*1 adop- available, favored the I would have by previous court decision6 this case of the A.L.I. tion of modifications those retroactive. thus the statute make suggested by tests States Court United important makes legislature When Appeals third circuit.9 for the usually preceded by committee change, it is of the trial I would affirm the decision which inform hearings and debates court. per- change and public possibility of steps reduce the dislo- to take people
mit reason For this of the transition.
cation upon the court incumbent
alone legislature
give to the acts of comity in a possible unless this results
whenever process
denial of law.7 of due factor additional important
There is Contrary to the normal situation
here. cir-
change by a under these affected court application only limited cumstances has TARNEF, Appellant, Michael Allen general application than because rather v. the new statute in the overall effect of Alaska, Appellee. STATE of suggest- alternative solutions future. The No. 1486. narrowly ed to the court are defined Supreme proper Alaska. the assessment of the rule to be Court of July 25, 1973. adopted great majority for the of cases has effect, seriously restricted. court is limited consideration legislative stand-
old standard or the new It, thus, may
ard. be forced to choice
the least undesirable rule to avoid the crea- a small number of which are
tion of cases differently ei-
treated than those decided
ther before or after the new statute is ef- though may
fective even another standard requirements justice.8
be closer to the I have no about the
While reservation power exercising change
court
law where conditions show that the rule no
longer justice, cause serves the I do appropriate
find this case the one
change insanity, the test though even general
have no disagreement with the A. adopted by majority. test
L.I. How-
ever, if a range full of alternatives con-
cerning
insanity
the definition of
(Alaska
appellant urged
v.
Chase
369 P.2d
in this case the
;
1962)
Pope
adopt
see
em-
also
Durham test as
court
States,
805-806
den.
reli.
in Durham v.
bodied
United
(1954),
1971).
U.S.App.D.C. 228,
Martin testified fire and that a Kelly actually set the Sam involved. boy was also named Stretch implicated that he Sam testified Kelly, Floyd as well and Eberhard Stretch *3 Chisolm, as a and Mr. but Mr. Sims that Hager, himself. testified implicated as the Tarnef himself as well persons Martin other mentioned above. paid for information. Tarnef this $380 Defender, Soil, D. Public Lawr- Herbert Fairbanks the above to the Martin related Defender, Kulik, An- Public ence Asst. J. Robert Tim- Department and to Police Mr. chorage, appellant. lin, investigator from professional a arson Gen., Havelock, Atty. Juneau, E. John had in Fairbanks on Seattle who Atty., Fairbanks, Clayton, Monroe N. Dist. request. day of the fire at Martin’s appellee. Fenton, Martin contacted Thomas a also RABINOWITZ, J., Before C. CON- attorney at- Fairbanks and former district NOR, BOOCHEVER, ERWIN JJ. Tarnef, torney, and who asked that he visit Region- was then at Northern incarcerated OPINION al on another unrelat- Correction Institute attempt get statement charge, ed a BOOCHEVER, Justice. Fenton visited him about the fire. from morning April On the July. Tarnef at Fenton testified NRCI Swan, apparent arson was at the White presence, Martin offered Tar- that his laundry a commercial located in Fairbanks. him, bail, represent legal nef counsel However, sprinkler because of an effective Tarnef money reward if and additional system building, damage little was addition, Fen- a In would make statement. Martin, Mr. done. Alvin then was following made the that he ton testified Swan, owner White had been an ar- statement to Tarnef: year a son victim earlier when a laundro- very was doubt- I said that it Well ah— he totally mat had owned had been de- they any kind would file ful whether stroyed by suspected fire. Martin that Tarnef, the case—that against case Eberhard, his, competitor R. John everybody interested was people Consequently, been involved both fires. the hir- people who did in would be published $5,000 Martin reward offer for to set the fire. And that ing Tarnef leading information to the arrest and con- they—it’d just file a case if ah— persons responsible viction of the for the formality mean there wouldn’t be I be fire. just prosecution, trial or any kind of defendant, Al- 1969the Michael June him. against filed a case to have Tarnef, by ad responded len to Martin’s in induc- However, did not succeed Fenton agreed calling the listed number make a statement. ing Tarnef to Hagar, Martin and man- meet one William Hagar visited Subsequently, Martin ager at the time of the Swan White times over the several at NRCI Tarnef day, Tarnef met Martin fire. Later that Then, February months. next several Bridge. Hagar at the Cushman Street Timlin, investigator arson Tarnef, Rei- pseudonym Michael using the Seattle, Hagar to NRCI with went Martin ly [phonetic] drove with around obtaining five-page and succeeded