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State v. Rivers (11/3/2006) ap-2071

State v. Rivers (11/3/2006) ap-2071

     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-8918
Petitioner, ) Trial Court No. 3AN-01-6746 CR
v. ) O P I N I O N
Respondent. ) No. 2071 - November 3, 2006
Petition  for   review
          from   the  Superior  Court,  Third  Judicial
          District,  Anchorage, Michael  L.  Wolverton,

          Appearances:    Kenneth J. Diemer,  Assistant
          Attorney   General,  Kenneth  M.  Rosenstein,
          Assistant Attorney General, Office of Special
          Prosecutions  and  Appeals,  Anchorage,   and
          David  W. M rquez, Attorney General,  Juneau,
          for   the   Petitioner.   David   W.   Miner,
          Attorney,   and   Joshua  P.   Fink,   Public
          Advocate,    Office   of   Public   Advocacy,
          Anchorage, for the Respondent.

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

          COATS,  Chief Judge.
          MANNHEIMER, Judge, concurring.
          James  P. Rivers faces charges of theft of unemployment
benefits  and  making  false statements  to  obtain  unemployment
benefits.  Rivers moved to suppress the statements he made  to  a
Division  of  Employment Security investigator at  an  interview.
Superior  Court  Judge  Michael  L.  Wolverton  granted   Riverss
suppression  motion.   Judge  Wolverton  found  that  Rivers  was
legally  compelled  by state statute and Division  of  Employment
Security  policy  to  submit  to an interview  by  an  Employment
Security   Division  investigator.   Judge  Wolverton   therefore
suppressed all the statements Rivers made in the interview.   The
State  filed  a petition for review of this ruling.   We  granted
review.  We reverse Judge Wolvertons ruling.  We conclude that at
the  time Rivers made the statements during the interview, he was
not  in  custody,  did not exercise his privilege  against  self-
incrimination, and was not coerced into giving up  his  right  to
remain silent.
          Factual and procedural background
          An  investigator with the Employment Security  Division
of the Department of Labor, Harold G. Marley, suspected Rivers of
fraudulently  obtaining unemployment insurance benefits.    Based
on  his  review of Riverss records, Marley concluded that  Rivers
had  received  excess  benefits of approximately  $4718.   Marley
telephoned Rivers and set up an interview with him.
          At  the  beginning of the interview, Marley put  Rivers
under  oath.   Marley never informed Rivers that he was  free  to
leave, but he did inform Rivers that [i]f at any time during  the
procedure,  ... you want to take a break, stop, ... you  want  to
review  a  question, go back, just say so.  During the  interview
Rivers made incriminating statements.
          A  grand  jury indicted Rivers on one count of  second-
degree theft by deception.1    The State later charged Rivers  by
supplemental information with multiple counts of false statements
to secure benefits.2
          Rivers  moved to suppress the incriminating  statements
he  made  during  the  interview with Marley.    Judge  Wolverton
conducted  an evidentiary hearing on Riverss motion to  suppress.
At  the  hearing, Marley testified that he did not  remember  the
specific  conversation he had with Rivers  when  he  set  up  the
interview.   But he testified that his practice was to  encourage
claimants  to  participate in an interview.  He  would  sometimes
inform claimants that their failure to provide information  might
result in their disqualification for future benefits.
          Rivers   also  introduced  an  Unemployment   Insurance
Claimant    handbook.    The   handbook   details   a   claimants
responsibilities  and  is  sent  to  everyone  who  opens  a  new
unemployment  insurance account. The handbook emphasized  that  a
claimant  had  to  comply with the requirements outlined  in  the
handbook  in  order  to  be eligible for  unemployment  insurance
benefits.   The handbook explained that a claim is subject  to  a
quality   control  audit  where  information  that  the  claimant
provided  would  be checked for accuracy. The handbook  cautioned
that  the  examinations are thorough and may involve an in-person
interview with you and other interested parties.
          Based  on  these circumstances, Rivers argued that  his
statements  were  involuntary.  Rivers argued  that  he  faced  a
coercive   atmosphere  where  he  was  required  by  statute   to
participate  in the interview and had to justify the  information
supporting  his claim for unemployment insurance or face the loss
of his benefits.
          Rivers  claimed  that AS 23.20.070, as supplemented  by
the  information  in  the  handbook, forced  him  to  attend  the
interview and provide information.  If he did not, he would  lose
his  unemployment benefits.  He argued that this amounted  to  an
explicit  economic threat and that he was therefore coerced  into
making  the incriminating statements at the interview,  and  that
this coercion violated his right against self-incrimination.   In
addition,  Rivers argued that the interview constituted custodial
interrogation  that  required the investigator  to  administer  a
Miranda   warning  before  interviewing  him.   Based  on   these
contentions,  Rivers  argued  that either  immunity  should  have
attached  under AS 23.20.070 or his statements should  have  been
          Judge   Wolverton  found  that  Rivers  had  not   been
subjected to custodial interrogation, and therefore the state was
not  required to give him a Miranda warning.  But he  found  that
Rivers  was  legally compelled by the statute and the  department
policy  as set out in the handbook to appear and speak  with  the
investigator  at  the  Division of Employment  Security.    Judge
Wolverton concluded that because Riverss statements were coerced,
he  was  required to suppress Riverss statements.  He also  noted
that  Marley had not warned Rivers of his right to terminate  the
interview  at  any  time.  Judge Wolverton  concluded  that  this
omission,  coupled  with  the coercion, made  Riverss  statements
involuntary.  He therefore suppressed the statements Rivers  made
during  the interview.  The State filed a petition for review  of
this decision.  We granted review.

