Mallott v. State, No. 3364

CourtSupreme Court of Alaska (US)
Writing for the CourtBefore RABINOWITZ; MATTHEWS; Kalamarides; RABINOWITZ; BURKE; RABINOWITZ
Citation608 P.2d 737
Decision Date22 February 1980
Docket NumberNo. 3364
PartiesJay B. MALLOTT, Jr., Appellant, v. STATE of Alaska, Appellee.

Page 737

608 P.2d 737
Jay B. MALLOTT, Jr., Appellant,
v.
STATE of Alaska, Appellee.
No. 3364.
Supreme Court of Alaska.
Feb. 22, 1980.

Page 740

Sue Ellen Tatter, Asst. Public Defender, Brian Shortell, Public Defender, Anchorage, for appellant.

Susan M. Delbert, Asst. Dist. Atty., H. L. Davis, Dist. Atty., Fairbanks, Monica Jenicek, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before RABINOWITZ, C. J., and CONNOR, BOOCHEVER and MATTHEWS, JJ.

MATTHEWS, Justice.

Jay B. Mallott was convicted by a jury of the rape of a three year old girl. He contends that his right against self-incrimination, and his rights to a fair grand jury proceeding, a fair trial, and an impartial petit jury, have been violated. He also

Page 741

appeals from the severity of the sentence imposed. While the issues presented have called for careful scrutiny, we affirm.
I

Admissibility of Incriminating Statements

On the morning of May 7, 1976, the Alaska State Troopers were summoned to the home in which the rape occurred. Trooper John McGhee arrived at 5:55 A.M., found Mallott drinking whiskey in the kitchen, and immediately began reading the defendant his Miranda rights. He was interrupted by Mallott who put his fingers in his ears and said "he knew what his rights were." A second reading was interrupted by the victim's mother. McGhee finally read the rights through once, asked Mallott whether he understood, and Mallott responded by asking what he was being charged with. McGhee then reread the rights and this time Mallott said he understood them. This is the only time the Miranda warnings were given.

Mallott was then taken to the trooper station, where at approximately 8:30 A.M. the following took place, according to Investigator Charles Miller:

I asked him if he would submit to a breathalyzer examination. I explained to him what a breathalyzer was. In fact I took him to the area where the machine was sitting so that he could see it. Mr. Mallott then said to me that we meaning the state troopers would accuse him of having intercourse with the little girl if he took the breathalyzer examination and he requested an attorney at that time. I explained to him that in conjunction with the breathalyzer examination he would not be charged with having intercourse with the little girl simply on the basis of that examination, and that if he would not voluntarily submit to a breathalyzer examination, a court order or search warrant could be obtained to get a sample of blood. Mr. Mallott at that time consented to take the breathalyzer exam. (Emphasis added)

Shortly after this exchange, and prior to the administration of the breathalyzer, Mallott made incriminating statements that were admitted at trial. In response to the prosecutor's question, "And did you have to question him much to get these responses," Miller testified: "No, the answers came fairly easily to him." Miller stated he had asked Mallot only "how he felt and that kind of thing." Mallott's only testimony regarding this entire sequence of events was that he had requested an attorney. After the breathalyzer test was administered, Mallott was taken into a squad room, where he made further incriminating statements to Miller.

Mallott first contends that he was informed of his rights while the victim's family was creating a disturbance that made it impossible for the defendant to understand what was being said to him. This argument is groundless; the record clearly shows that Trooper McGhee repeated the Miranda warnings until Mallott heard and understood them.

Second, Mallott contends that the incriminating statements elicited from him after his request for counsel should have been suppressed. The burden is always on the state to prove that in making an incriminating statement, a suspect voluntarily waived his or her right to remain silent and to have counsel present during questioning. North Carolina v. Butler, 441 U.S. 369, 372, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286, 292 (1979); Hampton v. State, 569 P.2d 138, 141 n. 6 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S.Ct. 1225, 55 L.Ed.2d 757 (1978). If a suspect expresses a desire to consult counsel before discussing his or her case with the police, and an incriminating statement is subsequently taken without counsel present, the state's burden in demonstrating a voluntary waiver is a very heavy one. Ladd v. State, 568 P.2d 960, 966 (Alaska 1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1498, 55 L.Ed.2d 524 (1978). 1 The presumption

Page 742

is that ignoring or rebuffing a suspect's invocation of his or her constitutional rights will convince the suspect that such rights are illusory. See Michigan v. Mosley, 423 U.S. 96, 110 n. 2, 96 S.Ct. 321, 329 n. 2, 46 L.Ed.2d 313, 325 n. 2 (1975) (White, J., concurring); Miranda v. Arizona, 384 U.S. 436, 466, 86 S.Ct. 1602, 1623, 16 L.Ed.2d 694, 719 (1966).

