State v. Labbe

• Decision Date: 10 April 2012
• Docket Number: No. DA 11–0050.,DA 11–0050.
• Citation: 2012 MT 76,364 Mont. 415,276 P.3d 848
• Parties: STATE of Montana, Plaintiff and Appellee, v. Roger Liner LABBE, Defendant and Appellant.
• Court: Montana Supreme Court

364 Mont. 415

276 P.3d 848

2012 MT 76

STATE of Montana, Plaintiff and Appellee,

v.Roger Liner LABBE, Defendant and Appellant.

No. DA 11–0050.

Supreme Court of Montana.

Submitted on Briefs Feb. 29, 2012.

Decided April 10, 2012.

For Appellant: Joslyn Hunt, Chief Appellate Defender; Lisa S. Korchinski, Assistant Appellate Defender; Helena, Montana.

For Appellee: Steve Bullock, Montana Attorney General; Micheal S. Wellenstein, Assistant Attorney General; Helena, Montana; William E. Fulbright, Ravalli County Attorney; Hamilton, Montana.

Justice JIM RICE delivered the Opinion of the Court.

[364 Mont. 416]¶ 1 Roger Labbe (Roger) appeals from an order of the Twenty–First Judicial District, Ravalli County, denying his motion to suppress statements he made to police officers. He also argues that the District Court erred by overruling his objection to a statement made by the prosecutor during closing argument. We address the following issues:

¶ 2 1. Did the District Court err when it denied Roger's motion to suppress statements he made to police outside his house?

¶ 3 2. Did the District Court err by overruling Roger's objection to the prosecutor's statement during closing argument?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 Roger, age 69, lived with his sister, Shirley Cote (Shirley), age 71. On May 21, 2010, Shirley was talking on the telephone to a computer technician about problems she was having with her computer. The call ended when Shirley hung up on the technician. The technician called back, and Roger answered the phone. Shirley insisted that Roger get off the phone, but Roger refused. Shirley responded by throwing two books at the back of Roger's chair. Roger claimed that Shirley became very angry and started to scratch his face and arms and otherwise became hysterical. Although Roger and Shirley's versions differed, at some point Roger grabbed Shirley and placed her on a bed, restricting her movement. Roger claimed Shirley continued to struggle and that he slapped her to “calm her down.” Shirley claimed that Roger choked her until she could not breathe. Both indicated that Roger told Shirley he would kill her if she didn't stop struggling. Roger eventually let Shirley go, and Shirley walked to her daughter's house on an adjoining property.

¶ 5 Shirley or her daughter then called for an ambulance and police. Two members of the Ravalli County Sheriff's Office arrived on the scene shortly after the ambulance. Deputy Joe Marble was the first officer to arrive and talk to Shirley about her version of events. As Deputy Marble was leaving the house to contact Roger about his version of the events, Sgt. Hudson arrived and accompanied Deputy Marble.

¶ 6 The officers pulled into Roger's driveway, up to a driveway gate. Upon their arrival, Roger exited the house, walked up to the gate, opened it, and closed it behind him as he approached the officers, talking the entire way. The officers testified that they did not motion for Roger to come to them, did not call him or otherwise indicate that he should talk to them, and that he exited the house on his own. The officers testified Roger appeared to be agitated, seemingly angry, and that he acted “[a]lmost hyper” when telling his side of the story.

¶ 7 Roger told the officers his sister had thrown two books at him and had scratched his face and arms. He said he slapped her and held her down on the bed because she “went bananas.” The officers talked with Roger for a couple minutes and asked several questions, giving him a Miranda warning during the conversation, to which Roger replied, “Yes, of course I understand the rights. I'm an ex-con.” He further stated he was willing to talk with them. Roger then reiterated that he held his sister down on the bed, slapped her, and threatened to kill her if she didn't knock it off but insisted he did not strangle her as she claimed. Roger was eventually arrested and charged with aggravated assault, a felony, in violation of § 45–5–202, MCA, and partner or family member assault, a misdemeanor, in violation of § 45–5–206(1)(a).

¶ 8 Roger moved to suppress his statements. He conceded his initial statements were spontaneous but argued that everything he said after the officers asked questions should be suppressed because the Miranda warning was ineffective. He asserted the warning was ineffective because he was then in custody, and the officers had employed an impermissible “question first, warn later” interrogation technique. The District Court denied the motion, ruling that Roger was not in custody at the time, and, therefore, a Miranda warning was unnecessary.

