*1 department’s argued that the Gerik-Jones void be- dissolving Timberline
order was was in a bank- Timberline involved
cause is- proceeding when the order was
ruptcy disagreed, and superior court
sued. then denied. Gerik-Jones
the motion was appeal.
filed Assuming, arguendo, reverse.
We law- department’s dissolution order was issued, superior as found
fully
court, damage action and that Gerik-Jones’ therefore, dismissed,
was, properly be- court, nevertheless, in refus- erred
lieve its of dismissal.
ing to later vacate order “reinstated”
When Timberland in September order
department’s
reason for dismissal of Gerik-Jones’ capacity
damage action—lack —ceased dam- The dismissal of exist. Gerik-Jones’ should, therefore,
age have set action been it longer equitable it no
aside as was prospective Alaska R.Civ.P. effect.
60(b)(5). ruling mo- When on Gerik-Jones’ judgment, the court
tion for relief that, by ignore the fact
was not entitled
then, capacity to be sued Timberline’s fully restored.
been REMANDED, fur-
REVERSED not with this
ther inconsistent
opinion. CARR,
Raymond Appellant, Alaska, Appellee.
STATE
No. A-4040. Appeals Alaska.
Oct. Rehearing Petition for
On
Nov. *2 together and Sandra Y. lived children,
many years K.Y. and and had two S.Y., daughter, had a T.Y. Sandra Y. also previous relationship. from a Sometime imprisoned Y. were *3 for unrelated crimes—Carr assault and for substances; controlled sale of simulated forgery. Y. for Because Carr and incarcerated, were K.Y., T.Y., care placed and S.Y. foster (CINA) pro- filed child-in-need-of-aid and ceedings custody them. obtain formal T.Y., and was a As the father of K.Y. Carr attorney party to CINA case. Carr’s cases his assault and controlled substance maintaining Carr in contact with assisted eventually ap- his two children and was represent pointed to Carr CINA case. 1990, February while the CINA pending, reported case was still S.Y. to one parents of her foster that Carr had sexual- her ly abused on numerous occasions be- approximately July July tween 1987 and (when years 1988 S.Y. was six and seven old). repeated S.Y. her accusations to a counselors; physician and to various ultimately Alaska matter was referred to Defender, Carney, Asst. Public Susan M. Trooper Daniel Hickman. State Salemi, Fairbanks, De- B. Public and John information, When Hickman received fender, Anchorage, appellant. for was incarcerated at Fairbanks Carr Rosenstein, Gen., Atty. Kenneth M. Asst. Y. was at Correctional Center and Sandra Appeals, Prosecutions and Special Facility. Office the Hiland Correctional Mountain Cole, Atty. Anchorage, E. and Charles persuad- Hickman contacted Sandra Gen., Juneau, appellee. cooperate obtaining ed her to informa- concerning reported tion Carr C.J., BRYNER, 15,
Before and COATS a tele- abuse. On March Sandra made MANNHEIMER, Carr, JJ. call to Hickman moni- phone which call, During electronically.1
tored
Carr
BRYNER,
Judge.
Chief
sexually abusing S.Y. The next
admitted
Carr;
advis-
day, Hickman met with
after
by
jury
Raymond
convicted
rights,
ing
Hickman
Carr
his Miranda
of a minor
three
of sexual abuse
counts
incrim-
interviewed him and elicited further
11.41.434(a)(1).
degree.
AS
first
inating statements.
contending
Superior
appeals,
Carr
trial,
his
suppress
moved to
Steinkruger erred
Prior
Judge Niesje J.
Court
his
ob-
to Sandra Y. and
failing to
certain
March
statement
suppress
statements
Hickman. As to the
privilege March 16 statement to
from him in violation of his
tained
that,
statement,
right’to
Carr contended
March
against self-incrimination and
Const.,
V, VI;
he
and because
Alas-
was incarcerated
amend.
because
counsel. U.S.
9,
acting
I,
Y. was
on behalf
Const.,
11. We affirm. Sandra
ka
art.
§§
1978).
(Alaska
accor-
1. Hickman had secured warrant
Glass,
requirements
dance with the
of State
troopers,
telephone
“custody,”
conversation with
Miranda
purposes, pre
supposes
interrogation
him amounted to custodial
at least some minimal element of
coerciveness.
preceded
and should therefore have been
We have said that Miranda
a Miranda
warning.
“exists when
Alternatively,
‘inherently
there are
compelling pressures
represented
claimed
since he
which work to
under
mine the
individual’s will to
pending
counsel in the
resist and to
CIÑA
San-
compel
speak
him to
where he
trooper-instigated telephone
dra Y.’s
call to
would not
”
freely.’
