Ned v. State

• Citation: 119 P.3d 438
• Decision Date: 09 September 2005
• Docket Number: No. A-8721.,A-8721.
• Parties: Frederick L. NED Jr., Appellant, v. STATE of Alaska, Appellee.
• Court: Supreme Court of Alaska (US)

119 P.3d 438

Frederick L. NED Jr., Appellant, v. STATE of Alaska, Appellee.

No. A-8721.

Court of Appeals of Alaska.

August 19, 2005.

Rehearing Denied September 9, 2005.

Marcia E. Holland, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.

John A. Scukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.

Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

OPINION

MANNHEIMER, Judge.

Frederick L. Ned Jr. was convicted of manslaughter and sentenced to 10 years' imprisonment with 3 years suspended (7 years to serve). In this appeal, Ned claims that the police obtained a statement from him in violation of his rights under Miranda v. Arizona.¹ He also claims that his sentence is illegal in two respects. First, Ned argues that he was denied his Sixth Amendment right to jury trial, as construed in Blakely v. Washington,² on some of the questions of fact that the State was required to prove in order to support the judge's sentencing decision. Second, Ned argues that the sentencing judge exceeded the scope of permissible restitution when the judge required Ned to reimburse the cost of air fare for several people to attend the victim's funeral; these people were related to the victim, but not closely enough to qualify as victims of the offense under AS 12.55.185(17)(C).

For the reasons explained here, we conclude that Ned was not in custody when he gave his statement to the police, and therefore there was no Miranda violation. With regard to Ned's sentence, we conclude that, consistent with Blakely, the sentencing judge could impose the applicable presumptive term of 7 years to serve. However, as we explain here, the judge violated state law — specifically, AS 12.55.155(e) — when he relied on aggravating factor AS 12.55.155(c)(4) to add an additional 3 years of suspended jail time to Ned's sentence. We therefore vacate those 3 suspended years. Finally, we agree with Ned that he should not have been ordered to reimburse the cost of the air fare for the people to attend the funeral.

Underlying facts pertaining to the Miranda issue, and our resolution of this issue

On the afternoon of August 28, 2002, in Allakaket, Frederick Ned and Brett Stevens decided to go for a drive in Ned's father's pickup truck. The truck was in a state of disrepair: it had no driver's side door, the truck's front tires were of different sizes, the truck's front brakes and emergency brake were inoperable, and its rear brakes were badly worn. Both Ned and Stevens had been drinking heavily the night before and earlier that morning. Ned was driving the truck, and Stevens was riding in the passenger seat.

Ned went to the Allakaket airport and drove onto the runway. The airport runway ends in an embankment with a 20-foot drop to the marshes below. Ned launched the truck off the end of the runway. The truck traveled about 15 to 20 feet through the air and landed upside-down. Ned was uninjured, but Stevens was killed.

The Alaska State Troopers were contacted, and two troopers — Sergeant Scott R. Grasle and Trooper Karl R. Main — arrived in Allakaket approximately four hours after the accident. Upon their arrival, the troopers briefly visited the site of the accident. Witnesses informed them that Ned had been driving, and that he appeared intoxicated. Then, a few minutes before 8:00 in the evening, the troopers went to Ned's house to speak to him.

Eliza Ned, Frederick's mother, answered the door. When the troopers informed Mrs. Ned that they wanted to speak to her son, Frederick, she told them that he was asleep, and she directed them to the bedroom where Ned was sleeping.

Trooper Main stood by the bedroom door while Sergeant Grasle went to Ned's bed and woke him up by calling his name. When Ned awoke, the troopers asked if they could talk to him. Ned told the troopers that he needed to put on some clothes, so Grasle left the room and the two troopers waited in the hallway, talking to Mrs. Ned, while Ned dressed.

While the troopers were standing in the hallway, Ned said something to them, apparently asking what the troopers wanted to talk about, and Grasle responded, "Yeah, about the ... car accident." Ned asked, "Where?", and Grasle replied, "At the end of the runway."

When Ned emerged from the bedroom, Grasle again asked Ned, "Can we talk to you?", and then the troopers accompanied Ned down the hall to the living room, where they sat down. At this point, the troopers began questioning Ned about the accident at the airport. Ned contends that he was in custody during this interview in his living room, and that therefore the troopers were obliged to warn him of his rights under Miranda.

