State v. Davison

• Decision Date: 04 August 1980
• Docket Number: No. 79-67,79-67
• Citation: 188 Mont. 432,614 P.2d 489,37 St.Rep. 1135
• Parties: STATE of Montana, Plaintiff and Respondent, v. Edmond Wilson DAVISON, Defendant and Appellant.
• Court: Montana Supreme Court

Page 489

614 P.2d 489

188 Mont. 432

STATE of Montana, Plaintiff and Respondent, v. Edmond Wilson DAVISON, Defendant and Appellant.

No. 79-67.

Supreme Court of Montana.

Submitted April 14, 1980.

Decided July 9, 1980.

Rehearing Denied Aug. 4, 1980.

Daley, Sherlock & Nardi, Kalispell, Patrick D. Sherlock argued, Kalispell, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Richard A. Larson argued, Asst. Atty. Gen., Helena, Ted O. Lympus, County Atty., Kalispell, for plaintiff and respondent.

HASWELL, Chief Justice.

Defendant, Edmond Wilson Davison, was charged with the offenses of aggravated burglary and sexual intercourse without consent in the District Court of Flathead County. A verdict of guilty of each offense was returned by the jury. Defendant was sentenced to 15 years on each count plus an additional five years for use of a knife to be served consecutively for a total of 35 years. From the conviction and sentence, defendant appeals.

During the early morning hours of March 2, 1979, two men forced their way into a mobile home located near the city limits of Kalispell, Montana. Christine Decker and her three year old daughter were asleep in separate bedrooms of the mobile home at that time. Christine was awakened as the two men entered her bedroom. The room was dark and her head was immediately covered so that she could not see. She testified that a sharp instrument was held against her back and side, but no wounds were inflicted. She was then raped by her attacker and then by the accomplice. Her head was covered during the entire attack. After the attack the men asked her where she kept her money. She was then told to keep quiet and forced to lie under her bed as the two men retreated from the home. The daughter slept through the attack.

After the two men left Ms. Decker summoned the Kalispell City Police and law enforcement personnel arrived shortly thereafter. The victim was taken to a Kalispell hospital. The examining physician found evidence of recent sexual intercourse, but no prominent physical wounds.

Ms. Decker was never able to identify her attackers. She testified that she locked the doors before retiring the night of March 2, 1979. Sheriff's deputies found evidence of forced entry into Ms. Decker's home and evidence that her purse had been rifled, but no positive evidence indicating who had been involved.

Law enforcement investigation ultimately led officers to Victor Gardner. Gardner confessed to the crimes and implicated defendant. On March 5, 1979, the defendant and his wife were arrested in Kalispell on an outstanding warrant that related to a bad check charge. Defendant was taken to the county jail for questioning.

Defendant was interrogated by deputies Christian and Lamb. The questioning concerned defendant's involvement in the above-described rape. Before being questioned, the defendant was given a "Miranda" warning. During the interrogation, which lasted two to three hours, defendant denied any involvement with the rape or the burglary. At one point during the questioning, defendant was told that if he attempted to leave, he would be knocked back in his chair. During the interrogation, Christian removed his jacket and briefly placed it over the defendant's head for the stated reason of demonstrating to defendant how the victim had been assaulted. Defendant stated that Christian banged defendant's head into the wall during this demonstration. Christian denied this. Later, during the questioning, Christian removed his service revolver from its holster, unloaded it in front of the defendant, and returned the revolver to its holster. According to Christian this was done to protect defendant, himself and Deputy Lamb, because Christian was concerned that defendant might attempt to take the revolver. Defendant testified that Christian threatened to strike him with the empty revolver. Christian denied making this, or any other threat.

According to Christian's testimony at the suppression hearing, the defendant had been in a highly emotional state during the interrogation and the interrogation room was very warm. Defendant would not make a statement to Christian or Lamb. Defendant testified that he was told during the interrogation that if he did not cooperate with the officers they would do their best to get a 60-year sentence for defendant. Christian testified that he did not remember mentioning a possible 60-year sentence to the defendant, but Christian did remember that he did not make any threats.

Near the end of the interrogation, a tape recording of the confession of the codefendant, Victor Gardner, was played to defendant. At the conclusion of the interview, the defendant was led from the interrogation room. Defendant testified that Christian and Lamb had been "mad" at him and generally belligerent during the interrogation.

