Opinion
Court of Appeals No. A-11322 No. 6325
05-04-2016
JOSHUA ALEXANDER SANCHEZ, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Callie Patton Kim, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3AN-11-1814 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton and Jack Smith, Judges. Appearances: Callie Patton Kim, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard, Judge. Judge ALLARD.
A jury convicted Joshua Alexander Sanchez of felony driving under the influence and driving with a revoked license. On appeal, Sanchez claims that the superior court erred by denying his motion to suppress statements he made to the police at the time of his stop — statements he argues were obtained in violation of his Miranda rights. He also argues that the State impermissibly presented evidence that he invoked his right to silence and refused to speak with the police, and that the State impermissibly commented on his right to remain silent in closing argument. For the reasons explained here, we find no reversible error.
AS 28.35.030(a), (n).
AS 28.15.291(a).
See Miranda v. Arizona, 384 U.S. 436 (1966).
Facts and proceedings
On February 14, 2011, at about 1:00 a.m., Anchorage Police Officers Joseph Ruble and Justin Hadley were on patrol in downtown Anchorage when they saw a silver sedan drive the wrong way on a one-way street. The driver — a white male with short dark hair — was the only person in the car. The officers turned on their overhead lights and followed the sedan as it turned down several streets and into an alley.
When the officers reached the alley, the silver sedan was parked at a 45-degree angle with the driver's side door open. A white male with dark hair, later identified as Sanchez, was a few feet from the vehicle, walking toward the officers. No one else was in the alley.
Officer Hadley got out of the patrol car and directed Sanchez to stop. Sanchez continued walking past the patrol car. Officer Hadley said again, "Stop, we need to talk to you." But Sanchez kept walking briskly toward the street. Officer Hadley then grabbed Sanchez by the arms and held him against a telephone pole. Officer Ruble helped Hadley handcuff Sanchez.
Officer Ruble noticed a strong smell of alcohol on Sanchez's breath and saw that his eyes were red and watery. Sanchez provided the officers with conflicting accounts of where he had been and where he was going. First, Sanchez told the officers that he had been walking down the street on his way home. When Officer Ruble asked Sanchez where he was walking from, he said the Club Millennium, an underage club that does not serve alcohol. Later, Sanchez told the officers that he had just stepped out of a nearby bar, the F Street Station, to urinate. Sanchez said he had seen someone else jump out of the sedan and run down the alley. Sanchez also claimed no relationship to the car, although later investigation determined that the car belonged to Sanchez's girlfriend.
One of the officers looked through the window of the sedan and saw a can of beer in the center console. After administering a partial horizontal gaze nystagmus (HGN) test (the police did not complete the test because Sanchez was uncooperative), the officers arrested Sanchez for driving under the influence. A subsequent breath test showed that Sanchez's blood alcohol level was .13 percent, over the legal limit of .08 percent. The State ultimately charged Sanchez with felony driving under the influence and driving with a revoked license.
Before trial, Sanchez filed a motion to suppress all the evidence the police obtained after he was handcuffed. Sanchez argued that he had been subjected to custodial interrogation in violation of his Miranda rights, and that all the evidence gathered after he was handcuffed — including the partial HGN test — had to be suppressed. After an evidentiary hearing, the superior court denied the motion.
A jury convicted Sanchez of both charges. He appeals.
Why we conclude that the superior court properly rejected Sanchez's claim that his Miranda rights were violated
On appeal, Sanchez raises a more limited claim: that the superior court should have suppressed the statements he made to the police at the scene of the stop, before the police administered the field sobriety test, because he was subjected to custodial interrogation without the required Miranda warnings. Sanchez relies principally on the fact that the police handcuffed him and questioned him as a suspect.
In Miranda v. Arizona, the United States Supreme Court held that any suspect who is subjected to "custodial interrogation" must first be advised of the right to silence, the right against self-incrimination, and the right to an attorney. If the suspect is not advised of these rights and does not waive them, statements made during the interrogation are not admissible against him.
Miranda, 384 U.S. at 444.
Id.