period time and Hagar for a dis- state- Tarnef’s from Tarnef. statement Accounts of cussed the Swan fire. White Timlin, writing by reduced by the ment offered conversation signed by Hagar, Tarnef. by considerably. witnessed participants three varied s indicated that he He Tarnef statement testified that Timlin told him that no approached by Eberhard, charges brought him, Chisolm and would against he $2,500 get $5,000 reward, and offered to set the Sims White and that his making fire. Tarnef admitted by Swan sub- bond would be furnished Martin. Tar- preparations including hiding a nef stantial wording stated much of the liquids own, of inflammable number cannisters statement but was fur- Swan, employ- but told his near the White nished Timlin. Tarnef further testified do nothing ers at last minute that he wouldn’t knew except he the fire about job. and, The critical made admission what was related him Kelly Sam moreover, was as follows: gave reason “false” statement was because he thought talking night, next Sam against could not be used him since Tim- Kelly and him if asked he was interested *4 lin had not rights: him of advised making easy money, some and when yes, he said we went over to the Polaris A. he—after he When said he was got and lounge a hold of Joe Sims—Joe working for the ah—this insurance him what he had do told and company private a investigator, agreed on terms—at this I time left. said get he before we any started on although Timlin ap- testified that Tarnef business, he said I have some- ah— bargain parently wanted that he made thing you I’d like to read to and I leniency promise no of Tarnef and told he anything said—before said else I strictly up him that “was district something said that if that has to do granted attorney” whether he would im- about me or something, I “turning for munity so called state’s evi- you know, just forget said we’ll I— dence.” Timlin stated that he advised also thing right the whole now. And of rights: Tarnef his constitutional Mr. Martin present who was Hagar A: After the Mr. and Timlin interview with Mr. Tar- Mr. prior morning nef fly to the time that the because he had to out statement —he flew out later on that after- writing, was reduced I just noon. And Mr. informed Mr. Tarnef of his—con- Martin said yeah right rights. stitutional that’s all and Mr. Timlin well, said he said I—I don’t have to Q. you by his What do mean constitu- you everything’s all read ’em to then rights? tional did, right. he he But never never right A: That he a say any- had not to anything. advised me of thing if say and that he did some- Well, thing him, you against Q. what did mean about that could be used involved, you gonna get that he if then attorney, you your you’d if attorney rights, he advise of for- did —if attorney get thing? have an the whole pro- one could be vided. Ah—at point in time Well, he could sure because then A. Mr. Tarnef said ah—‘hold’ or ‘whoa’ know, you regardless, around turn that, or something like ‘that kind of thing that would be talk scares me’ or ‘bothers me’. And it, you giving me scare into I though told him that even I was know, words, if I—if I did other no longer connected with law en- though he give the statement even forcement, still I felt that because of give promises all me those my past connection that I should so figured that the man everything I stuff, advise him on this and we anything me never did advise of went on with the statement. try me around that if he did to turn Tarnef’s account of anything to lose his conversation I wouldn’t have with Timlin words, was considerably they still In other different. it. to, know, you given exchange able 5.His statement was
wouldn’t be promises leniency it. and was use therefore involuntary and should have excluded. suppress the statement Tarnef moved to held in suppression hearing and a Feb- ' ruary motion denied 1971. The provides: AS 11.20.020 by jury beginning later Tarnef was tried guilty of sec- that same month found person A degree Second arson. degree ond On March arson. wilfully maliciously sets fire to or years, the sentenced to five sentence burned, burns causes to be or who ten-year sentence concurrently aids, run with a procures burning counsels or of- imposed Judge Hepp a narcotics kind, building or structure fense. property property whether his or the another, not included or described § variety in the alleged of errors dwelling], chapter 10 of this [arson process which led to his conviction. These degree, guilty arson the second separately out and be- are set discussed upon im- punishable by conviction is continuity satisfactory cause method of no than prisonment for not less one nor top- discuss unrelated is available to such years, more than a fine of not allegations error are as ics. Tarnef’s $5,000, by than more both. *5 follows: Relying on “last antecedent” rule of the construction,2 argues statutory appellant 11.20.020, which he was under
1. AS
phrase
maliciously”
“wilfully
that the
convicted,
exercise
is
unconstitutional
“
person
refers
who ..
