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are encouraged to bring typographical or other formal
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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| STATE OF ALASKA, | ) |
| ) Court of Appeals No. A-9682 | |
| Petitioner, | ) Trial Court No. 3AN-04-1542 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| JERON BATTS, | ) |
| ) | |
| Respondent. | ) No. 2189 October 31, 2008 |
| ) | |
Petition for Review from the Superior Court,
Third Judicial District, Anchorage, Philip R.
Volland, Judge.
Appearances: W. H. Hawley Jr., Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
David W. M rquez and Talis J. Colberg,
Attorneys General, Juneau, for the
Petitioner. Margi A. Mock, Assistant Public
Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Respondent.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
We granted the States petition for review to decide two
issues that have arisen in Battss case. The first issue is
whether, when the defendant takes the stand at a criminal trial,
Alaska Evidence Rule 412 allows the government to impeach the
defendants testimony with statements unlawfully obtained from the
defendant during a custodial interrogation after the defendant
invoked the right to silence or counsel under Miranda v.
Arizona.1 The second issue is whether Evidence Rule 412 is
constitutional under Article I, Section 9 of the Alaska
Constitution if the rule permits this type of impeachment.
We conclude that Alaska Evidence Rule 412 does permit
the State to impeach a defendants testimony with statements
obtained in violation of the defendants invocation of the Miranda
right to silence or counsel. However, we conclude that this
evidence rule is unconstitutional under the Alaska Constitution
to the extent that it permits this impeachment in cases where the
violation of Miranda was either intentional or egregious by
which we mean a violation that would have been obvious to any
reasonable police officer.
Background facts and proceedings
Jeron Batts was arrested on February 14,
2004, for the shooting death of Jeremiah Honeyblue.
Following Battss arrest, he was taken to the police
station, where he was interviewed by two detectives.
This interview was videotaped in its entirety, and
(with a small exception that is explained below) it was
also audiotaped.
Before the interview commenced, one of the
detectives (Kristie Ratcliff) advised Batts of his
Miranda rights, and Batts agreed to speak with the
detectives.
Batts told the detectives that, at the time
of his arrest, he had been driving near a Taco Bell
restaurant on Muldoon Road, and that he had just come
from a Williams/Mapco gas station. The following
exchange then occurred:
Detective: Okay. Where were you at
prior to the Mapco?
Batts: Prior to the Mapco?
Detective: Uh-huh.
Batts: Um, Id rather not answer.
Detective: Im sorry?
Batts: Id rather not answer.
Detective: So you where you were comin
from before the ...
Batts: Yeah.
Detective: Williams ...
Batts: Plead the Fifth.
Detective: Mapco.
Batts: Yeah, before [the] Mapco.
Detective: Uh-huh.
Batts: Plead the Fifth.
Detective: So you dont want to answer
that question?
Batts: No.
(As can be seen, Batts uttered the words
Plead the Fifth twice during this exchange.
However, for simplicitys sake, in the
discussion that follows we will refer to this
exchange as the first time that Batts said,
Plead the Fifth.)
The detectives continued the
interrogation, but they turned to other
issues. The following colloquy ensued, and
Batts said Plead the Fifth for a second time:
Detective: So you have no idea why
youre here?
Batts: Not really. I mean, when they
say shots were fired, [and] said it was a
vehicle like mine leavin the area, and then
that was it.
Detective: Okay. Is that your vehicle
that you were stopped in?
Batts: Uh-huh.
Detective: Okay. Was there anybody
else driving it tonight?
Batts: None of em were drivin. [But] I
had a friend with me.
Detective: Who was the friend that was
with you?
Batts: Plead the Fifth.
Detective: So you wont tell us who the
friend was that was with you?
Batts: Nah.
Batts did tell the detectives that his friend
was black, but when Batts was asked to
further describe him, he responded by saying,
Plead the Fifth.
The detectives continued the
interview. Batts asserted his Fifth
Amendment right to silence a total of
eighteen times during the interview, each
time by uttering the phrase, Plead the Fifth.
However, after the two instances quoted
above, the detectives stopped asking Batts to
clarify whether he was asserting his right to
silence with regard to a specific question,
or with regard to the interrogation in
general.
During this same portion of the
interview, Batts repeatedly told the police
that he did not shoot Honeyblue, and that he
had no grievance or ill-will toward
Honeyblue. Batts asserted that the passenger
in his car had shot Honeyblue and that the
shooting came as a complete surprise to
Batts.
When the detectives expressed
skepticism of Battss story, Batts declared
that he did not care what the detectives
thought, and then Batts referred to his need
to speak to a lawyer:
Batts: I dont really care what ... you
think [about my explanation]. I mean, all I
know is I have to talk to ...
Detective: You, you know who ...
Batts: ... a lawyer.
Detective: You know who you really need
to be concerned with?
Batts: Who?
Detective: What the District Attorney
thinks.
Batts: Uh.
Detective: Cause theyre the one that
files charges.
Batts: Man, I dont care about theyre
like as bad as you guys, really.
The interview continued for a few
more minutes, with Batts once more repeating
his assertions that he had no ill-feelings
toward Honeyblue and that the unnamed
passenger in his car had unexpectedly shot
Honeyblue. Then someone entered the
interrogation room to announce that there was
a phone call for the detectives. The
detectives stopped the interview and turned
off their tape recorder (although the video
camera continued to run). The interview
resumed ten minutes later:
Detective: The time is 9:45. Were back
on tape. ... Now, we havent talked to you
since we went off tape, is that correct?
[Note: The videotape confirms this.]
Batts: Uh-huh. Yeah.
Detective: We read you your Miranda
rights to begin with. You still recall all
those rights?
Batts: Yes. Yes I do.
Detective: Do you wish to still talk to
us now?
Batts: Yeah.
Detective: Okay. Um, a couple
questions I want to [put] to you real quick
is, uh, you saw this happen? What kind of
gun did your friend have?
Batts: I dont know.
Detective: Was [it a] big gun? Little
gun? Silver? Black?
Batts: I dont know, [I] honestly dont
know. [His] back was to me. I, I just heard
shootin.
The interview continued for approximately
another hour and twenty minutes. Throughout,
Batts consistently maintained that his
unnamed friend committed the homicide, and
that he himself was innocent of wrongdoing.
Batts was ultimately indicted for
first-degree murder and two counts of third-
degree misconduct involving weapons.2 As we
explain in more detail below, Batts has now
been tried twice for these crimes, and
neither jury was able to reach a verdict on
the murder charge.
Before Battss first trial, he moved
to suppress his statements to the police,
arguing (1) that he did not freely and
voluntarily waive his Miranda rights; (2)
that his statements were taken in violation
of his Miranda rights to counsel and silence;
and (3) that his statements were involuntary.
