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State v. Garrison (2/3/2006) ap-2030

State v. Garrison (2/3/2006) ap-2030

     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878


) Court of Appeals No. A-8851 Petitioner, ) Trial Court No. 3AN-01-5461 CR
v. )
) O P I N I O N
Respondent. ) [No. 2030 February 3, 2006]
          Petition for Review from the Superior  Court,
          Third  Judicial District, Anchorage,  Michael
          L. Wolverton, Judge.

          Appearances:     Kenneth    M.    Rosenstein,
          Assistant Attorney General, Office of Special
          Prosecutions  and  Appeals,  Anchorage,   and
          David  W. M rquez, Attorney General,  Juneau,
          for   the  Petitioner.   Andrew  J.  Lambert,
          Kalamarides  &  Lambert, Anchorage,  for  the

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

          STEWART, Judge.

          During  interviews with the police, Antonio M. Garrison
admitted  that he removed a handgun from the scene of a  homicide
but  consistently denied that he had any responsibility for  this
homicide.   The  grand  jury  returned  an  indictment   charging
Garrison  with  several  crimes:   felon  in  possession   of   a
concealable firearm (Garrison had a prior felony conviction); two
counts  of tampering with physical evidence; first-degree murder;
first-degree   robbery;  first-degree  theft;  and   first-degree
vehicle theft.1
          Garrison moved to suppress his statements to the police
in  which  he admitted removing the handgun, claiming a violation
of  his  constitutional  rights.  The superior  court  suppressed
Garrisons  statements, finding that the police rendered Garrisons
statements  involuntary  when they threatened  him  with  harsher
treatment.   The  superior  court also concluded  that  Garrisons
right to counsel had attached and was violated.
          Because  no  adversary proceedings had  commenced  when
Garrison  made  his  statements,  the  superior  court  erred  in
concluding that Garrisons right to counsel had attached  and  was
violated.   Furthermore,  because  the  police  did  not  subject
Garrison  to  custodial interrogation when he made  the  disputed
statements,  the  superior court erred in ruling  that  Garrisons
Fifth Amendment right to counsel was violated.
          Moreover,  we  conclude that the detectives  statements
Garrison  relied  on  to  support  his  claim  that  the   police
threatened harsher treatment are not threatening statements under
article  I,  section 9 of the Alaska Constitution.   Even  if  we
analyze  the  case assuming the statements are threatening  as  a
matter  of law, Garrison admitted that he removed the gun  before
the  detectives made the statements that Garrison  identifies  as
threats  of harsher treatment.  Thus, even if Garrisons will  was
overborne by the detectives later in the interview, Garrison  had
already made the damaging admissions before the police statements
that Garrison relied on to claim that his admissions were
   involuntary.    Finally,  examining  the   totality   of   the
circumstances, we conclude that Garrisons will was not  overborne
by the detectives statements.
          We   conclude   that  the  superior  court   erred   in
suppressing  Garrisons admissions.  Accordingly, we  reverse  the
superior courts ruling and remand for further proceedings on  the

