IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

FIRST JUDICIAL DISTRICT AT SITKA

STATE OF ALASKA

Plaintiff,

VS.

xxxxxxxxxxxxxxxxx

Defendant.

Case No.xxxxxxxxxxxxxxxxxx

MEMORANDUM OF LAW IN SUPPORT OF

DEFENDANT'S MOTION TO SUPPRESS

STATEMENTS AND TO DISMISS THE GRAND JURY INDICTMENT.

Factual Background

Robert xxxxxxx is charged with burglary and sexual assault in the third degree. The charges arose from an incident on May 23, 1998. The state alleges that Robert, age 20, fondled a drunken girl at the home of a friend. Another young man, xxxxxxxxxx, told the police he walked in to the friend's trailer, and saw Robert with his genitals exposed. He accused Robert of "date-rape."

The police contacted Robert at his home later in the evening and asked him to go to the station with them. Robert agreed to do so. At the station, several different officers interrogated Robert. He initially denied any kind of sexual contact with the girl. The police repeatedly told Robert that they didn't believe him, and used a variety of interrogation techniques to attemptto compel Robert to confess. In so doing, the police stepped over the permissible boundaries of such interrogations, and produced a statement that is unconstitutionally involuntary.

The defense asks this court to suppress the statement.

Argument

I. THIS STATEMENT WAS OBTAINED BY PROMISES OF IMMUNITY FROM PROSECUTION; SUCH CONDUCT HAS BEEN HELD INHERENTLY COERCIVE AND DEEMED PER SE IMPROPER.

The state cannot introduce as evidence in an accused's trial a statement that was involuntarily given. A confession is involuntary when "an examination of all the circumstances discloses that the conduct of law enforcement was such as to overbear [the defendant's] will to resist and bring about confessions not freely self determined." Thompson v. State, 768 P.2d 127, 131 (Alaska App.1989) (quoting United States v. Ferrara, 377 F. 2d 16, 17 (2d Cir. 1967) ) . A statement that is obtained by promises of immunity from prosecution has been held inherently coercive and deemed per se improper. Smith v. State, 787 P.2d 1038, 1039 (Alaska App.1990).

While the police are generally allowed to encourage confessions, and even to tell a suspect that confessing will be seen as favorable, they cannot tell an accused that he will not be charged if he makes a statement. This is not a case where the police simply suggested that confessing would aide the defendant in some way, or that his cooperation would be brought to the attention of the District Attorney. Here the police baldly promised Robert that nothing would happen if he admitted to touching the girl.

During the course of this interrogation, the police repeatedly told Robert they did not believe his denials of touching the girl. (See Exhibit A) Using a well recognized interrogation technique,' the police minimized the seriousness of any sexual touching:

Q. So I can see this-this attractive girl laying there, you know. And maybe she put the moves on you there or - sometime, and you just thought maybe-you know, maybe she wanted you. Is that what happened?

A. No.

Q. Or is it hard for you to come out with it? I can understand it. I mean you' re in a tough spot. And you got an attractive young lady, you know, and maybe she said some things and maybe you thought you could-maybe she wanted you. Is that what happened?

The classic work regarding interrogation technique for police, Inbau, Reid, and Buckley, Criminal Interrogations and Confessions, (1986), discusses this technique at length. (See Exhibit B, attached.)

After making these statements designed to minimize the conduct, the interrogator made the following statements:

Q. Well I'm not saying you touched her or didn't do anything. Touching, there's nothing wrong in touching.

A. Right

Q. Okay. So you can touch all you want and there's nothing wrong. I mean, I could care less if you touched her.

A. So why am I here?

Q. Well, I just want to know

A. (indiscernible)nothing wrong

Q. The thing is, okay, she's got her pants down, all right. If you pulled her pants down, big deal.

A. Big deal? You're saying big deal?

Q. I mean, there's nothing wrong with touching, is there?

A. What am I going to get charged with?

Q. You're not charged with nothing.

A. Well, you're saying big deal with touching her

Q. Well, is there anything wrong with touching a girl?

A. No.

A. I want to know what happens if I say yeah.

Q. Nothing happens.

A. Nothing happens.

Q. Nothing happens.

A. Nothing happens. No, you're not under arrest.

Shortly after this exchange, Robert admitted to fondling the girl. This admission was based upon the police promise that "touching is nothing" and that if he admitted to it "nothing happens." This promise was made directly after Robert asked what he would be charged with. Such police promises of nonprosecution are per se impermissible.

In Smith, supra., the leading Alaska case on impermissible inducements,, the DWI defendant was involved in a single car accident. When the police arrived at the scene of the accident, no driver was present. The trooper ran a computer check on the car and learned that its owner was Theodore Smith.

Three officers were dispatched to Smith's home in Eagle River. When questioned, Smith told the officers that he had not been driving when the accident occurred. He said that earlier in the evening he loaned his car to his brother-in-law. One officer testified that he offered Smith a ride to the accident scene so he could "take care of his car, and Smith agreed to accompany him.

