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Kalmakoff v. State

Court of Appeals of Alaska

January 16, 2009

Byron M. KALMAKOFF, Appellant,
STATE of Alaska, Appellee.

Page 1189

Margi A. Mock (opening brief) and Josie Garton (reply brief), Assistant Public Defenders, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.

Before : COATS, Chief Judge, MANNHEIMER, Judge, and STEWART, Senior Court of Appeals Judge.[*]



Byron M. Kalmakoff was convicted of raping and murdering a young woman in Pilot Point. At his trial, the State relied on statements that Kalmakoff made to the state troopers who came to Pilot Point to investigate the homicide. In this appeal, Kalmakoff argues that the statements introduced at his trial were the tainted fruit of violations of Kalmakoff's Miranda rights.[2] For the reasons explained here, we conclude that even though the troopers may have violated Kalmakoff's Miranda rights, the major portion of the challenged evidence was not tainted by these Miranda violations and was properly admitted at trial. We therefore affirm Kalmakoff's convictions.

Underlying facts-Kalmakoff's first interview with the troopers

On the afternoon of February 10, 2002, the naked body of a young woman, B.K., was found near the airport in Pilot Point, a small village on the Alaska Peninsula. B.K. had two gunshot wounds to her head. A later autopsy indicated that someone had engaged

Page 1190

in vaginal and anal intercourse with B.K. near the time of her death.

Following B.K.'s disappearance, the village public safety officer, VPSO Molly Etuckmelra, summoned the state troopers. Troopers John Shane Stephenson and Peter Mlynarik were dispatched to Pilot Point to investigate. By the time they arrived, B.K.'s body had been discovered.

B.K. had last been seen alive the evening Before , at a party at the house of Rick Reynolds. At the request of the troopers, VPSO Etuckmelra and the city manager contacted everyone who attended this party and asked them to come to the city office building to be interviewed. One of these people was fifteen-year-old Byron Kalmakoff.

The troopers conducted all of their interviews in the meeting room of the city office building-a large room (approximately 20 by 32 feet) that was well-lit, with several windows and two or three doors. Several collapsible tables were set up in this meeting room, and the two troopers conducted their interviews at one of these tables.

Late in the morning of February 12, 2002, acting at the direction of Trooper Stephenson, VPSO Etuckmelra drove to the Pilot Point school and, after alerting the principal, she picked up three teenage boys-Leon Neketa, Aaron Kalmakoff, and Byron Kalmakoff-and transported them to the city office building in her patrol vehicle.

Etuckmelra testified that, Before she transported Byron Kalmakoff from the school, she telephoned Byron's grandmother (and adoptive mother), Martha Kalmakoff. According to Etuckmelra, she told Martha Kalmakoff that the troopers wanted to talk to Byron, and Martha said that this was okay.

But at the evidentiary hearing in the superior court, Martha Kalmakoff testified to a different version of events. According to Martha, VPSO Etuckmelra never contacted her, and she had no idea that Byron was being interviewed by the state troopers until the mid-afternoon (after the interview was underway), when she received a telephone call from her daughter, Jackie Kalmakoff, who worked in the Pilot Point community center (the building next to the city office building). Martha's version of events was corroborated by the testimony of her daughter Jackie.

The superior court never resolved this conflict in the testimony.

The troopers' interview with Kalmakoff began at 1:35 p.m. on February 12th, and it lasted approximately one and a half hours. During this first interview, the troopers asked Kalmakoff to describe his whereabouts and activities on the night of the homicide.

Kalmakoff told the troopers that he attended a dance early in the evening, and that he drank a little whiskey there. Later, Kalmakoff and his friend Aaron Kalmakoff (the brother of the victim) went to the party at Rick Reynolds's house. Kalmakoff admitted that he drank some more liquor at the party.

Kalmakoff told the troopers that he and Aaron left the party around 2:00 a.m. and went to Aaron's house. Then, somewhere between 3:00 and 4:00 a.m., they left the house to check on Aaron's sister, B.K. The two boys first went to the home of Kalmakoff's aunt, Jackie Kalmakoff, but B.K. was not there. Jackie told them that B.K. had gone back to Rick Reynolds's house, so the boys went there.

When the boys entered Reynolds's house, the party had wound down and the house was quiet. They went upstairs and found B.K. lying on a couch, unconscious. Kalmakoff tried to wake her up, but initially she could not be roused. Then, when B.K. finally woke up, she needed to use the bathroom, so Kalmakoff went downstairs. Kalmakoff told the troopers that, a little later, B.K. got mad at the two boys and told them to leave the house-so they left.

At this point, however, the interview moved in a new direction. Kalmakoff admitted that, while he was downstairs in Reynolds's house, he went " snooping" and found a pistol. He picked up the pistol and took it outside. Kalmakoff also told the troopers that he picked up a box of ammunition for the pistol-although he repeatedly and consistently claimed that this ammunition consisted of blanks rather than bullets.

Page 1191

Kalmakoff declared that he and Aaron took the pistol back to Aaron's house, where they proceeded to fire it several times (using blanks). Then they returned the pistol to Reynolds's house and put it back where they had found it. Kalmakoff claimed that he later threw away the extra ammunition and the expended blanks ( i.e., the casings) in the trash.