          Under  AS  23.20.070 Rivers  is  required  to
          assert his right against self-incrimination

          Alaska Statute 23.20.070 provides that a person who has
claimed  unemployment benefits is not excused from attending  and
testifying  at  an  interview  on  the  ground  that   he   might
incriminate  himself.  The statute goes on to provide  that  [a]n
individual  may not be prosecuted or subjected to a  penalty  [if
he] is compelled, after having claimed the privilege against self-
incrimination, to testify or produce evidence.  The  statute,  on
its  face, requires the individual to claim the privilege against
self-incrimination in order to obtain immunity from prosecution.
          We  have found several cases interpreting statutes that
provide  immunity from prosecution when a person is  required  to
produce evidence that otherwise might result in criminal charges.
The  cases discuss two categories of immunity statutes.   In  the
first category, are statutes that grant immunity to a person  who
is  compelled to testify regardless of whether the person asserts
the  privilege against self-incrimination.3   The second category
of  statutes  requires a person to assert his  privilege  against
self-incrimination before testifying in order to obtain  immunity
from prosecution.4  Alaska Statute 23.20.070 clearly falls within
this latter category.
          It  is  uncontested  that Rivers  did  not  assert  his
privilege  against  self-incrimination at  any  time  during  his
interview   with  Investigator  Marley.   The  statute  therefore
offered him no protection.
                Why  we  conclude that Judge  Wolverton
          erred in finding that Riverss statements were

