United States Court of Appeals

Fifth Circuit



## FILED

May 20, 2005

Charles R. Fulbruge III

Clerk 

## In the 

# United States Court of Appeals

for the Fifth Circuit

_______________



### m 04-20449

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellant,

VERSUS



### E RICA 

### C ARDENAS



### ,

Defendant-Appellee.



### _________________________

Appeal from the United States District Court

for the Southern District of Texas

______________________________

Before D AVIS

, S MITH , and D E M OSS

, Circuit Judges.

J ERRY E. S MITH , Circuit Judge:

In this case, we are asked to review the

decision of the district judge in pro c eedings

regard ing the prosecution of alleged participants in an alien smuggling conspiracy. The

judge ordered the suppression of one of two

statements made by the defendant, Erica

Cardenas, after her arrest.

The court suppressed the statement despite

the uncontradicted evidence that Cardenas repeatedly, voluntarily, and unambiguously had

waived her Miranda rights. 1 There is little

evidence of coercive police con duct, and to

the extent t hat the district judge found that

such conduct took place, her conclusion is

clearly erroneous.

Some of the government ’s behavior could

be considered sloppy, and consequ ent ly any

testimony relating the supposed admissions

glea n ed from the challenged interview is ripe

1 See Miranda v. Arizona

, 3 84 U.S. 436, 444

(1966).2

for impeachm

ent . Such issues of evidentiary

weight, however, have no bearing on Fifth

Amendment analysis. It was, therefore, patently incorrect as a matter of law for the

district judge to conclude t hat , viewing the

decision in

light of the totality of the circumstances, Cardenas’s waiver was involuntary.

I.

In May 2003, agents of United States

Immigrati o n and Customs and Enforcement

(“ICE”) were engaged in an ong o ing investigation of a large-scale alien smuggling organization operating out of the Rio Grande Valley

and bringing undocumented aliens from Mexico to Houston, Texas. On May 14, agents

from the Brown s ville ICE office contacted

agents from the McAllen office and requested

assistance in recovering a three-year-old alien

who had been separated from his m other.

Ba sed on information received via an undercover investigation, agents had learned that the

smugglers holding the child wanted t o make

the exchange of the child at the La Plaza Mall

in McAllen, Texas, near the Mexican border.

A.

At around 2:00 p.m. on Ma y 15, a m an

(later discovered to be Juan C i sneros) delive red the child to agents posing as the child’s

family at the mall. After Cisneros had returned

to his vehicle, tailed by undercover agents,

those ag ent s approached the vehicle to place

Cisneros under arrest. Upon approaching the

passenger side of the vehicle, agent R ichard

Serra observed a young woma n

, later identified as Cardenas, sitting in the vehicle holding

a young infant.

Cardenas exited the vehicle, and although

Serra still had hi s firearm drawn, Serra took

the infant from Cardena s

, backed away from

the car, handed his firearm to another agent (as

he was excoriated by a superior for his dangero us decision to handle both the gun and the

baby), and placed the infan t in an air-conditioned vehicle. Cardenas, Cisneros, and the

baby were transported to the McAllen border

patrol office. Sometime before 5:30 that

evening, all three were transported to the

Harlingen ICE office, at which point the infant

had been returned to Cardenas’s care.

Aroun d 6:00 p.m., Serra and agent Jose

Ovalle, Jr., began inter viewing Cisneros and

Cardenas. Cardenas and her infant were

brought to a desk in the processing area of the

office, w hich was equipped with a computer

(on which Ovalle would transcribe Cardenas’s

statements as she answered questions).

Cardenas was read her M iranda rights, a n d

after it was ascertained that the infant was hers

and not another smuggled child, she was

allowed to contact som eone to pi ck up the

child so that the baby would not have to be

placed into the custody of child pro tective

services. Cardenas reached a neighbor, who

arranged for a relative to come to the office to

pick up the baby.

After ar rangements were made, during

which time it became apparent that sh e was

proficient in English and Spanish, Cardenas

was again administered Mirand a warnings.

Ovalle read each section of the standard advice

o f rights form to her in Spanish. After each

line, Ovalle translated it into English. Cardenas, line-by-line, confirmed that she understood

her rights. During the next t wo hours, she

cooperated with the agents and answered

questions about th e smuggled child. At the

conclusion of the interview, the a g ents reviewed the statement with her, and she confirmed by her init

i als that i t was a correct

transcription.

