*1 of fees in under schedule granted 82(a)(1). superior In the court Rule Civil attorneys fees to be asked
the McCalls 82(a)(2) because Civil Rule
awarded under was not accurate money judgment fee. determining the The su-
criterion for unopposed considered this mo-
perior court to be found the award apparently
tion and has argument per-
proper. Appellants’ us that the circumstances this
suaded court its discretion.
case the trial abused
AFFIRMED.
Wesley LADD, Appellant, Alaska, Appellee.
STATE
No. 2475.
Supreme Court of Alaska.
Sept.
On March appellant Wesley for the kidnapping indicted degree first murder of John F. Rich.3 Thereafter, to suppress Ladd filed a motion all statements made him from the time of his under arrest an unrelated federal *3 indictment December through on suppression 1974. At the hear- ing expanded Ladd his motion to include all prior statements he made to police to his on indictment March 14. The motion was Ladd subsequently denied. was tried Alaska, Kodiak, in by and convicted a jury charges on both in the indictment. Ladd Collins, Inc., C., Collins, B. P. Richard was to sentenced concurrent life terms to appellant. for Anchorage, be served consecutively federal to a sen- Lawner, Atty., serving. Asst. Dist. and Jo- tence he was then Ivan Balfe, Atty., Anchorage, Dist. Av- seph D. appeal: Ladd six raises issues on Gen., Gross, Juneau, for Atty. ap- rum M. (1) Whether trial court erred in deny- pellee. ing the suppress; motions to (2) Whether the trial erred in court fail- OPINION ing to jury to submit the issue of the BOOCHEVER, J.,C. and RABI- Before statements; of his voluntariness NOWITZ, BURKE, CONNOR, ERWIN and (3) the trial per- Whether court erred in JJ. mitting the prosecution to introduce testi- CONNOR, mony from an earlier trial in which Justice. Ladd acquitted; a appeal upon This is from conviction (4) deny- for the Whether trial court erred in kidnapping verdict crimes 11.15.260)1 (AS degree ing and first for on acquittal murder Ladd’s motion Count II indictment, 11.15.010).2 (AS of the the kidnapping charge; provides: acquaintance Benny Ramey Gary 1. AS Zieg- 11.15.260 and “Kidnapping. person knowingly er. who A and kidnaps, lawful without reason abducts or 1973, Ramey, Zieger In the summer of and away ransom, and holds for reward carries Anchorage stayed Pinnick returned to and with person, unlawful or other cept reason another ex- mother, Mason, Caye Pinnick’s at Mason’s by parent, the case of a minor his is Eagle home in River. There are two versions punishable imprisonment for a term of plot which resulted in the eventual de- years or for life.” According Benny mise of John Rich. mey, to Ra- provides: 2. AS 11.15.010 against exchange who testified Ladd in degree who, person being charge “First murder. A for the dismissal of another criminal discretion, memory purposely, him, against plan of sound and was to entice Rich out to premeditated and Eagle and either deliberate pretense on River that Ladd was poison, perpe- or malice trating means of or in buying guns him, interested in some from and attempting perpetrate, rape, or in to cooperate. to use force if Rich refused to Rich arson, robbery, another, burglary or kills sign power could then be forced to of attor- guilty degree, of murder in the and shall first ney in to order effectuate a transfer of the imprisonment be sentenced to for not less massage Ladd, parlor however, to Ladd. de- years than 20 to life.” any nied that there was conversation about Rich, Rich, kidnapping massage plan 3. John who was the owner of a asserted parlor property Gary in which Ladd at one time had an inter- effectuate a transfer of est, event, Zieger. had testified a murder trial Rich was killed and his trial, acquittal body disposed Benny Ramey in 1973. After Ladd’s in that of. then flew to occupa- returned Cordova and resumed his appear Seattle under Rich’s name to make it romantically tion a fisherman. He became as that Rich left had the state. Virginia with involved Pinnick and made the for (5) prejudicial represent it was error be able to Whether Ladd because of a carry weapon a concealed prosecutor conflict of interest. trial; during the person his Ladd then told Cole he was unable to of concurrent (6) imposition Whether the obtain an attorney and did not want kidnapping sentences murder make a statement until he had conversed for the same placed jeopardy Ladd twice with one. At his suppression hearing Ladd offense. said that Cole continued to despite request. this Cole testified that he
