Garcia v. State, 88-98

• Decision Date: 24 July 1989
• Docket Number: No. 88-98,88-98
• Citation: 777 P.2d 603
• Parties: Glen Eddie GARCIA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 603

777 P.2d 603

Glen Eddie GARCIA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 88-98.

Supreme Court of Wyoming.

July 24, 1989.

Leonard Munker, State Public Defender, Gerald M. Gallivan, Director, Wyoming Defender Aid Program, and David F. Askman, Student Intern, argued, Wyoming Defender Aid Program, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Sr. Asst. Atty. Gen., and Mary B. Guthrie, Sr. Asst. Atty. Gen., argued, for appellee.

Before THOMAS, URBIGKIT, MACY and GOLDEN, JJ., and LEIMBACK, District Judge.

LEIMBACK, District Judge.

This appeal is from appellant's conviction for the burglary of a Cheyenne Convenience Plus store. A motion to suppress defendant's confession was filed prior to trial. A hearing was held, and the motion was denied. After the trial, defendant filed a motion for new trial contending that statements made by one juror to others during deliberations constituted an extraneous prejudicial presentation of evidence. This motion was also denied after a hearing on the matter. It is from this judgment and these denials that defendant appeals.

We affirm.

Appellant presents three issues for our determination which are as follows:

I. Did the trial court err in failing to grant the defendant's motion to suppress, by requiring the defendant to assume the burden of going forward, and in failing to make requisite findings of voluntariness?

II. Did the trial court err in admitting into evidence a confession not proven by a preponderance of the evidence to be voluntary?

III. Did the trial court err in denying appellant's motion for new trial based on the improper presentation of extraneous prejudicial evidence to the jury?

The State of Wyoming rephrases the issues in the following fashion:

I. Whether the district court correctly denied appellant's motion to suppress his confession?

II. Whether it was proved by a preponderance of the evidence that appellant's statement was voluntarily given?

III. Whether it was proper for the trial court to deny appellant's motion for a new trial?

The events leading up to appellant's burglary conviction transpired as follows. On the morning of March 21, 1987, the manager and the clerk of a Convenience Plus store in Cheyenne discovered that cash, checks, food stamps, and cigarettes had been taken from the store. Due to the fact that the store alarm had not sounded the previous evening and there was no sign of a forced entry into the store, the investigation suggested that the burglar had gained access to the store by using a set of store keys. The store clerk speculated that her keys were the ones used to gain access to the store because on the morning of the 21st they were not in the proper compartment in her purse and the front door to her home was unlocked, whereas it had been locked the previous evening. The clerk informed the police that her sister Juanita Taylor and her sister's boyfriend Glen Garcia knew where she kept the store keys. The police questioned Juanita Taylor about the burglary, but, due to lack of evidence, the case was closed on April 16, 1987. It was reopened after appellant confessed to committing the burglary.

A sequence of events occurred before appellant made his confession on July 25, 1987. First, Juanita Taylor was arrested and incarcerated on June 23, 1987, for aiding and abetting an auto burglary. Subsequently, a Cheyenne police officer conversed with Juanita's mother and told her that if Glen Garcia would talk to the police about his involvement in the Convenience Plus store burglary, it might help Juanita to be released from jail. At about 5:00 p.m. on June 24, 1987, Glen Garcia approached the officer outside of the police station and inquired about Juanita. Again the police officer reiterated that Juanita might be released if Glen chose to state what he knew about the burglary. The following morning, after proper Miranda warnings were given, Glen Garcia confessed to committing the burglary. On the same day, the charges against Juanita were dismissed, and she was released from jail.

I. The initial contention is that the trial court should have granted the appellant's motion to suppress because the prosecution did not assume the burden of going forward. Instead, the appellant was required to present his witnesses first.

This court recognizes that there is a clear distinction between the terms "burden of proof" and "the burden of going forward" with the evidence.

The phrase "burden of proof" is often used as meaning the necessity of establishing a fact to a legally required extent, or the necessity of finally establishing a fact.

