Opposition Brief — Kwallek v. Alaska

VUPIENIG VUUIL, Vida

FILED

MAR 19 1988

JOSEPH F. SFANIOL, JR.

IN THE SUPREME COURT OF THE UNITED] STATESLERK

October Term, 1985 '

No. 85-1146

PATRICIA KWALLEK,

Petitioner,

vs.

STATE OF ALASKA,

Respondent.

RESPONSE OF THE STATE OF ALASKA

TO THE PETITION.FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS

OF THE STATE OF ALASKA

HAROLD M. BROWN

ATTORNEY GENERAL OF THE

STATE OF ALASKA

By: David Mannheimer

Assistant Attorney General

Office of Special Prosecu-

tions and Appeals

1031 W. 4th Ave.

Suite 318

Anchorage, Alaska 99501

(907) 279-7424

TABLE OF CONTENTS

Page

Table of Authorities iii

Jurisdiction 1

Question Presented 2

Statement of the Case 3

A. The Facts 3

B. Procedural Backaqround 9

Reasons for Denying the Writ

x Miranda Was Not Violated

Because Kwallek Was Not

In Custody 13

iz. Assuming Miranda Does

Apply, Kwallek's First

Statement About Talking

To Her Mother Was Not

An Unequivocal Asser-

tion of Her Right

To Remain Silent 18

oe The Alaska Court of

Appeals Properly Applied

the Harmless Error

Standard of Chapman Vv.

California in Conclud-

ing That the Error in

the Admission of

Kwallek's Statements

Made After the Second

Statement About Talking

to Her Mother Was

Harmless Beyond a

Reasonable Doubt 24

IV. This Court Does Not

Have Jurisdiction

to Consicer

the Dovle Issue 30

CONCLUSION BE

APPENDIX

TABLE OF AUTHORITIES

Page

Cases :

Beckwith v. United States,

425 U.S. 341 (1976) 14

California v. Beheler,

463 U.S. 1121 (1983) 13

Chapman v. California,

386 U.S. 18 (1967) 39, 24,

27

Davis v. Allsbrook,

778 F.2d 168

(4th Cir. 1985) 15

Doyle v. Ohio,

426 U.S. 610 (1976) Ly a2, 36,

31

Kwallek v. State,

Alaska App. Memorandum

Opinion No. 883

(July 24, 1985) 9

Lloyd A. Fry Roofing

Company v. Wood,

344 U.S. 157 (1972),

rehrg. denied,

345 U.S. 913 (1953) 28

-iii-

Michigan v. Mosley,

423 U.S. 96 (1975)

Michigan v. Tucker,

417 U.S. 433 (1974)

Miranda v. Arizona,

384 U.S. 436 (1966)

Oregon v. Mathiason,

429 J.S. 492 (1977)

Taylor v. Riddle,

563 F.2d 1336

(4th Cir. 1977)

cert. denied 434

U.S. 1020 (1978)

United States v. Mast,

735 F.2d 745

(2nd Cir. 1984)

United States v. Serlin,

707 F.2d 953

(7th Cir. 1979)

Vail v. State,

599 P.2da 1371

(Alaska 1979)

= iv-

Pade

i3,

14

20

15

15

20

Wilson v. Cook,

327 U.S. 474 (1946)

Statutes and Rules

28 U.S.C. §1257

28 U.S.C. §1257 (e)

Alaska R. Crim. P. 47(b)

-V-

Pade

32

32

12

;

JURISDICTION

Kwallek seeks discretionary

review of two issues: (1) an alleged

violation of Miranda v. Arizona, 384 U.S.

436 (1966), and (2) an alleged violation

of Doyle v. Ohio, 426 U.S. 610 (1976).

Kwallek has properly invoked this Court's

jurisdiction ~nder 28 U.S.C. §1257 with

respect to the Miranda issue. With

respect to the Doyle issue, Kwallek

satisfies the requirement of having re-

ceived a final judoment from the highest

state court in which a decision could be

had, but does not satisfy the requirement

of having a decision from the highest

state court on the merits of the claim.

This will be discussed more fully in the

Argument section of the State's response.

QUESTION PRESENTED

Should the ‘rial court have

suppressed Kwallek': statements made

after she indicated that she wanted to

talk her mother when the statements were

made during a non-custodial interview?

STATEMENT OF THE CASE

A. The Facts

Patricia Kwallek's husband was

shot five times in the chest, neck and

head as he was leaving for work on the

mornina of June 24, 1982. One of the

bullets entered his brain and was in-

stantly fatal.

When the state troopers arrived

at the scene, Kwallek was watching the

emergency medical technicians treat her

husband. Kwallek, clad in an off-white

robe, told the troopers that she did not

know what happened. She explained that

her husband had just left for work when

she heard some “popping” sounds and her

husband scream "Patsy". She ran outside

and found her husband lying by the shed.

She did not see anyone in the area, nor

did she hear any vehicles.

