State v. Honey

Decision Date03 May 2005
Docket NumberNo. 03-809.,03-809.
Citation327 Mont. 49,2005 MT 107,112 P.3d 983
PartiesSTATE of Montana, Plaintiff and Respondent, v. Samuel Alexander HONEY, Defendant and Appellant.
CourtMontana Supreme Court

For Appellant: Charles E. Umhey III, Attorney at Law, Hamilton, Montana.

For Respondent: Honorable Mike McGrath, Montana Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana; George H. Corn, Ravalli

County Attorney, William E. Fulbright, Deputy County Attorney, Hamilton, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Samuel Alexander Honey (Honey) appeals the Twenty-First Judicial District Court's denial of his motion to suppress his confession of multiple burglaries and thefts. He also challenges the District Court's Order sentencing him to pay restitution to his victims and to forfeit his posted cash bond, which was then applied toward his restitution obligation. We affirm in part and reverse and remand in part.

ISSUES

¶ 2 Honey raises the following issues on appeal:

¶ 3 Did the District Court err in denying his pretrial suppression motion?

¶ 4 Did the District Court impose an illegal sentence when it ordered Honey to pay restitution without suspending or deferring any portion of his sentence?

¶ 5 Did the District Court err in ordering forfeiture of the cash bail posted by Honey for payment of restitution?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 6 In December 2001, the Ravalli County Sheriff's Office (RCSO) received reports that a home construction site in Darby, Montana, had been broken into twice within several days and approximately $8,000 worth of tools and equipment was stolen. The RCSO also received tips that Honey, who was eighteen, and two of his friends and roommates, Justin Hadley and J.R. Olson, committed the burglaries. Detective Burlingham of the RCSO was assigned to the case and tried to reach Honey at Honey's residence on several occasions but Honey never responded to Burlingham's phone or written messages.

¶ 7 On the morning of February 13, 2002, Burlingham arrested Hadley, who had possession of some of the stolen goods and who confessed that he, Honey, Olson, and a female friend had committed the crimes. Burlingham also interviewed Olson that morning. That afternoon, Burlingham traveled to Honey's place of employment and waited in the parking lot for Honey to get off work, at which time he asked Honey to sit with him in his squad car and discuss some reported thefts. Burlingham immediately told Honey that he was not under arrest. Burlingham also told Honey he was going to audiotape their conversation, and he did so. Honey asked whether the discussion was going to be about his complaint some months earlier that he had been the victim of a theft. Burlingham responded that it would be about that theft and "some others." He then read Honey his Miranda rights and asked Honey to sign the Miranda waiver form. Honey suggested that perhaps he needed a lawyer. Burlingham then agreed to discuss only Honey's reported theft, after which Honey signed the Miranda waiver. While Honey was signing the waiver, Burlingham informed Honey that, earlier in the day, he had arrested Hadley and had interviewed Olson at the RCSO.

¶ 8 The audiotape reflects that, after spending several minutes discussing Honey's reported theft, Burlingham specifically told Honey that he was not under arrest and that he could leave the detective's car at any time; in fact, the car door by Honey remained open throughout most, if not all, of their discussion. The detective also suggested that it would be in Honey's "best interest at least to listen to what [Burlingham had] to say." Honey agreed to do so. Burlingham told him that after listening if Honey did not want to talk to him, he did not have to. Again, Honey agreed. Burlingham then described the construction site burglaries based upon Hadley's confession in which he revealed that Olson and Honey also participated. At the end of the description of this burglary, Burlingham said, "Now, you need to make a decision . . . . do you wanta' talk to me about these things or do you just wanta' walk away? It's strictly up to you." Honey replied, "Well, I don't know but ____ like I said I should probably have a lawyer present for any other ____." (Dashes in interview transcript.) Burlingham immediately responded, "There you go. That'll work for me." Honey attempted to explain that he wanted to find out from a lawyer what "the best course of action" would be. Burlingham stated, "Okay. This is the only time you're gonna' get a chance to talk to me `cause I'm not gonna' talk to you again. You've already invoked your rights so Adios." Honey then asked Burlingham, "What's that supposed to mean? You make it sound like the next time you're talkin' to me, I'm gonna' be in handcuffs." Burlingham agreed, "You probably will. You probably will `cause I know you're involved and I can prove it. You know a guy over in . . . Oregon, Albany, by the name of Mr. Shawn Wolf?" Honey replied, "No I don't." Burlingham told him that he would soon. He then ordered Honey out of his car. Honey persisted in questioning Burlingham despite Burlingham's repeated commands to get out of his car. Honey then indicated that he would talk willingly to Burlingham about the burglary. Burlingham instructed Honey that any further discussion would have to take place at the RCSO. He then gave Honey the option, four different times, that "if" Honey wanted to talk about it, Honey would have to drive himself to RCSO and meet Burlingham there. Honey asked for directions to the Sheriff's Office.

