State v. Hermes

• Decision Date: 19 October 1995
• Docket Number: No. 94-211,94-211
• Citation: 904 P.2d 587,273 Mont. 446
• Parties: STATE of Montana, Plaintiff and Appellant, v. Benedict John HERMES, Defendant and Respondent.
• Court: Montana Supreme Court

Page 587

904 P.2d 587

273 Mont. 446

STATE of Montana, Plaintiff and Appellant, v. Benedict John HERMES, Defendant and Respondent.

No. 94-211.

Supreme Court of Montana.

Submitted on Briefs July 27, 1995.

Decided Oct. 19, 1995.

Joseph P. Mazurek, Attorney General; Jennifer Anders, Asst. Attorney General, Helena, Charles Sprinkle, Lincoln County Attorney; Bernard G. Cassidy, Deputy County Attorney, Libby, for appellant.

Amy N. Guth, Public Defender's Office, Libby, for respondent.

GRAY, Justice.

The State of Montana (State) appeals from the order of the Nineteenth Judicial District Court, Lincoln County, suppressing a statement of Benedict Hermes (Hermes). We affirm.

We address the following issues on appeal:

1. Did the District Court err in suppressing Hermes' statement after finding that the statement was involuntary?

2. Did the District Court err in determining that the State could not use Hermes' statement for impeachment purposes?

In September of 1993, Detective Craig Martin (Martin) of the Lincoln County Sheriff's Office received information from Jeff Wedel (Wedel), a social worker with the Montana Department of Family Services, that Hermes had sexually assaulted S.S., a minor child. Martin interviewed S.S. and her father about the incident on September 23, 1993. Later the same day, Martin and Wedel went to Hermes' residence in an isolated part of Lincoln County, where Martin interviewed Hermes in Wedel's pickup truck. Martin recorded the statement.

On October 12, 1993, the State charged Hermes by information with the offense of sexual intercourse without consent. Hermes pled not guilty.

Hermes subsequently moved to suppress the statement taken by Martin on the grounds that the statement was involuntary. The District Court held a hearing on the motion at which Martin, Hermes and Hermes' father testified. Thereafter, the court entered findings with regard to the circumstances under which Martin obtained Hermes' statement and ultimately found that the statement was involuntary. On that basis, the District Court entered its order and memorandum suppressing the statement from use at trial for all purposes. The State appeals.

1. Did the District Court err in suppressing Hermes' statement after finding that the statement was involuntary?

Psychological pressure exerted upon a defendant to procure a confession renders the confession involuntary. State v. Allies (1979), 186 Mont. 99, 112, 606 P.2d 1043, 1050 (citations omitted). An involuntary confession violates a criminal defendant's Fifth and Fourteenth Amendment privileges against self-incrimination and may not be used as evidence at trial without violating the defendant's Fourteenth Amendment right to due process of law. State v. Lenon (1977), 174 Mont. 264, 271, 570 P.2d 901, 906 (citations omitted). Moreover, § 46-13-301(1), MCA, specifically authorizes a motion to suppress any confession or admission given by a defendant on the basis that the statement was involuntary. The State has the burden of proving by a preponderance of the evidence that the confession or admission was voluntary. Section 46-13-301(2), MCA.

By placing the "preponderance of evidence" burden of proof on the State, § 46-13-301, MCA, clarifies that the question of voluntariness is primarily one of fact. We consistently have emphasized that point by stating, for example, that "[a]n analysis of the voluntariness of a confession is a factual question which must take into account the totality of the circumstances." State v. Mayes (1992), 251 Mont. 358, 376, 825 P.2d 1196, 1208 (citation omitted).

The District Court listened to the taped interview at issue and held a hearing on the admissibility of Hermes' statement. The court found that, after Hermes agreed to talk with Martin, Martin's tone of voice and questions changed as he "[went] on the offensive." The court noted that the interview took place in a "small enclosure" with a third person sitting behind Hermes and found that this was a coercive setting. The court also noted that Martin did not advise Hermes of his rights pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

The District Court set forth some of the questions Martin asked Hermes. Each such question was phrased in a way that assumed Martin sexually assaulted S.S. The court noted that Martin never asked Hermes what happened and found that Martin asked Hermes exclusively accusatory questions. The District Court found that Martin's accusatory questions compounded the coercion already present in the interview setting.

In an order and supporting memorandum dated February 10, 1995, the District Court made findings regarding the coercive nature of Martin's interrogation of Hermes and ultimately found that the State did not prove by a preponderance of the evidence that Hermes' confession was voluntary. Additionally, the court found that Martin used psychological pressure to induce Hermes' confession and, as a result, that Hermes' confession was involuntary.

We review a district court's findings of fact regarding suppression hearing evidence to determine whether they are clearly erroneous. State v. Kaluza (1993), 262 Mont. 360, 361, 865 P.2d 263, 264; State v. Cope (1991), 250 Mont. 387, 396, 819 P.2d 1280, 1286. A finding of fact is clearly erroneous if it is not supported by substantial evidence or, if it is so supported, the trial court misapprehended the effect of the evidence or if this Court is left with a definite and firm conviction that a mistake has been committed. State v. Bower (1992), 254 Mont. 1, 7, 833 P.2d 1106, 1110 (citation omitted).

In this regard, we note that our recent decisions in State v. Stubbs (1995), 270 Mont. 364, 892 P.2d 547, and in State v. Rushton (1994), 264 Mont. 248, 870 P.2d 1355, inadvertently reverted to a "substantial credible evidence" standard of review for a court's findings relating to suppression evidence. We take this opportunity to reaffirm our holding in Cope, with regard to the standard of review, that "we will not overturn a District Court's findings of fact regarding suppression hearing evidence unless those findings are clearly erroneous." Cope, 819 P.2d at 1286.

Voluntariness depends on the facts of each case, with no fact being dispositive. Allies, 606 P.2d at 1050 (citation omitted). In determining whether a confession is voluntary under the totality of circumstances test, courts consider the characteristics of the defendant and what transpired during the interview. Schneckloth v. Bustamonte (1973), 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854, 862. We have reviewed district court findings of fact under the totality of circumstances test many times and, in doing so, we have determined that the following factors, among others, are relevant: the defendant's age and level of education (State v. Davison (1980), 188 Mont. 432, 442, 614 P.2d 489, 495); the interrogation technique and whether the defendant was advised of his Miranda rights (Allies, 606 P.2d at 1050); the defendant's prior experience with the criminal justice system and police interrogation (State v. Craig (1993), 262 Mont. 240, 242, 864 P.2d 1240, 1242); and the defendant's background and experience (Matter of J.W.K. (1986), 223 Mont. 1, 6, 724 P.2d 164, 167).

The record before us is replete...