Slwooko v. State, Court of Appeals No. A-8747 | Casetext Search + Citator

Introduction

This case raises the question of whether the State violated the defendant’s Miranda rights in obtaining her statement in which she admitted her participation in a murder. We remand the case with directions to the trial court to make additional findings concerning whether the defendant was in custody when she made the inculpatory statements and whether the record supports the conclusion that she waived her rights before making the statement.

Facts and proceedings

Bernice Slwooko met Jacob Anagick in Nome, during early August, 2002. The two became involved romantically, spending a great deal of time together for the two weeks leading up to the offense in this case. The couple spent most of their time together drinking alcohol. Slwooko and Anagick had plans to move to Unalakleet together to start a new life. The two had stayed, off-and-on, with the victim, Jimmy Jack, in his Nome residence.

At approximately 10 a.m. on August 18, 2002, Anagick walked into the Nome police station and reported that he had murdered Jimmy Jack. During an interview with Nome Police Officer Jens Noet, Anagick stated that, the night before, he had a physical altercation with Jimmy Jack which escalated. He eventually struck Jack in the head with an axe.

Officer Noet immediately placed Anagick under arrest and left for Jack’s residence. When no one answered his knock, he pried the door open to discover Jack dead on the living room floor. He observed that the kitchen table was overturned and an axe was leaning up against it. He concluded that the axe’s handle had been wiped down, since it was covered in blood up to a certain point, and then was completely clean. He found a blood-soaked sock nearby, which he concluded might have been used for this purpose.

Officer Noet then returned to the police station to fully interview Anagick. Anagick told Officer Noet that he was not clear on why he and Jack were fighting. But during the scuffle Jack shoved Anagick up against a wall, injuring his back. This made him angry and he eventually killed Jack by striking him “two or three times” with the axe. When asked by Officer Noet if anyone else had been in the house during the altercation, Anagick responded that “he was all alone with Jimmy, nobody else was there, and that if [Officer Noet] check[ed] the axe for fingerprints, [Anagick’s] . . . would be the only fingerprints . . . on the axe.” Anagick’s volunteered information about the fingerprints struck Officer Noet as “an odd statement to make.”

At some time around midday, Officer Noet received a phone call at the station from Pauline Brown. Brown indicated that she had encountered Slwooko on the sidewalk earlier that day. Slwooko told her that she had murdered Jimmy Jack the night before. Slwooko also told Brown that she had needed to change out of her clothes and shoes, and “get rid of them” because they were bloody.

Nome Police Officer Daniel Bennett viewed and photographed the crime scene at Jack’s residence. Afterwards, he went to the police station to interview Anagick to ask about the information the police heard from Pauline Brown about Slwooko’s statement that she had been involved in the homicide. During this interview, Anagick again recounted how he had scuffled with Jack, and then struck him in the head multiple times with the axe once he was on the floor. Officer Bennett then asked Anagick if Slwooko had been there during the murder. At first Anagick said “no”, then he said “yes”, and then he whispered “what the hell is she doing?” and ended the interview.

Officer Bennett then left the police station to speak with Pauline Brown. She confirmed that Slwooko had stated to her that she was involved in killing Jimmy Jack. As a result of that conversation, the officer began looking for Slwooko. Some time after 4:30 p.m., Officer Bennett spotted a crying woman, accompanied by two men, on the sidewalk in front of the Polar Arms motel. Officer Bennett approached the woman, and asked her if she was Bernice Slwooko. Slwooko said “Yes, and I need to talk to you.” Officer Bennett asked her to get into the patrol car. Slwooko agreed. He also asked the two men to join them. The men got in the back of the patrol car. Slwooko rode in the passenger side. Slwooko was not restrained in any way.

Bennett described Slwooko as very distraught and drunk. (When Slwooko was later booked into the jail, her blood alcohol was measured at .341 percent blood alcohol). When they arrived, Slwooko was hesitant to go into the police station. Officer Bennett encouraged her to come in to talk to him. He stated that he guided her by the arm into the police station and into the chief’s office, which the police used as an interview room. Officer Noet talked to the two men briefly and released them. Officer Noet then joined Officer Bennett in the interview room with Slwooko.