[a]
power
in-
police
to the
makes
of
extent
or
to be burned
sets fire
or burns
causes
nocent behavior criminal.
”
aids,
modify
.
and does
“who
process of law as
He
denied due
2.
procures
burning
or
of
counsels
”
by the fourteenth amendment
guaranteed
.
.
building or structure
.
.
Conse-
person
can
convicted of sec-
quently,
because
to the United States Constitution
degree
under
if he
ond
arson
the statute
pretrial delay.
of
“aids,
procures
burning of
counsels or
speedy
3. He was denied his
building”
though
not shown
even
he is
by
guaranteed
sixth amendment
as
Ap-
any specific
criminal intent.
have
pellant argues
made
that the
of a crimi-
Constitution and
absence
United States
requirement
intent
nal
makes
statute
states
applicable to the
fourteenth
process
of the due
clause
violative
I,
guaranteed
and as
article
amendment
power.
police
exercise of
unreasonable
the Alaska Constitution.
section
issue,
is
The threshold
whether
statement, a product
His
custodial
appeal
this
on
issue
we should consider
interrogation, was taken
violation
out,
since,
alleged
points
as the State
since there was no
Miranda
Arizona1
raised at trial3
error was not
constitutional
showing of effective
of his fifth
appellant’s
waiver
state-
was not included in
required by
under the
appeal
and sixth amendment
points
ment of
9(e).4
States Constitution.
Harris
Supreme
United
Rule
Court
prosecution”
1. 384
L.Ed.2d
in the institution
meaning
Rule 12
within
Criminal
(b) (2)
be raised
motion
which must
Statutory
Sutherland,
2. See
Construction
or
before trial
deemed waived.
(3d
1943).
ed.
§
recently
Supreme
3. It
is
unclear whether a constitutional
4.The
Rules
Court
repromulgated
Appellate
upon
defect in
in-
as the
Rules.
which the
statute
Supreme
dictment
is
is
Since the
Court Rules were
based
one of the “defects
1969),
way
P.2d 638
how-
most
sensible
to construe the
ever,
appellant’s
degree
examined
claim
leg-
this court
second
arson statute is that the
under
indict-
“aids,
that the
which he was
islature used the
statute
words
counsels
procures”
spite
ed
of the fail-
synonymous
unconstitutional
with “aid and
object
the indict-
abet”.
appellant
prescribes
ure of
Since AS 11.20.020
punishment
stated:
same
perpetrator
ment. The court
for the
person
“aids,
procures”
counsels or
the statute under which
[I]f
burning,
reading
this
is consistent with
unconstitutional,
it fol-
indicted
AS 12.15.010.
judgment
indictment
lows that the
This
appear
does not
to be a strained
of conviction would be vitiated
we
reading
statutory
language.
It can
plain
should reverse under the
error
be inferred that the
“aid
words
and abet”
omitted.)
Id. at 640.
(Footnote
rule.
are used
synonymously
various combi-
assist,
advise, counsel,
nations
the words
Similarly,
if the statute under
procure, encourage,
instigate.
incite and
charged
which Tarnef
unconstitu
Similarly,
in Thomas v.