          Background facts and proceedings
          On  November  1, 2000, Paul Clinton was found  shot  to
death  in  his  place  of business.  Anchorage  Police  Detective
Donald Krohn first interviewed Garrison on November 2, after  the
police discovered that Garrison had done business with Clinton on
the day of his death.  Garrison was given full Miranda2 warnings,
and  Garrison denied any involvement in the homicide.   Detective
Krohn contacted Garrison a second time on November 4 at Garrisons
residence.  Krohn did not give Garrison Miranda warnings at  this
second  interview;  Garrison  again  denied  involvement  in  the
homicide.   On  November 7, Garrison retained an  attorney,  Chad
          On  December  11, the detectives contacted Garrison  to
arrange for another interview; Garrison agreed.  On December  12,
Garrison  met Detectives Krohn and Timothy Landeis but  told  the
detectives  that  Holt advised him not to talk with  the  police.
This was the first time the detectives learned that Garrison  had
          retained an attorney.
          Sometime later, Detective Landeis called Holt and  left
a  message  with  specific questions he wanted to  ask  Garrison.
Holt  returned the call, leaving a message for Detective  Landeis
indicating that Garrison would not make any statements.
          In  January  2001, the police recovered a handgun  that
had  been pawned by Garrisons sister.  The police suspected  that
this gun might have been used to shoot Clinton.  They had the gun
tested.  The testing showed that it was possible that the gun was
the murder weapon, but the testing was not conclusive.
          On   January   18,  2001,  Krohn  and  Detective   Nick
Vanderveur went to Garrisons house  and were let in by his  wife.
The detectives did not give Garrison a Miranda warning before the
interview  started.  The detectives told Garrison about  the  gun
they  retrieved from a pawnshop that his sister had  pawned,  and
they  told Garrison they had tested the gun (without telling  him
that the testing was not conclusive).
          Garrison  claimed that he had sold the gun  to  Clinton
the day before Clinton was killed.  Garrison said that he went to
Clintons  office on November 1, discovered that he was dead,  saw
the gun lying near Clintons body, and took the gun in a panic and
left.  Garrison explained that he took the gun because he was  on
probation and did not want the gun linked to him.  Garrison again
denied killing Clinton.
          The  detectives told Garrison where they  were  in  the
investigation.   They informed Garrison that they  would  present
the  case  they  had  to  the district attorney,  and  they  told
Garrison  that  the  evidence  appeared  to  support  a  case  of
intentional murder,  unless Garrison had something more he wanted
to  share with them.   Detective Krohn told Garrison:  [If] [y]ou
dont talk to us, you dont tell us the story[, then] we have [just
the]  one story.  And we go straight to the DA with it, Detective
Vanderveur  added.  Detective Vanderveur then told  Garrison  ...
were out on a limb ... we dont always ... do this for people.
          The  detectives asked Garrison if he would agree  to  a
polygraph examination.  Garrison agreed and drove himself to  the
police  station.   Before the examination,  Garrison  waived  his
Miranda  rights.   After the polygraph, Garrison was  interviewed
again by Detectives Krohn and Landeis and then left the station.
          The  grand  jury  indicted Garrison on July  13,  2001,
charging  him with two counts of tampering with physical evidence
and  one  count of felon in possession of a firearm, first-degree
murder,  first-degree  robbery, first-degree  theft,  and  first-
degree vehicle theft.  Garrison moved to suppress his January 18,
2001  statements, arguing he was in custody on  January  18  and,
therefore,  should have been given a Miranda  warning.   He  also
argued  that his statements on January 18 were involuntary  under
the  Fifth  Amendment  and,  because his  right  to  counsel  had
attached and been violated, were taken in violation of the  Sixth
          Superior  Court  Judge  Michael  L.  Wolverton  granted
Garrisons motion. Judge Wolverton found that Garrison was not  in
custody  at  any point on January 18, 2001.  Nevertheless,  Judge
Wolverton found that Detective Landeis knew Garrison had retained
Holt  as his attorney and knew that Holt advised Garrison not  to
talk to police. Judge Wolverton further found that the detectives
threatened Garrison with harsher punishment if he did not talk to
them,  thereby  making his admissions of tampering with  evidence
and  illegal  possession  of  the  gun  involuntary.   The  State
petitioned for review of Judge Wolvertons ruling on the motion to
suppress, and we granted review.
          Because  adversary criminal proceedings had  not  begun
          when Garrison admitted his criminal activity, Garrisons
          Sixth Amendment right to counsel had not attached
          The State argues that the superior court erred when  it
concluded  that  Garrisons Sixth Amendment right to  counsel  was
violated  on January 18.  The State points out that in  Thiel  v.
State,3  we  ruled  that  the right to counsel  under  the  Sixth
Amendment  attaches  only  upon  the  commencement  of  adversary
