State v. Lucero

• Decision Date: 01 October 1968
• Docket Number: No. 11493,11493
• Citation: 151 Mont. 531,445 P.2d 731
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Ramona LUCERO, Defendant and Appellant.
• Court: Montana Supreme Court

Page 731

445 P.2d 731

151 Mont. 531

The STATE of Montana, Plaintiff and Respondent, v. Ramona LUCERO, Defendant and Appellant.

No. 11493.

Supreme Court of Montana.

Oct. 1, 1968.

Guy C. Derry (argued), Billings, Harold F. Hanser (argued), Billings, for appellant.

Forrest H. Anderson, Atty. Gen., Helena, Donald Douglas (argued), Asst. Atty. Gen., Helena, John L. Adams, Jr., (argued), County Atty., Billings, for respondent.

HASWELL, Justice.

This is an appeal by defendant from a manslaughter conviction involving the death of her husband by stabbing. The case was tried by jury in the district court of Yellowstone County before the Honorable E. E. Fenton, District Judge.

The principal question in this appeal is the admission in evidence at the trial of a written statement signed by defendant in the Yellowstone County jail about two and one-half hours after her arrest and incarceration. The statement was secured by a deputy sheriff during his interrogation of the defendant without counsel at 2:40 o'clock a. m.

Defendant is Ramona Lucero, a 34 year old American of Mexican descent. She was born in Montana and lived here most of her life, working in the sugar beet fields. Her formal schooling had terminated in the third grade. Defendant usually spoke Spanish although she could and did speak English reasonably well. She had some difficulty reading English.

The victim in this case was John Lucero, defendant's husband. He, the defendant, and Patrick Little Boy, an Indian from Lodge Grass who was spending the night at a nearby house, were in the Lucero residence on Billings' south side late in the evening of September 29, 1967. The evidence, both direct and circumstantial, is conflicting as to just what happened thereafter. According to Patrick Little Boy, he left the Lucero residence within five or ten minutes and returned to the nearby house where he was staying overnight. He then went to an outside privy and while there something directed his attention to the Lucero house. He got 'curious', observed defendant going from the Lucero house to their landlord's house nearby, walked over to the bedroom window of the Lucero house, and looked in. He saw John Lucero sitting on the bedroom floor, holding his side, with blood on the floor.

Defendant testified at the trial that she was sitting on the bed in the Lucero bedroom when her husband tried to kill her with a knife. She pushed his knife hand away, got out of his grasp, and ran outside. She doesn't remember where she went then but eventually she returned and found her husband in the bedroom of their house sitting on the floor. She thought he was just drunk, got him onto the bed, opened his trousers, but didn't observe that he was hurt. She didn't see any blood on the floor. She was changing her dress when the law enforcement officers arrived.

Deputy Sheriff Jake Bromgard and Deputy Sheriff Nile Proffer arrived at the Lucero residence in separate cars about 12:05 a. m., having been summoned there by Patrick Little Boy. When they arrived they observed defendant standing in the doorway between the kitchen and the bedroom pulling her dress down. There was a light on in the kitchen but no light bulb in the bedroom. They found defendant's husband lying in blood on a bed in the bedroom. The floor was covered with blood and bloody rags and there was a bloody mop in the kitchen. A quilt type covering was hanging over the bedroom window.

John Lucero had no pulse. A short time later the coroner arrived and pronounced him dead. The cause of death was a stab wound in the general area of the groin that had severed the main artery in his leg causing him to bleed to death.

Some three or four minutes after Deputy Bromgard's arrival at the Lucero house and before the coroner arrived, he took defendant into custody and put her in his car. According to Deputy Bromgard, defendant was 'under the influence of alcohol' at that time. He told her she was under arrest 'for an assault on her husband' and took her to jail, arriving there at 12:15 a. m.

Deputy Bromgard returned to the Lucero residence and continued his investigation. He returned to the jail and shortly before 2:40 a. m. he and Betty Weeks, the matron and deputy sheriff, went to defendant's cell. They found defendant sleeping in her cell, awakened her with some difficulty, told her that her husband was dead, and said they wanted to talk to her 'concerning her husband'.

