State v. Birkla, 20593

Citation887 P.2d 43,126 Idaho 498
Decision Date15 December 1994
Docket NumberNo. 20593,20593
PartiesSTATE of Idaho, Plaintiff-Respondent, v. Mike Lee BIRKLA, Defendant-Appellant.
CourtCourt of Appeals of Idaho

Larry EchoHawk, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., Boise, for respondent. Michael A. Henderson argued.

SUBSTITUTE OPINION

THE COURT'S PRIOR OPINION DATED DECEMBER 7, 1994, IS HEREBY WITHDRAWN

PERRY, Judge.

This is an appeal from a criminal conviction and sentence for infamous crime against nature. I.C. §§ 18-6605 and 18-6606. In this appeal we are asked to decide whether certain alleged errors below warrant a new trial or other relief. For the reasons stated, we affirm the judgment of conviction and sentence.

FACTS AND PROCEDURE

Mike Lee Birkla was charged with infamous crime against nature, stemming from events occurring July 11, 1992. Birkla allegedly Birkla's first trial ended in a mistrial when a juror revealed, after the trial was underway, that he had previously pled guilty to a charge of sexual abuse. Prior to the second trial, Birkla sought to have statements he made to police suppressed because he had not been given Miranda warnings. The district court denied the motion, ruling that Birkla had not been in custody and therefore Miranda warnings were not required. The district court, over Birkla's objection, also admitted into evidence enlarged photographs of the victim taken immediately following the crime. The jury returned a guilty verdict on the charge of infamous crime against nature, but acquitted Birkla of the remaining battery charges. A judgment of conviction was entered and Birkla was sentenced to five years' incarceration with a minimum period of confinement of two years. Birkla now appeals his conviction, claiming that the district court erred in denying his suppression motion and in admitting the enlarged photographs. Birkla further claims that prejudicial and inflammatory statements made by the prosecutor during closing arguments deprived him of a fair trial. Finally, Birkla appeals the sentence imposed by the district court as unduly harsh and an abuse of discretion.

[126 Idaho 500] met two women in a Pocatello bar and returned with them to his motel room. The accounts of the victim and Birkla varied substantially regarding what took place once the three entered the room. According to the victim's testimony, Birkla assaulted her and forced her to perform fellatio on him.

ANALYSIS
A. ADMISSION OF THE ENLARGED PHOTOGRAPHS

Birkla first challenges the admission of several enlarged photographs of the victim taken immediately following the events in question. Birkla conceded at oral argument that the photographs were relevant, but claims they were unduly prejudicial and inflammatory because of their size. At trial, Birkla sought to have the enlargements excluded under I.R.E. 403. 1 Idaho Rule of Evidence 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

A lower court's determination under I.R.E. 403 will not be disturbed on appeal unless it is shown to be an abuse of discretion. State v. Enno, 119 Idaho 392, 406, 807 P.2d 610, 624 (1991); State v. Clark, 115 Idaho 1056, 1059, 772 P.2d 263, 266 (Ct.App.1989).

The photographs in question are five 8 by 10-inch enlargements showing the victim's face, mouth and arms. The district court, in denying Birkla's motion, ruled that:

Now, then the question comes as to the probative value which the relevance indicates it has, as to whether or not it's outweighed by any prejudicial value. And of course I have reviewed the photographs earlier before trial in the nonenlarged situation, I see them now, and my position is still the same, I do not believe that they are of a nature that they would be under the circumstances of this case inflammatory or prejudicial. I think they are relevant for the jury's consideration in light of the testimony given here today.

We agree with the district court's analysis. Given the conceded relevance of the photographs themselves, we do not accept Birkla's argument that the enlargement itself creates prejudice or would tend to inflame the jury. The photographs are not particularly gruesome, nor do the enlargements show greater amounts of detail than were visible in the originals. The moderate increase in size alone does nothing to turn these otherwise admissible photographs into prejudicial, inflammatory exhibits. Therefore, we find no abuse of discretion in the district court's admission of the photographs.

