State v. Blakney

• Decision Date: 25 February 1982
• Docket Number: No. 14534,14534
• Citation: 641 P.2d 1045,39 St.Rep. 436,197 Mont. 131
• Parties: STATE of Montana, Plaintiff and Respondent, v. Larry L. BLAKNEY, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1045

641 P.2d 1045

197 Mont. 131

STATE of Montana, Plaintiff and Respondent, v. Larry L. BLAKNEY, Defendant and Appellant.

No. 14534.

Supreme Court of Montana.

Submitted Oct. 19, 1981.

Decided Feb. 25, 1982.

Smith, Connor & Van Valkenburg, Missoula, Fred Van Valkenburg, argued, Missoula, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Mary B. Troland, argued, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, County Atty., Missoula, for plaintiff and respondent.

HARRISON, Justice.

This case is before the Court on remand from the United States Supreme Court for reconsideration in light of Edwards v. Arizona (1981), 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378. Blakney v. State of Montana, --- U.S. ----, 101 S.Ct. 2999, 69 L.Ed.2d 384. This Court reheard the case en banc on October 19, 1981, after both the State and the appellant submitted new briefs.

The facts involved are discussed fully in our opinion in State v. Blakney (1979), Mont., 605 P.2d 1093, 36 St.Rep. 2193, and need not completely be repeated here. However, when certain facts are considered together with those in Edwards, it becomes apparent that Edwards is inapposite both factually and legally to the case before us.

The crime for which the appellant was convicted occurred on the evening of Friday and Saturday, June 10 and 11, 1977. The appellant was not arrested until June 14, 1977. He was interviewed by the police on four separate occasions. Before each interview the appellant was advised of his rights and signed separate waivers to those rights. Between interviews, the appellant was not detained and was free to consult his friends and an attorney, if he desired one. A polygraph examination that took place between the second and the third interviews indicated appellant was not telling the truth. After this examination appellant confessed. In the fourth interview a tape was made of that confession.

In Edwards, supra, the defendant was arrested and informed of his Miranda rights. He acknowledged his understanding of those rights and was then interrogated. During questioning he indicated a desire to speak to an attorney. At that point the interrogation ceased, and he was returned to his jail. The next day, after Edwards told the detention officers he did not wish to speak with anyone, he was informed that he had to talk with officers there to interview him. After those officers played a taped statement of an alleged accomplice of Edwards, he made a statement to them about his part in the crime.

The United States Supreme Court held that the use of Edwards' confession against him at trial violated his rights under the Fifth and Fourteenth Amendments as construed in Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The Court enunciated two distinct grounds for disapproving the Arizona Supreme Court's judgment.

First, the Court found that the state court had applied an "erroneous standard" in determining a waiver because it did not focus on the "knowing and intelligent" aspect of Edwards' purported waiver separately from the issue of voluntariness. According to the Supreme Court, consideration of an alleged waiver of right to counsel under the Fifth Amendment requires this two-pronged evaluation.

The Supreme Court also reconfirmed and clarified its ruling in Miranda v. Arizona, supra, that when an accused asserts his right to counsel during a custodial interrogation, the interrogation must cease until an attorney is present. Justice White, speaking for the Court said:

"... although we have held that after initially being advised of his Miranda rights, the accused may himself validly waive his rights and respond to interrogation see, North Carolina v. Butler supra, (441 U.S. 369) at 372-376, (99 S.Ct. 1755, at 1757-1759, 60 L.Ed.2d 286) the Court has strongly indicated that additional safeguards are necessary when the accused asks for counsel; and we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police." Edwards v. Arizona, 451 U.S. at 484-85, 101 S.Ct. at 1884, 68 L.Ed.2d at 386.

