

additional   relevant     factors   to  consider   include    whether    the  student   was   given    the 

opportunity to consult with or obtain the presence of a parent or guardian; the student's 

age and sophistication; and whether the student was told that he was free to leave or 

break off questioning.61      Indeed, the United States Supreme Court recently held that "a 

child's age properly informs the Miranda custody analysis."62 

                The court of appeals decided that the circumstances leading to Kalmakoff's 

first   interview   had   not   been   sufficiently   litigated   or   clarified   to   determine   whether 

Kalmakoff was in custody throughout that interview.63                We therefore remanded to the 

trial court for additional factual findings.64      After reviewing the trial court's findings on 

remand and the supplemental briefing submitted by the parties, we now conclude that 

Kalmakoff was in custody throughout his first interview with the Alaska State Troopers. 

Although Kalmakoff was not formally arrested, his freedom of movement was restrained 

        61      See Smith, 38 P.3d at 1154-55;Hunter, 590 P.2d at 895. The consideration 

of these additional factors does not transform the custody inquiry into a subjective test; 
we    do   not  expect    the  police   to  bear   "the  burden    of   anticipating    the  frailties  or 
idiosyncracies of every person whom they question."                 Hunter, 590 P.2d at 896.  We 
simply note that readily ascertainable facts, such as the suspect's age, are relevant to 
whether "[a] reasonable person in the defendant's position" would feel free to leave or 
break off questioning.  Id. at 898 (emphasis added). 

        62      J.D.B. v. North Carolina, 131 S. Ct. 2394, 2399 (2011); see also id. at 2403 

(explaining that "a reasonable child subjected to police questioning will sometimes feel 
pressured to submit when a reasonable adult would feel free to go"). 

        63      Kalmakoff II, 199 P.3d at 1199. 

        64      Alaska Supreme Court Order No. 69 (June 1, 2010). 

                                                  -27-                                             6583
 

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

in such a way that a reasonable person in Kalmakoff's position would not have felt free 

to leave the interview or break off questioning. 

                The    findings    on  remand     regarding    the  events   leading    up  to  the  first 

interrogation compel this conclusion. Hunter and Smith instruct that whether the suspect 

came to the place of questioning "completely on his own, in response to a police request, 

or [was] escorted by police officers" is an especially important factor to consider.65  Here, 

Kalmakoff was removed from school and transported to the interview by the VPSO in 

her official vehicle.    The troopers had instructed the VPSO to bring Kalmakoff, along 

with two other students, to the city offices.         Even if the use of the VPSO truck can be 

explained   by   convenience,   Kalmakoff   was   still   escorted   to   the   interview   by   a   law 

enforcement officer.      Furthermore, the VPSO told Kalmakoff that the troopers needed 

to get some information from him, and neither the VPSO nor the principal teacher told 

Kalmakoff that he did not have to attend the interview or answer the troopers' questions. 

On remand, the superior court found that Kalmakoff likely believed that he had to go 

with   the   VPSO   to   the   interview.  Finally,   the   superior   court   found   that   neither   the 

troopers nor school authorities informed Kalmakoff's grandparents about the interview 

and Kalmakoff was not given the opportunity to consult with or obtain the presence of 

a parent or guardian before the interview began.  Even when Kalmakoff's grandmother 

came to the city offices, the troopers did not inform her that they were questioning 

Kalmakoff or invite her to join them in the interview. 

                The State tries to downplay the significance of these facts by arguing that 

because students are accustomed to having their actions directed by school authorities, 

being directed to attend a police interview "is no more restrictive or intrusive than what 

        65      Smith, 38 P.3d at 1154 (quoting Hunter, 590 P.2d at 895). 

                                                  -28-                                               6583 

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

the student may experience on other days for other reasons" and is not "tantamount to 

a formal arrest."  The State notes that Kalmakoff was originally called out of class by the 

school's   principal teacher   and   claims   that   removing   Kalmakoff   from   school   for   the 

interview was therefore not "an infringement on [his] freedom of movement" because 

"[p]rincipals and teachers routinely assert authority over students."  The State compares 

being summoned for a police interview to being told to go to the counselor's office to 

discuss class choices or the auditorium to take a standardized test. 

                This argument misunderstands the significance of the school environment 

in a custody evaluation.  It is precisely because students are accustomed to having their 

actions directed by school authorities that a student who is told by a principal or teacher 

that he must speak with a law enforcement officer might reasonably believe that he is not 

free to leave the interview or break off questioning.66           Furthermore, a police interview 

is not something that a reasonable student would anticipate as part of a normal school 

day and is simply not comparable to routine activities such as taking a standardized test 

or speaking with a counselor about class choices.               Thus, the fact that a student was 

directed by school authorities to leave class to speak with law enforcement officers is a 

relevant fact "pertaining to events before the interrogation"67 that may, depending on the 

individual circumstances, support a finding of Miranda custody. 