But not every detention rises to the level of a "custodial interrogation" that triggers the suspect's right to Miranda warnings. As we have previously explained:
Blake v. State, 763 P.2d 511, 515 (Alaska App. 1988).
The cases applying Miranda recognize that there are some Fourth Amendment seizures of temporary duration — most notably, routine traffic stops and other investigative stops — in which Miranda warnings are not required, even though the person is temporarily in custody and the police can properly ignore a request that the officers depart and leave the person alone.The rationale underlying these cases is that investigative stops do not exert the same type of coercive pressure that is present during a custodial interrogation in a police-dominated atmosphere because investigative stops normally take place in public and are of limited duration.
Winterrowd v. Anchorage, 139 P.3d 590, 591 (Alaska App. 2006) (quoting McNeill v. State, 984 P.2d 5, 7 (Alaska App. 1999)).
See Berkemer v. McCarty, 468 U.S. 420, 438-40 (1984); see also Blake, 763 P.2d at 515 (adopting the Berkemer Court's analysis as a matter of state constitutional law).
Miranda warnings are only required in an investigative traffic stop if the motorist "is detained under circumstances substantially more coercive than the typical traffic stop" — circumstances that "actually impair[] [the motorist's] free exercise of the privilege against self-incrimination." Accordingly, the fact that Sanchez was seized during an investigative stop does not necessarily mean that the police had a duty to advise him of his Miranda rights before they questioned him.
Blake, 763 P.2d at 515.
In arguing that his questioning rose to the level of custodial interrogation, Sanchez relies on our unpublished decision in Howard v. State, where we held that the defendant was subjected to custodial interrogation when, following a traffic stop for expired registration tags, an officer ordered him out of his car, handcuffed him, and asked him what was inside a tinfoil container in his vehicle.
Howard v. State, 2007 WL 4410358, at *2, *4 (Alaska App. Dec. 19, 2007) (unpublished).
Sanchez's case is distinguishable from Howard in a critical respect: when the police initially contacted Sanchez, he walked briskly away from the scene and ignored two clear commands to stop — leaving the police with no choice but to restrain Sanchez briefly so they could question him. A reasonable person in this situation could reasonably believe the restraint was a temporary response to his refusal to cooperate with the police, and that the police would release him once they completed their inquiry.
Waring v. State, 670 P.2d 357, 364 (Alaska 1983); Ozhuwan v. State, 786 P.2d 918, 920 (Alaska App. 1990); Romo v. Anchorage, 697 P.2d 1065, 1068 (Alaska App.1985).
In reaching this decision, we emphasize that in the superior court Sanchez claimed he was in custody and entitled to Miranda warnings "the moment he was put into handcuffs." He did not argue that the restraint was initially justified and ripened into custody because it went on too long or because other coercive pressures were brought to bear on him. As a result, few facts were developed at the suppression hearing on the duration of the stop and the particular circumstances of the restraint, and the court made no findings on these issues. Given this argument and evidentiary record, we conclude that Sanchez's temporary restraint did not convert the encounter into Miranda custody, and that the superior court properly denied his motion to suppress.
Why we conclude that the admission of Officer Ruble's statement that Sanchez invoked his right to remain silent was not plain error
After the police arrested Sanchez, they transported him to the Anchorage jail to administer a breath test and complete the DUI processing. At the end of the DUI processing, Officer Ruble read Sanchez his Miranda rights and asked him if he was willing to speak to them. Sanchez said, "Yeah. I love you guys."
Sanchez was then asked again if he wanted to waive his rights and talk with the officers. But instead of directly answering the officers, Sanchez related his version of what happened that night. Officer Hadley then explained to Sanchez that the officers would not ask him any questions about what happened without a definitive statement that he wanted to waive his rights and talk with them. Sanchez initially said, "Yes," and then he said, "Yes and no." Sanchez told the officers he did not know exactly how the process worked, and he apologized. Based on these ambiguous answers, Officer Ruble concluded that Sanchez had invoked his right to remain silent, and the officers asked him no further questions.