There is no evidence that, a t any time that

day, agents coerced Cardenas to w aive her3

Miranda rights. During the interview, Cardenas was offered food and drink and was allowed

to tend to and feed her infant. She also told

the agents that she did not wan t to have an

attorney present and never indicated that she

did not wish to speak with them.

After the interview, Cardenas and the infant

were returned to a holding cell until a relative

arrived to pick

up t he baby . At that point,

Cardenas brought the baby to Cisneros to say

goodbye and then turned the baby over to the

relative. Because the Harlingen office did not

have overnight accommodations and the Marshal’s office in McAllen was closed for the

evening, Cardenas and Cisneros were brought

to the jail at the Harlingen Police Department.

B.

Between 7:00 and 7:30 the following morning, agents transported Cardenas and Cisneros

to the federal buil ding in McAllen for their

init ial appearance before a magistra te j udge.

Upon arrival there, Cardenas was taken to the

detention area on th e eighth floor. Because

the criminal complaint had not yet been completed, however, Cardenas was not able to be

placed on the 9:00 a.m. docket.

At t he same time, on the sixth floor (the

United States Attorney ’s office), the agents

and Assis tant United States Attorney

(“AUSA”) Luis Martinez discussed the investigation and the statem

ent given by Cardenas

the previous evening. Concluding that the

statement was not entirely accurate, Martinez

received authorization to seek further cooperation from Cardenas. According to the agents’

t estimony at the suppression hearing, the

agents asked Cardenas whether she wished to

speak to Martinez, and urged her to cooperate,

t elling her they believed her previous statement

was untruthful. Cardenas t hen indicated she

wished to speak to Martinez. Handcuffed, she was brought from the detention area to a

conference room in the U.S. Attorney’s office.

What occurred at this point is the matter of

some dispute. According to the government,

agents again read Cardenas her Miranda rights

from a form provided by the U.S. Attorney ’s

office. Allegedly, Cardenas told the agents she

understood her r i ghts and signed the waiver

form that included a waiver of her right to go

before a magistrate judge.

Despite this story, i.e., that the fo rm was

executed at the beginning o f the interview

(about 10:30 a.m.), the waiver form indicates

it was signed at 1:58 p.m. According to the

government, no time was init ially entered, and

1:58 was erroneously added later by one of the

agents. Apparently, however, the district

judge did not accept th is version, concluding

that “the totality of the evidence indicates that

the AUSA

. . . at 1:58 p.m., immediately

b efo re the scheduled 2:00 p.m. magistrate

docket, had the defendant sign the form waving her right to appear before the magistrate to

be advised of her rights by this neutral judicial

officer.”

Nevertheless, the record indicates, and the

district judge did not appear to disbelieve, that

when Martinez arrived in the conference room

, he reviewed with Cardenas her Miranda rights

“very, very carefully, very slowly, very deliberately.” Martinez testified that he advised

Car denas that she did not have to speak with

him but that anything she said could be used

against her in court, and that she could have an

attorney immediately if she wanted one, even

if she could not pa y for one. Nevertheless,

Cardenas chose to sp eak with Martinez and

declined to have an attorney present.

Ovalle asked most of the question s during4

this interview bu t did not electronically transcribe Cardenas’s answers. Instead, he testified that he took notes of t he interview from

which he created a report some thirty minutes

later. Despite taking notes while present,

Ovalle admits that he was not in the room for

the entire interview, but instead left the room

a few times to m ake and receive telephone

calls.

Although Serra and Martinez were present

for the entirety of the interview, Ovalle never

asked either person what was said in the interview during his absences. Suspiciously, both

Ovalle’s notes and those allegedly taken by

Martinez were shipped to the U.S. Attorney’s

office in Houston, where both sets of notes allegedly have been misplaced. The only written

account of the interview, therefore, is Ovalle’s

report written after the interview without full

knowledge of what was said.

According to the testimony of the agents

who wer e present for the interview, Cardenas’s statement at the U.S. Attorney’s office in

McAllen differed significant ly fr o m her statement made th e night before at the Harlingen

ICE office. In the second interview, Cardenas

allegedly conceded that she was with Cisneros

when they drove to a man named Don Victor’s

house to pick up the smuggled child. She

described Victor as a

“smuggler of people”

and admitted th at Cisneros was to be paid

$100 for delivering the child. Finally, according to Mart i nez, Cardenas admitted that she

“would get some benefit” fro m the payment

and realized that her conduct was wrong.

