State v. Kirkwood

• Decision Date: 26 September 1986
• Docket Number: No. 16413,16413
• Citation: 726 P.2d 735,111 Idaho 623
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Miles "Mike" KIRKWOOD, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 735

726 P.2d 735

111 Idaho 623

STATE of Idaho, Plaintiff-Respondent, v. Miles "Mike" KIRKWOOD, Defendant-Appellant.

No. 16413.

Supreme Court of Idaho.

Sept. 26, 1986.

Timothy J. Gass, Boise, for defendant-appellant.

Jim Jones, Atty. Gen., and Lynn E. Thomas, Sol. Gen., Boise, for plaintiff-respondent.

HUNTLEY, Justice.

The issue on appeal is whether the Court of Appeals incorrectly refused to enforce I.C.R. 12(d), a rule of procedural default, by requiring the trial court to render findings of fact as to the voluntariness of the defendant's confession where findings were not requested by either of the parties.

Miles "Mike" Kirkwood was convicted by a jury of first-degree murder for stabbing his ex-wife to death in her home. Police arrested Kirkwood at the house and took him to the Ada County jail, where he gave two statements admitting the killing. The record contained conflicting evidence regarding whether the first confession was involuntarily induced by coercive treatment by the police. Accordingly, Kirkwood asserted that the second confession was "fruit of the poisonous tree" and, thus, also inadmissible. Kirkwood was read his Miranda rights prior to both statements and signed documents acknowledging that he had been given those rights and that he understood them.

Prior to trial, Kirkwood moved to suppress the confessions. The trial judge took the motion under advisement and instructed both parties that he would inform them of his decision prior to trial. It appears from the record that the trial judge inadvertently failed to rule on the motion, and proceeded as if the motion had been denied, admitting the confessions. ¹ During the trial, defense counsel did not object to the admission of the taped confessions, and the trial proceeded twelve days after the suppression hearing without the court having ruled on the motion. Subsequently, Kirkwood was convicted by a jury of first-degree murder.

On appeal, the Court of Appeals ruled that the trial court's failure to make factual findings as to whether the confessions were voluntary, necessitated that Kirkwood's conviction be vacated and the case remanded to the trial court for findings of fact.

The Court of Appeals, in ruling that such findings of fact constituted an exception to the I.C.R. 12(d) requirement providing that the trial court make factual findings only "upon the request of any party," held that an appellate court could not resolve the ultimate question of voluntariness without some "basic facts." The Court of Appeals, in vacating the judgment of conviction and remanding, 110 Idaho 97, 714 P.2d 66, directed the trial court to make findings of fact as to whether the confessions were voluntary.

We set aside the decision of the Court of Appeals and affirm the judgment of conviction.

I.C.R. 12(d) provides:

Ruling on motion.--A motion made before trial shall be determined before trial unless the court orders that it be deferred for determination at the trial of the general issue. When factual issues are involved in the determination of the motion, the court, upon the request of any party, shall make its findings thereon. (Emphasis added).

Rule 12(e) further provides:

Effect of failure to raise defenses or objections.--Failure by the defendant to raise defenses or objections or to make requests which must be made prior to trial, or at the time set by the court pursuant to subsection (c), or prior to any extension thereof made by the court, shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver. (Emphasis added).

This Court has held that the question of voluntariness is controlled by State v. Dillon, 93 Idaho 698, 471 P.2d 553 (1970), cert. den.; Dillon v. Idaho, 401 U.S. 942, 91 S.Ct. 947, 28 L.Ed.2d 223 (1971), which established the rule that the question of the "voluntariness [of defendant's statement] is, in the first instance, a question of law for the trial court." State v. Mitchell, 104 Idaho 493, 495, 660 P.2d 1336, 1338, cert. den.; Mitchell v. Idaho, 461 U.S. 934, 103 S.Ct. 2101, 77 L.Ed.2d 308 (1983). In Dillon, supra, we adopted the so-called "Massachusetts rule" holding that:

"[t]he trial court in the absence of the jury resolves the issue of voluntariness and then determines the admissibility of a criminal defendant's statements. The trial court must find them to have been shown to be admissible by a preponderance of the evidence." Dillon, [93 Idaho] at 709-10, 471 P.2d at 564-65 (footnote omitted).

