No.

14-1125-Cr

COURT OF APPEALS OF THE STATE OF ALASKA

STATE OF ALASKA,

Appellee

v.

TIMOTHY P. WILSON

Appellant

ON APPEAL FROM THE SUPERIOR COURT OF ALASKA

BRIEF FOR THE APPELLEE

Nadir Khan
Assistant Attorney General in
and for the State of Alaska,

County of Anchorage.
310 K Street, Suite 403
Anchorage, Alaska 99501
(907) 555-0322
Attorney for the Appellee

iii
 TABLE OF CONTENTS

Table of Contents ……………………………………………………………………….. i

Table of Authorities …………………………………………………………………….. iii

Questions Presented for Review………………………………………………………… 1

Statement of the Case …………………………………………………………………… 2

Standard of Review ……………………………………………………………………... 4

Summary of the Argument ……………………………………………………………… 5

Argument …………………………………………………………………………………5

I . Under the Totality of Circumstances Test, the Defendant’s Confession to Hansen

Was Not Coerced, Thus Making It Voluntary and Therefore Rendering it
Admissible………………………………………………......6

A. This Court Should Uphold the Trial Courts Ruling that the Defendant’s Confession, that
He Dumped his Fiancés Body in the Ocean was Voluntarily Made, as the Defendant’s
Will was Not Overborne by any Threats or Inducements During the Questioning,
Therefore Rendering his Confession to Not Have Been Coerced
……..………………………………………………………….............7

B. The Promise To “Fix Everything” Made by Hansen to Mr. Wilson

During the Questioning Does Not Make His Confession Involuntary, as
Promises Made During Questionings are Not Per Say Coercive ……………...9

C. The Defendant was Capable of Producing a Voluntary Confession When Questioned by

Hansen as the Length, Intensity, and Overall Atmosphere of the Questioning did Not
Cause the Defendant’s Will to be Overborn, Therefore the Defendant’s Confession was
Not Coerced.
………………………….………………………………………………..............11

 II. This Court Should Follow the Holding of Connelly, which Stated that Coercive
 Police Activity is a Necessary Predicate in Finding that the Defendant’s
Confession was Involuntarily Under the Due Process
Clause……………………………………………………………...………..…...13

A. This Court Should Adhere to the Plain Meaning of the Due Process Clauses in Both
the Alaska State Constitution as Well as the Federal Constitution. …...13

B. This Court Should Follow Colorado v. Connelly’s Holding Due the Fact That Alaska
as Well as Other States Have Already Favorably Cited Connelly…. 16

2
Conclusion ………………………………………………………………………………17

3
Table of Authorities

Cases
Aningayou v. State, 949 P.2d 963 (Alaska Ct. App. 1997) ...................................................................... 11
Beavers v. State, 998 P.2d 1040 (Alaska 2000) ............................................................................ 4, 7, 9, 11
Beltz v. State, 895 P.2d 513 (Alaska Ct. App. 1995) .......................................................................... 10, 16
Carney v. State, 249 P.3d 308 (Alaska Ct. App. 2011) ..................................................................... 8, 9, 10
Cole v. State, 923 P.2d 820 (Alaska Ct. App. 1996) ............................................................................... 4, 9
Colo. v. Connelly, 479 U.S. 157, 107 S. Ct. 515 (1986) ................................................................. 5, 13, 16
Commonwealth v. Cooper, 899 S.W.2d 75 (Ky. 1995) ............................................................................ 13
Doe v. Dep’t of Pub. Safety, 92 P.3d 398 (Alaska 2004) ........................................................... 4, 5, 14, 15
Edwards v. State, 842 P.2d 1281 (Alaska Ct. App. 1992) ....................................................................... 6, 8
Jones v. State, 65 P.3d 903 (Alaska Ct. App. 2003) ................................................................................... 8
Kenai Peninsula Borough v. Dep’t of Cmty. & Reg’l Affairs, 751 P.2d 14 (Alaska 1988) ..................... 14
Macauly v. State, 734 P.2d 1020 (Alaska Ct. App. 1987) .................................................................... 4, 17
Miller v. State, 18 P.3d 696 (Alaska Ct. App. 2001) ................................................................................ 10
Mitchell v. State, 767 P.2d 203 (Alaska Ct. App. 1989) ........................................................................... 14
Plant v. State, 724 P.2d 536 (Alaska Ct. App. 1986) .................................................................................. 8
Reynolds v. State, 88 Md. App. 197, 594 A.2d 609 (1991) ................................................................ 16, 17
S.B. v. State, 614 P.2d 786 (Alaska 1980) .......................................................................................... 10, 11
Smith v. State, 787 P.2d 1038 (Alaska Ct. App. 1990) ......................................................................... 8, 10
Sovalik v. State, 612 P.2d 1003 (Alaska 1980) ........................................................................... 6, 9, 10, 12
Sprague v. State, 590 P.2d 410 (Alaska 1979) ...................................................................................... 8, 11
State v. Bowe, 77 Haw. 51, 881 P.2d 538 (1994) ....................................................................................... 4
State v. Garrison, 128 P.3d 741 (Alaska Ct. App. 2006) ............................................................................ 8
State v. Gonzalez, 853 P.2d 526 (Alaska 1993) ........................................................................................ 14
State v. Ridgely, 732 P.2d 550 (Alaska 1987) .......................................................................................... 12
State v. Schwin, 938 P.2d 1101 (Alaska Ct. App. 1997) ............................................................... 15-16, 16
State v. Waterman, 196 P.3d 1115 (Alaska Ct. App. 2008) .................................................................... 7-8
Stobaugh v. State, 614 P.2d 767 (Alaska 1980) .................................................................................... 6, 12
Webb v. State, 756 P.2d 293 (Alaska 1988) ............................................................................................... 4

