Thessen v. State, 898

• Decision Date: 12 May 1969
• Docket Number: No. 898,898
• Citation: 454 P.2d 341
• Parties: Charles THESSEN, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 341

454 P.2d 341

Charles THESSEN, Appellant, v. STATE of Alaska, Appellee.

No. 898.

Supreme Court of Alaska.

May 12, 1969.

Charles R. Tunley, of Ross & Tunley and James K. Singleton, Jr., of Delaney, Wiles, Moore & Hayes, Anchorage, for appellant.

G. Kent Edwards, Atty. Gen., Juneau, Thomas E. Curran, Jr., Sp. Prosecutor, Douglas Baily, Dist. Atty., Anchorage, for appellee.

Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

OPINION

DIMOND, Justice.

Fourteen persons were killed in a fire in the Lane Hotel in Anchorage in September 1966. In a 14 count indictment appellant was charged with first degree murder of those persons while perpetrating arson. He was convicted of 14 counts of manslaughter. He appeals, asserting various points which he claims require a reversal of the judgment of conviction and a new trial.

Appellant's first point has to do with his privilege against self-incrimination and his right to counsel at the time he was interrogated by the police.

In Miranda v. Arizona ¹ the United States Supreme Court held that when a person is taken into custody in connection with a criminal matter or is otherwise deprived of his freedom of action in any significant way by the authorities and is subject to police interrogation, ² the person must be warned prior to any questioning that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has the right to the presence of an attorney, either retained or appointed. ³ As to the right to consult with counsel, the Supreme Court said:

Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today.

In order to fully apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. ⁴

A person may waive his privilege against self-incrimination and his right to counsel by choosing not to remain silent and not to have an attorney present at the time of police interrogation. But where such a waiver is asserted, it must be demonstrated by the state that the waiver was knowingly and intelligently made. In Miranda the court said:

If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. ⁵

And then in speaking of the meaning of the privilege against self-incrimination, the court said:

The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant.

But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him. ⁶

During police interrogation appellant confessed to having started the Lane Hotel fire, and such confession was admitted in evidence and used against him at the trial. Appellant contends that the confession ought to have been suppressed and not used against him because he was not effectively advised of his rights under Miranda and did not knowingly and intelligently waive those rights.

Appellant was arrested at approximately 2:10 a. m. on October 10, 1966 for driving while under the influence of intoxicants. He was immediately taken to the city of Anchorage Police Department and booked. Within an hour after his arrest, he was interrogated about trash fires occurring in the Anchorage area. Previous to the interrogation, appellant was fully warned of his rights under Miranda. He stated he did not want an attorney because he did not need one. He did not admit setting any fires at this interview. The interview lasted for one and one-half hours.

At 9:10 a. m. on October 10 appellant was arraigned, and after entering a plea of guilty, was sentenced to five days in jail for the offense of driving while under the influence of intoxicating liquor. At 1:40 p. m. on October 10 he was interrogated again about the trash fires. Again appellant was fully warned of his rights under Miranda prior to the interrogation and he signed a 'Waiver of Constitutional Rights' form in which he acknowledged that he had been advised of his rights under the requirements of Miranda. The second interview lasted about two hours and appellant orally admitted setting nine or ten trash fires.

At 9:00 a. m. on October 11 appellant was again interrogated for about one and one-half hours. Before the interview he was again warned of his rights under Miranda. Then he dictated a written statement in which he admitted starting 10 fires. At 6:30 p. m. on October 11 appellant was interviewed for two hours. He was asked if he was still aware of his rights. He said he was and consented to be interviewed. Appellant then orally admitted starting the Lane Hotel fire.

At 9:00 a. m. on October 12 appellant dictated a written confession in which he admitted having started the Lane Hotel fire. Prior to this confession he was again fully warned of his rights under Miranda. At 3:45 p. m. on October 12 appellant was arraigned on two separate indictments charging 14 counts of felony murder by arson and 10 counts of second degree arson.

At the hearing of appellant's motion to suppress his confession, appellant testified that he had drunk 20 to 30 shots of whiskey and had taken 10 to 15 Dexamyl capsules during the 12 hours prior to his arrest at 2:10 a. m. on October 10, 1966. He stated that he was so drunk that he could not remember much of what took place and that he could have said anything that night. He also testified that at the time of the second interrogation, at 1:40 p. m. on October 10, he was still in a 'daze' and did not recall the questions or signing any waiver of constitutional rights. ⁷ Appellant argues that because of his physical condition on October 10, resulting from the consumption of alcohol and drugs, he could not have validly waived his privilege against self-incrimination and his right to retained or appointed counsel.

It is entirely possible that one could be so intoxicated or under the influence of drugs that he could not knowingly and intelligently waive his constitutional rights. ⁸ Whether this is so depends upon the facts of each particular case.

The first interrogation took place at about 3:00 a. m. on October 10, 1966, less than one hour after appellant had been arrested for driving while under the influence of intoxicating liquor. A police officer testified that just prior to the arrest he observed appellant drive his car up on a curb. When the officer asked appellant to step out of the car, the officer observed that appellant had a difficult time getting his feet to the pavement and that there was a waiver in his balance. The officer smelled the odor of liquor on appellant's breath. When asked to stand on one leg holding the other foot in front of him, appellant was not successful in maintaining his balance. In addition to this evidence, there was appellant's testimony, which we have already referred to, that he was so drunk and in such a daze that he did not know what was taking place at both the first interrogation at 3:00 a. m. on October 10 and at the second interrogation at 1:40 p. m. on the same day.

On the other hand, there was evidence indicating that appellant was in command of his faculties and knew what he was doing. Officer Lancaster, who interrogated appellant at approximately 3:00 a. m. on October 10, testified that appellant had been drinking, but that

I wouldn't consider him intoxicated. Uh, he was responding well to questions and, ah, he might have been a little more talkative, possibly. But * * * he was clear, clear headed.

Dr. Nicholas testified that it would take 12 hours after appellant had stopped drinking and taking the pills for him to be free of their influence. He further testified that it would not be unusual to find a person who reported having taken such doses of alcohol and Dexamyl pills within this limited period of time to either have convulsions or be in an extremely depressed mood. No one testified that this was appellant's condition at the time of his interrogation by the police following his arrest on October 10. A psychologist, James Jefferies, who was familiar with the drug Dexamyl and who had had extensive experience with persons who had drunk to excess, testified that appellant showed no signs of having taken 25 to 30 shots of whiskey and 15 Dexamyl pills without eating when Jefferies interviewed appellant about 36 hours after his arrest.

The trial judge found that when appellant was interrogated on October 10 he had well recovered from any drug or alcoholic influence he might have been under earlier that day. Implicit in the judge's findings is the determination that appellant knew what he was doing when he allowed himself to be interrogated without claiming his privilege against self-incrimination and the right to have present retained or appointed counsel-that appellant had knowingly and intelligently waived those rights. ⁹ We cannot say that the judge was wrong in making this determination. Since he heard and observed the demeanor of the witnesses before him, it was his responsibility to judge of the witnesses' credibility. He had the right to believe the testimony of Officer Lancaster and Dr. Nicholas and Mr. Jefferies, and to disbelieve appellant's testimony and to make the determination that he did.

After a defendant has been advised of his constitutional rights, and the interrogation continues and a statement is...