Superior Court Judge Philip R. Volland denied
the motion in part and granted it in part.
Judge Volland rejected Battss first
argument; he ruled that Batts freely and
voluntarily waived his Miranda rights after
the police advised him of those rights. But
the judge agreed that Batts had been
interrogated in violation of his Miranda
right to silence: he suppressed all of
Battss statements after Batts said Plead the
Fifth for the third time because, at that
point, the officers stopped clarifying
whether Batts had invoked his right to
silence generally or was simply declining to
answer a specific question. Judge Volland
concluded that, even though the detectives
had clarified Battss first two declarations
of Plead the Fifth, Alaska law required the
detectives to keep asking clarifying
questions each and every time Batts made this
declaration.
At Battss first trial, Batts took
the stand and gave an account of events that
varied sharply from the account he gave the
police. Batts testified that he was the one
who shot Honeyblue, and that he did so in
self-defense.
Batts asserted that Honeyblue had
been a member of two gangs known as the
Boniface Clique and the Face-Side Killers,
and that Honeyblue had threatened to kill him
on several previous occasions. Batts further
testified that, on the night of the shooting,
he was in Honeyblues neighborhood to pick up
his date, Jessica McGee, who lived in a
trailer two spaces away from Honeyblues
trailer. Batts said that he was walking
toward McGees trailer when Honeyblue drove up
in a car, pointed a gun at him, and
threatened to kill him right where [he
stood]. Batts testified that, in response to
this threat, he pulled out his own gun and
shot Honeyblue, and then he left the scene.
After Batts gave this testimony,
the State sought to impeach Battss claim of
self-defense by playing the videotape of
Battss post-arrest interrogation including
the portions that had been suppressed by
Judge Volland. The State relied on Evidence
Rule 412(1)(B), which states (in pertinent
part):
Evidence illegally obtained shall not be
used [against the defendant in a criminal
prosecution] over proper objection by the
defendant ... for any purpose except:
(1) a statement illegally obtained in
violation of the right to warnings under
Miranda v. Arizona [citation omitted] may be
used in
. . .
(B) any prosecution, to impeach the
defendant ... who made the statement if
the prosecution shows that the statement
was ... otherwise voluntary and not
coerced, and [if the statement was]
recorded, if required by law[.]
At Battss first trial, Judge
Volland denied the States motion because he
interpreted Evidence Rule 412(1)(B) as
applying only to statements that are
illegally obtained when the police fail to
give proper Miranda warnings to the
defendant. The judge concluded that Rule
412(1)(B) did not apply to cases where the
police properly administer the Miranda
warnings but then fail to honor the
defendants invocation of the rights to
silence or counsel. Because that was the
situation in Battss case, Judge Volland
concluded that the State could not use Battss
suppressed statements to impeach his trial
testimony.
The jury was not able to reach a
verdict on any count at Battss first trial,
and Judge Volland declared a mistrial.
Before Battss second trial, Judge
Volland reconsidered and reversed his
ruling on the scope of Evidence Rule 412.
This time, the judge concluded that Rule 412
did in fact allow the State to impeach a
defendant with statements obtained in
violation of the defendants invocation of
Miranda rights (not just statements obtained
after the police failed to give proper
warnings). But Judge Volland then held that
Rule 412, interpreted in this fashion, was
unconstitutional under the self-incrimination
clause of the Alaska Constitution (Article I,
Section 9).
At this point (i.e., before Battss
second trial), the State filed a petition for
review of Judge Vollands decision, but we
denied the States petition and the parties
proceeded to the second trial.
At his second trial, Batts gave
essentially the same testimony that he gave
at his first trial. Again, the jury was
unable to reach a verdict on the murder
charge although the jury found Batts guilty
of one count of misconduct involving weapons
(possession of a firearm with an altered
serial number). Batts subsequently pleaded
no contest to the remaining count of weapons
misconduct (possession of a concealable
firearm by a felon).
Following this second incomplete
trial on the murder charge, the State again
petitioned this Court to review Judge
Vollands ruling. This time, we granted the
petition and ordered briefing.
The State takes the position that
Judge Vollands most recent interpretation of
Evidence Rule 412 is correct i.e., that the
rule allows the State to impeach Battss
testimony using the suppressed statements
from the police interview but the State
argues that Judge Volland was wrong to hold
that this rule is unconstitutional.
Batts, for his part, contends that
Judge Vollands initial interpretation of Rule
412 was correct. That is, Batts argues that
Rule 412 only authorizes the use of
statements obtained after the police fail to
properly administer Miranda warnings, and
that the rule does not authorize admission of
statements obtained after the police provide
proper Miranda warnings but then fail to
honor a suspects invocation of Miranda
rights. Batts further asserts that if Rule
412 is interpreted in the manner proposed by
the State, the rule is unconstitutional.
Analysis
With certain exceptions, Alaska Evidence Rule 412
allows impeachment of a defendants trial testimony
with statements obtained after the police fail to
honor the defendants Miranda rights to silence and
counsel
As explained above, Evidence Rule 412 allows
a defendant to be impeached with statements obtained in
violation of the right to warnings under Miranda. The
parties disagree as to the meaning of this phrase.
Batts contends that this language should be interpreted
literally that it applies only to instances where the
police fail to administer proper Miranda warnings to a
suspect. The State, on the other hand, contends that
this language encompasses not only instances where the
police fail to adequately warn a suspect of the Miranda
rights, but also instances where the police give
adequate warnings but then fail to properly honor an
invocation of those rights.
Phrased another way, the controversy is
whether the Alaska Legislature (the author of Alaska
Evidence Rule 412(1)(B)) intended Rule 412 to codify
not only the United States Supreme Courts decision in
Harris v. New York3 but also the Supreme Courts later
decision in Oregon v. Hass.4
The decisions in Harris v. New York and Oregon v.
Hass
Statements obtained in violation of Miranda
are normally inadmissible. But in Harris v. New York,
the Supreme Court carved out an impeachment exception
to this rule of exclusion.