Other
Alaska Const. art. I, § 7 ............................................................................................................................. 14
U.S. Const. amend. XIV, § 1 .................................................................................................................... 14

4
 QUESTIONS PRESENTED FOR REVIEW

1. Whether Alaska Courts have provided broad protection under the state constitution’s Due
Process Clause, should reject Colorado v. Connelly which requires state action as a necessary
predicate to exclude a coerced confession. Meaning, whether Mr. Wilson’s (the defendant),
confession was coerced by Hansen (a private party) is admissible against Mr. Wilson at his
criminal trial.

2. Whether Mr. Wilson's confession to Hansen (a private security guard), who also happens to
be a family friend, which was made at the party was in fact coerced.

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 STATEMENT OF THE CASE

This Court is being asked to affirm the Superior Court of Alaska’s Order, which denied

Timothy Wilson’s (the Defendant’s), motion to suppress his confession, which was made to Mr.

Hansen, from being entered into evidence during his trial for the murder of his fiancé, Ms. Skye

Ambri (R. at 92). The lower court found that the State of Alaska satisfied its burden of proof by

showing that Mr. Wilson confessed voluntarily to Mr. Hansen under his own free will, as he was

nineteen years old at the time – old enough to understand Mr. Hansen’s questions, was not

intoxicated, and was given water and facilities to use.

Ms. Skye Ambri, Mr. Wilson’s fiancé for about a year disappeared, and Mr. Timothy

Wilson had been investigated by the police and had been subsequently charged with murder in

connection with her death. (R. at 6, L 20-23). On December 8th 2014, Mr. Wilson was on board

the Glacier Discovery Train for a retirement party for his father (R. at 7, L 2-4). At

approximately 4:30 PM, Mr. Wilson completed the tasks delegated to him by his mother and

then went to the bar and drank a whole bottle of beer, the last time he ate was during breakfast

that day. (R. at 8). Mr. Wilson then went out to the subway platform to greet party guests as Mr.

Hansen watched (R. at 9, L 2-14). At about 6:00 PM, Mr. Wilson sat down at the table and

proceeded to drink two glasses of red wine as well as water (R. at 13, L 1- 7). Mr. Wilson then

spoke to Ms. Tori Ricciardi, and in doing so commented on her hair (R. at 13, L 18). At 6:20

PM. Hansen intercepted Mr. Wilson as he came out of the men’s restroom (R. at 15, L 19).

Hansen stood in front of Mr. Wilson. Hansen then proceeded to casually put his hand around Mr.

Wilson’s shoulder and stated that he would like to speak to him (R. at 16, L 5-10). Mr. Wilson

knew Hansen due to the fact that he was related to his fiancé, as he was her mother’s cousin (R.

at 17, L 9-10).

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 Mr. Wilson had spoken to Hansen before about his fiancé’s death (R. at 21, L 12-15).

