Opinion
A-12908
06-09-2021
MERON EMAHAZIEN, Appellant, v. STATE OF ALASKA, Appellee.
Renee McFarland, Assistant Public Defender, and Beth Goldstein, Acting Public Defender, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Trial Court No. 3UN-16-00070 CR Unalaska, Steve W. Cole, Judge.
Renee McFarland, Assistant Public Defender, and Beth Goldstein, Acting Public Defender, Anchorage, for the Appellant.
Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
MEMORANDUM OPINION
HARBISON JUDGE
Meron Emahazien was convicted, following a jury trial, of first-degree vehicle theft. He now appeals, raising three arguments. First, Emahazien claims that the statements he made to private security guards, employed by the company who owned the vehicle he took, should not have been admitted into evidence against him because his statements to the security guards were not made voluntarily. Second, Emahazien argues that statements he subsequently made to a police officer should not have been admitted into evidence because the police officer did not give him Miranda warnings. Lastly, Emahazien argues that the trial court erred in sentencing him as a second felony offender.
AS 11.46.360(a)(1).
See Miranda v. Arizona, 384 U.S. 436 (1966).
We have reviewed the record in this case, and we conclude that the trial court properly admitted the statements Emahazien made to the security guards. We further conclude that any error in admitting the statements to the police officer was harmless beyond a reasonable doubt. However, we conclude that Emahazien should be resentenced as a first felony offender.
Background facts
In June 2016, Emahazien was working in Unalaska for UniSea at the company's seafood processing facilities. In the early morning of June 4, 2016, Emahazien drove and damaged a UniSea maintenance truck he was not authorized to drive. UniSea staff soon noticed the damage to the vehicle and began an internal investigation. They also reported the incident to the Unalaska police.
After reviewing footage from the company's security cameras, UniSea's safety and security supervisor, Juan Salazar, identified Emahazien as a suspect in the incident. Salazar and a second UniSea security guard went to Emahazien's dormitory room and found him asleep in his bunk bed at about 7:00 a.m. on June 4. Salazar then woke Emahazien. Because Emahazien's roommates were in the room, the two security guards took Emahazien to an unoccupied room next door to conduct an interview.
UniSea provided housing for Emahazien and its other employees in an on-site employee dormitory.
Salazar then asked Emahazien questions about the vehicle while the other security guard recorded the interview. Emahazien immediately admitted that he took the vehicle, and he retrieved the key from a pair of his pants and gave it to Salazar.
Later that day, a police officer responded to the UniSea facility to investigate the report. The officer and a UniSea security guard located Emahazien in the company cafeteria, near the soda fountain. The officer, who was armed and in uniform, instructed Emahazien to put down his tray and accompany him outside.
As the three were walking outside, the officer asked Emahazien if he knew why the officer was there. Emahazien responded that he thought the officer was there because of "the car situation." Once outside, the officer asked Emahazien several more questions, and Emahazien again acknowledged taking the vehicle. The officer then arrested Emahazien. Approximately four minutes elapsed between the officer's first contact with Emahazien and Emahazien's arrest.
Emahazien's statements to the security guards
Before trial, Emahazien filed a motion to suppress the statements he made to the UniSea security guards. Emahazien argued that the security personnel were acting as police agents and thus were required to advise him of his Miranda rights. The trial court rejected this argument, finding no state action sufficient to trigger this obligation.
Emahazien does not challenge the trial court's finding on appeal, nor does he renew his claim that the UniSea employees' failure to provide a Miranda warning rendered his statements to them inadmissible. Instead, he raises a new argument: that the nature of the questioning was coercive and rendered his statements involuntary. Emahazien contends that, under the Alaska Constitution, a defendant need not establish coercive police activity (or, indeed, any state action) to obtain suppression of a confession on the grounds that the confession was involuntary.
As support for this claim, Emahazien relies on this Court's opinion in Metigoruk v. Anchorage. There, the defendant moved to suppress statements he made to store security guards after he was detained for stealing the store's property. The trial court denied his motion, finding that the statements were voluntary and that Miranda was inapplicable to questioning by private security guards. When we affirmed the trial court's order, we noted that the defendant did not challenge the trial court's finding that his statements were voluntary and that the only issue on appeal was whether a Miranda warning was required. Relying on factors identified by the California Supreme Court, we concluded that private security guards, unless acting as "state agents," were not required to give Miranda warnings before questioning suspects. Emahazien now argues that we should apply those same factors to the issue not raised in Metigoruk - i.e., whether the defendant's statements were voluntary.
Metigoruk v. Anchorage, 655 P.2d 1317 (Alaska App. 1982).
Id. at 1318.
Id.
Id.
Id. at 1318-19 (citing In re Deborah C., 635 P.2d 446, 449-50 (Cal. 1981)).
Emahazien's claim relies on invocation of the exclusionary rule. Emahazien acknowledges that in Moreau v. State, the Alaska Supreme Court held that justice does not ordinarily require that the exclusionary rule be applied on grounds not otherwise urged in the trial court. But Emahazien argues that the preservation rule described in Moreau should be limited to Fourth Amendment claims and should not bar us from reviewing a claim involving an involuntary confession. He notes that, while claims based solely on violations of the Fourth Amendment do not call into question the integrity of the fact-finding process, the introduction of an involuntary confession implicates the integrity of the verdict at trial.