          Our  discussion  of this issue begins with  the  United
States  Supreme Courts decision in Minnesota v. Murphy.5   Murphy
was  given a suspended sentence on a sex-related charge  and  was
placed  on  probation.  The conditions of his probation  required
him  to  participate  in a treatment program for  sex  offenders,
report to his probation officer as directed, and be truthful with
the  probation officer in all matters.6   Murphy was told that  a
violation  of  any  of  these  conditions  could  result  in  the
revocation of his probation.
          A  counselor  at Murphys sex offender treatment  center
informed  Murphys  probation officer that  Murphy  had  admitted,
during the course of treatment, that he had committed a rape  and
murder  approximately  seven  years  previously.   The  probation
officer  notified  the police and set up a meeting  with  Murphy.
During  the meeting, Murphy admitted to the rape and murder.   At
the  conclusion of the meeting, the probation officer told Murphy
she  had  a  duty to relay the incriminating information  to  the
police  and encouraged him to turn himself in.  But she permitted
Murphy to leave her office.
          When Murphy was later indicted for murder, he moved  to
suppress the statements he made to his probation officer  on  the
ground  that  his  statements were obtained in violation  of  his
privilege   against  self-incrimination  under  the   Fifth   and
Fourteenth  Amendments to the United States Constitution.7    The
Minnesota  Supreme  Court ordered Murphys  statements  suppressed
under  reasoning similar to that advanced by Judge  Wolverton  in
Riverss case.  The Minnesota Supreme Court concluded that  Murphy
had  not  been in custody, and generally recognized the principle
that a person must invoke his right to remain silent in order  to
exercise  it.   But the court found that Murphys  statements  had
been   obtained   in  violation  of  his  right   against   self-
incrimination because he was compelled to attend the meeting with
his  probation  officer and was under a court  order  to  respond
truthfully  to  the probation officers questions.  The  Minnesota
Supreme  Court  pointed  out  that  the  probation  officer   had
substantial  reasons  to believe that Murphys  answers  would  be
incriminating.   The court concluded that the  probation  officer
should  have  warned  Murphy  of  his  privilege  against   self-
          The  United States Supreme Court reversed.   The  Court
first  held that the fact that Murphy was required to appear  and
answer  questions  truthfully did not in itself  convert  Murphys
otherwise  voluntary statements into compelled ones.9  The  Court
pointed out that Murphy stood in no different a position  than  a
witness  who  was called to testify at trial or  before  a  grand
jury.   The  witness  would be compelled to  appear  and  testify
truthfully unless he validly invoked the privilege against  self-
incrimination.  Recognizing the general rule, the  Court  stated:
[T]hus  it is that a witness confronted with questions  that  the
government  should  reasonably  expect  to  elicit  incriminating
evidence ordinarily must assert the privilege rather than  answer
          if he desires not to incriminate himself.10
          The  Court  then  discussed the two exceptions  to  the
general  rule  that a person must invoke the right against  self-
incrimination.   The first exception applies  when  suspects  are
subject to custodial interrogation.11  The Court pointed out that
Miranda  v.  Arizona12  required the exclusion  of  incriminating
statements  that were obtained during custodial interrogation  of
suspects in police custody unless the suspect was informed of his
Miranda  rights and waived them.13  But the Court qualified  this
exception,  noting  that this extraordinary  safeguard  does  not
apply  outside  the context of the inherently coercive  custodial
interrogations  for which it was designed.14  The Court  observed
that Murphy was not under arrest and was free to leave at the end
of  the  meeting.15  The Court determined that Murphy was not  in
custody  and was not entitled to a Miranda warning.16  The  Court
concluded that Murphy could not claim the benefit of the  Miranda
exception  to the general rule that the Fifth Amendment privilege
is  not self-executing.17           The Court then turned to  the
second exception to the general rule that a person must claim the
privilege  against self-incrimination in order  to  exercise  it.
The  privilege becomes self-executing when the assertion  of  the
privilege is penalized so that the defendant does not have a free
choice  to  remain silent and is compelled to give  incriminating
testimony.18    The  Court held that the  fact  that  Murphy  was
required  to  attend  the  meeting  and  truthfully  answer   the
questions  of the probation officer, who anticipated that  Murphy
would  give  incriminating answers, was not sufficient compulsion
to  find that Murphy was coerced into giving up his right against
self-incrimination.19   The Court pointed out that Murphy was not
expressly  informed during the crucial meeting with his probation
officer  that an assertion of the privilege would result  in  the
imposition  of a penalty.20   The Court stated that  [i]f  Murphy
did  harbor  a  belief that his probation might  be  revoked  for
exercising the Fifth Amendment privilege, that belief  would  not
have been reasonable.21
          The  reasoning of Murphy directs our conclusion in this
case.  If anything, Murphy faced greater coercive pressures  than
did  Rivers.   Murphy  was required to attend  the  meeting,  was
required  to  answer questions truthfully, and faced  substantial
criminal  penalties for his failure to comply with his  probation
conditions.   Like Murphy, Rivers was not in custody for  Miranda
purposes.   There is no suggestion that Investigator Marley   had
any  authority to arrest Rivers or any intention to  do  so.   It
appears to have been clear that Rivers was going to walk  out  of
the  Employment  Security  Division office  at  the  end  of  the
interview, which he did.  Applying the standards set out  by  the
Court  in  Murphy, Riverss failure to exercise his right  against
self-incrimination  was not coerced and therefore  the  privilege
was  not  self-executing.  Investigator Marley  never  threatened
Rivers  with  the  loss of his unemployment  benefits  if  Rivers
exercised  his  Fifth  Amendment rights.  As  the  Supreme  Court
pointed  out, a witness in a trial is required to appear  and  to
testify truthfully.  If the witness wants to exercise his  rights
against self-incrimination, the witness is required to explicitly
do  so.  Rivers was not under any more compulsion than was Murphy
          or a witness in a trial.  Because he did not affirmatively assert
his right against self-incrimination, and because this failure is
not  excused by any exception to the general rule requiring  that
he  do so, Rivers forfeited the privilege and is not entitled  to
suppression of his statements.