Seven neighbors were _ inter-

viewed. Six of them heard shots being

fired, while one heard nothing unusual

until the ambulance siren. Four of the

neighbors heard loud voices in addition

to the gunshots. Loy Price could not

make out what was being said. Lou Ann

ate

Cottle heard the words, "What are you

doing, I haven't done anything." and

"What's going on here." Mrs. Cottle was

certain that the voices she _ heard

belonged t9 a male, but she could not

tell whether the voices were froin one or

two individuals. Greq Boles heard only

one voice, that of a male screaming

something to the effect of "Oh, my God",

and “I d@i@n*t mean it.” Mr. Neitzke

heard two men shouting at each other, but

was unable to discern any words. None of

the neighbors saw anyone running away, or

any vehicle speeding away. .

The area surrounding the

Kwallek residence was searched for a

sniper. When no one was found, the

police began looking for evidence. Three

-22 caliber shell casings with "F" logos

on them and a live bullet were found by

the oil tank near the only door to the

Kwallek residence. Two brands of .22

caliber ammunition were found in the

second bedroom -- Federal (bearing an "F"

logo) and CCI (bearing a "C" logo). In

the attic, partially hidden under a box

and insulation, was a ey caliber

nin

automatic rifle belonging to the

Kwalleks. Ballistic tests confirmed the

police officers' suspicions that this was

the murder weapon.

The following afternoon Kwallek

agreed to be interviewed by Sgt. Lown and

Sat. Giass of the Alaska State Troopers.

The interview took place in “wallek's

kitchen. Eight minutes into the inter-

view Sgt. Lown advised Kwallek of her

Miranda rights, and Kwallek executed a

written waiver. Kwallek maintained that

she did not know who shot her husband.

She acknowledged that she was behind on a

lot of the bills and that she had not

told her husband because she feared he

would divorce her.

Near the end of the interview

three other troopers entered the Kwaliek

residence to execute search warrants.

These warrants authorized seizure of

financial records, a sample of insulation

from the attic, and the off-white robe

Kwallek was wearing when her husband was

shot. Copies of the warrants were given

to Kwaliek, and Sqt. Lown told her what

they were looking for. Sgt Lown then

=~

explained that she had been formally

served with copies of the warrants and

that the other troopers would conduct the

search. He then posed the following

question, "Do you have any questions

about that?" Kwallek responded, "No. I

think I should wait and talk with my mom

[when she] gets here before I say what to

do,”

Sgts. Lown and Glass_~ said

nothing further about the search

warrants, and switched the topic of

conversation back to the events of the

previous morning. They also questioned

Kwallek about the unpaid bills. Kwallek

explained that the bills had not been

paid because there was no money to pay

them. When asked where the money had

gone, Kwallek told the troopers that she

wanted to wait till her mother arrived

because her mother could help. Kwallek's

mother was due to arrive shortly and

Kwallek agreed to talk then. Sgt. Glass,

after informing Kwallek that the other

troopers would begin the search, asked

her where the bank records and checkbook

were kept, apparently to aid the troopers

~

in locating the items listed on the

warrant. Kwallek stated that her husband

did not have a checking account and that

she did not keep any books regarding

household expenditures. When asked why

she did not keep any records, Kwallek

reiterated that she wanted to wait until

her mother got there. The interview was

formally terminated at that time.

Kwallek later agreed to

accompany the troopers to the station and

wait for her mother there. While Kwallek

awaited the arrival of her mother, some

of the investigating troopers and the

district attorney met to discuss’ the

case. At that time the decision was made

to arrest Kwallek. Kwallek made no

further statements to the troopers after

she was placed under arrest.

Kwallek's robe was sent to a

crime lab for analysis. Substantial

amounts of lead residue was found on the

right sleeve. The pattern of residue was

consistent with the pattern which would

be created if Kwallek had pulled the

trigger of the murder weapon with her

left hand. Kwallek is left-handed.

~,

Substantial evidence of the

couple's financial problems was intro-

duced at trial, including outstanding

bills and letters from creditors. Sever-

al of Kwallek's friends testified that

Kwallek had borrowed a total of $11,500

from them. There was also evidence that

Kwallek's husband, who had been kept in

the dark about the financial problems,

had discovered the existence of two out-

standing bills just prior to the murder.

The state theorized that Kwailek and her

husband fought about finances on _ the

mornina of the murder and that her hus-

band had threatened to divorce her.

Kwallek claimed had no idea who

shot her husband or why. She proposed a

"mysterious gunman" who stole the murder

weapon from the Kwallek residence some-

time prior to the shooting, lay in wait

for Kwallek's husband to leave for work

on the morning of the murder, shot hin,

sneaked back into the Kwallek residence

through its only door, hid the murder

weapon in the attic, and then left

the Kwallek residence (all wichout being

seen by Kwallek or anyone else

Kwallek was indicted for murder

in the first deqree. A jury found her

guilty as charged.

B. Procedural Background

Kwallek appealed her conviction

to the Alaska court of appeals. She

argued, among other things, that she was

in custody from the beginning of the

interview and that her statement should

have been suppressed under Miranda v.