I advised Ladd that he did not have to an- statements were argues swer any questions, but there were in violation of his constitutional obtained some which Cole wished to ask him. To that he af- rights. He contends was not this Ladd responded he would “take the his Miranda and that he was forded questions as came and determine *4 process due because his confessions denied whether or not he to wanted answer them.” involuntary. The state asserts that were proceeded Ladd, Cole to but did rights Ladd waived his Miranda and that not obtain incriminating statements voluntary. confessions were his from him. suppress motion to comprehended eight a total of statements made between 1. 16, 1973, December statement. 15,1973, 6,1974. December and March Following his arrest on the federal pri- statements to which the motion was charge Ladd and his girlfriend Virginia marily January directed occurred on 31 and Pinnick, already custody who was in con- 1974. After an extensive evi- nection murder, with the Rich were flown dentiary hearing, Judge Kalamarides con- Anchorage. placed to in the An- cluded that Ladd’s statements were volun- chorage jail. On December Inspector tary and that he had been afforded his Vaden of the Troopers, Alaska State who rights. The suppress Miranda motion to murder, was investigating the Rich visited was, therefore, denied. We will discuss the Ladd. He did not advise Ladd of his Miran- chronological statements in order. rights da because he “didn’t particularly want to talk to him about the Rich matter” Introduction. rather but about several other murders and 15, 1973, Trooper December On State about threats Ladd’s life. At this Wesley Cole arrested Ladd in Cor- Ronald point, the record confusing. becomes At dova for violation of a federal firearms law. point, Inspector one Vaden testified that approximately After the arrest at 9:30 a. glad Ladd said he give would to him a m., was taken Police to Cordova complete statement about Rich’s disappear- City Ap- in the Department located Hall. attorney ance as soon an appointed as proximately five minutes after Ladd was represent to him. At another Vaden arrested, Cole advised him of his and Ladd himself testified that Ladd volun- present. remain silent and to have counsel polygraph teered to take a test and then then stated he wished to ask Ladd Cole gave Inspector questions Vaden a list of questions about his contacts with John some and the give answers that he would about power attorney Rich and about his involvement in the Rich case. requested Ladd. given Rich had answering 19, 1973, attorney represent before On December Ernest Rehbock Rich. in- any questions concerning appointed represent Cole Ladd on the attorneys charge against there were no formed Ladd federal him. Rehbock refus- Cordova, permitted Larry him to call Ladd, but ed to discuss the Rich murder with Anchorage public Kulik in the defender’s but he did advise Ladd to remain silent and call, Kulik returned his some request office. When advice of counsel before answer- later, he twenty-five ing any questions. minutes said he would Ladd' did not have an him on the at the trial Ladd attorney represent state introduced evidence on the charges point. at this circumstances of his imprisonment. He was solitary confined in a small cell in the maxi- 20, 1973, statement.
2. December
mum
unit of the
security
Anchorage jail on
15, 1973,
December
apparently because of
Pinnick
Virginia
December 20
led
On
permitted
threats on his
He was not
life.4
Mine area
troopers to the Sutton
state
that,
visitors, appointments
to have
or phone
body was buried. Late
where Rich’s
calls unless the federal marshal specifically
jail
to the
evening Inspector Vaden went
permitted
authorized them. He was
to see
troopers
that the
had recov-
and told Ladd
during regular
fiancee but not
visiting
body.
fully
Rich’s
He
advised Ladd of
ered
hours.
his Miranda
rights and obtained a written
that the
waiver of them. Ladd told Vaden
suppression hearing
support
At the
him on the federal
attorney representing
coerced,
his claim that his confessions were
Rehbock,
charge,
advised him not to
Mr.
loss,
of weight
Ladd introduced evidence
counsel,
speak
police
to the
he had
but
until
nervousness,5
general
insomnia and
agita
any-
he felt he
to Vaden
should talk
resulting
imprisonment.
tion
from his
He
way.
