from the Superior Court, No. 3PA-07-2037 CR, Third Judicial
District, Palmer, Beverly W. Cutler, Judge.
AndrewSteiner, Bend, Oregon, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and Michael C.
Geraghty and Craig W. Richards, Attorneys General, Juneau,
for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats,
Senior Judge. [*]
Lewis Adams was convicted of murdering his girlfriend, Stacey
Johnston, and tampering with evidence to cover up the
homicide. In this appeal, Adams contends that various
statements he made to the police following his arrest were
obtained in violation of the Miranda rule and should
have been suppressed.
separate argument, Adams contends that the superior court
should have granted his motion for a new trial. Adams's
request for a new trial was based on a claim of ineffective
assistance of counsel - in particular, his trial
attorney's failure to raise a confrontation clause
objection to the State's expert testimony concerning the
cause of Johnston's death. The testimony in question was
given by Dr. Robert Whitmore, the state medical examiner. Dr.
Whitmore did not personally perform the autopsy; rather, the
autopsy was performed by another doctor-a doctor who died
before Adams's trial. In Dr. Whitmore's testimony
regarding the cause of death, he relied on observations made
by the other doctor. Adams now claims that, because Dr.
Whitmore relied on the other doctor's observations,
Whitmore's testimony violated the confrontation clause.
Adams argues that his sentence is excessive in one respect.
The superior court sentenced Adams to serve a total of 102
years in prison, and the court further ordered that Adams not
be eligible for discretionary parole release during this term
of imprisonment. Adams contends that the superior court
lacked justification for imposing this parole restriction.
reasons explained in this opinion, we reject Adams's
claims of error and we affirm the superior court's
relating to Adams's arrest and the first police
early morning hours of July 28, 2007, a gas station attendant
in Palmer called the police to report that a recent customer
- a man driving a small red car- was probably drunk.
According to the attendant, the man was driving south on the
Glenn Highway (i.e., toward Anchorage).
Palmer police officer located the vehicle and attempted to
conduct a traffic stop, but the driver would not stop.
Because the car was headed toward Anchorage, the Palmer
police contacted the Alaska State Troopers and the Anchorage
police, asking them to deploy spike strips on the highway.
The Anchorage police placed spike strips on the highway near
Peters Creek, and they were able to stop the car.
came to rest in a ditch alongside the highway. The driver -
Frank Adams - was initially slumped over the steering wheel,
but as the police approached the vehicle, Adams roused
himself and picked up a tire iron. Adams told the police that
he had crashed his small plane, and that his wife was dead.
Adams refused to comply with police commands, the officers
sprayed him with pepper spray and shot him twice with a
Taser. After Adams was subdued, the police looked inside his
car and saw what appeared to be a bundle of clothes. Upon
closer inspection, this bundle turned out to be the body of
initially transported Adams to the police station, and then
they took him to a hospital. While Adams was at the hospital,
a police officer overheard Adams telling one of the hospital
staff that he wanted a lawyer.
Adams was released from the hospital, the police brought him
back to the station. One of the officers who transported
Adams back to the station told State Trooper Sergeant Leonard
Wallner (one of the lead investigators in the case) that
Adams had said he wanted an attorney.
Sgt. Wallner inferred that Adams had said this directly to
the transporting officer - because later, when Adams's
suppression motion was litigated, Wallner testified that
"the information ... I was given was that Mr. Adams had
invoked his rights, his constitutional rights as far as legal
counsel", and that this invocation of rights "had
been conveyed to patrol officers that were with him."
on Wallner's testimony, the superior court premised its
decision on the purported fact that Adams had told the
officers who transported him from the hospital to the station
that he wanted an attorney.)
Adams was returned to the station, Sgt. Wallner and Anchorage
Police Detective Glenn Klinkhart (the other lead investigator
in the case) decided to speak to Adams and ascertain for
themselves whether Adams wished to invoke his right to
Wallner and Klinkhart entered the interview room, Adams
appeared to be sleeping. (It was now 5:40 a.m.) After the
officers awakened Adams, he told them, "I think I need
an attorney." The following exchange then took place:
Det. Klinkhart: Well, I wanted to just - I wanted to
Adams: [Well], I'm clarifying that.
Klinkhart: All right. So you-you don't want to
talk to me. You don't want to make any statements or say
anything? Okay. You've already been at the hospital. Do
you need anything else before we continue what we need to do?
Adams: This just isn't happening.
Klinkhart: Okay. All right. Well, ...
[The video recording shows that, at this point, Klinkhart and
Wallner began to leave the room, but Adams indicated - both
verbally and with a gesture of his head - that he wished to
speak to Sgt. Wallner.]
Wallner. You want to talk to me?
Wallner. Well, we can talk. But I'm going to
have to - you know, because you've already said [that
you] want an attorney...
Adams: Sir; yes, sir; no, sir.
Wallner: But I got to ...
Adams: I want an attorney, but I'd like [to]
talk to you [referring only to Wallner, not
Klinkhart] just a couple of minutes.
Klinkhart: You want - would you like me to leave,
Adams: Yes, sir.
Klinkhart: Okay. [The video recording shows that
Klinkhart immediately walked out of the room.]
Wallner: Okay. Well, what I'm going to do,
I'm going to read you your Miranda [rights]
here, okay. ...
[Wallner then advised Adams of his Miranda rights.
Adams acknowledged that he understood these rights, and he
told Wallner that he had no questions concerning them.]
Wallner: Now, you said you want a - okay.
Adams: I just want to talk to you for just a minute.
Wallner. Okay, that's fine. I -just go ahead;
I'll just listen.
point, Adams commenced a narrative description of the events
of the preceding several hours. Wallner's contribution to
the conversation consisted of numerous "okays" and
told Wallner that Stacey Johnston was his girlfriend, and
that they lived together in a cabin in Chickaloon. Adams was
absent from the cabin for a while, and when he returned, he
found Johnston "beat up" and dead. Adams told
Wallner that he tried unsuccessfully to revive Johnston with
CPR. When this was unsuccessful, Adams left the cabin and
went looking for the person who he suspected had killed
Johnston. Adams could not find this person, so he eventually
returned to the cabin, put Johnston's body in his car,
and started driving her "to town" (i.e.,
told Wallner that he and Johnston had recently tried to buy
drugs from some people, and the transaction had ended badly -
with the drug dealers threatening to kill them. Adams
suspected that these drug dealers had murdered Johnston.
little later in the interview, Wallner asked Adams if he
would allow the police to search his cabin. The following
Adams: Sir, without sounding bad or anything...
Adams: I don't know what to do ...
Wallner: Okay. Okay.
Adams: ...right now. I need an attorney.