Arizona, 384 U.S. 436 (1966), because she

was not advised of her Miranda rights at

the beginning of the interview. Alterna-

tively, she contended that the portion of

the interview following her first state-

ment that she wanted to talk with her

mother should have been suppressed be-

cause the continued questioning violated

Miranda.

The court of appeals issued a

per curiam, unpublished opinion. kKwallek

v. State, Alaska App. Memorandum Opinion

No. 883 (July 24, 1985). (A copy of the

decision is attached to Kwallek's

wine

petition for writ of certiorari as

Appendix A. The state will cite the

decision as "Slip opinion, p. __.") The

court concluded that Kwallek was not in

custody at the start of the interview.

It assumed without decicina that the

interview had escalated into a custodial

interrogation at the time Kwallek was

advised of her Miranda rights. (Slip

opinion, p. 23 n.14) Proceeding on this

assumption, the court of appeals held

that Kwallek's initial statement about

talking to her mother was made in re-

sponse to a question about the _ search

warrants and, therefore, did not amount

to an unequivocal assertion of the right

to remain silent to all further question-

ino. (Slip opinion, p. 24) Kwallek's

second statement about talking to her

mother, however, did amount to an asser-

tion of her right to remain silent, so

the remaining dialogue should have been

suppressed. (Pet. App. A, p. 24-25)

Applying the harmless error standard set

forth in Chapman v. California, 386 U.S.

18 (1967), the court concluded that

Kwallek had not been harmed by the

atin

admission of the statements she made

after this point. (Slip opinion, p. 25)

Judge Singleton, in a concur-

ring opinion, disagreed about the

treatment of the custody issue. He would

affirm the trial court's finding that

Kwallek was not in custody during the

interview. Since Kwallek was not in

custody, Miranda did not apply, so there

was no reason to decide whether Kwallek

had invoked her right to remain silent.

(Slip opinion, p. 29-30) Judge Bryner

dissented. He implicitly determined that

Kwallek was in custody by the time she

said something about wanting to talk to

her mother. Judge Bryner would conclude

that Kwallek's first statement about

talking to her mother constituted an

unequivocal assertion of her right to

remain silent and that the failure to

suppress the remainder of the interview

was not harmless error. (Slip opinion,

p. 32-34)

For the first time on appeal

Kwallek argued that admission of the

statements about wanting to talk to her

mother amounted to- an impermissible

wltte

comment on her right to remain silent in

violation of Doyle v. Ohio, 426 U.S. 610

(1976). Because the issue had not been

raised in the trial court the court of

appeals applied the plain error standard

of review under Rule 47(b) of the Alaska

Rules of Criminal Procedure. It held

that even if there were error, the error

was not “obviously prejudicial". Given

this holding, the court decidec it was

not necessary to reach the merits of the

Doyle issue. (Slip opinion, p. 25-27)

Kwallek petitioned the Alaska

supreme couri to review the decision of

the court of appeals. The Alaska supreme

court denied review, and Kwallek has now

petitioned this Court for a writ of cer-

tiorari to the Alaska court of appeals

for review of its decision.

alt=

REASONS FOR DENYING THE WRIT

I. MIRANDA WAS NOT VIOLATED

BECAUSE KWALLEK WAS NOT IN

CUSTODY

In Miranda v. Arizona, 384 U.S.

436 (1966), this Court held that the

prosecution may not use statements made

during the course of a custodial interro-

gation unless it demonstrates that the

detained person was advised of and vo.iun-

tarily waived his right to remain silent

and his right to counsel. A defendant

may exercise his right to remain silent

or his right to counsel at any time

during a custodial interrogation. His

exercise of either or both of these

rights must be scrupulously honored. See

also Michigan v. Mosley, 423 U.S. 96, 104

(1975).

Cases decided Since Miranda

make it quite clear that Miranda warnings

need only be given to persons who have

been taken into custody or have otherwise

been deprived of their freedom of action

in any significant way. See e.q.,

California v. Beheler, 463 U.S. 1121

a4 Sa

(1983); Oreqon v. Mathiason, 429 U.S.

492, 495 (1977) (per curiam); Beckwith v.

United States, 425 U.S. 341, 345-46

(1976). The requirement that Miranda

warnings be given is limited to custodial

interrogations because of the coercive

nature of these interroaations. The

defendant, who is generally isolated in

the police station, may feel he is under

a compulsion to speak unless he is fully

advised of his rights. This inherently

coercive atmosphere is not present in

non-custodial settings, so Miranda warn-

ings are not required.

As this Court stated in

Michigan v. Tucker, 417 U.S. 433, 444

(1974):

The Court recognized that these

procedural safeguards [Miranda

warnings] were not themselves

rights protected by the

Constitution, but were instead

measures to insure that the

right against compulsory in-

crimination was protected.

