State v. Newnam

Decision Date24 June 1987
Docket NumberNo. 1195,1195
Citation409 N.W.2d 79
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Calvin NEWNAM, Defendant and Appellant. Crim.
CourtNorth Dakota Supreme Court

Tom P. Slorby, States Atty., Minot, for plaintiff and appellee.

Kenner Law Firm, Minot, for defendant and appellant; argued by Carl O. Flagstad.

MESCHKE, Justice.

Calvin Newnam appeals from convictions of robbery, felonious restraint, and murder for killing Charles and Cora Abernathy on February 8, 1985, in their rural Minot home. Newnam contends that his statements to law enforcement officials on September 25, 26, 27, and 30, 1985, should not have been used as evidence because the officials' conduct made those statements involuntary. He also contends that results of polygraph examinations should have been admitted into evidence. We hold that the trial court correctly allowed Newnam's statements as evidence and correctly excluded the polygraph results from evidence. Accordingly, we affirm.

I

Before the Abernathy investigation, Newnam was arrested and had several contacts with police. After his arrest on November 2, 1982, Newnam was advised of his Miranda 1 rights, waived them, and confessed, resulting in his conviction for crimes unrelated to this case. Thus, Newnam was on probation during the Abernathy investigation.

Newnam's first contact with police about the Abernathy murders took place on February 15, 1985. He was with Kevin Austin at a Minot bank when Minot police arrested Austin on a forgery charge. Newnam agreed to voluntarily drive to the police station. At that time Newnam was advised of his Miranda rights, signed a written waiver of his rights, and was questioned about the murders for approximately twenty minutes. Newnam also signed a consent for the search of his automobile and home.

On February 18, 1985, Detective Clint Wolf of the Minot Police questioned Newnam. Newnam was again advised of his Miranda rights before being questioned and signed another acknowledgement and waiver of his rights. During this questioning, Newnam agreed to a polygraph examination.

Newnam signed additional consents and written waivers of his Miranda rights on February 23 and 26, 1985, when he underwent polygraph examinations by Lieutenant Donald Schneider. Schneider interpreted four of the results of the polygraph examinations as inconclusive and two of the results as establishing that Newnam was not being deceptive while answering questions about the murders.

On May 3, 1985, Sheriff's Deputies Vern Erck and Bob Bankes went to Newnam's house and discussed the Abernathy investigation with Newnam for about a half hour. According to Bankes, Newnam then agreed to consult a psychologist; however, he later changed his mind.

On June 3, 1985, the police searched Newnam's residence with a warrant, but that search did not uncover any evidence about the Abernathy murders. On June 15, 1985, Deputies Erck and Bankes visited Newnam at his residence and discussed the matter for about one-half hour. During July and August police contacted Newnam on two or three more occasions.

On September 6, 1985, Newnam went to the Minot Police station at the request of Detective Keelan who testified:

"Q. What was discussed?

"A. Well, to talk. We made small talk. We talked about the credit cards. We talked about politics. We had talked about investments.

"And after I advised him of his rights, I directed questions to the Abernathy home site.

"Q. What were those questions?

"A. I asked him if he was involved and told him that there was obviously something on his mind by his nervousness that I thought he should come forth about the homicide.

"Q. Did he make a response?

"A. He started to cry. And said that there was something that he would like to tell me but couldn't.

"Q. Did the interview end then, end at that time?

"A. Yes, sir, it did.

"Q. Did he leave?

"A. Yes, sir, he did."

On September 20, 1985, Deputies Erck and Bankes and Probation Officer Loren Headrick visited Newnam at his place of employment and asked him to show them guns which he had stored at his father's house. Newnam agreed, but, after talking to a co-employee, he told the officers to get a warrant, and the guns were later seized with a search warrant.

On September 24, 1985, Minot Police Officers John Glibota and Keelan contacted Newnam and asked him to come to the police station at 4:00 p.m. the next day. Newnam did so and was immediately informed that he was not in custody and that he was free to leave at any time. Near 4:20 p.m. on September 25, Officers Glibota and Keelan began talking to Newnam about his rental property, investments, stereo and other "small talk," and, about 6:30 p.m., they began discussing an unrelated burglary and the Abernathy murders. Officer Keelan testified:

"Q. When the interview turned to the Abernathy murders, did you observe any outward signs of nervousness or anything on the part of defendant?