At trial, the State played the audio recording of the DUI processing, including the discussion just described. The recording ended with Officer Ruble stating, "[T]he time on the DataMaster instrument is 0218 hours. And Mr. Sanchez has invoked his right to remain silent. I am stopping the tape."
Sanchez did not object to the admission of this audio recording or Officer Ruble's statement. Now on appeal, Sanchez claims that admitting this evidence of his invocation of the right to silence amounted to plain error.
We agree that it was error for the jury to hear the portion of the audio recording in which Officer Ruble declared that Sanchez had invoked his right to silence. Alaska law protects a criminal suspect's right to remain silent both before and after arrest, and evidence that the defendant invoked that right is generally inadmissible.
See Gunnerud v. State, 611 P.2d 69, 75 (Alaska 1980).
See Adams v. State, 261 P.3d 758, 773-74 (Alaska 2011).
Nevertheless, we conclude that the error did not rise to the level of plain error because it was harmless beyond a reasonable doubt. The jury heard Sanchez give the police several accounts of what happened that evening. And after Sanchez was advised of his Miranda rights, he repeated one of those accounts and did not unambiguously invoke his right to remain silent. Given this record, we conclude that a reasonable jury would not draw an inference of guilt from Officer Ruble's statement that Sanchez had invoked his right to silence.
See id.; Gunnerud, 611 P.2d at 76.
Moreover, the State had substantial evidence of Sanchez's guilt. From a distance of approximately five feet, Officer Ruble saw a man who looked like Sanchez driving a silver sedan. Sanchez was the only occupant of the sedan and the police only lost sight of the sedan for two or three seconds when it entered an alley. When the police found the sedan parked in the alley, Sanchez was a few feet from the vehicle walking toward the officers. The officers saw no one else in the alley. And Sanchez gave the police contradictory accounts of where he had just come from and what he was doing.
Sanchez's primary defense at trial — that someone else drove the sedan — was undercut by this evidence and by the testimony of Sanchez's girlfriend, who testified that the sedan belonged to her and that Sanchez had access to the keys on the night in question.
Therefore, we conclude that the admission of Officer Ruble's recorded statement that Sanchez invoked his right to silence was harmless beyond a reasonable doubt and find no plain error.
Why we reject Sanchez's claim that in closing argument the prosecutor impermissibly commented on Sanchez's pre-arrest silence
During closing argument, the prosecutor attempted to discredit Sanchez's claim that he was not the driver of the sedan and had just stepped out of a nearby bar to urinate when the police contacted him. In rebuttal argument, the prosecutor told the jury:
When he's first contacted by officers they give him two verbal warnings to stop. If he was just out there going to the bathroom, why wouldn't he have talked to them? Why would he walk away quickly? It doesn't make sense.Sanchez did not object to this argument in the superior court, but now he claims that it was an impermissible comment on his right to remain silent.
When we review a claim that a prosecutor engaged in impermissible argument to the jury, we do not evaluate the challenged remark in isolation, but rather in the context of the entire closing argument and the evidentiary record of trial. Viewing the prosecutor's remark in this larger context, we conclude that the jurors would not naturally and necessarily have understood the remark as a comment on Sanchez's right to remain silent. We believe the jurors would have understood the prosecutor's remark as a permissible invitation to infer Sanchez's consciousness of guilt from his attempt to leave the scene after the police ordered him to stop. We therefore find no plain error.
See Darling v. State, 520 P.2d 793, 794 (Alaska 1974); Heaps v. State, 30 P.3d 109, 117 (Alaska App. 2001).
See McCracken v. State, 431 P.2d 513, 517 (Alaska 1967); Hamilton v. State, 771 P.2d 1358, 1361 (Alaska App. 1989).
See Dyer v. State, 666 P.2d 438, 447-48 (Alaska App. 1983) (ruling that evidence of the defendant's flight from the scene of the crime was admissible evidence of consciousness of guilt and did not violate his fifth amendment rights).
Because we have rejected each of Sanchez's claims of error, his claim of cumulative error also fails. See Roussel v. State, 115 P.3d 581, 585 (Alaska App. 2005). --------
Conclusion
We AFFIRM the judgment of the superior court.