criminal  proceedings and not during purely investigative  stages
of a case.4  The State asserts that adversary proceedings did not
commence until July 13, 2001, the day Garrison was first formally
charged by grand jury indictment.  Accordingly, the State  argues
that  Garrisons right to counsel had not yet attached on  January
18,  2001.   In  addition,  the State  argues  that  the  polices
knowledge  that  Garrison had a lawyer and the  lawyer  told  the
police  that  Garrison  did not wish to talk,  did  not  bar  the
detectives  from contacting and interviewing Garrison on  January
          Garrison  argues his right to counsel had  attached  at
the January 18 interview.  He maintains that his right to counsel
is  also  guaranteed under article I, section 11  of  the  Alaska
Constitution,   which  provides,  in  part,   In   all   criminal
prosecutions, the accused shall have the right ...  to  have  the
assistance of counsel for his defense.
          Garrison argues that Alaska case law suggests that  the
right  to  counsel  attaches not only when adversary  proceedings
begin  but  also  when police actively interfere  or  impair  [an
existing] attorney-client relationship.
          In  Thiel,  we held that article I, section 11  of  the
Alaska  Constitution  mirrored the Sixth Amendment  of  the  U.S.
Constitution  in  providing a right to counsel only  in  criminal
proceedings   where  there  is  commencement   of   a   specified
adversarial proceeding that trigger[s] the right to counsel.5  We
acknowledged that the scope of Alaskas constitutional  protection
had enlarged beyond the federal minimum, but we did not find that
the  need  for some form of adversary proceeding can be dispensed
with altogether or that Alaskas right to counsel attaches in  the
abstract  to  all attorney-client relationships.6  In  Thiel,  we
relied  on Loveless v. State,7 a case in which the Alaska Supreme
Court  held  that  the  right to counsel  has  been  extended  to
investigatory proceedings but only when conducted in an adversary
          Garrison asks this court to extend the right to counsel
to  situations where police interfere with an existing  attorney-
client  relationship, even when no adversary proceeding  has  yet
commenced.  For support, Garrison cites Blue v. State,9 Thiel  v.
          State, and Carr v. State,10 three cases that dealt with the right
to counsel under the Alaska Constitution.
          In  Blue, the Alaska Supreme Court held that a  suspect
who  is in custody is entitled to have counsel present at a  pre-
indictment  lineup  unless exigent circumstances  exist  so  that
providing  counsel  would  unduly interfere  with  a  prompt  and
purposeful investigation.11  Blue is not directly controlling here
because,  unlike the defendant in Blue who was in custody  during
the  police interview, Judge Wolverton found Garrison was not  in
custody during the January 18 interview at his home.
          Our  remarks  in  Thiel and Carr might  be  subject  to
broader  interpretation.  In Thiel, we  declined  to  extend  the
right to counsel under the Alaska Constitution to instances where
adversarial  proceedings  had not begun  but  noted  that  police
conduct   involving  ... actual interference [with  an  attorney-
client   relationship]  might  well  raise  serious   issues   of
fundamental fairness ... .12  And in Carr, we announced that  the
right  to  counsel  may  be  offended before  formal  charges  in
situations  where  the  attorney-client  relationship  has   been
          Objectively, the transcripts of the interviews  do  not
show  that  the  detectives  actively discouraged  Garrison  from
contacting Holt.  The police even reminded Garrison of his  right
to  an  attorney  and  suggested that the attorney  would  likely
repeat  the advice not to discuss the case with the police.   The
record   does  not  support  a  conclusion  that  the  detectives
improperly     interfered    with    Garrisons    attorney-client
          We  are not limited by the scope of the Sixth Amendment
when  we  construe the right-to-counsel provision of  the  Alaska
Constitution.14   But  in Thiel, a case that parallels  Garrisons
situation,  we concluded that right to counsel under  article  I,
section  11 of the Alaska Constitution was coextensive  with  the
right under the Sixth Amendment.15
          Finally,  Garrison  urges this court  to  uphold  Judge
Wolverton  by  applying  the holding of the  New  York  Court  of
Appeals in People v. Skinner16 to the facts of this case.  Skinner
announced a rule of law that, where a defendant is known to  have
invoked the right to and obtained the services of counsel on  the
matter  about which the person is questioned, the State  may  not
use  statements  elicited from that person in the  absence  of  a
waiver of counsel made in the presence of the attorney.17
          In  Skinner,  the  defendant retained an  attorney  who
instructed  police  not  to  question the  defendant  unless  the
attorney was present.18  Almost two years later, police contacted
the  defendant and, after reading him Miranda warnings, conducted
an  interview  in which the defendant made damaging admissions.19
Even  though  no  formal proceedings against  the  defendant  had
commenced,  the  New  York  Court  of  Appeals  found  that   the