In Harris, the advisement of Miranda rights
was defective because the police failed to advise the
defendant of his right to appointed counsel if he could
not afford to hire one.5 The government conceded that,
because of this flaw, Harriss statements were obtained
in violation of Miranda, and the government made no
attempt to use these statements in its case-in-chief.6
But after Harris took the stand and gave an
account of events which contradicted the statements he
made to the police, the trial judge allowed the
government to impeach Harris with those prior
inconsistent statements although, in accordance with
New York law,7 the judge instructed the jury that the
statements attributed to [the defendant] could be
considered only in [assessing the defendants]
credibility [as a witness] and not as [direct] evidence
of guilt.8
The United States Supreme Court upheld this
use of the defendants statements for impeachment
purposes. The Court conceded that some of what it had
said in Miranda [could] indeed be read as indicating a
[complete] bar to [the] use of an uncounseled statement
for any purpose, but the Court declared that any such
comments in Miranda were dicta and [could not] be
regarded as controlling, so long as the trustworthiness
of the evidence satisfies legal standards.9
The Court then explained why it concluded
that Harriss prior inconsistent statements to the
police should be admissible:
[Harriss] testimony in his own behalf
... contrasted sharply with what he told the
police shortly after his arrest. The
impeachment process here undoubtedly provided
valuable aid to the jury in assessing [his]
credibility, and the benefits of this
[impeachment] process should not be lost ...
because of the speculative possibility that
impermissible police conduct will be
encouraged thereby. ... [S]ufficient
deterrence flows [from the fact that] the
evidence in question is made unavailable to
the prosecution in its case in chief.
Every criminal defendant is privileged
to testify in his own defense, or refuse to
do so. But that privilege cannot be
construed to include the right to commit
perjury. [Citations omitted] Having
voluntarily taken the stand, [Harris] was
under an obligation to speak truthfully and
accurately, and the prosecution here did no
more than utilize the traditional truth-
testing devices of the adversary process.
...
The shield provided by Miranda cannot be
perverted into a license to use perjury by
way of a defense, free from the risk of
confrontation with prior inconsistent
utterances.
Harris, 401 U.S. at 225-26, 91 S.Ct. at 645-
46.
Four years later, in Oregon v.
Hass, the Supreme Court applied its holding
in Harris to a case in which the defendant
received proper Miranda warnings but the
police failed to honor the defendants ensuing
request to contact an attorney.10 The
Supreme Court again emphasized that the
shield provided by Miranda is not to be
perverted to a license to testify
inconsistently, or even perjuriously, free
from the risk of confrontation with prior
inconsistent utterances.11
The legislative history of Alaska Evidence Rule 412
As we explained above, the State asserts that
the Alaska Legislature intended to codify the
entirety of the Harris/Hass rule when it enacted
the current version of Evidence Rule 412 in 2004,
while Batts asserts that the legislature intended
a narrower exception to the exclusionary rule:
one that pertains only to evidence obtained when
the police fail to give proper Miranda warnings
(the situation presented in Harris), and which
does not cover evidence obtained when the police
fail to honor a suspects invocation of the right
to silence or counsel (the situation presented in
Hass).
The wording of the rule in particular, the
clause obtained in violation of the right to warnings
under Miranda appears to support Battss
interpretation. But the wording of the rule is not
conclusive, because Alaska does not adhere to the plain
meaning approach to statutory interpretation. Instead,
Alaska courts apply a flexible approach which allows a
court to look to the legislative history of a statute
even if its language is plain on its face12 although
the plainer the language of the statute, the more
convincing any contrary legislative history must be.13
Before the legislature amended Evidence Rule
412 in 2004, the rule allowed only a very limited use
of voluntary statements obtained in violation of the
right to warnings under Miranda: these statements
could not be used over the defendants objection in any
criminal trial except a separate prosecution for
perjury.14
In the 2004 legislative session, several
legislators advocated amending the rule in response to
an Anchorage criminal case, State v. Wallner.15 The
defendant in Wallner was charged with murdering his
wife.16 During a custodial interrogation, the police
apparently continued to interrogate Wallner after he
invoked his right to counsel, and (because of this) the
superior court suppressed the statements that Wallner
made during the ensuing questioning. At his trial,
Wallner took the stand and gave an account of events
that was quite different from his suppressed statements
to the police.
Although the jury convicted Wallner even
without hearing his contradictory statements to the
police,17 the legislature concluded (as a policy
matter) that the State should have been allowed to use
Wallners pre-trial statements to impeach his trial
testimony.18
In committee debate on this proposed
amendment of Evidence Rule 412, the legislators did not
explicitly discuss the distinction that is being
litigated in the present appeal. That is, the
legislators did not distinguish (1) statements obtained
after the police fail to give the defendant proper
Miranda warnings, from (2) statements obtained after
the police fail to honor the defendants invocation of
the Miranda rights to silence or counsel. But the
committee discussion, taken as a whole, shows that the
legislators believed that the proposed amendment to
Rule 412 would make both categories of statements
admissible to impeach a defendant who took the stand.
For instance, Representative Ralph Samuels,
one of the sponsors of the amendment, told his fellow
legislators that the aim of the amendment was to adopt
the impeachment rule that was followed in the federal
courts and in the courts of some thirty other states.19
Stephen Branchflower, who was then the director of the
Office of Victims Rights, likewise told the legislature
that the proposed new version of Evidence Rule 412 was
designed to allow impeachment of a defendant whenever
the defendant gave testimony at trial that was
inconsistent with the defendants earlier statements to
the police.20 And House Judiciary Committee Chair
Lesil McGuire stated that the proposed amendment would
prevent defendants from using Miranda as a sword. She
declared that, under the amended version of Rule 412,
defendants would no longer be free to take the stand at
trial and say whatever they want, secure in the
knowledge that the fact that they have made prior
inconsistent statements will not be introduced or
become part of the record for the jury to consider.21
Batts nevertheless argues that the
legislatures aim was narrower. He points to remarks
made by Senator Hollis French to the Senate Judiciary
Committee during an explanation of the proposed
amendment. In his remarks, Senator French discussed a
hypothetical case in which the defendant did not
receive proper Miranda warnings.22 But elsewhere,
during the same committee session, Senator French told
the Judiciary Committee that the proposed amendment
would allow the government to impeach a defendant with
statements obtained in violation of the defendants
Miranda right to counsel [if] the defendant takes the
stand at his trial and tells a contradictory story.23
In sum, the legislative history of the 2004
amendment to Alaska Evidence Rule 412 demonstrates that
the legislature intended to authorize impeachment of a
defendant with statements suppressed because of a
violation of the defendants Miranda rights, whether
that violation consisted of a failure to give proper
warnings or a failure to honor the defendants
invocation of the right to silence or counsel.
It is true that the committee debates contain
repeated references to the Harris rule. But given the
context of the discussion and the examples cited above,
we conclude that these references to the Harris rule
should be read as shorthand references to the federal
rule as it existed in 2004 that is, to the Harris rule
as expanded by the decision in Hass.
As explained above, the Harris/Hass rule does
not distinguish between the two types of Miranda
violations. In either case (i.e., whether the Miranda
violation consists of a failure to give proper warnings
or a failure to honor the defendants invocation of the
right to silence or counsel), illegally obtained
statements may be used to impeach a defendant who takes
the stand (assuming that the statements are voluntary).
