*1 is that specification final of error Eben’s 12.45.083(d), which a defendant allows
AS “a waive a trial where unilaterally or defect” based on mental disease
defense responsibili- preclude criminal offered
ty, require read to a bifurcated should be brief, Eben, request. reply
trial on in argument that this is not viable
concedes
light of Post v.
(Alaska 1978), which 12.45.- held that AS to a
083(d) statutory right not create a did trial. Eben does not contend
bifurcated superior court abused its discretion trial. denying his motion a bifurcated motion, hearing on that
At the fairly factors which considered the guide judge’s a trial discretion
should
ruling on such a motion.32 counts of mur-
Eben’s convictions of two Affirmed. degree
der in the second are Petitioner,
Raymond QUICK, Alaska, Respondent.
STATE JACKSON, Appellant,
William Thomas Alaska, Appellee.
STATE M., Minor
In the Matter of T.
Child, Appellant, Alaska, Appellee.
STATE of
Nos. 3462 and 3463. Alaska. Court of
Sept. ciency strength of knives” theo- the exact loca- of the state’s “choice information as to ry. apparent tion of the knives was in the testimo- ny Wayne of Charlotte and As with Eben. ruling evidence, was made jury’s duty 32. The this motion it was the assess the Moody. Superior Judge Ralph Court *2 Currall, Atty., Dist. Ketchi-
Geoffrey G. Gen., Gross, Ju- kan, Atty. and Avrum M. neau, respondent appellee. BOOCHEVER, J., RABIN- Before C. *3 OWITZ, CONNOR, and MAT- BURKE THEWS, JJ.
OPINION MATTHEWS, Justice. Jackson, Raymond Thomas
William T.M., minor, review of Quick, seek in Ket- rulings made by the and use admissibility regarding chikan the Ketchi- them to of confessions rulings police. Subsequent to these kan review, Jackson petition for filed a charges of man- pleaded nolo contendere dwelling, and slaughter burglary in a after a adjüdged delinquent T.M. was robbery, man- charges attempted trial on dwelling. burglary in a slaughter, appeals sentence which Jackson also are as plea. The facts resulted from his follows: in Ketchikan April police On responded request for an ambulance Yeltatzie, George apartment of Jones Raymond aged police 79. There the found was his Quick, that Yeltatzie who indicated Yeltatzie, lying grandfather, and who was police the time the dead beside his bed. At been from the death to have considered causes, investigation no further natural was made. however, re- day, police
The next P.F., aged fif- telephone ceived a call from teen, two witnessed who said that she had previous beating men a third older man apart- evening Yeltatzie’s vicinity station ment. P.F. went to the Christianson, Royce, Royce William G. & by po- April there and was interviewed Stahla, Sitka, petitioner Quick. for she had lice officers. indicated that She Smith, Brown, Ziegler, Cloudy, Harold M. walking she saw two with T.M. when King Brown, Ketchikan, appellant & for men, Raymond and whom she identified as Jackson. Quick, man. After beating Allen an old unconscious, the Defender, knocking the man older Yospin, Richard Asst. Public Ketchikan, Build- Shortell, dragged two had him into the Alaska and Brian Public De- fender, ran home. That Anchorage, appellant ing. T.M. P.F. and T.M. then day same it was just know, learned that was not saying than I don’t I didn’t see grandson, Yeltatzie’s contrary to what he anything, drunk, I was too and I don’t police. had told being recall with I wanted to find [P.F.] out where he was if he with wasn’t [P.F.] April On Leighton, Lt. the officer in just I hang couldn’t let like that. charge investigations, asked Detective Young, Dale Juvenile Officer Ket- for the Young school, got permission called the Department, chikan Police speak from the principal, drove the school and regarding P.F.’s statement. It is clear picked up T.M. believed that the events Leighton’s T.M. was Lt. re-interviewed in described P.F. be connected to approximately office. The office is twelve was, however, Yeltatzie’s death. There no feet by twelve feet. The was closed. door evidence or any- indication that T.M. was Leighton, Present at the interview were Lt. thing but a witness to these events. *4 Varnell, Young, Detective and Detective Detective Young went to Revilla High assigned who was also to the Yeltatzie case. speak School to