                But even if we were to accept the State's premise, it would not change the 

outcome of this particular case.  The State cites several cases where students who were 

        66      See   In   re   Killitz,   651   P.2d   1382,   1384   (Or.   App.   1982)   ("[D]efendant 

cannot be said to have come voluntarily to the place of questioning.                  He would likely 
have been subject to the usual school disciplinary procedures had he not complied with 
the principal's request that he come to the office."). 

        67      Smith, 38 P.3d at 1154. 

                                                  -29-                                             6583
 

----------------------- Page 30-----------------------

summoned from class to meet with police officers were found not to be in Miranda 

custody.     But   all   of   these   cases   concern   students   who   were   questioned   on   school 

premises, whereas Kalmakoff, after being called out of class by the principal teacher, was 

removed from school by the VPSO and transported to the city building that contained 

the VPSO office.68       And here it was the VPSO who told Kalmakoff that the troopers 

needed to get some information from him. 

                The events before the interrogation thus weigh strongly in favor of a finding 

that Kalmakoff was in Miranda custody throughout the first interview.                  Facts intrinsic 

to the interrogation also support this conclusion.          Kalmakoff had turned 15 only a few 

weeks before, and he had no previous history of delinquent acts or contact with law 

enforcement.      Troopers Mlynarik and Stephenson were in uniform and visibly armed, 

and they did not tell Kalmakoff that he was free to leave or that he did not have to answer 

their questions.     Instead, Trooper Stephenson repeatedly emphasized that Kalmakoff 

needed to tell them the truth.       Moreover, the troopers' questions became pointed and 

accusatory well before the break in the interview where the trial court found that the 

interview   became   custodial,   including   a   series   of   questions   that   directly   implicated 

Kalmakoff in the murder. 

        68      See,   e.g., In   re   J.H.,   928   A.2d   643,   646-51   (D.C.   2007)   (holding   that 

student was not in custody when summoned to speak with one plain-clothes officer in 
large school conference room); State v. Polanco, 658 So. 2d 1123, 1123-25 (Fla. App. 
1995) (holding that 18-year-old student was not in custody when summoned from class 
to speak with two plain-clothes detectives in school conference room, but remanding for 
a   determination     whether     interview    became    custodial    when    student   was   asked    to 
accompany   the   officers   to   the   station   for   further   questioning); Dillard   v.   State,   612 
S.E.2d 804, 807-08 (Ga. App. 2005) (holding that 18-year-old student was not in custody 
when summoned to speak with two investigators in the principal's office). 

                                                  -30-                                            6583
 

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

                There are some facts intrinsic to the interview that, standing alone, suggest 

that the   interview was not custodial: the troopers conducted interviews with several 

people throughout the day; the interview was conducted in a large, well-lit room with 

windows; no guards were stationed outside the room; no weapons were drawn; and the 

interview was described as "informal and quiet."69            But in light of all the relevant facts, 

these circumstances do not change our conclusion that, from the beginning of the first 

interview, Kalmakoff's freedom was restrained in such a way that a reasonable person 

in   Kalmakoff's   position   would   not   have   felt   free   to   leave   or   break   off   questioning. 

Kalmakoff was in custody for Miranda purposes throughout the first interview and was 

therefore entitled to Miranda warnings prior to questioning. Because the troopers failed 

to   administer   those   warnings,   all   of   Kalmakoff's   statements   made   during   the   first 

interview were obtained illegally and must be suppressed. 

        C.	     The Troopers' Actions In The First And Second Interviews Tainted 
                Kalmakoff's Statements Made In The Third And Fourth Interviews. 

                "[A] criminal defendant can seek suppression of his or her statements to the 

police   on   the   ground   that   those   statements   are   tainted   by   a   prior   illegality."70 For 

example, "a defendant may claim that his or her confession is the product of statements 

made at an earlier interview in which the police violated the defendant's privilege against 

        69      The events after the interrogation do not weigh strongly for or against a 

finding of custody: Kalmakoff was not arrested, but his freedom of movement continued 
to be restrained when the troopers instructed Kalmakoff's grandmother not to allow him 
to return home.      As we recognized in Smith, "[t]he post-interview events factor is of 
limited weight," 38 P.3d at 1159, and in this case it is even less probative because the 
superior court has already determined that the second portion of the first interview was 
custodial and the State has not challenged that determination. 