When Ms. Ambri disappeared, Hansen had been working as a police officer in Anchorage, and

walked Mr. Wilson through the process of the investigation (R. at 20, L 10-15). Hansen then

stated that he wanted to talk about Ms. Ambri’s death, and more specifically wanted to talk about

the inconsistencies with the story (R. at 20, L 7-9). Mr. Wilson told Hansen a couple of times

that he did not wish to talk (R. at 21, L 4-6). Hansen insisted that they talk about the death of Ms.

Ambri (R. at 21, L 9). Hansen took Mr. Wilson’s arm and guided him along the bar, towards the

kitchen (R. at 21, L 11). Hansen and Mr. Wilson sat in a small booth in the kitchen, and the head

chef, assistant, and bartender were also present in the kitchen at that time (R. at 22, L 21-23).

Hansen later picked up a knife and began to toy with it (R. at 24, L 2-3). At about 7 PM, Hansen

implied that Mr. Wilson was lying, while the cooks move around him with plates in preparation

for the main course (R. at 24).

About a half an hour into the questioning Hansen walked Mr. Wilson to the men’s

restroom (R. at 25). Both Hansen and Mr. Wilson then returned back to the kitchen (R. at 28, L

10-12). Hansen picked up a meat tenderizer, and sat down with it in his hand and occasionally

bangs it on the table (R. at 25). Hansen never raised the knife or the meat tenderizer in Mr.

Wilson’s direction, nor has he touched Mr. Wilson with the knife or meat tenderizer (R. at 37).

During the questioning Hansen tells Mr. Wilson that he can “fix it”, since he has friends in the

police department, if he, told the truth (R. at 29, L 1-2). Hansen states that he will get the truth

out of Mr. Wilson even if it takes all night (R. at 31, L9). At around 8:15 PM, Mr. Wilson asks

for water, and the waiter came over and gave him a cup. When Mr. Wilson asked for more water,

Hansen said no (R. at 31). Hansen stood over Tim in the booth and stated that he could smell a

liar (R. at 33). From 9:15 –9:30 PM, Hansen’s questioning of Mr. Wilson came to an end, and

3
Mr. Wilson asked to speak with his parents and Hansen states no (R. at 34, L 9). Hansen then

gave Mr. Wilson one more chance to confess or otherwise he stated that he will call the police,

and took out his cell phone (R. at 34, L 11). Mr. Wilson’s request to see his parents was denied

again (R. at 34). Hansen told him that Mr. Wilson would get a break, and the cops would not

“throw the book” at him if he confessed (R. at 35). Mr. Wilson confessed that he caused Skye’s

murder when he took Ms. Ambri on his dad’s boat, and put he body over the side on the way to

Fire Island (R. at 35, L 2). Mr. Wilson stated that he confessed because he was exhausted and

wanted to get off the train and go home, wanting all this drama to go way (R. at 35). Hansen then

called the police (R. at 35).

STANDARD OF REVIEW

On the issue of the voluntariness of the confessions and whether it was coerced or not,

the court reviews the judge’s finding of historical fact differentially, and will only overturn them

if clearly erroneous Beavers v. State, 998 P.2d 1040, 1043 (Alaska 2000). In determining the

accused’s mental state and its legal significance, however, the court conducts an independent

examination of the entire record and will base its conclusion upon the totality of circumstances

surrounding the confession Id. See also State v. Bowe, 77 Haw. 51, 881 P.2d 538 (1994); Cole v.

State, 923 P.2d 820 (Alaska Ct. App. 1996); Macauly v. State, 734 P.2d 1020 (Alaska Ct. App.

1987); Webb v. State, 756 P.2d 293 (Alaska 1988).

On the issue of the Due Process Clause, which is a constitutional claim meaning it is

strictly a question of law, the Appellate Court of Alaska applies the de novo standard of review

Doe v. Dep't of Pub. Safety, 92 P.3d 398,404 (Alaska 2004). In ruling on questions of law, the

Supreme Court of Alaska adopts the rule of law, which is most persuasive in light of precedent,

4
reason, and policy. The court applies its independent judgment in determining whether the

statute violates the Alaska Constitution Id.

SUMMARY OF THE ARGUMENT

In order for Mr. Wilson’s confession that he disposed of his fiancé’s body overboard a

ship to be admissible in court it must have been given voluntarily. Voluntariness is determined

under the the totality of circumstances, which takes into account a plethora of different factors

such as mentality, age, rigor of questioning, and overall atmosphere. The State met its burden by

a preponderance of the evidence that the confession was not coerced and was voluntarily made.