to T.M. He was unable to agreed It is that no one informed T.M. that locate T.M. and left word with the school he was any free to leave at time if he principal that he wanted to talk with him. again questioned desired. The officers T.M. later, About an school, hour T.M. arrived at about what he had seen and were he had Young learned that looking had been for been, and received non-committal answers him, and asked the principal to drive him to to the effect that he had been too drunk to station. There T.M. was inter- Leigh- remember. After a few minutes Lt. viewed Young April about the events of ton and Detective Varnell left the room to Young deposition testified in his discuss the They agreed situation. both he told T.M. that: information, withholding that T.M. was but any wasn’t in trouble that we [H]e knew believed this was he was afraid of because of. All we wanted to know was what he retaliation from those who had beaten the had seen night. old man. Leighton When and Varnell re- Q. O.K. And basically he didn’t have turned, Leighton began asking questions in
anything about, to worry just he was aggressive deposi- a inore In his manner. a witness to somebody what else did? Leighton tion stated: A. Right. right, A. All in when I went back him, T.M. office I told I think says, then told I don’t Young that he had been too truth, you’re telling drunk that we’re evening us the con- anything, to remember including ducting investigation whether he I had even been with murder and P.F. The conversation you’re withholding any lasted about ten feel informa- minutes, Young and then evidence, drove T.M. back tion or something along to school. way, On the Young told T.M. that line. that he be asked to come back down Q. And that he get could into a lot of ques- station later for more trouble? tions. that, A. I believe I yes. said Young When reported the results of his Leighton then he was announced that interview to Leighton Lieutenant later that going to contact P.F. and left the office to morning, Leighton was dissatisfied and do so. deposition Varnell stated in his asked that T.M. brought back in for he then asked T.M.: another According Leigh- interview. to Lt. you scared, A. you or are afraid [A]re ton: retaliate, somebody going those just I get wanted to more information type things. than just he was drunk and stuff Q. What response? was his like that. had said that he was [P.F.] there, him, that she was with yes, wit- A. He indicated he was afraid this, nessed and I wanted a little bit get more that somebody going to him. said, well, you Quick
And I
what
requested separate
are
afraid
and Jackson
tri-
of, why
you
they’re
be afraid
als.
going
get you.
you give
If
us the
carefully
In a
detailed and well reasoned
going
information we’re not
to tell
decision,
memorandum
you gave
us,
them
all,
it to
first of
denied the motions of
Jackson and
secondly,
go
we’ll
get
out and
prohibit use of T.M.’s confession or testimo-
them and
put
arrest them and
them ny at their
trials. The court assumed
jail.
And that’s when he made the
purposes
motion that
of the defendant’s
knew,
statement
you
if I told
what I
illegally
T.M.’s
obtain-
statement had been
accessory
I’d be an
to murder.
ed,
prevent
but
26(g)
held that Rule
did not
statement,
As he made
began
this
being
the statement
used
co-
cry. The officers immediately told T.M. to
defendants because
violation
T.M.’s
stop talking. They
tape
then turned on a
rights had been inadvertent.
The court
recorder and
rights.
advised him of his
also found the confession of William Jack-
T.M. then
partici-
confessed that he had
son to
properly
have been
obtained and
pated
Yeltatzie,
the assault on
suppress
refused to
it.
Raymond Quick
named
Quick”
and “Ben
as
judge
denied the motions of Jackson
Yeltatzie’s
Raymond Quick
murderers.
to sever their trials. To avoid
then arrested
subsequently
confessed to
possible
problems
constitutional
under Bru
participating
murder,
naming
Wil-
States,
ton v. United
Jackson,
liam
Quick,”
rather that “Ben
*5
(1968),
See Hunter v. him to came for him drove Officer indication, 1979). police station. There was no however, accompany being his ordered to Young. Officer A. I felt that I’d be able —be free to fession. T.M. now contends that his waiver
walk out.
was invalid.
