April 24, 2015
MICHAEL LOUIS WAGNER, Petitioner,
STATE OF ALASKA, Respondent
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 station. At the station, Wagner was taken to an interview room.
About an hour later, two homicide detectives arrived to question Wagner. The detectives read Wagner his Miranda rights, and Wagner indicated that he understood each right. The detectives then asked whether Wagner wished to talk to them, and Wagner responded:
Well, it sounds like if I do that you're gonna already make up a decision. I'm gonna need a lawyer then. I mean, if I say a bunch of stuff, I mean, if I don't know what I'm talking about or whatever, then I'm in a -- I mean, it was a pure accident. You know, I mean, I -- I just screwed up. I just bought the gun, blah, blah.
Shortly thereafter, Wagner stated:
I'd rather have a lawyer, 'cause that would be I think the only way, 'cause otherwise, 'cause -- I'm not there and if I say something, so -- about -- if I do, I don't know. I mean, it was [a] pure accident, man.
The detectives asked whether Wagner had an attorney or wanted a phone book to try to contact one. Wagner responded: " Uh, [what did] you mean, [if] I don't have [an] attorney, then one will be appointed?" The detectives answered: " No. What [will] happen is only if you're charged with a crime and then once you appear in court, you can request one or they'll appoint one for you. Right now, somebody's not charged with anything. There's nothing in the system that appoints you one."
Upon learning he had not yet been charged, Wagner stated, " Oh, well, then I'll tell you the whole thing, 'cause I'm not -- I thought you had to -- I thought you were already doing something, 'cause there's no problem for me.. .. It was a[n] accident." The detectives left the room for a few minutes and consulted with a prosecutor. When they returned, the detectives reiterated that no one had been charged, and that " until somebody is actually charged the court doesn't appoint an attorney." They also repeated that " it's still important that you understand that you do have the right to have an attorney present." Finally, they asked Wagner, " Would you like to contact [an] attorney or would you like to talk to us about what occurred?" Wagner replied: " I need no attorney. Just ask me your questions." The detectives then interrogated Wagner for the next hour and a half.
A grand jury indicted Wagner for first-degree murder, second-degree murder, and manslaughter. The indictment was later dismissed when the superior court ruled that Wagner had invoked his Fifth Amendment right to counsel before speaking to the detectives, that his statement was obtained after this invocation and in violation of Miranda, and that the indictment was based at least in part on this statement. Following this dismissal, a second grand jury indicted Wagner on the same charges without being presented with Wagner's statement to police.
Before trial, Wagner moved in limine to suppress the use of his statement for impeachment purposes if he chose to testify at trial. The superior court denied the motion, citing State v. Batts.
The superior court held a jury trial, and the jury convicted Wagner of first-degree murder. Wagner did not take the stand at trial, but he later testified and was cross-examined at his sentencing hearing about the circumstances of the shooting.
Wagner appealed his conviction, claiming the superior court erred by denying his suppression motion. The court of appeals affirmed the conviction, concluding that Wagner had failed to preserve his claim by declining to testify. Wagner filed a petition for hearing in this court, urging us to reject the court of appeals' preservation holding. He further argues that article I, section 9 of the Alaska Constitution prohibits the use of his statement for impeachment. We granted the petition in whole.
The court of appeals declined to consider Wagner's claim that the superior court erred by ruling that the State could use his statement to impeach his testimony. The court of appeals concluded that, under the preservation rule of Luce v. United States  and State v. Wickham, Wagner waived this claim by failing to testify. Wagner argues that the Luce/Wickham preservation rule should not have been applied to his case.
A. The Preservation Rule Of Luce v. United States And State v. Wickham
In Luce, the U.S. Supreme Court held, as a matter of federal procedural law, that " to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify."  The Court was concerned about the amount of speculation required to review an in limine ruling on the admissibility of impeachment evidence that is never introduced because the defendant declines to take the stand. And the Court articulated four specific reasons why reviewing such rulings would require an inappropriate degree of speculation.
First, in limine rulings are preliminary and " subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant's proffer."  The Court noted that this concern is particularly true regarding evidence of a criminal conviction because Federal Rule of Evidence 609(a)(1)(B) places a heightened burden on the prosecution, which must show that the probative value of the conviction outweighs its prejudicial effect. Because it
is difficult for a court to evaluate both the probative value and the prejudicial effect of proposed evidence in a factual vacuum, a preliminary ruling under Rule 609(a)(1)(B) is particularly likely to be reconsidered at trial.
