State v. Murray

Decision Date05 January 1994
Docket NumberCr. N
Citation510 N.W.2d 107
PartiesSTATE of North Dakota, Plaintiff and Appellant, v. Donald W. MURRAY, Defendant and Appellee. o. 930082.
CourtNorth Dakota Supreme Court

Jonathan R. Byers (argued), Asst. Atty. Gen., Bismarck, for plaintiff and appellant.

Lawrence D. DuBois (argued), Fleming, Dubois & Trenbeath, for defendant and appellee.

NEUMANN, Justice.

The State of North Dakota appeals from an order entered by the Pembina County District Court suppressing the defendant's confession. On appeal, the State argues that the investigating officer's failure to advise the defendant of the existence of a warrant for his arrest does not affect the admissibility of his confession. We find that the investigation met Federal and State constitutional requirements, and we therefore reverse. As an alternative legal theory to uphold the suppression, appellee argues the confession violates NDCC Sec. 29-21-12.1. On this point we remand for further proceedings.

The essential facts are not in dispute. In 1990, Pembina County Social Services conducted an investigation in response to a report of suspected child abuse by Donald W. Murray (Murray). Multiple interviews of Murray were conducted in the course of this investigation. In 1992, the North Dakota Child Sexual Abuse Team became involved, and conducted a follow-up investigation. On August 12, 1992, in connection with this investigation, Pembina County judge, Thomas K. Metelmann, issued to agent Daniel G. Hocking (Hocking) of the North Dakota Bureau of Criminal Investigation, a warrant for the arrest of Murray for the offense of Gross Sexual Imposition in violation of NDCC Sec. 12.1-20-03. On the morning of August 13, 1992, Hocking contacted Murray by telephone and asked if he would be willing to come to the Sheriff's Office in order to speak with him. Murray came to the office, and was advised of his Miranda rights. 1 He was also told that he was not under arrest, and could leave at any time. Murray then participated in an interview in which he confessed to having sexual intercourse with a victim under the age of 15. After the interview was completed, Hocking arrested Murray, serving him with the complaint and warrant. Thereafter, Murray was bound over to the Pembina County District Court to answer to the charge of Gross Sexual Imposition.

Prior to trial, the district court granted Murray's motion to suppress the testimony of Hocking. A verbal announcement of this order was made in open court on February 16, 1993, the date of the hearing. At that time the district court judge stated:

"To withhold information of an arrest warrant and complaint that is in his possession before engaging in conversation to incriminate him is a grossly unfair action. It offends my sense of due process and it takes the voluntariness out of the statement; therefore, that will be suppressed."

The written suppression order, dated March 16, 1993, and filed March 18, 1993, states:

"The basis for this suppression is that Agent Daniel G. Hocking at the time he interviewed Donald W. Murray had in his possession a Complaint, Affidavit in Support of Complaint and Arrest Warrant charging Donald W. Murray with the matters set forth in this case. Daniel W. [sic] Hocking did not inform Mr. Murray prior to taking his statement that he had those documents in his possession. This Court believes that failure to disclose that information to Mr. Murray violates due process and further taints the voluntariness of Mr. Murray's confession."

The State's Notice of Appeal was filed with the district court on March 9, 1993. On the date of filing this notice, the State, realizing that the written suppression order would not be signed by the judge until some time in mid-March, requested that the notice be treated as filed as of the date of the entry of the written order. A statement of the prosecutor was dated and mailed the 15th of March, and filed on March 18, 1993. The contents of the Statement of Prosecutor includes a statement that "[t]he evidence that is being suppressed is substantial proof of the elements of Gross Sexual Imposition as charged in the Criminal Information," as well as a provision stating that it was understood the statement would be deemed filed with the Notice of Appeal as of the date of entry of the written suppression order.


Murray contends that due to lack of compliance by the State with NDCC Sec. 29-28-07, the appeal should be dismissed. We do not agree. Section 29-28-07(5) of the North Dakota Century Code states:

"An appeal may be taken by the state from:

5. An order granting the return of property or suppressing evidence, or suppressing a confession or admission, when accompanied by a statement of the prosecuting attorney asserting that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding. The statement must be filed with the clerk of district court and a copy must accompany the notice of appeal."