C.

On the eve of trial, the district judge held an

eviden t iary hearing to consider Cardenas’s

motion to suppress, in which Cardenas conceded that she executed mu l tiple Miranda

rights waivers, but she contends the waiv ers were the result of coercive and decept ive

police conduct. Concluding that Cardenas had

voluntarily waived her Miranda right s before

the first interview, t he district judge did not

suppress the statements made at that interview. With respect to the second interview,

however, the judge found that the conduct of

the government “agents was rife with int imidation, coercion, and deception.” Consequently, the judge did not believe that Cardenas had made a knowing and intelligent waiver

of her rights, so t he judge suppressed the

statements made at the second interview, then

stayed the trial pending t h e government’s

appeal of the suppression decision.

II.

A.

“‘In reviewing a ruling on a motion to

suppress a confession, we give credence to the

credibility choices and fact finding by the

district court unle ss they are clearly erroneous,’ but ‘the ultimate issue of voluntariness is

a legal question reviewed de novo .’ Likewise,

‘a district court’s determination regarding the

validity of a defendant’s waiver of his Miranda

rights is a quest io n of law reviewed de novo,

but t his court accepts the factual conclusions

underlying the district court’s legal determination unless they are clearly erroneous.” 2

B.

To counter the inherently coercive nature of

custodial interro g ation, under Miranda

, “the

prosecution may not use state m ents, whether

exculpatory

o r inculpatory, stemming from

custodial interrogation of the defendant unless

2 United States v. Solis

, 299 F.3d 420, 439 (5th

Cir. 2002) (quoting United States v. Mullin , 178

F.3d 334, 341 (5th Cir. 1999); United States v.

Garcia Abrego, 141 F. 3d 142, 171 (5th Cir.

1998)).5

it demonstrates the use ofprocedural safeguards effective to secure the privilege against

s elf-incrimination.” There is no talismanic

incantation of phrases required to satisfy the

strictures of Miranda

. See California v. Prysock

, 453 U.S. 355, 359 (1981). Nevertheless,

the Miranda safeguards are “most commonly

satisfied by giving the defendant the customary

Miranda w arnings: That he has the right to

remain silent, that anything he says can be used

against him in a court o f law, that he has the

right to the presence of an attorne y

, and that

an attorney will be provided for him if he

cannot afford to hi re one.” U nited States v.

Andrews

, 22 F.3d 1328, 1337 (5th Cir. 1994).

Despite these safeguards, custodial interrogation may still be used to elici t co nfessions.

Once adeq uat e warnings have been given, a

suspect may knowingly and intelligently waive

his Miranda rights and agree to answer questions. S ee

, e.g.

, id. Thus, alth ough one purpose o f the M iranda framework is to free

courts fro m deciding the voluntariness of a

confession under the t o tality of the circumstances, a similar task devolves on us to determine the voluntariness of a waiver. 3 A defendant’s waiver of his Miranda rights is effective only if voluntary.

The inquiry whether a valid waiver has

occurred “has two distinct dimensions.

First, the relinquishment of the right must

have been voluntary in the sense that it was

the product of a free and deliberate choice

rather than intimidatio n, coerci on, or dec eption. Second, the waiver must have been made with a full awareness of both the

nature of the right being abandoned and the

consequences of the decision to abandon it.

Andrews

, 22 F.3d at 1337 (quoting Moran v.

Burbine , 475 U.S. 412, 421 (1986)).

The voluntariness determination is made on

a case-by-case basis and is viewed und er the

totality of the circumstances surrounding the

interrogation. U

nited States v. Reynolds

, 367

F.3d 294, 298 (5th Cir. 2004). A crucial

a spect is the presence or absence of coercive

behavior on the part of the government. “[t]he

voluntariness of a waiver of [ Miranda rights]

has always depended on the absence of police

overreaching, not on ‘free choice’ in any

b roader sense of the word.” C onnelly v.

Colorado , 479 U.S. 157, 170 (1986).

C.