Since Miranda warnings are not

rights in and of themselves, and since

Miranda applies only to those who are in

-14=-+

custody when interrogated, it follows

that Miranda and Mosley cannot be vio-

lated unless the person being questioned

is in custody at the time he made the

statements.

The defendant in Davis _v.

Allsbrook, 778 F.2d 168 (4th Cir. 1985),

voluntarily appeared at ‘the police sta-

tion for an interview. He was read the

Miranda warnings, and he signed a written

waiver agreeing to talk to the police.

Sometime into the interview the defendant

indicated that he no longer wanted to

talk to the police. Nevertheless the

police continued= asking questions.

Eventually he made some _ inculpatory

statements. The court of appeals for the

fourth circuit held that Miranda did not

apply because the defendant was not in

custody. Id. at 170. See also United

States v. Mast, 735 F.2d 745, 749 n.4

(2nd Cir. 1984); United States v. Serlin,

707 F.2d 953, 958 (7th Cir. 1983).

Kwallek was not in custody

during the June 25th interview. Thus,

Miranda does not apply. Kwallek was

oifa

;

interviewed in the kitchen of her home.

She was explicitly told at the beginning

of the interview that she was not under

arrest and that she could leave at any

time. The troorers did not place Kwallek

under arrest . several hours later.

The trial court found that

Kwallek was not in custody during the

interview. Kwallek appealed that finding

to the Alaska court of appeals. The

court of appeals dealt with it in two

ways. Judge Singleton concluded that the

trial court's finding was not clearly

erroneous. (Slip opinion, p. 30) The

per curiam opinion ruled that Kwallek was

not in custody at the beginning of the

interview, and assumed without deciding

that the interview had escalated into a

custodial interrogation by the time the

Miranda warnings were read... (Slip

opinion, p. 22-23) Kwallek did not

appeal the trial court's finding to the

Alaska supreme court, and has not sought

review of it by this Court. Since the

trial court's finding Kwallek was not in

custody during the interview has not been

overturned, Miranda does not apply.

alga

Kwallek's voluntary statements were

properly admitted at trial.

II. ASSUMING MIRANDA DOES

APPLY, KWALLEK'S FIPST

STATEMENT ABOUT TALKING TO

HER MOTHER WAS NOT _ AN

UNEQUIVOCAI, ASSERTION OF

HER RIGHT TO REMAIN SILENT

Kwallek's poli. 2 interview was

interrupted after about twenty minutes

when other troopers entered the Kwallek

residence to serve several search war-

rants. The topic of discussion turned to

the warrants. The following exchange

then took piace:

Sgt. Lown: We have a_e search

warrant here and you might

want to read it. This is

your copy of it, for your

nightgown, or your bath-

robe, or robe ..,

Kwalilek: (inaudible)

Sgt. Lown: ... and for a sample

of insulation out of your

attic; we also have a

search warrant here for

bank and bookkeeping

at Pa

records of your husband

and yourself.

Kwallek: Okay.

Sat. Lown: You are, you have

now been served with

copies of each of these

search warrants. We're

going to have the Troopers

outside, who are investi-

gators from Anchorage,

come in and conduct the

search. Do you have any

questions about that?

Kwallek: No. I think I should

wait and talk with my mom:

[when she] gets here be-

fore I say what to do.

Sgt. Lown: Okay.

The questioning then returned

to the events of the morning of the

murder. A few minutes later Kwallek told

Sgt. Lown that she did not want to talk

anymore until she had the opportunity to

confer with her mother.

The trial court and the Alaska

court of appeals properly concluded that

this initial statement by Kwallek about

wanting to talk to her mother was not an

~~

unequivocal assertion of the right to

remain silent. The flow of the interview

was interrupted when the troopers came in

to serve the warrants. Kwallek's state-

ment was in response to an inquiry

whether she had aquestions about’ the

warrants which she had just received.

Kwallek said she had no questions, but

that she wanted to talk to her mother

before saying what to do about’ the

warrants. Under the circumstances,

Kwallek's statement was not an unambid-

uous request to terminate the entire

interview. See Taylor v. Riddle, 563

F.2d 1336 (4th Cir. 1977), cert. denied,

434 U.S. 1020 (1978) (suspect's statement

that "[y]ou've done asked me a question I

can't answer," was an expression of his

inability to answer a question; it did

not amount to an invocation of his right

to remain silent); Vail v. State, 599

P.2d 1371, 1378 (Alaska 1979) (defend-

ant's remark that he did not want to talk

about his co-defendant was not an un-

equivocal assertion of his right to

remain silent).

ot$u

Kwallek asserts that Sgt. Lown

interpreted this response as an assertion

of her right to remain silent. She cites

to the following testimony given by Sat.

Lown at the omnibus hearing:

Q: [Defense counsel] Now, at

some point Mrs. Kwallek,

during the interview,

indicated that she didn't

want to talk any more, is

that correct?

A: [Sgt. Lown] Yes.

QO: At what point did_= she

first make that indica-.

tion?

