McCrory v. State

• Decision Date: 15 December 1982
• Docket Number: No. 68864,68864
• Parties: John W. McCRORY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 725

643 S.W.2d 725

John W. McCRORY, Appellant, v. The STATE of Texas, Appellee.

No. 68864.

Court of Criminal Appeals of Texas,

En Banc.

Dec. 15, 1982.

Rehearing Denied Jan. 26, 1983.

M.P. Duncan, III, R. William Wood, Denton, for appellant.

Jerry Cobb, Dist. Atty., Denton, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CLINTON, Judge.

In his second ground of error, the appellant contends it was error to admit his oral statement of June 12, 1978, to John T. Holbrook, which was the "result of custodial interrogation." Finding merit in this contention, we are constrained to reverse.

An oral statement made by an accused as a result of custodial interrogation between August 29, 1977 and August 31, 1981, is admissible only for impeachment purposes and only when the statement is shown to comply with the version of Article 38.22, Sec. 3(a) and (b) which was in effect. The State, however, does not contend appellant's statement was admitted for impeachment, nor given in compliance with Sec. 3, supra, but instead, asserts it was admissible pursuant to Sec. 5 of Article 38.22, supra, because it did not "stem from custodial interrogation." ¹

The determinative issue thus presented is whether appellant was "in custody" at the time he made the oral statement. ² "[W]e find it difficult to formulate a general rule to distinguish custodial interrogation from non-custodial interrogation. A case by case approach in which the evidence is reviewed ... is deemed necessary." Ancira v. State, 516 S.W.2d 924, 927 (Tex.Cr.App.1974). Further, it is well settled that interrogation can be "custodial" even though a person may not be under formal arrest. ³ Id.; cf. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966) [wherein it was stated, "By custodial interrogation we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way " (emphasis supplied) ].

Therefore, in deciding whether particular interrogation was custodial, courts must consider numerous factors, in light of all the circumstances extant. With that responsibility in mind, we turn now to review the facts established on appellant's motion to suppress. Unless otherwise noted, events set out are undisputed.

In the early morning hours of June 3, 1978, the body of the teenaged victim was found. It was apparently later the same day that appellant, accompanied by his mother, came to the Denton County Sheriff's Office and reported that his fingerprints would be found on the victim's car. In a meeting with the Sheriff, Captain Dwight Crawford ⁴ and Texas Ranger Ralph Wadsworth, ⁵ appellant and his mother explained that the preceding night he had been having car trouble, so she was following him in another car. He pulled up to the place where the body of the victim and her car were later found, and stopped. He went to look at the other car, checked something under the hood then closed it. Both appellant and his mother insisted they had seen no one around.

Two days later, on June 8, appellant and his mother met Crawford and Ranger Wadsworth late in the evening at the Highland Village Police Department. The men left together in Wadsworth's car to go to the scene of the murder. Walking around in the dark, Crawford shined a flashlight on a steel stake in the ground "and at this time John McCrory asked the question, 'Is that where the body was found?' " Wadsworth stated that from that statement, "I felt like he had more knowledge of the crime," that appellant was the "best suspect" they had at that time.

The next day, June 9, a staff meeting of the District Attorney, Sheriff, Chief of Police and Ranger Wadsworth was held. At that time a question arose as to whether a warrant to arrest appellant should be obtained. Though the testimony conflicts slightly, it appears the District Attorney did not believe enough evidence had yet been assembled, and advised the group "it would be better to hold off and wait."

According to Captain Crawford, appellant was the "best [suspect] we had" and no one else was being actively investigated "like John McCrory was;" by that statement Crawford said he meant "that the focus of [the] investigation was on John McCrory at that time." Thus, Crawford had at some point during this time encouraged appellant to take a polygraph examination and offered to set it up should appellant decide to do so; apparently appellant had decided to do exactly that, for the next thing our record reveals is that on June 12, a Monday, appellant met Crawford at his office and rode with him to Dallas, arriving at the offices of Wayne Baker and Associates at approximately 9:15 a.m., where they also met Ranger Wadsworth.