Officer Bennett testified at an evidentiary hearing on Slwooko’s motion to suppress that he had been trained to tell a person in a non-custodial interview that they were free to leave or stop the conversation anytime they wanted. He would then confirm that the person was at the police station voluntarily. Then he would assure the person that, no matter what they said or did in the interview, they would not be arrested. He stated that because there was the possibility that Slwooko was involved in Jimmy Jack’s homicide, he did not want to lie to her and tell her she would be free to go because she would not be free to go if she admitted some involvement. Accordingly, Officer Bennett chose the custodial questioning method, warning Slwooko of her Miranda rights. The interview was recorded. The following is a transcription of the critical portion of the interview.

Officer Bennett: Bernice, right now I’m gonna to — since you’re in the police department I want to ask you some questions, okay?

Officer Noet: I’m gonna take this chair and sit down (indiscernible), okay?

Officer Noet: And I want you to understand your rights, okay? You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford one, one will be appointed to you by the courts. Do you understand your rights? Would you like to answer some questions for me?

Slwooko: No.

Officer Noet: No? Okay.

Officer Noet: Did you ask her anything already?

Officer Bennett: No, I haven’t asked. . . .

Slwooko: Yeah, well. . . .

Officer Bennett:. . . . her nothing.

Slwooko:. . . . I want to be — why am I being arrested?

Officer Bennett: You’re not being arrested. I’m sorry, I didn’t — I didn’t want to arrest you, but since you’re in the police station I have to read you your rights just because. . . .

Officer Noet: (Indiscernible). . . .

Officer Noet:. . . . you’re in the police station.

Officer Noet:. . . . talk to anybody.

Officer Noet: You know. . . .

Officer Noet: We — we just want to know — we would like to know what happened at Jimmy Jack’s.

Slwooko: I really don’t know.

Officer Noet: What. . . .

Officer Noet: Okay.

Officer Noet: Well, Jacob was arrested for hurting Jimmy Jack, and Jacob says that you helped him hurt Jimmy Jack.

Officer Bennett: Well, not exactly, but — I talk — I just got done talking to Jacob, okay? And he said that I needed to come and talk to you. So you want to tell me what happened? Okay.

Slwooko: Exactly?

Officer Bennett: Exactly.

Slwooko then immediately incriminated herself, stating that she had hit Jack “with the axe while he was putting his head down, exactly twice.” Slwooko explained how the assault occurred — at Officer Noet’s behest, she even pointed out where the altercation happened on a drawing of Jack’s home. She then said that Anagick had already wrestled Jack down to the ground when she hit him with the axe twice. Apparently Anagick then struck Jack a third time with the axe because “he was still breathing.” Then, Slwooko stated, she took the axe again and “practically chopped [Jack’s] head off.” Finally, Slwooko explained, Anagick and she had discussed everything and agreed that he would take “all the blame” for the murder. Throughout this discussion, neither officer attempted to clarify Slwooko’s answer of “no” to the initial Miranda warning.

At this point, Officer Noet once again gave Slwooko a Miranda warning. This time Slwooko agreed to waive her rights, and again recounted the events of the night before. Slwooko also told the officers that she had dumped her bloody clothing in the rocks near downtown and obtained a room at the Polar Arms. She also admitted the shoes she was wearing were the same ones she had worn during the murder, and helpfully pointed out some blood on them that she was unable to wipe off.

Slwooko then accompanied the officers downtown to where she had hidden her clothing. Inside the box were a number of items, including Slwooko’s bloody purple jacket and a blood-soaked sock.

The medical examiner determined that Jack died from the massive head wound. And it was his opinion that it took at least two blows from the axe to cause the wound. The state crime lab determined that blood stains from the axe, Slwooko’s shirt, and Slwooko’s shoe were a DNA match for Jack.

