State v. Flack

• Decision Date: 27 August 1993
• Docket Number: No. 92-361,92-361
• Parties: STATE of Montana, Plaintiff and Respondent, v. Bruce A. FLACK, Defendant and Appellant.
• Court: Montana Supreme Court

Page 89

860 P.2d 89

260 Mont. 181

STATE of Montana, Plaintiff and Respondent, v. Bruce A. FLACK, Defendant and Appellant.

No. 92-361.

Supreme Court of Montana.

Submitted on Briefs Jan. 21, 1993.

Decided Aug. 27, 1993.

Bruce E. Becker, Livingston, for defendant and appellant.

Marc Racicot, Atty. Gen., Barbara C. Harris, Asst. Atty. Gen., Helena, Wm. Nels Swandal, Park County Atty., Livingston, for plaintiff and respondent.

GRAY, Justice delivered the Opinion of the Court.

Bruce Flack appeals from an order of the Sixth Judicial District Court, Park County, denying his motion to suppress statements made on January 5 and January 8, 1992. We affirm in part and reverse in part.

On January 5, 1992, Bruce Flack (Flack) and Alan Gustafson (Gustafson) were taken to the Park County Sheriff's office as suspects in a robbery. The two were suspected of breaking into the Bill Eyman residence near Livingston, Montana, and stealing approximately $265 in cash, credit cards, blank checks, and several firearms.

Flack was detained at the sheriff's office while Gustafson was interrogated. After waiting approximately four hours, Flack was taken into an interrogation room, where Charles Johnson (Johnson), Park County Sheriff, and Lynn Gillett (Gillett), Captain of the Livingston City Police, were present. Before the interrogation, Flack was advised of, and waived, his Miranda rights. During the taped interrogation, Flack denied any knowledge of the robbery. After fifty-five minutes of questioning, Johnson arrested Flack for the robbery pursuant to a valid arrest warrant. At that time, Flack stated, "I guess I'm going to have to get me a lawyer. You guys are going to have to prove it."

With that remark, the interrogation formally concluded and the tape recorder was turned off. Johnson left the room. Gillett continued to talk with Flack for five to ten minutes, detailing the information already obtained by the prosecution relating to the robbery. In response, Flack indicated that he had been at the Eyman residence at the time of the robbery but stated that he had remained on the road. Flack refused to have the statement recorded.

On January 6, Flack was brought before a justice of the peace for his initial appearance. The justice of the peace informed Flack of the charge and advised him of his rights, including the right to be represented by an attorney. Bail was set. Flack was given, and completed, a form requesting court-appointed counsel. Public Defender Dan Yardley spoke with Flack on January 7, but determined that his representation of the youth might create a conflict in representing Flack. Different counsel was appointed to represent Flack on January 15.

Flack remained in jail because he was unable to make bail. During the morning of January 8, Flack was again questioned by Gillett. The parties dispute who initiated the interrogation. Gillett did not readvise Flack of his Miranda rights at the beginning of the interrogation. Instead, Gillett asked if Flack remembered the Miranda warning previously read to him; Flack responded affirmatively. Gillett then asked if Flack was willing to waive his rights and answer questions; again Flack responded "Yes." During the twenty-five minute interrogation, Flack confessed his involvement in the robbery.

On February 19, Flack moved to suppress the January 5 and January 8 statements. Flack asserted that his constitutional rights were violated on January 5 when the State resumed the interrogation after he requested legal representation, and on January 8 when he was interrogated again without legal counsel. Furthermore, Flack asserts that he was not properly advised of his Miranda rights at the January 8 interrogation and, on that basis, that he did not knowingly, intelligently and voluntarily waive his right against self-incrimination. After a suppression hearing, the District Court entered its findings of fact, conclusions of law and order denying the motion to suppress the statements.

The Park County Attorney and Flack filed a "Stipulation of Facts" on March 25. The stipulation listed the facts that the prosecution could establish if a trial was held. The stipulation indicated the Flack would neither resist the State's case nor plead guilty to the robbery charge. Flack expressly reserved his right to appeal the order denying his motion to suppress.