        70      Halberg v. State, 903 P.2d 1090, 1093 (Alaska App. 1995) (citing Wong 

Sun v. United States, 371 U.S. 471 (1963)). 

                                                  -31-	                                           6583
 

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

self-incrimination."71       Kalmakoff   argues   that   the   illegalities   in   the   first   and   second 

interviews tainted the statements he made in the third and fourth interviews, ultimately 

requiring that all four interviews be suppressed.72              Whether a defendant's subsequent 

statement   is   tainted   by   a   prior   constitutional   violation   is   a   question   of   law,   and   we 

therefore   independently   determine   whether,   under   the   superior   court's   findings   of 

historical fact, "the defendant's decision to speak with the police was voluntary and 

sufficiently insulated from the prior illegality to escape its taint."73               Because the law 

regarding whether a subsequent admission is tainted by a previous illegality has evolved 

over time, we first address the test we apply to determine whether Kalmakoff's later 

statements were tainted. 

                 1.	     The court of appeals correctly looked to the factors articulated 
                         in Halberg v. State to determine whether Kalmakoff's third and 
                         fourth interviews were tainted by prior illegalities. 

                 Alaska courts have historically used a single legal test to determine whether 

a   previous   violation   of   a   criminal   defendant's   Fifth   Amendment   rights   -   either   an 

involuntary   statement   or   a   statement   taken   in   violation   of  Miranda        -   tainted   the 

        71	      Id. 

        72       As noted previously, see supra Part III.A, the superior court suppressed the 

entirety of Kalmakoff's second interview prior to trial based on the troopers' failure to 
properly administer Miranda warnings at the beginning of the second interview and their 
refusal to honor Kalmakoff's invocation of his right to silence once the warnings were 
finally administered. The State conceded prior to trial that Kalmakoff's statements made 
after Miranda warnings were administered should be suppressed because the troopers 
ignored Kalmakoff's invocation of his right to remain silent, and the State does not 
challenge the suppression of the second interview on appeal. 

        73       Halberg, 903 P.2d at 1095 (citations omitted). 

                                                    -32-	                                             6583
 

----------------------- Page 33-----------------------

defendant's subsequent statement.74          The court of appeals explained this test in its leading 

opinion on this subject, Halberg v. State : 

                As a preliminary matter, the government had to show that the 
                 defendant's subsequent statement was voluntary and, if the 
                 defendant       was     in    custody      during     the    subsequent 
                 interrogation,   that   the   defendant   received   proper Miranda 
                warnings   and   waived   his   or   her   rights.    Assuming   these 
                 foundational matters were proved, courts then analyzed the 
                totality     of   the   circumstances       to   assess    whether      the 
                 defendant's   decision   to   give   a   subsequent   statement   was 
                 "sufficiently an act of free will to purge the primary taint."[75] 

The totality of the circumstances analysis has also been described as whether there was 

a "break in the stream of events . . . sufficient to insulate the [subsequent] statement from 

the effect of all that went before"76 and as whether the connection between the illegal 

conduct   of   the   police   and   the   challenged   evidence   has   "become   so   attenuated   as   to 

dissipate the taint."77 

                 The Halberg test is based on the United States Supreme Court's decision 

in Brown v. Illinois.78    In Brown, the United States Supreme Court clarified that whether 

the   taint  had   dissipated    was   not   a  "but   for"  inquiry,   rejecting    the  argument      that 

suppression was always required when a defendant's subsequent statement was the result 

        74      See id. at 1094. 

        75      Id. (quoting Brown v. Illinois, 422 U.S. 590, 602 (1975) (citing Wong Sun, 

371 U.S. at 486)). 

        76      Id. at 1094 (quoting Clewis v. Texas, 386 U.S. 707, 710 (1967)). 

        77       Wong Sun, 371 U.S. at 487 (quoting Nardone v. United States, 308 U.S. 

338, 341 (1939)). 

        78       422 U.S. 590 (1975). 

                                                   -33-                                              6583
 

----------------------- Page 34-----------------------

of prior illegality and instead held that "[t]he question whether a [subsequent] confession 

is the product of a free will under Wong Sun must be answered on the facts of each case. 

