Opinion
Court of Appeals No. A-12236 No. 6724
10-31-2018
LEROY BLAIR DICK JR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, 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. Trial Court No. 3DI-13-107 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Dillingham, Gregory A. Miller, Judge. Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge SUDDOCK.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Leroy Blair Dick Jr. appeals his conviction for the first-degree murder of a village public safety officer. Following Dick's arrest at the scene of the crime, an Alaska State Trooper gave Dick a Miranda advisement, and Dick then made incriminating statements. After Dick was transported to Dillingham, he was again given Miranda warnings, and he again agreed to speak with the troopers.
Dick moved to suppress these statements, arguing that, due to his low IQ and his difficulties with the English language, his waiver of his Miranda rights was not knowing and intelligent. After holding an evidentiary hearing, the superior court found that Dick validly waived his right to remain silent. We conclude that the court's factual findings are supported by the record, and we further conclude, based on those findings, that Dick validly waived his right to remain silent.
Dick also argues that the court erred when it failed to suppress Dick's response when, before Dick was given Miranda warnings at the scene, a trooper asked him, "What happened?" Dick answered that he shot the village public safety officer because the officer would not leave him alone. As we explain in this opinion, Dick did not present this suppression claim to the superior court; we accordingly conclude that this claim is not preserved for appeal.
But in any event, Dick repeated his pre-Miranda response after he received Miranda warnings, and Dick does not assert that his reiteration was tainted by his earlier un-Mirandized answer. Accordingly, any error in admitting the earlier statement was rendered harmless beyond a reasonable doubt by the admission of Dick's later repetition of that same statement.
Background facts
On March 19, 2013, Village Public Safety Officer (VPSO) Thomas Madole went to the home of Olga Dick in Manokotak (near Dillingham) for a welfare check following a report of domestic violence. After learning that Olga's son Leroy Dick had assaulted his stepfather, Madole walked to Dick's nearby house to speak with him. As Madole approached Dick's house, he turned on his audio recorder, which would soon record his own death by shooting.
Madole knocked on Dick's door, and Dick yelled from inside, "Get the fuck out of here." As Madole turned and walked away, Dick opened the door to his house, armed with a rifle. Dick yelled, "Take this," and fired six shots at Madole in quick succession. Dick then approached the fallen Madole, called him a "fucker," and fired a final shot into Madole's head.
Village health aide Melissa Paul was present at the nearby home of Dick's mother when she heard gunshots and became concerned for VPSO Madole's safety. She called Madole's cell phone, but he did not answer. She then telephoned the Alaska State Troopers in Dillingham. Troopers Victor Aye, Tim Tuckwood, and Jason Fieser immediately flew to Manokotak, arriving twenty minutes after Paul's call to them. They proceeded to Dick's home. Aye could see Madole's body on the ground outside of Dick's house, lying face up.
Trooper Tuckwood phoned Dick and said that he was looking for VPSO Madole. Dick responded that he had killed Madole, and that Madole's body was outside the house by a tree. Dick agreed to come out of the house; when he did so, the troopers arrested him: Trooper Tuckwood ordered him to kneel, and then he handcuffed Dick's hands behind his back.
While Troopers Tuckwood and Fieser secured the scene, Trooper Aye asked Dick why he had blood on him, whether there was anyone else inside the house, and what had happened. Then Aye read Dick the Miranda warnings. Dick agreed to answer questions, both at the scene and later, after he was transported to Dillingham.
Why we uphold the judge's findings regarding the validity of Dick's waiver of his right to silence
Dick contends that the judge should have ruled that, due to Dick's low intelligence and his linguistic deficits in English (his second language), Dick's Miranda waivers at the scene, and later in Dillingham, were not knowing and intelligent.
In Miranda v. Arizona, the United States Supreme Court established the general rule that the statements a suspect makes during custodial interrogation are not admissible against them unless the suspect was first advised of their rights to silence and to the assistance of counsel, and unless the suspect knowingly and voluntarily waived these rights. A Miranda waiver is legally sufficient "if the record shows that the defendant 'had at least a basic understanding of the Miranda rights and what a waiver of those rights entailed.'"
Miranda v. Arizona, 384 U.S. 436, 444 (1966).
Forster v. State, 236 P.3d 1157, 1163 (Alaska App. 2010) (citations omitted).
In Forster v. State, we upheld a Miranda waiver by a defendant who was suffering from mental difficulties, based on the fact that the defendant was alert and able to articulate relevant facts and events during his interrogations. We concluded that this record sufficiently demonstrated that his Miranda waiver was knowing and intelligent.
Id. at 1163-65.
At the suppression hearing in the present case, Trooper Victor Aye testified that Dick appeared to understand Aye's questions at the crime scene without difficulty. Trooper Nasruk Nay testified that he gave Dick a second Miranda advisement before he interviewed Dick in Dillingham, and that Dick also responded to Nay's questions without apparent difficulty.
