Van Cleve v. State, 5500

• Decision Date: 03 September 1982
• Docket Number: No. 5500,5500
• Citation: 649 P.2d 972
• Parties: Richard Scott VAN CLEVE, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 972

649 P.2d 972

Richard Scott VAN CLEVE, Appellant, v. STATE of Alaska, Appellee.

No. 5500.

Court of Appeals of Alaska.

Sept. 3, 1982.

Christine Schleuss, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellant.

Peter A. Michalski, Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee.

Before BRYNER, C. J., and COATS and SINGLETON, JJ.

OPINION

COATS, Judge.

Richard Van Cleve was tried and convicted in the superior court in Anchorage of second degree murder, ¹ and was sentenced to twenty years' imprisonment. He appeals his conviction and sentence to this court alleging two claims of error: first, that the superior court erred in denying his pretrial motion to suppress a confession which he made to the police, and second, that the sentence is excessive.

On November 2, 1979, Van Cleve accompanied Gary Hile and Billy Williams, two friends, to watch Allen Butcher, another friend, play hockey. Van Cleve consumed two quarts of malt liquor during the game, at least one beer on the way to Hile's home after the game, and several rum-and-cokes while at Hile's home. At some point prior to 2:30 a. m. Van Cleve quit drinking and went to sleep, only to be later awakened by Butcher who wanted to go downtown.

At about 2:30 a. m., all four individuals left the house. They first dropped Williams off, then proceeded to drive around downtown Anchorage in Hile's car. At about 4:30 a. m. they returned to Hile's home. At that time Van Cleve and Butcher got into Van Cleve's car and returned downtown. While driving around, Van Cleve and Butcher generally caused trouble. They yelled at Eskimo natives, hassled prostitutes, attempted to strike a native male who was walking in the area, and indiscriminately assaulted people with a hockey stick.

At approximately 5:30 a. m., Van Cleve was stopped by Anchorage Police Officer Bill F. Reeder after Reeder observed him carrying a hockey stick and walking in the direction of a native male. At that time Reeder noticed a slight odor of alcohol about Van Cleve, but did not think he was intoxicated. Knowing that Van Cleve was driving, Reeder told him to go home.

On the way home, Butcher pointed out to Van Cleve the same man Van Cleve had intended to hit with the hockey stick before being stopped by Reeder. Van Cleve exited the car with his stick and followed the man, later identified as Mike Hiratsuka, around the corner. He returned to the car about two minutes later with his hands covered with blood. Just before reaching the car he threw his hockey stick on top of a nearby warehouse.

Van Cleve then drove Butcher home, went inside Butcher's home to clean up, and then drove himself home. It was then about 5:30-6:00 a. m At approximately 6:30 a. m., Van Cleve was arrested at his home after Reeder learned that Hiratsuka had been beaten. At that time Reeder read Van Cleve the Miranda warning from a card and then had him transported to the police station where he was again advised of his rights, this time in writing. Van Cleve acknowledged that he understood his rights and signed a waiver of rights form after being asked to read and initial each right on the form and to sign the form only if he understood it.

At exactly 8:37 a. m., Reeder began a recorded interview with Van Cleve whereupon he confessed to having beaten the native male with a hockey stick. ² The interview lasted eight minutes.

Following the interview, the officers took Van Cleve and Butcher to the scene of the incident. Van Cleve showed Reeder where and how things took place and pointed out the area where the hockey stick was located. Van Cleve was subsequently charged with second degree murder.

A pretrial suppression hearing was held to determine the admissibility of Van Cleve's confession. Conflicting facts surrounding the voluntariness of that confession were presented at the hearing. Officer Reeder testified that at all times that he was in Van Cleve's presence, i.e., during the arrest and interview processes, Van Cleve appeared to be functioning in a normal manner. Despite a slight odor of alcohol about him, he did not conduct himself in a manner that suggested that he was intoxicated. ³ Reeder's testimony was corroborated by a second police officer present during the interview, Officer Larry Arend, who testified that when he observed Van Cleve he was "(q)uiet, but when asked questions by Officer Reeder, they were very cooperative, very rational type answers." He also stated that Van Cleve did not appear to be intoxicated, carried himself well, and was able to walk without "a staggering gait ... or anything of this nature."

