State v. Mercer

• Citation: 625 P.2d 44,191 Mont. 418,38 St.Rep. 312
• Decision Date: 04 March 1981
• Docket Number: No. 80-48,80-48
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Bryan Lantis MERCER, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

Page 44

625 P.2d 44

191 Mont. 418

The STATE of Montana, Plaintiff and Respondent, v. Bryan Lantis MERCER, Defendant and Appellant.

No. 80-48.

Supreme Court of Montana.

Submitted Nov. 10, 1980.

Decided March 4, 1981.

McKinley Anderson argued, Bozeman, for appellant.

Mike Greely, Atty. Gen., Helena, Mark Murphy argued, Asst. Atty. Gen., Helena, Donald E. White argued, County Atty., Bozeman, for respondent.

SHEA, Justice.

Bryan Lantis Mercer appeals his conviction for aggravated assault following a jury trial in the Gallatin County District Court. He was sentenced to 20 years for assault, to be served consecutively with a previous homicide sentence. The court classified him as a dangerous offender and ordered him ineligible for parole. On appeal, defendant raises several issues relating to the validity of his confession, his mental state at the time of the offense, and the nature of his sentence. We affirm.

Kennita Shew, a school teacher from Salt Lake City, arrived in Bozeman on July 15, 1979, to attend a workshop on the Montana State University campus. As she was unloading personal belongings from her car in a university dormitory parking lot, someone approached her from behind, stabbed her in the back, laughed aloud, and ran away. Ms. Shew did not clearly see her assailant. At approximately 9:00 p. m., the Bozeman City Police Department received word of the assault. Upon arriving at the campus, the officers learned that Ms. Shew had suffered a wound in the left side of her back. It appeared that the wound had been caused by a knife.

Bryan Mercer was convicted by a jury in January 1972, of second degree murder in Sanders County and sentenced to 50 years in the state prison. Based on favorable reports from psychologists and prison officials, Mercer was granted a school furlough to attend Montana State University in March 1978. In February 1979, he was granted parole status.

On July 18, 1979, Mercer was arrested on a parole violation warrant for an alleged knife assault on another woman, Elizabeth O'Connell. Sgt. Ron Cutting of the Gallatin County Sheriff's Office was assigned to investigate that case. Cutting and Mercer knew each other previously. Cutting had participated in the homicide investigation that led to Mercer's 1972 conviction for the violent murder of one of the defendant's high school friends.

The investigation of the sheriff's office into the assault on Ms. O'Connell and the investigation of the Bozeman police into the attack on Ms. Shew converged on July 18, 1979. Police Sgt. Connor of Bozeman learned that Sgt. Cutting had scheduled an interview with Mercer. Because of the similarity of the two incidents under investigation, Connor requested to be present. At that time, Connor questioned the defendant about his whereabouts on the day of the attack on Ms. Shew. Mercer maintained that on the day he was at the A & W stand where he was employed and then picked up his wife at Safeway where she worked.

Between July 18 and 29, 1979, Cutting met several times with defendant. For the most part, their conversations were informal and off the record. It was primarily Mercer who initiated these meetings. Apparently because of their past acquaintance, the defendant was comfortable talking to Cutting. On July 23, Mercer requested that Cutting keep him informed regarding the police investigation in the Shew case. Cutting agreed to do so. On the same day, Cutting asked the city police how their investigation was going. Cutting then told Mercer that he was still a suspect and that the police had been unable to verify his alibi. Shortly thereafter, Mercer asked whether he would be able to negotiate directly with someone from the county attorney's office about possible charges if he were to confess to the crime and if he would recover the knife for the authorities. Cutting agreed to contact the county attorney's office. On July 27, defendant stated to Cutting that he knew he had a "problem" and asked whether he could get medical help if he agreed to confess. Cutting told him that was a matter for the county attorney's office. On July 28, Cutting contacted Deputy County Attorney Dunbar, who agreed to talk to the defendant. On July 29, Dunbar, accompanied by Deputy County Attorney Mike Lilly, interviewed Mercer. With Dunbar and Lilly as witnesses, Mercer confessed to the stabbing. Mercer then showed police where he hid the knife with which he assaulted Ms. Shew.

