*1 However, fairly it can be said that we think did appreci-
any error thus committed
ably jury’s verdict. affect the Such under the test it was harmless P.2d
Love
1969), ground for reversal. Rule not a
47(a), Alaska R.Crim.P.
AFFIRMED. PALMER, Appellant, W.
John Alaska, Appellee.
STATE of
No. of Alaska.
Supreme Court 28, 1979.
Dec. juror unwarranted specula- con- Therefore, even testimony possibility alcohol. drinking, might have been we cerning irrele- tion that she cans was technically the beer it exercise the trial think would be a proper defense contention vant, absent drinking. such evidence. court’s discretion to admit However, to avoid victim had been
H07 Galbraith, Frost, Peter A. Galbraith & Anchorage, appellant. for Mary Atty., Anne Dist. Jo- Henry, Asst. Balfe, seph Atty., Anchorage, D. Dist. Av- Gross, Gen., Juneau, Atty. ap- rum M. for pellee.
Craig Cornish, Defender, M. Asst. Public Shortell, Defender, Anchorage, Brian Public appellant/amicus for curiae. RABINOWITZ, J., Before C. and CON- BOOCHEYER, NOR, and MAT- BURKE THEWS, JJ.
OPINION BURKE, Justice. court, by jury
After trial in the district Palmer, appellant, was John W. convicted operating a motor vehicle of the crime of intoxicating while under the influence of liquor. Upon entry 28.35.030. of a See AS judgment appealed superior he to the final court where his conviction was affirmed. appeal This followed.
I Palmer’s first contention trial refusing suppress court erred in evidence videotape recording trooper made at of a following Among headquarters his arrest.1 things, recording portrayed Palm- other breathalyzer examination was er while a Judge Judge Alexander Bryner trict Court presided District Court Laurel Peterson ruled on as well over the trial. motion appellant’s pre-trial suppress, as his motion to dismiss Dis- complaint. and, expectation privacy (subjective) while to him and being administered tests, second, one expectation some involv- performed sobriety other argu- his support recognize as ‘reasona- ing society prepared verbal skills. have been this evidence should Id. at ment that ble.’” J., theo- several suppressed, (Harlan, concurring). Palmer advances L.Ed.2d at 588 State, 554 ries. P.2d 456 also Nathanson *3 Glass, 583 (Alaska In P.2d State warning. to a Right a. 872, 1978), held we that the 880 Const., I, amendment, art. privacy Alaska that, as a matter of Palmer contends 22, recording electronic of fairness, prohibited the § process due and fundamental We concluded that a narcotics transaction. his warning actions was entitled expectation that subjective defendant’s Brady, the being videotaped. Betts were 1256, 462, 1252, with a informant 455, his conversations 62 86 S.Ct. was 1595, secretly not be recorded one that (1942). He cites no direct would L.Ed. 1602 society recognized we as reasonable.4 argument this and know authority for the circum Accordingly, of none. under in the at We think the situation case in this by shown the evidence stances bar, however, distinguishable. readily is warning that no was on we hold made, videotape recording the When grounds.2 these Palmer was under arrest. After already transported police headquarters, he being to Right privacy. of b. breáthalyzer was asked to submit to a ex that such a warn Palmer next contends perform and to a number of so amination I, 22, required by section of ing was article Assuming, arguendo, that he briety tests. Alaska, of of the Constitution the State expectation any subjective actual or guarantees every to citi specifically which point that would be his actions privacy.3 a to right zen of the state recorded, that expec we are convinced 793, (Alaska), 510 797 P.2d Smith society prepared is is not one that to tation denied, 414 38 U.S. S.Ct. cert. recognize Accordingly, as we reasonable. (1973), adoption prior to the of L.Ed.2d right violation of the hold that was no I, considered whether article section we by privacy guaranteed to Palmer article of protected right constitutionally there was a I, section of the state constitution.5 privacy of search and seizure the constitution, I, of the state article clause duty of and disclo- c.Self-incrimination approved 14. In we the test section Smith sure. by Mr. Harlan in Katz articulated Justice States, recording Palmer further contends that United his (1967), determining videotape without knowl- L.Ed.2d 576 for wheth his actions on privilege against expectation privacy edge ex was a violation of his er a reasonable the requirement, pros- a a breach of “[Tjhere ists: is twofold self-incrimination and duty to favorable person first that a have exhibited an actual ecutor’s disclose evidence why suggested it was a 5.Palmer also contends that violation 2. No reason has been to us such videotape warning given. Absent AS to his a demonstrated so, should not be some 11.60.290for the justification failure to for the do AS actions and provides his voice. 11.60.290 record practice pertinent part: we think the would better “It is unlawful a in for person (1) eavesdropping his or her ac- advise the arrested device to use an being videotaped. are part tions an oral or record all conver- hear or party without consent of a to the sation Const., I, 22, provides: art. 3. Alaska “The § clearly statute is intend- This conversation^]” ed therefore not people recognized privacy eavesdropping prohibit third-party and is infringed. legislature not be The shall shall applicable to the situation in the implement this section.” participants re- case at bar where one of corded conversation. majority. holding 4. The a 4 to Glass present opinion The author of dissented.