At the accident scene, Smith was questioned about the accident, and Smith again denied that he had been driving. The officer then informed Smith that he was suspected of being the driver because it was obvious he had been drinking. He also pointed out that a bump on Smith's forehead was consistent with a crack in the car's windshield and that a boot print at the scene appeared to match his boots. The officer assured Smith, however, that he was "not interested in prosecuting anyone for drunk driving;" he only wanted to find out who had been driving. Smith then admitted he had been driving.

The court held that such promises rendered subsequent confessions involuntary. Like Robert here, Smith, when initially confronted, completely denied involvement. The police thereafter expressly assured Smith that they were seeking information for limited purposes and had no interest in pursuing a charge of DWI against him. Smith's confession followed after this assurance. The court held that Smith's confession was plainly induced by the promise of leniency and was therefore involuntary.

This is the situation presented here. Robert denied any touching of the girl during the initial interrogation. After the police minimized such conduct, and after Robert specifically asked what charges would be brought if he did admit to touching the girl, he was told "nothing would happen."'

Such improper police use of promises of immunity are per se impermissible. Inducements such as these are prohibited specifically because they are likely to produce false confessions. A suspect, even an innocent one, may admit to police versions of events, if promised they wonft be prosecuted. once such inducements are established, there is no further factual inquiry as to whether the confession was voluntarily made; the legal assumption is that the defendant's will was overborne. As a matter of law, the confession is held to be involuntary. State v. Aguilar, 891 P.2d 668(0r.App. 1995).

In Aguilar, the defendant was a suspect in several robberies. The police told him if he admitted his involvement, he would only be charged with one. In urging the accused to admit his involvement the officer testified that he told the defendant:

"There's no, you know, there's no need--I don't want to hammer you. You're cooperative, let's get this cleared up. I'll only book you on one count of robbery tonight, and let's get this over with."

The appellate court upheld the trial court's finding that in confessing to two robberies defendant in fact relied on the promise made by the officer. The court concluded that defendant's confessions to the crime for which he was offered immunity, was involuntary as a matter of law and use in a criminal prosecution was prohibited.

If a person in the defendant's circumstances reasonably would have believed that the officer was promising immunity and reasonably would have relied on that promise in making the confession, then the confession is considered to have been induced by the promise of immunity and as a matter of law is involuntary and must be suppressed. Smith, supra.; State v. Capwell, 64 Or.App. 710, 715, 669 P.2d 808 (1983). In considering the totality of the circumstances, the following are relevant criteria: (1) age, mentality, and prior criminal experience; (2) length, intensity, and frequency of interrogation; (3) the existence of physical deprivation or mistreatment; and (4) the existence of threat or inducement. Sprague v. State, 590 P.2d 410 (Alaska 1979).

The circumstances here include Robert's youth, his level of intoxication, his lack of experience with police interrogations, and use of tactics designed to lull Robert into believing the police were not interested in prosecuting him for simple touching. The police use of this tactic stepped over the permissible boundary of such ploys when they told Robert that "nothing happens" if he admitted to the touching.

Compare this promise to that which was challenged in Schuenemann v. State 781 P.2d 1005 (Alaska App. 1989). There, the defendant argued that the police comments that his sexual abuse was a medical problem induced his confession. The court rejected this argument, noting that the police did not tell the defendant that he faced no criminal charges. The interrogators there in fact "guaranteed" Schuenemann that he would go to trial. Additionally, the defendant had previously spent eight years in jail for a similar charge.

The police here specifically told Robert "nothing happens" when he asked what charges would be brought if he admitted to the accusation. Robert is 20 years old, and has only a conviction for minor consuming on his record. He had never been interrogated by the police before, and the police knew he had been drinking. The ploys used by the police, including statements such as "there's nothing wrong with touching a girl is there?". would reasonably have been understood by a reasonable person in Robert's situation, to be an indication that the police offers of immunity were genuine. Such inducements are impermissible. The statement must be suppressed.

II. THE INDICTMENT MUST BE DISMISSED.

The state introduced Robert's statement as evidence at the grand jury proceedings. Where the court determines that introduction of an improperly obtained confession was so used, the indictment must be dismissed if the court finds that it had I an overriding influence on the [grand] jury' s decision.' See Boggess v. State, 783 P.2d 1173, 1176 (Alaska App.1989); Cole v. State, 923 P.2d 820 (Alaska App.1996). "A defendant's confession is probably the most probative and damaging evidence that can be admitted against him[.]" Arizona v. Fulminante,, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), (Justice White, dissenting) (internal quotations and citations omitted). The use of Robert's statements at grand jury would clearly have had an overriding influence here. The indictment must be dismissed.

CONCLUSION

The method used by the police here to obtain this statement is per se impermissible. Use of the statement at grand jury was also improper. The defense asks the court to suppress the statement and to dismiss this indictment.

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