Second, " an accused's decision whether to testify 'seldom turns on the resolution of one factor,' [and] a reviewing court cannot assume that the adverse ruling motivated a defendant's decision not to testify."  Though acknowledging that a defendant might make a commitment to testify in an offer of proof, the Court noted that " such a commitment is virtually risk free because of the difficulty of enforcing it." 
Third, a " reviewing court. .. has no way of knowing whether the Government would have sought to impeach with the prior conviction."  The Court noted that, particularly in cases where the Government's evidence is strong and where impeachment can be accomplished by other means, the prosecution may decide not to use contested evidence because of the increased risk of reversal on appeal.
Finally, " [e]ven if these difficulties could be surmounted, the reviewing court would still face the question of harmless error."  The Court noted that if in limine rulings on the admissibility of prior conviction evidence for impeachment were reviewable on appeal, then " almost any error would result in the windfall of automatic reversal; the appellate court could not logically term 'harmless' an error that presumptively kept the defendant from testifying."  The Court feared that in the absence of its preservation rule, defendants would introduce in limine motions " solely to 'plant' reversible error in the event of conviction." 
While Luce was decided on federal procedural grounds and was not binding on the states, we concluded in Wickham that " the justifications underlying the Luce rule apply with equal force to Alaska criminal practice."  We were further persuaded by the unanimity of the Luce decision and by the fact that a majority of state courts that subsequently addressed the issue adopted the Luce holding.
B. Application Of The Luce/Wickham Rule In The Present Case
Although the holdings of Luce and Wickham were limited to preliminary rulings regarding evidence of a prior conviction, we conclude that the concerns articulated in Luce and Wickham apply in the present case.
First, as in Luce and Wickham, the contested ruling here was preliminary, and the superior court could have revisited its decision if the State had moved to introduce Wagner's statement at trial. While we acknowledge that evidence of a prior inconsistent statement is not subjected to the heightened admissibility burden for evidence of a criminal conviction, all evidence must pass Alaska Evidence Rule 403's probative/prejudicial balancing test. Thus, at the time of the superior court's ruling, there remained a reasonable possibility that other evidence (such as Wagner's 911 call) could have been presented at trial and rendered Wagner's statement less probative than unfairly prejudicial. Indeed, such possibility is more likely in Alaska courts than in federal courts, because the burden for admitting evidence is heavier under Alaska Evidence Rule 403 than its federal counterpart.
Second, there is no way to determine whether Wagner would have testified if the superior court had granted his suppression motion. Wagner's suppression motion made no such indication, admitting that " [i]t is not known whether Mr. Wagner will choose to testify at trial." Wagner never filed an affidavit or other offer of proof asserting an intent to testify. And in his briefing to this court, Wagner does not suggest that he would testify at a retrial if we were to reverse his conviction.
We also find it significant that Wagner failed to mention the suppression motion during the two LaVigne inquiries the superior court held. During these inquiries, Wagner indicated that he had no questions for the court about testifying or not testifying. And at the end of the second inquiry, Wagner said he wished to waive his right to testify and that his waiver was not the result of any
threat or promise. Wagner's failure to mention the in limine ruling at the LaVigne inquiries is far from conclusive evidence that the ruling had no effect on his decision not to testify. However, these inquiries presented obvious opportunities for Wagner to state on the record that he would have testified in the absence of the threat of impeachment.
Third, we have no way to determine whether the State could or would have chosen to impeach Wagner with the contested statement if he had taken the stand. Wagner claimed in his motion to suppress that " there is little chance that Mr. Wagner will change his statement at trial." If this claim were true, then the State could not have used the contested statement for impeachment because there would have been no inconsistencies to impeach. And if Wagner's testimony at trial would have differed from his account on the night of murder, then the State would have been able to impeach Wagner's trial testimony using his 911 call instead of his statement to police. Because this evidence was available for impeachment, the State might have declined to use the contested statement and reduced its risk of reversal on appeal.