his trial because of In Judd lay fire at prior to trial. The the White this court 1971), refused to enter 1969; April 25, Tar- Swan occurred on appellant’s speedy tain trial contention and February began nef’s on trial point at noted that he not raise its trial. The court was also influenced in considerable dis- There is confusion speedy is refusal the fact that the trial agreement as to whether Tarnef made points ap sue was mentioned in the on alleged trial motion at to dismiss peal inadequately briefed. Since process speedy trial In due violation. appellant issue and list here did brief the appellant points appeal his on statement of appeal, however, points in his on Judd failing to stated: “6. The court erred in preclude would not seem consideration grant for the appellant’s motion to dismiss argument. 'his in a Further, number of speedy reason that he denied a trial.” cases, plain other this court er citing no the record or the There is indication rule, that 47(b), ror Criminal Rule stated appellant transcript, made involving depriva consider errors prior at such motion his trial. tion fundamental appellant urges brief the abstract appeal.10 the first trial time Since this speedy process oc- due violations Glasgow occurred after any mo- but makes no references to curred decided, and the Moreover, reply in his tions filed below. delay total from offense to exceeded brief, respond appellant failed to to the months, spectre plain error argument speedy trial and State’s done, used, the means and from all the degree, second each which State facts and circumstances in the evidence. prove beyond a must reasonable doubt Instruction : Xo. stated you may find before the defendant person Under the laws of Alaska guilty of the crime of arson in sec- directly need not act commit each con- degree ond are: stituting charged guilty the offense to be day .1. That on or about the 25th person thereof. A who aids and abets in April, 1969, Fairbanks, through of a crime commission District, Fourth Judicial Alas- State of joint design purpose guilty ka, aid, Michael Allen Tarnef did coun- person persons who commit the procure burning sel or of a build- personally. offense ing, Laundry, to-wit: the White Swan In order aid and abet another property of Alvin Martin. necessary commit a crime it is wilfully 2. That said act was done wilfully defendant associate himself in maliciously. way venture; some with the criminal 3. That actual fire or wilfully participate and that he in it as burning. something bring about; he wishes to wilfully and that he Xo. 4 seek some Instruction : action stated “wilfully” of his to make it term succeed. means that the de- upon Thus it doing fendant is not knew incumbent what he was prove voluntarily beyond State to *8 decided to reasonable do it without re- gard doubt that for the law defendant or the committed alleged of others. every element of the crime to “unlawfully”, The term in used sustain a conviction. It is sufficient to contrary these instructions means to you sustain a conviction if believe be- law. yond a reasonable doubt that the offense “feloniously” term The means with was committed and that the defendant purpose. criminal intent and evil aided and abetted in its commission. Malice exists when a in- defendant tentionally does an unlawful act with- State, 10. &'ee 39, Hammonds v. 442 P.2d justification legal out (Alaska or other 1963) ; excuse. Kugzruk 43 State, v. 436 hostility required. Ill will or is not (Alaska The 1968) ; Goresen may existence of State, malice be determined v. (Alaska 432 P.2d from the 1967). manner in which an act correct, public defendant the presented.11 Tarnef of crim clearly If institution inal committed, charges against plain and we there- him.12 It does contain error a regarding protection discussion the fore consider the issue. against precharge delay afforded the arguments on presentation of the The process clause, concluding due that “both murky. parties also The the merits the a preaccu- absence of valid reason for had State disagree as to the both when delay and fact prejudice sation of must Tarnef and sufficient evidence indict in support be established order to a due delay indict- between to the reasons for process claim.” points Appellant out that trial. ment and implicated Hagar testified Tarnef holding one of the few cases talked himself in when he that preindictment delay June a constitutes vio n Hagar cir- Martin related the and Martin. amendment, Judge lation of the sixth von po- to the of this conversation cumstances Heydt der quoted approval with from Jus appellant argues day, lice that same opinion tice concurring Brennan’s Dick in- police then that since sufficient Florida,13 ey establishing following v. indictment, de- support formation to test: point in measured from that lay should be Thus, may it purposes be that for elapsed time. An of 20 months interval fully (Speedy Trial) [Cjlause be trial, date and the time between that realized, apply it delay must Tar- February interval between 1971—the process after the the criminal that occurs Martin and nef’s conversation June government prosecute decides and has Hagar and the indictment trial. for arrest sufficient evidence hand, points to on the other indictment.14 testimony and Tarnef