Under the totality of the circumstances during the questioning it was shown that Mr. Wilson had

his will intact, was of mental capacity, had the opportunity to ask for help, proving that his will

was not overborne. Mr. Wilson’s will was also not overborne when Mr. Hansen “threatened” to

“throw the book” at Mr. Wilson if he did not confess. Furthermore, it has been shown that Mr.

Wilson did not rely on the promise set forth by Mr. Hansen to “fix everything”, which does not

render the confession involuntary.

In regards to the overall question of whether or not Mr. Wilson’s confession was coerced,

the fact that Mr. Hansen was a private actor and not a state actor makes a significant difference

in favor of the State of Alaska. In Colorado v. Connelly, held that “coercive police action was a

necessary predicate to finding that a confession is not held to be voluntary in accords to the Due

Process Clause of the Fourteenth Amendment” Colorado v. Connelly, 479 U.S. 157, 107 S. Ct.

515 (1986). In the instant case, Mr. Wilson’s confession would not be deemed to be coerced by a

state actor /police officer, as Hansen is a private party. The Due Process Clause of Alaska is

identical to the Due Process Clause of the US Constitution. The Federal Constitution sets forth

5
the “floor” which is the minimum constitutional rights, which states must adhere by. Alaska’s

Due Process Clause should be interpreted according to its plain meaning and in accord with its

federal counterpart. In addition, this Court has cited Colorado v. Connelly, favorably on several

occasions and should require state action for due process to apply.

Overall, this Court should affirm the judgment of the lower court, which denied Mr. Wilson,

motion to suppress his confession.

ARGUMENT

I. Under the Totality of Circumstances Test, the Defendant’s Confession to Hansen

Was Not Coerced, Thus Making It Voluntary and Therefore Rendering it
Admissible.

Looking at all the different circumstances surrounding the questioning of Mr.

Wilson it can be deduced that he was not coerced by Hansen into confessing to the murder of

Ms. Ambri. In order for a confession to be entered into evidence it must be shown by a

preponderance of evidence that the confession was voluntarily made Stobaugh v. State, 614 P.2d

767, 770 (Alaska 1980). To determine whether the confession is voluntary made through one’s

own free will or was involuntarily made, being the product of a mind being overborn by

coercion, the court must consider the totality of circumstances Sovalik v. State, 612 P.2d 1003,

1006 (Alaska 1980) (citing Ladd v. State, 568 P.2d 960 (Alaska 1977). It is important to note

that the test in determining the voluntariness of a confession rests heavily on the subjective effect

of the police conduct on the suspect’s will Edwards v. State, 842 P.2d 1281 (Alaska Ct. App.

1992).

When applying the totality of circumstances test the court looks at many different factors

such as: “the age, mentality, and prior criminal experience of the accused, the length, intensity

6
and frequency of interrogation, the existence of physical depravation or mistreatment; and the

existence of threat or inducement” Beavers v. State, 998 P.2d 1040, 1043 (Alaska 2000). The

prosecution has the burden of proving the voluntariness of the confession through a

preponderance of the evidence Id. For a confession to be deemed voluntary, it must not be

obtained by any kinds of threats or violence, extortion of improper influence, and/or any direct or

implied promises Id. The general notion is that Alaska law presumes that every confession is

involuntary, giving the state the burden of proving that the confession was freely given and

voluntary in nature Beavers v. State, 998 P.2d 1040,1043 (Alaska 2000) (citing State v.

Strayhand, 911 P.2d 577 (Ariz. Ct. App. 1995)).

When evaluating the totality of the circumstances through a preponderance of the

evidence, involved in the questioning of Mr. Wilson by Hansen did not violate any of the

standards for confessions as threats are allowable as long as the defendant’s will was not

overborne, promises are also allowable so long as the defendant does not rely on them. Also, the

length, intensity and the atmosphere of the questioning by Mr. Hansen shed light on the fact that

Mr. Wilson’s confession was not coerced and was questioned for only two and a half hours,

given water and was able to use the facilities, and could have asked for help from the kitchen

staff if he needed to.

A. This Court Should Uphold the Trial Courts Ruling that the Defendant’s Confession,
that He Dumped his Fiancés Body in the Ocean was Voluntarily Made, as the
Defendant’s Will was Not Overborne by any Threats or Inducements During the
Questioning, Therefore Rendering his Confession to Not Have Been Coerced.