defendants  right to counsel under the New York Constitution  was
          In  retaining  an  attorney specifically  in
          response    to   repeated   police-initiated
          contacts,   [the]  defendant   unequivocally
          indicated  that  he felt himself  unable  to
          deal  with  the  authorities  without  legal
          assistance.   In  a  real  sense,   he   had
          activated   his  constitutional   right   to
          interpose  an attorney between  himself  and
          the  overwhelming power of  the  State.  ...
          That  right  is  rendered  illusory  if  the
          States  agents are permitted to  subject  an
          individual   represented   by   counsel   to
          questioning in a noncustodial setting.   The
          effects  of a waiver of counsel are no  less
          real in that setting; waiver of the right to
          counsel  once  invoked  should  be  no  less
          ineffective  than when made by a  person  in
The  holding  in  Skinner is based on New Yorks  Donovan-Arthur-
Hobson  rule, which prohibits virtually all police interrogation
once  a  defense  attorney is retained,  regardless  of  whether
judicial proceedings have commenced.22  In People v. Hobson,23 the
New  York  Court  of Appeals defended this approach  as  a  more
robust  constitutional protection against involuntary waiver  of
counsel,   stating  that  the  rule  breathes  life   into   the
requirement  that  a waiver of a constitutional  right  must  be
competent, intelligent and voluntary.24  Further, the court found
the  rule  served to protect the individual, often ignorant  and
uneducated,  and  always in fear, when faced with  the  coercive
police  power  of  the  State.25   Professor  Yale  Kamisar  has
observed,   however,   that  this  rule  actually   favors   the
professional  criminal,  as it is this individual  who  is  most
likely  to have already obtained counsel in advance of or during
a  police  investigation.26  Other jurisdictions that have  been
urged to follow Skinner have declined.27
          We  decline  to follow the approach of  the  New  York
Court  of  Appeals  in Skinner.  Instead, we  adhere  to  Thiel.
Because Garrison had not been formally charged with a crime,  we
conclude that Garrisons right to counsel under either the  Sixth
Amendment or the Alaska Constitution had not attached  when  the
police  interviewed him on January 18.  Therefore, the  superior
court  erred  when  it concluded that the police  interviews  on
January 18 violated Garrisons right to counsel either under  the
Sixth   Amendment  or  article  I,  section  11  of  the  Alaska
          Because   Garrison  was  not  subjected  to  custodial
          interrogation  on January 18 at his  home,  his  Fifth
          Amendment right to counsel was not violated
          Garrison argues that he made an equivocal reference to
an  attorney during the January 18 interview at his home when he
said the attorney freaks me out more than you do.  All I did was
get  advice  ...  .  Garrison asserts that, at that  point,  the
detectives   were  required  to  narrow  the  scope   of   their
questioning to ascertaining whether or not Garrison was  evoking
his rights.
          The State argues that Garrisons right to counsel under
          the Fifth Amendment was not violated because he was not in
custody  when he was questioned and, therefore, was not entitled
to the protections required by Miranda.
          In Eben v. State,28 the Alaska Supreme Court announced
that  [b]oth custody and interrogation must be involved  in  the
procurement  of  an  inculpatory statement  by  law  enforcement
officials  before  the  standards  enunciated  in  Miranda   are
          Judge Wolverton found that Garrison was not in custody
at  any  time  on  January 18.  Garrison does not  dispute  this
finding  with  regards to the interview conducted in  his  home.
Because  Garrison  was  not  in  custody  at  the  time  he  was
interviewed  in  his home, under Eben, he was not  subjected  to
custodial  interrogation.  Therefore, his Fifth Amendment  right
to counsel, under Miranda, was not violated.30
          In Alaska, police have a duty in some circumstances to
narrow  questioning to determine whether a suspect  is  invoking
Fifth Amendment rights.31  But this duty applies when the police
subject  a  suspect  to  custodial interrogation,  and  we  have
already  noted that Judge Wolverton found that Garrison was  not
in custody.32
          To the extent that Garrison argues that the police had
to  stop  and clarify  Garrisons reference to an attorney,  that
argument  has no merit because Garrison was not in custody,  and
the requirement, under Edwards v. Arizona,33 that the police stop
an  interview  when a defendant makes an equivocal  request  for
counsel applies to custodial interrogations.34
          Police are bound by the restrictions placed on them by
the  Fifth  Amendment guarantee against self-incrimination  when
they  conduct  a custodial interrogation.  Because Garrison  was
not  in custody during the interview in his home and, therefore,
not  subject  to  a custodial interrogation, the superior  court
erred  to  the  extent it found that Garrisons  Fifth  Amendment
privilege against self-incrimination was violated.