B. SUPPRESSION OF STATEMENTS MADE TO POLICE

Birkla alleges that the district court erred by refusing to suppress statements he made to the police that were taken without We first note that our standard when reviewing a lower court's ruling on a suppression motion is bifurcated. Although we accept the trial court's findings of fact where supported by substantial and competent evidence, we freely review the application of constitutional principles to the facts as found. State v. Shepherd, 118 Idaho 121, 122, 795 P.2d 15, 16 (Ct.App.1990).

[126 Idaho 501] proper Miranda warnings. This evidence took the form of both a tape-recorded statement of Birkla and the testimony of Detective Shaw who interviewed Birkla. The district court denied the motion because it determined that Birkla was not in custody at the time the statements were made and, therefore, no Miranda warnings were required.

This Court, in State v. Medrano, 123 Idaho 114, 844 P.2d 1364 (Ct.App.1992), set forth the analysis to be used when determining whether a given defendant is in custody:

Miranda warnings are triggered by custodial interrogation. See State v. Ybarra, 102 Idaho 573, 576, 634 P.2d 435, 438 (1981). The United States Supreme Court equated custody with a person being "deprived of his freedom by the authorities in any significant way." Miranda [v. Arizona], 384 U.S. at 478, 86 S.Ct. [1602] at 1629 [16 L.Ed.2d 694 (1966) ]. This test has been redefined to mean when a person's freedom of action is "curtailed to a 'degree associated with formal arrest.' " State v. Myers, 118 Idaho 608, 610, 798 P.2d 453, 455 (Ct.App.1990) (citing Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984)). The Court, in Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 713, 50 L.Ed.2d 714 (1977) ... instructed that the "test is an objective one based on the surrounding circumstances." To determine if a suspect is in custody, this Court, subsequent to Mathiason, adopted the Supreme Court's test that "the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." Myers, 118 Idaho at 611, 798 P.2d at 456 (quoting Berkemer, 468 U.S. at 442, 104 S.Ct. at 3151).... We must review the "totality of all the circumstances" that are presented in the record. See Ybarra, 102 Idaho at 578, 634 P.2d at 440 (citing United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497 (1980)); see also WILLIAM E. RINGEL, SEARCHES & SEIZURES ARRESTS AND CONFESSIONS §§ 27.3(a)-(c) (circumstances to be considered when determining whether a defendant is in custody are: location of interrogation, conduct of the officers, nature and manner of the questioning, time of interrogation, and other persons present).

Id. at 117-18, 844 P.2d 1364.

The district court did not make explicit findings of fact when denying Birkla's suppression motion but concluded that "the statements attributed to the defendant by officer Shaw were non-custodial and therefore the Miranda requirements did not apply." The failure to make explicit findings of fact, however, is not fatal to the determination of a suppression motion. Instead, we should "examine the record to determine the 'implicit' findings which underlie the judge's order." State v. Middleton, 114 Idaho 377, 380, 757 P.2d 240, 243 (Ct.App.1988).

To properly ascertain the implicit findings, we look at the evidence made available to the district court. Before deciding the motion to suppress, the district court heard testimony of two of the officers involved in the investigation of Birkla. The district court had also heard testimony, during the first trial, from Birkla himself and from the detective who questioned him regarding the investigation.

These witnesses provided the district court with information indicating that after an initial investigation at the motel, Birkla was asked to accompany an officer to the police station to answer questions concerning the allegations made by the victim. Although Birkla rode in the rear of the police car to the station, he was not handcuffed or placed in any restraints. Once at the station Birkla was questioned in an interview room by a single detective. The officer who placed Birkla in the room stated that the door was not locked, though Birkla claims the door was locked and that he was told he was not allowed to use the restroom, smoke or get a During questioning, Birkla voluntarily agreed to submit to a medical examination and was driven to a hospital in the front seat of a patrol car. Although hospital personnel noted that Birkla was returned to "protective custody," there is nothing in the record indicating the basis upon which hospital personnel reached the conclusion that Birkla was in custody. The officer transporting Birkla to the hospital testified that he would have been required to check with his supervisors if Birkla had asked to be returned to the motel. The officer further stated, however, that he would have been required to check only as a matter of procedure to make sure his supervisors hadn't decided to arrest Birkla. The evidence indicated that the questioning and the medical exam took place between...

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