According to Deputy Bromgard, he orally gave her the Miranda warning from memory, defendant voluntarily consented to give them a statement, and they went to an interrogation room. Upon arriving at the interrogation room, Deputy Bromgard read the Miranda warning and the waiver of her constitutional rights to defendant from two printed paragraphs at the top of the sheet on which defendant's statement was subsequently taken. Defendant said she understood them and signed the waiver of her constitutional rights.

Deputy Bromgard then began his interrogation, taking down the information secured in his own handwriting in narrative form. Upon completion he read the printed Miranda warning, the waiver, and what he had written. Defendant then signed the statement on the bottom of each of the five pages on which the statement was written.

Broadly speaking, defendant's statement consisted of a categorical denial that she stabbed her husband, provided her with an alibi, and tended to cast suspicion on Patrick Little Boy. It differed from her testimony at the trial in some respects. The main difference was that the statement indicated she went to an outside privy, leaving her husband and Patrick Little Boy in the house, and on her return found Patrick Little Boy gone and her husband sitting on the bedroom floor bleeding.

On October 2, 1967, the county attorney charged defendant with murder. Thereafter an attorney was appointed by the district court to represent defendant, she entered a plea of 'Not Guilty' and trial commenced on November 27, 1967.

During the course of the trial, the admissibility of defendant's statement in evidence became an issue. The trial judge received foundation testimony outside the presence of the jury relating to the circumstances under which the statement was given and after indicating that he considered the statement admissible, the foundation testimony was again given in the presence of the jury. The statement was then admitted in evidence over defendant's objection. Thereafter Deputy Bromgard, who was then on the witness stand, was permitted to read the entire statement to the jury, including the Miranda warning and the waiver of constitutional rights, in the manner he had read the same to defendant prior to her signing it.

The jury found defendant guilty of manslaughter and she was subsequently sentenced to six years in the state prison. After denial of defendant's motion for a new trial, the defendant appealed from the judgment.

At the outset, we grant the State's application for correction of the transcript on appeal at page 244 to show that certain proceedings were had in chambers outside the presence of the jury rather than in the courtroom in the presence of the jury. This correction is uncontested.

The issues presented for review by defendant can be summarized in this manner: (1) the admissibility of defendant's statement, (2) permitting witness Bromgard to read defendant's statement to the jury, (3) refusal to strike the testimony of FBI agent Kelleher, (4) error in the giving or refusal of five jury instructions.

The principal issue for review is the admission of defendant's statement in evidence by the trial judge. Defendant contends that her statement is inadmissible under federal constitutional standards, relying principally on Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

To achieve perspective, a review of United States Supreme Court decisions in this area is indicated prior to application of these principles to the instant case.

Under the Fifth Amendment to the United States Constitution, no person can be compelled in any criminal case in federal court to be a witness against himself; under the Sixth Amendment to the United States Constitution, a person accused of crime in a federal court has the right to assistance of counsel for his defense. These rights are guaranteed to persons accused of crime in state courts under state criminal law through the Fourteenth Amendment to the United States Constitution which provides that no state shall deprive any person of his life or liberty without due process of law. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653; Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. The constitutional right to counsel and the constitutional right against self-incrimination attach prior to any court proceedings at such time as the police investigation shifts from a general investigation of an unsolved crime to a focus on a particular suspect. Ecsobedo v. State of Illinois, supra; Miranda v. State of Arizona, supra.

Thus, where police investigation has focused on a particular suspect who is held in police custody, law enforcement officers must adopt effective safeguards securing the suspeet's constitutional right against self-incrimination prior to questioning him in order to render any statements he makes admissible in evidence against him at his trial. Miranda v. State of Arizona, supra. Miranda requires, in the absence of other equally effective safeguards the following warnings to be given the suspect in a meaningful and understandable manner: (1) that he has the right to remain silent, (2) that any statement he does make may be used in evidence against him, (3) that he has the right to the presence of an attorney, either retained or appointed, during police interrogation, (4) that he may stop answering questions at any time during the interrogation.

The constitutional right to counsel and the constitutional right...