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Slwooko v. State (7/21/2006) ap-2055

Slwooko v. State (7/21/2006) ap-2055

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

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


BERNICE SLWOOKO, )
) Court of Appeals No. A-8747
Appellant, ) Trial Court No. 2NO-02-605 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2055 July 21, 2006
)
          Appeal  from the Superior Court, Second  Judi
          cial District, Nome, Ben J. Esch, Judge.

          Appearances:    Michael  R.  Smith,   Boston,
          Massachusetts, for the Appellant.   Nancy  R.
          Simel, Assistant Attorney General, Office  of
          Special  Prosecutions and Appeals, Anchorage,
          and   David  W.  M rquez,  Attorney  General,
          Juneau, for the Appellee.

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

          MANNHEIMER, Judge.
          COATS, Chief Judge, dissenting.

          Bernice  Slwooko  appeals her  conviction  for  second-
degree  murder.  At Slwookos trial, the State introduced evidence
of Slwookos self-incriminatory statements to the police.  In this
appeal,  Slwooko  argues  that her statements  should  have  been
suppressed;  Slwooko  contends  that  the  police  obtained   the
statements in violation of her rights under Miranda v. Arizona.1
          In  our  previous  decision in this  case,  Slwooko  v.
State,  Alaska Memorandum Opinion No. 5003 (August 31, 2005),  we
          remanded this case to the superior court for additional findings
on  two  questions:   (1)  was Slwooko  in  custody  for  Miranda
purposes  when she made the self-incriminatory statements?   and,
if  so,  (2)  did  Slwooko  waive her rights  before  making  the
statements?
          We  have now received the superior courts findings, and
the  parties  have filed supplemental memoranda  in  response  to
those findings.
          The  superior court concluded that Slwooko was  not  in
custody when she arrived at the police station and began to speak
to  the  police.  However, the superior court concluded that  the
interview became custodial when the police officers continued  to
interview Slwooko even after she stated that she did not wish  to
answer the officers questions.
          For  the  reasons explained in this opinion,  we  agree
with  the superior courts first conclusion (that Slwooko was  not
in  custody  when the interview commenced), but we disagree  with
the  superior courts second conclusion (that the interview became
custodial  after Slwooko stated that she did not wish  to  answer
questions).  Instead, we conclude that the interview remained non-
custodial  until  after  Slwooko  confessed  and  described   her
participation in the homicide.
          Slwooko  also  claims  that,  during  her  trial,   the
prosecutor  violated  Alaska Evidence  Rule  613  by  introducing
evidence  of  a  defense  witnesss prior inconsistent  statements
without  first confronting the witness with those statements  and
giving  him  a  chance to deny or explain the  prior  statements.
This  claim  is  baseless; the record shows that  the  prosecutor
complied with Evidence Rule 613.
          For these reasons, we affirm Slwookos conviction.

     Underlying facts
     
               Here  is  a summary of the facts, taken  from
     our previous opinion:
               Bernice Slwooko and Jacob Anagick met in Nome
     in  early  August,  2002, and they became  romantically
     involved.  Slwooko and Anagick stayed, off and on, with
     the victim, Jimmy Jack.
               On   the  mid-morning  of  August  18,  2002,
     Anagick  walked  into  the  Nome  police  station   and
     reported  that he had murdered Jack.  Anagick told  the
     police  that he and Jack started fighting and that  the
     altercation escalated until, ultimately, Anagick killed
     Jack by striking him in the head with an axe.
               Officer Jens Noet placed Anagick under arrest
     and  then  left  for  Jacks  residence.   When  no  one
     answered his knock, Noet pried open the door and  found
     Jack dead on the living room floor.  An axe was leaning
     against  the  kitchen  table.  Noet  examined  the  axe
     handle  and concluded that someone had wiped the handle
     after  the homicide  because the handle was covered  in
     blood  up  to  a certain point and then was  completely
     clean.
          Noet  returned  to  the  police  station   to
interview  Anagick more fully. Anagick reiterated  that
he  had killed Jack by striking him two or three  times
with  the  axe.   When Officer Noet  asked  Anagick  if
anyone  else had been in the house at the time, Anagick
stated  that  he  was all alone with  Jimmy,  and  that
nobody  else was there.  Then Anagick made a  statement
that  Noet  thought was strange:  Anagick declared,  If
you check the axe for fingerprints, [mine] ... will  be
the  only fingerprints ... on the axe. This volunteered
information   about  the  absence   of   anyone   elses
fingerprints struck Officer Noet as an odd statement to
make.
          A  little later that same day, a woman  named
Pauline Brown telephoned the police to tell them  about
an  encounter she had had with Bernice Slwooko.   Brown
told  the  police  that  she  had  encountered  Slwooko
earlier  that  day and that, during their conversation,
Slwooko told Brown that she had murdered Jimmy Jack the
night  before.  Slwooko also told Brown  that  she  had
needed to change out of her clothes and her shoes,  and
to get rid of them, because they were bloody.
          Armed  with this new information, Nome Police
Officer Daniel Bennett re-interviewed Anagick about the
homicide.   Anagick again recounted how he  had  fought
with Jack and how he had struck him in the head several
times  with the axe.  Bennett then asked Anagick if  he
had  spoken to anyone about the homicide.  When Anagick
declared that he had told no one, Bennett remarked that
Bernice  Slwooko seems to know quite a bit about  this.
Bennett  then asked Anagick if Slwooko had been present
during  the homicide.  Anagick first said no.  Then  he
said yes.  Then Anagick whispered, What the hell is she
doing?
          After  hearing  Anagicks  responses,  Bennett
decided  to speak with Pauline Brown.  Brown  confirmed
her earlier report about her conversation with Slwooko,
in  which  Slwooko  confessed her  involvement  in  the
homicide.
          The   police   began  looking  for   Slwooko.
Sometime  after  4:30 p.m., Bennett  spotted  a  crying
woman  in the company of two men in front of the  Polar
Arms   Motel.   Bennett  approached  this   woman   and
discovered that she was Bernice Slwooko.  According  to
Bennett,   Slwooko  was  very  distraught  and   drunk.
Slwooko told Bennett, I need to talk to you.
          When Bennett asked Slwooko if she was willing
to  get  into his patrol car and accompany him  to  the
station,  Slwooko agreed.  Bennett also asked  the  two
men  to  join them.  The men got into the back  of  the
patrol  car,  while  Slwooko took the  front  passenger
seat.  Slwooko got into the patrol car unassisted,  and
she was not restrained in any way.
          When  they  arrived  at the  police  station,
Slwooko was initially hesitant to go into the building,
and  Bennett  had to encourage Slwooko to come  in  and
talk to him:
     
          Officer Bennett:  [O]nce we got  to  the
     police station, ... there was a little bit of
     hesitation  for her to go inside  the  police
     department,  and I encouraged her.   I  said,
     Its  real  important [and] we need  to  talk.
     And I said, Please, Bernice, come and talk to
     me.   And [then] she walked in[to] the police
     station.
     