See Moreau v. State, 588 P.2d 275, 279-80 (Alaska 1978).
Schindle v. State, 731 P.2d 582, 585 (Alaska App. 1987).
But even if Emahazien may raise this claim for the first time on appeal, we question whether the Alaska Constitution would require suppression of a confession absent a claim of any state action in obtaining it. Moreover, our review would be subject to the plain error test, and Emahazien would only be entitled to relief if the claimed error had been obvious.
Adams v. State, 261 P.3d 758, 773 (Alaska 2011) (obvious error is error that "[would] have been apparent to any competent judge or lawyer").
Under this standard, we reject Emahazien's claim of error. There was nothing plainly obvious about the trial court's failure to adopt, sua sponte, a novel argument that was not brought to its attention before or during trial. And in any event, we have reviewed the video recording of the security guards' interview of Emahazien and conclude, based on the totality of the circumstances, that Emahazien's free will was not plainly overcome by the conditions of the interview or by the conduct of the security guards.
See Beavers v. State, 998 P.2d 1040, 1044 (Alaska 2000) (noting that in determining whether a confession is the product of free will, a reviewing court bases its conclusion upon the totality of circumstances surrounding the confession).
Emahazien's statements to the police officer
Emahazien also filed a pretrial motion to suppress the statements he made to the police officer. Emahazien argued that his statements were inadmissible because they were the product of a custodial interrogation, and the officer did not provide him with a Miranda warning. The trial court denied Emahazien's motion, finding that Emahazien was not subject to a custodial interrogation.
See Miranda v. Arizona, 384 U.S. 436, 471 (1966).
See Hunter v. State, 590 P.2d 888, 893-98 (Alaska 1979).
On appeal, Emahazien challenges the trial court's finding that he was not in Miranda custody when he made the statements to the police officer. We have reviewed the record and conclude that we need not reach this issue because any error in admitting these statements was harmless beyond a reasonable doubt. Emahazien's statements to the police officer were not substantially different from the statements he made to the UniSea security guards. Accordingly, even if the trial court's failure to suppress the statements was error, this error does not require reversal of Emahazien's conviction.
See Rockwell v. State, 215 P.3d 369, 374 (Alaska App. 2009).
Emahazien's sentencing claim
Emahazien's last claim on appeal is that the trial court erred in sentencing him as a second felony offender. The State concedes error. Based on our review of the record, we conclude that the State's concession is well-founded.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring that concessions of error in criminal appeals have legal foundation and be supported by the record).
The trial court considered Emahazien to be a second felony offender for purposes of presumptive sentencing because he was convicted of a felony drug offense in the state of Washington in 2007. Under AS 12.55.145(a)(1)(B), a prior conviction may be considered for purposes of presumptive sentencing if it has elements "similar to those of a felony defined as such under Alaska law at the time the offense was committed."
The Washington statute Emahazien violated, RCW 69.50.4013(1) (2007), provides:
It is unlawful for any person to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by this chapter.
Except for possession without intent to distribute forty grams or less of marijuana, violation of this section constituted a class C felony in 2007. And under Washington law, a "controlled substance" included all substances listed in Schedule I-V of federal or state law. As a result, under this law, possession of any quantity of a controlled substance except for small quantities of marijuana was a felony.
RCW 69.50.4013-.4014 (2007).
RCW 69.50.101(d) (2007).
By contrast, Alaska's 2007 statutes did not criminalize possession of all controlled substances as a felony. Instead, possession of certain small amounts of substances such as hashish, LSD, clonazepam, diazepam, and anabolic steroids was a misdemeanor offense.
Former AS 11.71.050-.180 (2007).
Moreover, the Washington felony drug statute Emahazien violated is a strict liability offense with no mens rea element. By contrast, Alaska's 2007 felony drug possession statutes required the State to prove, among other things, that the defendant knowingly possessed the controlled substance.
See State v. Bradshaw, 98 P.3d 1190, 1194-95 (Wash. 2004) (concluding that, under RCW 69.50.4013, possession alone, not knowledge of or intent to possess, is culpable conduct and declining to read a mens rea requirement into the statute); State v. Schmeling, 365 P.3d 202, 205-06 (Wash. App. 2015) (upholding constitutionality of the statute making drug possession a strict liability offense).
See AS 11.81.610(b)(1); Lampkin v. State, 141 P.3d 362, 365 (Alaska App. 2006).
Given these differences, we conclude that the Washington statute Emahazien violated in 2007 did not have elements "similar" to an analogous Alaska felony statute in effect at that time. We therefore agree with the parties that the trial court should not have considered the Washington conviction as a prior conviction for purposes of presumptive sentencing. We remand this case to the trial court with instructions to resentence Emahazien as a first felony offender.
Conclusion
We REMAND this case to the superior court and direct the court to resentence Emahazien as a first felony offender. The judgment of the superior court is otherwise AFFIRMED.