In this case however, Mallott's request for counsel did not reasonably imply that he was unwilling to speak about his case without counsel present, the right protected by Miranda. 2 In the victim's household Mallot had indicated to Trooper McGhee that he was willing to talk immediately. When he requested an attorney at the trooper station he was not being questioned, but he was being asked to submit to a breathalyzer examination. 3 His request for counsel was simply part and parcel of his refusal to submit to the test. Though that fact is not dispositive, the appropriateness of Investigator Miller's response to the request for counsel must be judged accordingly. 4

Mallott made it clear that the basis of his refusal to take the breathalyzer test and his desire for counsel was his fear that the test result would lead to an accusation of rape. Miller accurately informed him that the test result would not form the basis of any such accusation. He also informed Mallott that the troopers could obtain the same evidence by court order. On the basis of this information, Mallott consented to the examination. It was reasonable for the trooper to believe, after the foregoing sequence of events, that Mallott no longer desired counsel.

The sequence that followed supports the conclusion that Mallott never intended to indicate an unwillingness to discuss his case in the absence of counsel. As the breathalyzer

Page 743

equipment was being readied, Miller and Mallott stood talking in a hallway of the trooper station. For the first time, Miller asked Mallott questions about what had happened. This was ten to fifteen minutes after the request for counsel. The questions were general, not accusatorial. Mallott spoke freely, apparently believing the story he was telling to be exculpatory. Had Mallott initially desired counsel to protect his right to remain silent, we do not believe the initial trooper response and the interrogation just described would have convinced him that a second attempted exercise of his rights would have been futile. We therefore find the trooper response to Mallott's request for counsel proper, and also concur in the trial court's determination that Mallott voluntarily waived his right to have counsel present prior to speaking with the police. Hampton v. State, 569 P.2d 138, 141 n. 6 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S.Ct. 1225, 55 L.Ed.2d 757 (1978).

Mallott's third contention is that the incriminating statements he later made to Miller in the squad room were coerced in that they followed an angry and humiliating outburst against him by another trooper. Since the record shows that the outburst followed the squad room interrogation, we find no merit in this argument. 5

Finally, Mallott claims that he was too inebriated to voluntarily make incriminating statements. See Thessen v. State, 454 P.2d 341, 345-6 (Alaska 1969), cert. denied, 396 U.S. 1029, 90 S.Ct. 588, 24 L.Ed.2d 525 (1970). Just after his first statements were made, Mallott's breathalyzer test resulted in a .31 reading, indicating an alcohol level that, according to testimony at trial, would render 90% of the population unable to function. It is quite clear however, that Mallott was able to function rationally. Trooper McGhee had "no problem getting" information from Mallott regarding height, weight, birthdate, hair and eye color, address, and social security number. Investigator Miller testified: "I felt his responses to my questions were adequate, that he knew what he was saying, that he knew where he was, who was questioning him, why he was there." Mallott himself testified that he'd been only "half drunk, half sober." This assessment was corroborated by other witnesses. We conclude that Mallott had sufficient control of his faculties to voluntarily make the statements admitted against him. See Hampton v. State, 569 P.2d at 143.

II

Failure to Present Exculpatory Evidence to Grand Jury

Mallot contends that his .31 breathalyzer reading tended to prove his physical incapacity to have an erection and thus commit rape. He argues that the grand jury indictment should now be dismissed because the grand jury was not informed of the test result. This omission is alleged to have violated due process 6 and Alaska Rule of Criminal Procedure 6(q). 7

We have recently held that Criminal Rule 6(q) imposes an affirmative duty on a prosecutor to present to the grand jury "evidence

Page 744

tending to refute, as well as establish, guilt." Frink v. State, 597 P.2d 154, 165 (Alaska 1979). We are not persuaded however that the breathalyzer test result reasonably tended to negate Mallott's guilt.