During the debates regarding Evidence Rule 412 in the
2004 Alaska Legislature, no legislator suggested that
the impeachment authorized by the amended rule should
be limited to situations where the police failed to
give proper Miranda warnings.
Thus, although the wording of Evidence Rule
412 might suggest that only statements obtained
following improper Miranda warnings can be used to
impeach a defendant, the legislative history of Rule
412 shows that legislators intended the rule to apply
to all statements obtained in violation of Miranda.
The constitutional limitations on Evidence Rule 412
We now turn to the question of whether
Evidence Rule 412 (as we have interpreted it here)
violates the Alaska Constitution.
Obviously, Alaska Evidence Rule 412 does not
violate the Federal Constitution because, by
definition, the United States Supreme Courts decisions
in Harris and Hass are consonant with the Federal
Constitution. But the Alaska Constitutions privilege
against self-incrimination has been interpreted to
impose greater restrictions on the government than the
federal Fifth Amendment. As our supreme court
explained in Munson v. State,
While ... the language of [Article I,
9] is virtually identical to the wording of
the Fifth Amendment [to] the United States
Constitution, ... we have interpreted 9 more
broadly than the [United States] Supreme
Court has construed the Fifth Amendment [to]
the Federal Constitution. Scott v. State,
519 P.2d 774, 785 (Alaska 1974). In so
doing, we noted our responsibility to depart
whenever necessary from constitutional
interpretations enunciated by the United
States Supreme Court and to develop rights
and privileges under the Alaska Constitution
in accordance with our own unique legal
background. Id. at 783. We [further noted
that] [w]e are not bound to follow blindly a
federal constitutional construction of a
fundamental principle if we are convinced
that the result is based on unsound reason or
logic. Id.
More recently, in State v. Gonzalez, 825
P.2d 920 (Alaska App. 1992), the court of
appeals expressed hesitation to blindly
adhere to changes in federal constitutional
law where unexpected decisions of the Supreme
Court have forced a serious reevaluation of
... fundamentals. Id. at 931 (internal
citations omitted). Ultimately, the court
[of appeals] concluded that [t]he United
States Supreme Courts decisions interpreting
the fifth amendment do not decide the meaning
of the Alaska privilege, and similarity in
language does not make the United States
Supreme Court the primary interpreter of
article I, 9. Id.
Munson, 123 P.3d 1042, 1049 n. 48 (Alaska
2005).
As noted in this passage from
Munson, when Fifth Amendment decisions of the
United States Supreme Court [force] a serious
reevaluation of ... fundamentals, the courts
of this state are obliged to consider whether
the self-incrimination clause of the Alaska
Constitution should be interpreted to provide
greater protection than its federal
counterpart. The United States Supreme
Courts decisions in Harris and Hass rest on
a serious reevaluation of two competing
fundamental values: (1) preservation of the
Miranda protections by employing the
exclusionary rule to deter the police from
violating Miranda, versus (2) preservation of
the integrity of the judicial process against
the threat that potential perjury will go
unchallenged because the impeaching evidence
has been suppressed.
In Harris and Hass, the Supreme
Court weighed these two competing values and
concluded that, when a defendant chooses to
testify at trial, the value of enforcing
Miranda through application of the
exclusionary rule is less important than the
value of preserving the integrity of the fact-
finding process at the trial. The Court
declared that defendants should not be
allowed to use [t]he shield provided by
Miranda as a license to [commit] perjury [to
support] a defense, free from the risk [that
they would be confronted] with [their] prior
inconsistent utterances.24
As we explained in the preceding
section of this opinion, the Alaska
Legislature intended the current version of
Evidence Rule 412 to embody this same
balancing of the two competing interests.
But even before the legislature
amended Evidence Rule 412, the rule already
codified the concept that the value of
deterring police misconduct through the
exclusionary rule was sometimes outweighed by
the competing value of deterring perjury.
The pre-2004 version of Evidence Rule 412
(the version written by the Alaska Supreme
Court) was also based on a weighing of these
two competing values although the balance
struck in this earlier version of the rule
was different from the Harris/Hass balance
that is now codified in the current rule.
Under the pre-2004 version of Rule
412, if the government obtained statements
from the defendant in violation of Miranda,
the government was barred from using those
statements to impeach the defendants
testimony at trial, but the statements could
be used against the defendant if the
government initiated a separate perjury
prosecution against the defendant. In other
words, defendants could testify at trial free
from the risk [that they would be confronted]
with [their] prior inconsistent utterances,
but these defendants would be subject to the
risk that the government could then prosecute
them for perjury.
The fact that the Alaska Supreme
Court enacted a version of Evidence Rule 412
that allowed any use even this limited use
of statements obtained in violation of
Miranda strongly suggests that the self-
incrimination clause of the Alaska
Constitution does not constitute a total bar
to the use of such statements.
We acknowledge that the supreme
courts promulgation of a court rule does not
constitute a formal judicial declaration that
the rule is constitutional. The supreme
court might later conclude, following
litigation, that the rule they adopted was in
fact unconstitutional in one or more
respects. But just as statutes enacted by
the legislature are entitled to a presumption
of constitutionality,25 so too the court
rules promulgated by our supreme court in
their legislative capacity (pursuant to
Article IV, Section 15 of the Alaska
Constitution) are entitled to a presumption
of constitutionality.26
For this reason, we must presume
that the Alaska Constitution does not require
complete suppression of statements obtained
in violation of Miranda and that, at the
least, it is constitutional for the
government to rely on these statements as the
basis for a later perjury prosecution against
a defendant who testifies at trial.
The method of analysis adopted by the Alaska Supreme
Court in Sears, Elson, and Waring
The next question is whether, consistent with
the Alaska Constitution, statements obtained in
violation of Miranda can be used in the underlying
criminal trial itself to impeach a defendant who
takes the stand.
It is true that the supreme courts version of
Evidence Rule 412 (i.e., the pre-2004 version of
the rule) did not authorize this use of statements
obtained in violation of Miranda. But we do not
believe that this former version of Rule 412
necessarily defined the outermost limit of the
permitted use of such statements. Rather, the
Alaska Supreme Court has repeatedly declared that
the scope of the Alaska exclusionary rule will
vary in different contexts and that the extent of
the required exclusion of evidence in any
particular context will hinge on a weighing of
societys competing interests.
In State v. Sears, 553 P.2d 907 (Alaska
1976), the supreme court declared that the exclusionary
rule has two main purposes: (1) the deterrence of
unconstitutional methods of law enforcement, and (2)
the preservation of judicial integrity by ensuring
that the courts are not made party to lawless invasions
of the constitutional rights of citizens. Id. at
912.27 But the supreme court also indicated that these
purposes are not always paramount. Rather, the
question of whether the exclusionary rule should be
applied in a particular legal context hinges on a
balancing of (1) the degree to which application of the
exclusionary rule can be expected to deter police
misconduct and (2) the degree to which the integrity of
the judicial system would be compromised by the use of
the illegally obtained evidence, versus (3) the need to
use the illegally obtained evidence to further other
important societal purposes. Id. at 912-13.