Based on the agreed statement of facts, the District Court found Flack guilty of robbery. The court sentenced Flack to a term of eight years at the Montana State Prison, with five years suspended. Flack appeals the denial of his motion to suppress the January 5 and January 8 statements.

Did the District Court err in denying the motion to suppress Flack's January 5 statement?

At the suppression hearing, the State maintained that the January 5 statement was not a result of continued interrogation by Gillett. Gillett testified as follows:

Q. Now, what happened after the interview was over?

A. Sheriff Johnson left the room, to get the work started because he had placed Mr. Flack under arrest, and I was just generally talking with Mr. Flack and advised him that we knew what went on.

Q. Did you ask him any questions after the interview?

A. No, I just advised him.

Q. And do you recall what you told him at that time?

A. No, I don't.

Q. What, if anything, did the Defendant say?

A. He voluntarily said that he was there, but he only stood on the road.

. . . . .

Q. Did you ask him a question to elicit that response?

A. No.

Flack testified that he believed he made the statement while under further interrogation:

Q. What happened after they turned off the tape recorder?

A. Gillett proceeded to talk to me.

Q. Was Charlie Johnson there?

A. No, he left the room at that point.

Q. What did he talk to you about?

A. Saying that I might as well just go ahead and hang it up because they got me, and that I couldn't get out of it, or whatever.

Q. Did you feel like you were being interrogated further?

A. Yes, I did.

Q. And this all happened after you said, I guess I should get an attorney?

A. Yes.

On the basis of the testimony presented at the suppression hearing, the District Court concluded that "any incriminating statement or admission made by Bruce Flack on January 5, 1992, was made spontaneously by him, and was not elicited by questions from law enforcement personnel." On that basis, the District Court denied the motion to suppress the statement.

Our standard for reviewing a district court's conclusion of law is whether the court's interpretation of the law is correct. Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603. To determine whether the District Court correctly concluded that the January 5 statement was not elicited by Gillett and, therefore, was not obtained in violation of Flack's constitutional rights, we examine whether the comments made by Gillett after Flack invoked the right to counsel constituted an interrogation.

The United States Supreme Court addressed the meaning of interrogation in the context of an accused's right to counsel in Rhode Island v. Innis (1980), 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297. There, the defendant asked to speak with an attorney after he was arrested for the homicide of a taxi driver and advised of his Miranda rights. While transporting the defendant to the police station, an officer expressed concern to another officer that handicapped children, who frequented the area where the arrest occurred, might find the missing murder weapon. The defendant overheard the conversation and requested that they return to the scene of the arrest where he would locate the weapon.

The United States Supreme Court addressed whether the officers' conversation relating to handicapped children was tantamount to interrogation in the context of Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The Court indicated that language in Miranda suggested that the Miranda rules applied only to interrogation that involved express questioning of a defendant held in custody. The police practices that invoked the concerns addressed in Miranda, however, included techniques of persuasion in addition to express questioning. On that basis, the Court concluded that the Miranda safeguards were not limited to situations in which a defendant in custody was subjected to express questioning. Innis, 446 U.S. at 300-301, 100 S.Ct. at 1689-1690.

The Court determined in Innis that interrogation under Miranda includes "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Innis, 446 U.S. at 300-301, 100 S.Ct. at 1689-1690. Furthermore, the Court stated that in order to determine whether an incriminating response was reasonably likely to be elicited from the suspect, the primary focus should be on the perceptions of the suspect rather than on the intent of the police. Innis, 446 U.S. at 301, 100 S.Ct. at 1690.

Applying these principles to the facts before it in Innis, the Court concluded that the officers could not reasonably foresee that their conversation, which the Court characterized as a few offhand remarks, was likely to elicit an incriminating response from the defendant. On that basis, the Court determined that the defendant had not been subjected to further interrogation after he invoked his right to counsel. Innis, 446 U.S. at 303, 100 S.Ct. at 1690.

In the case before us, the District Court concluded that the January 5 statement was made spontaneously by Flack and was not elicited by questions from law enforcement personnel. Based on Innis, it is clear that the District Court erred in limiting its inquiry to whether the January 5 statement was elicited by direct interrogation.

We determine that Gillett's comments constituted a practice that law enforcement should know is reasonably likely to evoke an incriminating...