Tench v. Weaver, 374 P.2d 27, 29 (Wyo.1962). The burden of proof never shifts from one party to the other at any stage in the proceeding. On the other hand, "going forward with the evidence" is a procedural obligation, and it can shift from party to party during the course of a trial. State v. Carter, 214 Kan. 533, 521 P.2d 294, 297 (1974).

The State always has the burden of proving by a preponderance of the evidence that the confession was voluntary. Dodge v. State, 562 P.2d 303, 308 (Wyo.1977). On the other hand, the movant at the suppression hearing may be required to go forward with the evidence. The logical and traditional order of proof is to allow the defendant to present his evidence on the issue of the involuntariness and then let the State rebut the issue. The Illinois appellate court has expressly approved this procedure, and we will follow suit and hold that the State has the burden to establish that the confession was voluntarily made. It is, however, within the sound discretion of the trial court to reverse the order of proof requiring the defendants to present evidence before the State. People v. Allen, 148 Ill.App.3d 200, 101 Ill.Dec. 514, 498 N.E.2d 838, 840 (1986).

Appellant argued that the trial court failed to make requisite findings of voluntariness. This court has held that where the evidence of voluntariness is seriously in dispute, the trial court must expressly find that the statements were voluntary. Frias v. State, 722 P.2d 135, 143 (Wyo.1986). If the finding of voluntariness can be ascertained from the record, the court need not make an express finding. Dodge, 562 P.2d at 310. The better practice is for the trial judge to expressly state that the statements were voluntarily made and why he determined that they were voluntary, rather than making a bold statement that the motion to suppress is denied. Dodge, 562 P.2d at 309. This is due in part to the fact that the resolution of conflicting evidence is within the province of the trial court, and its findings must be given great weight when considered in light of its opportunity to hear and observe the witnesses. Marken v. Goodall, 478 F.2d 1052 (10th Cir.1973).

Here, the evidence of the voluntariness of the confession was not in grave dispute; both Officer Olivo and appellant testified that the Miranda rights were properly waived. At the conclusion of the suppression hearing, the trial court denied the motion and stated that the "court finds that the constitutional rights of the defendant in this particular case, in the course of obtaining this confession, have not been violated." We conclude that the trial court did make an express finding that the confession was made voluntarily.

II. Appellant argues that his confession was not proven by a preponderance of the evidence to be voluntary.

The due process clause of the Fourteenth Amendment guarantees that no state shall "deprive any person of life, liberty, or property, without due process of law." The purpose of the clause is to exclude evidence that has been obtained in violation of the Constitution. Therefore, whenever the State obtains a confession it has the burden by a preponderance to demonstrate that the statement was not obtained in violation of the Miranda doctrine and that the statement was given voluntarily. Colorado v. Connelly, 479 U.S. 157, 163, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). A confession is not voluntary if extracted by threats or improper influences or promises. Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897); State v. Stotler, 168 W.Va. 8, 282 S.E.2d 255 (1981). Furthermore, the United States Supreme Court holds that coercive police activity is a necessary predicate to the finding that a confession is not voluntary within the due process clause of the Fourteenth Amendment. Colorado v. Connelly, 479 U.S. at 167, 107 S.Ct. at 522.

Under Connelly, once the evidence establishes official coercion, a court must consider the effect of that coercion on the defendant's choice to confess. Unless coercive conduct caused the defendant to confess, the defendant voluntarily confessed and his statement is admissible. Colorado v. Connelly, 479 U.S. at 157, 107 S.Ct. at 517. We recognize that coercion can be mental as well as physical. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205 (1964). Additionally, the use of tricks or factual misstatements in and of itself does not render a confession involuntary. There must be coercion involved, and a misstatement of fact is not coercion. While a misstatement may affect the voluntariness of the confession, the effect of misstatement will be considered in light of all the surrounding circumstances. State v. Manning, 506 So.2d 1094 (Fla.App.1987).

In the past, this court has applied a two-part test to determine if the waiver of the right to remain silent was made voluntarily, knowingly, and intelligently. 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 intimidation, coercion, or deception. Secondly, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Frias v. State, 722 P.2d at 142. In...