State v. McLean

• Decision Date: 01 December 1992
• Docket Number: No. 18908,18908
• Citation: 844 P.2d 1358,123 Idaho 108
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Milton McLEAN, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 1358

844 P.2d 1358

123 Idaho 108

STATE of Idaho, Plaintiff-Respondent, v. Milton McLEAN, Defendant-Appellant.

No. 18908.

Court of Appeals of Idaho.

Dec. 1, 1992.

Petition for Review Denied Feb. 18, 1993.

Weinpel, Woolf & Combo, Idaho Falls, for defendant-appellant. Stevan H. Thompson argued.

Larry EchoHawk, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen. (argued), for plaintiff-respondent.

SWANSTROM, Judge.

Milton McLean entered a conditional plea of guilty to two counts of lewd conduct with a minor which he committed while on probation for another offense. I.C.R. 11(a)(2). The written plea agreement reserved McLean's right to appellate review of the district court's order denying McLean's motion for suppression of his statement to a detective. McLean disputes the court's finding that this statement was voluntary, and he asserts that his unwarned first statement to his probation officer tainted the subsequent statement which was given immediately following the interview with his probation officer. McLean also asserts that he gave a statement to the detective only because of promises made by his probation officer. For the reasons explained below, we reverse the denial of the motion to suppress the statement to the detective and remand for further proceedings consistent with this opinion.

Near the first of October, 1989, McLean was told by his former wife that criminal charges would be filed against him in Bonneville County for molestation of his two stepdaughters. McLean left the area. At the time, he was on probation for aggravated battery committed in Ada County in 1982. He had been sentenced on this charge, but the court later suspended the sentence and released McLean on probation. ¹

Within a few days McLean called his probation officer to say that he was returning to Idaho Falls and that he wanted to discuss his probation and the accusations of child molestation. His probation officer later testified that McLean "knew that he was going to be arrested when he returned. He knew that."

On October 10, 1989, in response to a telephone call from McLean in Idaho Falls, the probation officer drove to pick up McLean, and the two went to a cafe to discuss the allegations made by his ex-wife that he had molested his two stepdaughters. He wanted to know what would happen to him on these charges and on the probation violation for leaving the state. After some conversation, the probation officer took McLean to the law enforcement building where the discussion continued, and McLean wrote out a statement of his illicit sexual behavior with the girls.

At some point after receiving the call from McLean, the probation officer contacted Deputy Sheriff McCandless (hereinafter detective) to say that "he had Mr. McLean in town" and he asked the detective if he wanted to interview him. According to the detective, "he said that he thought that [McLean] would interview with me after they completed their probation interview." The probation officer agreed that after he finished talking to McLean he would take McLean to the sheriff's department so the detective could question him about the alleged child molestation.

Within minutes after McLean completed his written statement, the probation officer took the statement downstairs and gave it to the detective to read. The probation officer then brought McLean down to meet the detective. While the probation officer remained in the room, the detective gave McLean the Miranda warnings and conducted a separate interview, which was based in part on McLean's written statement to the probation officer. On a few occasions, the probation officer interjected a question or a statement. After that interview was completed, the probation officer, using a warrant he issued under I.C. § 20-227, placed McLean in jail for violating his probation for the alleged molestation of his stepchildren. He was arraigned the next morning when bail was set, and he remained jailed to await a probation violation hearing in Ada County.

On November 30, 1989, the state formally charged McLean in Bonneville County with two counts of lewd conduct with his seven-year-old stepdaughter. McLean waived a preliminary hearing and he was bound over to the district court. There he moved to suppress his oral and written statements to the probation officer and the subsequent statement to the detective, asserting (1) that he was induced to make the statements due to implied promises by the probation officer, (2) that his statements to the probation officer were not preceded by the required Miranda warnings, and (3) that, although his oral statement to the detective was preceded by Miranda warnings, it was the "fruit" of the unwarned first statement, and should be suppressed.