Q.
why
you
way?
And
did
feel
that
In Miranda the
Court held:
Young
so,
A.
interrogation
Officer
had told me
If the
without
be-
continues
talked,
presence
attorney
fore —before we’d
of an
and a state-
way
on our
taken,
ment
heavy
down.
rests on
burden
government
to demonstrate that
Q. Okay. And
you
still under the
intelligently
defendant knowingly and
impression
applied,
that
that
waived
privilege against
his
self-incrimi-
that was still the
applied
rules that
ap-
nation and his
to retained or
point?
at that
pointed counsel.
A. Yes.
1628,16
384 U.S. at
L.Ed.2d
appeared
trial court
satisfied that
at 724.
had not created a coercive atmos-
We have held
state can meet
phere during
questioning
their
T.M.4
that burden if
it shows the confession
concluded,
court also
and the record
voluntary by
preponderance
of the evi-
clearly supports
conclusion,
prior
determining
dence.5 In
voluntariness the
T.M.’s confession the
had no knowl-
totality
court must look to the
cir-
edge
suspicion
that T.M. was involved in
cumstances.6
anything
case as
other than a witness.
T.M.,
Quick argue
Under the test
Jackson and
that be-
laid down in Hunter we
juvenile
conclude
cause T.M. was a
that T.M. was
his waiver was
custody prior
not
ineffective,
as he was
given
opportu-
when he
inculpatory
made his first
state-
nity to consult
ments.
with a neutral adult or
guardian
rights.
waiving
before
It is
B. Was T.M.’s Waiver of His Miranda
position
their
that “a child when faced with
Rights Knowing
Voluntary?
privi-
decision about whether to waive his
lege against
and the
self-incrimination
As soon as
T.M. stated that he
counsel,
guid-
should have the informed
murder,
an accessory to
he was in custody,
ance of an informed adult.”
point
as at
clearly
longer
no
free to leave. The detectives immediately
The issue
what extent
of whether and to
stopped him
saying anything
further
juvenile
can waive
with-
Miranda
and read T.M. his
warnings.
Miranda
guidance
out the
anof
adult has been raised
rights,
detectives,
waived his
and the
after
many
states.
rules these states have
further questioning,
lengthy
obtained a
range
per
prohibition
followed
from a
se
con7
‘game’
4.I
don’t
destroyed.
impaired
think there was a
how-
tion was
ifAnd
it was
—but
*7
you
it,
any way,
ever
impaired by
by,
want to characterize whether one
it was
much
—as
guy
play
heavy
think,
was,
decided to
and the other
I
his realization of where he
guy
just going
quiet,
was
April,
to be
or whether
terms of the incident of the 25th of
by
as
playing
anything
‘Mutt and Jeff or whatev-
Leighton
that Lieutenant
said or
er,
finding,
it
Overall,
wasn’t—I do make the
it wasn’t
did.
I can’t fault the
their
game; they
push
very
much of a
didn’t
far
handling of that interview.
.
very long.
and it didn’t last
State,
138,
Hampton
5.
v.
569 P.2d
141 n.6
(Alaska
State,
907,
1977); Schade v.
512 P.2d
listening particularly
beginning
In
to the
of
1973);
(Alaska
Lego
Twomey,
917
see
404
tape granted
upset
the kid was
—
477, 489,
619,
U.S.
719
waivers
fully
Supreme
unless a
informed adult has
rejected per
Court decision. We
present7
“totality
to a
of the circum-
se
regarding juvenile
waiver of a
stances” test in which
age
of the de-
(Alaska
trial in R.L.R. v.