In response to the troopers' follow-up questions, Kalmakoff denied that either he or Aaron had fired the pistol at Reynolds's house. Kalmakoff also denied that he ever used the pistol to scare B.K. And when Trooper Stephenson openly suggested that Kalmakoff had killed B.K., Kalmakoff immediately responded that he did not kill her, and that he did not know who did.

Shortly after this conversation, Kalmakoff left the room (apparently, to use the bathroom or get a drink). During this interlude, despite Kalmakoff's protestations of innocence, Stephenson told Mlynarik, " I think we're hot on the trail now."

The troopers turned the tape recorder back on at 2:20 p.m. At this point, the interview had been going on for 45 minutes (that is, since 1:35 p.m.). When Kalmakoff asked the troopers, " How much more time [are] we gonna be here?" , Stephenson replied, " a little bit [more]" .

The troopers asked Kalmakoff more questions about the pistol. Kalmakoff told them that he and Aaron each fired the pistol a half dozen times. When they got done firing the pistol, Aaron was the one who returned the pistol to Reynolds's house, and Kalmakoff was the one who threw the spent casings into the trash.

A few minutes later, the troopers asked to examine Kalmakoff's upper body (without his shirt), and they also asked Kalmakoff to show them the bottoms of his shoes. The troopers were interested in examining Kalmakoff's shoes (indeed, the shoes of everyone they interviewed) because they had found a distinctive shoe print at the crime scene. When Kalmakoff showed the troopers the bottom of his shoe, the troopers could see that the pattern on the sole of the shoe closely resembled the shoe print found at the crime scene. (Later, when they were walking around the village with Kalmakoff, the troopers confirmed that the tracks left in the snow by Kalmakoff's shoes were a close match to the shoe print found at the crime scene.)

Just after Kalmakoff displayed his upper body and the bottoms of his shoes to the troopers, the troopers asked Kalmakoff to lead them through the village to view the places that Kalmakoff had been describing during the interview.

At the conclusion of this tour, Kalmakoff asked the troopers, " Do I have to go back [to the city office building] again?" Stephenson replied, " Yeah, we're not even done...."

A little later, after they returned to the city office building, Stephenson seized Kalmakoff's four-wheeler, his shoes, and his coat and gloves as evidence. Stephenson also told Kalmakoff and his grandmother, Martha Kalmakoff, that he did not want Kalmakoff to go back to Martha's house or to his mother's house ( i.e., Ruby Moore's house) until the troopers give him permission-which, according to Stephenson, would be sometime that evening.

(The troopers wanted to keep Kalmakoff out of those places until they could get search warrants to examine the clothing and other physical evidence at these two homes.)

The first interview ended at this point. According to Martha Kalmakoff's later testimony at the evidentiary hearing, she and her daughter Jackie took Kalmakoff to the community hall-because the troopers had said that they did not want him returning to either Martha's home or his mother's home. They waited in the community hall until late in the evening. Finally, a trooper came by and spoke to Jackie; he told her that it was now okay for them to go home.

Underlying facts-Kalmakoff's second interview with the troopers

The following day (February 13, 2002), the troopers again asked Kalmakoff to leave school and talk to them at the city office building. This second interview began at 11:30 a.m. and lasted forty minutes.

Page 1192

This time, the interview was conducted by Trooper Stephenson and Trooper Craig Allen. At the beginning of the interview, Trooper Allen assured Kalmakoff that he was free to leave any time he wished. However, when Kalmakoff immediately announced that he did not want to talk to the troopers, the troopers refused to let him go, and they continued to interrogate him:

Allen: You don't have to sit here and talk with us, okay? You can ... go back to school whenever you want. You understand that?
Kalmakoff: Yeah.
Allen: The reason we [are] tell[ing] you that is so that you know that ... when you're finished talking to us, you just let us know and get up and ... go; we'll get you back to school. Okay?
Kalmakoff: I[can] go back right now if I want to?
Allen: Yeah, [you] sure can. Okay? Is that what you want to do? Or do you want to talk with us a little bit, so I can understand what's going on?
Kalmakoff: I feel like going back [to school].
Allen: Yeah. Okay. Is-is there any reason you don't want to talk to [us] about stuff ... that I'm going to ask you about?
Kalmakoff: I can't barely remember anything.
Allen: Can't barely remember anything?
Kalmakoff: Sometimes I black out.
Allen: Maybe if we talk a little bit, maybe I could help you remember some stuff.
Kalmakoff: I don't know. [I'm] sort of scared.
Allen: Yeah? What are you scared about, Byron?
Kalmakoff: That I did it.
Allen: You don't just wake up [one] day ... and wonder[,] " Did you do it?" ...You might have some things ... that you can really remember, [or things] that you saw the next day to make you think ... that. Right? And you probably have some of those ideas. You want to share those with me? ... And maybe ... we'll understand why this happened, okay? ... Wouldn't you like to be able to go to bed tonight knowing why something like this happened, rather than [it] just being something ... that you'll never have an answer to?
Kalmakoff: Yes.
Allen: Where do you want to start? You want to start with what happened to [B.K.]?
Kalmakoff: [I] can't really remember.
Allen: [You] can't really remember, but ... you've thought about it since then, haven't you? I mean, you might not remember every little detail, but you ... can talk with me about what happened, [about] what you can remember, can't you?
Kalmakoff: Can I just go back to school?
Allen: You can go back to school any time you want. We've told you that.... ...

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