No   single   fact   is   dispositive."79   The   Court   further   explained   that   "[t]he   temporal 

proximity   of   the   [initial   illegality]   and   the   confession,   the   presence   of   intervening 

circumstances, and, particularly, the purpose and flagrancy of the official misconduct are 

all relevant" circumstances to consider.80          The Alaska Court of Appeals agreed with this 

approach in Halberg : 

                 The question is not whether the content of the second and 
                 subsequent interviews would have been the same if the initial 
                 interview     had   not   taken   place.     Instead,    the  question    is 
                 whether [a defendant's] decision to submit to the [subsequent 
                 interview]   was      "sufficiently    an  act   of   free  will   to  purge 
                 the    .  .  .  taint"  of   the  Miranda       violation    at  the   first 
                 interview.[81] 

To answer this question, the court of appeals in Halberg instructed courts to consider a 

number of relevant factors: 

                 [T]he   purpose   and   flagrancy   of   the   initial   illegal   act,   the 
                 amount of time between the illegal act and the defendant's 
                 subsequent statement, the defendant's physical and mental 
                 condition at the time of the subsequent statement, whether the 
                 defendant remained in custody or was at liberty during this 
                 interval, whether the defendant had the opportunity to contact 
                 legal   counsel   or   friends   during   this   interval,   whether   the 
                 subsequent       interview    took    place   at  a  different   location, 
                 whether the defendant's interrogators were the same officers 
                 who committed the prior illegal act, whether the evidence 
                 obtained from the prior illegal act affected the defendant's 

        79       Halberg, 903 P.2d at 1094 (quoting Brown, 422 U.S. at 603). 

        80       Brown, 422 U.S. at 603-04 (footnotes and internal citations omitted). 

        81       Halberg, 903 P.2d at 1097 (quoting Brown, 422 U.S. at 602). 

                                                    -34-                                                 6583 

----------------------- Page 35-----------------------

                 decision   to   submit   to   a   subsequent   interview,   whether   the 
                 police    used   lies  or  trickery   to  influence    the   defendant's 
                 decision, and whether there were other intervening events 
                 that affected the defendant's decision.[82] 

                 As we noted in our June 2010 order, the court of appeals correctly looked 

to the factors articulated in Halberg to determine whether Kalmakoff's statements from 

the   third   and   fourth   interviews   were   tainted   by   the   prior   illegalities.83 In   its   initial 

briefing to this court, the State urged us to apply the test outlined by the United States 

Supreme Court in Oregon v. Elstad84 rather than the Halberg factors.  The Elstad Court 

held that when the only prior illegality is "a simple failure to administer the [Miranda] 

warnings,"85 a "careful and thorough administration of the Miranda warnings" prior to 

the   subsequent   statement   "serves   to   cure   the   condition   that   rendered   the   unwarned 

statement inadmissible."86 

                 Neither our court nor the court of appeals has ever decided whether to adopt 

Elstad   as   a   matter   of   state   constitutional   law.87 But   we   do   not   need   to   decide   that 

        82       Id. at 1098 (citations omitted). 

        83       Alaska Supreme Court Order No. 69 (June 1, 2010). 

        84       470 U.S. 298 (1985). 

        85       Id. at 309. 

        86       Id. at 310-11. 

        87       See Munson v. State, 123 P.3d 1042, 1049 n.48 (Alaska 2005) (noting that 

we have interpreted article I, section 9 of the Alaska Constitution "more broadly than the 
U.S. Supreme Court has construed the Fifth Amendment of the Federal Constitution"); 
see also, e.g., Blue v. State, 558 P.2d 636, 641-43 (Alaska 1977) (construing the pre- 
indictment right to counsel more broadly than the federal constitution); Whitton v. State, 
479 P.2d 302, 309-10 (Alaska 1970) (construing double jeopardy more broadly); Baker 
                                                                                           (continued...) 

                                                    -35-                                              6583
 

----------------------- Page 36-----------------------

question in this case because the facts here fall well outside of Elstad 's purview. Elstad 

involved only a failure to administerMiranda warnings, and the Elstad Court made clear 

that its decision did not apply to at least two scenarios: first, cases where the "initial 

unwarned   statement   [was]   obtained   through   overtly   or   inherently   coercive   methods 

which raise serious Fifth Amendment and due process concerns" and second, cases 

"concerning   suspects   whose   invocation   of   their   rights   to   remain   silent   and   to   have 

counsel     present    were    flatly  ignored    while    police    subjected    them    to  continued 

interrogation."88 

                This case falls squarely within the second exception.                The troopers did 

commit   two      procedural   violations   of  Miranda      when     they  failed   to   administer   the 

warnings to Kalmakoff prior to the first and second interviews.                  But they also flatly 

ignored Kalmakoff's repeated invocations of his right to remain silent after they finally 

administered Miranda warnings midway through the second interview.  This violation 

rises above the prophylactic concerns of Miranda and intrudes upon the constitutional 

right to remain silent in the face of police interrogation, a right that we have recognized 

as "one of the most fundamental aspects of our constitutional jurisprudence."89                   When 

the police fail to properly administer Miranda warnings, we presume that a suspect's 

        87(...continued) 

v. City of Fairbanks, 471 P.2d 386, 401-02 (Alaska 1970) (construing the right to jury 
trial more broadly); Roberts v. State, 458 P.2d 340, 342-43 (Alaska 1969) (construing 
the pre-trial right to counsel more broadly). 