H09
videotape
16(b)(3)pro-
police,
recording
tion
Rule
Criminal
to the accused.
attorney shall dis-
prosecuting
vides: “The
would be inadmissible
his confession
unless
any material or
to defense counsel
close
interrogation leading
to that confession
control
possession
his
information within
preceded by
proper
Miranda warn-
guilt of the ac-
negate
which tends
ing.
or would tend to
as to the offense
cused
bar,
videotape begins
In the case at
Palmer
punishment therefor.”
reduce his
taking
with Palmer
test.
rule, in combination with
argues that this
tape
performing
Palmer
The
then shows
re-
process,
of due
requirements
minimal
designed
physical
several
tests
to determine
for
police to inform one arrested
quires the
extent,
whether, and to what
he was under
that his actions
driving while intoxicated
intoxicating liquor. the influence of
videotaped “so that the individual
perform
when
tape shows that
asked
argument,
This
perform
can
at his best.”
test,”
complained of
“walk the line
frivolous.
judgment,
in our
*4
hip.
trooper
The
admin-
problems with his
argument
is
Palmer’s self-incrimination
istering
then informed Palmer
the tests
that,
of either his
since he was not advised
breathalyzer test results indicated
that the
rights or the fact that he was
alcohol level of .16%.6
that
had a blood
being videotaped prior
asked
this,
replied,
To
“Oh no.”
recorded, the
perform the actions that were
recording,
portion
the audio
or at
least
no
The fifth amendment offers
thereof,
In
suppressed.
should have been
against compulsion to take the
protection
436,
Arizona, 384
86
Miranda v.
U.S.
S.Ct.
to Palmer in this
sort of tests administered
1602,
(1966),
Supreme
gest
requirements
that the Miranda
can be
II
ignored
tape
where the
contains evidence of
28.35.033(e)
per
provides that a
As
statements or events to which those re
to a breatha
required
son who is
to submit
Thus,
applicable.
quirements are otherwise
indepen
may obtain an
lyzer examination
confesses to
example,
for
where an accused
blood alcohol test:
interroga-
crime
a
of custodial
dent
a
as
result
intoxicating
AS
liquor.
the influence of
under
6. When the blood alcohol
level
is 0.10 percent
28.35.033(a)(3).
more,
it is
the person
presumed
28.35.032(a) prohibits
giv-
While AS
may
physi-
a
have
person tested
The
person
when the
technician, chemist,
blood test
ing of
other
cian,
qualified
aor
refuses to submit
nurse,
qualified per-
arrested
or other
registered
Geber,
examination, Anchorage
592 P.2d
a
choosing administer
of his own
son
grant or rec-
it
not otherwise
the test ad-
does
in addition to
chemical test
the arrested
right
part
on the
ognize
a law en-
a
direction of
at the
ministered
that examination.8 Since
person
failure or inabili-
to refuse
officer. The
forcement
specific
imposed
a
by person
legislature
has
test
ty to obtain an additional
person be informed
requirement
of evi-
preclude the admission
does not
breathalyz-
right
to refuse the
at the
that he has
relating
the test
taken
dence
officer;
examination,
there is
we have held
er
a law enforcement
direction of
requirement
that such advice
statutory
arrest
the fact
test,
577 P.2d
given.