Slwooko and Anagick were charged together with murder in the first degree for killing Jimmy Jack. Anagick reached a plea agreement with the State and pled no contest to murder in the second degree.

AS 11.41.100(a)(1).

AS 11.41.110(a)(1).

Before trial, Slwooko moved to suppress her statements to the police, arguing that they had been taken in violation of her Fifth Amendment rights. She also maintained that any information gained as a result of those statements should be suppressed as well. The State argued that Slwooko was not in custody during her initial admissions, and that after invoking her Fifth Amendment privilege, Slwooko had voluntarily spoken with the officers again. Superior Court Judge Ben Esch conducted an evidentiary hearing on the suppression issue at which Officers Bennett and Noet testified. Judge Esch then denied the motion to suppress, finding that Slwooko had asserted her right to remain silent and then waived that right by reinitiating her discussion with the officers.

During trial, Slwooko and Anagick testified that Anagick was solely responsible for Jack’s murder. But the jury convicted her of murder in the second degree. Slwooko appeals from this conviction.

Judge Esch’s ruling on Slwooko’s motion to suppress

In his decision on Slwooko’s motion to suppress Judge Esch explained that, if Slwooko was not in custody, the police had no obligation to warn her of her Miranda rights. But he found it unnecessary to resolve whether Slwooko was in custody when she made the incriminating statements. He noted that, after Officer Bennett advised Slwooko of her Miranda rights, Slwooko had given “an unequivocal answer to the officer’s inquiry whether she wished to answer any questions.” Slwooko had answered “No,” which, as Judge Esch noted, would normally end any questioning. But he concluded that Slwooko had “impliedly waived her right to remain silent after being warned about the consequences of making a statement to the police” when she began talking to the police by asking why she was being arrested. Judge Esch concluded that she had re-engaged the police in a conversation and, in the resulting dialog, waived her rights and confessed to the homicide.

The legal test for determining if Slwooko was in custody

If Slwooko was in custody at the time that she made her incriminating statements, the State had to show that Slwooko waived her Miranda rights before making the incriminating statements. In order to determine whether a person is in custody, a court must consider the circumstances of the interrogation. These factors are set out in Hunter v. State as follows:

when and where [the interrogation] occurred, how long it lasted, how many police were present, what the officers and the defendant said and did, the presence of actual physical restraint on the defendant or things equivalent to actual restraint such as drawn weapons or a guard stationed at the door, and whether the defendant was being questioned as a suspect or as a witness. Facts pertaining to events before the interrogation are also relevant, especially how the defendant got to the place of questioning [—] whether he came completely on his own, in response to a police request, or escorted by police officers. Finally, what happened after the interrogation [—] whether the defendant left freely, was detained or arrested [—] may assist the court in determining whether the defendant, as a reasonable person, would have felt free to break off the questioning.

Id. at 895 (footnote omitted).

These facts are relevant to make the ultimate determination: whether under the circumstances, a reasonable person would have felt “free to break off police questioning.”

Id.

As we have pointed out, Judge Esch did not make any finding on whether Slwooko was in custody when she made the incriminating statements. Although we understand Judge Esch’s decision that it was unnecessary to make this determination, we have come to the conclusion that the issue of whether Slwooko was in custody is important. We conclude that it is necessary for our review for Judge Esch to decide this issue. We accordingly remand for Judge Esch to make additional findings. We are also concerned about the fact that Slwooko stated “no” to the compound question whether she understood her rights and whether she wanted to talk to the police. On remand we direct Judge Esch to make specific findings, if possible, as to whether Slwooko’s answer meant (1) that she asserted her right to silence or (2) that she did not understand her rights, or (3) both.

See Criminal Rule 12(d) (requiring the trial court to make essential findings in determining motions to suppress evidence).

We therefore remand the case to the trial court to make additional findings. The superior court shall have 60 days to forward its findings to this court. After the superior court issues the findings, the parties shall have 30 days to file simultaneous memoranda addressing the trial court’s findings on remand. We retain jurisdiction.

REMANDED.