Van Cleve's version of the circumstances surrounding his confession differed substantially. Van Cleve testified that even though he signed the rights waiver form prior to his statement to the police, the combination of fatigue, intoxication, and pressure from the incident kept him from comprehending what he was either signing or doing. In support of Van Cleve's testimony, Van Cleve's mother testified that when she went to awaken Van Cleve on the morning of his arrest, he smelled like a "bar room," and that once awakened, he did not appear to be in his "alert normal condition." She further stated that this condition continued for about two weeks thereafter.

After hearing all the evidence, the superior court denied Van Cleve's motion to suppress, finding the following facts: that Van Cleve knew what charge the police suspected him of committing; that his description of what he did coincided with the objective facts found by the police; that he was sufficiently mature and intelligent that he was not "overly suggestible in the presence of authority"; that he was not too intoxicated so as to render him unable to function well; and finally, that there was "nothing in his manner of function that would indicate that-that he was so overborne by this process that he could not have given the knowing and voluntary consent to the 5th amendment and 4th amendment waivers that were obtained from him."

Following trials, the jury returned a verdict of guilty, and the court sentenced Van Cleve to twenty years imprisonment. With these facts in mind, we now review Van Cleve's contentions.

DENIAL OF MOTION TO SUPPRESS

Van Cleve claims that the superior court erred in denying his pretrial motion to suppress the confession and thus that constitutional due process was violated by the use of that evidence against him at trial. Van Cleve does not dispute that he was advised of his rights prior to interrogation, nor does he dispute that an accused may waive fifth amendment rights "provided the waiver is made voluntarily, knowingly and intelligently". ⁴ He contends that he did not effectively waive his Miranda rights. He points to the totality of the circumstances, ⁵ including his youth and immaturity, inexperience with the law, state of shock caused by the incident itself, state of intoxication, and the "coercive" details of the interrogation, to support his contention that these factors, when viewed in the entirety, demonstrate that the state has failed to prove a knowing, intelligent, and voluntary waiver. Conversely, the state argues that the record supports the decision that the confession was voluntarily made.

We stated in Johnson v. State, 631 P.2d 508, 510-11 (Alaska App. 1981) that:

Judicial determination of the voluntariness of confessions involves a unique process. This process has been described as requiring the trial court to apply a three-phased analysis. The court first determines what happened-whether a confession was made and what the basic circumstances surrounding it were. Next the court must decide by means of inference what the effect of the factual circumstances upon the mental state of the accused actually was. And, finally, from its decision as to the accused's state of mind the court must draw its ultimate conclusion as to the voluntariness, in a legal sense, of his confession. (Footnotes and citations omitted.)

The scope of our review as to the voluntariness of a confession is twofold. The trial court's findings of fact will be reversed only if clearly erroneous. ⁶ As to the trial court's determination of voluntariness, we will examine the entire record and made an independent determination. Id. at 512.

It is apparent from the record that resolution of the conflicting accounts of the circumstances surrounding the confession played the determinative role in the superior court's denial of Van Cleve's motion to suppress and in its finding that the confession was voluntary. After listening to Van Cleve's taped confession and after hearing all the evidence, the court weighed the credibility of Van Cleve's testimony against his self-interest in the matter and against the testimony of the police officers and concluded that "(T) here's nothing in his manner of function that would indicate that-that he was so overborn by this (arrest and interrogation) process that he could not have given the knowing and voluntary consent to the 5th amendment and 4th amendment waivers that were obtained from him." The findings of fact upon which the court's determination was based are supported by the record and are not clearly erroneous. Since our review of this matter is limited, we defer to the superior court's findings of fact.

Turning to the next phase in ruling on the admissibility of a confession, we have examined the entire record, and we find that the state has shown by a preponderence of the evidence ⁷ that Van Cleve's statement was voluntary. The record indicates that Van Cleve's age, intelligence, experience, and functioning ability during the time he was interrogated demonstrate that he was capable of giving a knowing, intelligent and voluntary consent.

We do not accept Van Cleve's argument that his alleged state of intoxication rendered him incapable of giving a knowing and intelligent waiver. ⁸ In deciding this issue we recognize that...