     Under   cross-examination,  Bennett  admitted
     that  he may have placed his hand on Slwookos
     arm  or  back to guide her into the building.
     Bennett testified that this entire episode of
     hesitation lasted about ten seconds.
               Once  inside  the station,  Bennett
     led  Slwooko  to  the back office  which  was
     normally  used  by the chief of  police,  and
     which  was  also  used as an interview  room.
     According to Bennett, Slwooko never expressed
     any  unwillingness to go into this  interview
     room.
               In   the  meantime,  Officer   Noet
     briefly   questioned   Slwookos   two    male
     companions and then told them that they could
     go.    Noet  then  joined  Bennett   in   the
     interview  room  with  Slwooko.   During  the
     ensuing  interview, Slwooko  made  the  self-
     incriminatory statements that are the subject
     of this appeal.
     
Details of the interview

          At  the  evidentiary hearing  in  this  case,
Officer Bennett testified that when he conducted a non-
custodial  interview at the police  station,  he  would
normally  confirm  that the person was  at  the  police
station  voluntarily, and that the person was  free  to
leave  or to stop the conversation anytime they wanted.
Bennett further testified that he would normally assure
the  person  that, no matter what they said during  the
interview, they would not be arrested.
          However, because of the information that  the
police  had  received from Pauline Brown,  Bennett  had
already decided that he was going to arrest Slwooko  if
Slwooko  confirmed  her involvement  in  the  homicide.
Accordingly,  Bennett  decided  that  he  should  issue
Miranda warnings to Slwooko.2
          The  following  is  a  transcription  of  the
pertinent portion of the interview:
     
          Officer Bennett:  Bernice, right now  Im
     gonna  since youre in the police department I
     want  to  ask you some questions, okay?   ...
          And I want you to understand your rights,
     okay?   You have the right to remain  silent.
     Anything you say can and will be used against
     you in a court of law.  You have the right to
     an  attorney.  If you cannot afford one,  one
     will  be appointed to you by the courts.   Do
     you  understand your rights?  (Pause)3  Would
     you like to answer some questions for me?
     
     Slwooko:  No.

     Bennett:  No?  Okay.

     Noet:   [To  Bennett]  Did you  ask  her
anything already?

     Bennett:  No, I havent asked ...

     Slwooko:  Yeah, well ...

     Bennett:  ... her nothing.

     Slwooko:   ...  I want to be  why  am  I
being arrested?

     Bennett:  Youre not being arrested.   Im
sorry,  I didnt  I didnt want to arrest  you.
But since youre in the police station, I have
to read you your rights, just because ...

     Noet:  (indiscernible) ...

     Bennett:    ...  youre  in  the   police
station.

     Noet:  ... talk to anybody.

     Bennett:  You know, ...

     Noet:   We,  we just want  to  know   we
would  like  to know what happened  at  Jimmy
Jacks.

     Slwooko:  I really dont know.

     Noet:  What ...

     Bennett:  Okay.

     Noet:    Well,   Jacob   [Anagick]   was
arrested  for hurting Jimmy Jack,  and  Jacob
says that you helped him hurt Jimmy Jack.

     Bennett:  Well, not exactly.  But ...  I
just got done talking to Jacob, okay?  And he
     said that I needed to come and talk to you.
So  [do]  you want to tell me what  happened?
Okay?

     Slwooko:  Exactly?

     Bennett:  Exactly.

     Slwooko:   Ill tell you this.   We  were
going  over  to pick up my box.  Im  the  one
that  hit  him  with the  axe  while  he  was
putting  his head down.  Exactly  twice,  and
...

     Bennett:  Its okay.  Take your time.

     Slwooko:  The third time, he decided  to
do  it, you know.  And I said, No, Ill do it.
And I  I (indiscernible).

     Bennett:  Okay.

     Slwooko:  Really sorry (indiscernible).

          Slwooko  then proceeded to  explain
how  the  homicide occurred.   She  told  the
police  that  Anagick wrestled  Jack  to  the
ground, and then she hit Jack twice with  the
axe.    At   this  point,  Jack   was   still
breathing,  so Anagick struck  Jack  a  third
time  with  the  axe.   Then,  according   to
Slwooko,  she  took  up  the  axe  again  and
practically chopped [Jacks] head off.
          Slwooko  explained  that  she   and
Anagick  agreed that he (Anagick) would  take
all the blame for the homicide.
          At  this  point,  Noet  once  again
administered  Miranda  warnings  to  Slwooko.
Slwooko expressly waived her rights, and then
she  once more recounted the homicide.   This
time,  Slwooko explained how she  had  dumped
her   bloody  clothing  in  the  rocks   near
downtown  Nome, and then obtained a  room  at
the  Polar  Arms.  She also told  the  police
that  she  was still wearing the  same  shoes
that she had worn during the murder, and  she
even  pointed out some blood stains that  she
had  been  unable to wipe off.  Slwooko  then
accompanied  the officers to the place  where
she had hidden her clothing.

The superior courts supplemental findings on remand

     As  we  explained  at the beginning  of  this
opinion, we remanded Slwookos case to the superior
court  for  additional findings on two  questions:
(1)  was  Slwooko in custody for Miranda  purposes
when  she  made her self-incriminatory statements?
and,  if  so,  (2)  did Slwooko waive  her  rights
before making the statements?
     On  remand,  Superior Court  Judge  Ben  Esch
found  that,  even  though Officer  Bennett  asked
Slwooko  to  come  to  the police  station  to  be
interviewed,  and even though Bennett  transported
Slwooko  to the station in his patrol car, Slwooko
initiated this series of events by telling Officer
Bennett  that  she needed to talk to  him.   Judge
Esch  further found that Slwooko did not  evidence
any  unwillingness to accompany the officer to the
station.
     Judge  Esch  found that the interview  lasted
less  than thirty minutes, and that the two police
officers  who  interviewed  Slwooko  asked   their
questions  in  a  non-confrontational  and  polite
fashion,  without  any  threats  or  intimidation.
Although  the  door  to  the  interview  room  was
closed,  there  was no evidence  that  the  police
restrained Slwooko in any overt fashion.
          Based  on  these  circumstances,  Judge  Esch
concluded   that  a  reasonable  person   in   Slwookos
situation  would  have  felt  free  to  break  off  the
questioning.  Under our case law, this is equivalent to
a finding that Slwooko was not in custody.4
          But even though Judge Esch concluded that the
interview  was not custodial when it began,  the  judge
concluded  that  the interview became  custodial  later
when  Bennett  and Noet [decided] not to terminate  the
interview [after Slwooko] said that she did not wish to
talk  to  the officers.  According to Judge  Esch,  the
officers  decision  to  continue  talking  to   Slwooko
require[d]  [him]  to  conclude that,  at  that  point,
[Slwooko] was no longer free to go.
          The   parties   have  now   filed   memoranda
addressing  Judge Eschs findings.  Slwooko takes  issue
with Judge Eschs conclusion that she was not in custody
when  the interview began.  The State takes issue  with
Judge   Eschs  conclusion  that  the  interview  became
custodial when, after Slwooko stated that she  did  not
wish  to  answer questions, the officers  continued  to
interview her.

Was  Slwooko in custody for Miranda purposes  when  the
interview began?