In Sears, the supreme court engaged in this
balancing process and concluded that evidence obtained
during an illegal search can be used in a probation
revocation proceeding unless the search constituted
shocking misconduct, or unless the police carried out
the illegal search knowing that the target of their
activities was a probationer (because, in such
circumstances, application of the exclusionary rule
would significantly deter unlawful searches and arrests
directed at probationers). Id. at 914.
Six and a half years later, in Elson v.
State, 659 P.2d 1195 (Alaska 1983), the supreme court
applied this same balancing test and concluded that
illegally obtained evidence could be used at a
defendants sentencing because the needs of the
judicial system in sentencing proceedings outweigh the
possible benefits of applying the exclusionary rule [to
sentencing proceedings]. Id. at 1202. Again, the
supreme court stated that the exclusionary rule would
be applied if the evidence was obtained as a result of
gross or shocking police misconduct, id. at 1205, or
if the police engaged in an unlawful search or seizure
knowing at the time that the suspect was facing trial
or sentencing on other charges, id. at 1204 n. 28.
Later that same year, in Waring v. State, 670
P.2d 357 (Alaska 1983), the supreme court decided that
evidence obtained in violation of one co-defendants
Fourth Amendment rights could be used in the
prosecution of the other co-defendants. The court
reasoned that when police officers conduct searches or
seizures of an individuals person or property, they
generally act for the purpose of prosecuting that
individual, rather than for the purpose of prosecuting
a co-defendant and that, for this reason, the purposes
of the exclusionary rule are generally satisfied by
exclusion of the resulting evidence [from] the trial of
the defendant whose rights were violated. Id. at 361.
Employing the same balancing analysis used in
Sears and Elson, the supreme court concluded that
evidence obtained in violation of one defendants rights
would generally be admissible at a co-defendants trial
because application of the exclusionary rule in this
context would not add measurably to the exclusionary
rules deterrent effect, and it would defeat societys
need for reliable evidence when assessing the co-
defendants guilt or innocence. Id. at 361-62. Again,
however, the supreme court cautioned that the
exclusionary rule would be applied at a co-defendants
trial if the evidence was obtained as a result of gross
or shocking misconduct, or if the police engaged in a
deliberate violation of the other persons rights for
the purpose of obtaining evidence to prosecute that co-
defendant. Id. at 362-63.
Assessing the constitutionality of Evidence Rule 412
using the analysis adopted by the Alaska Supreme Court
in Sears, Elson, and Waring
The supreme courts decisions in Sears, Elson,
and Waring illuminate the method of analysis we should
employ when determining whether the Alaska exclusionary
rule should be applied to prohibit the impeachment use
of statements that were obtained in violation of a
defendants Miranda rights. We must assess the degree
to which application of the exclusionary rule can be
expected to deter police misconduct and the degree to
which the integrity of the judicial system would be
compromised by the use of the illegally obtained
evidence, and then weigh these considerations against
the need to protect the judicial process against the
threat that potential perjury will go unchallenged
because the impeaching evidence has been suppressed.
One important factor in this analysis is an
examination of the presumed police motivation for
engaging in over-zealous interrogation of a suspect.
As we explained above, the supreme courts
decisions in Sears, Elson, and Waring were based in
large measure on the courts conclusion that police
officers generally do not investigate a suspects
potential criminal activities for the purpose of
revoking the suspects probation in another case, or for
the purpose of influencing the suspects sentence, or
for the purpose of obtaining the criminal conviction of
someone other than the suspect. Rather, in the main,
the police investigate a suspects potential criminal
activities for the purpose of determining whether the
suspect should be charged with the crime(s) under
investigation and, if the answer is yes, for the
purpose of obtaining evidence to prove the suspects
guilt at a criminal trial. Thus, the supreme court
concluded, the deterrent effect of the exclusionary
rule would not be appreciably diminished by allowing
the government to use illegally obtained evidence for
one of these three ancillary purposes.
But the use of statements obtained in
violation of Miranda at the defendants underlying
criminal trial even if this use is limited to
impeachment of a defendant who takes the stand
presents a much closer issue. We say this because,
unlike the legal contexts presented in Sears, Elson,
and Waring (i.e., the use of illegally obtained
evidence at a probation revocation hearing, or at a
sentencing hearing, or at someone elses criminal
trial), the use of statements obtained in violation of
Miranda to impeach a defendants trial testimony is more
closely related to the main purposes for which the
police conduct custodial interrogations.
It is reasonable to assume that, generally
speaking, when police officers interrogate a suspect
following an arrest, they hope to get the suspect to
confess or, at least, to make significant incriminatory
admissions so that these incriminatory statements can
be used to prove the suspects guilt at trial. The
officers do not act with the primary purpose of
obtaining statements that might be used to impeach the
suspect in the event that (1) the suspect is ultimately
charged with a crime based on independent evidence
(i.e., evidence apart from the statements obtained
during the interrogation), and (2) the case goes to
trial, and (3) the suspect takes the stand at trial,
and (4) the suspect offers an account of events that
varies from the statements given earlier to the police.
Nevertheless, it is reasonable to assume that
one of the reasons the police conduct post-arrest
interrogations is to try to get suspects to commit to
one version of the facts. Even if that version of the
facts is not self-incriminatory, the government will
still obtain the advantage of pinning the suspect down
to a particular version of events thus making it more
difficult for suspects to change their story after they
get the chance to examine all the police reports and
consult a defense attorney.
In other words, with regard to the
admissibility of statements obtained in violation of
Miranda, the police will undoubtedly be deterred from
misconduct by the prospect that the defendants
statements will be excluded from the governments case-
in-chief but this deterrent effect will be
significantly enhanced if the government is also
precluded from using the defendants statements to
impeach the defendants testimony.
Moreover, experience has shown that when
courts circumscribe the reach of the Miranda
exclusionary rule, police agencies adjust their
training and their investigative tactics to take
advantage of the change. A prime example of this was
presented to the United States Supreme Court in
Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159
L.Ed.2d 643 (2004).
In Seibert, the record showed that officials
of the local police department consciously decided to
take advantage of the Supreme Courts earlier decision
in Oregon v. Elstad28 by instructing officers that,
during custodial interrogations, they should refrain
from giving Miranda warnings until the suspects had
made as many self-incriminating statements as possible
at which point, the officers were to give Miranda
warnings and then have the suspects repeat their
incriminating statements.29
What this suggests is that, if we ratify the
constitutionality of Evidence Rule 412, our decision
will to some degree encourage police officers to
willfully continue custodial interrogations after a
suspect has invoked the right to silence or the right
to counsel. The police will know that the resulting
statements can at least be used to impeach the
defendants testimony at trial and, perhaps just as
good from the governments point of view, that the
existence of these statements may deter the defendant
from taking the stand.
