Opinion
Court of Appeals No. A-13055 No. 6818
09-04-2019
JAY JAMES RAMBO, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: William R. Satterberg Jr., and Amy K. Welch, The Law Offices of William R. Satterberg Jr., Fairbanks, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3KN-17-00838 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Kenai, Jennifer K. Wells, Judge. Appearances: William R. Satterberg Jr., and Amy K. Welch, The Law Offices of William R. Satterberg Jr., Fairbanks, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges. Judge ALLARD.
Jay James Rambo was convicted, following a jury trial, of felony driving under the influence, first-degree endangering the welfare of a child, and fourth-degree weapons misconduct. On appeal, Rambo argues that the trial judge erred in denying his motion to suppress the result of his breath test based on alleged violations of AS 12.25.150(b) and Copelin v. State. For the reasons explained here, we reject Rambo's claim and affirm his conviction.
AS 28.35.030(n), AS 11.51.100(b), and AS 11.61.210(a)(1), respectively.
Copelin v. State, 659 P.2d 1206, 1212 (Alaska 1983).
Background facts and prior proceedings
On July 21, 2017, Alaska State Trooper John King conducted a traffic stop of Rambo; the stop eventually ripened into an arrest for driving under the influence. Prior to the arrest, the trooper allowed Rambo to call his father-in-law to make arrangements for Rambo's son, who was with him in the car. During the call, a different trooper was standing by Rambo, and Rambo's side of the phone conversation was captured by that trooper's personal recorder. The troopers also allowed Rambo to speak to a friend who called during the stop.
Following Rambo's arrest, Trooper King transported him to the police station for a breath alcohol test. During the fifteen-minute observation period before the breath test, Trooper King allowed Rambo to call his attorney. King told Rambo that he (King) would step into the windowed office across the hall to give Rambo privacy. In response, Rambo told King that that would be unnecessary. King nevertheless stepped into the office, which was approximately eight to twelve feet from Rambo. King partially closed the door, and he watched Rambo through the office window. However, King did not turn off his personal recording device, which had been running during the entire encounter. King's recorder picked up noises related to King doing paperwork in the office. In the background, Rambo's phone conversation with his attorney can be heard.
In his briefing, Rambo asserts that his side of the conversation can "clearly" be heard in the audio recording, and he further asserts that his attorney's voice can be heard, although the attorney's words are not discernible. We have listened to the audio recording and we were only able to hear parts of Rambo's side of the conversation. We were unable to hear any part of the attorney's side of the conversation.
Rambo subsequently provided a breath sample that measured his breath alcohol level at .092, above the legal limit.
Prior to trial, Rambo filed a motion to suppress the results of his breath test, arguing that the troopers had violated his rights under AS 12.25.150(b) and Copelin v. State by recording his phone call to his father-in-law in the field and his phone call to his attorney at the station.
Copelin v. State, 659 P.2d 1206, 1212 (Alaska 1983).
Alaska Statute 12.25.150(b) provides, in pertinent part, that "[i]mmediately after an arrest, a prisoner shall have the right to telephone or otherwise communicate with the prisoner's attorney and any relative or friend." In Copelin v. State, the Alaska Supreme Court held that AS 12.25.150(b) requires the police to provide an arrestee with a reasonable opportunity to consult with an attorney before deciding whether to submit to a breath test. This opportunity to consult with an attorney typically takes place during the fifteen-minute observation period prior to the breath test, because "no additional delay is incurred by acceding to a request to contact an attorney during that time." In Zsupnik v. State, the Alaska Supreme Court extended this right to contact an attorney during the fifteen-minute observation period to include the right to contact non-attorneys, such as friends or relatives. If the police unreasonably interfere with an arrestee's rights under Copelin or Zsupnik, the remedy is suppression of the breath test.
Id. at 1211-12 ("The statutory right to contact and consult with counsel is not an absolute one . . . but, rather, a limited one of reasonable time and opportunity that can be reconciled with the implied consent statutes.").
Id. at 1211.
Zsupnik v. State, 789 P.2d 357, 360 (Alaska 1990).
Id. at 361; Copelin, 659 P.2d at 1208.
In the present case, Rambo argued that the police unreasonably interfered with his rights under Copelin and Zsupnik by recording his phone conversation with his father-in-law in the field and recording his phone conversation with his attorney at the police station. Rambo argued that suppression of his breath test was therefore required.
Following an evidentiary hearing at which Rambo and Trooper King testified, the trial court denied the motion to suppress. The court ruled first that because the phone call with Rambo's father-in-law took place prior to any arrest, AS 12.25.150(b) did not apply and therefore no violation of the statute occurred in relation to that phone call.
The court ruled next that AS 12.25.150(b) did apply to Rambo's phone call to his attorney at the police station, and the court noted that the trooper was required to take "reasonable steps" to ensure Rambo's privacy for that call. The court then found that, with one exception, the trooper had taken these reasonable steps by moving to the next room, partially closing the door, and not interfering with the call in any way. According to the court, "[n]othing on the audio, or from the testimony, indicates that Trooper King was intrusive in any way but one: he kept his tape recorder running."
The court agreed with Rambo that Trooper King should not have continued to run his recorder and that this was "not an appropriate practice." But the court also found that, contrary to Rambo's testimony at the evidentiary hearing, Rambo was not constrained in his conversation with his attorney:
Although Trooper King should not have recorded this communication, the court is convinced that Trooper King, in fact, had no interest in the details of this conversation, did not interrupt Mr. Rambo and took reasonable steps to give Mr. Rambo physical space for the call. Lastly, the audio, itself, shows no indication that Mr. Rambo felt constrained.Based on these findings, the court concluded that suppression of the breath test was not warranted.
