Hunter v. State
| Decision Date | 16 February 1979 |
| Docket Number | No. 3557,3557 |
| Citation | 590 P.2d 888 |
| Parties | Harvey Lee HUNTER, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Dana Fabe, Sue Ellen Tatter, Asst. Public Defenders, Brian Shortell, Public Defender, Anchorage, for appellant.
W. H. Hawley, Jr., Asst. Atty. Gen., Joseph D. Balfe, Dist. Atty., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellee.
Before BOOCHEVER, Chief Justice, RABINOWITZ, CONNOR, BURKE and MATTHEWS, Justices.
Harvey Lee Hunter pleaded Nolo contendere to two counts of larceny in a building, AS 11.20.150 1 and was sentenced to two consecutive three and one-half year terms. His appeal challenges the admissibility of statements made to a polygraph examiner who had not read him Miranda warnings 2 prior to the examination and alleges his sentence was improper. We affirm the conviction but remand for resentencing.
Early in November 1976, Investigator Thomas Shanks of the Anchorage Police Department began to suspect that Harvey Lee Hunter had been involved in an October 20, 1976 burglary. Items missing in that burglary included cameras, lenses and an electronic strobe light from the offices of Rem-Pak Studio, and a postage meter and scale from the Office of the Human Rights Commission. Both offices were located in Anchorage at 2457 Arctic Boulevard, where Hunter, then age 20, was employed as a janitor.
Shanks originally questioned Hunter about the burglary at Hunter's home on November 3, 1976 where he advised Hunter of his Miranda rights. Hunter executed a written waiver of his rights. At that point, Hunter denied any knowledge of the missing goods.
The next contact was at the police station on November 8, 1976, and Hunter again signed a written waiver of his Miranda rights and again denied any involvement in the burglary. At that interview, Shanks requested that Hunter take a polygraph exam. The officer testified that:
(O)ur normal procedure is simply to request that they submit to it if there's any question of their involvement in a case that might be under investigation, and then simply advise them that they have the right not to take the polygraph if they so desire . . . .
However, he did not specifically remember telling Hunter this information on November 8, 1976. Hunter testified that no one told him that the rights read to him at that meeting applied to polygraphs.
Hunter appeared at the police station on November 15, 1976, the day on which the polygraph had been scheduled. He testified that he had appeared to take the test because Shanks told him on November 8 "that I would have to take the test." He also explained that:
I went down there because the man told me to come down there. He'd wrote me out a appointment date and I had missed one and they came to my house the second time so it and he came again. You know, I was tired of . . . .
On cross-examination, Hunter was asked how the police made him believe he had to take the test. After admitting the officers didn't say anything bad would happen to him if he didn't take the test, Hunter stated it was the visits of the police officers to his house and their requests about the test that made him take the test:
I know I was tired of the police coming to my house or whatever, calling me, asking me to do things, and I didn't want to be hassled so I say, well, I'll go ahead and take it, I might could beat it. 3
On November 15, 1978, the day the test was administered, Hunter had a brief conversation with Shanks before being taken to the polygraph examination room. The polygraph examiner, Delbert W. Smith of the Anchorage Police Department, testified that he and Hunter had a short interview before the examination and that:
I . . . told him sometime during this interview that he was not required to take the polygraph examination, which is my standard procedure, so that nobody is told by our office or anybody else that they must subject themselves to a polygraph . . . .
He could not independently recall having told Hunter that he did not have to take the test or that he was free to leave, but said these statements were part of his normal procedure. Hunter did sign a release form indicating that he was requesting "voluntarily, without durress (sic), coercion, threats, promises of reward or immunity, to be examined by the Keeler Polygraph (lie detector) detection of deception technique." He was given no Miranda warnings on November 15, 1976 before the examination.