Wirz v.
an additional
sought to obtain such
unpersuaded
do,
(Alaska 1978).
equally
We
unable so to
and failed or was
a matter of
as
that such advice
in evidence.
likewise admissible
process.
due
constitutional
of his
Palmer was not advised
test, and he now
independent
obtain an
IV
breathalyz
results of the
contends that the
therefore inadmissible.
er
examination
During the trial of the
statute, however,
require
contains no
request
court refused a defense
district
given, and we are
such advice be
ment that
arresting officer
from
exclude the
*5
by any
09.20.180;
it is
persuaded
not
Rule
AS
courtroom.
See
federal constitu
of the state or
provision
The record con
43(g)(3), Alaska R.Civ.P.9
Thornton, Mich.App.
9
People
tion.
v.
See
its
the court did not abuse
vinces us
536,
(1968); People Ker
490
v.
157 N.W.2d
Accordingly,
ruling
in
as it did.
discretion
216,
Ill nations, practice of admin- particularly the see how it com- istering a second test process that due Palmer next contends techniques, meth- the first. The position pares in his requires that a ods, breathalyz- pertaining and standards right to refuse to advised that he has have been estab- er examinations in Alaska breathalyzer examination. See submit to Geber, legislature and administrative 28.35.032(a); Anchorage by 592 lished AS Department of regulations adopted by the P.2d 1187 by department reject suggestion can be rescinded such action by 7. in that the We also Palmer’s 28.35.032(c). right to inform him of his court. AS failure of the to an the district independent blood test violated Criminal 16(b)(3). argument, Rule in Part lous. A similar discussed request provides:- “Upon of 9.AS 09.20.180 1(c) opinion, frivo- of this was deemed may party judge exclude from either party any witness of the adverse court room at the time so that not under examination may statutory requirement ar- that the There is a testimony other witness- not hear the person be advised that refusal to submit rested to a suspension, language is contained Civil es.” Similar may breathalyzer in the examination result applicable 43(g)(3), which is made Rule or denial of his driver’s revocation 26(a), proceedings by Alaska Rule criminal Safety. Department of Public license R.Crim.P. advised, any 28.35.032(b). AS If he not so
HH
portion
Health and
28.35-
Social Services. See AS
district court’s sentence
033;
appeal,
7 AAC 30.010-.080. In this
suspending his driver’s license
period
for a
thirty
that the state
days, pending
Palmer makes
claim
did
the outcome of his
methods,
comply
techniques,
appeal
with
to this court.
these
The decision whether
grant
deny
stay
and standards.
or
such a
is one that is
properly left to the sound discretion of the
To the extent
the evidence
superior court. We have determined that
merely
procedures
that other
established
and,
court did not abuse its discretion
elsewhere,
it was
utilized
irrelevant and therefore, conclude that there was no error.
event,
properly
In any
excluded.
the dis
AFFIRMED.
hearings
trict court held extensive
on the
proffered
nature and content of the
testi
RABINOWITZ,
Justice, concurring.
Chief
mony,
showing
and there was no
that the
I concur
majority opinion.
in the
How-
question
test in
suffered from
ever,
any
as to
violation of Palmer’s consti-
any
of the defects to be testified to
Arizona,
rights
tutional
under Miranda v.
Thus,
expert witness.
while the excluded
testimony
initially
that when he was
stopped by
police, he
was asked how
VI
replied,
much he had to drink and
“five or
vehicle,
After stopping Palmer’s
the ar-
six
prior
beers.” This statement was made
officer,
resting
formally placing
before
him
any giving
warnings
arrest,
asked Palmer how much he
waiver of Palmer’s
to remain silent
replied
had had to drink. Palmer
that he
questioned.
majority
and not be
con-
exchange
had had “five or six beers.” This
cludes,
assuming arguendo
after
a Miranda
occurred
before Palmer
advised of his
occurred,
violation
that the error was harm-
*6
trial,
right to remain silent. At
Palmer’s
cumulative,
merely
less
it was
cor-
because
evidence,
attorney
suppress
moved to
this
roborating other evidence sufficient to con-
claiming that its introduction would violate
protections
vict. Violation of Miranda
rights
his client’s constitutional
under Mi-
federal constitutional error. As we stated
Arizona,
randa v.
86 S.Ct.
Fairbanks,
(Alaska
Rubey
in
v.
456 P.2d
(1966).
