Petition for Hearing from the Court of Appeals of the State of Alaska, on appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Court of Appeals No. A-10870. Superior Court No. 3AN-06-11374 CR.
Appearances: Marjorie Mock, Contract Attorney for the Public Defender, Anchorage, and Quinlan Steiner, Public Defender, Anchorage, for Petitioner.
Elizabeth T. Burke, Assistant Attorney General, Office of Special Prosecutions & Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for Respondent.
Before: Fabe, Chief Justice, Stowers, Maassen, and Bolger, Justices. [Winfree, Justice, not participating.].
The superior court ruled that the prosecution could use Michael Wagner's police interview to impeach him if he took the stand at his murder trial. Wagner contends that the police violated his right to remain silent and that the court's ruling prevented him from testifying. But on this record, it is impossible to tell whether the court's ruling affected Wagner's decision not to testify, whether the prosecution would have impeached him with
his police statement, or whether this evidence would have affected the jury. We conclude that Wagner has not preserved his Miranda claim for appellate review.
Michael Wagner shot and killed his landlord, Steven Key, in October 2006. Wagner was living in the mother-in-law unit behind Key's house, and Key's body was found in that unit. Wagner has never denied responsibility for Key's death but has consistently claimed that the shooting was an accident.
On the night of the shooting, Wagner called Key reporting the smell of gas in the mother-in-law unit. Key walked over to the unit and stayed for about 13 minutes. Wagner called Key again about an hour later, and Key returned to the mother-in-law unit. Within seconds of his arrival, Key was shot once through the head.
Wagner called 911 almost immediately. He told the dispatcher that Key had been shot, and he claimed that the shooting " was a[n] accident. [I was] showing the gentleman a pistol and it went off.. .. He's on the ground. I can't do nothing about it. He's in the house.. .. I don't know what to do.. . ."
When the police arrived at Wagner's mother-in-law unit, they found Key's body on the ground by the door and Wagner sitting on a couch. An officer arrested Wagner, placed him in the back of a patrol car, and drove him to the police ...