          We  conclude  that  Judge Wolverton erred  in  granting
Riverss  motion to suppress.  We accordingly reverse that  order.
We remand the case to the superior court for further proceedings.
          REVERSED and REMANDED.

MANNHEIMER, Judge, concurring.

          I write separately to clarify and emphasize the core of
our decision.
          The superior court ruled that Riverss statements to the
Division of Employment Security investigator were involuntary for
constitutional purposes because Rivers was compelled  by  law  to
attend   the  interview  and  answer  questions  concerning   his
eligibility  for unemployment benefits  compelled  in  the  sense
that,  if  he declined to attend the interview or to  answer  the
investigators questions, he risked the loss of his benefits.
          The  superior courts analysis is incorrect.   The  fact
that  a person is compelled by law to attend a hearing and answer
questions does not mean that the persons resulting statements are
involuntary  otherwise, all testimony given in court by witnesses
under  subpoena  would  be involuntary.  This  point  of  law  is
explained by Professor Wigmore:
               [When a] witness is on the stand and  an
          incriminating fact, relevant to the issue, is
          desired   to  be  proved  through  him,   the
          question  may be asked, and it  is  for  [the
          witness]   then  to  [raise]   a   claim   of
          privilege[.]   ...  [T]he witness  cannot  at
          the  very  ... threshold set up the privilege
          of  not  answering possible  questions  as  a
          valid reason for refusing to obey the process
          of [the] court summoning him to appear.
          John  Henry  Wigmore, Evidence in  Trials  at
          Common  Law  (McNaughton revn  1961),   2268,
          Vol.  8,  pp.  402  & 405  (emphasis  in  the
          Thus,  when determining  whether  a
persons    statements   are   voluntary    or
involuntary,  the issue is  not  whether  the
person  was  under compulsion to  attend  the
proceeding and answer questions.  Rather, the
issue  is  whether the person was coerced  to
surrender   their  privilege  against   self-
          If  a person is summoned to a court
proceeding  or  agency hearing,  and  if  the
person  is questioned in such a way that  the
persons  answers  might tend  to  incriminate
them,  then it is the persons right to assert
the  privilege against self-incrimination and
refuse to answer.  But if the person fails to
assert this privilege and instead answers the
questions,  the privilege is waived  and  the
answers   are   considered   voluntary    for
constitutional  purposes   even  though   the
person  is never explicitly warned that  they
have  the  legal  right  to  refuse  to  give
potentially incriminating answers.2
          Rivers  answered the questions  put
to him, and he never interposed the privilege
against self-incrimination.  Accordingly, his
statements are presumed to be voluntary.3
          As   the  majority  opinion  notes,
there  are two exceptions to the rule that  a
persons   failure  to  assert  the  privilege
against  self-incrimination will be deemed  a
waiver of the privilege.
          The  first exception is the Miranda
rule,   which  applies  to  people  who   are
subjected    to    custodial   interrogation.
Because of the implicitly coercive aspects of
police  custody, suspects in custody must  be
explicitly  informed of their  right  not  to
incriminate themselves, and they  must  waive
this right before the interrogation proceeds.
But  Rivers  was not in custody  for  Miranda
          The  second  exception  applies  to
situations where a persons very assertion  of
the   privilege   against  self-incrimination
triggers  a penalty.  In such instances,  the
persons statements will be deemed involuntary
because   the  person  has  been   unlawfully
deterred from asserting the privilege.4
          But for purposes of this exception,
one  must  distinguish  situations  where   a
person will be penalized for the very act  of
asserting  the  privilege (e.g.,  the  person
will  lose  their  job  if  they  assert  the
privilege,  regardless of the other  evidence
in  the  case) from situations where a person
is free to assert the privilege but they then
run  the  risk  that, based on the  remaining
evidence, the court or administrative  agency
will  decide  the  case  against  them.   The
exception   applies  only   to   the   former
situation, not the latter.5
          The  United  States  Supreme  Court
discussed  this point of law in Minnesota  v.
Murphy.6   Murphy was a probationer  who  was
summoned  to meet with his probation  officer
and  answer  questions about his  activities;
the   probation   officer  anticipated   that
Murphys answers (if truthful) would be  self-
incriminating.  Murphy answered the probation
officers  questions, and those  answers  were
later   used   against  him  in  a   criminal
prosecution.  On appeal, Murphy  argued  that
his answers were compelled within the meaning
of the Fifth Amendment.
          In   rejecting  this   claim,   the
Supreme    Court    carefully   distinguished
(a) Murphys legal obligation to meet with his
          probation officer and answer the officers
questions truthfully from (b) Murphys ability
to  invoke the Fifth Amendment if he believed
that   truthful   answers   would   tend   to
incriminate  him.   The Court  declared  that
even though Murphy was under legal compulsion
to  attend  the  meeting [with his  probation
officer]   and   to  answer  truthfully   the
questions of [the] probation officer,