Wayne Baker, a 14 year veteran D.P.S. officer ⁶ and polygraph examiner, shared a suite of offices with an associate and John T. Holbrook, a forensic psychiatrist. Captain Crawford spent the first hour briefing Baker on the case and what appellant had told him about his involvement; Baker then talked to appellant for an hour, after which the polygraph examination began. Through a one way mirror in Baker's office, Crawford and Ranger Wadsworth were able to see and hear the entire examination. After the polygraph, Baker left appellant in the laboratory for five to ten minutes in order to evaluate the results.

On his return to the laboratory, Baker advised that the polygraph indicated appellant had been deceptive in his responses. Baker then spent about 30 minutes explaining the polygraph process and why it might be that a person failed. During this time Baker also described to appellant the facilities in his office, including the fact that Dr. Holbrook was available. ⁷

At the hearing, Baker explained that when he does polygraphs for law enforcement agencies and the exam indicates deception, "it's a part of the procedure ... to go back in and seek truthful statements." This "post-test interview" is "more or less an interrogation process" which, by contrast with the polygraph itself, is "not in the form [of questions] that can be answered yes and no." Baker explained that he was encouraging appellant to make an admission that he killed the deceased. Defense counsel asked what kind of questions had been asked to elicit this admission. Baker's testimony:

"A: Well, it was presenting--my opinion was based on the information given from his polygraph to me, that I believed that he did kill the girl. And I stated that to him and asked him to be truthful, to tell the truth about it, and this was repeated. I can recall Mr. McCrory saying very little. He assumed that position there with his hands folded, looking down, and getting a lot of stress to it. He looked like he was troubled a great deal by this. And I kept asking him to be truthful, to tell the truth about it. I did tell him that there was a psychiatrist at the office, that if he felt the need for that, he could certainly talk to him. And, utilizing general stimulus techniques such as this, continued to do so until the time when he said, 'I did it.' ⁸

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Q: I would assume that there is ... a psychological approach to this type of interrogation. Is that correct?

A: Yes, sir.

Q: I think you used the words 'techniques of interrogation.' Is that correct?

A: That is correct.

Q: And these would be your election to use the techniques that is going to vary from one individual to another individual, depending upon what your conclusions are about the psychological makeup of that individual, essentially?

A: You make assumptions, that is right.

Q: Did you develop with Mr. McCrory at that time, or did you form in your mind at that time any particular technique which you would use to elicit these admissions?

A: Yes, sir.

Q: OK. And what was that technique that you used?

A: Condemning the victim.

Q: And how does that work? Would you explain that process, that technique?

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A: It's just my own opinion that by condemning a victim you take the person you are interviewing out of the position of being the persecutor and make him the victim, himself. And it makes the true victim the persecutor. And therefore, it makes the interrogator the rescuer, and therefore, he has a stronger urge or it's much easier for him to make the admissions that he had been keeping back. And this is certainly my personal opinion on that.

Q: It's a manipulative type process?

A: Yes.

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Q: OK. And I think you said that when you told Mr. McCrory that he had been deceptive in the test and that--that he had failed the test, I think you said that he went into this stress position?

A: I did notice that, yes, sir.

Q: And he continued a heavy stress upon his hands, is that correct?

A: Yes, sir.

Q: Were the fingers interlaced?

Q: Yes, sir, they were.

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Q: Now, let me ask a few questions relating to Dr. Holbrook. You observed during the course of the post-test interview that there was--that he was in this stress position again, and did you form a conclusion at that time as to why he might need psychiatric assistance?

A: No, sir, I didn't.

Q: Was the subject of a physician of this nature brought up?

A: Well, as a matter of fact, in that type of an interview many times I will use, you know, if I believe a person has committed murder, using psychiatric counseling and so forth as another stimulus factor.

Q: To elicit admissions?

A: Yes.

Q: OK.

A: And then sometimes they might really need a doctor. I don't really know, so I always felt it was a very safe and practical stimulus factor.

Q: And I take it by your statements, you were using Dr. Holbrook simply as another stimulus factor to get--

A: Not only--

Q: Assuming that you might need it, that it might be necessary?

A: Not only that, but that is part of it. But also as a--if he really needs to see a doctor, especially...