Stephan v. State

Decision Date06 December 1985
Docket NumberS-406,Nos. S-387,s. S-387
Citation711 P.2d 1156
PartiesDonald STEPHAN, Petitioner, v. STATE of Alaska, Respondent. Malcolm Scott HARRIS, Petitioner/Cross-Respondent, v. STATE of Alaska, Respondent/Cross-Petitioner.
CourtAlaska Supreme Court

Tina Kobayashi, Christine Schleuss, Asst. Public Defender, Dana Fabe, Public Defender, Anchorage, for petitioner Stephan.

Steven P. Oliver, Anchorage, for petitioner/cross-respondent Harris.

Cynthia M. Hora, Asst. Atty. Gen., Anchorage, Norman Gorsuch, Atty. Gen., Juneau, for respondent/cross-petitioner.

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

BURKE, Justice.

More than five years ago, in Mallott v. State, 608 P.2d 737 (Alaska 1980), we informed Alaska law enforcement officials that "it is incumbent upon them to tape record, where feasible, any questioning [of criminal suspects,] and particularly that which occurs in a place of detention." Id. at 743 n.5 (citation omitted). This requirement (hereinafter the Mallott rule) was again noted in S.B. v. State, 614 P.2d 786 (Alaska 1980), with the observation that an electronic record of such interviews "will be a great aid" when courts are called upon to determine "the circumstances of a confession or other waiver of [a suspect's] Miranda rights." Id. at 790 n.9. In a third case, McMahan v. State, 617 P.2d 494 (Alaska 1980), cert. denied, 454 U.S. 839 102 S.Ct. 146, 70 L.Ed.2d 121 (1981), the recording requirement was repeated, with the further statement that "if Miranda rights are read to the defendant, this too should be recorded." 617 P.2d at 499 n.11. Today, we hold that an unexcused failure to electronically record a custodial interrogation conducted in a place of detention violates a suspect's right to due process, under the Alaska Constitution, 1 and that any statement thus obtained is generally inadmissible. 2

I. FACTS

The relevant facts in the two cases now before us are similar. Malcolm Scott Harris and Donald Stephan, petitioners, were arrested on unrelated criminal charges, taken to police stations and questioned by police officers. Harris was interrogated on two separate occasions; Stephan was interrogated only once. Both men made inculpatory statements. In each instance, a working audio or video recorder was in the room and was used during part, but not all, of the interrogation. The officers, in each case, offered no satisfactory excuse for their clear disregard of the Mallott rule. 3

II. PROCEEDINGS BELOW

Prior to their respective trials, Harris and Stephan both moved to suppress confessions made during their interrogations. At the suppression hearings there was conflicting testimony about what occurred during the unrecorded portions of the interviews. Harris claimed that, in his first interrogation, he was not informed of his Miranda rights 4 at the beginning of the session, that the questioning continued after he asserted his right to remain silent, and that the officer made threats and promises during the untaped portions. Stephan claimed that his ultimate confession was induced by promises of leniency and was obtained in the absence of an attorney, after he requested one. In both cases, the officers' testimony was to the contrary. 5 Without a full recording to resolve the conflict, the superior court was required to evaluate the credibility of the witnesses and choose which version of the unrecorded events to believe. In each case, the court chose the police officers' recollections and determined that the confession was voluntary and, thus, admissible at trial. 6 Harris and Stephan were ultimately found guilty and filed notices of appeal.

The Alaska Court of Appeals 7 concluded, in each case, that there was a violation of the Mallott rule, but declined to adopt an exclusionary rule. Both convictions were affirmed. Harris and Stephan petitioned this court for hearing, pursuant to Appellate Rule 302, and their petitions were granted. Given the factual similarities and the common legal issue, we ordered the two cases consolidated.