State v.
otherwise do so
Mur
him amounted to a violation of his
ray, App.1990)
similarly
counsel. Carr
claimed a violation
Miranda,
(quoting
384 U.S. at
of his
S.Ct.
counsel as a result of Hick-
1624).
determining
standard for
day,
man’s interview with him the next
Miranda
objective:
Superior
Judge Niesje
March 16.
J.
*4
warnings
required
police
are
interroga
Steinkruger
motion,
denied Carr’s
tion conducted under
circumstances
incriminating
Carr’s
statements of March
person
which a “reasonable
would feel he
15 and 16 were thereafter
introduced
was not free to leave and break off the
against him at trial.2
State,
Hunter v.
questioning.”
590 P.2d
appeal,
On
Carr reasserts his self- 888,
(Alaska 1979).
895
right-to-counsel
incrimination and
claims.
single
No
factor is determinative
We first consider Carr’s self-incrimination
applied; rather,
when this standard is
necessary
compul
claim.
element of
“[A]
standard demands consideration of the to
sory self-incrimination is some kind of com
tality of the circumstances in each case.
States,
v. United
pulsion.”
385 U.S.
Hoffa
Quick
State,
v.
712,
(Alaska
599 P.2d
717
304,
293,
408, 414,
87 S.Ct.
When
C.J., dissenting).
power
have official
the listeners
him,
assumed
not be
it should
over
short,
light
totality
reaction
are motivated
his words
surrounding
circumstances
Carr’s tele
his
expects from
listeners.
he
Y.,
it
phone
with Sandra
conversation
virtually
that Carr’s
seems
inconceivable
Id.
incriminating
real
statements were
interrogation” in
The “official
product
of “coercion re
istic sense
ques
formal
present case
neither
involved
sulting]
from the interaction
a
confrontation with
tioning
personal
nor a
interrogation.”3
v.
and official
Illinois
instead,
officer;
it consist
enforcement
law
Perkins,
charges
the
in
fully justified:
person
a reasonable
Tar-
verdict, and
terms
by
final
the
solved
a
position
felt
he
may
nef’s
well have
that
clearly
confinement
de-
conditions of
and
to
contact
was not free
terminate the
is a
judgment
in a written
that
Moreover,
fined
Timlin.
the issue of Miranda
record,
anxiety
of
the
and
public
custody
appear
matter
not
to
been dis-
does
uncertainty
support
question
puted
precise
that
Miranda’s
con-
Tarnef.
simply cease
Tar-
finding
of inherent coercion
sidered
the court was not whether
purposes
nef was
Miranda
exist.
to
Here,
nothing
App.1991).
suggests
deception
that Sandra
that
the use of
3. Carr
during
telephone
right
due
said Carr
their
conversa-
deprived
of his
him
Sandra
process
I,
appears to have been calculated
take
7 of the Alaska
tion
under article
section
However,
position
deceptive
advantage
exploit
as a
are
of
Carr's
tactics
Constitution.
prisoner.
the
of coercion
and
Given
lack
per
impermissible
se
under Alaska law
sentenced
not
produce
only
they
any tendency
an
are
process
when
and the absence of
violate due
will
confession,
deceptive
produce
the
tactics used
an untruthful con-
untruthful
by
or tend to
coercive
1003,
State,
did
run afoul of the Alaska
1007
the state
not
Sovalik v.
fession.
State,
660,
(Alaska 1980); Marcy
Constitution.
16,
Moulton,
pri-
n.
acted as a
U.S.
180 &
Timlin
rather whether
but
n.