[s]uch  compulsion  ... is  indistinguishable
from that felt by any witness who is required
to appear and give testimony[.]  ...  [I]t is
insufficient  to  excuse Murphys  failure  to
exercise the [Fifth Amendment] privilege in a
timely manner.

     ...     Murphys   probation    condition
proscribed  only  false statements;  it  said
nothing  about  his  freedom  to  decline  to
answer   particular  questions[,]  and   [it]
certainly  contained no suggestion  that  his
[continued] probation was conditional on  his
waiving his Fifth Amendment privilege[.]  ...

     ...  There  is  no direct evidence  that
Murphy  confessed because he feared that  his
probation  would be revoked  if  he  remained
silent.    Unlike  the  police  officers   in
Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct.
616,  17  L.Ed.2d 562 (1967), Murphy was  not
expressly  informed ... that an assertion  of
the  privilege would result in the imposition
of a penalty.  ...

     [And if] Murphy did harbor a belief that
his probation might be revoked for exercising
the  Fifth  Amendment privilege, that  belief
would   not   have   been  reasonable.    Our
decisions  have  made clear  that  [a]  State
could not constitutionally carry out a threat
to  revoke  [a  persons]  probation  for  the
legitimate  exercise of the  Fifth  Amendment
privilege.  ...  Indeed, in its brief in this
Court, the State [of Minnesota] submits  that
it  would not, and legally could not,  revoke
probation  for  refusing to answer  questions
calling    for   information    that    would
incriminate in separate criminal proceedings.

     ...   We  have not been advised  of  any
case  in  which  Minnesota has  attempted  to
revoke probation merely because a probationer
refused   to  make  nonimmunized  disclosures
concerning his own criminal conduct; and,  in
light of our decisions proscribing threats of
penalties for the exercise of Fifth Amendment
rights,  Murphy  could  not  reasonably  have
feared  that  the assertion of the  privilege
would have led to revocation.