          The  superior court erred in finding that  the  police
          threatened harsher treatment if Garrison did not speak
          to them about the crime
          The  voluntary  nature  of a  confession  is  a  mixed
question  of fact and law.35  In Beavers v. State,36 the  Alaska
Supreme Court outlined a three-part inquiry for ascertaining the
voluntariness of a confession:  the appellate court will  review
the    trial    courts   findings   regarding   the    external,
phenomenological  facts  surrounding the  confession  for  clear
error  and then will determine independently the accuseds mental
state  and the legal significance of that mental state after  an
examination  of  the  entire record  and  the  totality  of  the
circumstances surrounding the confession.37
          In  his  motion to suppress, Garrison argued that  the
detectives  induced statements from him during  the  January  18
interview  at  his  home  with  offers  of  leniency,  promising
Garrison he would not be arrested that day regardless of what he
told  the  detectives.   In  addition,  Garrison  asserts,   the
          detectives implied Garrison should say he accidentally shot
Clinton as the detectives thought the D.A. would understand that
...  and  that it would be hard to sell the D.A. the story  that
Garrison  was not involved in Clintons murder.  Garrison  points
out  that  the detectives used phrases such as  please  tell  me
now.   Dont  make me come back later because if I have  to  come
back later ... and  Please dont make me prove this [because]  if
they make me prove this its gonna turn out a whole lot different
than  probably  what it really was or what  you  think  it  was.
Garrison  further  notes that Detective Krohn testified  at  the
suppression  hearing  that the detectives  were  trying  to  get
Garrison to talk by telling him it would be worse for him if  he
did not.
          Garrison   argues   that,  because   his   inculpatory
statements were made in response to these statements, they  were
presumptively involuntary and should be suppressed.   The  State
argues  that nothing in the detectives statements that  Garrison
relies  on  suggests Garrison would receive any  punishment  for
refusing to talk to the detectives.
          In   Beavers,  the  Alaska  Supreme  Court  held  that
[t]hreat-induced confessions should be considered  presumptively
involuntary  absent evidence affirmatively indicating  that  the
suspects will was not overcome by the threats.38  The police told
Beavers   that  he  might  be  hammered   subjected  to  harsher
treatment  during a non-custodial interview after which  Beavers
confessed  to participation in a robbery.39  The court concluded
that Beavers confession was involuntary because the interviewing
troopers  threat  that he would be hammered if he  attempted  to
hide  his  involvement in the robberies conveyed an unmistakable
message  that  Beavers  would  be punished  for  exercising  his
constitutional right to silence.40
          Here, Judge Wolverton found, relying on Beavers,  that
Garrisons admission that he moved the gun from the murder  scene
was  presumptively  involuntary because of  threats  of  harsher
treatment made by the detectives.  Judge Wolverton ruled on  the
motion  to  suppress from the bench and did  not  specify  which
statements by the detectives he based his decision on.
          An  examination  of the record shows  that  there  are
numerous  instances  during the January 18 interview  where  the
detectives  seemingly  took  a confrontational  tone.   For  the
purposes  of  determining  whether  Garrisons  admissions   were
involuntary,  however, the relevant statements to  consider  are
those  the  detectives  made before Garrison  admitted  that  he
removed the handgun from the scene of the homicide.41
          All of the detectives statements Garrison referred  to
in the superior court and in this court were made after Garrison
already  admitted  that  he took the handgun.   A  finding  that
police  threats  provoked  an involuntary  confession  logically
requires  a  finding that the threats preceded  the  confession.
Because Garrisons admissions occurred before the detectives made
the  statements Garrison identifies as threatening, the superior
court erred in finding Garrisons statements were involuntary.
          While  Detective  Krohn testified at  the  evidentiary
hearing  that  he  hoped to sway Garrison  to  talk  during  the
          January 18 interview, we review the objective events that occur
in  the  interview.  An officers subjective aims do not  control
our   analysis.    Before  Garrisons  initial  admissions,   the
detectives  had  only asked Garrison whether his  family  should
leave  the room for the interview and told Garrison the  results
of  their continued investigation, including the fact that  they
had recovered a handgun pawned by his sister and subjected it to
testing.  Detective Krohn said And I  what Im asking you  is  to
tell  me what happened so that I can tell the district attorney.
Otherwise,  it  looks  like  plain-out  murder.   Garrison  then