After defendant Mercer was charged, and after hearing a motion to suppress the confession, the District Court ruled that the defendant's confession was voluntary and admissible at trial. At trial, Dunbar assisted the county attorney in the trial of defendant. Deputy County Attorney Lilly was a witness for the prosecution.

Defendant's assignments of error revolve largely around his confession. He contends that the confession should have been suppressed because he was not given the Miranda warnings, because he was not afforded counsel at the time of his initial questioning by Sgt. Cutting, and because the confession was involuntary by reason of defendant's mental illness.

The trial record shows that defendant was read the Miranda warnings on at least two occasions. Both Sgt. Connor and Sgt. Cutting testified that Cutting read defendant the Miranda warnings at the time of the officer's first interrogation of the defendant on July 18. According to the testimony given by Dunbar at the suppression hearing, and by Lilly at trial, Dunbar read the Miranda warnings to defendant on July 29 before the accused made any incriminating statements. Mercer stated that he understood those rights. He then signed a written waiver.

Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, declared inadmissible all incriminating statements made by persons in custody without prior warning and waiver of their right to counsel. The right to counsel and the constitutional right to self-incrimination attach at such time as the police investigation shifts from a general investigation of an unsolved crime to focus on the defendant. State v. Lucero (1968), 151 Mont. 531, 537, 445 P.2d 731, 734.

The State fully concedes that Mercer had a right to counsel at the time of any in-custody interrogation. The real inquiry is whether defendant knowingly and voluntarily waived that right. Miranda, supra, makes clear that the role of counsel during in-custody interrogation is to effectuate the right against self-incrimination. The question of waiver is inextricably interwoven with the question of the voluntariness of the accused's confession. This is especially true where, as here, the accused alleged incapacity due to mental illness. Accordingly, the right to counsel issue and the voluntariness issue will be discussed together.

The defendant contends that he was so mentally ill as to preclude a voluntary and knowing waiver of his constitutional rights and so as to render him incapable of making a voluntary confession. Further, he alleges that Deputy County Attorney Dunbar induced the confession by informing defendant both verbally and in writing that he would do everything possible to insure that the defendant received medical treatment at Warm Springs for his mental illness.

Whether a confession should have been suppressed depends on whether it was voluntary. State v. Lenon (1977), 174 Mont. 264, 570 P.2d 901, 906; Brown v. Illinois (1975), 422 U.S. 590, 604, 95 S.Ct. 2254, 2262, 45 L.Ed.2d 416. Whether a confession was voluntary depends on the "totality of the circumstances" of the particular case. State v. Blakney, (1979), Mont., 605 P.2d 1093, 1096; State v. Grimestad (1979), Mont., 598 P.2d 198, 202; State v. Lenon, supra.

The evidence supports the trial court determination that the defendant's confession was voluntary. There was expert testimony at trial that the defendant's mental disorder was purely episodic and that he acted and thought as a normal person when he was not suffering from an attack of mental illness. There is no evidence that the defendant was suffering from such a bout of mental illness at the time of his confession. The deputy county attorneys who witnessed the confession testified that Mercer was articulate, calm and coherent. The evidence tends to show that the defendant was sane at the time of the confession and therefore, that he was able to waive both his right to counsel and right against self-incrimination.

There is no evidence that the deputy county attorneys downplayed the importance of the Miranda rights, nor that they employed any psychological pressures or inducements in order to induce the confession. Nor did they attempt to convince the defendant that his problem was medical rather than criminal. It was the defendant who, without prompting, claimed that he was in need of psychiatric help. It was defendant who requested to speak to someone from the county attorney's office and who requested psychiatric help. In response to defendant's inquiries, Dunbar agreed to recommend that the defendant be sentenced to a treatment facility only after informing the defendant that he could not make any promises as he could not control the District Court's decision. There is no evidence that Dunbar offered to assist only if the defendant confessed. In summary, the evidence shows that the defendant was sane at the time of making his confession, that Miranda warnings were given to the defendant before the confession, that the defendant was capable of understanding the warnings, that the defendant waived his rights to counsel and against self-incrimination knowingly and voluntarily, and that he was not improperly induced into confession.

Because of both deputy county attorneys involvement in the confession process, the defendant next claims that Deputy County Attorney Lilly was an incompetent trial witness and he claims that Deputy County Attorney Dunbar should not have been allowed to aid in the prosecution of the case at trial.

We...