Troyer v. State

Citation614 P.2d 313
Decision Date25 July 1980
Docket NumberNos. 4315-4317,s. 4315-4317
PartiesMarvin L. TROYER, Calvin L. Vincent, and Gerald B. McGahan, Appellants, v. STATE of Alaska, Appellee.
CourtSupreme Court of Alaska (US)

Deborah Paquette, Asst. Public Defender, Brian Shortell, Public Defender, Anchorage, for appellants.

Thomas M. Wardell, Dist. Atty., Kenai, Avrum M. Gross, Atty. Gen., Juneau, for appellee.




Marvin Troyer, Calvin Vincent and Gerald McGahan (hereinafter defendants) appeal their convictions for burglary not in a dwelling. The central issue in this case is whether Troyer and Vincent made confessions at the scene of their arrest. Since we hold that there is substantial evidence to support the trial court's finding that no confessions were made at the scene of the defendants' arrest, we do not address their contention that these alleged confessions were made involuntarily. This holding disposes of all three of the appellants' contentions that their subsequent confessions made at the trooper station were illegal fruits of the alleged earlier confessions.

The facts surrounding the defendants' arrest were developed at an evidentiary hearing held before the trial court. At approximately 11:00 p. m. on January 26, 1977, Troopers Schadel and Lawrence were on a stake-out at Tustumena School to apprehend possible burglars. 1 After the troopers had waited approximately one hour, Troyer and Vincent entered the building. Troyer saw Schadel and fled toward the door. Yelling, "Halt!", Schadel pursued with his .45 caliber semi-automatic pistol drawn. From this point the testimony diverges. The officers' version is presented first.

Vincent knocked Schadel out the door. Lawrence, following in pursuit, attempted to shoot Vincent because he thought that Vincent had a long object 2 in his hand which appeared to be a weapon, and that Vincent might attack. But the gun did not fire because he neglected to take the safety off. Lawrence ejected the bullet, and after moving another into the chamber, attempted to fire again, but failed.

Lawrence told the defendants to hit the floor, which they did. Troyer put his hands behind his head. Schadel came back into the building. While Vincent was lying on the floor, Schadel struck Vincent in the buttocks with a flashlight. 3 Additionally, Vincent was struck when he attempted to get up from his prone position. Lawrence testified that Schadel grabbed Vincent's hands behind his head, and because of Vincent's sudden reaction, his head stuck the floor. Lawrence testified that Vincent's nose was red, but he did not "recall it being bloody."

Although the officers had only one pair of handcuffs, they did not handcuff the two together. Troyer was handcuffed, and Vincent kept his hands above his head. Vincent was handcuffed later, when Trooper Kilpatrick arrived. At some point, they were given the Miranda warnings.

Schadel guarded the pair while Lawrence retrieved his shotgun. Eventually, Schadel went to investigate the defendants' car. During that time, Lawrence guarded the defendants with his shotgun. Although Lawrence testified that he told them not to move or he would blow their heads off, he denied making any other threats. 4 Though he thought that they were involved in the other burglaries, he did not question the defendants about them. Schadel also stated that he did not hear the defendants make any statements to Lawrence or Kilpatrick regarding other burglaries. 5

Later, the defendants were transported to the trooper station in Soldotna, where they were interrogated by Trooper Sumey. They made detailed confessions concerning their involvement in other burglaries. Trooper Sumey testified that during his interrogation of Troyer and Vincent they did not mention that they had previously made any admission regarding other burglaries to Lawrence or anybody else. 6 Their confessions implicated Gerald McGahan. When confronted with their statements, McGahan also confessed.

The defendants' version differed with regard to the following material facts. While Vincent was lying on the floor, Schadel hit Vincent in the middle of the back with a hammer which Schadel had found in Vincent's coat pocket. Then Schadel stuck his knee in Vincent's back, grabbed his hair, and smashed his face on the concrete a couple of times. This resulted in a cut lip and bloody nose. Troyer was also pushed around a little bit. Troyer and Vincent were "shook . . . down" and searched, dragged together and handcuffed to each other, and made to lie face down.

Troyer testified that while Lawrence was guarding them, he held a shotgun at his head and "asked us questions and told us if we didn't talk he could make it look like we were trying to get away and he could blow our heads off . . . ." Both defendants testified that Lawrence essentially stated, "I'll blow your fucking brains out" if they did not talk. Additionally, Lawrence told them that they were lucky to be alive, since he had tried to shoot them.

Although they had earlier denied any involvement in other school burglaries, under Lawrence's questioning they both confessed to committing several burglaries. Both confessed because they did not want to be shot and they were scared. At some point, they were given the Miranda warnings.

At the trooper station, they made detailed confessions to Trooper Sumey because they have previously told Trooper Lawrence everything. Additionally, Vincent stated that he told Sumey that he had previously confessed at the school.