          As explained above, Judge Esch concluded that
Slwooko was not in custody when she began her interview
with   the  police.   Judge  Esch  found  that  Slwooko
initiated the interview by telling Officer Bennett that
she needed to talk to him, and that Slwooko then agreed
to  travel with Bennett to the police station to  speak
          with the officers.
          A persons interview with police officers does
not  become  custodial simply because it  occurs  at  a
police station.  California v. Beheler, 463 U.S.  1121,
1125;  103  S.Ct. 3517, 3520; 77 L.Ed.2d  1275  (1983).
Rather,  the pertinent question is whether  the  person
being  interviewed is present at the station  of  their
own will.
          The  Alaska  Supreme Court  acknowledged  and
applied  this principle in Henry v. State, 621  P.2d  1
(Alaska 1980).  The defendant in Henry was a suspect in
a  burglary.   The police asked Henry to  come  to  the
station for an interview, and they transported  him  to
this  interview  in  a patrol car.  The  supreme  court
nevertheless  upheld  the trial  courts  decision  that
Henry had gone to the station of his own free will and,
based on this conclusion, the supreme court agreed that
the police had not been required to advise Henry of his
Miranda rights.  Henry, 621 P.2d at 2-4.
          In  Slwookos brief to this Court, she  points
out  that,  according  to Bennetts  testimony,  Slwooko
showed  some  hesitation  to enter  the  building,  and
Bennett  then encouraged her with words and,  possibly,
by  putting a hand on her arm or back.  Slwooko  argues
that  this hesitation, and Bennetts response, show that
Judge  Esch  was wrong when he concluded  that  Slwooko
entered the police station willingly.
          Slwookos subjective willingness to enter  the
building  is a question of fact, and we must  defer  to
Judge Eschs finding unless we are convinced that it  is
clearly   erroneous.5   Moreover,  we  must  view   the
evidence  pertaining to this issue in  the  light  most
favorable to upholding Judge Eschs decision.6
          One  could certainly argue, based on Slwookos
last-minute hesitancy to enter the police station, that
she  had changed her mind about wanting to talk to  the
police.   But this is only one possible inference  that
might   be  drawn  from  the  evidence.   Viewing   the
interaction  between Slwooko and Bennett  as  a  whole,
Judge  Esch  could  reasonably conclude  that,  despite
Slwookos  hesitation at the door to the police station,
Slwooko  did in fact still wish to speak to the police,
and  that she freely chose to go into the building  and
begin her interview with the officers.
          Slwooko  also  points  out  that,  after  she
entered  the  interview room, the officers  closed  the
door,  and  neither Officer Bennett  nor  Officer  Noet
explicitly  told Slwooko that she was  free  to  leave.
These  are  facts  that  might  support  a  finding  of
custody, but these facts are not determinative.  As our
supreme court explained in State v. Smith, 38 P.3d 1149
(Alaska 2002), the question of Miranda custody must  be
assessed by examining the totality of the circumstances
and  then  asking whether, given [these] circumstances,
...  a  reasonable person would have felt [that] he  or
          she was not at liberty to terminate the interrogation
and leave.  Id. at 1154.7  More precisely, the ultimate
inquiry  is  whether there was a formal arrest  or  [a]
restraint on [the persons] freedom of movement  of  the
degree associated with a formal arrest.  Id. at 1154.8
          Here,  Slwooko told Officer Bennett that  she
needed  to  speak  to  him,  and  she  then  agreed  to
accompany Bennett to the police station.  The fact that
Slwooko  initiated the contact with  the  police  is  a
factor  that  weighs  against  a  finding  of  custody.
Smith,  38 P.3d at 1155.  Likewise, the fact  that  the
interview  occurred in the middle  of  the  day  weighs
against   a  finding  of  custody.   Id.  at   1156-57.
Additionally,  the fact that the police expressly  told
Slwooko  that  she was not under arrest weighs  against
custody.  Id. at 1157.
          Regarding  the tone of the officers questions
to  Slwooko,  Judge Esch found that the officers  asked
their  questions  in a non-confrontational  and  polite
fashion,  without  any threats or  intimidation.   This
fact, too, weighs against a finding of custody.  Id. at
1157.
          It  is  true  that the door to the  interview
room  was closed while the officers questioned Slwooko.
However, the door was apparently not locked, for  Judge
Esch found that the police did not restrain Slwooko  in
any overt fashion.
          Judge  Esch  found  that  Slwooko  was  being
questioned because the police considered her a  suspect
in  the  homicide.   But the police officers  suspicion
that  Slwooko  was  involved in the homicide  does  not
affect the assessment of whether she was in custody for
Miranda    purposes,   unless   that   suspicion    was
communicated to Slwooko in a manner that would convince
a  reasonable  person in Slwookos  situation  that  the
police were not going to let her go.
          The  United  States Supreme  Court  addressed
this point in Stansbury v. California:
     
          We hold, not for the first time, that an
     officers  subjective  and  undisclosed   view
     concerning    whether   the   person    being
     interrogated  is a suspect is  irrelevant  to
     the assessment [of] whether the person is  in
     custody.
          .  .  .
     
          Our   decisions  make  clear  that   the
     initial  determination of custody depends  on
     the    objective   circumstances    of    the
     interrogation,  not on the  subjective  views
     harbored by either the interrogating officers
     or the person being questioned.
          .  .  .
     
          It  is  well settled ... that  a  police
     officers  subjective view that the individual
     under   questioning   is   a   suspect,    if
     undisclosed, does not bear upon the  question
     [of] whether the individual is in custody for
     purposes of Miranda.

511  U.S. 318, 319, 323, 324; 114 S.Ct. 1526,
1527,1529-1530; 128 L.Ed.2d 293 (1994).
          The   mere  fact  that  the  police
question a person about the persons potential
involvement in a crime does not,  by  itself,
suggest  that  the interview  was  custodial.
If,  however,  the questions are accusatorial
in tone, and if the questions are posed in  a
manner   suggesting  that  the  police   have
already   reached  a  conclusion  about   the
persons  guilt,  then  this  can  support   a
finding of custody.  Smith, 38 P.3d at  1158-
59.
          For  instance, in Motta  v.  State,
911  P.2d  34,  39 (Alaska App.  1996),  this
Court  held  that an initially  non-custodial
interview  later became custodial because  of
the   sharply   accusatory  nature   of   the
questioning  and  the fact  that  the  police
would  not  allow the suspect  to  leave  the
interview  room.   But  that  was   not   the
situation in Slwookos case.
          Judge  Esch found that the officers
employed   a  non-confrontational and  polite
tone  during  their interview  with  Slwooko.
The    closest    approach   to    accusatory
questioning occurred when Officer Noet  tried
to   encourage  Slwooko  to  talk  about  the
homicide  by telling her that her  boyfriend,
Jacob   Anagick,  had  said  that   she   was
involved.   But  Officer Bennett  immediately
interjected  that this was not exactly  true.
The real situation, Bennett told Slwooko, was
that  he  (Bennett) had just got done talking
to  Jacob,  and  that Jacob had  simply  told
Bennett  that he needed to come and  talk  to
[Slwooko].  Upon hearing this, Slwooko  began
describing  her role in the homicide.   Thus,
Slwookos  decision  to begin  confessing  her
role  in  the homicide was not a response  to
confrontational and accusatory questioning.
          The  fact that Slwooko was arrested
immediately  following  the  interview  is  a
factor  that weighs in favor of custody,  but
only   slightly.    As  the   supreme   court
explained  in  Smith,  events  following  the
interview carry only limited weight:

[Whether  a  suspect  is taken  into  custody
following the interview] cannot by itself  be
the determinative test for custody.  ...  [A]
court  must  determine whether the  defendant
was in custody when he made the incriminating
statements;   it is illogical  to  rest  that
judgment  primarily on something that  occurs
after the defendant has made the statements.