reaffirmed  that  he was not involved in Clintons  homicide  but
said  that  he  discovered Clintons body and took the  gun  that
Garrison had sold him earlier.  He claimed that he took the  gun
because he was on probation and did not want to be tied  to  the
gun.  From our review of the circumstances of the interview,  we
conclude that none of the detectives statements before Garrisons
admissions  constituted  threats  of  harsher  treatment   under
Beavers.  The detectives explained to Garrison that the evidence
they  had developed suggested that the homicide appeared  to  be
murder  and  that,  absent  some  mitigating  information   from
Garrison, they would present the existing evidence they  had  to
the  district  attorney.  These statements do not  suggest  that
Garrison  would  be subjected to harsher than  normal  treatment
unless  he admitted his involvement in the homicide.42   Rather,
the  detectives offered Garrison a chance to provide  additional
information  that might tend to exculpate him  or  mitigate  his
          We  next  consider Garrisons claim that the detectives
statements  later  in  the interview were  threatening.   Viewed
objectively, the statements do not tell Garrison that  he  would
receive  harsher  treatment unless he  admitted  involvement  in
Clintons homicide.  Viewed in isolation, one of Detective Krohns
statements,  made  very close to the end  of  the  interview  at
Garrisons  home,  could be described, arguably, as  threatening:
Please  dont make me prove this [because] if they make me  prove
this its gonna turn out a whole lot different than probably what
it  really was or what you think it was.  Now damn it,  if  this
was  an accident tell us now.  Dont let me find out later it was
murder for the money.  But Krohn did not explicitly threaten any
harsher  treatment  for  Garrison  if  Garrison  did  not  admit
involvement in the homicide.  And, viewed in the context of  the
detectives  other statements, it is a repetition, admittedly  in
stronger  language,  of the detectives assertion  that  Garrison
might  be better served if he advanced exculpatory or mitigating
information  sooner.   Viewing  the  interviews  on   the   18th
collectively, we conclude that the detectives statements are not
threats under Beavers.
          The  State next argues that Garrisons statements  were
improperly suppressed because Garrisons will was not overborne.43
The  State  asserts that Garrisons unwavering adherence  to  his
story  effectively  rebuts  any  presumption  of  coercion   and
establishes that the detectives did not overbear his free  will.
The  State  argues  that  Garrison was merely  engag[ing]  in  a
calculated  effort to assuage police suspicions and to  make  it
          appear that he was reluctantly but honestly cooperating with
their investigative efforts.44
          The   determination   of  whether   a   statement   is
involuntary rests in large measure on the subjective  effect  of
the  police conduct on the suspects will.45  Statements  may  be
deemed  involuntary  if officers, through threats,  undermine  a
suspects  will  to  resist and elicit a  confession  that  would
otherwise  not  be freely given.46  In Edwards v.  State,47  the
suspect   argued  his  statement  to  officers  was  involuntary
because the police officers threatened him with immediate arrest
on  a  murder charge if he failed to talk to them.48   We  found
that,  despite the threat, the statements were not  involuntary:
The  main impediment to such a finding [that the statements were
involuntary] is that Edwards, despite police pressure  to  talk,
said nothing to directly inculpate himself in [the crime].49  The
holding  in Edwards was affirmed in Malloy v. State,50 where  we
again  found  the  suspects  statement  was  voluntary,  despite
officer  threats, primarily because the suspect said nothing  to
directly inculpate herself.51
          Nevertheless, Judge Wolverton ruled that Garrison  did
make  inculpatory  statements:  Im further persuaded  ...  that,
contrary to Edwards and Malloy, the ultimate result was that Mr.
Garrison  admitted two felonies: [evidence] tampering and  felon
in  possession.  But Garrison consistently denied  that  he  was
responsible  for Clintons death  the focus of the  investigation
and   the  interviews.   Even  though  his  statements  directly
inculpated  him in the offenses of tampering with  evidence  and
felon  in  possession  of  a concealable  firearm,  the  obvious
purpose of these statements was to explain how Garrisons  sister
came  to  be  in  possession of the gun in a way  that  did  not
implicate Garrison in Clintons death.
            As we noted above, Garrisons admissions preceded any
statements  identified by Garrison as coercive or threatening.52
The   timing  of  Garrisons  admissions,  before  any   arguably
threatening  or coercive statements were made by the detectives,
and the exculpatory nature of the admissions with respect to the
homicide,  establishes that Garrisons will was not overborne.53
          The  superior  court  erred in ruling  that  Garrisons
statements were involuntary.