A: She stated she did not

want to talk until after

she had talked to her

mother.

Q: All right, and was that

around the time when the

other troopers were coming

in to execute the war-

rants?

A: I believe it was.

Q: Did vou and Sergeant Glass

then continue to ask her

~.)

questions after that

point?

I believe she was asked a

few questions, yes.

Isn't it normal practice

that when the subject

requests that no more

questions be answered, or

asked rather, or requests

that she doesn't want to

talk any more, that the

officers are supposed to

discontinue questioning?

Yes.

But you nevertheless, you

and Sergeant Glass, con-

tinued to ask questions

after that point?

We asked her some general

questions, yes.

And did she, subsequent to

that first -- after she

first made an indication

she didn't want to talk

any more, or she wanted to

discontinue the question-

ing, did she repeat it at

a later time?

ott

A: General questions. (O.H.

Tr. 75-76)

This is a short excerpt from

Sat. Lown's extensive testimony concern-

ing a number of Kwallek's' pretrial

motions, including her motion to suppress

her June 25th statement. It is not clear

whether Sgt. Lown was referring to the

first statement about Kwallek's mother or

those which appear later in the inter-

view. Kwallek never presented Sgt. Lown

with a copy of the transcript of the

interview so that he could refer to a

specific statement by Kwallek. Given the

ambiguous nature of the testimony, and

Kwallek's failure to clarify it at the

omnibus hearing, she cannot now rely on

it as proof that Sgt. Lown interpreted

the first statement about talking to her

mother as an unequivocal assertion of her

right to remain silent.

on

III. THE ALASKA COURT OF AP-

PEALS PROPERLY APPLIED THE

HARMLESS ERROR STANDARD OF

CHAPMAN V. CALIFORNIA IN

CONCLUDING THAT THE ERROR

IN THE ADMISSION OF

KWALLEK'S STATEMENTS MADE

AFTER THE SECOND STATEMENT

ABOUT TALKING TO HER

MOTHER WAS HARMLESS BEYOND

A REASONABLE DOUBT

Near the end of their interview

with Kwallek, Sqt. Lown and Sat. Glass

asked questions about the Kwalleks' fi-

nancial situation and various’ unpaid

bills. They asked why the bills had not

been paid, and Kwallek st..ted there was

no money to pay them. The following

exchange then took place:

Sgt. Lown: What happened to it

{the money]?

Kwallek: I will talk when mv

mom gets here, she can

help.

Sgt. Class: You want to wait

until your mom gets here

to talk to us?

Kwallek: (Inaudible both are

talking) she should _ be

a33a

here here in just a little

while. Chris is getting

her now.

Sgt. Glass: Do you want to

talk to us then, Patsy

when she gets here?

Kwallek: Uhuh (yes). Is it be

[sic] that okay?

Sgt. Glass: Sure.

Sgt. Lown: Sure, that's fine.

The Alaska court of appeals

considered this to be an _ wunambiaquous

invocation of the right to silent. (Slip

opinion, p. 24) It ruled that the state-

ments which Kwallek made after this point

should have been suppressed. The remain-

der of the interview reads:

Sat. Glass: In the mean[time]

we'll just sit here and

wait, and let the other

two investicators go ahead

and ah, maybe you can tell

us where the ah, _ bank

records ah, are. Do you

have a checking account

Patsy?

Kwallek: Umuh (no).

atin

Sgt. Glass: No checking

account? How do you keep

track of your ah, bills?

Kwallek: Spader [Kwallek's

husband] keeps money in

there. He has money in

ah, a, billfold in there

and there should be

several hundred dollars in

at.

Sgt. Glass: You don't have a

checking account?

]

Kwallek: No.

Sgt. Glass: Has he ever had a

checking account?

Kwallek: No.

Sgt. Glass: Ah, your, your

background Patsy and your

training has been in bcook-

keeping is that correct?

Kwallek: Umuh (yes).

Sgt. Glass: Do you keep any

kind of books at all? On

the money spent out?

Kwallek: Umuh (no). YO.

a2S<

Sat. Glass: [How] come

that is?

Kwallek: I don't know I

just, [when] mom gets

here we'll talk about

he

Sgt. Glass: Okay. At the

time is approximately

2:14 p.m. We'll go

off record.

The Alaska court of appeals

held that any error in admitting these

few statements was harmless beyond a

reasonable doubt, and thus harmless error -

under Chapman v. California, 386 U.S. 18

(1967). (Slip opinion, p. 24-25)

Kwallek contends that the Alaska court of

appeals came to the wrong conclusion --

that the admission of these few state-

ments did prejudice her. Essentially,

Kwallek is seeking review of a factual

determination made by the state court.

This Court should not exert its juris-

diction to review this factual finding.

The issue is not one of constitutional

dimensions. A decision by this Court

will not change the law or _ provide

guidance to other courts. It is simply

not an issue which warrants review by

-26-

this Court. See Lloyd A. Fry Roofing Co.

v. Wood, 344 U.S. 157, 160 (1952), rehrg.

denied, 345 U.S. 913 (1953).