Smith, 38 P.3d at 1159.9
          Thus,  the  fact  that  the  police
arrest  a suspect following an interview  may
shed  light on otherwise ambiguous facets  of
the  police  officers  interaction  with  the
suspect.  But the fact that the police decide
to  arrest  a  person after  the  person  has
confessed  to a serious crime is, of  itself,
unremarkable.   And,  as Smith  explains,  it
would  be illogical to reason backward,  from
the  officers decision to arrest  the  person
following  their confession, to a  conclusion
that  the  person must have been  in  Miranda
custody when they gave the confession.
          When   we  consider  all   of   the
circumstances  of  Slwookos interaction  with
the  police, we independently reach the  same
conclusion as Judge Esch:  Slwooko was not in
custody   for  Miranda  purposes   when   the
interview began.  She was not subjected to  a
degree  of restraint associated with a formal
arrest,  and a reasonable person in  Slwookos
position  would have felt free  to  terminate
the interview and leave.

Did  the  interview become custodial when the  officers
continued  to interview Slwooko after she  stated  that
she did not want to answer any questions?

          Even   though   Judge  Esch  concluded   that
Slwookos  interview with the police was  not  custodial
when  it  began, the judge concluded that the interview
became custodial later  when Bennett and Noet [decided]
not  to  terminate the interview [after  Slwooko]  said
that  she did not wish to talk to the officers.   Judge
Esch  declared that the officers decision  to  continue
talking  to Slwooko require[d] [him] to conclude  that,
at that point, [Slwooko] was no longer free to go.
          As  we explained in the preceding section  of
this  opinion, the precise question to be  answered  is
not  whether  Slwooko  was free  to  go.   Rather,  the
question  is  whether a reasonable innocent  person  in
Slwookos  position would have believed that  they  were
free  to  go.   We therefore interpret  Judge  Esch  as
saying  that,  based on the officers decision  to  keep
talking to Slwooko even after she said that she did not
          wish to answer their questions, a reasonable innocent
person  in Slwookos position would have concluded  that
they were no longer at liberty to end the interview and
leave.
          Given our conclusion that Slwooko was not  in
custody at the beginning of the interview, the question
is  whether  anything  happened  during  the  interview
(before  Slwooko  began  to confess  her  role  in  the
homicide)  that would convince a reasonable  person  in
Slwookos position that things had changed, and that she
was now being detained by the police.
           There  is no dispute regarding the pertinent
facts  (i.e., the progress of the interview:  who  said
what,  and when).  Only a question of law remains.   We
exercise  our  independent judgement in  assessing  the
legal significance of these facts  i.e., whether, under
these   facts,  Slwooko  was  in  custody  for  Miranda
purposes.10
          To  perform this analysis, we return  to  the
transcription of the interview.
          The  interview  began  with  Officer  Bennett
telling  Slwooko  that  he  wanted  to  ask  her   some
questions,  and  then advising Slwooko of  her  Miranda
rights.   Courts  generally agree that  the  giving  of
Miranda  warnings  does  not  convert  a  non-custodial
interview into a custodial one (although it is a factor
that  a  court may consider when assessing  custody).11
In  the present case, even if Bennetts decision to give
Miranda  warnings  made Slwooko  uncertain  as  to  her
status,  that  uncertainty was dispelled  when  Slwooko
asked  why  she had been arrested, and Bennett  assured
her that she was not under arrest.
          Immediately after Officer Bennett recited the
Miranda  warnings to Slwooko, he asked her,  Would  you
like  to  answer  some questions for me?,  and  Slwooko
answered  No.  At this point, the two officers (Bennett
and Noet) appeared to be at a loss regarding what to do
next.   They  stopped  speaking to  Slwooko  and  began
addressing each other:
     
          Officer Bennett:  Do you understand your
     rights?   (Pause)  Would you like  to  answer
     some questions for me?
     
          Slwooko:  No.
     
          Bennett:  No?  Okay.
     
     Noet:   [To  Bennett]  Did you  ask  her
anything already?

     Bennett:  No, I havent asked ...

     Slwooko:  Yeah, well ...

     Bennett:  ... her nothing.

          It   was  then  that  Slwooko   re-
initiated   the   conversation.    Apparently
prompted  by the fact that Bennett had  given
her Miranda warnings, Slwooko asked, Why am I
being arrested?
          Bennett  told Slwooko that she  was
not  under arrest.  Then Noet added that  the
officers  just ... would like  to  know  what
happened  at  Jimmy Jacks  [house].   Slwooko
responded   to  this  information,   not   by
reiterating  her  unwillingness   to   answer
questions,  but by telling the officers  that
she  did not know what had happened at  Jimmy
Jacks house:

     Slwooko:  I want to be  why am  I  being
arrested?

     Bennett:  Youre not being arrested.   Im
sorry,  I didnt  I didnt want to arrest  you.
But since youre in the police station, I have
to read you your rights, just because ...

     Noet:  (indiscernible) ...

     Bennett:    ...  youre  in  the   police
station.

     Noet:  ... talk to anybody.

     Bennett:  You know, ...

     Noet:   We,  we just want  to  know   we
would  like  to know what happened  at  Jimmy
Jacks.

     Slwooko:  I really dont know.

     Noet:  What ...

     Bennett:  Okay.

          At this point, Noet tried to elicit
a  response from Slwooko by telling her  that
her  boyfriend, Jacob Anagick, had said  that
she  helped him hurt Jimmy Jack.  Bennett was
apparently  unwilling to go along  with  this
falsehood,  so he told Slwooko  a  different,
less accusatory falsehood:  that Anagick  had
simply  told the police to speak to  Slwooko.
Bennett  then  again  asked  Slwooko  if  she
want[ed]  to tell [him] what happened.   With
hardly  any further prompting, Slwooko  began
to confess her role in the homicide:

     Noet:   Well,  Jacob  was  arrested  for
hurting  Jimmy Jack, and Jacob says that  you
helped him hurt Jimmy Jack.

     Bennett:  Well, not exactly.  But ...  I
just got done talking to Jacob, okay?  And he
said  that I needed to come and talk to  you.
So  [do]  you want to tell me what  happened?
Okay?

     Slwooko:  Exactly?

     Bennett:  Exactly.

     Slwooko:   Ill tell you this.   We  were
going  over  to pick up my box.  Im  the  one
that  hit  him  with the  axe  while  he  was
putting  his head down.  Exactly  twice,  and
...

     Bennett:  Its okay.  Take your time.

     Slwooko:  The third time, he decided  to
do  it, you know.  And I said, No, Ill do it.
And I  I (indiscernible).

     Bennett:  Okay.

     Slwooko:  Really sorry (indiscernible).