Although not conclusive, an express written statement waiving Miranda rights is usually strong proof of voluntary waiver. State v. Padilla, 101 Idaho 713, 719, 620 P.2d 286, 292 (1980). Additionally, "[I]n [a suppression hearing] the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court." People v. Lawler, 9 Cal.3d 156, 107 Cal.Rptr. 13, 15, 507 P.2d 621, 623 (1973). The implicit findings of the trial court, (i.e., that statements of the defendant made to the police were voluntary and should not be suppressed) should be overturned only if not supported by substantial evidence. See Mitchell, supra 104 Idaho at 500, 660 P.2d at 1341.

The Supreme Court of California has stated that on appeal of a motion to suppress evidence:

"[a]ll presumptions favor the [trial court's] exercise of [the power to weight the evidence and draw factual inferences] and the trial court's findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence." Lawler, 507 P.2d at 623 (emphasis added).

Kirkwood claims that motions to suppress evidence are governed by the "fundamental error" doctrine, which, in effect, would preclude the defense attorney from ever waiving any objection. In State v. Kelly, 106 Idaho 268, 678 P.2d 60 (Ct.App.1984) cert. den. and Kelly v. Idaho, 469 U.S. 918, 105 S.Ct. 296, 83 L.Ed.2d 231 (1984), the Court of Appeals addressed this argument, noting that:

"[s]uppression of evidence is a matter required by Rule 12, I.C.R., to be raised before trial. If an issue relating to suppression of evidence is not timely raised before trial, it is waived. A district court, as a matter of discretion, may--but is not required to--consider the issue later. [Citations omitted]. However, where--as here--the asserted error relates not to infringement upon a constitutional right, but to violation of a rule or statute, we hold that the "fundamental error" doctrine is not invoked." Id. 106 Idaho at 277, 678 P.2d at 69. (Emphasis added).

However, even "fundamental rights" may be waived. As the Supreme Court of Washington noted, the fact that the rights are of constitutional magnitude does not prevent a waiver. State v. Myers, 545 Wash.2d 538, 545 P.2d 538, 543 (1976). See, e.g., Rasmussen v. Tahash, 272 Minn. 539, 141 N.W.2d 3 (1965) (Defendant waived right to object to the introduction of confession by not requesting a hearing on the voluntariness of his confession); State v. McDaniel, 136 Ariz. 188, 665 P.2d 70 (1983) (the failure to object to offer of evidence is a waiver of any ground of complaint against its admission); State v. Miles, 233 Kan. 286, 662 P.2d 1227 (1983) (absent some objection or motion by defendant to the admission of his confession or admission, the United States Constitution does not require a hearing on voluntariness to be held prior to the confession's admission into evidence).

In Myers, supra, the trial judge, despite a rule requiring the formal entry of written findings of fact, "did not make any findings on the question of whether the statements were voluntarily made, and no formal written findings were otherwise made. The appellant contend[ed] that under these circumstances ... the case should be remanded for a determination of whether the statements in question were made voluntarily." 545 P.2d at 543. The court noted that since no objection was made, the conduct of the appellant was sufficient to constitute an effective waiver. 545 P.2d at 543. In light of the authority cited, Kirkwood's failure to object at trial to the admission of his confession was an effective waiver to a complaint that such confession was not voluntarily made.

Kirkwood next argues that Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) stands for the proposition that the accused must have a clear-cut and reliable determination of the voluntariness of his confession before it can be introduced against him at trial, apparently contending that a failure to render an explicit determination obviates his waiver. The U.S. Supreme Court, however, has addressed and rejected this argument. In Wainright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 reh. den., 434 U.S. 880, 98 S.Ct. 241, 54 L.Ed.2d 163 (1977), the defendant urged, as does Kirkwood, that Jackson v. Denno, supra, requires a voluntariness hearing despite defendant's failure to object. In rejecting this argument, Justice Rehnquist, speaking for the majority noted that:

Respondent ... urges that a defendant has a right under Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), to a hearing as to the voluntariness of a confession, even though the defendant does not object to its admission. But we do not read Jackson as creating any such requirement. In that case the defendant's objection to the use of his confession was brought to the attention of the trial court, ... and nothing in the Court's opinion suggests that a hearing would have been required even if it had not been. To the contrary, the Court prefaced its entire discussion of the merits of the case with a statement of the constitutional rule that was to prove dispositive--that a defendant has a "right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness...." "Language in subsequent ...