VII consumption of alcohol in to considerable Palmer’s final contention is that the context of this case amounts to an superior refusing stay court erred in admission the elements of the of one of Thus, stop testified that once he effected a traffic charged offense. since I would find rights if Palmer’s reversible error Miranda of Palmer: necessary it becomes to de- were violated I asked him had how much he’d to drink. question whether the admission in cide time, He stated at that five or six beers. amounting circumstances uttered under been, I him he’d if this was asked where interrogation. custodial house, I his listened to him believe talk. straight I and asked him to walk a line State, 590 P.2d In Hunter alphabet recite the for me at the scene. (Alaska 1979), objective, an adopted we rea- completed, When that was I arrested him person sonable test for determination of for OMVI. interrogation requiring custodial Miranda Thus, warnings. point In that case we held that there Murphy at which asked custody, must be indication of drinking, some actual Palmer how much he had been all such that a reasonable would not the information the officer had was the police ques- weaving driving Murphy feel free to leave and break off in Palmer’s tioning. driving pattern We stated in Hunter that custodi- observed. Such a could al be made on a determinations must ease- have been caused of a number of factors, groups impairment by-case including basis and outlined three of the only factors be considered which when driver’s faculties. It was with addi- examining setting: factual particular questioning, tional observance of Palmer’s demeanor, performance and Palmer’s of the groups
At least three
of facts would be
sobriety
Murphy
field
tests that
concluded
relevant to this determination. The first
probable
cause
ar-
was sufficient
interroga-
are those facts intrinsic to
rest Palmer.
occurred,
tion: when and where it
how
lasted,
long
many police
it
how
Therefore, I
question
conclude that this
and the
present, what the officers
de-
ing
questioning
falls under the on-the-scene
did,
presence
fendant said and
exception to the Miranda rule. This court
on
physical
actual
restraint
the defendant
parameters
exception
discussed the
of that
things equivalent
to actual restraint
State,
Ripley
in
1H3 speculate I further would not as to surrounding Although the circumstances warning a be re- differ whether Miranda would of a violent crime are far the scene the of quired if statements the accused stop general principle a traffic ent from during testing regarded are as made be free applicable. Police should equally trooper indi- testimonial character. questions to what has to ask determine cated that test results indi- an exer Only then can officer happened. that a blood level cated Palmer had alcohol what take. judgment as to action to cise percent, replied of .16 which “Oh to Palmer on Again, particular each case turns its hardly no.” That exclamation could be re- At point, facts. some on-the-scene incriminating, un- garded as and I find it may a custodial interro questioning become necessary any general holding to as to make Darnell, Wash.App. gation. State v. whether the were result of remarks (Wash.App.1973), 508 P.2d as interrogation require so to custodial denied, 1112, 94 cert. S.Ct. many fac- warning. There too 739; LeQuire, L.Ed.2d United States justify may variations which arise to tual (5th Cir. F.2d 343-44 holding. example, a sweeping such a For in this the circumstances I conclude that give officer could false statement interroga- to case did amount custodial high breathalyzer reading hoping of a Therefore, agree I with the ma- tion. can an admission of where a defendant elicit no error in the admis- jority that there was drinking been or some statement as had sion of Palmer’s statement. cir- Even under the the amount consumed. involved, an- cumstances here had Palmer BOOCHEVER, Justice, concurring. drinks,” only “I six a close swered videotaping and With reference to the question presented. would be There can recording sobriety of tests at the dispute of was in the fact opinion headquarters, I am of the that one Supreme custody.1 The United States had no position in defendant’s would have questioning is not Court has held that direct subjective expectation privacy. actual or of Mi- requirement of trigger indications, per- testing From all Williams, 430 Brewer v. warnings. randa public private in a area and not in a formed 51 L.Ed.2d rise such an might give room which (1977). Moreover, expectation. vary nature testing purpose the obvious was for Therefore, I making public. the results was no holding
would rest the privacy on the
violation of Palmer’s subjective expectation privacy.
lack of circum- I am not all sure if the & EXCAVAT- SWENSON TRUCKING give as to rise to an stances such ING, INC., Appellant, expectation priva- subjective actual and cy, society prepared would not be EQUIPMENT TRUCKWELD recognize expectation such an as reasona- COMPANY, Appellee. require- A sense of fairness based on a ble. No. board would open ment of and above require ac- seem to notification that one’s Supreme Court of Alaska. *8 recorded, if being videotaped tions are Jan. testing circum- performed subjective giving expecta- stances rise Glass, privacy.
tion of See State
P.2d 872 (Alaska 1979).
1. See Hunter v. P.2d 888