489 &
children. indicated, already As we have consti-
Furthermore, right triggered by did tutional to counsel is not S.Y.’s claim of abuse efforts, investigative purely since such ef- not arise in context rather, suspect do not render a “the simply she told forts accused” proceedings; Const, prosecution.” had her. in a “criminal Alaska foster molested mother I, Thus, investigation case art. the state’s At no relevant to his were S.Y.’s time § not, litigated report in of sexual did in incorporated into of S.Y.’s abuse accusations itself, representation to entitle Carr con- case. the CINA allegation. Furthermore, nection with the participation party Finally, Carr’s as case, specific setting in the factual wholly case unrelated to the CINA proceedings the existence of the CINA did in the case or to participation S.Y.’s not, sense, real have the effect of party custody. issue Carr was a of S.Y.’s converting in- Carr’s status in the criminal only case he was the CINA because vestigation suspect from that of a to that not father of K.Y. and T.Y. Carr was proceeding. of an “accused” a criminal S.Y., was Sandra Y.’s related to who reason, relationship For this we find the Thus, daughter prior relationship. by a investiga- of the CINA case to the criminal legal no actual or claim to assert Carr had support tion too tenuous to the conclusion regard in the to the CINA that Carr’s counsel connection custody. issue To extent of S.Y.’s investigation already the criminal relationship existed between adverse spoke attached when he with Sandra that rela- state and Carr the CINA give prior Hickman. The state’s failure to tionship had no connection S.Y. notice of these to Carr’s contacts CINA certain- S.Y.’s claim sexual abuse was counsel did not violate Carr’s coun- ly pending not to the case. irrelevant CINA sel criminal case. act it reflected on Carr’s fitness to Because final Carr’s contention that the accusation, parent, out as a S.Y.’s if borne court in excluding trial erred evidence of investigation, the criminal could *7 dishonesty. Y.’s This claim lacks Sandra significant impact had a on Carr’s trial, attempted impeach merit. At to Carr children, rights respect to own testimony by establishing Y.’s Sandra that In denying K.Y. T.Y. Carr’s motion to end, person. she was a To dishonest suppress, Judge Steinkruger rec- expressly proposed Judge call Superior Carr to ognized relationship this factual between Saveli, presided D. who Richard had over investigation the criminal the CINA sentencing In forgery Sandra Y.’s trial. concluded that it insuf- but Y., expressed Judge Sandra Saveli had the trigger counsel ficient to Carr’s to thief, you’re [Y.], you’re a view: “Miss to the We respect sexual abuse case. you crook and can’t be believed.” Carr Judge Steinkruger’s agree with conclusion. Judge testify offered to Saveli to simi have attempted If had introduce hearing Judge lar effect trial. After statements to Sandra or Hickman Carr’s testimony pres out of the proposed Saveli’s could as evidence CINA Carr however, Judge jury, ence of Stein- objected that plausibly ground have on kruger prejudicial determined it to more be obtained in viola- the statements been probative than and excluded it. See A.R.E. case. tion of his to counsel that The not decide the issue here. We need regulates inquiry purposes for is not of present relevant Alaska Rule Evidence impeach impact of the criminal investi- the use character evidence potential what provides, in credibility. rule pending on the cus- The gation might have had witness product resulting] credibility of a sense the ‘coercion that part, relevant “[t]he the interaction of and official from by evidence may attacked ... witness be ” See, In interrogation.’ pp. 1004-05. only reputation,” or but opinion the form of mentioned, conclusion, reaching this we for refers character if evidence “to such circumstances, “Nothing among other that A.R.E. or truthfulness untruthfulness[.]” concerning timing the nature the call ir- in limited circumstances 608(a). Except appears received Sandra Y.] [Carr 608(b) ease, present A.R.E. to the relevant evidently unusual. been admission of evidence expressly bars reject telephone to receive or calls entitled specific of untruthfulness. instances from outside Fairbanks Correctional Id. at Center.” Here, although ostensibly Carr opinion as to present evidence sought to rehearing, challenges On character, Judge Sa- Y.’s dishonest statement, citing passages accuracy of this veli, questioning by out responding to trial court that from the record to indicate jury, repeatedly tes presence Troopers special Alaska State made “The only opinion he held was tified that the arrangements for Sandra to be able to Y[.] in the for had been dishonest Sandra Y. passages, call Mr. Carr.” cited howev she be and that “couldn’t be gery case er, only Troopers inter establish that the me.” in the matters then before lieved place Y. to a call to enable Sandra vened opinion not an as to Sandra plainly This is might not allowed. she otherwise have been untruthfulness,” ... Y.’s “character suggest in They neither nor establish 608(a), opinion but rather A.R.E. altering na Troopers tervention actually herself dis conducted custody, or ture or circumstances of Carr’s Though specific occasion. honestly taking advantage on one of his incarcer otherwise ad evidence, Judge gain potentially coercive “opinion” Sa- ation to offered as vantage. tantamount proposed testimony was veli’s specific of dishon of a instance evidence reasons, re- petition For these such, and, under as was inadmissible esty DENIED. hearing is 608(b).5 A.R.E. reasons, these we AFFIRM Carr’s
For
conviction. FOR REHEARING PETITION
ON affirming convic- opinion Carr’s our concluded, part,
tion, that “it seems incrimi-
virtually inconceivable that Carr’s *8 realistic
nating statements were relating Judge testimony assuming out- A.R.E. 403. If viewed as evidence Saveli’s Even Judge dishonesty, Sa- jury character presence that he Sandra Y.’s indicated side the minimally proba- opinion opinion veli’s would best be as to Sandra Y.’s character had an tive, opinion plainly based on a dishonesty opinion she was since the rather than occurring appeared single under she event—Sandra Y.'s on the occasion when dishonest trial — obviously Judge Steinkruger abuse her in which Sandra Y. did not circumstances before him. prejudi- compelling the truth in ruling reasons to distort the evidence more discretion in excluding it under own favor. probative and than cial