720 court, juvenile police consultation. The with officers and requiring
a rule such always proof had the burden of He was system prior state has on several occasions. knowing volun- show that a waiver was High in Ketchikan. attending Revilla School concerned, juvenile tary.10 Where questioned by several detectives T.M. was state is even heavier than it burden on the truthfully that he was but had been told with an adult.11 We believe that would be wit- possible being questioned merely as a scrutiny the careful afforded an unsu- to be in not believed ness and that he was pervised waiver is sufficient to ensure that that he any himself testified trouble. T.M. rights juvenile suspect will be of a free to leave. believed he would be safeguarded. only a short time interrogation continued T.M. confessed. before this case the trial court conducted lengthy hearing and detailed into the concluded, con after The trial court surrounding T.M.’s waiver. circumstances waiver points, that T.M.’s sidering these immediately testified after voluntary. After knowing and had been told detectives that he be an reviewing carefully we believe the record accomplice murder, they stopped him support enough evidence that there further, saying anything turned on a trial court this conclusion and hold that tape him Mi recorder and informed of his ruling the confession admissib did not err in rights. given copy randa T.M. was then le.12 form, of the standard waiver which con rights, tains the text of and was those II signed asked to read it. He and then did so places. the form in two different TAPE OF THE ADMISSION questioning court’s revealed that T.M. un RECORDING warnings given. derstood he was tape re T.M. also claims that be cording At is inadmissible questioning the time of the T.M. was his confession years was turned off tape seventeen old. He had been involved cause the machine Arizona, 436, 475, damaging by making statements. Miranda v. 384 U.S. 86 lose However, further 1602, 694, 1628, (1966); holding original 16 L.Ed.2d 724 T.M.’s state- our State, 923, (Alaska disposes impermissibly Tarnef v. 1973). 512 P.2d 934-35 ment was not seized State, Hampton 569 P.2d this contention. 138, (Alaska 1977). 144-45 Gault, 1428, 1, 55, 11. In re 387 U.S. 87 S.Ct. Second, T.M., argue that Jackson 1458, 527, (1967); 18 L.Ed.2d R.L.R. v. 561 invalid because the told the-waiver was 27, 487 P.2d 34 In Gault “help telling him” T.M. that the truth would Court, holding United States they reading and “not hurt him” while privilege against self-incrimination ex- Any rights. promise threat made him his or juveniles, tended to stated: motivating suspect that is a officer to a permissi- present If counsel was not for some rights Miranda will cause for the waiver of obtained, ble reason when an admission was involuntary. automatically the waiver render greatest care must be taken to assure 476, Arizona, 436, Miranda v. 384 voluntary, the admission was 694, (1966). 725 We 16 L.Ed.2d sense not suggested, it was not coerced or distinction, however, mere make a between prod- but also that it was not the promises exhortations to tell the truth leniency ignorance uct of fantasy, fright or of adolescent Thessen v. or better treatment. despair. 1969); see United 454 P.2d arguments 12. Aside from the made about Barfield, (5th F.2d Cir. States v. T.M., age, T.M.’s Jackson and advance Springer, 460 F.2d United States v. why two other theories for T.M.’s waiver is Hill, (7th 1972); People Cir. First, they argue invalid. that the confession Cal.Rptr. Cal.2d inculpatory was the result of the statement he transcript evident from the It is gave police prior being given statements made confession that warnings. recognized Miranda This court has category. The detectives fall in the former subsequent that a involuntary confession obtained after an expressly could detectives told T.M. may one be inadmissible. Once legally promises make to him. Their having given inculpatory po- statements to the statements do not invalidate the waiver. lice, may nothing a defendant feel he has *9 during several brief periods his interview. The trial court ruled that subsequent the general recording deciding a confession was rule is that is ad- admissible without preceding which missible unless the so version events omissions are substan- argues correct. Jackson that the waiv- recording tial to now as render the untrust- er was police invalid the continued worthy.13 because allegation such has No made questioning requested him after he had made here. that allow- merely asserts lawyer. ing an incomplete recording to admitted unduly into evidence causes the to Michigan Mosley, 423 U.S. 103- emphasize portions the of the conversation 46 L.Ed.2d taped. argument We find the without mer- (1975), police the held that Court it.14 suspect questioning could resume after he long
asked for so attorney an scru- pulously cut off ques- Ill honored his tioning. per- the In that case Court found JACKSON’S CONFESSION police the suasive fact that the had immedi- confessed, police After T.M. the ar stopped interrogation the ately when Raymond Quick. rested He confessed and wait- lawyer defendant asked for a and had police told that William Jackson had been asking the ed several hours before defend- the third participant Yeltatzie mur questions further unrelated ant about an der. Jackson was then also arrested. He matter. also challenges legal confessed and now State, (Alaska In Ladd v. P.2d ity of his statement. 1977), proper approach we for discussed the