          Garrisons  claim  that he was in  custody  during  the
          interviews at the police station
          At the suppression hearing, Judge Wolverton found that
Garrison  was  not in custody at any time on January  18,  2001.
Garrison  challenges this finding as to the  interviews  at  the
Anchorage Police Department that followed the interview  at  his
          But  this  contention appears to be moot  because  the
police  advised  Garrison of his Miranda rights  at  the  police
station before the polygraph examination.  The record shows that
Garrison  said  that he understood his rights,  and  with  those
rights in mind, he waived his rights and agreed to talk with the
police.   Even  if Judge Wolverton erred when he concluded  that
Garrison was not in custody, (and we are not convinced that this
          conclusion is erroneous) the police advised Garrison of his
Miranda rights at the police station, and Garrison waived  those

          We   REVERSE   the  superior  courts  order   granting
Garrisons motion to suppress his statements.  We remand the case
to the superior court for further proceedings on the indictment.
  1   AS   11.61.200(a)(1);   AS  11.56.610(a)(1)   &   (4);   AS
11.41.100(a)(1);   AS   11.41.500(a)(1);   AS    11.46.120;    AS
11.46.360(a)(1), respectively.

  2  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.  Ed.
2d 694 (1966).

  3 762 P.2d 478 (Alaska App. 1988).

  4 Id. at 481.

  5  Id.  at  482-83.  See also Eben v. State, 599 P.2d 700,  706
(Alaska  1979) (quoting Kirby v. Illinois, 406 U.S. 682, 689,  92
S.  Ct.  1877,  1882, 32 L. Ed. 2d 411, 417 (1972)) (Ebens  sixth
amendment  rights  were not implicated ... because  no  adversary
judicial  criminal proceedings whether by way of  formal  charge,
preliminary hearing, indictment, information, or arraignment  had
been initiated against him.).

  6  Thiel,  762 P.2d at 482 (citing Flores v. Flores,  598  P.2d
893 (Alaska 1979) (conferring the right to counsel to a parent in
a  child  custody case when the other parent was  represented  by
state  counsel); Reynolds v. Kimmons, 569 P.2d 799 (Alaska  1977)
(conferring  the right to counsel to a defendant in  a  paternity
suit  when the plaintiff was represented by state counsel);  Blue
v. State, 558 P.2d 636 (Alaska 1977) (finding a defendant subject
to  a  pre-indictment  lineup while in custody  was  entitled  to
representation);  Otton v. Zaborac, 525 P.2d  537  (Alaska  1974)
(extending  the  right  to counsel to civil contempt  proceedings
involving  failure to make child support payments); Alexander  v.
Anchorage,  490 P.2d 910 (Alaska 1971) (extending  the  right  to
counsel to all criminal prosecutions involving the possibility of
incarceration);  Roberts v. State, 458  P.2d  340  (Alaska  1969)
(extending  the  right  to counsel to a prisoner  from  whom  the
police sought to obtain a post-indictment handwriting exemplar)).

  7 592 P.2d 1206 (Alaska 1979).