          Although  the  two  officers   were
clearly  trying  to get Slwooko  to  talk  to
them,  they said nothing coercive  and,  with
the  exception  of  Noets  accusation   which
Bennett  immediately  disavowed   they   said
nothing   directly   accusatory.    Moreover,
Bennett  expressly assured Slwooko  that  she
was not under arrest.
          Given  our conclusion that  Slwooko
was  not in custody when this colloquy began,
the question is whether there is anything  in
the  above-quoted excerpt that would convince
a reasonable person in Slwookos position that
things  had  changed, and that  she  was  now
being  detained  by  the  police.   There  is
nothing   to   support  such  a   conclusion.
Accordingly,  we  disagree with  Judge  Eschs
ruling  on  this issue.  Slwooko was  not  in
custody   at  the  end  of  the  above-quoted
conversation.
          In her brief to this Court, Slwooko
argues that this is the wrong legal analysis.
Slwooko  points out that she clearly answered
No  the first time that Bennett asked her  if
she was willing to answer questions.  Slwooko
argues  that, after the police received  this
response from her, the officers were  legally
forbidden  from pursuing any further  efforts
to get Slwooko to talk to them.
          This  is the rule that would  apply
if  Slwooko had been in Miranda custody.   In
Michigan  v.  Mosley, 423 U.S.  96,  104;  96
S.Ct. 321, 326-27; 46 L.Ed.2d 313 (1975), the
United States Supreme Court held that when  a
suspect    who   is   undergoing    custodial
interrogation invokes their right to silence,
that   right  must  be  scrupulously  honored
i.e., the police must immediately cease their
questioning.12
          But  Slwooko  was not  in  custody.
The  question,  then, is whether  the  Mosley
rule   applies   to  Slwookos   non-custodial
interview   or whether, instead,  the  police
were  permitted to continue their efforts  to
get  Slwooko  to  talk to them,  even  though
Slwooko  initially stated that  she  did  not
wish to answer their questions.
          Many  courts  have  addressed  this
point  of  law.   These courts are  virtually
unanimous in concluding that the Mosley  rule
does not apply to situations where, during  a
non-custodial  interview,  the  person  being
interviewed declares that they do not wish to
answer further questions.
          The  reasoning behind these rulings
is this:  The Fifth Amendment does not forbid
the  governments  use of any  and  all  self-
incriminatory statements; rather,  the  Fifth
Amendment  forbids  the  governments  use  of
compelled statements.  The Miranda  rule  was
designed  to  counter the  compulsions,  both
overt  and  subtle,  that  are  inherent   in
custodial     interrogation      that     is,
interrogation that occurs while a suspect  is
held   incommunicado  in  a  police-dominated
atmosphere.  But when police questioning does
not  take  place in a custodial setting,  the
person  being questioned is not subjected  to
the types of compulsion that the Miranda rule
addresses.  Thus, unless the police engage in
conduct  that overbears the persons will  and
renders their statements involuntary under  a
traditional  Fifth  Amendment  analysis,  the
police  may  continue to try to  interview  a
suspect  even though the suspect states  that
they do not wish to answer questions.
          The  Seventh Circuit explained this
principle  in  United States v.  Serlin,  707
          F.2d 953 (7th Cir. 1983):

     [The   defendant]   argues   that    the
[government]  agents were required  to  cease
all  questioning when he expressed reluctance
[to] meet[] with them or [to] cooperat[e]  in
the   investigation.   In  support  of   this
claim[,  the]  defendant  cites  Michigan  v.
Mosley ... .

     Mosley   involved  application  of   the
holding in Miranda v. Arizona ... .  In  both
of these cases[,] the [United States Supreme]
Court   was  concerned  about  the   coercive
atmosphere      created     by      custodial
interrogation.  The inherent coerciveness  of
custodial interrogation prompted the Court in
Miranda to devise several safeguards  of  the
suspects   right  not  to  answer  questions,
including  a  requirement  that  the   police
advise the suspect that he has the right  not
to  incriminate himself.  Should the  suspect
exercise the right to cut off questioning the
police  must scrupulously honor this  request
and     cease    all    questioning.     This
cease-questioning rule stems from the  Courts
recognition that [w]ithout the right  to  cut
off  questioning, the setting  of  in-custody
interrogation  operates on the  will  of  the
individual   to  overcome  free   choice   in
producing a statement after the privilege has
once  been  invoked.  [Mosley,] 423  U.S.  at
100-01,  96 S.Ct. at 324-25 (quoting  Miranda
v.  Arizona, 384 U.S. at 473-74, 86 S.Ct.  at
1627).

     [But  unlike]  our review  of  custodial
interrogation,  in which it is  our  duty  to
determine  whether  the  police  scrupulously
honored a request to cease questioning,  [our
duty] in reviewing noncustodial interrogation
...  is to examine the entire record and make
an  independent determination of the ultimate
issue  of voluntariness.  [Beckwith v. United
States,]  425  U.S.  [341,]  348,  96   S.Ct.
[1612,] 1617[, 48 L.Ed.2d 1 (1976),] (quoting
Davis  v.  North  Carolina,  384  U.S.   737,
741-42,  86 S.Ct. 1761, 1764, 16 L.Ed.2d  895
(1966)).

Serlin, 707 F.2d at 957-58.
          Courts   from  around  the  country
agree that, during non-custodial questioning,
the  police  need not immediately stop  their
efforts  when  the  person  being  questioned
expresses a desire not to speak further:
          See  State  v. Lang, 862 P.2d  235,
244 (Ariz. App. 1993) (Police may continue to
question  suspects who are  not  in  custody,
even though they invoke their right to remain
silent,   as   long  as  the  responses   are
voluntary and the persons will has  not  been
overborne.);  State v. Silva, 674  P.2d  443,
449  (Idaho  App.  1983) (Silva  was  not  in
custody     for    purposes    of    Miranda.
Consequently, the police did not violate  any
Miranda-based  right by  continuing  to  talk
with  him  after he said he did not  want  to
answer  questions.); State v. P.Z., 703  A.2d
901,  910-911  (N.J. 1997) ([T]he  issue  [of
whether the questioning could continue] turns
on  [the  defendants]  non-custodial  status.
Had  [the] defendant been in custody  at  the
time  of the interview, under New Jersey  law
his  request, however ambiguous, to terminate
questioning  would  have been  sufficient  to
trigger  his  right  to remain  silent.   ...
However,  [the] defendant was not in  custody
when  he  answered the caseworkers questions.
Although he was free to remain silent and  to
insist  upon  having his lawyer present,  the
circumstances  were not such  as  to  require
[the  caseworker] to stop the interview  when
[the]  defendant  said that  his  lawyer  had
advised  him  not to discuss the matter  with
anyone.);  State v. Jeffreys, 682  A.2d  951,
953  (Vt. 1996) ([T]here is no right  to  cut
off  questioning where the suspect is not  in
custody.); Webber v. Commonwealth, 496 S.E.2d
83,   86-87  (Va.  App.  1998)  (Weber  [sic]
contends that the police violated his  rights
under Miranda v. Arizona ... by continuing to
question  him after he stated at the hospital
that  he  did  not want to talk  to  anybody.
Because  Weber  was not in  custody  at  that
time,  this assertion did not invoke  Miranda
protections.  ...  [T]he protection  afforded
by  Miranda  applies only when a  suspect  is
subjected to custodial interrogation.); State
v.  Warness,  893 P.2d 665, 667  (Wash.  App.
1995) (The Miranda protection is premised  on
custodial interrogation.  Both factors [i.e.,
custody  plus interrogation] must be  present
for  Miranda protection to attach.  A suspect
who  is  not in custody does not have Miranda
rights.); State v. Bradshaw, 457 S.E.2d  456,
467 (W.Va. 1995) (holding that the defendants
attempt to invoke Miranda rights before being
taken  into  custody was an  empty  gesture).
See  also Davis v. Allsbrooks, 778 F.2d  168,
170-71 (4th Cir. 1985).
          We note that, in State v. Garrison,
128  P.3d 741 (Alaska App. 2006), this  Court
applied  the same principle to a case  where,
during  a  non-custodial  interrogation,  the
person  being  questioned made  an  ambiguous
statement  that was arguably a  reference  to
their need for an attorney.  The defendant in
Garrison  argued that the rule of Edwards  v.
Arizona13 applied  i.e., that the police were
obliged to halt their questioning and clarify
Garrisons wishes regarding the assistance  of
counsel.  We held that Edwards did not  apply
because Garrison was not in custody:

     To  the extent that Garrison argues that
the  police had to stop and clarify Garrisons
reference  to an attorney, that argument  has
no merit ...  .  Garrison was not in custody,
and   the   requirement,  under  Edwards   v.
Arizona,  that the police stop  an  interview
when  a  defendant makes an equivocal request
for   counsel  applies  [only]  to  custodial
interrogations.

Garrison,   128   P.2d  at   747   (footnotes
omitted).14
          Slwooko  was  not in  custody  when
Officer  Bennett asked her if she was willing
to  answer  questions, and  she  replied  no.
Because  Slwooko was not in custody  at  this
point,  the  Mosley rule did not apply.   The
officers  were  not obliged  to  scrupulously
honor Slwookos desire not to answer questions
by  ceasing  all  efforts to  interview  her.
Instead,  the  officers  were  free  to  make
further  efforts to get Slwooko  to  talk  to
them   provided  that their efforts  did  not
become  so  coercive as to overbear  Slwookos
will   and   produce  statements  that   were
involuntary   under   a   traditional   Fifth
Amendment analysis.
          As the Seventh Circuit explained in
Serlin,

     Although the scrupulously honor test  is
not  our  guide  in  [cases of  non-custodial
questioning], we will [nevertheless] consider
the  [officers]  persistence  in  questioning
[the]  defendant in the face  of  his  stated
desire  not to cooperate.  This is,  however,
but    one   factor   in   determining    the
voluntariness of [the] defendants statements.

Serlin, 707 F.2d at 958.
          We  have  already analyzed Bennetts
and  Noets efforts to get Slwooko to talk  to
them  after she stated that she did not  want
to  answer  questions.   We  concluded  that,
although Bennett and Noet were clearly trying
to  get Slwooko to talk to them, the officers
said nothing coercive and, with the exception
of    Noets    accusation    which    Bennett
immediately  disavowed   they  said   nothing
directly   accusatory.    Moreover,   Bennett
expressly  assured Slwooko that she  was  not
under  arrest.  We concluded that nothing  in
the  officers  colloquy  with  Slwooko  would
convince  a  reasonable  person  in  Slwookos
position  that  she was in  Miranda  custody.
For  much the same reasons, we conclude  that
the officers said nothing to Slwooko that was
so  coercive  as  to overbear  her  will  and
produce involuntary statements.
          In  sum:   We  uphold  Judge  Eschs
ruling  that  Slwookos  interview  with   the
police  was initially non-custodial,  but  we
conclude that Judge Esch erred when he  ruled
that Slwookos interview with the police later
became custodial.  The interview remained non-
custodial   and, because of this, the  police
were authorized to continue their efforts  to
engage  Slwooko in conversation  even  though
she initially stated that she did not wish to
answer their questions.  Finally, we conclude
that  Slwookos self-incriminatory  statements
to  the  police were voluntary.  Accordingly,
these   statements  were  admissible  against
Slwooko at her trial.

Slwookos claim that the prosecutor violated Evidence
Rule 613 by introducing evidence of Jacob Anagicks
prior inconsistent statements without first giving
Anagick  an  opportunity to deny or explain  those
statements

     Jacob  Anagick testified as a defense witness
at  Slwookos trial.  At the time of his testimony,
Anagick  had  already pleaded  guilty  to  second-
degree  murder for killing Jimmy Jack.  On  direct
examination,  Anagick  declared  that   he   alone
committed  this murder, and that Slwooko  was  not
present  and  did not participate in  the  killing
although  Anagick  conceded  that  Slwooko   later
helped  him  conceal or destroy  evidence  of  the
crime.
          As  we  have  already explained, Anagick  was
interviewed  by  Officer  Bennett  shortly  after   the
homicide.  Anagick initially told Bennett that he alone
was  responsible for Jimmy Jacks death, and that no one
else  was present when Jimmy Jack was killed.  But when
Bennett  confronted Anagick with the fact that  Bernice
Slwooko seems to know quite a bit about this, and  when
Bennett  then asked Anagick if Slwooko had been present
during  the homicide,  Anagick first said no, and  then
he  said yes, and then Anagick whispered, What the hell
is she doing?
          Officer  Bennett testified during the  States
case-in-chief, and he recounted this conversation  with
Anagick.  There was no objection to this testimony.
          During  the  rebuttal portion of  the  States
case,  the  prosecutor presented the testimony  of  two
other police officers who interviewed Anagick about the
homicide.
          Anagick  was  interviewed  by  Officer   Noet
immediately  after  Noet  and Bennett  conducted  their
interview with Slwooko (the interview we have described
at  length  in the preceding sections of this opinion).
During  Noets  interview with Anagick,  Anagick  stated
that  he  and  Slwooko and Jimmy Jack were together  at
Jimmy Jacks house, and that he (Anagick) and Jimmy Jack
began  fighting.   At  some  point  during  the  fight,
Slwooko struck Jimmy Jack in the head with an axe,  and
Jimmy  Jack  lost consciousness.  Anagick  and  Slwooko
conferred or communicated to some degree and determined
that Jimmy Jack was still breathing.  Anagick then used
the axe to kill him.
          Anagick was also interviewed by Officer Byron
Redburn.   This  interview  took  place  at  the  Anvil
Mountain  Correctional Center on the morning of  August
20, 2002  that is, two days after Slwooko confessed her
role  in the murder and Anagick made the statements  to
Noet  that  we  described  in the  previous  paragraph.
According  to Redburn, Anagicks August 20th account  of
the homicide was quite similar to Anagicks testimony at
Slwookos trial:  that is, Anagick claimed to have acted
alone in killing Jimmy Jack, but he stated that Slwooko
helped him conceal or destroy evidence of this crime.
          Slwookos defense attorney objected to Officer
Noets  testimony on the ground that the prosecutor  had
assertedly  violated Evidence Rule 613.  That  is,  the
defense  attorney  argued that the prosecutor  had  not
laid  a proper foundation for Noets testimony by  first
cross-examining    Anagick    about    his    purported
inconsistent   statements   and   giving   Anagick   an
opportunity  to deny or explain these statements.   The
trial  judge denied this objection and allowed Noet  to
give the testimony we have described above.
          (The  defense  attorney  did  not  object  to
Redburns   testimony  on  Rule  613  grounds   probably
because Redburn testified to prior statements that were
consistent with Anagicks trial testimony.)
          On  appeal,  Slwooko argues  that  the  trial
judges  ruling  was error.  She renews  her  contention
that  the  prosecutor  violated Evidence  Rule  613  by
failing  to  cross-examine Anagick about the statements
he made to Noet.
          The  record  shows otherwise.   Here  is  the
pertinent  portion of the prosecutors cross-examination
of Anagick:
     
          Prosecutor:  Now, you talked to  Officer
     Bennett, ... correct?
     