which of Martin delay in the preindictment Tarnef case implicate that Tarnef did not indicates govern- did not after occur Ha- meeting with himself at the June prosecute, ment had decided to but addi- gar argues It that the State and Martin. every tionally valid reason for there was to indict evidence did not have sufficient prosecution not to initiate until State copy it of Tarnefs Tarnef receives until subsequent after the statement. While February 1970. statement Timlin may initial as to whether the debatable months later indicted two adequate statement made Tarnef was April indictment, obtaining an purpose seriously be suggested it is not and cannot question to discuss The latest case for the unreasonable concluded that was situations, Marks precharge speedy trial in launching prosecu- refrain State to 1972), 66, 68 496 P.2d v. tion, fragile vessel. We utilizing such Alaska whether follows does not decide this case the find that under the facts Marion, 404 holding United States v. delay reasonable. 30 L.Ed.2d 307, 92 S.Ct. Thus, applied (i.e., regardless of test amendment (1971), that the sixth forth process set only after under the due clause speedy attaches arrest F.Supp. Wahrer, argument indicated the State 14.United States 11. At oral 1970), impression (D.Alaska cited Unit- also under the 307, 317, Marion, filed and had been ed States motion such 30 L.Ed.2d in one of other S.Ct. it had been filed involving court cases n. as one of three district the same defendant. cases “ ‘delay’ Amendment wherein Sixth McKay 145, 150 12. In purposes computed from the been] [have also failed to n. 6 we when of the crime or from time time preindictment *9 reach the issue of whether government the defendant’s considers delay violated the sixth amendment above, As actions criminal”. indicated speedy ato trial. holding contrary. the Marion 1564, 30, 46, 1573, 13. 398 U.S. 26, 26 L.Ed.2d 37 932
Marks or sixth under the amendment as Trial 1, was scheduled February but on suggested Wahrer), January it is clear that this 29 Tarnef’s stipulated counsel present justify case facts postponed does not our trial be until February 16. On holding preindictment delay February consti- 18 Tarnef moved disqualify Judges tuted a Hepp, Taylor violation of Tarnef’s constitutional and VanHoomissen. rights, requiring Accordingly, February reversal. we On 19 the suppression hearing question again began. Judge do not reach the Hepp whether denied the motion to preindictment delay speedy disqualify violates himself and ruled that Tarnef’s provisions trial sixth of the amendment to statement was admissible. The trial itself began the United February Constitution or the anal- on completed States 24 and was 11, ogous provisions I, article section of March 2.
the Alaska Constitution.
addition,
In
five other
charges pending against him at various
postindictment
Regarding
delay,
stages during
period
of time after the
appellant argues
Tarnef, by
his attor
White
charges
Swan fire. The
were:
(1)
ney’s stipulation,
consented to
two
July
sale of heroin-indicted
tried
State,
delay.
weeks
the ten-month
guilty
1970;
found
March
(2) rob-
however, points
out that
filed
bery
February 19, 1969, found
prior
series of motions
—indicted
to trial and attri
guilty
on December
1969 after a
butes approximately
postin-
one-half of the
hung
first trial
in a
jury;
(3)
resulted
lar-
delay
dictment
appellant.
ceny (federal charge)
—indicted June
A
chronology
brief
follows: Tarnef was
guilty
September 9, 1970;
found not
on
April 30,
indicted on
May
1970. On
(4)
robbery
1969;
December
—indicted
Tarnef moved
transcript
for a
first trial
in hung jury
resulted
in Novem-
grand jury
minutes.
court
took
ber
charges
in December
dismissed
May
motion under advisement on
21 and
1970;
larceny
(5)
December
—indicted
entered an order
denying
on
4
June
1968,charges dismissed
June
Tarnef,
se,
motion.
acting pro
On June
filed a
State,
notice of appeal
Supreme
to the
In Tarnef v.
court attached
prejudiced
cannot
said to have
inter-
delays
be
his
protected
to these three
interests
against pretrial
imprisonment.
est
months;
Nor
of fourteen
excess
Tarnef
any showing
preju-
delay does Tarnef make
of
Nickerson, however,
the
where
ability
himself;
his
defend
dice to
to
eight months the court
involved was about
allegation
any
is no
in his brief that
de-
require
showing
would
of actual
stated it
memory
fense
or that
witness’
had dimmed
prejudice.
Tarnef
was unable to locate defense wit-
In
case at bar the interval between
the
short,
showing
ness.
In
there was no
trial
about months.
indictment and
fact-finding process
the
trial
im-
at
portion
delay,
of
At
the
least
paired
integrity
of
judgment
the
the
must
attributed to Tarnef.
calculat
be
any way
Regard-
conviction in
affected.18
State, the
ing
delay
to the
the
attributable
pretrial anxiety
by
the
ing
suffered
Tarnef
speedy
rule,
new
trial
Rule
Criminal
following
statement of
court
delay resulting from
periods
excludes
is relevant:
Nickerson
concerning
defendant
proceedings
other
exceptional
be an
case where
evidence,
It would
suppress
from
such motions
anxiety, standing alone,
con-
such
interlocutory
charges,
trials
other
stitutionally
of a
necessitate dismissal
appeals
any
and from
continuance consent
anxiety
prosecution.
al-
criminal
attorney.
