Gordon v. State

• Decision Date: 09 September 2004
• Docket Number: No. 03-65.,03-65.
• Parties: Clinton GORDON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

97 P.3d 64

2004 WY 105

Clinton GORDON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 03-65.

Supreme Court of Wyoming.

September 9, 2004.

Representing Appellant: Ken Koski, State Public Defender, PDP; Donna D. Domonkos, Appellate Counsel; Tina N. Kerin, Senior Assistant Appellate Counsel; William B. Pilger, Student Intern; and Darcy A. Critchfield, Student Intern.

Representing Appellee: Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Director PAP; and Joshua D. Stensaas, Studen Intern PAP.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

KITE, Justice.

[¶ 1] After the district court denied his motion to suppress statements he made to law enforcement, Clinton Gordon entered a conditional plea of nolo contendere to a charge of taking indecent liberties with a minor in violation of Wyo. Stat. Ann. § 14-3-105 (LexisNexis 2003). With his plea, he reserved the right to appeal the denial of his motion to suppress. We find no error in the district court's denial of the suppression motion and affirm Mr. Gordon's conviction.

ISSUES

[¶ 2] Mr. Gordon claims the district court erred in denying his motion to suppress statements to law enforcement. The State asserts the district court did not error in denying the motion.

FACTS

[¶ 3] On the morning of January 9, 2002, in the course of investigating an allegation involving indecent liberties with a minor, Casper police officers interviewed BH, a fifteen-year-old female. BH informed police she had been living with Mr. Gordon, a forty-one year old male, on and off for the past ten months during which time the two had sexual relations.

[¶ 4] A short time later that same afternoon, police officers conducted an interview with Mr. Gordon. Detective Matt Waldock began the interview by reading Mr. Gordon his Miranda rights and having Mr. Gordon read and initial the waiver of his rights. Mr. Gordon read and initialed the waiver.

[¶ 5] During the first part of the interview with Detective Waldock, Mr. Gordon denied having sexual relations with BH. After questioning Mr. Gordon for thirty to forty-five minutes, Detective Waldock left the room for a short time and returned with Sergeant Chris Walsh and together the officers resumed the questioning. Approximately fifteen minutes into this part of the interview, Mr. Gordon indicated he "might need to talk to an attorney." The officers stopped the interview and were leaving the room when Mr. Gordon asked them if they would have allowed him to go home if he had answered their questions. Sergeant Walsh responded that Mr. Gordon probably would have gotten to go home if he had answered the questions. At that point, Mr. Gordon indicated he would talk. The police officers left the room but returned a few minutes later after Mr. Gordon began banging on the door and asking them to come back and talk to him.

[¶ 6] When the officers came back into the interview room, detective Waldock brought with him a form authorizing law enforcement to continue the interview at Mr. Gordon's request. He explained the form to Mr. Gordon, told him they could not make any promises and specifically told him they could not promise that he could go home if he talked to them. Mr. Gordon stated he still wanted to talk to them and signed the form. During the interview that followed, Mr. Gordon admitted to having sexual relations with BH. The officers placed Mr. Gordon under arrest and he was taken to the Natrona County Detention Center. During their interview of Mr. Gordon neither officer noticed any behavior suggesting Mr. Gordon was under the influence of an intoxicant. [¶ 7] When Mr. Gordon arrived at the detention center, officer Zachary Winter booked him into the facility. Officer Winter noticed Mr. Gordon was sweating, agitated and unsteady and asked Mr. Gordon if he was "on anything." Mr. Gordon responded that he had taken methamphetamine. Officer Winter reported this information to Diane Hilterbrand, the nurse who conducted a pre-incarceration assessment of Mr. Gordon, including an assessment for drug and alcohol use. From her observation of Mr. Gordon, Ms. Hilterbrand concluded he was intoxicated. She questioned him concerning drug use and he informed her that he had used methamphetamine that day.

[¶ 8] Earlier that same day, prior to his interview with law enforcement, Mr. Gordon also spoke with Carole Hardy-Ekstrom, a substance abuse counselor at New Horizons in Casper, Wyoming. She observed his behavior to be paranoid and irrational and asked whether he was under the influence of methamphetamine. Mr. Gordon also spoke to his boss twice that day. During those conversations, he made strange noises and gave unclear answers to questions.