Confessions which have been produced by threats should be considered presumptively

involuntary, except when there is evidence affirmatively indicating that the suspect’s will was

not overcome by the threats Id, See also State v. Waterman, 196 P.3d 1115 (Alaska Ct. App.

7
2008); Edwards v. State, 842 P.2d 1281 (Alaska Ct. App. 1992); State v. Garrison, 128 P.3d 741

(Alaska Ct. App. 2006).

More specifically, when determining the voluntariness of a confession, an appellate court

must conduct an independent review of the record and consider the totality of circumstances

surrounding the confession Smith v. State, 787 P.2d 1038, 1039 (Alaska Ct. App. 1990).

Furthermore, not all improper police conduct, such as using threats triggers the per say rule that a

statement is involuntary. The officer’s deceit, or threats are merely one factor to be put into

consideration when analyzing the totality of circumstances Jones v. State, 65 P.3d 903, 907

(Alaska Ct. App. 2003) See also Sprague v. State, 590 P.2d 410, 411 (Alaska 1979); Plant v.

State, 724 P.2d 536 (Alaska Ct. App. 1986).

In Carney v. State, this Court agreed with the lower court’s ruling held that the plaintiff

did not rely on the police officer’s promise of not being prosecuted if he confessed to the murder,

which therefore made his confession voluntarily, free from coercion. The court further held that

along with the plaintiff having the mental and emotional capacity to understand what was going

on, he had the power to leave his first police interview Carney v. State, 249 P.3d 308,311

(Alaska Ct. App. 2011). In Edwards v. State, the Plaintiff argued that this confession given was

involuntary because he was threatened by police officers with an immediate arrest in regards to a

murder charge if he did not cooperate and talk to them Edwards v. State, 842 P.2d 1281, 1285

(Alaska Ct. App. 1992). While this interview turned into a custodial interrogation later on, the

plaintiff’s statements were still found to be made voluntarily made as his will was not overborne

by the threats as he was able to say nothing that “directly inculpate himself with the crimes”,

making a calculated effort to curb what he said Id.

8
 Mr. Wilson’s will was not overborne when Hansen questioned him. Mr. Wilson had

restraint as he resisted confessing to the murder of his fiancé for about two and a half hours,

which shows that the threats were not the cause of the confession (R. at 35, L10). If the threats

had been harsher Mr. Wilson would have confessed to the murder earlier into the questioning.

Mr. Wilson stated that he confessed at the end because he was exhausted from the questioning

and wanted to get out of the train and go home, hoping that this drama would go away, not from

being threatened (R. at 35). It is also important to note that Mr. Wilson had the opportunity to

ask the staff that was working in the kitchen for help to get out of this situation but he chose not

to do so (R. at 22, L 21-23).

B. The Promise To “Fix Everything” Made by Hansen to Mr. Wilson During the
Questioning Does Not Make His Confession Involuntary, as Promises Made During
Questionings are Not Per Say Coercive.

The promises made by Mr. Hansen to Mr. Wilson, to “fix everything” was permissible and

allowed to be made under The Constitution, especially since Mr. Wilson did not illustrate any

signs of reliance on the promise that Mr. Hansen set forth earlier in the questioning.

The usage of threats, trickery, and promises during questioning do not per se qualify as

being coercive Sovalik v. State, 612 P.2d 1003,1006 (Alaska 1980). The Federal Constitution of

the United States of America, does not altogether forbid the police from making promises to a

suspect under interrogation Beavers v. State, 998 P.2d 1040,1044 (Alaska 2000) (citing Cole v.

State, 923 P.2d 820 (Alaska Ct. App. 1996). Moreover, if during questioning a suspect does not

rely on a promise, and subsequently confesses, then the promise made to the suspect does not

render the confession involuntary Carney v. State, 249 P.3d 308,311 (Alaska Ct. App. 2011).

While it is stated that a “confession must not be obtained by any direct or implied promises,

however slight” it is important to note that this language is not applied literally, as the essential

9
test is “whether the officers’ promises were sufficiently compelling to overbear the suspect’s will

in light of all the attendant circumstances” Carney v. State, 249 P.3d 308,311 (Alaska Ct. App.