Against this significant reduction in the
deterrent effect of the exclusionary rule, we must
weigh societys interest in protecting the judicial
process against the threat that potential perjury will
go unchallenged because the evidence that would impeach
the testimony has been suppressed.
Battss case presents an example of why this
societal interest is so important. Batts has been
tried for murder twice, each trial ending in a hung
jury. At both trials, Batts testified that he was the
one who shot Honeyblue, that he did so intentionally,
and that he acted in self-defense. This account of
events is substantially different from indeed,
irreconcilable with the account that Batts gave to the
detectives who interviewed him following his arrest.
We do not say that Batts has committed
perjury at his criminal trials. His trial testimony
may be true, and he may have lied to the detectives
(out of fear, or for some other reason). But the fact
that Batts gave the detectives such a different version
of events is surely something that jurors should be
aware of when they assess the credibility of Battss
claim of self-defense. As the United States Supreme
Court declared in Harris, a defendant who voluntarily
take[s] the stand [is] under an obligation to speak
truthfully, and the defendants testimony should be
subjected [to] the traditional truth-testing devices of
the adversary process.30
As we explained above, even the pre-2004
version of Evidence Rule 412 attempted to address this
concern by allowing the government to use statements
obtained in violation of Miranda in a separate
prosecution for perjury. The possibility of a later
perjury prosecution can reasonably be expected to deter
some instances of false testimony by criminal
defendants. However, the deterrence value of a future
perjury prosecution diminishes in direct proportion to
the amount of imprisonment that the defendant faces if
found guilty at trial.
Under Alaska law, perjury is a class B felony
with a maximum punishment of 10 years imprisonment.31
The possibility of serving up to 10 years in prison for
giving false testimony loses much of its deterrent
force if a defendant is being prosecuted for an offense
that carries a much greater penalty for instance, the
unclassified felony of first-degree murder, which
carries a maximum penalty of 99 years.32 In other
words, the possibility of a later perjury prosecution
loses its force to deter perjury in precisely those
cases where societys interest in deterring perjury is
greatest.
The final parameter to be considered is the
preservation of judicial integrity making sure that
the courts are not made party to lawless invasions of
the constitutional rights of citizens.33
In this context, the phrase lawless invasions
of ... constitutional rights does not encompass all
police conduct that violates the constitution. Rather,
as used by our supreme court in Sears, Elson, and
Waring, this phrase refers to intentional, gross, or
shocking police misconduct.34 See also the concurring
opinion of Justice Connor in Dimmick v. State, 473 P.2d
616, 629 (Alaska 1970), where he advocated the position
that, regardless of the normal limits on the
application of the exclusionary rule, the rule should
still be applied to all cases of police conduct which
is intentionally or flagrantly illegal.
To summarize our analysis of Evidence Rule
412: Because Rule 412 authorizes the government to
impeach testifying defendants with statements obtained
in violation of Miranda, Rule 412 significantly weakens
the exclusionary rules deterrent effect on police
violations of Miranda. At the same time, however, Rule
412 significantly advances the societal value of
preserving judicial proceedings against the threat of
potential perjury because the cross-examination
authorized by Rule 412 provides a far better mechanism
for deterring or detecting potential perjury in serious
felony cases than the separate perjury prosecutions
authorized by the previous version of the rule.
Across the whole spectrum of Miranda
violations encompassed by Evidence Rule 412, we find
these two competing values to be fairly evenly
balanced. That being so, the presumption of
constitutionality means that we should uphold the
constitutionality of the rule. However, we believe
that the goal of deterrence is paramount in two
situations: when the police intentionally violate
Miranda, and when the police engage in interrogation
(even in good faith) that any reasonable police officer
would know violates Miranda. Accordingly, we conclude
that Evidence Rule 412 is unconstitutional in part.
We hold that Article I, Section 9 of the
Alaska Constitution forbids the use of statements
obtained in violation of Miranda if the Miranda
violation was either intentional or egregious. For
this purpose, a Miranda violation is intentional if the
officer conducting the interrogation knew that further
questioning would violate Miranda but the officer
consciously chose to continue. Even if a Miranda
violation is not intentional (as defined in the
preceding sentence), a Miranda violation is egregious
if the violation would have been apparent to any
reasonable police officer.
To the extent that Evidence Rule 412 allows
the government to impeach a testifying defendant with
statements obtained as a result of an intentional or an
egregious Miranda violation, the rule is
unconstitutional. In such circumstances, there is an
unacceptable diminishment of the salutary function of
the exclusionary rule. The police must not be allowed
to make violation of Miranda a tactic, nor should the
government be allowed to profit from a Miranda
violation that no reasonable police officer would have
committed.
On the other hand, Evidence Rule 412 is
constitutional to the extent that it authorizes the
government to impeach a testifying defendant with
statements obtained as a result of Miranda violations
that are neither intentional nor egregious that is,
Miranda violations that occur even though the
interrogating officers are acting in good faith and are
making reasonable efforts to comply with Miranda.
The limited use of evidence admitted under Evidence
Rule 412
We need to address one more aspect of this
topic: the limited purpose for which evidence of a
defendants prior statements is admissible under
Evidence Rule 412.
As explained above, the legislative history
of Rule 412 demonstrates that the Alaska Legislature
intended to codify the rule of Harris and Hass the
rule followed in the federal courts. But if we were
simply to construe Rule 412 as allowing the government
to introduce evidence of a defendants prior
inconsistent statements, our law would be more
favorable to the government than the corresponding
federal law.
This stems from the fact that, under Alaska
law, evidence of a witnesss prior inconsistent
statements is admissible not only for whatever doubt it
may cast on the witnesss trial testimony, but also as
substantive evidence in its own right. See Beavers v.
State, 492 P.2d 88, 94 (Alaska 1971), and the
Commentary to Alaska Evidence Rule 801(d)(1)(A), third
paragraph.