being
Ladd admitted
involved in the
emphasized
importance
also
of his rela
one version
Rich matter and then recounted
tionship
tranquiliz
with his fiancee and the
happened
of what had
to Rich.
ing
produced.
effect
with her
visits
He contends that his confessions were a
January
statement.
well-being,
result
his concern for her
*5
alleged
Inspector
promise
Vaden’s
January
by
to
On
Ladd was interviewed
her,
prosecute
produced by
and
stress
Inspector Hoffbeck of the Alaska State
deprivation
company.7
of her
Troopers. Hoffbeck advised Ladd of his
rights
constitutional
and obtained a written
allegation
In order to rebut Ladd’s
of
waiver of them. Ladd then restated essen-
coercion, the state offered in evidence a
tially
Inspector
what he had told
Vaden.
letter
wrote to one of the
Ladd
correctional
thanking
officers
him for the fine treat-
1, 1974,
January
February
4.
and
receiving
ment he was
requesting
and
addi-
statements.
tional visits with Pinnick. The state also
point
At
it is necessary
this
to discuss
endeavored to demonstrate that
exag-
Ladd
Anchorage jail
gerated
Ladd’s confinement
in the
his affections for Pinnick. Evi-
January
from December
dence was introduced to show that despite
alleges
proclamations
love,
because Ladd
he was coerced
his
he was also dat-
suppression hearing
mother,
Mason,
At the
ing
Caye
to confess.
and
her
and that he
Hunt,
McKinney
(Alaska
prison psychiatrist,
6. Dr.
4.
partment
321,46
U.S.
S.Ct.
L.Ed.2d 313
rights, nor did
Ladd of his constitutional
(1975), but
it is not contended
about the Rich
any questions
ask him
information was furnished so as to lead to
Inspector Vaden testified that
homicide.
the subsequent statements.
Wong
See
Sun
planned
plead
them he
Ladd told
States,
United
371 U.S.
83 S.Ct.
again
trial and he then
dis-
guilty at the
(1963). Moreover,
967 rights. stitutional At no time was Ladd in a solitary confinement cell for his own counsel, there is no right denied his protection since there were purportedly manner indication that the state threats made on his life. The loss weight impeded his efforts to secure counsel as was self-induced and the dosage of tran- by by indicated the fact that he was visited quilizers that he given was quite mod- Moreover, attorneys. by at least seven De- Although erate. his visitors were moni- 19, representing cember he did have counsel tored the federal marshal he permit- charge, him on the federal and he voluntari- ted to see at least seven attorneys, two ly attorney’s decided not to heed ad- clergymen, a bondsman and his fiancee. 20, vice to remain silent. On December Ladd even wrote a thanking letter the cor- body when Ladd was informed that Rich’s rectional officers for the treatment he was recovered, signed had been receiving. a written
waiver of his constitutional and then argues that his confession was Inspector told Vaden that he wanted to talk made in exchange Inspector for Vaden’s Rich, with despite about involvement promise prosecute not to Virginia Pinnick. advice from Mr. Rehbock not to do so until The testimony conflicting about what attorney. he had consulted with an happened January on 31 when Ladd and 20, through 1973 March Inspector Prom December Vaden met prison in the library, 4, 1974, Ladd continued to volunteer infor- especially since Ladd’s account hap- of what despite pened changed mation his lack of counsel. Under suppression from the hear- we find that ing these circumstances to the trial. In light of this and the privilege against waived his self-incrimina- indications that Ladd implicated Pinnick in Therefore, right murder, tion and his to counsel. the Rich it appear does not the confessions obtained from him were Ladd confessed the belief that to do so properly admitted into evidence.10 would save her from prosecution. Thus our review of the record leads us to argues he
Ladd also
was denied
the conclusion that
the statements Ladd
process
due
because his confessions were
1,
made
January
on
involuntarily
A
made.
confession is not
March 6 were not obtained in violation of
admissible into evidence unless it is volun
rights. Therefore,
his constitutional
the su-
tary.
g.,
Mississippi,
E.
Brown v.