The evidence of guilt was quite

strong. The murder weapon belonged to

the Kwalleks. It was found in the attic

of the Kwallek residence. The murderer

would have had to place it there within

minutes of the shooting because the

police and medical personnel arrived

within minutes. Ammunition for’ the

murder weapon was found in the _ second

bedroom. The pattern of cunshot residue

found on the sleeve of Kwallek's robe was

consistent with Kwallek's having fired

the murder weapon.

Moreover, it is not clear from

the record that the jury was even aware

of the substance of Kwallek's statements

made after she said she wanted to talk to

her mother. The above-quoted excerpt

from the June 25th interview was located

on pages 42 and 43 of a 43-page typed

transcript of the interview. MThe tran-

script was not read aloud for the jury.

It was one of 94 exhibits introduced at

trial. No tape of the interview was

‘ete

played for the jury. Sgt. Lown, who

testified about the substance of the in-

terviews, made no reference to these

statements. The prosecutor did not refer

to the statements at any time during the

trial. Even assuming the jury were aware

of the statements because it read the

transcript, there was nothing inculpatory

about the statements. All Kwallek said

was her husband did not pay his bills by

check, he kept his money in his wallet,

and she had some bookkeeping experience.

This information was available from other

sources (e.g., banks, Kwallek's previous

employers, and financial records seized

pursuant to the warrant).

The Alaska court of appeals

correctly concluded that the error was

harmless beyond a reasonable doubt.

IV. THIS COURT DOES NOT HAVE

JURISDICTION TO CONSIDER

THE DOYLE ISSUE

On appeal to the Alaska court

of appeals Kwallek argued that admission

of the transcript of her June 25th inter-

view containing statements that she

=28—

wanted to talk to her mother before an-

swering anymore questions constituted an

impermissible comment on her right to

remain silent under Doyle v. Ohio, 426

U.S. 610 (1976). Kwallek now requests

that this Court decide the issue.

The State of Alaska submits

that this Court does not have jurisdic-

tion to consider the issue under 28

U.8.C. §22357(3). The Alaska court of

appeals determined that this issue was

raised for the first time on appeal.

This conclusion was correct. Kwallek's

motion and supporting memorandum in the

trial court concentrated on whether

Kwallek was in custody. Doyle was not

cited in either the motion or the memo-

randum, and there was no hint of an

argument that the latter part of the

interview should be suppressed because it

amounted to an impermissible comment on

the right to remain silent. (Kwallek's

motion to suppress and supporting memo-

randum are included as an appendix to the

State's response.) The Alaska court of

appeals properly determined that the

a29=

Doyle issue was raised for the first time

on appeal.

The court of appeals did not

reach the nm rits of the Doyle issue;

rather, it concluded it did not have to

rule on this issue because even if there

were error, the error was not obviously

prejudicial and did not require reversal.

The court of appeals stated:

Here, assuming admission of the

challenged evidence constituted

an_error affecting Kwallek's

substantial rights, we conclude

that the error was not obvious-

ly prejudicial.

(Slip opinion, p. 26-27) (Emphasis

supplied; citations omitted).

Since the Doyle issue was not

properly preserved and since the Alaska

court of appeals did not decide the

merits of the issue, Kwallek cannot

invoke this Court's jurisdiction under 28

U.S.C. §1257(3). This Court must refuse

to consider the issue. Wilson v. Cook,

327 U.S. 474, 482 (1946).

-30-

CONCLUSION

Kwallek's petition for writ of

certioreri should be denied.

Respectfully submitted this

17th day of March, 1986,

HAROLD M. BROWN

ATTORNEY GENERAL

David Manhheimer

Assistant Attorney General

a3ile

APPENDIX

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

FIRST JUDICIAL DISTRICT AT KETCHIKAN

STATE OF ALASKA,

Plaintiff,

PATRICIA KWALLEK,

)

)

)

)

vs. )

)

)

)

Defendant. )

)

No. 1KE-S82-637 Cr.

MOTION TO SUPPRESS JUNE 25TH

STATEMENT OF DEFENDANT

COMES NOW the defendant, PATRICIA

KWALLEK, by and through her attorneys, BIRCH,

HORTON, BITTNER, MONROE, PESTINGER & ANDERSON,

and hereby moves this court for an ORDER,

suppressing the statement given by the defendant

to Alaska State Troopers John Glass and Robin

Lown on June 25, 1982.

This motion is made for the reason that

prior to the June 25th statement, the defendant

was not first apprised of her constitutional

rights.

In the alternative, the defendant

requests that the court suppress that portion of

the statement which was given prior to the

rendition of the Miranda warninas.

As a final alternative, the defendant

requests that the court suppress that p~ tion of

the statement given after the defendant indicated

she wanted to break off the interview.

This motion is based upon the attached

MEMORANDUM IN SUPPORT as well as the accompanying

exhibits.

DATED this 23rd day of September, 1982.