Superior Court Judge Mark I. Wood, who conducted the evidentiary hearing into this matter, found that although the troopers assured Ned's mother that they had not come to arrest him, the troopers never explicitly said this to Ned until toward the end of the interview, and the troopers never told Ned that he was under no obligation to speak to them. Nevertheless, Judge Wood concluded that, under the circumstances, a reasonable person in Ned's position would have believed that he was free to end the conversation.

Judge Wood pointed out that the troopers did not roust Ned from his bed; rather, they woke him up by calling his name, and then they asked if they could speak to him. When Ned indicated a desire to dress, the troopers left the bedroom and conversed with his mother in the hallway while Ned dressed. The judge further found that, when Ned and the troopers walked to the living room, the troopers took seats at the far end of the room, while Ned seated himself on the couch, close to the door. In other words, as Judge Wood explained, "there was no trooper standing between [Ned] and the door".

Judge Wood further noted that the interview took place in mid-evening in the summer, when people were normally up and about, and that Ned's mother came in and out of the room during the troopers' conversation with her son. In fact, as Judge Wood found, Trooper Main was the one who primarily conducted the interview; Sergeant Grasle asked a few questions, but he too (like Ned's mother) "was in and out [of the room],... [not] hovering around".

Judge Wood also found that the tone of the interview was polite, and that the questions that the troopers addressed to Ned were non-accusatory. The judge concluded that "[t]he pace of the interview, the nature of the questions, [and] the tone of the interview all indicated that the troopers were just... trying to get through a very difficult time in a very polite and considerate tone". Judge Wood found that the circumstances of the interview carried "none of the indication[s] and concerns that the ... Miranda court had about ... heavy-handed interrogation and coercion". Instead, the interview was conducted in a "most casual, relaxed atmosphere", and the troopers "were patient in listening to his answers". According to Judge Wood, the non-custodial tenor of the interview was corroborated by the fact that, even though Ned admitted that he had been quite intoxicated when he drove the car (during the interview, some five hours after the incident, Ned described himself as still being "7" on a scale of 1 to 10), the troopers did not arrest Ned at the end of the interview; instead, they left his house.

We have reviewed the audio tape of the troopers' visit to Ned's house, as well as the testimony presented at the evidentiary hearing, and we find that this record supports Judge Wood's characterization of what occurred. Based on these facts, we agree with Judge Wood that Ned was not in custody for Miranda purposes during the interview at his house.

Ned's claims based on Blakely v. Washington: underlying facts

Ned was a first felony offender. His offense, manslaughter, is a class A felony.³ Under AS 12.55.125(c), a first felony offender convicted of manslaughter faces a presumptive term of 5 years' imprisonment unless their offense falls within the circumstances enumerated in AS 12.55.125(c)(2)(B) or (2)(C), in which case the applicable presumptive term is 7 years.

In Ned's case, the State asserted that Ned's offense fell within subsection 125(c)(2)(C). This subsection applies when "the conduct resulting in the [defendant's] conviction [for manslaughter] involved driving while under the influence of an alcoholic beverage". Ned's attorney filed a responsive pleading in which the defense attorney acknowledged that the State was correct — that Ned was subject to sentencing under subsection (2)(C). And, because the parties agreed that Ned was subject to the 7-year presumptive term specified in subsection (2)(C), Judge Wood sentenced Ned on this basis.

Ned's attorney also conceded the applicability of one aggravating factor under AS 12.55.155(c): (c)(4) — that Ned employed a dangerous instrument (a motor vehicle) in committing the offense. Based on aggravator (c)(4), Judge Wood increased Ned's sentence by adding 3 suspended years to the 7-year presumptive term. Thus, Ned's final sentence was 10 years with 3 years suspended.

Now, on appeal, Ned (represented by a different attorney) contends that this procedure violated his Sixth Amendment right to jury trial as construed in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Ned actually makes two Blakely arguments, both of them contained in a single conclusory sentence.

First, Ned asserts that even though his trial attorney expressly conceded the fact that triggered the 7-year presumptive term (i.e., that Ned committed manslaughter while he was driving under the influence) and also conceded the applicability of aggravator (c)(4) (i.e., that Ned's offense involved the use of a dangerous instrument), the sentencing judge was not authorized to rely on the defense attorney's concessions. Ned argues...