Federal law, on the other hand, adheres to
the common-law rule: a defendants prior inconsistent,
unsworn statements given during police interrogation
can be used for impeachment purposes only. That is,
this evidence is not admissible to prove the truth of
any matters asserted, but only to the extent that it
assists the jury in evaluating the credibility of the
defendants trial testimony.35
This same rule of limited admissibility was
applied in Harris, which was litigated under New York
evidence law. As recounted by the Supreme Court, the
trial judge in Harris instructed the jury that the
statements attributed to [Harris] could be considered
only in [assessing Harriss] credibility [as a witness]
and not as [direct] evidence of [his] guilt.36
The jury in Hass received a similar
instruction37 because Oregon also adheres to the common-
law rule: a witnesss prior inconsistent statements are
admissible for impeachment purposes only.38
The legislative debates regarding Evidence
Rule 412 contain no explicit discussion of this
distinction between the law of Alaska and the law of
these other jurisdictions. But the legislative debates
do contain express assertions that the legislators
intended to codify the rule of Harris. Indeed, we note
that Representative McGuire, the chair of the House
Judiciary Committee, stated that even though House Bill
349 was silent on this subject, she assume[d] that any
judge would make it clear to the jury that they [could]
only take the [defendants prior] statements into
account for impeachment purposes, not [for] the
question of guilt or innocence.39
We accordingly hold that, when evidence of a
defendants prior statements is admitted under Evidence
Rule 412, this evidence can be used only for
impeachment purposes i.e., only for whatever relevance
it may have to assessing the credibility of the
defendants trial testimony. This evidence may not be
used as substantive evidence i.e., as independent
proof of any fact.
The admissibility of one portion of Battss post-arrest
interview with the detectives
We have already generally described Battss
post-arrest interview with the detectives. For Miranda
purposes, the interview can be divided into four parts
of which the superior court suppressed three.
The first part consists of the portion of the
interview from its beginning through the part where
Batts said Plead the Fifth for the first two times, and
the detectives clarified each time that Batts was
merely declining to answer a particular question,
rather than seeking to terminate the interview. (The
superior court ruled that this part of the interview
was admissible.)
The second part consists of the portion of
the interview where Batts continued to answer, Plead
the Fifth to various questions, but the detectives
stopped asking Batts to clarify his intention (i.e.,
stopped asking him to specify whether he was declining
to answer a particular question or whether, instead,
he wished to terminate the interview).
The third part consists of the portion of the
interview that begins with Battss reference to an
attorney and that continues up to the point where the
interview was interrupted for approximately ten
minutes.
Finally, the fourth part consists of the
portion of the interview after the detectives returned
to the interrogation room and reminded Batts of his
Miranda rights, and Batts expressed his wish to
continue talking to the detectives.
With respect to whether the third and fourth
parts of the interview are admissible to impeach Batts
(should he take the stand at his next trial), we must
remand Battss case to the superior court so that the
superior court can apply the test that we have
announced here i.e., so that the court can determine
whether the violation of Battss Miranda rights was
either intentional or egregious.
However, with respect to the second part of
the interview i.e., from the time when the detectives
stopped asking Batts to clarify the phrase, Plead the
Fifth, until the time when Batts referred to an
attorney the record and the law are clear enough to
allow us to conclude that Battss statements are
admissible under Evidence Rule 412.
When Judge Volland ruled that this part of
the interview should be suppressed, he relied on the
rule announced by the Fourth Circuit in United States
v. Riggs, 537 F.2d 1219 (4th Cir. 1976). Under the
Riggs rule, whenever a suspect makes an ambiguous or
equivocal statement concerning the right to remain
silent, all further interrogation must cease until the
police clarify the suspects desires.40 Judge Volland
concluded that the Riggs rule was most consistent with
the Alaska Constitution because, in Hampel v. State,
706 P.2d 1173 (Alaska App. 1985), this Court applied
essentially the same rule to a suspects ambiguous or
equivocal statements regarding the right to an
attorney.41
Despite this Courts decision in Hampel, it
remains debatable whether the Riggs rule accurately
represents Alaska law on this subject.
First, the Riggs rule is no longer good
federal law. In Davis v. United States, 512 U.S. 452,
461-62; 114 S.Ct. 2350, 2356; 129 L.Ed.2d 362 (1994),
the United States Supreme Court rejected this rule and,
instead, adopted the rule that police officers are
obliged to stop a custodial interrogation only if the
suspect makes a statement that, under the
circumstances, a reasonable police officer would
understand to be an unequivocal invocation of the
suspects rights.
Second, in the unpublished case of State v.
Munson, Alaska App. Memorandum Opinion No. 4494
(November 21, 2001), 2001 WL 1477918, this Court
decided that the Hampel restriction applied only to
ambiguous or equivocal invocations of the right to
counsel, and that it did not apply to ambiguous or
equivocal invocations of the right to silence. Id.,
Memorandum Opinion No. 4494 at pages 14-19, 2001 WL
1477918 at *7.
Four years later, this Courts decision was
reversed by the Alaska Supreme Court in Munson v.
State, 123 P.3d 1042 (Alaska 2005). However, the
supreme court did not decide whether the Hampel rule
applied to ambiguous or equivocal invocations of the
right to silence. Rather, the supreme court concluded
that Munsons statements to the police were obtained
unlawfully because Munson had unambiguously invoked
his right to silence. Id. at 1046-47.
Because the supreme court majority concluded
that Munson had unambiguously invoked his right to
silence, the majority did not reach the issue of what
restrictions the police should operate under when
responding to a suspects ambiguous or equivocal
reference to the right to silence. The majority noted
the United States Supreme Courts decision in Davis (see
Munson, 123 P.3d at 1048-49 & nn. 40 & 43), but they
declared that they did not have to decide whether the
police have an obligation to clarify an ambiguous
invocation of the right to silence [or] whether the
dual prongs of Miranda [i.e., invocations of the right
to silence versus invocations of the right to an
attorney] are entitled to differing levels of
protection. Munson, 123 P.3d at 1047.
In other words, when this Court decided
Munson, we rejected the interpretation of the law that
was adopted by the superior court in Battss case. And
when the supreme court overturned our decision in
Munson, the supreme court expressly left this issue
undecided.
The State has not petitioned us to review the
correctness of the superior courts decision to suppress
the second portion of Battss police interview, so we
need not revisit the legal issues raised and left
unresolved in Munson.
Rather, we decide a narrower issue: Assuming
the correctness of the superior courts suppression
ruling, is this second portion of Battss post-arrest
interview nevertheless admissible under Evidence Rule
412 to impeach Battss trial testimony?
As we have explained, in order to answer this
question, we must determine whether the Miranda
violation was either intentional or egregious.
By describing the litigation history of the
Munson case, we do not intend to express any opinion on
the legal issues raised in Munson. In particular, we
express no opinion on the question of whether the rule
announced by the United States Supreme Court in Davis
should be followed by the courts of Alaska in cases
where a suspect makes an ambiguous or equivocal
reference to the right of silence. Rather, our purpose
is to show that this issue remains unresolved under
Alaska law.
Because this issue is currently unresolved,
even if we assume that we or the Alaska Supreme Court
would ultimately agree with Judge Volland that the
detectives who interrogated Batts violated Miranda by
their responses to Battss repeated statements, Plead
the Fifth, that violation can not reasonably be
categorized as either intentional or egregious.
