Young v. State , 743 P.2d 941 ( 1987 )

OPINION

BRYNER, Chief Judge.

Mark Young was convicted, after a non-jury trial, of burglary in the first degree. He appeals, contending that Superior Court Judge James A. Hanson erred in denying a motion to suppress Young’s confession. We affirm.

Young first contends that his confession was involuntary. At the suppression hearing below, Young testified that, during the two to three days immediately preceding his arrest, he had gotten little sleep and had been drinking and ingesting various controlled substances, including cocaine, marijuana, and hallucinogenic mushrooms. Young claimed that his drug use and lack of sleep, coupled with a promise of leniency made by the trooper who interrogated him, impaired his ability to make a knowing, intelligent, and voluntary confession. After hearing Young’s testimony and a tape recording of Young’s confession, Judge Hanson rejected this claim finding in relevant part: “I’m satisfied here that the officer did not make any promises or assurances of the type that is forbid-den_ Clearly Mr. Young’s will was not overborne in any fashion.” Our independent review of the entire record convinces us that Judge Hanson did not err in reaching this conclusion. See State v. Ridgely, 732 P.2d 550, 557 (Alaska 1987).

Young additionally contends that suppression was required because his interrogation was not recorded in its entirety. Young relies on Stephan v. State, 711 P.2d 1156 (Alaska 1985).¹ Stephan reaffirmed the requirement that police record custodial interrogations in their entirety when they occur in a place of detention. Under Stephan, an unexcused breach of the recording requirement will generally result in suppression of evidence obtained in the course of the interrogation. Nevertheless, this general rule of suppression is not without exception: where an interrogation is only partially recorded, suppression will not be necessary “if the unrecorded portion of the interrogation is, by all accounts, innocuous.” Stephan, 711 P.2d at 1165.

In the present case, Young was questioned for a total of approximately thirty-five minutes by Alaska State Trooper Charles Tressler. Tressler did not begin recording the interrogation until Young indicated that he was prepared to confess ten minutes after the questioning began. The recorded portion of the interview lasted about twenty minutes and was followed by five or six minutes of unrecorded conversation. The unrecorded portion was thus approximately fifteen minutes in length. Judge Hanson found that there was no justification for Tressler’s failure to record the initial ten minute segment of the interview. This finding is not challenged by the state on appeal.

Nevertheless, because a significant part of the interview was recorded, there was ample evidence presented to enable the trial court to make an independent, objective decision as to the extent to which Young was impaired by lack of sleep and drug use. Judge Hanson found that Young was totally in control of his faculties. This finding is not clearly erroneous, and is supported by the recorded portion of the interview. Young does not contend that anything occurring during the unrecorded portion of the interrogation would have had any material bearing on the issue of his mental alertness. His exclusive claim is that a recording might have confirmed his testimony that Tressler made a promise of leniency.

Even if this were so, however, the recording would not have materially benefited Young, for Young’s own testimony, when fully credited, does not cast doubt on the voluntariness of his confession. Young testified that Tressler began the interrogation by reviewing the evidence the troopers had accumulated in the case. According to Young, Tressler then said that, “[I]f I confessed, it would go easier for me.” Young explained that, at that point,

[T]he only thing I had in mind was going back to the [jail] dorm. I didn’t even want to be in there, and I was tired, and ... this is an enemy to me, you know, and here I am, sitting with the drugs ... and here’s this guy sitting here asking me questions, you know. He kept telling me, well, I got this, this, and this, and this for you, and so I finally said, to hell with it, I did it. And he says, will you say that on tape? And I said okay.

When specifically asked how he was affected by the promise that things would go easier if he confessed, Young replied, “I don’t know. I just wanted to get out. You know.”

Young’s description of the promise of leniency must be considered in the context of the entire record in order to determine whether the likely influence of the promise was so great as to undermine the voluntariness of Young’s confession. Sprague v. State, 590 P.2d 410, 414 (Alaska 1979). Our independent evaluation of the record leads us to conclude that, assuming the promise was actually made, its effect on Young’s ability to make a voluntary confession was negligible. We agree with Judge Hanson’s finding that Young’s will was clearly not overborne.

Because Young’s own account of Tressler’s promise does not justify a finding of involuntariness, and because a tape recording of the entire interrogation would at most have corroborated Young’s testimony concerning the promise of leniency, there is no reasonable possibility that Tres-sler’s failure to record the entire interrogation resulted in the loss of any material evidence. Accordingly, the superior court’s denial of Young’s motion to suppress did not amount to error.²

The conviction is AFFIRMED.

1 . Young was interrogated prior to the issuance of the decision in Stephan, but after the supreme court issued its summary order reversing Stephan’s conviction. In considering Young’s argument in the present case, we assume, without deciding, that the holding of Stephan applies to his case.

2 . Young independently argues that the superior court erred in denying his motion to suppress the confession of his codefendant, Bernard Rus-si. Russi's confession was not used in evidence against Young at this trial. Accordingly, the issue is moot.