Murphy, 465 U.S. at 437-39, 104 S.Ct. at 1147-
          This   Court  applied   this   same
principle  in  John  v.  State,  35  P.3d  53
(Alaska  App.  2001),  where  we  rejected  a
defendants contention that his statements  to
a  pre-sentence investigator were involuntary
because  he was presented with the choice  of
either  fully answering the questions in  the
presentence  worksheet or risking  an  unjust
sentence.  Id. at 62-63.
          Rivers   found   himself   in    an
analogous  situation.  It may be  true  that,
based  on  the information available  to  the
Division of Employment Security, the Division
might  well have decided to terminate Riverss
unemployment benefits (and to initiate  legal
action against him for his earlier collection
of   unauthorized  benefits)  if  Rivers  had
invoked    his   privilege   against    self-
incrimination  and  had thereby  declined  to
offer any explanation of his situation.   But
there  is  nothing in the record  to  suggest
that   the  Division  would  have  terminated
Riverss   benefits  (or  imposed  any   other
penalty on him) based simply on the fact that
he invoked the privilege.  Thus, the Division
did   not   infringe  Riverss  constitutional
privilege against self-incrimination.
          (Alternatively,   if   Rivers   had
asserted    his   privilege,   AS   23.20.070
empowered  the Division to insist on  Riverss
answering  their questions despite his  claim
of   privilege   in  which  case,  under  the
statute,  Rivers would have received immunity
from  prosecution  for his  answers.   Again,
Riverss constitutional rights would not  have
been  abridged  because immunity is a  lawful
substitute  for the privilege  against  self-
          In sum, even though Rivers may have
been  obliged  to  attend  the  Division   of
Employment Security interview, and to  answer
the   questions  put  to  him  by  the  state
investigator,  this  is  not  a   basis   for
concluding   that   Riverss   answers    were
compelled  or  involuntary.  Riverss  answers
would be compelled or involuntary only if  he
was  threatened with a penalty for  asserting
          his privilege against self-incrimination and
refusing to divulge potentially incriminating
information.  This did not happen.
          The    superior   court   therefore
committed  error  when it suppressed  Riverss
statements to the investigator.

     1   AS 11.46.130(a)(1) & AS 11.46.180.

     2   AS 23.20.485.

     3 See United States v. Monia, 317 U.S. 424, 425-30, 63 S.Ct.
409,  409-12,  87 L.Ed. 376 (1943) (interpreting former  immunity
provision  of the Sherman Act, 15 U.S.C.A.  32, and finding  that
express assertion of privilege against self-incrimination is  not
required  where language in statute does not require it);  People
v.  King,  427  P.2d  171  (Cal. 1967) (interpreting  Californias
Insurance  Code  Section 12924(b) and concluding,  where  one  is
compelled  to testify the immunity attaches without the assertion
of  the privilege against self-incrimination in the absence of  a
statutory requirement for such an assertion.); People v.  Buffalo
Gravel  Corp.,  195  N.Y.S. 940, 945-46 (N.Y. Extra.  Trial  Term
1922)  (scope of New York Housing Commission Resolution  granting
immunity  for  testimony  sufficiently  broad  so  as  to  negate
necessity for asserting privilege against self-incrimination).

     4  See  United States v. Abrams, 357 F.2d 539, 549 (2d  Cir.
1966)  (defendant did not secure immunity under  former  immunity
subsection of 15 U.S.C.  77 (which included after having  claimed
privilege  clause)  by  testifying  before  an  examiner  of  the
Securities  and Exchange Commission, where defendant  never  made
contemporaneous claim of privilege when he testified);  People v.
Skelton,  167 Cal. Rptr. 636, 646 (Cal. App. 1980) (finding  that
the  plain  language  of  Californias Corporations  Code  Section
25531(e) clearly requires the privilege be claimed if immunity is
to  be obtained);  People v. Dist. Court of Arapahoe County,  894
P.2d  739,  743  (Col. 1995) (same).  See also 18 U.S.C.A.   6002
(West  2006)  (federal general immunity statute that supplemented
previous  federal  immunity statutes requires witness  to  assert
privilege  before immunity can attach).  Cf. 7455 Inc. v.  Oregon
Liquor  Control Commn, 800 P.2d 781, 783, 786 (Or. 1990) (statute
that authorizes transactional immunity for compelled testimony in
liquor licensing proceeding does not provide for automatic  right
to  immunities listed in statute based on issuance of subpoena by
Liquor  Control  Commission; witness must  invoke  right  not  to
testify  and  only  post-invocation  order  to  testify  triggers
immunity under statute).

