State ex rel. Berger v. District Court of Thirteenth Judicial Dist. In and For Big Horn County

• Decision Date: 17 October 1967
• Docket Number: No. 11376,11376
• Parties: The STATE of Montana ex rel. Arnold A. BERGER, Special Assistant County Attorney of Big Horn County, Montana, Relator, v. The DISTRICT COURT OF the THIRTEENTH JUDICIAL DISTRICT of the State of Montana, IN AND FOR the COUNTY OF BIG HORN, and the Honorable E. E. Fenton, Presiding Judge, Respondent.
• Court: Montana Supreme Court

Page 93

432 P.2d 93

150 Mont. 128

The STATE of Montana ex rel. Arnold A. BERGER, Special Assistant County Attorney of Big Horn County Montana, Relator, v. The DISTRICT COURT OF the THIRTEENTH JUDICIAL DISTRICT of the State of Montana, IN AND FOR the COUNTY OF BIG HORN, and the Honorable E. E. Fenton Presiding Judge, Respondent.

No. 11376.

Supreme Court of Montana.

Submitted Sept. 7, 1967.

Decided Sept. 28, 1967.

Rehearing Denied Oct. 17, 1967.

Arnold Berger (argued), Billings, for relator.

Charles F. Moses (argued), Billings, for respondent.

PER CURIAM.

This is an original proceeding brought by the prosecuting attorney of Big Horn County for a writ of supervisory control seeking this court's jurisdiction to reverse an order of the District Court of July 28, 1967, in District Court Cause #962, State of Montana v. Clara Thomas and Robert G. Thomas. The order referred to suppressed a certain oral statement made by defendant Clara Thomas as will appear hereinafter. The order was made by the District Judge granting a motion of the defense to suppress.

On June 7, 1967, this court in an order and memorandum ruled that the district court was in error in suppressing a written statement used in a previous trial. (See State v. Thomas, 147 Mont. 325, 327, 328, 413 P.2d 315, for the written statement, and see our Order and Memorandum reported in State ex rel. Anderson v. District Ct., Mont., 429 P.2d 633.) (We also note that our Order was the subject of an application by Clara Thomas to enjoin the use of the written statement in the United States District Court, Billings Division, in Civil Cause No. 669. Therein the Court in an Order and Memorandum opinion reported in 24 St.Rep. 541 declined jurisdiction because State procedures had not been completed.)

The oral conversations or statements, the subject of the instant application, were made prior to the written statements referred to above. A hearing was had before the district judge, a transcript of the proceedings made, findings of fact and conclusions of law made, and the order herein referred to resulted.

We issued an order to show cause directed to the district court, such order being in the alternative to either vacate the order or appear and show cause why it was not vacated. A return and answer were filed and oral argument had.

Basically two issues were argued. The first that our previous decision as to the written statement is the law of the case. We shall not dwell upon this. The second, that the motion to suppress the oral statement was improperly granted because the testimony demonstrated that the oral statement was voluntarily made by Clara Thomas at a time prior to any 'focus' as a particular suspect; and that, furthermore she was properly advised of her constitutional rights and knowingly and intelligently waived them.

To relate the fact situation with as much brevity as possible we shall quote the trial court's findings one through ten:

'1. The Information herein charges the defendants with Murder in the Second Degree committed by killing Frank Tschirgi on or about the 10th day of March, 1963.

'2. The official investigation of the death of Frank Tschirgi was conducted by Roy G. Reilly, the then Sheriff of Big Horn County, Montana, commencing on the morning of March 11, 1963, and on the afternoon of that date said Sheriff became convinced that death was not caused by suicide, that Frank Tschirgi had been shot by some other person, and that his death was caused by two gunshot wounds in his breast.

'3. That said Sheriff interviewed all of the persons who, on either March 10, 1963, or March 11, 1963, were present on the ranch where the death occurred, and he arrived at the conclusion that none of these persons interviewed by him had any connection with the death of Frank Tschirgi.

'4. That Clara Thomas was present on the above-mentioned ranch on March 10, 1963, but she was not present there when the Sheriff arrived on the morning of March 11, 1963, and that the Sheriff was then informed that she had been taken to a hospital at Sheridan, Wyoming, because of having taken sleeping pills.