At the outset, we address the district

judge’s concern over Cardenas’ alleged waiver

of her right to appear before a magistrate

judge. To recap, the record demonstrates that

Car denas could not be placed on the Friday

9:00 docket because the complaint against her

had not been finalized. 4 With respect to the

3 See Missouri v. Seibert, 1 24 S. Ct. 2601,

2608 (2004) (noting that M iranda sprouted from

“ our concern that the ‘traditional to tality-of-the-circumstances’ test posedan ‘unacceptably great’ risk that involuntary custodial confessions would escape detection.”). 4 At oral argument it was suggested that perhaps Cardenas was improperly kept off of the 9:00

a.m. docket. Were this the case, suppression of her

statements made on the morning of May 16 might

be appropriate. See United States v. Causey

, 835

F.2d 1527, 1529 (5th Cir. 1988). Nevertheless the

uncontradicted testimony at the suppression hearing was that the delay was solely attributable to the

gov er nment’s need to complete the criminal complaint. Nowhere in the record does it appear that

Cardenas has ever challenged that ex p lanation until

oral argument on this appeal. We therefore accept

the district judge’s tacit determination that this first

delay was not the result of any improper behavior

(continued...)6

2:00 p.m. docket, the district judge found that

the government had succeeded, just two minutes before the 2:00 hearing, in persuading

Cardenas to w aive her right to appear before

the magistrate judge. According to the govern ment, at the 2:00 court appearance, a

representative of the Federal Public Defenders

office (t ho ugh he would not be formally appointed to represent Cardenas until the following Monday) agreed to pos tpone her appearance until after the weekend. Cardenas, for

h er part, argues that because the public defen der had not yet been appointed, he could

not effectively agree to such an extension.

It appears that in suppressing Carden as’s

second s t at ement the district judge relied, to

so me extent, on what she perceived as inappropriate behavior with respect to Cardenas’s

right to an init

ial appearance. Cardenas, on

appeal, contends that she did not voluntarily

waive her right to an appearance and, as a

result, the suppression of her sta t ement is

appropriate.

“A person making an arrest with in the

United States must take the defendant without

unnecessary delay before a magistrate judge

.

. . .” F E D

. R. C RIM

. P. 5(a)( 1)(A) (em phasi s

added). Where a violation of Rule 5(a) is

shown, the appropriate remedy is the suppression of any evidence obtained as a result of the

delay. Causey , 835 F.2d at 1529. 5

Nevertheless, assuming arguendo that Cardenas’s i n itial appearance was unnecessarily delayed, only evidence that resulted from the

delay would need to be suppressed. A defendant is not prejudiced where “[h]e had already

signed a confession and nothing happened in

the interval [caused by the unnecessary delay]

t o damage him or to affect his defense ad

versely.” Id.

By the district judge’s own findings of fact,

Cardenas’s second interview took place before

the waiver form (which contained a waiver of

the right to an appearance) was signed at 1:58

p.m. Thus, no evidence was elicited as a result

of the delay. Cardenas therefore can demonstrate no prejudice.

Even if we were to bel

ieve t hat Cardenas

was coerced at 1:58 into waiving her right to

a prompt a p pearance before a magistrate

judge, the suppression of her second statement

would not be an appropriate remedy, because

there would be no causal connection between

the two. Any references in the district judge’s

decision, or Cardenas’s brief, to the failure to

present Cardenas pr o mptly to a magistrate

judge are therefore beside the point and cannot

support the suppression of Cardenas’s second

statement.

D.

The district judge did not challenge the

validity of Cardenas’s w aiver of her rights

before the first interview. Presumably, therefore, the judge found that Cardenas had voluntarily made a knowing and intelligent waiver of

her rights to remain silent and to have counsel

present during questioning. This means that at

some po int between Thursday evening’s and

Frid ay morning’s interviews, Cardenas either

(1) forgot the natu re o r significance of her

rights or (2) chose to exercise th em but had

her will overridden by intimidation, coercion,

or deception. 4 (...continued)

on the part of government personnel.

5 Se e also Mallory v. United States , 354 U.S.

44 9, 453 (1957) (deeming it “necessary to render

inadmissible incriminating statements elicited from

defendants during a period of unlawful detention”).7

We have never held that a new recitation of

rights is required with everybreak in interrogation. We have found it “incomprehensible”

that over a three hour span the defendant went

from knowing and understanding the nature of

his rights to forget t ing them and therefore

making an unintelligent decision to speak to

police. E vans v. McCotter

, 790 F .2d 1232,

1238 (5th Cir. 1986). Here, neither the district

judge nor Cardenas has conte nded that a

similar onset of amnesia tookplace. Therefore, if Cardenas’s second waiver of rights was

involuntary, it must have been the result of the

conduct of the government, which the district

judge called “rife with intimidation, coercion,

and deception.”

