Tarnef v. State
| Decision Date | 25 July 1973 |
| Docket Number | No. 1486,1486 |
| Citation | 512 P.2d 923 |
| Parties | Michael Allen TARNEF, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Herbert D. Soll, Public Defender, Lawrence J. Kulik, Asst. Public Defender, Anchorage, for appellant.
John E. Havelock, Atty. Gen., Juneau, Monroe N. Clayton, Dist. Atty., Fairbanks, for appellee.
Before RABINOWITZ, C. J., CONNOR, ERWIN and BOOCHEVER, JJ.
On the morning of April 25, 1969, there was an apparent arson at the White Swan, a commercial laundry located in Fairbanks. However, because of an effective sprinkler system in the building, little damage was done. Mr. Alvin Martin, who was then owner of the White Swan, had been an arson victim a year earlier when a laundromat he had owned had been totally destroyed by fire. Martin suspected that John R. Eberhard, a competitor of his, had been involved in both fires. Consequently, Martin published a $5,000 reward offer for information leading to the arrest and conviction of the persons responsible for the fire.
In June 1969 the defendant, Michael Allen Tarnef, responded to Martin's ad by calling the listed number and agreed to meet Martin and one William Hagar, manager of the White Swan at the time of the fire. Later that day, Tarnef met Martin and Hagar at the Cushman Street Bridge. Tarnef, using the pseudonym Michael Reily (phonetic) drove around with Martin and Hagar for a period of time and discussed the White Swan fire. Accounts of this conversation offered at trial by the three participants varied considerably. Martin testified that Tarnef stated that Sam Kelly actually set the fire and that a boy named Stretch was also involved. Tarnef testified that he implicated Sam Kelly, Floyd Stretch and Eberhard as well as a Mr. Sims and Mr. Chisolm, but not himself. Hager, however, testified that Tarnef implicated himself as well as the other persons mentioned above. Martin paid Tarnef $380 for this information. Martin related the above to the Fairbanks Police Department and to Mr. Robert Timlin, a professional arson investigator from Seattle who had been in Fairbanks on the day of the fire at Martin's request.
Martin also contacted Thomas Fenton, a Fairbanks attorney and former district attorney, and asked that he visit Tarnef, who was then incarcerated at Northern Regional Correction Institute on another unrelated charge, and attempt to get a statement from him about the fire. Fenton visited Tarnef at NRCI in July. Fenton testified that in his presence, Martin offered Tarnef legal counsel to represent him, bail, and additional reward money if Tarnef would make a statement. In addition, Fenton testified that he made the following statement to Tarnef:
Well I said that it was ah-very doubtful whether they would file any kind of case against Tarnef, that the case-that the people that everybody was interested in would be the people who did the hiring of Tarnef to set the fire. And that if they did file a case ah-they-it'd just be a formality I mean there wouldn't be any kind of trial or any prosecution, just to have a case filed against him.
However, Fenton did not succeed in inducing Tarnef to make a statement.
Subsequently, Martin and Hagar visited Tarnef at NRCI several times over the next several months. Then, on February 13, 1970, Timlin, the arson investigator from Seattle, went to NRCI with Hagar and succeeded in obtaining a five-page statement from Tarnef. Tarnef's statement was reduced to writing by Timlin, witnessed by Hagar, and signed by Tarnef. Tarnef's statement indicated that he was approached by Eberhard, Chisolm and Sims and offered $2,500 to set the White Swan fire. Tarnef admitted making substantial preparations including hiding a number of cannisters of inflammable liquids near the White Swan, but told his employers at the last minute that he wouldn't do the job. The critical admission made by Tarnef was as follows:
The next night, I was talking with Sam Kelly and asked him if he was interested in making some easy money, and when he said yes, we went over to the Polaris lounge and got a hold of Joe Sims-Joe told him what he had to do and they agreed on terms-at this time I left.
Timlin testified that although Tarnef apparently wanted to bargain that he made Tarnef no promise of leniency and told him that it 'was strictly up to the district attorney' whether he would be granted immunity for 'turning so called state's evidence.' Timlin also stated that he advised Tarnef of his constitutional rights:
A. After the interview with Mr. Tarnef and prior to the time that the statement was reduced to writing, I informed Mr. Tarnef of his-constitutional rights.