There is disagreement a factual about determining a waiver was volun- whether happened what when Jackson was taken if tary has asked for an defendant first police police station. Both the attorney changed mind when but then his agree Jackson he incriminating after was warned of confronted evidence. rights requested lawyer. he The po- There we said: stopped lice then questioning began position that a con- California takes the making arrangements to have Jackson by the fession elicited in manner transported jail. that, Jackson claims police, gentle inquiry, no matter how all police after but one officers had re- is inadmissible Miranda after a under room, left the the remaining officer asked attorney. an quest has been to see one, him a cigarette. giving him After a view facilitates the determination Such asked, Ray Jackson yet?” “Has talked police has violated of whether conduct police said, “Yes, officer then but we’re since accused’s constitutional pretty yet,” much dark and asked if obtained from defendants statements up.” Jackson wanted to “clear that volunteer to who on their own initiative police left, version is after the rest had talk to be admissible. How- ever, Jackson officer, said to the “I we circum- remaining position feel that this scope didn’t narrowly permissible mean to kill it scribes him was their idea.” too When we interrogation. asked if he Therefore decline changed had his mind rule, statement, adopt will giving about such broad instead he said had. carefully particular facts scrutinize The transcript of Jackson’s confession re- before us. veals that then reentered the omitted). (citations Id. at 966 n. 8 him, room and asked you “Now do want not?,” talk about thing this to which assuming Even that Jackson’s version of replied, you correct, Jackson “I’ll tell what I know.” believe the con- events is we Hampton (Alaska 569 P.2d we 14. Because hold that T.M.’s confession 1977); Bentley admissible, 978-79 we need not discuss whether Jack- Annot., standing challenge see A.L.R.3d son had 26(g). under Criminal Rule *10 722 view, my insufficient in the tests laid down the defendants is
fession was valid under undisputed The Ladd. It that warrant of the trials.” court Mosley and severance police immediately stopped questioning specific pro- the held a excisions hearing on the requested attor- as he posed by party, Jackson as soon but before could each ney. contendere, was initiat- these, The renewed conversation pleaded on nolo Jackson who, according by to his version ed Jackson If Quick petition for review. filed his events, Ray Quick whether had stands, Quick’s petition asked plea Jackson’s that the knowl- talked. Jackson testified moot, point this he is the defend- for edge “really broke that had talked ant left to try. indicates, however, up.” transcript me The Bruton, Supreme In Court held that the again ques- that him before the asked joint of inculpato- in a trial the introduction proceed. He tioning whether he wanted ry who did not admissions a codefendant willing to do so. The indicated he was sixth amend- take the stand violated entirely un- actions were reasonable defendant, rights ment who was thus circumstances, agree der and we that unable to The rationale for cross-examine. was admissible. Jackson’s statement first, holding this two-fold: Court believed that a codefendant’s statements IV substantial, crit- perhaps would even “[add]
REQUEST FOR SEVERANCE ical, weight case in a to the Government’s subject form not be- to cross-examination” 1976, 10, September On served state cause substantial likelihood there was a notice it intended to use the confes- that a use the codefendant’s joint sions at of Jackson and their considering guilt in- admission when trial and filed a motion to conform state- Second, the nocence of the defendant.16 ments in the confessions to the Bruton rule. of a confession code- court stressed that the state recommended references inherently fendant unreliable and that the other defendant be excised from each so that the cross-examination was essential argued defendant’s confession. state statements could modified, truth codefendant’s properly if confessions jury.17 The Alaska be tested joint could before be admitted at a trial. The motion, frequently discussed the Court has opposed the defendants and on De- Bruton 27, 1976, rule.18 cember Jackson filed for a motion relief prejudicial joinder based on recognized rule does have Bruton claimed violation of his sixth amendment State, 468 P.2d exceptions. Sidney States, under Bruton v. United 391 960, (Alaska 1970), apply 963 we refused 123, 1620, U.S. 20 476 L.Ed.2d of a codefendant the rule the confession (1968).15 trial, reasoning who at testified 15, 1977,
On
nullified
February
opportunity
cross-examination
severance,
to confronta-
finding
denied the
claimed lack of a
motion for
State,
Similarly,
in P.H. v.