[¶ 9] On January 10, 2002, the State filed an information charging Mr. Gordon with ten felony counts of indecent liberties with a minor in violation of § 14-3-105. At his arraignment on February 13, 2002, Mr. Gordon entered pleas of not guilty by reason of mental illness or deficiency and claimed he was not triable because of mental illness. The district court ordered Mr. Gordon to undergo a psychological evaluation at the Wyoming State Hospital. Based upon that evaluation, the examiner filed a report in which he concluded that Mr. Gordon was not suffering from mental illness or deficiency as defined by Wyo. Stat. Ann. § 7-11-304(a) (LexisNexis 2003)¹ and was competent to proceed under Wyo. Stat. Ann. § 7-11-302 (LexisNexis 2003)².

[¶ 10] Meanwhile, Mr. Gordon filed a motion to suppress the statements he made during the police interview, claiming they were inadmissible under the United States and Wyoming Constitutions because he was deceived into making statements that were not of his own free and deliberate choice and the statements were involuntary because he was under the influence of a controlled substance. The district court held an evidentiary hearing on the motion. Detectives Walsh and Waldock testified for the State. Mr. Gordon called Officer Winter, nurse Hilterbrand, substance abuse counselor Hardy-Ekstrom and Mr. Gordon's boss as witnesses. At the conclusion of the hearing, the district court denied the motion, finding from the totality of the circumstances that Mr. Gordon's statements were made voluntarily and he was not intoxicated to the point of being substantially impaired.

[¶ 11] Mr. Gordon was tried on July 9 through July 11, 2002, and found guilty by a jury on four counts. He filed a motion for new trial based upon improper comments made by the State during closing argument. After a hearing, the district court concluded the State's argument was inappropriate and granted the motion.

[¶ 12] On October 11, 2002, the district court held a change of plea hearing at which time, pursuant to a negotiated plea agreement, Mr. Gordon entered a plea of no contest to one count of taking indecent liberties with a minor conditioned upon his appeal to this Court of the order denying his motion to suppress. The State dismissed the remaining counts alleged in the information. Mr. Gordon was sentenced to a term of not less than 42 months nor more than 72 months in the Wyoming State Penitentiary with credit for 276 days previously served.

STANDARD OF REVIEW

[¶ 13] We apply the following standards when reviewing a district court's ruling on a motion to suppress evidence:

A trial court's ruling on a defendant's motion to suppress a statement on the grounds that it was involuntary, is reviewed de novo. In conducting such a review, we defer to the trial court's findings of fact unless those findings are clearly erroneous. This Court considers all the evidence in the light most favorable to the trial court's determination because the trial court has the opportunity to hear the evidence and to assess the credibility of witnesses. The Fifth and Fourteenth Amendments to the United States Constitution, and Wyoming Constitution Article 1, §§ 6 and 11, require that confessions be voluntary. A statement that is obtained by coercion is not trustworthy and may not be used at trial against the person who made it. A defendant is deprived of the right to due process of law if an involuntary statement is admitted at his trial. A statement is considered to be voluntary if the defendant of his own free and deliberate choice, and not because of intimidation, coercion or deception, makes it. The prosecution has the burden to prove, by a preponderance of the evidence, that a defendant's statement is voluntary. Edwards v. State, 973 P.2d 41, 48 (Wyo.1999).

Hannon v. State, 2004 WY 8, ¶ 12, 84 P.3d 320, ¶ 12 (Wyo.2004).

DISCUSSION

[¶ 14] Mr. Gordon relies on the following assertions to support his claim that his statements to law enforcement were involuntary and should have been suppressed: 1) he was in custody and not free to leave; 2) he was intoxicated on methamphetamine and incapable of understanding the consequences of waiving his Miranda rights; 3) he was not given the opportunity to confer with counsel; 4) he made the statements during an interrogation; 5) he made the statements in response to an overt or implied threat or promise by law enforcement officials; 6) the circumstances of the interview caused him to make involuntary statements; and 7) his mental condition rendered his statements involuntary. The State responds to Mr. Gordon's first assertion that he was in custody during the interview by "assuming for the sake of argument that he was in custody at some point during the interview." We, therefore, assume Mr. Gordon was in custody and do not address that assertion. Because Mr. Gordon's argument in support of his fourth assertion is simply a restatement of the argument he makes in his first assertion, we also address those issues as one. We address Mr. Gordon's second and seventh assertions as one because they are essentially the same argument — Mr. Gordon's statements were...