This appeal now follows.
Rambo's claim of error regarding the phone call with his father-in-law
On appeal, Rambo renews his claim that AS 12.25.150(b) was violated when the trooper recorded his phone call with his father-in-law in the field. The superior court denied this claim because it ruled that AS 12.25.150(b) did not apply to that phone call. We agree with this ruling. Alaska Statute 12.25.150(b) applies only to phone calls that occur "after an arrest." Rambo's phone call with his father-in-law occurred prior to any arrest, and the statutory requirements therefore did not apply. Accordingly, we find no merit to this claim.
See Wardlow v. State, 2 P.3d 1238, 1249-50 (Alaska App. 2000) ("[A]n arrestee's statutory right to 'immediate' communication with attorneys, relatives, and friends normally does not attach until the arrestee is brought to a place of detention such as a police station or a jail.").
Rambo's claim of error regarding the phone call with his attorney
Whether Rambo's right to confer with his attorney was violated presents a closer question.
Under AS 12.25.150(b) and Copelin v. State, Rambo had a right to consult with his attorney before deciding whether to take the breath test. Although police officers have a duty to maintain custodial observation of a defendant before administration of the breath test, a defendant must still be given "a reasonable opportunity to hold a private conversation with his or her attorney."
Copelin v. State, 659 P.2d 1206, 1208 (Alaska 1983).
Kiehl v. State, 901 P.2d 445, 446 (Alaska App. 1995) (citing Reekie v. Anchorage, 803 P.2d 412 (Alaska App. 1990); Anchorage v. Marrs, 694 P.2d 1163 (Alaska App. 1985); Farrell v. State, 682 P.2d 1128 (Alaska App. 1984)).
We have previously held that "a defendant's right to confer with counsel is not violated merely because the arresting officer maintains physical proximity to the defendant." Instead, this Court has suppressed breath test results only when, in addition to maintaining physical proximity, "the police engaged in additional intrusive measures, intrusions that convinced the defendants that the officers were intent on overhearing and reporting the defendants' conversations with their attorneys."
Kiehl, 901 P.2d at 447; see also Alexander v. Anchorage, 15 P.3d 269, 271 (Alaska App. 2000); Mangiapane v. Anchorage, 974 P.2d 427, 429 (Alaska App. 1999).
Kiehl, 901 P.2d at 447.
There was no such intrusive conduct in the current case. As the trial court found, the trooper took multiple actions to ensure that Rambo felt that he had privacy for his call. Among other things, the trooper moved to the next room and partially closed the door — even though Rambo himself said that such actions were "unnecessary." It was also undisputed that the trooper did not interrupt or interfere with the conversation in any way.
The only thing that the trooper did wrong was to leave his recorder running, thereby recording portions of Rambo's side of the conversation with his attorney. We addressed a very similar fact pattern in Kiehl v. State. In Kiehl, the trooper left her recorder on and went in and out of the room while the defendant was talking to his attorney. We agreed with Kiehl that it was improper for the trooper to leave her recorder on, and we also agreed that this violation entitled Kiehl to suppression of the recording and any evidence that could be derived from the recording. But the trial court found that the recording had not affected Kiehl's ability to consult with his attorney. Because this finding was not clearly erroneous, we held that suppression of the breath test was not warranted. As we explained, suppression of the breath test under these circumstances would not be "tailored to the injury suffered" because the recording did not actually interfere with the defendant's ability to obtain the legal advice he needed.
Kiehl v. State, 901 P.2d 445 (Alaska App. 1995).
Id. at 445.
Id. at 446.
Id.
Id. at 447-48.
Id.
The trial court came to a similar conclusion in the present case. The court recognized that it was improper for the trooper to leave his recorder on during Rambo's telephone conversation with his attorney. But the court found that Rambo was not actually constrained by the recording, and that suppression of the breath test was therefore not warranted under Kiehl.
In his briefing on appeal, Rambo seeks to distinguish his case from Kiehl. He points, in particular, to his testimony at the evidentiary hearing that he was aware of the recording and that it did constrain him. But the trial court's ruling makes clear that the court rejected this testimony, and found Rambo's claims not credible. We will not second-guess this credibility determination on appeal.
Ultimately, whether a suppression motion was properly denied is a mixed question of law and fact. We will accept factual findings made by the trial court unless they are clearly erroneous. We then independently review whether, under those facts, suppression was warranted.
See Munson v. State, 123 P.3d 1042, 1045-46 (Alaska 2005).
Id.
Id.
Here, the trial court's findings of fact are supported by the record and not clearly erroneous. Given these findings, we agree with the trial court's legal conclusion that suppression was not warranted. Because Rambo was able to obtain the legal advice he needed, there is no reason to suppress the results of the breath test.
We note that, at oral argument, Rambo abandoned his attempts to distinguish Kiehl. Instead, he argued that we should overturn Kiehl, and its related line of cases. Under the doctrine of stare decisis, a litigant who asks an appellate court to overrule a prior decision must demonstrate convincing reasons why the existing rule "was originally erroneous or is no longer sound because of changed conditions." The litigant must also demonstrate "that more good than harm would result from a departure from precedent." Because Rambo did not brief this standard or argue that Kiehl should be overturned until oral argument, we conclude that he has waived this claim and stare decisis therefore governs his case.
Erickson v. State, 950 P.2d 580, 587 (Alaska App. 1997) (quoting State v. Dunlop, 721 P.2d 604, 610 (Alaska 1986)).
Id.
Petersen v. Mut. Life Ins. Co. of New York, 803 P.2d 406, 411 (Alaska 1990).
Conclusion
The judgment of the superior court is AFFIRMED.