Before being taken to his cell, the defendant was confronted by Officer Hawk, and defendant asked Hawk if Gardner had in fact confessed. Hawk assured the defendant that Gardner had. Hawk suggested to the defendant that if he had a problem with Lamb and Christian that he (defendant) might prefer talking with Hawk. Defendant agreed to talk with Hawk, and at this time the defendant made a tape-recorded confession. The defendant was again given his "Miranda" rights prior to the confession.

Defendant's confession matched Gardner's version and the victim's version of the crime. Gardner testified that the two men had broken into the mobile home armed with a knife, had raped the victim and rifled her purse. At the trial the defendant stated that he did not break into the victim's home and that he had given his confession after hearing Gardner's because he was afraid that "they were going to send me to prison for 60 years."

The jury found defendant guilty as charged and the trial court judge sentenced him to 35 years at the Montana State Prison. Victor Gardner, the codefendant, was sentenced to a total of 8 years under a plea bargain arrangement.

Defendant advances three specifications of error:

1. Error in ruling that defendant's confession was admissible.

2. Whether defendant's right to trial was adversely affected by the imposition of a lesser sentence upon his codefendant?

3. Whether the enhancement of defendant's sentence pursuant to section 46-18-221, MCA, constitutes a violation of due process or the proscription against double jeopardy?

Defendant contends that his confession was involuntary, and, as a consequence, inadmissible at his trial. Both the United States Supreme Court and this Court have considered the issue of involuntary confessions in a large number of cases. These cases make it clear that an involuntary confession may not be used against a defendant in a criminal trial. This rule is true whether the defendant was physically or mentally coerced into making the confession. Leyra v. Denno (1954), 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948.

An extensive rationale for this rule is presented in State v. Allies (1979), Mont., 606 P.2d 1043 at 1048-49, 36 St.Rep. 2352 at 2358-59. The purpose for excluding such evidence is partially because a coerced confession may be untrustworthy, but more importantly, such confessions violate the guarantee against self-incrimination as well as the right to due process of law. As the United States Supreme Court said: "The use of coerced confessions, whether true or false, is forbidden because the method used to extract them offends constitutional principals." Lego v. Twomey (1972), 404 U.S. 477, 485, 92 S.Ct. 619, 624, 30 L.Ed.2d 618, 625. The courts will not condone the action taken by law enforcement authorities in securing a coerced confession. Spano v. New York (1959), 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265. In reviewing the voluntariness of confessions the emphasis is on whether the statement is a product of free choice or compulsion. This emphasis protects the individual's right not to incriminate himself. Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

In Schneckloth v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854, the Supreme Court said:

"Rather, 'voluntariness' has reflected an accommodation of the complex of values implicated in police questioning of a suspect. At one end of the spectrum is the acknowledged need for police questioning as a tool for the effective enforcement of criminal laws. See Culombe v. Connecticut, supra, (367 U.S. 568) at 578-580, (81 S.Ct. 1860, 1865-1866, 6 L.Ed.2d 1037). Without such investigation, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved. In short, the security of all would be diminished. Haynes v. Washington, 373 U.S. 503, 515, 83 S.Ct. 1336, 1344, 10 L.Ed.2d 513). At the other end of the spectrum is the set of values reflecting society's deeply felt belief that the criminal law cannot be used as an instrument of unfairness, and that the possibility of unfair and even brutal police tactics poses a real and serious threat to civilized notions of justice. ' (I)n cases involving involuntary confessions, this Court enforces the strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will.' Blackburn v. Alabama, 361 U.S. 199, 206-207, (80 S.Ct. 274, 279-280, 4 L.Ed.2d 242). See also Culombe v. Connecticut, supra, (367 U.S.) at 581-584, (81 S.Ct. 1860, 1867-1868). Chambers v. Florida, 309 U.S. 227, 235-238, (60 S.Ct. 472, 476-477, 84 L.Ed. 716)." 412 U.S. at 224-225, 93 S.Ct. at 2046.

The United States Supreme Court has said that the test to be applied in determining whether a particular confession is voluntary or involuntary, is as follows:

"Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to...