Even without challenging any of the district

judge’s specific factual determina t ions, it is

difficult to see how the totality of the circumstances indicates Cardenas’s waiver was involuntary. The district judge reasonably determined that contrary to the agents’ t est imony,

Cardenas did not sign the written waiver form

until just before the 2:00 p.m. hearing. Nevertheless, it is undisputed that Ma rt inez orally

reviewed Cardenas’s Miranda rights with her,

the same rights she had waived the previous

evening. The district judge concluded,

Although he had the written waiver document available to him and, in fact, required

the Defendant to sign it, the AUSA did not

read the docu ment to the Defendant and

neglected to advise her that, by signing the

statement, she would also “give u p [her]

rights to appear before a Federal Magistrate

or other official for an init ial appearance

and to have such Magistrate or o t her official advise [her] of [her] rights, and make a

probable cause determination.” . . . In

fact, the totality of the e vidence indicates

that the AUSA took her statement in the

morning, after orally giving her some of her rights, and then, at 1:58 p.m., immediately

before the scheduled 2:00 p.m. mag istrate

docket , had the Defendant sign a form

waiving her right to appear before the

Magist rate to be advised of her rights by

this neutral judicial officer.

(Brackets and emphasis in original.)

The record contains uncontroverted t esti

mony that the oral recitation of what the

district judge du bbed “some” of the defendant’s rights included her right t o remain

silent, her right to an attorney

, and the right to

have an attorney appointed free of charge.

The record also indicates, without any contradicting testimony, that Cardenas said s h e

understood thes e rights and still wished to

speak with Martinez. In fact, the only right

that was not discussed with Cardenas was her

right to an init

ial appearance. Yet, as we have

shown, no prejudice resulted from any delay in

bringing Cardenas before the magistrate judge.

Because the second interview took place in the

morning of May 16 and was completed before

the beginning of the 2:00 docket, no statement

was taken as a result of any unwarranted

delay.

Therefore, despite the district jud g e’s

conc lusion that Cardenas did not sign the

written waiver form u nt il 1:58 p.m. (after

giving her statement), the record demonstrates

that Cardenas (1) was twice read her Miranda

rights on the previous evening and voluntarily

wa ived t hem, and (2) was orally reminded of

those rights the n ext morning, at which time

she aga in chose to waive her rights. The

absence of the execution of the written waiver

form before to the second interview, therefore,

does not demonstrate t hat Cardenas waived

her rights involuntarily.

As other eviden ce o f police “intimidation,8

coercion, and deception,” the district judge

pointed to the fact that the government agents

accused her of lying in her first statement and

“warned her that the only way she could help

herself now was to talk

to the AUSA.” The

agents also encouraged her to cooperate with

the government as a witness. We have never

held that these so rts of customary police

tactics constitute s uch gross intimidation or

coercion so as to overcome a defendant’s free

will and render his statements inadmissable. 6

The district judg e also relied on the fact

that Cardenas remained handcuffed during the

second interview. Such basic police procedures as restr aining a suspect with handcuffs

have never been held to cons t it ut e sufficient

coercion to warrant suppression. 7

The district judge also placed emphasis on

the fact that, once the defendant was taken to the AUSA

for further interrogation, she was placed in

a chair and questioned in the presence of

four me n, including the AUSA and the

three agents. Three of these men were

present throughout the entire interview, but

on e 

### SS O valle 

### SS

was walking in and out of

the room

, discussin g t he case on his cell

phone in a manner that the Court perceives

was designed to intimidate th e Defendant

by suggesting urgency.

As a threshold matter, we know of no case in

which t he fact that the interrogating officers

were men or women has been determinative of

a statement’s admissibility. In fact, the adoption of such a presumption wo uld raise equal

protecti on concerns. 8 Without any reference

to even the ag ent s’ physical stature, let alone

any supposedly intimidating tactics employed,

the sex of one’s interrogators cannot serve as

the basis for suppression, at least not under the

facts of the present case.