        88      Elstad, 470 U.S. at 312 n.3. 

        89      Beavers v. State, 998 P.2d 1040, 1045 (Alaska 2000). 

                                                  -36-                                             6583
 

----------------------- Page 37-----------------------

statements are compelled in order to safeguard the privilege against self-incrimination.90 

But when the police refuse to honor a suspect's invocation of his right to silence, "any 

statement taken after the person invokes his privilege cannot be other than the product 

of compulsion, subtle or otherwise."91         Because the troopers in this case not only failed 

to administer Miranda warnings but also violated Kalmakoff's constitutional right to 

silence,   we   look   to   the   factors   articulated   in Halberg   v.   State  to   determine   whether 

Kalmakoff's decision to speak with the troopers in the third and fourth interviews was 

sufficiently insulated from the prior illegalities to escape their taint. 

                2.      The third interview was tainted by the prior illegalities. 

                We   begin   by   using   the  Halberg      factors   to   analyze   Kalmakoff's   third 

interview with the troopers. We agree with the court of appeals that some of the Halberg 

factors suggest that there was a break in the stream of events between the interviews: 

Kalmakoff was not in custody during the few hours that elapsed between the interviews 

and thus had the opportunity to speak with friends or family at home or at school; the 

third interview took place at Kalmakoff's home, rather than the city building; the third 

interview lasted less than 25 minutes; Kalmakoff's grandparents were present at the third 

interview; and the troopers did not use lies or trickery to convince Kalmakoff to submit 

to the interview.92 

                But our analysis differs from that of the court of appeals with respect to 

three significant factors:  the troopers flagrantly violated Kalmakoff's rights during the 

        90      See Elstad, 470 U.S. at 306-07. 

        91      Miranda v. Arizona, 384 U.S. 436, 474 (1966). 

        92      See Kalmakoff v. State  (Kalmakoff II), 199 P.3d 1188, 1202-03 (Alaska 

App. 2009). 

                                                  -37-                                             6583
 

----------------------- Page 38-----------------------

second   interview;   they   obtained   important   incriminating   information   through   those 

violations; and they proceeded to use that illegally obtained information to convince 

Kalmakoff   to     submit   to   the   third   interview.  Given   this   sequence   of   events,   it   is 

impossible      to  say  that   the  connection     between     the  troopers'   illegal   conduct    and 

Kalmakoff's third interview statements was "so attenuated as to dissipate the taint."93 

                The United States Supreme Court in Brown v. Illinois instructed that "the 

purpose and flagrancy of the official misconduct" is a particularly important factor in 

determining   whether   a   subsequent   statement   is   insulated   from   the   prior   illegality.94 

Although there is no indication that the subjective intent of the troopers was to violate 

Kalmakoff's rights, the misconduct that occurred in this case was flagrant.  The court of 

appeals described the troopers' violations in the second interview as "egregious."95  The 

court of appeals stated that the troopers "repeatedly disregarded Kalmakoff's requests 

to leave the interview"; "failed to honor [Kalmakoff's] invocation of his right to silence"; 

and "implied that [Kalmakoff] did have to speak to them."96                  Moreover, the troopers 

implied that Kalmakoff's "only choice was whether to be questioned alone or in the 

presence of his grandparents"; "demanded to know why Kalmakoff was not willing to 

        93       Wong Sun v. United States, 371 U.S. 471, 487 (1963) (quoting Nardone v. 

United States, 308 U.S. 338, 341 (1939)). 

        94      422 U.S. 590, 603-04 (1975) (internal citations omitted). 

        95      Kalmakoff II, 199 P.3d at 1202. 

        96      Id. at 1201-02. 

                                                  -38-                                             6583
 

----------------------- Page 39-----------------------

speak to them"; and "tried to get [Kalmakoff] to agree to be interrogated on a question- 

by-question basis."97 

                 But the court of appeals decided that it "must draw a distinction between 

the   troopers'   conduct   at   the   first   interview   and   the   troopers'   conduct   at   the   second 

interview."98      The    court   thus   concluded     that   even   assuming     the  troopers    violated 