297 U.S.
perior court did
in denying
not err
(1936);
56
cumstances confession Criminal Rule provides a par- Schade, supra, must be considered. at 916- of, ty assign giving give, or failure to an instruction appeal, specific as error on supports objection record the trial court’s to that instruction must be made conclusion that Ladd’s statements were not at trial. 30(a): Alaska R.Crim.Pro. see Ev- *8 State, product 830, the of a will overborne coercion ans v. (Alaska 550 P.2d 843 1976); were voluntarily placed State, but made. He was Eliason v. 511 P.2d why attorneys nothing 10. We cannot tell from the record Ladd called several but came of attorney represent Nonetheless, was unable to obtain an to these efforts. visits from seven nothing Ladd did receive Apparently, Inspector attorneys him. Vaden contacted and the state did attorney’s help ability the district office to ask for in to interfere with Ladd’s to ob- securing Larry attorney. counsel for Ladd. Kulik also tain an 968 The (Alaska 1973). record shows the criminal disposition
1071-72 of the defendant. objected to the court’s State, Watson attorney that 387 P.2d (Alaska 293 give proposed 1963). to his instruction. generally See refusal United States Webb, However, the which was actual- instruction 1972); 466 F.2d 1353 substantially given was the same. There Handbook of the Law of ly McCormick, C. in- Evidence, specific objection no made to that (2d was 1972). 447-51 ed. evi- Thus that it ground on the did not struction dence of tending other crimes in- to show require jury apply the to the reasonable tent and motive is against admissible the standard, proposed did the in- g., State, defendant. E. nor Freeman v. doubt such language. contain (Alaska 1971); struction P.2d Gafford v. State, Therefore, point consider we need not this (Alaska P.2d appeal. on further That the acquitted defendant was of the prior preclude offense does not the intro-
Ill duction offense, of evidence of that but its probative value must outweigh prejudi- its appeal is Ladd’s third on that it was State, Eubanks v. impact. cial 516 P.2d prosecutor the prejudicial permit error to (Alaska 1973). We will the reverse prior to a trial make several references at trial court only for a clear abuse of discre- of acquitted the murder of which tion admitting in such evidence prior of argues Rezk. that Frank The state offenses. See Newsom v. 533 P.2d prior concerning the murder trial evidence (Alaska 1975). admissible to show Ladd’s motive was The in intent. evidence showed The the prosecution evidence intro process buying Ladd was in the that duced tended to show that may Ladd have Cindy’s Massage from Parlor Frank Rezk desired to kill Rich to recover massage $3,000 for it and that he owed around the parlor revenge and to obtain tes Rich’s that Frank Rezk murdered. John time timony against him. Hence it was intro against Rich testified at the Rezk duced for its relevance on the issue of in His that on the testimony Friday trial. tent and motive and not to show criminal Rezk was murdered Ladd had before unsuc- predisposition. light com factual $3,000 cessfully tried to borrow from Rich case, plexity of this we believe that payment order to make in his final to Rezk' probative value of this outweighed evidence gained After the trial Rich control over the potential its prejudicial impact. We are massage parlor and in 1 state- unable to say court abused its expressed considerable ment resent- admitting discretion in this evidence. During ment for this. Rich judge Rich murder trial the cautioned the considering evidence from the IV
prior trial: At the close of the evidence Ladd made “[Wje’re . concerned about . . the motion for acquittal under Criminal Rule testimony relating prior to Mr. Rich’s 2911 on Count II the indictment on the participation trial in that and we’re con- ground that there was insufficient evidence Cindy’s cerned about . . . Massage of kidnapping togo jury. argued He that, Parlor. Other than we’re not con- that there was no evidence to show cerned with the trial.” Rezk had engaged actual abduction of Rich,
We have held evidence con and that he had not been indicted cerning previous crimes admissible if it is under the statute for conspiracy kidnap. prove See AS relevant a material fact other than 11.15.270. motion was denied. 29(a) provides part: charged 11. Alaska R.Crim.Pro. in the indictment or af- information closed, ter the evidence either side is if the court, “The of a on motion defendant or of its evidence is insufficient sustain a convic- motion, entry judg- own shall order tion of such or offense offenses.” acquittal ment of of one or more offenses