III. RECORDING IS A REQUIREMENT OF STATE DUE PROCESS

In its decision, the court of appeals acknowledged: "[T]he supreme court has clearly stated in three separate cases that the police are under a duty to record statements which suspects make where recording is feasible. That admonition cannot be ignored." Harris v. State, 678 P.2d 397, 404 (Alaska App.1984). 8 The court, nevertheless, refused to adopt a general exclusionary rule, stating:

[W]e believe that the issue of what sanction is appropriate is best approached on a case by case basis.... Exactly what sanction, if any, to apply for the failure to record a defendant's statement in a given case is a decision which is best left to the sound discretion of the trial court under the standards set forth in Putnam v. State, 629 P.2d 35, 43-44 (Alaska 1980). 9

Id. at 404-05

The court of appeals' refusal to adopt an exclusionary rule in these circumstances is perhaps due to failure on our part to adequately explain the full significance of our prior decisions. Electronic recording of suspect interrogations was described in those cases, rather ambiguously, as "part of [a law enforcement agency's] duty to preserve evidence." Mallott v. State, 608 P.2d at 743 n.5 (citing Catlett v. State, 585 P.2d 553, 558 n. 5 (Alaska 1978)). 10 Today, we resolve that ambiguity. Such recording is a requirement of state due process when the interrogation occurs in a place of detention and recording is feasible. 11 We reach this conclusion because we are convinced that recording, in such circumstances, is now a reasonable and necessary safeguard, essential to the adequate protection of the accused's right to counsel, his right against self incrimination and, ultimately, his right to a fair trial. 12

It must be emphasized that our holding is based entirely upon the requirements of article I, section 7, of the Alaska Constitution, as interpreted by this court. See Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (a state court's reliance on federal authority will be presumed, unless its reliance on independent state grounds is clear from the face of the court's opinion). We accept the state's argument that custodial interrogations need not be recorded to satisfy the due process requirements of the United States Constitution, because a recording does not meet the standard of constitutional materiality recently enunciated by the United States Supreme Court in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). 13 In interpreting the due process clause of the Alaska Constitution, however, we "remain free to adopt more rigorous safeguards governing the admissibility of ... evidence than those imposed by the Federal Constitution." 467 U.S. at ----, 104 S.Ct. at 2535 n. 12, 81 L.Ed.2d at 423-24 n.12. 14 Thus, as we have done on previous occasions, we construe Alaska's constitutional provision, in this instance, as affording rights beyond those guaranteed by the United States Constitution. See State v. Glass, 583 P.2d 872, 876 n.12 (Alaska 1978) modified by City and Borough of Juneau v. Quinto, 684 P.2d 127 (Alaska 1984) (warrant requirement applied to electronic monitoring of a police informant's conversations with a suspect).

In Municipality of Anchorage v. Serrano, 649 P.2d 256 (Alaska App.1982), the Alaska Court of Appeals extended the state's duty to preserve evidence to include breath samples taken during the administration of a breathalyzer test. Given the importance of breath samples in cases involving a charge of driving while intoxicated, and the minimal cost and effort involved in obtaining them, the court of appeals explicitly held that the due process clause of the Alaska Constitution requires the state to gather and preserve a defendant's breath sample. Id. at 258. The need to insure that the voluntariness of a confession can be confirmed by reference to an accurate and complete record is at least as important as the need to insure that the validity of breathalyzer test results can be independently tested. Given the relative ease with which such confirmation can be provided, by means of an electronic recording, we see no legitimate reason not to require it, at least to the extent mandated by this opinion.

When a defendant claims that his confession is involuntary, the Constitution of the United States imposes a heavy burden. Before the confession will be admitted, the prosecution must show a knowing and intelligent waiver of the defendant's federal privilege against self incrimination and his right to counsel. Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694, 724 (1966). Under the Alaska Constitution, the state's obligation is no less burdensome.

The contents of an interrogation are obviously material in determining the voluntariness of a confession. The state usually attempts to show voluntariness through the interrogating officer's testimony that the defendant's constitutional rights were protected. The defendant, on the other hand, often testifies to the contrary. The result, then, is a swearing match between the law enforcement official and the defendant, which the courts must resolve. 15

The difficulty in depicting what transpires at such interrogations stems from the fact that in this country they have largely taken place incommunicado.

....

... Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms.

Miranda, 384 U.S. at 445, 448, 86 S.Ct. at 1612, 1614, 16 L.Ed.2d at 707, 709. Thus, we believe a recording requirement is justified, because "a tape recording provides an objective means for evaluating what occurred during interrogation." Harris v. State, 678 P.2d at 414 (Singleton, J., concurring and dissenting).

Although there are undoubtedly cases where the testimony on one side or the...

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    ...interrogation recordation is a due process requirement under its state constitution for confessions to be admissible. Stephan v. State , 711 P.2d 1156 (Alaska 1985). The list of state courts which have declined to mandate recordation as being constitutionally required by their state constit......
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