David S. FORSTER, Appellant/Cross-Appellee,
STATE of Alaska, Appellee/Cross-Appellant.
[Copyrighted Material Omitted]
Josie Garton and Margi Mock, Assistant Public Defenders, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.
David S. Forster shot and killed a police officer. Forster moved to suppress the statements he made during several interrogations following his arrest, arguing that he was mentally incapable of waiving his Miranda rights  and that the interrogations that followed his first court appearance violated his right to counsel.
The superior court suppressed Forster's statements from the first interrogation after concluding that Forster's mental condition prevented him from knowingly and intelligently waiving his Miranda rights. The court also suppressed the statements Forster made in his final interrogation, ruling that he was questioned in violation of his right to counsel. Forster now argues that the superior court also should have suppressed his statements in the second, third, and fourth interrogations. We affirm the superior court's decisions that Forster was capable of a knowing and intelligent waiver during his second and third interrogations, and that Forster's first court appearance sufficiently dissipated the taint associated with the Miranda violation in his first interrogation. We also uphold the court's decisions that Forster waived his right to counsel before the second, third, and fourth interrogations.
On cross-appeal, the State argues that the superior court was required to impose a mandatory 99-year sentence even though there was no jury finding that the victim was a police officer engaged in official duties. We affirm the superior court's decision not to restrict Forster's good-time credit without a jury determination on this issue, but we conclude that the court was required to restrict Forster's eligibility for discretionary parole.
Facts and proceedings
On Christmas Day in 2003, shortly after 8:00 in the evening, Kenai Police Officer John Watson approached David Forster in the driveway of Forster's home to conduct a welfare check based on a report that Forster had been behaving strangely, was possibly driving under the influence, and that his fiancée, Crystal Hallman, who was with him, seemed upset and frightened. During this contact, Forster obtained Officer Watson's gun and shot him in the back and head. After the shooting, Forster retreated into his house until he was persuaded to surrender about five hours later.
Forster was ultimately convicted of first-degree murder for killing Officer Watson and of three counts of third-degree assault  for conduct involving Hallman and two of the officers involved in his apprehension. He was sentenced to a composite term of 101 years to serve, including a 99-year term for the murder.
After his arrest, Forster was advised of his Miranda rights and questioned several times by the state troopers. The first interrogation was conducted by Alaska State Trooper Investigator Jane Schied on December 26 at 12:11 p.m. at the Kenai courthouse shortly before Forster's first court appearance. Investigator Schied interrogated Forster a second time after his first court appearance, at 2:20 p.m. at the same location. The third interrogation was conducted by Investigator Schied on December 27 at 9:35 a.m. at Wildwood Pretrial Facility.
Forster initiated the fourth interrogation by telling a corrections sergeant at Wildwood that he wanted to speak with an investigator. This interrogation was conducted by Alaska State Trooper Investigator Dane Gilmore on December 28 at 11:08 a.m. Forster also initiated the fifth and final interrogation with Investigator Schied on December 30 at noon at Wildwood.
Before trial, Forster moved to suppress the statements he made during these interrogations, arguing that he was mentally ill and suffering from delusions when he was questioned and that he did not knowingly and intelligently waive his Miranda rights. He argued that the Miranda violations in each interrogation tainted his consent to later interrogations. He also argued that all the interrogations that took place after his first appearance before District Court Judge David S. Landry violated his Sixth Amendment right to counsel.
A hearing on Forster's suppression motion was held before Superior Court Judge Donald D. Hopwood. At that hearing, Forster offered evidence of his mental condition prior to the shooting and in the ensuing days when he was interrogated. He also presented the expert testimony of Dr. Susan LaGrande, a licensed clinical psychologist. Dr. LaGrande concluded that Forster had suffered a psychotic break and was not capable of providing a knowing and intelligent waiver until sometime after his last interrogation on December 30. She found that throughout the interrogations Forster was sleep deprived, clearly delusional, and responding to both auditory and visual hallucinations. She also opined that at the time that he was interrogated Forster did not fully comprehend that he was being charged with a crime, that he had the right to speak to an attorney, or what manner of legal assistance could be rendered.
The State relied primarily on the testimony of the troopers who had contact with Forster and on the content of the interrogations. The primary interrogator, Investigator Schied, conducted the first interrogation on December 26, and Forster spoke for most of that interrogation, about forty minutes, about the devil and how the devil had been
after him on the night of the shooting. But Schied testified that during this and later interrogations, when she asked Forster direct questions about the shooting, he was rational and able to answer her questions. Schied testified that Forster appeared to understand his Miranda rights and he said that he understood them.
Investigator Gilmore testified that he had contact with Forster before Investigator Schied interrogated Forster on the morning of December 26, when Gilmore advised Forster of his Miranda rights, and Forster declined to be interviewed. Investigator Gilmore did not meet with Forster again until December 28. On that date, Gilmore again advised Forster of his Miranda rights, and Forster agreed to talk. Gilmore characterized Forster as calm, cooperative, and responsive at that time.
After hearing the evidence, Judge Hopwood suppressed Forster's statements during the first interrogation with Investigator Schied on December 26, finding that Forster's disturbed mental condition prevented him from knowingly and intelligently waiving his rights. But Judge Hopwood found that Forster's mental condition improved quickly after he had rest and his stress lessened. Forster then began to demonstrate an " increasing understanding and sophistication about what was at stake and what he wanted to talk about, and how he could ... get information from the officers without giving them more information."