¶ 9 Burlingham left the premises and Honey, driving his own car, followed him approximately thirty-five miles to the RCSO. Along the way, Honey pulled into a roadside parking lot. Burlingham testified that because he did not know whether Honey would hurt himself, he turned around and pulled next to Honey in the parking lot to check on him. After confirming that Honey was all right, Burlingham proceeded to the RCSO, followed by Honey.

¶ 10 Upon arrival at the RCSO, Burlingham and Honey went to an interview room with videotape equipment and the equipment was activated. Burlingham pointedly asked Honey if he drove to the RCSO because he wanted to talk to the detective about the aforementioned thefts. Honey replied that he did. Burlingham showed Honey the Miranda waiver he had signed earlier, and also confirmed that Honey had invoked his rights at the earlier interview. Honey explained that his mother "always said get a lawyer." Honey then stated that he wanted to talk to Burlingham about the burglaries now, and he signed an unconditional Miranda waiver. Burlingham explained to Honey that he was not under arrest at that time, that Burlingham would not arrest him that day regardless of what Honey told him, and that Honey was free to leave at any time. During the one and one-quarter hour interview that followed, Honey confessed to two burglaries at the construction site and one burglary at a Stevensville, Montana, barn. At the conclusion of the interview, Honey left.

¶ 11 On March 4, 2002, the State filed an Information against Honey for one count of felony burglary, one count of felony theft and one count of misdemeanor theft. On March 13, 2002, Honey posted a $10,000 cash bond. On April 3, 2002, the State amended the Information to include another count of felony burglary and another count of felony theft. These additional counts, based on information revealed to Burlingham by Hadley, stemmed from three thefts from the Stevensville barn committed by Honey and Hadley, and perhaps Olson.

¶ 12 Honey, represented by counsel, entered a plea of not guilty to all counts. On June 3, 2002, Honey filed a Motion to Suppress arguing that his confession was not voluntary and that he was denied his right to an attorney. The District Court held a hearing on the Motion on July 11, 2002. On September 17, 2002, the District Court denied Honey's Motion. After a trial on January 27 and 28, 2003, a jury found Honey guilty of all counts. On May 14, 2003, the District Court sentenced Honey to five years with the Department of Corrections for each felony count, to be served concurrently. It sentenced him to thirty days at the detention center for the misdemeanor charge, with full credit given for time served before sentencing. Additionally, the District Court ordered Honey to pay restitution, jointly and severally with Hadley and Olson, to the victims of their crimes, totaling $14,686. Lastly, the District Court ordered forfeiture of Honey's $10,000 cash bond and directed that these funds be paid to the crime victims for restitution. The court instructed that, to the extent Hadley and Olson paid restitution, some portion of their payments would go to Honey to reimburse him for paying more than one-third of the total restitution amount. Honey appeals the District Court's denial of his motion to suppress, the order of restitution, and the forfeiture of the cash bond.

STANDARD OF REVIEW

¶ 13 The standard of review of a district court's denial of a motion to suppress evidence is whether the court's findings are clearly erroneous. To determine whether a finding of fact is clearly erroneous, this Court ascertains whether the finding is supported by substantial evidence, whether the district court misapprehended the effect of the evidence, and whether the Court is nevertheless left with a definite and firm conviction that the district court made a mistake. We further review a district court's denial of a motion to suppress to determine whether the court's interpretation and application of the law are correct. This Court's review is plenary as to whether the district court correctly interpreted and applied the law. State v. Martinez, 2003 MT 65, ¶ 19, 314 Mont. 434, ¶ 19, 67 P.3d 207, ¶ 19 (internal citations omitted).

¶ 14 We review a criminal...

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