¶ 9 Roger proceeded to a jury trial and was acquitted of aggravated assault but convicted of partner or family member assault. During closing argument, the prosecutor likened the burden of proof standard of “beyond a reasonable doubt” to whether jurors would allow Roger to babysit their children. Roger objected on the ground that the statement mischaracterized the burden of proof, and the District Court overruled the objection. Roger appeals from the District Court's denial of his motion to suppress and the denial of his objection to the prosecutor's statement.

STANDARD OF REVIEW

¶ 10 This Court reviews a district court's decision to grant or deny a motion to suppress to determine whether the court's underlying findings of fact are clearly erroneous and whether the court correctly interpreted and applied the law to those facts. State v. Main, 2011 MT 123, ¶ 12, 360 Mont. 470, 255 P.3d 1240 (citations and quotations omitted). In determining whether a district court's findings of fact are clearly erroneous, we consider whether the findings are supported by substantial evidence, whether the district court misapprehended the effect of the evidence, or whether this Court's review of the record leaves it with a definite and firm conviction that a mistake has been made. State v. Lacey, 2009 MT 62, ¶ 27, 349 Mont. 371, 204 P.3d 1192 (citation omitted).

¶ 11 “We review allegations of prosecutorial error de novo, ‘considering the prosecutor's conduct in the context of the entire proceeding.’ ” State v. Roundstone, 2011 MT 227, ¶ 13, 362 Mont. 74, 261 P.3d 1009 (quoting State v. Rardon, 2005 MT 129, ¶ 14, 327 Mont. 228, 115 P.3d 182).

DISCUSSION

¶ 12 1. Did the District Court err when it denied Roger's motion to suppress statements he made to police outside his house?

¶ 13 Under the Fifth Amendment to the United States Constitution and Article II, Section 25 of the Montana Constitution, no person can be compelled to be a witness against himself in a criminal case. State v. Olson, 2003 MT 61, ¶ 13, 314 Mont. 402, 66 P.3d 297. The U.S. Supreme Court held in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that a prosecutormay not use statements that stem from the custodial interrogation of a defendant unless the defendant has been warned, prior to questioning, that he has the right to remain silent, to have an attorney present, and that any statements he makes may be used as evidence against him. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. “Miranda warnings are not required to be given by law enforcement unless a person is subject to a custodial interrogation.” State v. Reavley, 2003 MT 298, ¶ 18, 318 Mont. 150, 79 P.3d 270 (citing State v. Dawson, 1999 MT 171, ¶ 30, 295 Mont. 212, 983 P.2d 916). One is “in custody” when his freedom of action has been deprived in any significant way or if his “freedom of action has been curtailed to a degree associated with a formal arrest.” Reavley, ¶ 18 (citing Dawson, ¶ 30).

¶ 14 Roger concedes that his initial statements, set forth below, were spontaneous and that a Miranda warning was not necessary:

. . . . .

Roger: Goin' out of her mind. I slapped her.

Dep. Marble: Do you have any weapons on ya'?

Roger: Oh, no, no, no.

Dep. Marble: Okay. Just turn around and just let me check real quick.

Roger: I was gonna call you guys and my niece says, “Don't call. We'll talk about it.” And what does she do? She calls you, that's how much of talking she did.

Dep. Marble: Okay.

Roger: I'm not the troublemaker here ... my sister is totally gone, totally gone.... I've been living with her for five months now and I've been tryin' to deal with it. But ... today she ... comes in my room. Sh, two big books of mine, she starts throwin' ‘em at me. And I got, she won't deny it, I hope. And then and I'm tryin’ to hold her down, she scratches the shit outta me. I slapped her. All because I'm talkin' to a guy that called me about her business line, the, the guy is tryin' to do his job. He's a computer wiz, one of these geeks, you know?

Dep. Marble: Mm Hmm (indicating “yes”).

Roger: He's tryin' to do his job and because I'm talkin' to the guy, she doesn't want, she, she's gettin' all upset. She's gone nuts. She starts throwin' books at me. And ... I've got evidence on this because the guy's listening to it the whole thing.... The guy is beside himself. I says, “Listen, I'll call you back.” ...

Roger asserts that the officers should have administered a Miranda warning right at this point because they started asking questions, and he was then in custody. Because the officers did not administer a warning until later, he argues the warning was untimely and insufficient and that all statements he made after Deputy Marble's first question, including those statements he made after waiving his Miranda rights, should be suppressed pursuant to Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004).

¶ 15 In Seibert, the police purposely employed a “question first, warn later” technique whereby they interrogated the defendant until she confessed, then provided a Miranda warning and re-questioned her, recording both the Miranda warning and her post-Miranda confession. Seibert, 542 U.S. at 604–05, 124 S.Ct. at 2606. The Supreme Court held this practice violated the defendant's right against self-incrimination and affirmed the Missouri Supreme...