          Anagick:  Yes.
          .  .  .
     
          Prosecutor:   And  you  told  him   that
     Bernice [Slwooko] was there ...
     
          Anagick:  No.
     
          Prosecutor:  ... when Jimmy  [Jack]  was
     killed, didnt you?
     
          Anagick:  No.
     
          Prosecutor:   Didnt you  say   [Bennett]
     asked  you, Was Bernice there?, and you said,
     Yes.  What the hell is she doing?
     
     Anagick:  No.

     Prosecutor:  You never said that?

     Anagick:    I  said  Whats  she   doing?
because I saw her walk in the door and  ended
the conversation ...  .

     Prosecutor:  ...  Im asking you, Do  you
remember telling Officer Bennett  in response
to his question, Was Bernice there when Jimmy
got  killed?   Yes.  What  the  hell  is  she
doing?

     Anagick:   No.   I dont remember  saying
that.

     Prosecutor:  And when Officer Noet  came
out  to see you on [August] 18th at the jail,
[do] you remember talking to him?

     Anagick:  Yes.

     Prosecutor:  Okay, and that was after he
had talked to Bernice, correct?

     Anagick:  I guess so.

     Prosecutor:   And  hes  ...  trying   to
clarify  that she [i.e., Slwooko] was  there.
And you told him, Yeah, she was there.

     Anagick:  No.

     Prosecutor:   You didnt tell  him  that?
Or you dont remember telling him that?

     Anagick:  I didnt tell him that.
     .  .  .

     Prosecutor:  Didnt you tell Officer Noet
that,  as  you  stood there  in  Jimmy  Jacks
house,  you and Bernice communicated in  some
way  that Jimmy was still breathing, and that
youd finish him off?

     Anagick:  No.

          This   excerpt   shows   that   the
prosecutor  complied with Evidence  Rule  613
during   his  cross-examination  of  Anagick,
laying  a  proper foundation for Noets  later
testimony  concerning  Anagicks  inconsistent
statements.
          In  her  reply  brief,  Slwooko  no
longer   argues  that  this  foundation   was
insufficient.   Rather, she  advances  a  new
argument:   that Rule 613 precludes testimony
concerning   a  witnesss  prior  inconsistent
statement    unless   that    testimony    is
corroborated   by  physical   evidence    for
example,  a  writing  that  incorporates  the
prior  statement, or an electronic  recording
of   the   prior  statement.   Because   this
argument is presented for the first  time  in
Slwookos reply brief, we need address  it  no
further.15

Conclusion

     Slwookos conviction for second-degree  murder
is AFFIRMED.
COATS, Chief Judge, dissenting.

          I  would  affirm Judge Eschs conclusion  that
Bernice  Slwooko was in custody when she  admitted  her
involvement  in  the  murder of  Jimmy  Jack.   Because
Slwooko had not waived her rights at the time that  she
made  her  initial  admissions,  I  conclude  that  the
superior   court   was  required  to   suppress   those
admissions.
          When   the   police   conduct   a   custodial
interrogation, they must warn the person of her Miranda
rights.   The  police must have the person waive  those
Miranda rights before asking any questions.  Whether  a
person  is  in custody for purposes of Miranda  can  be
simply stated  would a reasonable person have felt that
she  was  not at liberty to terminate the interrogation
and leave?1
          In the present case, I agree with Judge Eschs
finding  that  Slwooko voluntarily went to  the  police
station.  But Slwooko, who was highly intoxicated,  was
hesitant  to enter the police station when she  arrived
there. Officer Daniel Bennett encouraged her to come in
to  talk to him.  He stated that he guided her  by  the
arm  into  the  police station and into  the  interview
room.   From  this sequence of events, it appears  that
Slwooko  was  having second thoughts about whether  she
wanted to talk to the police.           Officer Bennett
testified that he conducted his interview with  Slwooko
as  a  custodial interview.  He stated that he had been
trained  to tell a person in a non-custodial  interview
that  she was free to go at any time or could stop  the
questioning  whenever she wanted.  He  would  establish
that  the  person being questioned was  in  the  police
station  voluntarily  and would  assure  her  that,  no
matter what she said in the interview, she would not be
arrested and would be free to go.
          Officer Bennett stated that he did not follow
this procedure when he questioned Slwooko.  Because  he
believed  that  Slwooko was involved in  killing  Jimmy
Jack,  he did not want to lie to her and tell her  that
she  would be free to go because he intended to  arrest
her  if  she  admitted some involvement.   Accordingly,
Officer Bennett did not confirm that Slwooko was at the
police  station voluntarily, did not tell her that  she
was  free  to leave at any time, and did not  tell  her
that  she  would  be able to leave at the  end  of  the
interview.  Instead, he warned her of her rights.
          I  recognize that Officer Bennetts subjective
intent   to  conduct  a  custodial  interview  is   not
controlling.   The  question,  as  we  have  previously
stated,  is  whether  a reasonable person  in  Slwookos
position   would  have  felt  free  to  terminate   the
questioning  and  leave.  But,  applying  an  objective
standard, it is important to note that the police never
established that Slwooko was voluntarily present at the
          police station,  never told her that she was free to
cut  off  questioning and leave at any time, and  never
told  her  that  she  would be free  to  leave  at  the
conclusion of the interview.  Instead of giving Slwooko
these  assurances,  the police warned  Slwooko  of  her
rights.   From  this  sequence,  I  conclude   that   a
reasonable person in Slwookos position would have known
that the police were questioning her as a suspect.  And
she  would  have doubted that she was free to terminate
the questioning and leave the police station.
          After  Officer Bennett warned Slwooko of  her
rights, he asked her whether she understood her  rights
and   whether  she  would  like  to  answer  questions.
Slwooko answered No.
          Judge   Esch   concluded  that  Slwooko   was
answering No to the second question.  That is,  Slwooko
indicated  that  she did not want to answer  questions.
Judge Esch went on to find that, because Slwooko stated
that  she  did  not want to talk to the  officers,  and
because  the officers did not terminate the  interview,
at  that point Slwooko was no longer free to go and was
therefore in Miranda custody.
          My  own  view  may vary slightly  from  Judge
Eschs.   After Slwooko said that she did  not  want  to
answer any questions, the police not only did not cease
questioning, they increased the pressure.  Officer Noet
told  Slwooko that they had arrested Jacob Anagick  for
hurting Jimmy Jack and that Anagick had told them  that
Slwooko had helped him hurt Jimmy Jack. At this  point,
a  reasonable  person in Slwookos position  would  have
recognized that the police were accusing her of killing
Jimmy  Jack  and would have concluded that Anagick  had
told  the police that Slwooko  aided him in the murder.
From Slwookos position, she was a suspect in the murder
of Jimmy Jack.  It seems clear to me, at this point,  a
reasonable person in Slwookos position would  not  have
felt free to break off questioning and leave.  She  was
therefore  in Miranda custody.  She had not waived  her
rights and had told the police that she did not want to
answer  questions.   The police responded by escalating
the questioning.
          I recognize that, after her futile attempt to
exercise  her rights, Slwooko asked why she  was  being
arrested.   Officer Bennett told her that she  was  not
being  arrested.   Officer Bennetts answer  does  weigh
against  concluding that Slwooko was in  custody.   But
telling  someone  that  they  are  not  being  arrested
differs  from  telling  them  that  they  are  free  to
terminate the questioning and leave.  To a lay  person,
the  fact  that you have not been arrested  may  merely
mean  that  you have not been formally charged  with  a
crime.  It does not necessarily mean that you are  free
to go.
          Therefore,  it  seems reasonable  that,  even
though  Officer Bennett told Slwooko she was not  being
arrested,  she would have serious doubts about  whether
she  was free to terminate questioning and leave.   She
was  never told that she was free to leave.   And  when
she  tried to exercise her right to silence, the police
ignored this request and continued questioning her.
          It is also true that, after Officer Noet told
Slwooko  that Anagick told the police that Slwooko  had
helped  him hurt Jimmy Jack, Officer Bennett  tried  to
mitigate  the  statement by saying, Well, not  exactly.
But  I  do  not  believe  that a reasonable  person  in
Slwookos  position  would have  seen  Officer  Bennetts
statement as withdrawing Officer Noets statement.  Once
the  police told Slwooko that Anagick was arrested  for
hurting  Jimmy  Jack and said that Slwooko  helped  him
hurt  Jimmy  Jack, Slwooko had every reason to  believe
that  the  police had substantial evidence that  showed
she had helped murder Jimmy Jack.  Once the police told
Slwooko  this, it seems clear to me that  a  reasonable
person  in  Slwookos position would not have  concluded
that she was free to break off questioning and leave.
          I  therefore  conclude that  Slwooko  was  in
custody  at  the  time  that she  made  her  statements
admitting her involvement in the murder of Jimmy  Jack.
And  because she was in custody, the police  needed  to
warn Slwooko of her rights and obtain a valid waiver of
those  rights.   Although it is clear that  the  police
warned  Slwooko  of her rights, it is also  clear  that
Slwooko did not waive those rights before she made  the
incriminating statements.  Therefore, in my view,  this
Court is required to suppress those statements.