2011) See also Smith v. State, 787 P.2d 1038 (Alaska Ct. App. 1990); Beltz v. State, 895 P.2d

513 (Alaska Ct. App. 1995); S.B. v. State, 614 P.2d 786 (Alaska 1980). Meaning, even if the

police have engaged in improper conduct in order to obtain the confession, the confession is not

automatically withdrawn from being used at trial, as the Supreme Court of Alaska employs its

multi factor analysis also known as the totality of circumstances in which there is a possibility

that the confession may be admissible for use at trial Miller v. State, 18 P.3d 696 (Alaska Ct.

App. 2001). The caveat is that confessions which have been produced by trickery are in fact

deemed admissible, as long as “the device employed would have no tendency to produce an

untruthful confession” Sovalik v. State, 612 P.2d 1003,1006 (Alaska 1980).

In Carney v State, the Court of Appeals of Alaska ruled in favor of the trial court’s denial

of the defendant’s motion to suppress a confession from a police interview, due to the fact that

the confession was not produced in reliance to the officer’s promises 249 P.3d 308, 311 (Alaska

Ct. App. 2011). The defendant did not believe the officer’s promises of “not being prosecuted”,

he believed that they promised to not arrest him immediately after the interview at least until the

police completed their investigation Id.

The promise that Hansen made to Mr. Wilson to “fix” the problem by speaking with his

friends at the police department was permissible (R at.35 L 1-2). Meaning the promise did not

lend itself to produce an untruthful confession. It is also evident that Mr. Wilson did not rely on

the promise, as he was able to withhold confessing to the murder for two and a half hours (R. at

35, L10). If he had relied on the promise made by Hansen he would have confessed to the

murder earlier in the questioning. Mr. Wilson also knew that Mr. Hansen was no longer working

10
as a police officer, so his promise to “fix everything” in regards to the murder did not hold any

weight as he lacked any authority at the time as he was not employed by the Anchorage Police

Department anymore.

C. The Defendant was Capable of Producing a Voluntary Confession When

Questioned by Hansen as the Length, Intensity, and Overall Atmosphere of the
Questioning did Not Cause the Defendant’s Will to be Overborn, Therefore the
Defendant’s Confession was Not Coerced.

When questioned by Mr. Hansen, Mr. Wilson already was somewhat familiar with the

criminal system, being nineteen years of age he had the mental capacity to understand what was

happening, thus qualifying his confession on the totality of the circumstances to be voluntarily

made as his overall mental state was well.

Under the totality of circumstances, factors such as “the age, mentality, and prior criminal

experience of the accused, the length, intensity and frequency of interrogation, the existence of

physical depravation or mistreatment; and the existence of threat or inducement” are judged to

figure out if the confession was coerced Beavers v. State, 998 P.2d 1040,1043 (Alaska 2000) See

also Sprague v. State, 590 P.2d 410 (Alaska 1979); S.B. v. State, 614 P.2d 786 (Alaska 1980);

Aningayou v. State, 949 P.2d 963 (Alaska Ct. App. 1997). It is also important to note that the

courts apply an objective reasonable person standard test, to analyze if a reasonable person at

time of questioning would believe that they were able to stop the questioning or leave Aningayou

v. State, 949 P.2d 963, 967 (Alaska Ct. App. 1997).

In State v.Ridgley, the court of appeals held that Ridgley’s confession was voluntarily

made. Ridgley was sixteen, and only completed eight grade, had a spotty high school record, IQ

of 78, was on the borderline mentally deficient range, long history of drug use, as well as a

having under socialized aggressive reaction has been deemed by the psychiatrist in the case to

11
not be profoundly impaired both emotionally or intellectually 732 P.2d 550,554 (Alaska 1987).

The court also reasoned that Ridgley’s mental capacity was not that deficient to deem him to lack

mental capacity or impairment, based on the fact that he could exhibit persistence, imagination,

and had been manipulative for the duration of the four and a half hour interview Id. In Sovalik v.

State, the court held that it did not find anything sufficient to show that Sovalik’s free will was

overborne during questioning Sovalik v. State, 612 P.2d 1003,1006 (Alaska 1980). The plaintiff

was nineteen when questioned, had a low average intelligence level – read at second to forth

grade reading level, had been emotionally disturbed, as well as having had extensive exposure to

prior law enforcement authorities Id. The court in Stobaugh v. State, held that the statements

made by the plaintiff, who was allegedly under the influence of drugs while being interviewed is

still admissible and not coerced, as the Plaintiff was oriented to the time, place and

circumstances, was aware of his speech and knew who he had been talking to at the time

Stobaugh v. State, 614 P.2d 767,770 (Alaska 1980).

