State v. Murphy

Decision Date31 August 1982
Docket NumberNo. 82-271.,82-271.
Citation324 NW 2d 340
PartiesSTATE of Minnesota, Plaintiff, v. Marshall Donald MURPHY, Defendant.
CourtMinnesota Supreme Court

Warren Spannaus, Atty. Gen., St. Paul, Thomas L. Johnson, County Atty., and Robert H. Lynn, Asst. County Atty., Minneapolis, for plaintiff.

Mark S. Wernick, Minneapolis, for defendant.

Heard, considered and decided by the court en banc.

SCOTT, Justice.

Pursuant to Minn.R.Crim.P. 29.02, subd. 4 (1980), the district court has certified to this court as important and doubtful the question of the admissibility of a confession made by defendant, who is being prosecuted on a charge of first-degree murder, to his probation agent. The issues raised by the appeal relate to whether the confession was obtained in violation of defendant's privilege against compelled self-incrimination, which is contained in U.S.Const. amend. V.

In 1974 defendant was twice questioned by Minneapolis Police in connection with the murder of a 17-year-old Minneapolis girl but no charges were filed against him.

In 1980 defendant pleaded guilty to a reduced charge of false imprisonment in a prosecution for criminal sexual conduct in the second degree in connection with a different incident. The trial court sentenced defendant to a stayed prison term of 16 months, with 3 years probation. As conditions of probation, defendant was ordered to participate in a treatment program and to report to his probation agent as directed by her. He was also ordered to be truthful with her in all matters.

Thereafter, defendant met with the agent at her office approximately once a month.

In July 1981 the agent received information that defendant was no longer participating in the treatment program. The agent wrote defendant a letter telling him to contact her and set up a meeting. The letter added that "Failure to do so will result in an immediate request for a warrant." That meeting was held in late July, with the agent telling defendant at the end that notwithstanding his lack of participation in the program, she was not going to seek revocation of his probation because he was employed and was doing well in other areas.

Defendant next met with the agent on September 11, 1981, without incident. He was next scheduled to arrange a meeting with the agent in mid-October.

On September 22, the agent learned from a counselor at the treatment program that during treatment defendant had said that he had once committed a rape/murder and that the police did not arrest him because of the lack of evidence.

Two days later the agent met with her supervisor and they decided that she had to report this information to the police. She told her supervisor that she would tell defendant of their decision. That same day she wrote defendant a letter stating, in full, "To further discuss a treatment plan for the remainder of your probation, I am requesting that you contact me upon your receipt of this letter to set an appointment." The agent did not contact police before meeting with defendant but knew in advance that she would tell the police about any incriminating statements defendant made.

The meeting was held on the morning of September 28 in the agent's office. The agent apparently opened the meeting by telling defendant about the information which she had received from the counselor and then said that she now felt that defendant needed treatment. Defendant became angry when he learned this. He stated that he felt his confidences had been breached by the disclosure and that he felt like calling an attorney.

The agent apparently replied that he would have to deal with that outside the office; that her main concern was to talk to him about the relationship of the prior crime and the one of which he was convicted and about his need for treatment under the circumstances.

The agent testified that her door was unlocked and that defendant was perfectly free to leave at any time without talking with her. Defendant testified that he did not feel free to leave because that would have been a violation of his probation. He also testified that he did not know he had a right to refuse to answer her questions or to consult an attorney, and that, because she put the entire conversation in the context of what the treatment plan for him should be, it did not occur to him that she would go to the police with what he said. He testified further that he had had two probation officers before her and that neither of them had ever gone to the police with anything he said.

The session therefore continued, with the agent first talking with defendant about the crime of which he was convicted, then about the rape/murder. When defendant claimed that he really was not guilty of the crime of which he was convicted, the agent confronted him with the police reports and so on and challenged his claim of innocence. When she talked with him about the rape/murder, he confessed.

After defendant had made his confession, the agent informed him for the first time that she would have to tell the police what he had said. She also urged defendant to turn himself in.

On September 30, after talking with an attorney, defendant told the agent that he had been advised not to turn himself in to the police. On October 2, a warrant was issued for defendant's arrest. He was subsequently indicted for first-degree murder with testimony given by the agent. The district court denied a motion to suppress.

The issue before us is whether the confession to the agent was obtained in violation of any of defendant's rights. We hold that it was.

The United States Constitution, Amendment V, protects one against being "compelled in any criminal case to be a witness against himself."

Generally, the government may not use a person's incriminating statements in any subsequent criminal case in which he is a defendant if the statements were legally compelled by the government notwithstanding his claim of the privilege against compelled self-incrimination. Garner v. United States, 424 U.S. 648, 653, 96 S.Ct. 1178, 1181, 47 L.Ed.2d 370 (1976).

Although the privilege is not self-executing but generally must be claimed, the United States Supreme Court has isolated certain situations in which the failure to claim the privilege at the time of the compulsion will not bar the defendant's later reliance on it at trial.

One such situation is custodial interrogation of a suspect. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Court held that not even a voluntary confession obtained during custodial interrogation of a suspect by police could be used against him in a later criminal prosecution unless the prosecution showed that the suspect was given a Miranda warning and knowingly and intelligently waived the privilege. The reason for the exception in such cases was stated in Garner v. United States, 424 U.S. 648, 657, 96 S.Ct. 1178, 1184, 47 L.Ed.2d 370 (1976), as follows:

It is presumed that without proper safeguards the circumstances of custodial interrogation deny an individual the ability freely to choose to remain silent. Citation omitted. At the same time, the inquiring government is acutely aware of the potentially incriminatory nature of the disclosures sought. Thus, any pressures inherent in custodial interrogation are compulsions to incriminate, not merely compulsions to make unprivileged disclosures. Because of the danger that custodial interrogation posed to the adversary system favored by the privilege, the Court in Miranda was impelled to adopt the extraordinary safeguard of excluding statements made without a knowing and intelligent waiver of the privilege.

In another line of cases the Court held that persons required to file returns in connection with the federal occupational and excise taxes on gambling could exercise the privilege simply by failing to file such a return and did not have to submit a claim of privilege in lieu of the return in order to claim the privilege because such a submission by itself would have been incriminating. Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968). As stated in Garner, "The basis for the holdings in Marchetti and Grosso was that the occupational and excise taxes on gambling required disclosures only of gamblers, the great majority of whom were likely to incriminate themselves by responding" and therefore, as in the case of custodial interrogation of suspects, "Any compulsion to disclose was likely to compel self-incrimination." 424 U.S. at 660, 96 S.Ct. at 1185.

A third situation in which the Court has held that the defendant can rely on the privilege at trial notwithstanding his failure to claim it at the time he made his incriminating statements is exemplified by Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). In that case policemen who were being investigated for corruption were told that they could claim the privilege but that they would be discharged if they did. The Court held that their incriminating disclosures could not later be used against them notwithstanding their failure to claim the privilege when they were being investigated because the penalty of discharge for the concededly valid exercise of the privilege foreclosed a free choice to remain silent.

Finally, in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), the Court held that it was error to allow a psychiatrist to testify at the penalty phase of a capital felony trial on the issue of future dangerousness because the psychiatrist's opinion was based on incriminating statements that defendant had made during a court-ordered psychiatric examination to determine defendant's competency for trial, at which defendant had not been given a Miranda warning. Although the psychiatrist was not a policeman, he was not acting solely in defendant's interests when he examined defendant and the...

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