State v. Phelps
| Decision Date | 13 March 1985 |
| Docket Number | No. 84-240,84-240 |
| Citation | 215 Mont. 217,696 P.2d 447,42 St.Rep. 305 |
| Court | Montana Supreme Court |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Michael Kelly PHELPS, Defendant and Appellant. |
David W. Harman argued, Libby, for defendant and appellant.
Mike Greely, Atty. Gen., Helena, Patricia Schaeffer argued, Asst. Atty. Gen., Helena William A. Douglas, County Atty., Libby, Thomas R. Bostock argued, Deputy County Atty., Libby, for plaintiff and respondent.
Michael Phelps appeals convictions of two counts of deviate sexual conduct from the Lincoln County District Court. The defendant was found guilty of these charges after a two-day jury trial held February 22 and 23, 1984. He was sentenced to six years imprisonment on each count, the terms to run consecutively. We affirm.
Michael Phelps at the time of the alleged criminal acts was twenty years old and had a ninth grade education. On September 1, 1983, Theresa Jones, mother of David, five; John, seven; Michelle, eight; and Michael, eleven, of Troy, Montana, left her children in the care of the defendant to go grocery shopping. When she returned home several hours later, she found the two younger boys hiding in a bedroom closet. David and John were dressed in women's clothing. The next day, the boys told her that the defendant had sexually molested them. Subsequent examinations by local physicians indicated the possibility of sexual abuse, although the reports were not conclusive.
On September 8, 1983, the defendant was asked to appear at the Troy police station for questioning. Neal Bauer, a detective sergeant with the Lincoln County sheriff's department, conducted the questioning and Martin Koskela, a deputy sheriff, was present during the interview. Detective Bauer was trained in interrogation techniques used in sexual assault investigations. When Phelps first arrived that afternoon, the two officers read him his Miranda rights, had him sign a Miranda waiver, and proceeded to question him about the molestation incidents. The interrogation lasted just under one and one-half hours and was broken into three sessions separated by two short breaks. The first session lasted seven minutes, the second approximately an hour, and the third seven minutes.
The interrogations were tape recorded and a transcript was made. The defendant was only read his complete Miranda rights at the beginning of the first session. In the subsequent sessions, he was reminded of these rights and asked whether he understood those rights and knew he was waiving them. The defendant answered affirmatively.
Initially, Phelps denied any contact with the boys. In the first session a bundle of woman's undergarments belonging to Phelps was placed on a table in front of the defendant. This evidence potentially embarrassed Phelps who admitted he enjoyed wearing such clothing in the privacy of his home.
During the second session on September 8, the defendant did state that he had sexual contact with the boys. He also asked to see his father but was told that he would have to wait until the police were finished questioning him. Defendant's father was waiting outside the police offices at this time.
In the third session the defendant fully implicated himself in the sexual crimes. The defendant's confession followed suggestions made by the officers of what he had done. Phelps admitted that he fondled the penis of both of the boys and pushed a pencil up the rectum of one of the children. He was subsequently charged by information with two counts of deviate sexual conduct.
After a court-ordered mental examination at the state hospital, the defendant was found competent to stand trial. On November 9, 1983, counsel filed a motion to suppress the September 8 confession and a motion to sever the two counts into separate trials. Phelp's position at the suppression hearing was that he had fabricated the confession story only to end the interrogation; he asserted that he was in fact innocent of the crimes charged. At this time the defendant also stated that he had been induced into the confession by promises that he would receive mental health treatment at the state hospital. The motion to suppress was denied and the motion to sever was never acted on.
A jury found Phelps guilty of both counts of deviate sexual conduct. Deviate sexual conduct is codified at Sec. 45-5-505, MCA:
Deviate sexual relations is defined in the criminal code to be, "sexual contact or sexual intercourse between two persons of the same sex or any form of sexual intercourse with an animal." Section 45-2-101(2), MCA.
Phelps appeals the judgment and sentencing of the District Court and raises the following issues:
(1) Whether the District Court abused its discretion in admitting the defendant's confession into evidence.
(2) Whether the District Court abused its discretion in determining that a five-year-old child was competent to testify.
(3) Whether the District Court abused its discretion in not severing the counts into separate trials.
(4) Whether the cumulative error doctrine applies, and whether the defendant received a fair trial.