BIRCH, HORTON, BITTNER,

MONROE, PESTINGER

& ANDERSON

By

Daniel Westerburg

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

FIRST JUDICIAL DISTRICT AT KETCHIKAN

STATE OF ALASKA, )

)

Plaintiff, )

)

vs. )

)

PATRICIA KWALLEK, )

)

Defendant. )

)

No. 1KE-S82-637 Cr.

MEMORANDUM IN SUPPORT OF

DEFENDANT'S MOTION TO SUPPRESS

JUNE 25TH STATEMENT OF DEFENDANT

Factual Background

On June 24, 1982, Bernard "Spade"

Kwallek was shot and killed in the front yard of

his residence on North Tongass Boulevard in

Ketchikan. His wife, Patsy Kwallek, was

informally interviewed several times at the scene

and a formal, tape recorded, interview was

conducted later that day. Mrs. Kwallek's

knowledge of the shooting was limited and she

denied any involvement. By late that evening,

however, Mrs. Kwallek had became the State's

prime suspect in the case. (See comments of Sct.

John Glass to witness James Jenck in Mr. Jenck's

June 24th statement. Exhibit "A".)

On the afternoon of June 25, 1982,

Sgt. Morris Rogers of the Alaska State Troopers

picked up Mrs. Kwallek from the Jenck residence

where she had been staying and drove her back to

the Kwallek residence for an interview with

Sgt. Glass and Sgt. Robin Lown of AST.

A transcript of the interview was

prepared and a copy was provided to the defendant

who, for the purposes of this motion, is willing

to assume its general accuracy. (Exhibit "B")

It appears that the interview was conducted in

the Kwallek residence with Mrs. Kwallek,

Sqt. Lown and Sgt. Glass the only _ persons

present.

Mrs. Kwallek was not advised of her

constitutional rights before the auestioning

began.

The interview commenced with Sgt. Glass

informing Mrs. Kwallek that she was not under

arrest. Sgt. Glass then advised Mrs. Kwallek

that he believed that in her previous statements

she had not been telling the "true story" of what

had happened on the morning of the _ shooting.

(Exhibit "B," page 1) Mrs. Kwallek responded:

"T'll try to help any way I can" and then proceed

A-4

[sic] to explain what transpired on the morning

of June 24th. Her response to Sgt. Glass' and

Sgt. Lown's questions were [sic] consistent with

those in her June 24th statement (Exhibit "C") as

well as her informal statements taken at the

scene shortly after the shooting.

Approximately 8 minutes after the

interview began, Sat. Lown temporarily dis-

continued questioning in order to _ advise

Mrs. Kwallek of her constitutional rights.

Mrs. Kwallek indicated that she understood her

rights and agreed to continue to talk with the

Troopers. (Exhibit "B," page 6). The interview

then re-commenced.

After several more minutes of

questioning, Sgt. Glass served Mrs. Kwallek with

search warrants for her bathrobe, a sample of

attic insulation and bank and bookkeeping records

at the residence. Sgt. Glass then apparently

brought in several investigators from Anchorace

to conduct the search.

At this time, Mrs. Kwallek stated: "I

think I should wait and talk with my Mom cets

here [sic] before I say what to do."

(Exhibit "B," page 14)

Ignoring Mrs. Kwallek's remark,

Sgt. Lown and Sgt. Glass then continued to

A-5

question Mrs. Kwallek in a much more aggressive

fashion. (Exhibit "B," pages 14-17) Mrs.

Kwallek then repeated: "I will talk when my Mom

gets here, she can help." (Exhibit "B," page 17)

Again ignoring Mrs. Kwallek's remark,

Sgt. Glass continued to question Mrs. Kwallek

until she stated for the third time: "I don't

know, I just, Mom gets here we'll talk about it."

(Exhibit "B," page 18)

Shortly thereafter, Mrs. Kwallek was

taken to the Ketchikan Detachment of AST where

she was formally arrested by Sgt. Glass on

suspicion of the First Degree Murder of Bernard

Kwallek.

ARGUMENT

I

THE INTERVIFW OF MRS. KWALLEK

WAS CONDUCTED IN A CUSTODIAL SETTING;

ACCORDINGLY, MRS. KWALLEK WAS ENTITLED

TO RECEIVE MIRANDA WARNINGS

PRIOR TO QUESTIONING

Under the U.S. Supreme Court's holding

in Miranda v. Arizona, 384 U.S. 436 (1966), a

person who has heen "taken into custody or

otherwise deprived of his freedom of action in

any significant way" is entitled to be advised of

bis constituticnal rights prior to questioning.

The failure of police officers to properly advise

a suspect of his rights, results in the

suppression of any statements or other evidence

gained thereby. Furthermore, police cannot "fix"

a non-existent or inadequate Miranda warning by

an "after the fact" warning. Westover v. United

States, 384 U.S. 436 (1966).