Mr. Wilson has had some experience and familiarity with the criminal system as he was

in contact with Hansen when Ms. Ambri disappeared. Hansen walked Mr. Wilson through the

investigation process (R. at 20, L 7-9). Also Hansen is Ms. Ambri’s mother’s cousin (R. at 17, L

9-10). It can be said that there is a level of familiarity between the two, to infer that Hansen did

not coerce a confession from Mr. Wilson, but rather was just having a conversation with Mr.

Wilson, as they are acquaintances.

Mr. Wilson’s overall mental state, age, and circumstances during the questioning do not

disqualify the confession from being deemed involuntary, As courts have found confessions

from people who were younger and in a worse mental state than Mr. Wilson was to be deemed

voluntarily. It is clear from the record that Mr. Wilson is mentally capable of understanding what

12
was going on as there is no indication of him having a mental illness or lacking capacity. It held

that he passed high school and made his way to college for a little while (R. at 10, L11-22). An

appeal from the order, found that the Superior Court found Mr. Wilson was at age of maturity at

nineteen years old and that he was not intoxicated to the point that it affected his ability to make

choices freely (R. at 92). It goes to show that Mr. Wilson meets the low mental capacity

threshold standard set by the preceding cases It is also clear from the record statements that Mr.

Wilson does not meet the high physical pain threshold as he was not under any physical harm or

pain when he produced his confession.

II. This Court Should Follow the Holding of Connelly, which Stated that Coercive Police
Activity is a Necessary Predicate in Finding that the Defendant’s Confession was
Involuntarily Under the Due Process Clause.

In Colorado v. Connelly, the United States Supreme Court held that coercive police

activity is the necessary predicate illustrating that the confession was involuntary under the Due

Process Clause Colo. v. Connelly, 479 U.S. 157, 107 S. Ct. 515 (1986). While it is clear that

confessions induced by promises and threats will not be deemed voluntary (unless the promise

was not relied on, and/or the threats did not overbore the suspect’s free will) the rule is

“generally the reverse in relation to confessions super induced by indifferent persons, acting

officiously, without any kind of authority; and confessions made under such circumstances will

be admitted in evidence Commonwealth v. Cooper, 899 S.W.2d 75, 80 (Ky. 1995).

A. This Court Should Adhere to the Plain Meaning of the Due Process Clauses in
Both the Alaska State Constitution as Well as the Federal Constitution.

The Due Process Clause of Alaska is illustrated in the State’s Constitution under Art. 1

§7: and states “No person shall be deprived of life, liberty, or property, without due process of

13
law. The right of all persons to fair and just treatment in the course of legislative and executive

investigations shall not be infringed” Alaska Const., art.1 §7.

The Due Process Clause of the United States Constitution illustrates within the 14th

Amendment which states “No state shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor shall any state deprive any person

of life, liberty, or property, without due process of law” U.S. Const. amend. XIV, §1.

Comparing the language of the due processes clauses of both the United States

Constitution as well as Alaska’s state constitution leads to the realization that both clauses are

almost identical in nature, thus supporting the notion that the aims of both clauses are similar in

their overall goals of securing liberty for their citizens, and that their interpretation should be the

same as well. During trial if a litigant would prefer a provision of the state constitution to be

“interpreted at variance with its federal counterpart” the litigant must point to something in the

text, context, or history of Alaska’s Constitution that justifies a divergent interpretation, Mitchell

v. State, 767 P.2d 203,205 (Alaska Ct. App. 1989). When dealing with constitutional language it

is important to look at the underlying intent, which is gathered from the plain meaning of the

language State v. Gonzalez, 853 P.2d 526, 528 (Alaska 1993) citing (Baker v. Fairbanks, 471

P.2d 386 (Alaska 1970)). The purpose of Alaska’s Due Process Clause is to protect its citizens

from the abuses of government, and “not to protect political subdivisions of the state from

actions of other unites of state government” Kenai Peninsula Borough v. Dep’t of Cmty. & Reg’l

Affairs, 751 P.2d 14 (Alaska 1988).