Murray puts forth several arguments to support his contention that the State failed to meet the statutory appeal requirements.

First, Murray argues that since a copy of the prosecutor's statement did not accompany the notice of appeal into the courthouse, the State failed to meet the statutory requirement that the two must accompany each other upon filing with the clerk of district court. NDCC Sec. 29-28-07(5). When filing the notice of appeal with the district court, the State realized that as of that date, an appealable order was not yet in existence. See State v. Hogie, 424 N.W.2d 630, 631 (N.D.1988) ("An oral ruling on a motion is not an appealable order."). Because of this, the notice of appeal contains an acknowledgement that it would not be deemed as filed until a written order was entered. As of the date of filing of the written order, the notice of appeal was accompanied by the prosecutor's statement. Since all the documents required by NDCC Sec. 29-28-07(5) for appeal were waiting for the written order when it was entered, we find that the State has met these statutory requirements to appeal.

Murray also argues that the State failed to show that the suppressed evidence is "a substantial proof of a fact material in the proceeding," as required by NDCC Sec. 29-28-07(5). We find that the State met its burden of showing that the suppressed evidence was substantial proof of fact which was material to the proceedings. The prosecutor's statement included a recitation of the statutory requirements regarding undue delay and substantial proof. As we have held before, the prosecuting attorney's explanation of why the suppressed evidence is substantial proof material to the proceedings may be included in the prosecutor's statement or in the State's brief filed for the appeal. E.g., State v. Dilger, 322 N.W.2d 461, 463 (N.D.1982). Here, the State's appellate brief succinctly discusses the importance of a defendant's confession in a criminal prosecution. We find it hard to imagine suppressed testimony which would more clearly meet the statutory requirements of NDCC Sec. 29-28-07(5). Accordingly, we find the State has met the requirements to appeal the court's order suppressing testimony of Murray's confession.


The State argues that Murray did not have a constitutional right to be advised of the presence of the arrest warrant before he was interviewed by the authorities. Under the circumstances of this case, we agree. Voluntariness of confessions depends on questions of fact. E.g., State v. Taillon, 470 N.W.2d 226, 228 (N.D.1991). Since trial courts are in superior positions to judge credibility and weight, we show great deference to their determinations regarding voluntariness of confessions. E.g., id. We will reverse the trial court's decision only if it is contrary to the manifest weight of the evidence. E.g., id. "The trial court's disposition of a motion to suppress will not be reversed if, after conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court's determination." State v. Discoe, 334 N.W.2d 466, 468 (N.D.1983) (citations omitted). The case before us is unusual in that the material facts are not in dispute. Upon examining the record to determine whether there is sufficient evidence to support the trial court's finding of involuntariness, we find that the trial court's decision is contrary to the manifest weight of the evidence, and we therefore reverse.

Voluntariness challenges are of two types. They are either based on due process grounds, or on self-incrimination grounds. When the voluntariness of a confession is attacked on due process grounds, the outcome is determined by considering the totality of the circumstances. E.g., State v. Newnam, 409 N.W.2d 79, 83 (N.D.1987). This is also the standard applied when determining whether a defendant voluntarily, knowingly, and intelligently waived his Miranda rights provided for under the Fifth Amendment. State v. Taillon, 470 N.W.2d at 228; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The issue of whether Hocking's interview with Murray constituted a custodial interrogation was discussed at the suppression hearing, in the parties' briefs, 2 and at oral argument. The issue, however, is not a live one. The record not only indicates that this clearly was not a custodial situation, but it also discloses that Hocking gratuitously advised Murray of his Miranda rights. See Newnam, 409 N.W.2d at 82-83 (Miranda warnings not required unless defendant taken into custody, or otherwise deprived of his freedom of action).

The existence of the arrest warrant does not convert this noncustodial situation into a custodial situation. The Supreme Court has held: "A policeman's unarticulated plan has no bearing on the question whether a suspect was 'in custody' at a particular time; the only relevant inquiry is how a reasonable man in the...

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