Here, the trial judge, in an order denying a motion to suppress evidence and to change venue, issued complete findings of fact and conclusions of law. That order, which followed a full hearing, was not fully contained in our previous opinion, but is here set forth in toto:

"FINDINGS OF FACT

"1. That the defendant was interviewed by the police three times with the last interview being preceeded (sic) by a polygraph examination. The first interview began at 11:23 p. m. on June 11, 1977 and finished about 12:56 a. m. on June 12; the second interview began at 9:51 a. m. on June 12 and ended sometime between noon and 1:00 p. m.; the third and final interview began at 9:20 p. m. on June 13 and finished around 10:45 p. m. on the same date.

"2. That the defendant always had a close relative either with him or nearby during each of his interviews with the police, and on several occasions during the breaks in the interviews, the defendant privately consulted with these relatives.

"3. That between each interview the defendant was allowed to return home, with the time for the next interview session being mutually agreed upon by the defendant and the interviewing officers.

"4. That the defendant was thoroughly instructed on his 'Miranda' rights prior to each interview and on each occasion, after having any questions answered, he acknowledged he understood his rights and signed a written waiver of his rights.

"5. That the defendant has an I.Q. of 94; has attended high school and a vocational technical center; has passed four-fifths of the grade equivalency diploma (G.E.D.) examination; and has demonstrated an adequate adult command of the English language during police interviews and in his courtroom testimony.

"6. That a tape recording of the defendant's polygraph examination clearly indicates that the defendant was not threatened or intimidated by the procedures used.

"7. That on two occasions the defendant brought up the subject of an attorney. The first occasion was during the June 12 interview when the defendant asked the police if they thought he should get an attorney, to which the police responded that this decision was up to him. After receiving this advice the defendant voluntarily resumed talking to the police.

"The second occasion was after the polygraph examination on June 13 when the defendant stated 'Maybe I should have an attorney'. With this, the police stopped talking to the defendant and began to leave the room, but before they were able to leave the defendant resumed talking to them. At this point, the defendant was reminded that he had just indicated he wanted an attorney, to which the defendant responded that he did not want a lawyer. With this the interview continued.

"8. That the defendant was not in police custody for a day and one-half between his first mention of an attorney and his next interview, but during this time made no effort to secure or consult with an attorney.

"9. That no facts have been offered showing actual prejudice in the community against the defendant.

"From the foregoing findings of fact, the Court now makes its:

"CONCLUSIONS OF LAW

"1. That the defendant was competent to understand his constitutional rights and intelligently and knowingly waived them.

"2. That the statements made by the defenant (sic) were voluntary and were therefore not gained in violation of his constitutional rights.

"3. That the defendant never made an effective assertion of counsel and in any event thereafter knowingly and intelligently waived the presence of counsel by spontaneously stating he did not want a lawyer and resuming talking to the police.

"4. That the court cannot determine that there is any actual prejudice in the community against the defendant thereby precluding him from having a fair trial."

In spite of the Supreme Court's apparent need to reconfirm Miranda, it is our opinion the Court did not intend to impede legitimate methods of law enforcement by further expanding Miranda :

"In concluding that the fruits of the interrogation initiated by the police on January 20 could not be used against Edwards, we do not hold or imply that Edwards was powerless to countermand his election or that the authorities could in no event use any incriminating statements made by Edwards prior to his having access to counsel. Had Edwards initiated the meeting on January 20, nothing in the Fifth and Fourteenth Amendments would prohibit the police from merely listening to his voluntary, volunteered statements and using them against him at the trial. The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation. Absent such interrogation, there would have been no infringement of the right that Edwards invoked and there would be no occasion to determine whether there had been a valid waiver. Rhode Island v. Innis, (446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297) supra, makes this sufficiently clear. 446 U.S., at 298 n. 2 (100 S.Ct. at 1688 n. 2)." Edwards v. Arizona, 451 U.S. at 485-86, 101 S.Ct. at 1885, 68 L.Ed.2d at 387.

On reconsideration the appellant contends that the Montana courts' rulings on his confession suffer from the same inadequacy as the ruling rendered against Edwards by the Arizona Supreme Court-failure to meet the two-pronged test of a "voluntary" and "knowing and intelligent" waiver. A...