First, Mallott drank an unknown quantity of whiskey between commission of the rape and the administration of the breathalyzer test. Thus the .31 reading was not probative of Mallott's state of intoxication at the time the rape occurred. Second, the .31 result could not have been presented to the grand jury in isolation without creating a misimpression in Mallott's favor. To present the evidence in a meaningful...

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95 practice notes
  • Richmond Newspapers, Inc v. Virginia, No. 79-243
    • United States
    • United States Supreme Court
    • July 2, 1980
    ...DePasquale, 443 U.S., at 425, and n. 9, 99 S.Ct., at 2929, and n. 9 (BLACKMUN, J., concurring and dissenting); cf. also Mallott v. State, 608 P.2d 737, 745, n. 12 (Alaska 1980). And even if the specific state public trial protections must be invoked by defendants, those state constitutional......
  • 15 Cal.4th 1385A, People v. Holt, No. S016076
    • United States
    • United States State Supreme Court (California)
    • May 19, 1997
    ...declared rule of procedure. Indeed, the Alaska recording requirement originated as a court-made rule in Mallott v. State (Alaska 1980) 608 P.2d 737, and Stephan enforces that rule in the same manner as other exclusionary rules created as sanctions for violation of constitutional, statutory,......
  • State v. Andrews, Nos. A-468
    • United States
    • Court of Appeals of Alaska
    • September 6, 1985
    ...rape one week after being released on bail pending trial on attempted rape charge; sentence of fifteen years approved); Mallott v. State, 608 P.2d 737, 752 (Alaska 1980) (defendant, while intoxicated, raped a three-year-old girl; sentence of thirty years with fifteen years suspended approve......
  • Siler v. State, No. 03-169.
    • United States
    • United States State Supreme Court of Wyoming
    • July 8, 2005
    ...v. Bair, 892 F.2d 1193, 1198-99 (4th Cir.1989), cert. denied, 495 U.S. 940, 110 S.Ct. 2193, 109 L.Ed.2d 521 (1990); Mallott v. State, 608 P.2d 737, 743 (Alaska 1980); State v. Rowe, 479 A.2d 1296, 1299 (Me.1984); State v. Lamb, 213 Neb. 498, 330 N.W.2d 462, 466-67 (1983); Wanda Ellen Wakefi......
  • Request a trial to view additional results
95 cases
  • Richmond Newspapers, Inc v. Virginia, No. 79-243
    • United States
    • United States Supreme Court
    • July 2, 1980
    ...DePasquale, 443 U.S., at 425, and n. 9, 99 S.Ct., at 2929, and n. 9 (BLACKMUN, J., concurring and dissenting); cf. also Mallott v. State, 608 P.2d 737, 745, n. 12 (Alaska 1980). And even if the specific state public trial protections must be invoked by defendants, those state constitutional......
  • 15 Cal.4th 1385A, People v. Holt, No. S016076
    • United States
    • United States State Supreme Court (California)
    • May 19, 1997
    ...declared rule of procedure. Indeed, the Alaska recording requirement originated as a court-made rule in Mallott v. State (Alaska 1980) 608 P.2d 737, and Stephan enforces that rule in the same manner as other exclusionary rules created as sanctions for violation of constitutional, statutory,......
  • State v. Andrews, Nos. A-468
    • United States
    • Court of Appeals of Alaska
    • September 6, 1985
    ...rape one week after being released on bail pending trial on attempted rape charge; sentence of fifteen years approved); Mallott v. State, 608 P.2d 737, 752 (Alaska 1980) (defendant, while intoxicated, raped a three-year-old girl; sentence of thirty years with fifteen years suspended approve......
  • Siler v. State, No. 03-169.
    • United States
    • United States State Supreme Court of Wyoming
    • July 8, 2005
    ...v. Bair, 892 F.2d 1193, 1198-99 (4th Cir.1989), cert. denied, 495 U.S. 940, 110 S.Ct. 2193, 109 L.Ed.2d 521 (1990); Mallott v. State, 608 P.2d 737, 743 (Alaska 1980); State v. Rowe, 479 A.2d 1296, 1299 (Me.1984); State v. Lamb, 213 Neb. 498, 330 N.W.2d 462, 466-67 (1983); Wanda Ellen Wakefi......
  • Request a trial to view additional results

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