Some
Using
ed to
defendant’s
indictment;
ways
criminal
results from
following
guide,17
peri
new
as a
rule
only through speedy
crimi-
resolution of
May 5—Au
ods should
excluded:
anxiety
nal
can such
be minimized.
cases
sought by
gust
Tarnef
motion
31 interval
However, appellant
alleged,
nor
has
transcript
appeal
obtain a
anything
ap-
do we find
the record on
grand jury proceedings;
the two-week
indicate,
suf-
peal which would
that he
stipulated
postponement
greater anxiety
fered
than that
counsel;
days
took
the few
it
to hold
normally
from a criminal
which
flows
suppression hearing;
period
and the
Tar-
charge.
121.
larceny
nef was on trial
the federal
robbery charges.
(It
is unclear
state
Moreover,
imposed
anxiety
the incremental
precisely
much time
from the
how
record
years,
charge,
sixth in three
this
trying
charges.)
was involved in
these
has
probably minimal. Tarnef
failed
Therefore, something
than six months
less
prevail
necessary
facts to
to establish
State;
delay
is attributable to
speedy
argument.
on his
delay
since
than the
involved in
this
less
Nickerson, must
Ill
Tarnef
show actual
prevail.
prejudice
order
argues that was error
Appellant also
deny
suppress
state
the motion
appellant fails to do. Tarnef was
This
Tarnef contends
given to Timlin.
ment
possession
tried for
and sale of heroin on
valid Miranda19
not receive a
he did
guilty
March
found
sentenced
therefore,
and,
statement was
years imprisonment.
grand
to 10
jury
waive
involuntary for he
clearly
April
returned
arson indictment on
rights under the Unit
his fifth amendment
already
1970.
Since
sen-
ed States Constitution.20
imprisoned
tenced and
for the heroin con-
Arizona,
19. Miranda
apply
Although
the new rule does not
1602,
A
is raised
trial court did not resolve this conflict in
question of whether or not Timlin
a pri-
testimony,
as
stating:
investigator
required
give
vate
was
I don’t know whether to believe Timlin.
appellant
warning to
Miranda
before dis-
says
He
they
he even—that
did dis-
Unquestion-
cussing the case
him.
rights in
cuss
this matter that anything
ably,
requirements set
forth Miranda
you
say
against
could
you
be used
21
po-
Escobedo
toward
were directed
all
that sort of stuff and said that if
private
They
licemen and not
citizens.
the defendant—the
rejected
defendant
reliability
were intended
insure the
says,
He
you’re gonna
this.
‘If
start
police
people
confessions of
while in
custo-
talking
that,
any
like
part
don’t want
dy
guard against
and to
officials over-
it,’
import
or
words
all the
reaching to obtain confessions.
nobody
more shows that
was kid-
there—
there,
ding anybody
was
nobody
under
case,
closely
working
In this
Timlin
any mistaken belief
what
as to
police
investigator.
with the
arson
going on.
promised
He had
to turn over
state-
police
had,
he
ment
obtained to the
abundantly
While
is
clear
from the
fact,
police
enlisted
of the
the aid
and the
record that the court and counsel were dis
attorney’s
district
office to obtain access to
problems
cussing
raised Miranda and
appellant
incarcerated
procedural
requirements for admission
Regional
Fairbanks
Correction Center. of confessions set forth in
v. Den
Jackson
obtaining
police
After
the statement the
no,
368,
1774,
378 U.S.
84
12
S.Ct.