'5. That during said investigation a Mrs. Jackson, 'the last person to see Frank Tschirgi alive,' related to the Sheriff a conversation she had had with the deceased on the evening of March 10, 1963, and stated to the Sheriff that as Frank Tschirgi was leaving her home he told her he was going to see Clara about a dog; that Mr. Reilly was uncertain whether, in relating another part of this conversation to him, Mrs. Jackson's exact words were that 'Frank Tschirgi told her that he was going over to fight with the damn sister', and that he did not know whether the word 'damned' or the word 'fight' was used by her.

'6. That on March 12, 1963, Sheriff Reilly stated to Robert G. Thomas and David Thomas that he wished to talk to Clara Thomas and asked them when it would be possible to talk to her; that he also talked with them about Frank's passing and according to his best recollection of the conversation they said, 'Yes, when Clara gets well she wantes to tell you.' That on March 13, 1963, Robert G. Thomas called Sheriff Reilly by telephone and informed him that he could talk to Clara Thomas.

'7. That Clara Thomas had not authorized Robert G. Thomas to call the officers and tell them they could question her, that Robert G. Thomas had no conversation with her concerning the interview by Mr. Reilly and Mr. Wilson, and that she had no knowledge of such interview prior to the arrival of the officers at the hospital.

'8. That following said telephone call, Mr. Reilly and Robert H. Wilson, the then County Attorney of Big Horn County, Montana, went to Sheridan, Wyoming, arriving at the hospital between five and six o'clock on the afternoon of March 13, 1963; that after a conversation in the hospital with Robert G. Thomas and David Thomas, the Sheriff and County Attorney went to the room of Clara Thomas, and Mr. Wilson told her that they were down there investigating the death of Frank Tschirgi, 'and he told her of her rights, that she didn't have to say anything if she didn't want to and that she could have the aid of an attorney.'

'9. That at the time she was questioned in the hospital by the Sheriff and County Attorney, Clara Thomas had not been placed under arrest and was not in official custody, but that she was confined as a patient in the hospital where she had been in a state of unconsciousness, and that the progress of her recovery was such on the morning of the day on which she was interrogated that her attending physician then stated that if she made normal progress he felt she would be coherent enough or recovered enough to answer some limited questions.

'10. That neither the said County Attorney or the Sheriff informed Clara Thomas that she had the right to have a lawyer present with her during their interrogation, and that she was not informed by either said County Attorney or said Sheriff that if she was indigent a lawyer would be provided for her prior to any interrogation.'

Finding No. 11 was as follows:

'That, as testified by Mr. Reilly, he did not have any knowledge of who had killed Frank Tschirgi, but that his investigation had disclosed nothing that would suggest any incrimination of any person who was present at the ranch at the time of the homicide, other than Clara Thomas; and that by reason of the incriminating circumstances pointing to Clara Thomas, hereinbefore set forth in these Findings, together with the fact that the Sheriff's investigation had revealed no reason to suspect any other person, his investigation was then necessarily focused upon Clara Thomas.'

That portion of Finding No. 11 concluding that the investigation had necessarily 'focused' upon Clara Thomas is what we find erroneous. This so-called finding of fact is necessarily a conclusion of law based upon the District Court's concept of the meaning of the United States Supreme Court's decisions in the Escobedo and Miranda cases which will be hereinafter discussed.

First, it is clear that Clara Thomas was not 'in custody' in any legal sense of the word. Nor do we find that the defendant, at the time, was otherwise deprived of her freedom of action in any significant way. Finding No. 9 above-quoted does no more than suggest that confinement as a patient might somehow have limited her action in a significant way, but we find otherwise. Indeed, however, our specific inquiry narrows down to, not whether Clara Thomas was confined or her action limited in any significant way; but rather whether in the investigatory process the 'accusatory stage' or 'focus' had been reached.

In Escobedo v. State of Illinois, 378 U.S. 478, 490, 84 S.Ct. 1758, 1765, 12 L.Ed.2d 977, the court said:

We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself...