State v. Grey

• Citation: 274 Mont. 206,907 P.2d 951
• Decision Date: 05 December 1995
• Docket Number: No. 95-043,95-043
• Parties: STATE of Montana, Plaintiff and Respondent, v. Frank Michael GREY, Defendant and Appellant.
• Court: Montana Supreme Court

Page 951

907 P.2d 951

274 Mont. 206

STATE of Montana, Plaintiff and Respondent, v. Frank Michael GREY, Defendant and Appellant.

No. 95-043.

Supreme Court of Montana.

Submitted on Briefs Aug. 31, 1995.

Decided Dec. 5, 1995.

[274 Mont. 207] David M. Ortley, Kalispell, for Appellant.

Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena; Thomas J. Esch, Flathead County Attorney, Valerie D. Wilson, Deputy Flathead County Attorney, Kalispell, for Respondent.

NELSON, Justice.

Defendant Frank Michael Grey (Grey) appeals from the Eleventh Judicial District Court, Flathead County's order denying his motion to suppress his videotaped statement and judgment of conviction. We reverse.

We find the following issue dispositive:

Whether the District Court erred in denying Grey's motion to suppress his videotaped statement on the ground that the statement was obtained involuntarily and thus in violation of Grey's Fifth Amendment right against self-incrimination?

BACKGROUND

John Zauner (Zauner) owns a Western Auto store in Kalispell, Montana where Grey was employed as a salesclerk. After noting merchandise missing from his store, and after finding that Grey had a prior conviction of theft from a store at which he worked, Zauner contacted the Kalispell Police Department. The police initiated an investigation focused on Grey. The thefts occurred after Zauner hired Grey and some could be traced to Grey's shift. Additionally, Zauner saw the same kind of radar detector mount that was missing from his store in Grey's pick-up truck and knew that Grey always carried a gym bag to and from work. The police placed a video camera in the store to "make it look as if there was a hidden camera."

The police contacted Grey at Western Auto, informed him that an investigation was being conducted, and told him that all the employees would be interviewed, but he was the first. The police asked Grey to go to the Kalispell Police Department for the interview. Grey voluntarily drove himself to the station and was initially interviewed in the public area of the station. Officer Holt told Grey that he was investigating a theft totalling $22,000 and again told Grey that he would interview each employee. Officer Holt used the "Reed" technique of interviewing to interpret Grey's responses and body mannerisms to determine whether he was more likely guilty than not.

At that point, Officer Holt contends that he gave Grey his Miranda warnings, asked him if he wanted to continue talking, and took him to the booking room for formal interrogation. Grey contends that Officer Holt did not give him his Miranda warnings. The police did not obtain a written waiver or record giving Grey his Miranda warnings, but did videotape the interview. Officer Holt began the interrogation by again telling Grey that approximately $20,000 was missing from Western Auto and asking Grey whether the lie detector would "go beep" when he answered questions. During the interrogation, Grey confessed to taking merchandise from Western Auto. Both parties agree that the interview constituted a custodial interrogation.

The police arrested and incarcerated Grey. Grey filed a pre-trial motion to suppress the statement and videotape alleging that they were both obtained in violation of his privilege against self-incrimination. On September 19, 1994, the District Court denied Grey's motion to suppress. On the date scheduled for trial, the District Court heard Grey's renewed motion to suppress, denied the motion, and granted Grey's oral motion to continue trial. Following a bench trial, the District Court found Grey guilty of felony theft, common scheme, and ordered him to serve 90 days in the Flathead County jail and

deferred his sentence for 2 years on certain conditions.

DISCUSSION

Whether the District Court erred in denying Grey's motion to suppress his videotaped statement on the ground that the statement was obtained involuntarily and thus in violation of Grey's Fifth Amendment right against self-incrimination?

On appeal, Grey raises five issues for our consideration. Since we reverse the District Court on the second issue, we will only discuss that issue. We review a district court's findings of fact regarding suppression hearing evidence to determine whether those findings are clearly erroneous. State v. Kaluza (1993), 262 Mont. 360, 361, 865 P.2d 263, 264 (citing State v. Bower (1992), 254 Mont. 1, 7, 833 P.2d 1106, 1110 and State v. Cope (1991), 250 Mont. 387, 396, 819 P.2d 1280, 1286). The issue of voluntariness is largely a factual determination that is within the discretion of the district court. State v. Lenon (1977), 174 Mont. 264, 271, 570 P.2d 901, 906.