Kalmakoff's  Miranda   rights   in   the   first   interview,99       that   violation   was   not   flagrant 

because the tone of the interview was polite and Kalmakoff was not lied to, threatened, 

or bullied.100   Although it may be true that this violation standing alone is not flagrant, 

we cannot ignore the reality that by the time of the third interview, Kalmakoff had been 

subjected to a pattern of violations: the failure to administerMiranda warnings at the first 

interview; the failure to properly administer the warnings at the beginning of the second 

interview; the refusal to honor his requests to leave the second interview before the 

warnings were administered; and the failure to honor his invocation of his constitutional 

right to silence after the warnings were given.               We have previously recognized that 

"ignoring   or   rebuffing   a   suspect's   invocation   of   his   or   her   constitutional   rights   will 

convince the suspect that such rights are illusory."101            This consequence is undoubtedly 

        97       Id. at 1202. 

        98       Id. at 1201. 

        99       We reiterate our conclusion that Kalmakoff was in custody throughout the 

first interview and that the troopers thus violated Miranda by failing to administer the 
warnings.     See supra Part V.B. 

         100     Kalmakoff II, 199 P.3d at 1201. 

         101     Mallott   v.   State,   608   P.2d   737,   742   (Alaska   1980)   (citing Michigan   v. 

Mosley, 423 U.S. 96, 110 n.2 (1975) (White, J., concurring); Miranda v. Arizona, 384 
U.S. 436, 466 (1966)). 

                                                    -39-                                              6583
 

----------------------- Page 40-----------------------

greater when the suspect's rights are repeatedly and persistently violated.                   The pattern 

of   violations   in   this   case   is   thus   greater   than   the   sum   of   its   parts,   and   accordingly 

increases the flagrancy of the official misconduct. 

                     The    court   of  appeals    also   underestimated       the  significance     of  the 

information obtained through the troopers' misconduct.  The court of appeals concluded 

that in the first interview, "Kalmakoff admitted only two violations of the law: under-age 

drinking, and temporarily stealing a pistol and blanks so that he and his friend . . . could 

go back to [the friend's] house and shoot the gun."102            As we explained in our June 2010 

order, we do not agree with this assessment: 

                 Our review of the transcripts indicates that during the first 
                 half   of   the   first   interview,   Kalmakoff   made   three   highly 
                 significant   admissions   that   may   have   influenced   his   later 
                 decision     to  confess    in  the  third   interview:     that  he  was 
                 drinking on the night of the murder; that he and his cousin 
                 found the murder weapon in the house where the victim was 
                 sleeping and took it with them; and that he and his cousin 
                 returned to "check on" the victim several times and the victim 
                 became angry with him.[103] 

Given Trooper Stephenson's remark to Trooper Mlynarik that they were "hot on the trail 

now" after Kalmakoff gave these statements, it seems that the troopers also thought these 

admissions were significant. 

                 Similarly, the court of appeals concluded that the troopers "obtained little 

information"   from   the   violations   that   occurred   in   the   second   interview,   stating   that 

"Kalmakoff made only one self-incriminating admission: that he had consumed about 

        102      Kalmakoff II, 199 P.3d at 1201. 

        103      Alaska Supreme Court Order No. 69  4 (June 1, 2010). 

                                                   -40-                                                 6583 

----------------------- Page 41-----------------------

half a pint of whiskey on the evening of the homicide."104                But this ignores a crucial 

passage from the second interview.           After Kalmakoff asked to leave the interview and 

return to school, the troopers pressed him on why he did not want to talk to them.  In 

response, Kalmakoff said, "I don't know, sorta scared." When Trooper Allen asked what 

he was scared about, Kalmakoff replied, "That I did it." 

                Finally, we disagree with the court of appeals' conclusion that Kalmakoff's 

decision to participate in the third interview was not materially affected by the statements 

obtained from him during the first and second interviews.105                When the troopers first 

asked   Kalmakoff   if   he   would   speak   with   them   in   the   presence   of   his   grandparents, 

Kalmakoff did not respond.  Trooper Allen then encouraged Kalmakoff to participate in 

the interview: 

                Because you know there's - there's some things that you 
                might've   told   us   already   that   they   might   not   even   know 
                about.  You think that'd be fair, you think? . . .  Eventually all 
                the    information's     gonna     be   available.   .  .  .  [unknown 
                indiscernible speaker] [W]ould you like to start off so that 
                you can bring your [g]randparents up to speed on everything 
                that you've talked to us about already[?] 

(Emphasis added.) When Kalmakoff said that he didn't know where to start, Trooper 

Allen prompted him by referring to a specific admission from the first interview:  "[D]id 

you talk with Trooper Stephenson about - about a gun?" 

                Two things about this exchange demonstrate that Kalmakoff's decision to 

submit to the third interview was substantially affected by his earlier statements.106             First, 

        104     Kalmakoff II, 199 P.3d at 1202.
 

        105     Id.
 

        106     Midway through this exchange is also when Trooper Stephenson made an
 

                                                                                         (continued...) 