In subsequent interrogations, Forster was able " to assemble elaborate detail and lengthy descriptions of events[, m]uch of [which] was corroborated by other evidence," and he was able to detect inconsistencies and attempt to correct them. For instance, on December 28, after Investigator Gilmore confronted Forster with conflicts in his and his fiancée Hallman's statements, Forster called his friend Jesse Tubbs and told him to tell Hallman to be careful what she told the police.
Judge Hopwood found that Forster's mental condition had improved enough for him to knowingly and intelligently waive his rights during the second, third, and fourth interrogations. Applying the test in Brown v. Illinois,  he also rejected Forster's claim that his consent to these interrogations was tainted by the earlier Miranda violation.
Judge Hopwood suppressed Forster's statements in the fifth, and last, interrogation, finding that Forster was questioned in violation of his Sixth Amendment right to counsel because by that time he had filed a request for appointed counsel. Judge Hopwood also ruled that Investigator Schied violated Forster's rights to silence and counsel by continuing to question him after he invoked those rights.
Did Forster knowingly and intelligently waive his Miranda rights?
Forster argues that he did not knowingly and intelligently waive his Miranda rights during the second and third interrogations, mainly challenging the validity of his waiver before the second interrogation. As already explained, Judge Hopwood found that Forster's mental condition prevented him from knowingly and intelligently waiving his rights during the first interrogation, but he found that Forster validly waived his rights in the second interrogation, which began just fifty minutes after the first interrogation ended.
The State has the burden to prove by a preponderance of the evidence that Forster intentionally relinquished his Miranda rights.  We look at the totality of the circumstances in determining if the State met that burden. We must uphold the trial court's factual findings unless they are clearly erroneous, but we independently determine whether Forster's waiver was knowing
and intelligent, viewing the facts in the light most favorable to the judge's ruling.
The transcript of the second interrogation shows that Forster expressed a clear and unequivocal waiver of his Miranda rights. But Forster argues that he was suffering from delusions that made him incapable of a knowing and intelligent waiver. He asserts that he continued to be in " a highly disturbed state" during the second interrogation and that his purported Miranda waiver was " inextricably linked to his delusion."
We must first determine what level of understanding a mentally ill suspect must have of his Miranda rights to knowingly and intelligently waive those rights. Forster urges this court to apply the analysis in Adams v. State.  In Adams, we ruled that a mentally ill defendant was not competent to waive his right to counsel and represent himself at trial because " his paranoid delusions affected his perception of the evidence and fettered any ability to appreciate the extent of his own disability" such that he was " unable either to be fully aware of the risk of self-representation or to rationally conceive and coherently present a defense."  Forster relies on Adams to argue that a waiver of Miranda rights is not knowing and intelligent if the waiver is " inextricably linked to [the defendant's] delusion or psychosis."
Adams addressed whether a mentally ill defendant was capable of representing himself at trial. We do not believe that this analysis is appropriate to evaluate whether a defendant knowingly and intelligently waived his Miranda rights. As the United States Supreme Court recently explained in Indiana v. Edwards,  a defendant might be fully competent to waive rights, including the right to counsel, but still be " unable to carry out the basic tasks needed to present his own defense without the help of counsel." 
There are no Alaska cases directly addressing the claim that a waiver of Miranda rights was not knowing and intelligent because of mental illness.  Absent Alaska authority directly on point, Judge Hopwood applied the rule articulated by the Supreme Court in Colorado v. Spring  to assess whether Forster's Miranda waiver was knowing and intelligent. In Spring, the defendant expressly waived his Miranda rights but later moved to suppress his confession, arguing that his waiver was not knowing and intelligent because the police never told him he would be questioned about his involvement in a murder. The Supreme Court rejected Spring's claim, ruling that a knowing and intelligent waiver does not require that a suspect " know and understand every possible consequence of a waiver of the Fifth Amendment privilege."  The Supreme Court observed that Spring did not allege that he did not understand his Miranda rights or the consequences of speaking with law enforcement.
Similarly, in Moran v. Burbine  the Supreme Court held that the defendant's Miranda waiver was knowing and intelligent even though the police failed to inform him of his attorney's efforts to reach him prior to the interrogation. The Court explained that the constitution did not require the police to supply a suspect " with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his
rights" ; a waiver is valid as long as the " suspect's decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State's intention to use his statements to secure a conviction." 
Lower courts addressing a Miranda waiver by a mentally ill suspect treat mental illness as just one factor in the totality of the circumstances. Some courts have found that mental illness did not vitiate a facially valid waiver. Other courts have found that the defendant was too mentally ill to knowingly and intelligently waive Miranda rights. The general rule we discern from these cases is the one Judge Hopwood applied: A Miranda waiver is knowing and intelligent 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."  As Judge Hopwood emphasized, the defendant need not be " totally rational."
Judge Hopwood found that in the days before the December 25 shooting, and for a period of time after he was taken into custody early on the morning of December 26, Forster was " under stress, he was having difficulty thinking rationally, he was not connected to reality, he was exhibiting bizarre behavior and thought processes in patterns, he had audio hallucinations and was having difficulty functioning on a reality level and on a normal level." Prior to the first interrogation on December 26, Forster had been on suicide watch, he had complained he was cold, and he objected to being in jail with people he thought were crazy.
During that one-hour interrogation, Forster spent some forty minutes talking about " the influence of the devil ... and Satan, and these types of thoughts." He was incoherent at times, and he made " a lot of bizarre references ... that he was a prophet, that there were prophets at his house, there was the presence of Jesus there, [and that] his mother was a virgin." Judge Hopwood found that Forster's response to the Miranda warnings-" you give me my rights and I'll tell you what I'm feeling" -did not indicate an ...