Grey argues that the police used impermissible procedures to obtain his confession, rendering it involuntary and violative of both his Fifth Amendment privilege against self-incrimination and his Fourteenth Amendment right to due process of the law. Grey also contends that the police did not administer adequate Miranda warnings and should have recorded the warnings and obtained a written waiver. Grey claims that he did not voluntarily, intelligently, and knowingly waive his rights. Therefore, he contends that the District Court erred in admitting his statement into evidence.

Confessions are generally admissible. To be admissible, however, a confession must be made freely, voluntarily, and without compulsion of any sort. State v. Allies (1979), 186 Mont. 99, 109, 606 P.2d 1043, 1049.

The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.

Allies, 606 P.2d at 1047 (quoting Spano v. New York (1959), 360 U.S. 315, 320, 79 S.Ct. 1202, 1205, 3 L.Ed.2d 1265, 1270).

The procurement of a confession must comport with the guarantee that an individual will not be compelled to incriminate himself or herself, and that the individual may not be convicted of a crime without due process of law. Allies, 606 P.2d at 1047. It follows that "[i]f a defendant's confession is involuntary, it violates [the] Fifth Amendment privilege against self-incrimination and may not be used as evidence at [the] criminal trial without violating [the] Fourteenth Amendment right to due process of the law." Lenon, 570 P.2d at 906 (citing Brown v. Mississippi (1936), 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682). A defendant may waive the Fifth and Fourteenth Amendment rights only if the waiver of those rights is made voluntarily, knowingly, and intelligently. Miranda v. Arizona (1966), 384 U.S. 436, 444, 86 S.Ct. 1602, 1613, 16 L.Ed.2d 694, 707; State v. Blakney (1982), 197 Mont. 131, 134, 641 P.2d 1045, 1049.

Voluntariness is the underlying test of admissibility of confessions. Lenon, 570 P.2d at 906 (citing Brown v. Illinois (1975), 422 U.S. 590, 604, 95 S.Ct. 2254, 2262, 45 L.Ed.2d 416, 427).

Voluntariness has reflected an accommodation of the complex 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 ... 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 ... [Citations omitted.]

Schneckloth v. Bustamonte (1973), 412 U.S. 218, 225-26, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854, 861. In determining whether a defendant's confession was voluntary, the United States Supreme Court has assessed the totality of all the surrounding circumstances, including the characteristics of the accused and the details of the interrogation. Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2046, 36 L.Ed.2d at 861. Significantly, none of the decisions regarding the admissibility of a confession turns on the presence or absence of a single controlling criterion, each reflects a careful scrutiny of all the surrounding circumstances. Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2046, 36 L.Ed.2d at 861. Accordingly, this Court has held that an analysis of the voluntariness of a confession is a factual question that must take into account the totality of the circumstances. State v. Mayes (1992), 251 Mont. 358, 376, 825 P.2d 1196, 1208 (citing Allies, 606 P.2d at 1050).

Pursuant to § 46-13-301(1), MCA, a defendant may move to suppress a confession that the defendant feels was involuntary. This section places the burden on the State to prove by a preponderance of the evidence that the confession was voluntary. The central question is whether the State has established by a preponderance of the evidence that the defendant was advised of his constitutional rights and whether that defendant knowingly waived them and voluntarily gave a statement. State v. Blakney (1982), 197 Mont. 131, 143, 641 P.2d 1045, 1051.

Several factors can culminate in a totality of circumstances that render a confession involuntary. A confession extracted by any sort of threat or violence, by any direct or implied promises, however slight, or by the exertion of any improper influence has the potential to be involuntary. State v. Phelps (1985), 215 Mont. 217, 224, 696 P.2d 447, 451. Physical coercion, psychological coercion, inadequate Miranda warnings, and impermissible police practices are each factors weighed in a court's consideration of undue influence. Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461 (holding that physical brutality led to an involuntary confession); Payne v. Arkansas (1958), 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (holding that mental coercion led to an involuntary confession); Miranda, 384 U.S. 436, 86 S.Ct. 1602 (holding that failure to warn defendant of rights rendered confession...