                                                  -41-                                             6583
 

----------------------- Page 42-----------------------

by telling Kalmakoff that it was only fair to tell his grandparents what he had told the 

troopers because "[e]ventually all the information's gonna be available," Trooper Allen 

communicated to Kalmakoff that refusing to participate in the interview would be futile 

given his earlier incriminating statements.107       Second, the message that it was futile to 

resist was compounded by Trooper Allen's direct references to the illegally obtained 

statements - both generally, by asking Kalmakoff to bring his grandparents   "up to 

speed" regarding the earlier statements, and specifically, by prompting Kalmakoff to talk 

about the gun.  Later in the interview, the troopers asked more specific questions about 

Kalmakoff's   earlier   admissions,   including   about   "checking   on"   the   victim   and   the 

victim's   angry   response   toward   Kalmakoff.       By   using   these   statements   to   induce 

Kalmakoff to participate in the third interview, the troopers connected that interview 

back to the flagrant violations of Kalmakoff's rights that they had committed only a few 

        106(...continued) 

oblique reference to Kalmakoff's Miranda rights, saying "Byron, I just want to remind 
you that what I read to you earlier, still applies, but um, like - like I said, we're hoping 
we can just ah, get everything out in the open."        Because we do not reach the question 
whether Kalmakoff was in custody during the third interview, we cannot say that a full 
set of Miranda warnings was independently required.              As the United States Supreme 
Court   recognized     in  Brown    v.  Illinois,   however,   "[t]he  Miranda   warnings     are  an 
important factor . . . in determining whether the confession is obtained by exploitation 
[of a previous illegality]," 422 U.S. 590, 603 (1975), and a full and unqualified set of 
warnings     at  this  juncture   may   have   helped    to  dissipate  the  taint.  But    Trooper 
Stephenson's reference was by no means a full and unqualified set of warnings, and may 
only have served to remind Kalmakoff that his earlier attempt to exercise his rights was 
ineffective. 

        107    See Halberg v. State, 903 P.2d 1090, 1099 (Alaska App. 1995) (concluding 

that reminding Halberg of statements made in the previous interview was not problematic 
because "[t]he troopers never employed Halberg's prior statements to try to induce her 
to waive her rights (by suggesting that she might as well talk to the officers since she had 
already confessed)"). 

                                                -42-                                          6583
 

----------------------- Page 43-----------------------

hours earlier.  We therefore conclude that Kalmakoff's statements in the third interview 

were not sufficiently insulated from the taint of the prior illegalities, and those statements 

must be suppressed. 

               3.      The fourth interview was tainted by prior illegalities. 

               Many of the same considerations lead us to conclude that Kalmakoff's 

statements made during the fourth interview were also tainted by prior illegalities.  The 

same troopers conducted the fourth interview, and our analysis of the flagrancy of the 

prior illegalities and the information obtained from the earlier illegalities remains the 

same.   We recognize that several of the Halberg factors weigh in favor of admitting the 

fourth   interview: there was a break of almost 24 hours between the third and fourth 

interviews; Kalmakoff was at liberty during this interval; and the fourth interview took 

place   at  a  different  location.  But    given  the  exchange    between    the  troopers   and 

Kalmakoff at the beginning of the fourth interview, we cannot say that these factors 

created a "break in the stream of events . . . sufficient to insulate the [fourth] statement 

from the effect of all that went before."108 

               The State argues that the fourth interview was sufficiently attenuated from 

the prior illegalities because "the troopers were not in any way overbearing, and at the 

beginning of the interview advised Kalmakoff of his Miranda rights and made it clear 

that   the   choice   to  participate   in  the   interview   was    Kalmakoff's."       But   this 

characterization of the beginning of the fourth interview is not completely accurate.  As 

described previously,109 the troopers again went to Kalmakoff's school to remove him 

from class.   Kalmakoff repeatedly asked the troopers when he could return to class, and 

        108    Halberg, 903 P.2d at 1094 (quoting Clewis v. Texas, 386 U.S. 707, 710 

(1967)). 

        109    See supra Part II.D. 

                                               -43-                                           6583 

----------------------- Page 44-----------------------

they initially provided misleading answers, telling Kalmakoff that he could go back to 

school in a few hours.110       Trooper Allen then told Kalmakoff, "I wanna have you talk 

with us about what happened so that we can understand it very clearly . . . okay, so that 

nobody . . . has any questions about stuff okay[,] would you like to go around with us 

and do that?" Kalmakoff responded, "I guess so." Thus, prior to administering Miranda 

warnings, and after misleading Kalmakoff about when he could return to school, the 

troopers had Kalmakoff agree to repeat the information that he had already provided to 

them.     This     exchange     alone    demonstrates      that  Kalmakoff's      earlier   incriminating 

statements materially affected his decision to participate in the final interview. 