  8  Id.  at  1210  (citing Blue v. State, 558 P.2d  636  (Alaska
1977); Roberts v. State, 458 P.2d 340 (Alaska 1969)).

  9 558 P.2d 636 (Alaska 1977).

  10 840 P.2d 1000 (Alaska App. 1992).

  11 Blue, 558 P.2d at 642 (citations omitted).

  12 Thiel, 762 P.2d at 483.

  13 Carr, 840 P.2d at 1005.

  14  Blue, 558 P.2d at 641.  See also Roberts v. State, 458 P.2d
340, 342 (Alaska 1969) (We are not bound in expounding the Alaska
Constitutions  Declaration of Rights  by  the  decisions  of  the
United  States  Supreme  Court, past  or  future,  which  expound
identical  or  closely similar provisions of  the  United  States

  15 Thiel, 762 P.2d at 482.

  16 417 N.E.2d 501 (N.Y. 1980).

  17 Skinner, 417 N.E. 2d at 505.

  18 Id. at 502.

  19 Id.

  20 Id. at 503.

  21 Id. at 505.

  22  Yale  Kamisar,  Police Interrogations and  Confessions  213
(1980)  (citing  People v. Hobson, 348 N.E.2d  894  (N.Y.  1976);
People  v. Arthur, 239 N.E.2d 537 (N.Y. 1968); People v. Donovan,
193 N.E.2d 628 (N.Y. 1963)).

  23 348 N.E.2d 894 (N.Y. 1976).

  24 Id. at 898.

  25 Id.

  26 Kamisar, supra, at 221.

  27  See State v. Luton, 927 P.2d 844, 852 (Haw. 1996); State v.
Scarborough, 470 A.2d 909, 914 (N.H. 1983); State v.  Smart,  622
A.2d  1197, 1213 (N.H. 1993); Lara v. State, 740 S.W.2d 823,  835
(Tex. App. 1987).

  28 599 P.2d 700 (Alaska 1979).

  29 Id. at 707 (emphasis in the original).

  30 See id.

  31  See Hampel v. State, 706 P.2d 1173, 1180 (Alaska App. 1985)
(Whenever even an equivocal request for an attorney is made by  a
suspect  during  custodial  interrogation,  the  scope  of   that
interrogation  is  immediately narrowed to  ...  clarifying  that
request until it is clarified.)  (emphasis in the original).  See
also  Giacomazzi  v.  State,  633 P.2d  218,  222  (Alaska  1981)
(finding  that  officers may clarify whether  a  statement  is  a
request  for  counsel  or an invocation of the  right  to  remain
silent); Davis v. U.S., 512 U.S. 452, 459, 114 S. Ct. 2350, 2355,
129  L.  Ed. 2d 362 (1994) (finding officers are not required  to
cease  questioning  immediately upon an  ambiguous  or  equivocal
reference to an attorney).

  32 See Hampel, 706 P.2d at 1180.

  33 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981).

  34 Id. at 484-85, 101 S. Ct. at 1884-85.

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

  36 998 P.2d 1040 (Alaska 2000).

  37 Id. at 1044.

  38 Id. at 1048.

  39 Id. at 1042.

  40 Id. at 1048.

  41  See id. at 1046 (finding confessions resulting from threats
are presumptively involuntary).

  42 See id.

  43  See id. 998 P.2d at 1048 (Threat-induced confessions should
be   considered   presumptively   involuntary   absent   evidence
affirmatively indicating that the suspects will was not  overcome
by the threats.).

  44 Edwards v. State, 842 P.2d 1281, 1285 (Alaska App. 1992).

  45 Id. at 1285.

  46  Malloy  v.  State,  1 P.3d 1266, 1276 (Alaska  App.  2000);
Edwards, 842 P.2d at 1285.

  47 842 P.2d 1281 (Alaska App. 1992).

  48 Id. at 1285.

  49 Id.

  50 1 P.3d 1266 (Alaska App. 2000).

  51 Id. at 1276.

  52  See  id. (Statements are involuntary if the police, through
promises  or  threats, undermine a suspects will  to  resist  and
elicit a confession that is not freely given.).

  53 See Beavers, 998 P.2d at 1048.

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