504 P.2d
showing
prejudice
tion.19
“[t]he
1628,
136,
pertinent
20
17. Id. at
88
at
L.Ed.2d at
15.U.S.Const. Amend. VI states in
S.Ct.
part:
485.
prosecutions,
In all
shall
criminal
accused
91,
See,
State,
g.,
559 P.2d
95
e. Benefield v.
enjoy
...
confronted
1151,
State,
(Alaska 1977);
514 P.2d
Lemon v.
against
with the
him
witnesses
State,
(Alaska Const,
1156
Mead v.
504 P.2d
1,
provides
perti-
Alaska
11
§
art.
855,
Blue
857
See also
part:
nent
1977),
636,
(Alaska
558 P.2d
645
Whitton
.
.
.
to be con-
[T]he accused is entitled
1970).
[by]
fronted
him .
the witnesses
O’Neil,
See
402 U.S.
also Nelson v.
States,
123, 127,
(1971).
16. Bruton v. United
S.Ct.
the incriminating statements of a code-
matically
a codefendant’s interlock
render
seldom,
ever,
fendant will
if
be of the
ing
agree
We
unimportant.
confession
“devastating”
character
referred to in
Blackmun, concurring
in Par
Justice
Bruton when the incriminated defendant
ker, who stated:
has
guilt.
admitted
right
his own
protected —the
may
Bruton
“constitutional
The fact
interlock
confessions
cross-examination,”
ensure,
per
not
degree
id.
to some
does
as a
[391 U.S.]
Evans,
74,
22.When,
Bruton,
confessing
20. See also
as in
Dutton v.
400 U.S.
81-
codefend-
82,
213,
91 S.Ct.
27 L.Ed.2d
ant
take the
222-23
has chosen not to
stand and
(1970). In
implicated
extrajudi-
Dutton the Court held that not ev-
defendant has made no
ery exception
hearsay
limiting
rule
guilt,
involves a
cial admission of
instructions
violation of the confrontation
adequate
clause. The
accepted
safeguard
cannot be
prescribed
balancing
Court
test under which
the defendant’s
under the Confronta-
evidence,
relationship
the nature of the
tion
But
Clause.
.
.
when the defend-
evidence,
opportunity
other
to examine the
properly
ant’s own confession
before the
statement,
importance
and its
to the central
jury, we
constitutional scales
believe that the
issue at trial would be considered to determine
tip
way.
possible prejudice
other
whether a violation occurred.
resulting from the failure of the
to follow
the trial court’s
is not so “devas-
instructions
Randolph, - U.S. -,
21. Parker v.
99 S.Ct.
tating”
confessing
defendant
“vital” to the
2132,
(1979);
60 L.Ed.2d
723
United States
require departure
general
from the
Walton,
(8th
1976);
538 F.2d
1354
Cir.
allowing
limiting
admission of evidence with
Zelker,
Stanbridge
United States ex rel.
instructions.
1975);
(2d
F.2d
Cir.
United States v.
U.S. at -,
at
at
L.Ed.2d
-
Spinks,
(7th
470 F.2d
Cir.