969 however, plot. Benny Ramey, its brief that testified that in The state concedes act physical Zieger direct it was Ladd not who instructed performed not him had abduction, with Rich’s appointment in connection to make an Rich himself meet on an Ladd was tried points out that get Eagle River, but him to drive out to 12.15.01012 theory under AS accomplice using necessary, force if on the pretext of instructed. See was so jury the that selling guns. (Alaska State, P.2d 109 498 v. Trounce There was question some as to how Ben- 1972). ny Ramey acquired gun the he used to force acquittal under for A motion Eagle Rich out to River. He testified that the suf 29(a) puts into issue Rule Criminal gave gun him the which was his. The evidence. Criminal the state’s ficiency of officer who recovered Rich’s car from Ladd 110; Trounce, supra at Beavers 29(a); Rule stated that Ladd indicated that also 1971). (Alaska On State, 492 P.2d weapon belonged to him. testimony, Ladd’s motion, such a we a denial of appeal from however, is inconsistent. On December 20 and all inferences the evidence must view Inspector gun he told Vaden that be- light therefrom in a may be drawn that Rich, longed to John but at the trial he Trounce, supra to the state. favorable most belonged Benny Ramey. testified that it at 110. Viewing this favorably evidence most to- ev prosecution introduced into The state, strong ward the it would raise a signed by night a Rich the idence note inference that a prime Ladd was himself killed, that this note as well as evidence in kidnap plot,14 though mover not August part as of the prepared early physically kidnap Rich, involved in the of Rich made a appear to make it that plan was involved as an aider and abetter. We Benny Ladd and then left town. deal with conclude, therefore, that “fair-minded men Au Ramey testified for the state on judgment” in the of exercise reasonable he, bought Mason a Caye Ladd and gust could differ on the of whether flew to Ramey to wear when he suit for guilt beyond had been established John Rich.13 At under the name of Seattle State, reasonable doubt. Bush v. 397 P.2d testified, however, that he- the trial Ladd Therefore, (Alaska 1964). the trial kidnapping plot. nothing about a knew properly judg- court denied motion for introduced evidence prosecution also acquittal. ment of attorney, pur- power of to show Rich, by was actual-'
portedly given to Ladd V direction, though under Ladd’s ly prepared appeal The next is that the prepared it had been Ladd contended kidnap denying trial court erred in the motion for a Gary Zieger who directed appeal provides: poses this we must view the testimo- 12. AS 12.15.010 Beavers, ny favorably most towards the state. accessory between an before “The distinction supra princi- at 97. principal, the fact and a pals and between degree abrogat- the first and second ed; persons in the commis- and all concerned Judge Fitzgerald 14.When denied the motion crime, they directly commit sion of a whether acquittal at the close of the state’s case he for or, though constituting crime the act present, said: commission, its shall aid and abet in testimony] presents “I think issue [the princi- prosecuted, punished as tried and for the reason that I’m concerned about the pals.” testimony Ramey acquired as to how he State, McCurry P.2d 103 n.7 See .45 that was—that which he testifies he (Alaska 1975); P.2d Trounce v. compelling get used in Rich to in the Cadillac (Alaska Eagle taking drive to River. I am also into attempted impeach Ra- 13. Defense counsel weapon consideration that was subse- mey’s testimony showing he was biased custody your quently from recovered testify exchange bargained to since he had having glove compart- as been in the client mandatory rescinding minimum a one-third . .” ment Cadillac. However, pur- parole. for the sentence before *10 970 prosecutor, trial court ground
new trial on the
that the
did not abuse its discretion by
Mackey,
during the course
Mr.
was armed
denying the motion for a new trial. Dar-
argues
prej-
he
the trial. Ladd
that
was
State,
of
ling
v.
(Alaska
At the
of concurrent sentences for kid-
armed on occasion
ey explained he had been
napping and
placed
murder
him twice in
during the trial because there was a short-
jeopardy for the same offense in violation
age
personnel,
guarding
of
and he had been
of his constitutional rights. See U.S.Const.
defendant,
Const,
transporting
him to the
V;
I,
amend.
Alaska
art.