As shown by the quoted excerpts of Battss
post-arrest interrogation, the first two times that
Batts declined to answer the detectives questions, he
used the phrase Id rather not answer. Then he switched
to Plead the Fifth. When Batts first began using this
phrase, the detectives clarified that Batts meant he
did not want to answer that question, and then the
interrogation continued. Later, when the detectives
asked Batts to identify the person who he claimed had
been the passenger in his car, Batts again said Plead
the Fifth. The detectives immediately asked, So you
wont tell us who the friend was that was with you?
Batts answered, Nah.
Given this prologue, the detectives could
reasonably conclude that Battss subsequent statements,
Plead the Fifth, were likewise the equivalent of Id
rather not answer. Batts never said anything to alert
the detectives that he might be using the phrase to
mean something else. Moreover, although the detectives
stopped asking Batts to clarify his meaning each time,
they did not respond to Battss statements in a coercive
manner or in a way that suggested that it was futile
for Batts to continue to assert his Miranda right to
silence.
In sum, there is no evidence to support the
conclusion that the detectives Miranda violation
(if any) was either intentional or egregious.
Accordingly, this second portion of Battss post-arrest
interview is admissible to impeach his trial testimony
under Evidence Rule 412.
Conclusion
The superior courts ruling that Alaska
Evidence Rule 412 violates the self-incrimination
clause of the Alaska Constitution is REVERSED IN PART.
Evidence Rule 412 is constitutional to the extent that
it permits impeachment of a testifying defendant with
statements obtained in violation of Miranda as long as
the Miranda violation was neither intentional nor
egregious.
With respect to the particular case before
us, we conclude that if Batts takes the stand at his
trial, the State may properly impeach him with the
portion of his police interview that precedes his
reference to an attorney. We reach no conclusion with
respect to the remainder of the interview. The
admissibility of that portion must be decided by the
superior court using the test explained in this
opinion.
_______________________________
1 384 U.S. 436, 468-69; 86 S.Ct. 1602, 1624-25; 16 L.Ed.2d 694
(1966).
2AS 11.41.100(a)(1)(A), and AS 11.61.200(a)(1) and (6),
respectively.
3 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).
4 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975).
5 Harris, 401 U.S. at 224, 91 S.Ct. at 645.
6 Id., 401 U.S. at 223-24, 91 S.Ct. at 645.
7 See People v. Freeman, 176 N.E.2d 39, 41-42; 217 N.Y.S.2d 5,
8 (N.Y. 1961); People v. Ferraro, 293 N.Y. 51, 56; 55 N.E.2d
861, 863-64 (N.Y. 1944); Roge v. Valentine, 280 N.Y. 268,
276-277; 20 N.E.2d 751, 754 (N.Y. 1939).
8 Harris, 401 U.S. at 223, 91 S.Ct. at 644.
9 Id., 401 U.S. at 225, 91 S.Ct. at 645.
10 Hass, 420 U.S. at 715, 95 S.Ct. at 1217.
11 Id., 420 U.S. at 722, 95 S.Ct. at 1221.
12Curran v. Progressive Northwestern Ins. Co., 29 P.3d 829,
831 (Alaska 2001).
13Peninsula Marketing Assn v. State, 817 P.2d 917, 922 (Alaska
1991).
14The pertinent portion of the pre-2004 version of Rule 412
read: Evidence illegally obtained shall not be used over
proper objection by the defendant in a criminal prosecution
for any purpose except [that] a statement illegally obtained
in violation of the right to warnings under Miranda v.
Arizona, 384 U.S. 436 (1966), may be used in a prosecution
for perjury if the statement is relevant to the issue of
guilt or innocence and if the [government] shows that the
statement was otherwise voluntary and not coerced[.]
15See this Courts decision in Wallner v. State, Alaska App.
Memorandum Opinion No. 5060 (March 22, 2006), 2006 WL
744269.
16Id., Memorandum Opinion No. 5060 at 1, 2006 WL 744269 at *1.
17Id., Memorandum Opinion No. 5060 at 5, 2006 WL 744269 at *3.
18See the discussion of House Bill 349 (23rd Legislature) in
the Minutes of the House Judiciary Committee for January 26,
2004, and the Minutes of the Senate Judiciary Committee for
March 22, 2004.
19Minutes of the Senate Judiciary Committee for March 22, 2004
(discussion of House Bill 349).
20Minutes of the House Judiciary Committee for January 26,
2004, and Minutes of the Senate Judiciary Committee for
March 22, 2004 (discussion of House Bill 349).
21Minutes of the House Judiciary Committee for January 26,
2004 (discussion of House Bill 349).
22Minutes of the Senate Judiciary Committee for March 31, 2004
(discussion of House Bill 349).
23Minutes of the Senate Judiciary Committee for March 31, 2004
(discussion of House Bill 349).
24 Harris, 401 U.S. at 226, 91 S.Ct. at 646.
25 Bonjour v. Bonjour, 592 P.2d 1233, 1237 (Alaska 1979).
26 DeNardo v. ABC Inc. RVs Motorhomes, 51 P.3d 919, 928
(Alaska 2002).
27Quoting Terry v. Ohio, 392 U.S. 1, 13; 88 S.Ct. 1868, 1875;
20 L.Ed.2d 889 (1968).
28470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985).
29Seibert, 542 U.S. at 604, 610 n. 2; 124 S.Ct. at 2606, 2609
n. 2.
30Harris, 401 U.S. at 226, 91 S.Ct. at 646.
31AS 11.56.200(c) (perjury is a class B felony) and AS
12.55.125(d) (with certain exceptions not pertinent here,
the maximum term of imprisonment for a class B felony is 10
years).
32AS 12.55.125(a).
33Sears, 553 P.2d at 912.
34See Sears, 553 P.2d at 914, Elson, 659 P.2d at 1205, and
Waring, 670 P.2d at 362-63.
35Stephen A. Saltzburg, Michael M. Martin, and Daniel J.
Capra, Federal Rules of Evidence Manual (9th ed. 2006),
801.02[3][a], Vol. 4, p. 801-28.
36Harris, 401 U.S. at 223, 91 S.Ct. at 644.
37Hass, 420 U.S. at 717, 95 S.Ct. at 1218.
38See State v. Derryberry, 528 P.2d 1034, 1036-38 (Or. 1974);
Davis v. Clackamas County, 134 P.3d 1090, 1095 (Or. App.
2006).
39Minutes of the House Judiciary Committee for January 26,
2004 (discussion of House Bill 349).
40Riggs, 537 F.2d at 1222.
41Hampel, 706 P.2d at 1180.
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