The defendants' counsel requested Richard Bartlett, an expert polygrapher, to conduct a polygraph examination of Vincent and Troyer. He tested both Troyer and Vincent twice. At the hearing, he testified concerning the results of the tests. His testimony indicated that the defendants were relating what they believed to be the truth. 7

Following the evidentiary hearing, the trial court denied the motion to suppress. In denying the motion, the court stated:

Essentially, I've been agonizing over how in the world the young men could under the totality of that circumstances I believe what the police officers said, and frankly, I'm inclined to believe that the young men think that what they said occurred out there. I just don't think it's . . . .

Because I have considered the polygraph examination and I think by the time they took the polygraph exam they believed that what they are now saying occurred out there I think that they believe that that did occur. I don't think it occurred in that fashion. I'm sure that they were threatened their lives were threatened. I'm sure that their faces that one of their faces was forced into the floor rather vigorously. They may very well one of them may have been struck in the back with either a hammer or a flashlight and I'm sure that they were that the officer attempted to shoot one of them under the circumstances of the other officer being knocked through the door and the shotgun being brought into play and the profanity of the police officer and all of those things that those young men were frightened at the time. Very frightened at the time. But I do not think a confession was sought or obtained at the scene.

I've thought you know, I've thought about this case a great, great deal. As a matter of fact, it's I've tried to reconcile the testimony of all the witnesses on several occasions and had some difficulty trying to figure out how the boys could be saying what they're saying and the officer saying what he's saying and everyone probably be telling the truth. And I 'cause I I'll state for the record now that it's certainly my belief that police officers can and do lie. I know as a matter of fact that they have in the past but I believe the officers in this case. And that's where we're at.

The trial court made a factual finding that no confessions were made at the scene of their arrest. Consequently, the trial court ruled that the state had proved by a preponderance of the evidence that the station house confessions were not coerced.

Troyer, Vincent and McGahan entered pleas of nolo contendere to charges of burglary not in a dwelling. The pleas were conditioned on the right to appeal the suppression issues. All parties stipulated that the appeal points reserved are dispositive of the case in accordance with Cooksey v. State, 524 P.2d 1251 (Alaska 1974), and Oveson v. Municipality of Anchorage, 574 P.2d 801 (Alaska 1978). All three defendants have appealed the trial court's denial of the motion to suppress. Additionally, Troyer and Vincent contend that their sentences are excessive.

After oral argument, we entered an order remanding the case for "the purpose of requesting the judge to reconsider his finding." We remanded because it seemed highly improbable that Troyer and Vincent could each independently relate similar accounts about the events surrounding their confessions and each mistakenly believe he was telling the truth. 8

The trial court entered findings on remand. The trial court believed that all three police officers testified truthfully, and found their version "wholly credible." He noted that Trooper Sumey, who was not at the scene of the arrest and had no reason to have "an emotional reaction" to the defendants, testified that during his interviews with the participants neither the defendants nor the arresting officers informed him of any prior statements. The judge found it highly unlikely that all of the alleged admissions and confessions could have occurred without one of the participants mentioning it to Sumey. The trial court admitted having continued difficulty reconciling his belief that the polygraphist was correct in stating that the defendants answered the questions truthfully with the court's certainty that, if truthful, the defendants' version was mistaken. The court noted that there was a full month between the date of the defendants' release from jail and February 28,...

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4 cases
  • State v. Cooper
    • United States
    • West Virginia Supreme Court
    • 22 Junio 1983
    ...criteria are present in the present case and the sentences imposed in this case are approved. We also are supported by Troyer v. State, Alaska, 614 P.2d 313 (1980); State v. Evans, 73 Idaho 50, 245 P.2d 788 (1952); Dembowski v. State, 251 Ind. 250, 240 N.E.2d 815 (1968); Workman v. Commonwe......
  • Smith v. Hernandez
    • United States
    • U.S. District Court — District of Alaska
    • 3 Noviembre 2020
    ...State, 949 P.2d 963, 966 (Alaska App. 1997); see also Miller v. State, 18 P.3d 696, 699 (Alaska App. 2001).FN7. See Troyer v. State, 614 P.2d 313, 318 n.11 (Alaska 1980); Geczy v. LaChappelle, 636 P.2d 604, 606 n.6 (Alaska 1981); Noyakuk v. State, 127 P.3d 856, 864 n. 7 (Alaska App. 2006).F......
  • State v. Morrow
    • United States
    • Nebraska Supreme Court
    • 14 Junio 1985
    ...with similar backgrounds and equally guilty in the commission of a crime, are treated and punished the same. See, Troyer v. State, 614 P.2d 313 (Alaska 1980); Demps v. State, 395 So.2d 501 (Fla.1981); People v. Bell, 95 Ill.App.3d 803, 51 Ill.Dec. 83, 420 N.E.2d 497 (1981); Com. v. McQuaid,......
  • Smoot v. McKenzie, 14294
    • United States
    • West Virginia Supreme Court
    • 5 Mayo 1981
    ...factor for inquiry is whether co-defendants who are similarly situated have received grossly disparate sentences. E. g., Troyer v. State, Alaska, 614 P.2d 313 (1980); People v. Parish, 82 Ill.App.3d 1028, 38 Ill.Dec. 494, 403 N.E.2d 725 (1980); People v. Johnson, 71 Ill.App.3d 143, 27 Ill.D......

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