Appellant argues that his confession was involuntary due to psychological coercion evidenced by the following alleged facts: (1) the officers lied to him about the existence of a medical report concerning the child abuse; (2) the sack of women's clothing that Phelps occasionally wore was thrown on the table during questioning; (3) the officers induced him to confess by promising future mental counseling; (4) the confession followed the exact pattern of leading questions; (5) Phelps interchanged the names of the two boys; (6) the officers refused to let him see his father during the interrogation; and (7) prior to the interrogation the defendant had denied committing the offenses to other officers.
Appellant cites authority for the proposition that voluntariness depends on the totality of the circumstances. He argues that reversal is warranted in this case because there is not substantial credible evidence to support the District Court's admission of the confession.
The State notes that the issue of voluntariness is a factual determination to be made by the trial court. State v. Lenon (1977), 174 Mont. 264, 570 P.2d 901. The State points out that the defendant did not claim at trial or on appeal that his Miranda rights were not honored. The State maintains that the defendant's testimony at the suppression hearing clearly reflects his understanding of the underlying constitutional rights:
Thus, this case is distinguishable from federal and Montana case law in which the validity of the waiver of constitutional rights was challenged. In the case at bar the voluntariness of the confession is questioned.
The parties agree on the case law that must be applied to the facts of this case. This Court has addressed the voluntariness issue in five major appellate decisions over the past several years. State v. Davison (Mont.1980), 614 P.2d 489, 37 St.Rep. 1135; State v. Allies (1979), 186 Mont. 99, 606 P.2d 1043; State v. Blakney (1979), 185 Mont. 470, 605 P.2d 1093, cert. granted, Blakney v. State of Montana (1981), 451 U.S. 1013, 101 S.Ct. 2999, 69 L.Ed.2d 384, aff'd, State v. Blakney (1982), 197 Mont. 131, 641 P.2d 1045; State v. Grimestad (1979), 183 Mont. 29, 598 P.2d 198; State v. Lenon (1977), 174 Mont. 264, 570 P.2d 901.
The principles discussed in these cases have been consistently set forth; there exists no need to review their application in depth.
A common theme in appellant's arguments is a claim of diminished mental capacity and evidence of mental illness. Michael Phelps, in the years preceding these offenses, received psychological counseling at the Western Montana Mental Health Clinic. In the pretrial mental health evaluation Phelps was diagnosed by a clinical psychologist and psychiatrist as suffering a schizophrenic disorder. The psychological report indicated Phelps had a full scale I.Q. of 91, verbal I.Q. of 99, and performance I.Q. of 83. This report was prefaced by the statement that: "... Mr. Phelps performs at the average level of intelligence ..."
Mental illness or deficiency does not in itself preclude admissibility of defendant's statements so long as he was capable of understanding the meaning and consequences of his statements. It is an important factor to consider in examining the totality of the circumstances, but it is not conclusive. Schade v. State (Alaska 1973), 512 P.2d 907; People v. Watson (Cal.App.3d 1977), 75 Cal.App.3d 384, 142 Cal.Rptr. 134; People v. Lara (1967), 67 Cal.2d 365, 62 Cal.Rptr. 586, 432 P.2d 202; State v. Kreps (Hawaii App.1983), 661 P.2d 711; State v. Thompson (1976), 221 Kan. 165, 558 P.2d 1079; Criswell v. State (1970), 86 Nev. 573, 472 P.2d 342; State v. Davis (1983), 34 Wash.App. 546, 662 P.2d 78; State v. Allen (Wash.1965), 67 Wash.2d 238, 406 P.2d 950. See also Annot., 69 A.L.R.2d 348, 350 (1960).
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...may be readily applied by way of implied threats and promises, just as it is by express threats and promises"); cf. State v. Phelps , 215 Mont. 217, 224, 696 P.2d 447 (1985) (although confession must not be "obtained by any direct or implied promises, however, slight," alleged promise that ......
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... ... The requirements for determining competence are "capacity of expression and appreciation of the duty to tell the truth." State v. Phelps (Mont.1985), 696 P.2d 447, 453, 42 St.Rep. 305, 312. The rule imposes no age requirement for testifying. State v. Campbell (1978), 176 Mont. 525, 579 P.2d 1231; State v. Smith (1984), 208 Mont. 66, 676 P.2d 185. This Court has allowed testimony of five-year-old victims in Phelps, 696 P.2d ... ...