At the hearing on the motion to suppress, McLean testified that the probation officer had told him "that he wouldn't put in for full time on my violation because of me coming back and stuff, and that would look good." McLean also testified that the probation officer had indicated that his sentence on the molestation charges would probably run concurrently with the sentence which had been suspended in the Ada County rape case. The probation officer's testimony conflicted with that of McLean in that he testified he had only advised McLean that no violation for absconding would be filed. He stated that he had explained to McLean the possible consequences of the violation having to do with the molestation of the girls. The probation officer insisted that at all times he made it clear to McLean that he was concerned only with the molestation charges as a violation of McLean's probation. The probation officer denied making any promises to McLean and in fact told McLean that his recommendations would not be binding on the judge or on the state with regard to the new charges.

It is undisputed that the probation officer omitted giving McLean his Miranda warnings prior to their conversation or prior to McLean's written statement. It is also undisputed that after the detective received McLean's written statement from the probation officer, but before the detective questioned McLean, the detective read the Miranda warnings to McLean, and McLean then signed a waiver of rights form. During the taped interview with the detective, McLean confessed to engaging in fondling, digital penetration and oral sex with the girls over a period of several months' time. From the testimony, the district court concluded that the unwarned statements given to the probation officer would be suppressed, but that the confession communicated to the detective would be admissible evidence at trial under the ruling in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985).

McLean argues that his subsequent confession to the detective should be suppressed as "fruit" of the previous unwarned statement to his probation officer. McLean asserts that his statement to the detective was involuntary, because it was based upon promises from the probation officer, which, he was led to believe, would be binding on the detective as well. He asserts that State v. Alger, 100 Idaho 675, 680, 603 P.2d 1009, 1014 (1979), requires that confessions subsequent to a prior confession, which was improperly induced, are not admissible unless the state demonstrates that the fears and inducements which resulted in the initial confession are dispelled.

Our standard in reviewing whether a defendant's custodial statements to police agents were voluntarily given is one of deference to the lower court's findings of fact, if they are not clearly erroneous; we then exercise free review over the question of whether the facts found are constitutionally sufficient to show voluntariness. State v. Nobles, 122 Idaho 509, 835 P.2d 1320 (Ct.App.1991), aff'd, 122 Idaho 470, 835 P.2d 1281 (1992) (citing Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966)); State v. Kysar, 114 Idaho 457, 757 P.2d 720 (Ct.App.1988). The question of the voluntariness of a defendant's statements must be resolved by examining the totality of the circumstances surrounding the statements. State v. Nobles, supra, citing State v. Powers, 96 Idaho 833, 840, 537 P.2d 1369, 1376 (1975); see also State v. Kysar, supra. For a defendant's statement to be involuntary, the defendant's will has to have been overborne by the police conduct at the time he confessed. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

The district court found that no threats or promises were made by the probation officer in an attempt to obtain a confession from McLean. When asked at the suppression hearing whether the probation officer had promised that any sentence he would receive on the new charges would be concurrent with his sentence for aggravated battery, McLean responded "[N]o, he didn't promise, he implied." On redirect, McLean testified that "[the probation officer] felt that if I did certain things that this would be basically--what would happen would be probably treatment, a hundred and eighty day program in Cottonwood, the sex offender program, and that the violation would probably run concurrent with that--or run together with that." This testimony, in conjunction with the probation officer's testimony that he had repeatedly advised McLean that he was dealing only with the probation violation, not the ultimate penalty on the new charges, supports the court's finding. Under a totality of the circumstances, the court's conclusion that the statement to the probation officer was voluntary was correct.

McLean's situation differs from that in State v. Alger, supra, where the Court determined that Alger's first statement had been compelled. Therefore, the compulsion attributable to the first statement had to be dispelled in order for the subsequent statement to be held admissible. Id. In McLean's case, his statement to his probation officer was voluntary; however, the unwarned nature of...