N o more credence can be given to t h e

court’s emphasis on the number of agents

present. Were there only one agent present,

we might hear a defendant complain that the

absence of corroborating witnesses renders a

confession suspect. Indeed, the district judge

went on to argue t hat the lack of electronic

transcription of Cardenas’s sec o nd statement

militates toward suppressing it. This concern

would only be exaggerated by the presence of

merely one agent. 6 See United States v. Bell , 367 F.3d 452, 462

(5th Cir. 2004); United States v. Paden

, 908 F.2d

1229, 1235 (5th Cir. 1990) (“En couraging a

defendant to tell the truth, however, does not render

a statement involuntary.”); United States v . Ball ard

, 586 F.2d 1060, 1063 (5th Cir. 1978 )

(“[T]elling the [defendant] in a noncoercive manner

of the realistically expected pe nalties and encouraging her to tell the tr uth is no more than affording

her the chance to make an informed decision with

respect to her cooperation with the government.”);

United S tates v. Tatum, 1 21 F.Supp.2d 577, 587

(E.D. Tex. 2000) (“[E]ncouraging the defendant to

be honest is not so coercive as to render the defendant’s incriminating statements involuntary.”);

accord United States v. Nguyen

, 155 F.3d 1219,

1223 (10th Cir. 1998).

7 See United States v. Rico

, 51 F.3d 49 5, 507

(5th Cir. 1995); United States v. Ogden

, 572 F.2d

501, 502 (5th Cir. 1978) (“The fact that defendant

was wearing handcuffs does not indicate or even

suggest that he was coerced.”). 8 See Caban v. Mohammed

, 441 U.S. 380, 398

(1979) (“[G]ender-based statutory classifications

deserve careful constitutional examination because

they may reflect or operate to perpetuate mythical

or stereotyped assumptions about the proper roles

and the relative capabilities of men and women that

are unrelated

to a ny inherent differences between

the sexes.”).9

Furt hermore, under the district judge’s

logic, the use of a cell phon e during an interview with a suspect contributes to a finding of

intimidation. We disagree. It cannot logically

be said that their use necessarily renders involuntary a de fendant’s decision to waive

Miranda rights. If anything, the use of a cell

phone by an interrogating officer might be

interpreted as a la ck o f interest in the goings

on of the interview and r emoves a sense of

urgency from the questioning.

The district judge also relied on the lack of

immediate transcrip t io n of Cardenas’ second

statement as further evidence of its involuntary

nature. That is, somehow, the judge believed

the lack of a written copy of the statement,

while obviously undercutting the we i ght of

such a confession, indicates that Cardenas’s

waiver of her Miranda rights was somehow

th e result of coercion or intimidation. On

appeal, Cardenas bu t t resses this argument by

p ointing out that several jurisdictions requir e

the rec o rding of interviews to ensure their

admissibilit y. 9 Neither t his court nor the

Supreme Court, however, has ever held that

such a requirement is necessary to comply with

the Fifth Amendment’s protecti on against selfincrimination.

Alth o ugh the testimony of a police officer

or prosecutor will often be believed over the

contradi ctory account of an accused, this is a

problem that goes to the weight to be given to

s uch evidence by the jury, not the vol untary

nature of one’s waiver of Miranda rights. In

fact, from the record, it does not appear

Cardenas would h ave any indication that her

statement would not be recorded at the time she waived her Miranda rights. Were we the

factfinder, we mi ght well be suspect of the

accuracy of Ovalle’s account of the second

interview, given his periodic absence from the

conference room

. Nevertheless, such questions are customary grist for the jury mill and

do not raise constitutional concerns.

E.

In conclu s ion, Cardenas was informed of,

and waived, her Miranda rights at least three

times before giving the second statement that

the district judge suppressed. Throughout this

time, the conduct of the government agents

was no more coercive or intimidating than can

regularly be expected from the very nature of

custodial interrogation. There is no indication

that Cardenas’s will was overridden or that she

did not understand the nature of the rights she

was waiving. Under the totality of the circumstances, therefore, the waiver of her Miranda

rights was voluntary, and the statement should

be admitted.

T he order of the district judge is

REVERSED, and this matter is REMANDED

for further proceedings in accordance with this

opinion.

9 See

, e.g., S tephan v. State , 711 P.2d 1156,

1161 (Alaska 1985); State v. Scales , 518 N.W.2d

587, 592 (Minn. 1994).