L.Ed.2d
appellant
city
drove
and Timlin around the
(1964),
908
the record is
concerning
silent
accuracy
confirm
statement.
ruling
question
of the trial court on the
Timlin, himself,
position
recognized his
of whether the court found the Miranda
team,
basically part
official
for he
warning
given.
give
thought
he had to
testified
the Mi-
solely
If we were confronted
with the
warning
because of his
randa
both
back-
question
warning
whether
had been
ground
aas
former law enforcement offi-
given might
possible
remand
fact,
position.
cer and the nature of
Miranda,
case for such a determination.
give
warning
he testified he
such a
however, in
requiring
addition
warn-
appellant in this case.
ing, specifies:
Therefore, we hold under the facts
interrogation
If the
continues without
required
of this case
Timlin
presence
attorney
state-
give
a Miranda
and secure the de
taken,
heavy
is
ment
burden rests on
rights
fendant’s waiver of
before undertak
government
to demonstrate that the
ing interrogation
appellant.22
knowingly
intelligently
defendant
testimony
While there
substantial
against
his privilege
waived
self-incrimi-
Hagar
from Timlin and
advised
nation and his
to retained
ap-
taking
of his
before
pointed counsel
This Court
....
statement,
appellant.
is denied
always
high
proof
set
has
standards
Illinois,
478,
Rptr. 775,
(1965).
Escobedo v.
84
406 P.2d
61
Bee
(1964).
Cal.App.2d
People
Wright,
S.Ct.
Reversed and remanded. pending upon the under circumstances Thus, spoken. hearing which are FITZGERALD, J., participating. *13 should was first determine whether Tarnef given proper the Miranda warnings. ERWIN, (dissenting). Justice depart opinion I majority from the be- admissibility dissent. I believe the cause as say a matter lawof I cannot depends upon Tarnef’s the statement out- per- there are no facts which would have hearing come aof that should be held to mitted the trial court to hold first, decide if Tarnef received Miran- his was a by valid waiver Tarnef of his Mi- so, da warnings, second, if a was there rights. randa I am aware that the Su- valid waiver. preme in Court Miranda v. Arizona4 stat- question by The statement was made ed : Tarnef to investigator fire Timlin at the express An statement that the individ- Regional Northern Correction Center. is willing ual a to make statement requested Tarnef this conference. Timlin attorney does not want an followed took a page long- down five statement closely by a statement could constitute a hand from notes and conversation with waiver. But a valid waiver will not be Tarnef at the correctional center. Tarnef presumed simply from the silence signed page each of the statement. warnings accused after sim- given are clearly record (as does demonstrate ply from the fact that a confession was 1 the majority candidly a direct admits) in fact eventually obtained. in testimony conflict concerning whether However, plus I feel necessary the element warnings given. Miranda fact be could found on rehearing: that there Since the trial court did not rule on this may be than simply warning more fol- law, testimony required conflict of by by lowed a statement. the admission of the statement was error.2 However, in position majority upon this court finding no classical resolve either the competing rights inferences waiver of Tarnef’s Miranda at the the direct factual conflict without the ben- end of his written statement saw this as efit by of a on decision the issue the trial intelligent evidence absence of an court. Credibility ingredi- However, necessary knowing appears waiver. strategy, on either the basis wo held that the defect regarded plain could not be in the error. reference to Miranda sufficiently court below alerted court llagar say 1. and Timlin question or, involved the alterna given any warning and Tarnef denies that showing- tive, in the of a absence given. privi knowingly that Tarnef waived his Arizona, 436, 2. Miranda v. 384 U.S. 86 lege against self-incrimination, admission 1602, ; (1966) 16 S.Ct. L.Ed.2d 694 Jack- plain
of the statement
constituted
error.
Denno,
v.
son
S.Ct.
47(b) ;
Alaska
Rule
Drahosh
Criminal
(1964).
from that Tarnef made a holding waiver his Miranda intelligent
rights. sus- on the issue waiver record
ceptible conflicting because inferences arguments legal focus primary the trial ROLLINS, Appellant, court. Leo emphasis inadmissibility on placed promised because of confession LEIBOLD, Appellee. Hans M. immunity prosecution, with a second- No. 1646. ary argument give on a failure to based Supreme of Alaska. Court warning. Miranda Nowhere does July 25, 1973. appear argument by Tarnef voluntarily
he did not waive as-
suming arguendo that Miranda given.
had been there are Accordingly, upon facts which to
few direct resolve
such issue.
Appellant clearly full entitled
hearing and decision these issues in the court. If at conclusion such
evidentiary hearing it is determined that Stidham, the trial 7.We should assume Swenson v. 409 U.S. give appellant (1972) ; hear- now L.Ed.2d court will not S.Ct. requirements ing Denno, supra, with the inconsistent Jackson v. 1790, 12 at 926. of the constitution. 84 S.Ct. at L.Ed.2d
6.