9.§
jail.
from the
He also stated that he
court
Ladd’s double jeopardy argument
is
gun
protect
carried a
on occasion to
himself
State,
based on Whitton v.
see There were also differences in the mens required conduct for a ences in the intent or rea with which these acts were carried out. conviction.19 kidnapping, jury For was instructed they jury “knowingly”20 was instructed on the elements must find that Ladd degree kidnapping away. They as abducted or carried Rich of first murder were also told that Ladd must have intended21 follows: (i) pointed out that to facilitate our if the involves 18. We also element the nature of his circumstances, judge sentencing, conduct or the attendant trial af- he is review of must aware that his conduct is of that firmatively nature or for his conclusion state the reasons exist; that such circumstances multiple may constitutionally be sentences (ii) if the element involves a result of his imposed. This statement should include “rele- conduct, practically he is aware that it is vant factual and other considerations which led certain his conduct will cause such a a decision”. Id. at 312. to such .result.” 2, supra 19. See nn. 1 and at 1-2. 21.Perkins defines intent as follows: consequences “Intent (a) represent those which includes 2.02(2)(b) defines know- § 20. Model Penal Code very purpose for which an ingly as follows: (regardless act is done of likelihood of occur- person knowingly respect rence), (b) to a substantially “A acts with or are known to be desire).” (regardless material element of offense when: certain to result R. kidnap purpose killing Rich for the him. kidnapping and murder are substantial phrase purpose The inclusion of the “for the when viewed in relation overlapping killing supplies him” the unlawful reason but nonetheless distinct social interests murder, required by statute. As protect. Therefore, the imposition of con- was told that the formulation of current sentences place did not Ladd twice the intent to kill must result from delibera- jeopardy for the same offense. tion and reflection. AFFIRMED. must next consider the differ- We RABINOWITZ, Justice, dissenting.
ences between the statutes in relation to
vindicated.
If
the social interests
I have concluded that
particu-
under the
these differences are substantial in relation
*12
case,
lar facts of this
Ladd’s motion to
stake,
the
at
then multi-
social interests
suppress
granted
should have
by
been
the
ple
may
imposed
sentences
without vio-
superior
For,
view,
my
court.
lating
jeopardy.
the ban on double
Whit-
right
denied the
to the assistance of counsel
ton, supra at 312. The social interests to be under both the United
States
Alaska
“the
of personal,
considered include
nature
Constitutions1 and was further denied the
property
rights sought
pro-
other
to be
or
protections afforded an accused in custody
” by
tected .
.
.
the statute.
Id. Kid- by
Arizona,
Miranda v.
384 U.S.
napping and murder are both crimes
(1966).
S.Ct.
den. with
erence to his desire to consult an attor- ques- he is in
ney questioning, before fact after Trooper being given Vaden
tioned warning complete Miranda Vaden. totality of factual circum
Given the interro stances of Ladd’s incarceration and BATSON, Nickerson, Pamela Milton *13 suppression that the mo gations, I conclude Morgan Michael Willard Doris granted tion have been because should Chilton, Appellants, a/k/a Doris were in statements in obtained v. right pro to counsel as violation of Ladd’s vided in the Constitutions United Alaska, Appellee. STATE of Brewer v. Wil and Alaska. See States No. 2745. liams, 97 S.Ct. U.S. Supreme in the (1977). Additionally, L.Ed.2d 424 Court of Alaska. bar, the case at I cannot factual context of Sept. 1977. right waived his to the find that Ladd had As the assistance of counsel. United States Michigan
Supreme Mosley,2 said in Court that the admissi- therefore conclude
[w]e
bility of statements obtained after
person custody has decided to remain Miranda on whether depends
silent under ‘right questioning’
his to cut off
‘scrupulously honored.’
Here fails demonstrate that the record questioning request
Ladd’s to terminate honored,” and thus a val- “scrupulously by Ladd of Miranda
id waiver United States v. Jef-
cannot be found. See
321, 326,
Mosley
position.”
96 S.Ct.
46 L.Ed.2d
suade
reconsider his
2. 423 U.S.
(1975).
Supreme
Court found the
U.S. at
at