After the test was administered, a conversation occurred between Smith and Hunter. There is a conflict in the testimony as to the substance of the conversation. Smith recalls first telling Hunter that he was not "telling the truth." According to Smith, Hunter then agreed he was not telling the truth, and said he had thought he could "beat" the exam. Smith then asked Hunter if he wanted to "tell . . . the truth" to Investigator Shanks. Smith recalls that he did not question Hunter about the burglary at this point, but that nevertheless Hunter told him he could "get the cameras back." On cross-examination, he admitted that Hunter's statement "must have been in conjunction with a conversation." Hunter testified:
right after he took the the thing the polygraph off he said, I know you're guilt guilty by the results of the test. You might as well confess, you know, and then he showed me the where where my lines was going all out of line.
Hunter's testimony was that right after Smith told him he had not been telling the truth, Smith questioned him about the burglary, as Smith was removing the polygraph equipment from Hunter: "he just asked me how did I do it." Hunter said, "Right after he unhooked me then I just told him that I did it." Then Investigator Smith "told me to go down there with him to confess to Investigator Shanks."
After the examination, Hunter was returned to the reception area. Smith told Shanks that Hunter had not told the truth "but apparently was prepared to now." After about five minutes, Shanks talked to Hunter, advised him of his rights under Miranda and took from him a statement admitting involvement in the burglary. 4
Hunter was indicted for two counts of burglary not in a dwelling, AS 11.20.100. The motion to suppress the statements given "and the fruits thereof," on the claim of deficient notice of constitutional rights, was denied. Subsequently the indictment was dismissed and an information charging two counts of larceny in a building was filed. Hunter pleaded Nolo contendere to the charge. The court sentenced Hunter to two consecutive three and one-half year terms and this appeal followed.
While a plea of Nolo contendere is generally treated as a waiver of all non-jurisdictional defects, 5 we have established a procedure whereby a person so pleading may preserve a limited right to appeal. Cooksey v. State, 524 P.2d 1251, 1255-56 (Alaska 1974). The plea of Nolo contendere first must be expressly conditioned upon the preservation of the limited right to appeal. Id. Secondly, the issue on appeal must be dispositive. Oveson v. Municipality of Anchorage, 574 P.2d 801, 803 n.4 (Alaska 1978). 6
In the instant case, Hunter satisfied the first requirement by expressly reserving the issue for appeal at the time of his plea of no contest. We will not apply the second requirement, that the issue on appeal be dispositive of the case, since Hunter's plea was entered before this second requirement was fully explained in Oveson v. Municipality of Anchorage, id. Thus, Hunter's claim of error is properly raised to this court.
This case requires us to evaluate whether Harvey Hunter's post-polygraph statements were the product of custodial interrogation and therefore inadmissible because not preceded by Miranda warnings. 7 The trial court made two findings: that Hunter was not in custody when he took the lie detector test, thereby making Miranda warnings unnecessary; and if warnings were necessary, the warnings given by the police fulfilled the mandates of Miranda. 8
The defense theory at the motion to suppress was that Miranda warnings were required when Hunter took the polygraph exam since, at that time, he was the focus of the burglary investigation. On appeal, the defendant no longer relies on the focus interpretation of Miranda, instead arguing alternatively that the administration of a lie detector made the interrogation custodial, that confrontation of the defendant with the results of the test made the interrogation custodial, and that, apart from Miranda, the statements were involuntary.
We reject the focus test for administration of Miranda warnings and adopt instead a reasonable person perspective for determining whether a person is in custody or otherwise significantly deprived of his freedom. We conclude that, on these facts, the defendant's statements were not the product of custodial interrogation and are therefore admissible, even if not immediately preceded by Miranda warnings. We also conclude Hunter's statements were voluntary. We do not need to consider the trial court's second finding that if Miranda warnings were necessary, the warnings given to Hunter sufficed.
In Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), the Supreme Court relied on the sixth amendment to exclude a confession because the police refused Escobedo's request for counsel made during interrogation; the interrogation occurred after the investigation had focused on the defendant. The case could be read narrowly or broadly, and a broad reading made focus of the investigation on the defendant the touchstone for sixth amendment, right to counsel, protection. 9
Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706 (1966), held that the privilege against self-incrimination applied to informal police coercion as well as formal coercion 10 and required that a suspect be advised of his...
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