Q. What do you mean by his constitutional rights?
A. That he had a right not to say anything and that if he did say something it could be used against him, that he had a right to an attorney, that if an attorney-if he did not have an attorney one could be provided. Ah-at this point in time Mr. Tarnef said ah-'hold' or 'whoa' or something like that, 'that kind of talk scares me' or 'bothers me'. And I told him that even though I was no longer connected with law enforcement, I still felt that because of my past connection that I should so advise him on this stuff, and we went on with the statement.
Tarnef's account of his conversation with Timlin was considerably different. He testified that Timlin told him that no charges would be brought against him, he would get a $5,000 reward, and that his bond would be furnished by Martin. Tarnef stated that much of the wording of the statement was not his own, but was furnished by Timlin. Tarnef further testified that he knew nothing about the fire except what was related to him by Sam Kelly and, moreover, the only reason he gave the 'false' statement was because he thought it could not be used against him since Timlin had not advised him of his rights:
A. When he-after he said that he was working for the ah-this insurance company as a private investigator, he said before we get started on any ah-business, he said I have something I'd like to read to you and I said-before he said anything else I said that if that has something to do about warning me or something, I said I-you know, we'll just forget the whole thing right now. And Mr. Martin who was present with Mr. Hagar and Mr. Timlin that morning because he had to fly out-he flew out later on that afternoon. And Mr. Martin just said yeah that's all right and Mr. Timlin said well, he said I-I don't have to read 'em to you then everything's all right. But he never did, he never advised me of anything.
Q. Well, what did you mean about that if you were gonna get involved, then advise you of your rights, you'd forget the whole thing?
A. Well, sure because then he could turn around you know, regardless, that would be the only thing that would scare me into giving it, you know, in other words, if I-if I did give the statement even though he did give me all those promises and everything I figured that the man never did advise me of anything and that if he did try to turn me around I wouldn't have anything to lose by it. In other words, they still wouldn't be able to, you know, to use it.
Tarnef moved to suppress the statement and a suppression hearing was held in February 1971. The motion was denied and Tarnef was tried by a jury beginning later that same month and found guilty of second degree arson. On March 31, 1971, he was sentenced to five years, the sentence to run concurrently with a ten-year sentence imposed by Judge Hepp for a narcotics offense.
Tarnef alleged a variety of errors in the process which led to his conviction. These are set out and discussed separately because no satisfactory method of continuity is available to discuss such unrelated topics. Tarnef's allegations of error are as follows:
1. AS 11.20.020, under which he was convicted, is an unconstitutional exercise of police power to the extent it makes innocent behavior criminal.
2. He was denied due process of law as guaranteed by the fourteenth amendment to the United States Constitution because of the pretrial delay.
3. He was denied his right to speedy trial as guaranteed by the sixth amendment of the United States Constitution and made applicable to the states by the fourteenth amendment and as guaranteed by article I, section II, of the Alaska Constitution.
4. His statement, a product of custodial interrogation, was taken in violation of Miranda v. Arizona 1 since there was no showing of effective waiver of his fifth and sixth amendment rights under the United States Constitution.
5. His statement was given in exchange for promises of leniency and was therefore involuntary and should have been excluded.
AS 11.20.020 provides:
Second degree arson. A person who wilfully and maliciously sets fire to or burns or causes to be burned, or who aids, counsels or procures the burning of a building or structure of any kind, whether his property or the property of another, not included or described in § 10 of this chapter (arson of a dwelling), is guilty of arson in the second degree, and upon conviction is punishable by imprisonment for not less than one nor more than 10 years, or by a fine of not more than $5,000, or by both.
Relying on the 'last antecedent' rule of statutory construction, 2 appellant argues that the phrase 'wilfully and maliciously' refers only to '(a) person who . . . sets fire to or burns or causes to be burned . . .' and does not modify 'who aids, counsels or procures the burning of a building or structure . . ..' Consequently, a person can be convicted of second degree arson under the statute if he 'aids, counsels or procures the burning of a building' even though he is not shown to have had any specific criminal intent. Appellant argues that the absence of a criminal intent requirement makes the statute violative of the due process clause as an unreasonable exercise of police power.
The threshold issue, however, is whether we should...
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