"A. Yes, sir. He became nervous.

"Q. How was he nervous? What did you observe?

"A. Biting of the fingernails, his leg was moving around quite a bit, and he was squirming in the chair.

"Q. Did he show any signs of emotion at that time?

"A. He had become, like I say, extremely nervous.

"Q. He became what?

"A. Extremely nervous.

"Q. No, prior to that, what did you say back there? You said he became--and I didn't hear the word?

"A. I said squirming in his chair.

"Q. Was the [sic] tearful?

"A. No, sir.

"Q. What happened at that point?

"A. Well, he was shown the pictures. And he stated that, um, it was really a horror. And I said, yes, it was.

"And I said, 'You were there, Calvin.'

"And he said, 'Yes.'

"Q. What happened at that point?

"A. He was advised of his rights."

Newnam signed a document acknowledging that he had been advised of his Miranda rights and stated that he did not want to sign a waiver of those rights until the Ward County States Attorney was present. The interview was suspended from 6:45 p.m. until shortly after 8:00 p.m. when the States Attorney arrived. Then Newnam acknowledged that he understood his Miranda rights and signed a written waiver of those rights. Newnam made a recorded statement implicating himself and an accomplice in the murders. That statement was transcribed on twenty-four pages which Newnam reviewed, corrected, and signed. Newnam was arrested for murder and taken to the Ward County Jail where two separate summonses were filled out, one for murder and one for detoxification.

According to officials, two summonses were used to avoid a public announcement of the arrest so that the accomplice could be confronted at the State Penitentiary before learning about Newnam's arrest. According to Glibota, Newnam was advised of the reason for two summonses and agreed to accompany officials to the State Penitentiary. On September 26, 1985, Newnam was taken to the State Penitentiary, but the confrontation ended when the accomplice asked to consult an attorney. During the trip to the penitentiary, Newnam made another recorded statement after being advised of his Miranda rights and signing a written waiver.

On Friday, September 27, 1985, Newnam was again advised of his Miranda rights and signed a written waiver. He then directed officers over the route taken after the Abernathy shootings, and a knife, jacket, and boots were found in the ditch along the route. Newnam identified those items with the shootings.

On Monday, September 30, 1985, Newnam was again advised of his Miranda rights and signed a written waiver. He then identified a lighter with "Austin" scratched on it which was found near the knife in the ditch.

Newnam appeared before a magistrate on September 30, 1985, and, at that time, he requested counsel. On October 1, 1985, Newnam was again advised of his Miranda rights, signed a written waiver, and made a recorded statement. On October 2, 1985, the court appointed counsel to represent Newnam.

Newnam moved to suppress his statements of September 25, 26, 27, 30, and October 1, 1985. The State conceded that the October 1 statement should be suppressed because it was given after Newnam requested counsel. Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). The trial court suppressed the October 1 statement, but refused to suppress the September statements. Over Newnam's objections, his September statements were admitted as evidence in the trial by jury. Newnam was convicted and sentenced to consecutive life terms for the murders and concurrent terms of 20 years for robbery and 5 years for felonious restraint.

II
A

Our inquiry begins with Newnam's September 25 statement which he contends was illegally obtained because officers failed to give him a timely Miranda warning. Newnam asserts that the September 25 statement and all of his subsequent statements were tainted by that illegality and should have been suppressed.

The Fifth Amendment of our United States Constitution, as well as Sec. 12, Article I of our North Dakota Constitution, provides that no "person ... shall be compelled in any criminal case to be a witness against himself." In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that the prosecution may not use statements stemming from the "custodial interrogation" of a defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. (See fn. 1). The Miranda court defined custodial interrogation to mean "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. See State v. Fields, 294 N.W.2d 404 (N.D.1980).

In several decisions, the United States Supreme Court has elaborated on the definition of "custodial interrogation."

In Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), the police unsuccessfully tried to...

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