_______________________________
     1384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2This  Courts  prior opinion, Slwooko v.  State,  Memorandum
Opinion  No.  5003, contains a transcript excerpt  in  which
Officer  Noet  is  listed  as the speaker  who  administered
Miranda  warnings  to Slwooko.  This is  not  correct.   The
speaker was Officer Bennett.

3On  remand,  the superior court specifically addressed  the
issue  of  whether Officer Bennett asked these two questions
as  a  compound question or as two separate questions.   The
court  found that Bennett paused between the two  questions,
thus separating them.

4See  State  v.  Anderson, 117 P.3d 762,  766  (Alaska  App.
2005):   The  standard for determining  Miranda  custody  is
objective:   Miranda  warnings are  required  [when]  police
interrogation [is] conducted under circumstances in which  a
reasonable  person would feel he was not free to  leave  and
break off the questioning.  (quoting Carr v. State, 840 P.2d
1000, 1003 (Alaska App. 1992), with the internal quote  from
Hunter v. State, 590 P.2d 888, 895 (Alaska 1979)).

5See Wilburn v. State, 816 P.2d 907, 911 (Alaska App. 1991).

6See  Schaffer  v.  State, 988 P.2d 610,  612  (Alaska  App.
1999).

7Citing  Thompson v. Keohane,  516 U.S. 99, 112;  116  S.Ct.
457, 465; 133 L.Ed.2d 383 (1995).

8Quoting  California v. Beheler, 463 U.S.  1121,  1125;  103
S.Ct.  3517,  3520; 77 L.Ed.2d 1275 (1983),  which  in  turn
quotes Oregon v. Mathiason, 429 U.S. 492, 495; 97 S.Ct. 711,
714; 50 L.Ed.2d 714 (1977).

9Citing Hunter v. State, 590 P.2d 888, 895 n. 23 (Alaska
1979).

10See State v. Smith, 38 P.3d 1149, 1154 (Alaska 2002).

11See, e.g., United States v. Bautista, 145 F.3d 1140,  1148
(10th  Cir. 1998); Booker v. Ward, 94 F.3d 1052,  1058  (7th
Cir.  1996); State v. Stanley, 809 P.2d 944, 948, 950 (Ariz.
1991).  See also Commonwealth v. Morgan, 610 A.2d 1013, 1014
(Pa. App. 1992), appeal denied, 619 A.2d 700 (Pa. 1993).

12See also Miranda v. Arizona, 384 U.S. 436, 473-74; 86
S.Ct.  1602,  1627;  16 L.Ed.2d 694  (1966)  ([I]f  the
individual indicates in any manner ... that  he  wishes
to remain silent, the interrogation must cease.).

13451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

14Our decision in Garrison is in accord with the decisions
of  other  courts on this point.  See United States  v.
Bautista,  145 F.3d 1140, 1147 (10th Cir. 1998);  Tukes
v.  Dugger,  911  F.2d 508, 515-516 (11th  Cir.  1990);
United States v. Hampton, 153 F.Supp.2d 1262, 1273  (D.
Kan.  2001); State v. Stanley, 809 P.2d 944, 950 (Ariz.
1991)  ([E]ven though a suspect [who is not in custody]
invokes  his  right  to  decline further  interrogation
until  he  has  spoken  to  a lawyer,  the  police  may
continue to question him in a non-custodial setting ...
.   [S]o long as [his] responses are voluntary, and his
will has not been overborne, the suspects responses may
be  used  in  evidence against him.);  Commonwealth  v.
Morgan,  610  A.2d 1013, 1016 (Pa. App.  1992),  appeal
denied,  619  A.2d  700 (Pa. 1993) (holding  that  even
though  the  police  took  the  precautionary  step  of
reading Miranda rights to a non-custodial suspect,  the
suspect  could not assert the Fifth Amendment right  to
counsel    outside    the    context    of    custodial
interrogation);  State v. Aesoph, 647 N.W.2d  743,  751
(S.D.  2002) ([T]here is no [Fifth Amendment] right  to
an  attorney when the interrogation is non-custodial.);
Tipton  v. Commonwealth, 447 S.E.2d 539, 540 (Va.  App.
1994)  (holding that the right to an attorney does  not
apply when invoked during non-custodial interrogation);
Webber  v.  Commonwealth, 496 S.E.2d 83, 87  (Va.  App.
1998).

15See Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d
406,  411  (Alaska 1990);  Hitt v. J.B. Coghill,  Inc.,
641 P.2d 211, 213 n. 4 (Alaska 1982).

1State v. Smith, 38 P.3d 1149, 1154 (Alaska 2002).

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