5 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984).

     6 Id. at 422, 104 S.Ct. at 1139.

     7 Id. at 425, 104 S.Ct. at 1141.

     8 Id.

     9 Id. at 427, 104 S.Ct. at 1142.

10   Id. at 429, 104 S.Ct. at 1143.

     11   Id. at 429-30, 104 S.Ct. at 1143-44.

     12    384  U.S. 436, 467, 86 S.Ct. at 1602, 1624, 16 L.Ed.2d
694 (1966).

     13    Murphy, 465 U.S. at 430, 104 S.Ct. at 1143-44 (Miranda
requires  exclusion of incriminating statements  obtained  during
custodial  interrogation  unless suspect  fails  to  claim  Fifth
Amendment privilege after being suitably warned of his  right  to
remain  silent and of the consequences of his failure  to  assert
that right).

     14    Id.  at  430,  104 S.Ct. at 1144 (quoting  Roberts  v.
United  States,  445  U.S. 552, 560, 100  S.Ct.  1358,  1364,  63
L.Ed.2d 622 (1980)).

     15   Id. at 430 n.5, 104 S.Ct. at 1144 n.5.

     16   Id. at 430, 104 S.Ct. at 1144.

     17   Id. at 434, 104 S.Ct. at 1145.

     18   Id. at 435, 104 S.Ct. at 1146.

     19   Id. at 437, 104 S.Ct. at 1147.

     20   Id. at 438, 104 S.Ct. at 1148.

     21   Id.

1  Minnesota v. Murphy, 465 U.S. 420, 434-35; 104 S.Ct.
1136, 1146; 79 L.Ed.2d 409 (1984); Beaver v. State, 933
P.2d 1178, 1181 (Alaska App. 1997).

2 Murphy, 465 U.S. at 427-28, 104 S.Ct. at 1142; Beaver,
933 P.2d at 1181; Williams v. State, 928 P.2d 600, 606-
07 (Alaska App. 1996).

3 See Beaver, 933 P.2d at 1181.

4 Murphy, 465 U.S. at 434-35, 104 S.Ct. at 1146; Beaver,
933 P.2d at 1181.

5 See Garrity v. New Jersey, 385 U.S. 493, 500; 87 S.Ct.
616,  620;  17 L.Ed.2d 562 (1967) (holding that  it  is
unlawful to use incriminating answers given by a police
officer  after the officer was deterred from  asserting
the  Fifth Amendment privilege by warnings that, if  he
asserted  the privilege, he would be fired).  See  also
Gardner v. Broderick, 392 U.S. 273, 279; 88 S.Ct. 1913,
1916;  20  L.Ed.2d  1082 (1968)  (holding  that  it  is
unlawful  to fire a police officer simply for  invoking
the Fifth Amendment privilege).

6 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984).

7 See Murphy v. Waterfront Commn of New York Harbor, 378
U.S. 52, 79; 84 S.Ct. 1594, 1609; 12 L.Ed.2d 678 (1964)
([A]  witness  may not be compelled to  give  testimony
which  may  be  incriminating ... unless the  compelled
testimony  and its fruits cannot be used in any  manner
by   ...   officials  in  connection  with  a  criminal
prosecution against him.); Hazelwood v. State, 836 P.2d
943,  952 (Alaska App. 1992) (Because the ultimate  aim
of  the  ...  privilege is to assure that no  compelled
statement  will  be  used  against  the  accused  in  a
criminal  case,  the Supreme Court has long  recognized
that  the ... protection against compulsory elicitation
of  potentially  incriminating statements  ...  may  be
properly  invaded  by  the  government,  but  only   in
exchange   for  a  guarantee  that  the  ...  compelled
statements or evidence derived therefrom ...  will  not
be [used against the person].).

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