                 Kalmakoff   asked   the   troopers   what   was   going   to   happen   to   him,   and 

Trooper Allen eventually told Kalmakoff that the troopers would be taking him back to 

Anchorage   to   appear   in   front   of   a   judge.  Kalmakoff   then   made   several   additional 

incriminating statements, telling the troopers repeatedly that he "didn't do it on purpose." 

The troopers reassured Kalmakoff that they understood and that they hadn't told the 

victim's   family   about   Kalmakoff's   involvement.           It   was   only   at   that   point   -   after 

Kalmakoff   had   agreed   to   participate   in   the   interview   and   made   more   incriminating 

statements - that Trooper Allen administeredMiranda warnings to Kalmakoff. Trooper 

Allen qualified the warnings by telling Kalmakoff, "I want to go through this with you 

real quick" and reminding him that "we did this before." 

                 To   fulfill   their   role   as   a   critical   constitutional   safeguard,   the  Miranda 

warnings must "effectively advise the suspect that he [has] a real choice about giving an 

admissible statement at that juncture" and they must "reasonably convey that [the suspect 

        110      At this point, the troopers had already told Kalmakoff's grandparents that 

they would be taking Kalmakoff back to Anchorage. 

                                                   -44-                                                 6583 

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can] choose to stop talking even if he had talked earlier."111       Even if the troopers had 

advised Kalmakoff of his Miranda rights at the outset of the fourth interview, the pattern 

and flagrancy of the previous violations would have raised the question whether those 

warnings     were   effective. But    the  troopers  did  not  administer   the  warnings   until 

Kalmakoff agreed to go over the information he had already provided and had made 

further   incriminating   statements.   Trooper     Allen's  language    also  implied  that  the 

warnings were merely a formality.        The administration of the warnings here thus could 

not have provided Kalmakoff with a meaningful choice and was not sufficient to insulate 

the fourth interview from the prior violations ofMiranda and Kalmakoff's constitutional 

right to remain silent.   We therefore conclude that Kalmakoff's decision to submit to the 

fourth interview was not sufficiently an act of free will to purge the taint of the earlier 

violations, and Kalmakoff's statements must be suppressed. 

VI.     CONCLUSION 

                To reduce the risk of coerced confessions and to implement the protections 

of   the  self-incrimination    clauses  of  the  Fifth  Amendment      to  the  United   States 

Constitution and article I, section 9 of the Alaska Constitution, "the accused must be 

adequately and effectively apprised of his rights and the exercise of those rights must be 

fully honored."112   In this case, Kalmakoff was not adequately and effectively apprised 

of his rights until midway through the second interview, and when he did eventually 

receive the Miranda warnings, his exercise of his right to remain silent was ignored. 

These violations tainted the statements that Kalmakoff made in the third and fourth 

interviews.  It was thus error for the trial court to admit the first half of Kalmakoff's first 

        111    Crawford     v.  State,  100  P.3d  440,  448   (Alaska   App.   2004)   (quoting 

Missouri v. Seibert, 542 U.S. 600, 612 (2004)). 

        112    Miranda v. Arizona, 384 U.S. 436, 467 (1966); Seibert, 542 U.S. at 608. 

                                              -45-                                          6583 

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interview and the entirety of the third and fourth interviews.  This error was not harmless 

beyond a reasonable doubt and requires reversal of the convictions.113            We REVERSE 

the decision of the court of appeals, REVERSE Kalmakoff's convictions, and REMAND 

this case for a new trial. 

        113    See Motta v. State, 911 P.2d 34, 39-40 (Alaska App. 1996) (explaining that 

constitutional error requires reversal of a criminal conviction unless that error is harmless 
beyond a reasonable doubt) (citing Chapman v. California, 386 U.S. 18, 24 (1967)).  The 
audio and video tapes of Kalmakoff's fourth interview were played for the jury and the 
prosecutor relied on all of the admitted statements in his opening statement and closing 
arguments.     Here,   admission   and   reliance   on   the   statements   that   should   have   been 
suppressed to obtain the convictions requires reversal and a remand for new trial.  See, 
e.g., Klemz v. State, 171 P.3d 1169, 1176 (Alaska App. 2007); Crawford v. State, 100 
P.3d 440, 451 (Alaska App. 2004); Miller v. State, 18 P.3d 696, 701 (Alaska App. 2001). 

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