In Hunter v. State, 590 P.2d 888

(Alaska 1979), the Alaska Supreme Court adopted

the "objective, reasonable person" test to

determine the existence of a custodial setting

triggering the Miranda requirement. Under the

test, there must be some actual indication of

custody, such that a reasonable person would feel

he was not free to leave and break off police

questioning. The court established three (3)

general factors to be considered in determining

the existence of a custodial setting:

1. Facts intrinsic to the interroga-

tion: when and where the interrogation

occurred, how long it lasted, how many

police were present, what the officers and

the defendant said and did, the presence of

actual physical restraint on the defendant

A-7

or things equivalent to actual physical

restraint such as drawn weapons or a guard

stationed at the door, and whether the

_defendant was being questioned as a suspect

or a witness.

2. Facts pertaining to events before

the interrogation are also relevant, espe-

cially how the defendant got to the place of

questioning -- whether he came completely on

his own, in response to a police request, or

escorted by police officers.

3. it is also important what happened

after the interrogation -- whether’ the

defendant left freely or was detained or

arrested.

By applying the above 3 factors to the

present case, it is clear that Mrs. Kwallek was

in a custodial setting during the June 25th in-

terview.

1. Setting.

While the interview admittedly took

place in Mrs. Kwallek's residence, it must be

remembered that it was conducted by 2 police

officers and that none of Mrs. Kwallek's family

or friends were present. It must also be

remembered that sometime during the midst of the

interview, apparently several other investigators

A-8

were in the residence conducting a_ search

pursuant to several search warrants.

There can be little doubt from the

tenor of the questioning, that Mrs. Kwallek was

being questioned not as a witness but as the

State's prime suspect in the case. This fact is

confirmed by Sgt. Glass' statement to James Jenck

on the evening before the interview that Mrs.

Kwallek was supected of shooting her husband.

[Exhibit "A"]

ro Pre-Interview Facts.

Mrs. Kwallek was escorted to the resi-

dence by Sgt. Morris Rogers who was presumably in

uniform and using a marked Troopers vehicle.

Mrs. Kwallek obviously came to the interview in

response to a police request.

Be Post-Interview Facts.

Mrs. Kwallek was taken to Trooper

Headquarters at the conclusion of the interview

where she was formally arrested by Sgt. Glass.

It is important to note that Mrs. Kwallek did not

disclose any "new" material or information at the

second interview. Thus, the Troopers arrested

Mrs. Kwallek based upon the circumstantial

evidence they had already obtained before the

interview took place. Accordingly, it is highly

likely that the only reason Mrs. Kwallek was not

A-9

arrested prior to the interview was so that the

Troopers could attempt one last "non-Miranda"

interview pricr to her formal arrest.

A similar situation occurred in State

v. Cassell, 602 P.2d 410 (Alaska 1979) where a

police office delayed serving a suspect with an

arrest warrant until after questioning. The

officer stated that the reason for this was to

obtain a statement from the suspect, The court

took this factor into consideration im determin-

ing that Cassell was in de facto custody and was

entitled to Miranda warnings prior to question-

ing. (See also In the Matter of J.M.A., 542 P.2d

170 (Alaska 1975) .)

Under the criteria established in

Hunter v. State, it is fairly clear that

Mrs. Kwallek was in a custodial setting at the

time of the June 25th interview. The failure of

the State to advise Mrs. Kwallek of her

constitutional rights at the outset of the

interview should result in a suppression of the

statement, together with any fruits thereof.

A-10

II

THE LATE MIRANDA WARNING

GIVEN BY SGT. LOWN CANNOT

"FIX" A TAINTED INTERVIEW

As mentioned in the Statement of Facts,

approximately during the middle of the interview,

Mrs. Kwallek was formally advised of her Miranda

rights. However, an untimely Miranda warning

cannot "fix" the tainted interview. Under the

"“cat-out-of-the-bag" principle first enunciated

in Westover v. United States, 384 U.S. 436

(1966), if a suspect has not been given a proper

Miranda warning at the outset of a custodial

interrogation, the fact that a proper warning is

given at same later time cannot rectify the

Situation. The entire interview is "tainted" by

the Miranda violation and none of the statement

is admissible. For this reason, the entire

interview of Mrs. Kwallek must be suppressed,

despite the fact that a Miranda warning was given

during the midst of the interrogation.

CONCLUSION

Mrs. Kwallek was clearly in a custodial

setting at the time of the June 25, 1982 inter-

view. There is absolutely no excuse for the

A-11

failure of Sqt. Lown and Sat. Glass, both ex-

perienced Troopers, to advise Mrs. Kwallek of her

constitutional rights prior to the interview.

There can be no doubt that a formal arrest was

intended and that if Mrs. Kwallek had attempted

to leave the area she would have been placed

under physical restraint.

For all these reasons, the defendant

respectfully requests that her MOTION TO SUPPRESS

be granted.

DATED this 23rd day of September, 1982.

RIRCH, HORTON, BITTNER,

MCNROE, PESTINGER

& ANDERSON

By

Daniel Westerburg

A-12