The United States Constitution sets forth a “floor” of minimum mandatory protections

that must be adhered to by both the states and federal government Doe v. Dep't of Pub. Safety,

92 P.3d 398, 404 (Alaska 2004). The states however have the ability to extend these protections

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set forth in the federal constitution creating a “ceiling” in which they provide their citizens with

more rights than the federal minimum Id. While the states’ have the freedom to interpret the

constitutional protections set out by federal government, it is important to note the state’s liberty

to interpret is limited in the sense it cannot undermine the minimum protections which were

enacted in US Supreme Court decisions which interpret the federal constitution Doe v. Dep't of

Pub. Safety, 92 P.3d 398, 404 (Alaska 2004) citing (Todd v. State, 917 P.2d 674 (Alaska 1996)).

State courts are not bound by the US Supreme Court’s decisions regarding state constitutional

law, but in contrast they are bound by the Supreme Court’s decisions of federal law Doe v. Dep't

of Pub. Safety, 92 P.3d 398, 404 (Alaska 2004). In other words, the Alaska Supreme Court is the

highest/ final authority, which can decide if an Alaska statute, violates the state’s constitution Id.

The concept of personal liberty, more specifically having “total personal immunity from

government control” is the essential core of Alaska’s Constitution Id. While this right is not

absolute, as it is dependent on maintaining a balance of interests that changes with the

importance of the right infringed, the state of Alaska is held to a high standard of proof when it

encroaches on its citizens rights to liberty. Id. The state of Alaska, must show that there is both a

forcible government interest and a lack of less confining ways to achieve that interest Id.

In Stephan v. State, the Court expanded on what the Federal Constitution states because it

feared that it might have violated the defendant’s right to a fair trial as it did not record the

defendant’s statement, and there had been conflicting testimonies.

In our case at hand, the privileges that are deemed to be implicit against Due Process

Clause only regulate state action. Alaska’s state constitutional privilege does not “control the

conduct of private citizens or others not engaged in state action”, so the State of Alaska does not

have a particular interest in enforcing the privilege more rigorous Alaskan requirements State v.

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Schwin, 938 P.2d 1101,1106 (Alaska Ct. App. 1997). More specifically Alaska has not decided

yet on the issue of limiting its privilege to prohibit the use of statements “compelled by private

citizens or by persons who are not themselves subject to its strictures”, and since they have not

decided on this issue already it has no constitutional obligation to ensure its citizens and higher

level of protection than the Federal Constitution Id. Since Mr. Hansen is not a police officer or a

state official, he is not classified as a state actor, but a private party, and in the instant case there

are no conflicting testimonies as both Mr. Hansen and Mr. Wilson share a similar testimony.

Further, the question of coerced confessions done by private actors is not a constitutional

inquiry as it should be resolved in accord with the state laws that govern the admission of

evidence at trial. The evidentiary laws of the forum state should guide this question not the Due

Process Clause of the Fourteenth Amendment, as the goal of the Due Process Clause is to

prevent fundamental unfairness in the use of evidence Reynolds v. State, 88 Md. App. 197, 594

A.2d 609 (1991).

B. This Court Should Follow Colorado v. Connelly’s Holding Due the Fact That Alaska as
Well as Other States Have Already Favorably Cited Connelly.

Several Alaskan cases, as well as a couple of cases from other states have already

favorably citied the holding of Colorado v. Connelly, requiring that coercive police activity is a

necessary predicate in finding that a confession was involuntarily made 479 U.S. 157, 107 S. Ct.

515 (1986). In Beltz v State, it was held that a claim of involuntariness must rest on coercive

police activity 895 P.2d 513 (Alaska Ct. App. 1995); See also State v. Schwin, 938 P.2d

1101,1106 (Alaska Ct. App. 1997). Further another Alaskan case stated that “The United States

Supreme Court has now squarely ruled that coercive police activity is a necessary predicate” to

the finding that a confession was not voluntarily made, Macauly v. State, 734 P.2d 1020 (Alaska

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Ct. App. 1987). Two out of state cases also ruled that even “the most outrageous behavior by a

private party seeking to secure evidence against a defendant does not make the evidence

inadmissible” Reynolds v. State, 88 Md. App. 197, 594 A.2d 609 (1991) See also

Commonwealth of the N. Mariana Islands v. Shoiter, 2007 MP 20. This Court should follow the

holding of Connelly, as sis the other handful of states have previously done.

CONCLUSION

For all the foregoing reasons, The Court of Appeals should affirm the Superior Court’s denial of

Mr. Wilson’s motion to suppress the confession.

Nadir Khan

Nadir Khan, Esq.

Counsel for the Appellee
310 K Street, Suite 403
Anchorage, Alaska 99501
(907) 555-0322

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