Dick did not testify at the suppression hearing. However, the defense presented the testimony of Dr. Bruce Smith, a psychiatrist who was retained by Dick's attorney to evaluate Dick.
In his direct testimony, Dr. Smith described some of Dick's intellectual and linguistic difficulties. According to Dr. Smith, Dick had a full-scale IQ of 81 (plus or minus 4), and Dick's understanding of English terminology was weak. But Dr. Smith never asserted that Dick's low IQ and his marginal proficiency in English rendered him unable to understand the Miranda warnings. In fact, Dr. Smith acknowledged on cross-examination that Dick had sufficient mental acuity to give an informed consent for his psychological interview.
Psychologist Lawrence Maile testified for the State. Dr. Maile had not interviewed Dick; he instead based his opinion on his review of Trooper Nay's interview of Dick in Dillingham. Dr. Maile testified that, twice during this interview, Dick's answers explicitly manifested his understanding that he controlled the progress of the interview — once when Dick said that he did not want to discuss a topic (what part of Madole's body Dick had targeted), and once when Dick explicitly authorized Nay to query him about a particular topic.
Superior Court Judge Gregory A. Miller found that the evidence at the suppression hearing supported the conclusion that Dick understood that he had a choice whether or not to talk. The judge concluded that Dick understood the importance of the Miranda advisement that he had received, and what it meant to give up the rights set forth in that advisement. Accordingly, the judge ruled that Dick knowingly and intelligently opted to give up those rights.
We have carefully reviewed the record of the suppression hearing. We conclude that Judge Miller's factual findings are well-supported by the record, and we affirm the judge's legal conclusion that these proven facts demonstrated that Dick's Miranda waiver was both knowing and intelligent.
The admission of the statements that Dick made in response to Trooper Aye's pre-Miranda questioning
As we explained earlier, when the troopers arrived at Dick's house, Dick agreed to come out of the house, and he was arrested. While Dick kneeled on the ground in handcuffs, Trooper Aye inquired why he had blood on him. Dick answered non-responsively. Trooper Aye asked Dick if there was anyone else in the house, and Dick replied that there was nobody else inside. Trooper Aye then asked Dick, "What happened?" Dick replied, "He came knocking around, so I shot him. I told him to leave. He said he's not going to stop leaving. [sic] [Indiscernible] tell the asshole to leave."
Trooper Aye moved Dick to a sitting position on the stairs of the house, searched him for weapons, and ascertained that Dick had put his rifle back into a gun cabinet. Trooper Aye then read Dick a Miranda advisement, and Dick agreed to talk with Aye.
Before trial, Dick's defense attorney initially sought suppression of the statements that Dick made to the troopers after he received the Miranda warnings, both at the scene and later in Dillingham. But the defense attorney filed a second suppression motion, asking the superior court to suppress Dick's statements to Trooper Aye before Dick received the Miranda warnings — arguing that these statements were the product of custodial interrogation that was conducted in violation of Miranda.
The superior court denied this motion on the basis that Trooper Aye's questions were proper "on-the-scene" questioning. See Pope v. State, where our supreme court held that an officer who newly arrives at the scene of a homicide can, for safety reasons, ask a suspect "information about what had happened" without first giving Miranda warnings.
Pope v. State, 478 P.2d 801, 804-05 (Alaska 1970). --------
In the present appeal, Dick concedes that, with one exception, all the questions that Trooper Aye asked Dick before reading Dick the Miranda warnings related to a public safety emergency and so were proper. (These were the questions regarding the presence of blood on Dick, whether anyone else was present in the house, and the location of Dick's rifle.)
But Dick contends that one of Trooper Aye's questions — "What happened?" — was not necessary for public safety purposes, since the troopers already knew what had happened: that is, they knew that Dick had shot and killed Officer Madole.
When this issue was litigated in the superior court, the judge concluded that even the question "What happened?" was proper on-the-scene questioning — on the theory that "the troopers were still trying to get the lay of the land and see if there were other potential shooters, weapons, et cetera." But we need not resolve whether the superior court's ruling was correct, because we are convinced that any error in admitting Dick's answer to this question was harmless.
Although Dick's attorney asked the superior court to suppress Dick's pre-advisement responses, the defense attorney did not argue that Dick's responses tainted the later identical responses that Dick gave to the troopers after he received Miranda warnings. And we have upheld the superior court's ruling that Dick's post-advisement responses were voluntary and properly admissible. Thus, even if the superior court should have suppressed Dick's answer to the question, "What happened?" Dick was not prejudiced by the admission of evidence that, earlier, he said the same thing that he later said after receiving Miranda warnings. Any error in the challenged ruling was harmless beyond a reasonable doubt.
Conclusion
We AFFIRM the judgment of the superior court.