Finally, conducting a harmless error analysis in this case would be impossible. Even if we were to conclude that the trial court's in limine ruling was erroneous, we could only speculate whether Wagner would have testified absent that ruling, how he would have testified, whether the State would have impeached that testimony, and what effect that impeachment would have had. If Wagner would not have testified regardless, or if the State would not have used the contested statement, there could be no harm. Even if we assume that Wagner would have testified, we do not know the substance of his testimony. So even if he could have been impeached with the contested statement, we cannot know whether that impeachment would have affected the jury.
For these reasons, we conclude that the concerns articulated in Luce and Wickham are present in this case. Nevertheless, Wagner presents several arguments why we should reach the merits of his underlying claim without regard to the speculation required in doing so. We find these arguments unpersuasive.
First, Wagner argues that the constitutionality of impeaching a defendant's testimony using statements obtained in violation of Miranda is a purely legal issue. Wagner is correct to the extent that it is a pure question of law whether the Alaska Constitution ever permits the State to impeach a defendant's testimony using evidence obtained in violation of Miranda. But even if we were to reach this issue and decide it in Wagner's favor, the Luce/Wickham concerns would remain in full effect, and each of these concerns involves highly factual determinations. We would have no way to determine whether Wagner would have testified, whether the State could or would have impeached Wagner's testimony with the contested statement, and whether the impeachment would have been prejudicial. We do not rush forward to decide even purely legal issues in the abstract when it is impossible to determine whether a party suffered any actual harm.
Next, Wagner argues that the superior court's in limine ruling threatened his constitutional right to testify. But although the right to testify is an important constitutional guarantee, that right is little more threatened in the present case than it is in
other impeachment contexts. As the Michigan Supreme Court noted when it applied the Luce rule to a case also involving a Miranda claim,
[T]he constitutional implications present in Luce.. . [are present in] every case in which a defendant alleges that a trial court's ruling effectively prevented him from testifying.. .. Any ruling, even if on a mere evidentiary issue, necessarily affects a defendant's constitutional rights if it has a chilling effect on the exercise of the right to testify.
The court concluded, however, that this concern was outweighed by the Luce concern that appellate review not be based on hypothetical injuries and speculative harm.
Similarly, in Wickham, we " recognize[d] that [the Luce ] rule puts added pressure on the defendant to testify before a potentially prejudiced jury; the alternative being to [forgo] appeal of an in limine ruling which may be erroneous."  However, we noted that " the Luce rule ha[d] not been held to be violative of the federal constitutional right against self-incrimination, and we perceive[d] no conflict with the Alaska Constitution." 
In addition to his right to testify argument, Wagner claims that the police interrogation in this case violated his right to due process and the privilege against self-incrimination. He contends that, absent the ability to appeal, he " loses all hope of vindicating [these] claim[s]."
But this argument ignores two judicial safeguards already provided to Wagner as well as an additional safeguard he declined to seek. First, the superior court dismissed the initial grand jury indictment against Wagner, which the State had obtained using the contested statement. The State was therefore required to seek a new indictment without the use of the contested evidence. Second, the superior court prohibited the State from introducing Wagner's statement to the jury at trial in its case in chief, so the jury never heard the statement. And third, nothing prevented Wagner from filing a petition for interlocutory review to the court of appeals after the superior court denied his suppression motion. Though interlocutory review is " not a matter of right,"  such review is particularly appropriate in a case such as this, involving constitutional issues that would otherwise evade review. Because these judicial safeguards were present, we disagree that Wagner was precluded from vindicating his constitutional claims.
Finally, Wagner argues that his testimony could have made a difference because the evidence at trial did not " overwhelmingly" prove his guilt. But this argument assumes not only that Wagner would have testified, but also that his testimony would have helped his case. We cannot possibly determine the validity of these assumptions on appeal, especially because Wagner has provided conflicting indications of how he might have testified. In the memorandum accompanying his suppression motion, Wagner
claimed that there was " little chance" his testimony at trial -- if he were to testify -- would be inconsistent with his statement to the police. However, Wagner's testimony at his sentencing hearing was markedly different from the contested statement. Because we cannot know how Wagner would have testified at trial we cannot evaluate whether his possible testimony would have made any difference. And we decline to speculate about these issues in a factual vacuum.
On this record, we conclude that, by declining to testify, Wagner failed to preserve his Miranda claim for appellate review.
We therefore AFFIRM the court of appeals' decision affirming Wagner's conviction.