United
(footnote omitted).
Mancusi,
States ex rel. Catanzaro v.
404 F.2d
(2d
1968).
Cir.
cross-ex-
to confront and
matter,
will not
denied
their admission
se
concerning
Henderson and Schott
substantially
so
amine
prejudice a defendant
confessions,
implicat-
which
both of
not be
their
instruction will
limiting
that a
burglaries.
Henderson
may inter-
ed him
confessions
curative. The two
testi-
unavailable
cover
in effect
part only.
they may
Or
Schott
lock in
them
compel
not
fy
since Mead could
portion
the events in issue
no actual
And Mead had
interlocking con-
take the stand.
Although
trial.
two
since
them
opportunity to cross-examine
internally
inconsist-
may
fessions
*12
not
the stand.
beyond
they
in
did
take
ent,
go far
the other
may
one
implicating
confessor’s codefendant.
the
the
we found that
Id. at 857.
In Mead
circumstances,
the
of
admission
In such
the confessions
similarities between
factual
the codefendant who
the confession of
jury would
the likelihood
increased
very
the stand could
well
does not take
and
credible
defendant’s confession
find the
is
prejudice
to
the defendant who
serve
that
We
that
the likelihood
truthful.
held
confession, notwith-
by
incriminated
the
a
precluded
occurred
corroboration had
such
standing
own con-
that
the defendant’s
Id. at 860.
finding of harmless error.
is,
extent, interlocking.
fession
to an
(Alaska
State,
In Benefield v.
-
-,
U.S. at
S.Ct. at
testimony of
1977),
similarly found
we
J.,
(Blackmun,
concurring).
L.Ed.2d at 727
by
statements
a
officer about
willing
Although
past
we
been
have
other
the
which incriminated
one defendant
codefend-
admitting
to find that error in
a
right
confronta-
the
to
defendant violated
under the
ant’s confession was harmless
case, however, we
On the facts of the
tion.
trial,
developed
we
they
at
circumstances as
was harmless.23
the error
determined
always
the
of cross-ex-
have
held that
regard-
amination and confrontation exists
was
the
case no trial
In
instant
less whether the defendant’s confession
the
held,
say that
we
so
are unable
In
admitted into evidence.
Mead
inevitably
have
failure
sever
1972),
(Alaska
attempts
change
to
direct references to the
right
have
On remand Jackson shall
the
codefendants to neutral terms.
change
to a
plea
to
his
of nolo contendere
plea
of not
If
de-
guilty.
American Bar
he or
so
Association Standards
Relating
sires,
2.3(a)
separate
trial
be
If
Joinder and
should
ordered.
Severance §
(Approved Draft, 1968)
change
suggest
plea,
that:
Jackson does
wish to
his
Anchorage,
Municipality
v.
Oveson
of
deem the admission
the
Circuit would
of
supra.
801
Although
See note 2
statements “harmless error.”
such
eyes
error
the
the
harmless in
of
25.A similar situation arose in United
States
Circuit,
Ninth
would still be an error.
Serv.,
F.Supp.
(E.D.Cal.),
Corbin Farm
444
510
F.Supp.
444
at 540.
grounds,
(9th
aff’d on other
confession would not
entire Municipality case. See Oveson v.
Anchorage, 574 P.2d 803 n. ble, implicates guarantee 1. The far same is contained in at least so as it its maker Alaska Const, I, art. § the crime. opinion. majority 2. See note 24 of plea of nolo con- 5.The fact that defendant’s may “unintelligent in- tendere be rendered court, although required 3. The never respect express by our refusal valid” specific proposed by to rule on the excisions appeal specific reservation issue, Cooksey party change plea, each because of Jackson’s least, indicated direct all references to (Alaska 1974), mean that the same does not codefendants would be excised. Whether addi- where, here, reviewed true we have portions tional of either even- confession issue, thereby honoring his reservation tually have been excised is unknown. appeal, and conclude that a reversal required. undisputed I am also influenced fact voluntary that each confession relia-