State v. Pickar, Cr. N

• Decision Date: 27 March 1990
• Docket Number: Cr. N
• Citation: 453 N.W.2d 783
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Ross PICKAR, Defendant and Appellee. o. 890270.
• Court: North Dakota Supreme Court

Page 783

453 N.W.2d 783

STATE of North Dakota, Plaintiff and Appellant, v. Ross PICKAR, Defendant and Appellee.

Cr. No. 890270.

Supreme Court of North Dakota.

March 27, 1990.

James W. Wold, State's Atty., Cooperstown, for plaintiff and appellant.

Roger R. Weisenburger, Valley City, for defendant and appellee.

LEVINE, Justice.

The State appeals from an order of the district court suppressing as involuntary a statement of defendant Ross Pickar. We affirm.

Pickar was charged with two counts of manslaughter, stemming from a single-vehicle rollover accident in which two women, both friends of his, were killed. Initially, Pickar admitted to investigators only that he had been in the vehicle at the time of the accident. However, Pickar's rib injuries suggested to investigators that he was the driver and survived the accident because the steering wheel prevented his being thrown from the vehicle. A few days after the accident, officers asked Pickar to come to the sheriff's office to answer a few questions. Pickar consented and underwent questioning for about an hour and forty-five minutes. For the first one hour, thirty minutes of the interrogation, Pickar repeatedly denied driving. Finally, he confessed.

Immediately following the interrogation, Pickar was arrested. Charges were filed against him the next day. Subsequently, Pickar moved to suppress his confession. The district court granted the motion upon determining that the confession was involuntary. ¹ The State appealed.

The State argues the record does not support the trial court's finding of involuntariness.

Because voluntariness of a confession depends upon questions of fact to be resolved by the trial court, and because the trial court is in a superior position to judge credibility and weight, we show great deference to the trial court's determination of voluntariness. See State v. Newnam, 409 N.W.2d 79 (N.D.1987); State v. Discoe, 334 N.W.2d 466, 468 (N.D.1983). This Court does not conduct a de novo review. State v. Discoe, supra at 470. We will reverse only if the trial court's decision is contrary to the manifest weight of the evidence. Newnam, 409 N.W.2d at 84; Discoe, supra at 468; State v. Carlson, 318 N.W.2d 308 (N.D.), cert. denied, 459 U.S. 1040, 103 S.Ct. 456, 74 L.Ed.2d 609 (1982); State v. Roquette, 290 N.W.2d 260 (N.D.1980); State v. Thompson, 256 N.W.2d 706 (N.D.1977).

A confession is voluntary if it is the product of the defendant's free choice, rather than the product of coercion. See Discoe, supra at 467. Voluntariness is determined by examining the totality of the circumstances surrounding the confession. Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 280, 4 L.Ed.2d 242 (1960); Discoe, supra, 334 N.W.2d at 467. The inquiry focuses on two elements: (1) the characteristics and condition of the accused at the time of the confession and (2) the details of the setting in which the confession was obtained. Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); Discoe, supra, 334 N.W.2d at 467-68. No one factor is determinative. Schneckloth, supra; Discoe, supra, 334 N.W.2d at 468.

1. Characteristics of Accused

Among the relevant factors related to the characteristics of the accused are the age, sex and race of the suspect, his or her education level, physical or mental condition and prior experience with the police. 1 W. LaFave & J. Israel, Criminal Procedure Sec. 6.2 at 448-49 (1984). The State attacks the trial court's finding that at the time the confession was made, Pickar "was emotionally unbalanced and was suffering from such severe emotional stress that it was likely that he might commit suicide." In support of this finding, the trial court relied on an affidavit of the interrogating officers made the day after the confession. The affidavit described Pickar as greatly distressed and under such severe emotional distress that he was "subject to ... inflicting injury or death upon himself."

The State argues that the affidavit described the defendant's condition following the interrogation and not at the time of the confession. We agree that it is the condition of the defendant at the time of the confession which is relevant. However, the trial court could fairly infer from the affidavit's description of Pickar's suicidal state immediately following the interrogation that Pickar was emotionally distressed at the time of the interrogation. Furthermore, there is other evidence in the record which supports the court's finding of emotional stress. Pickar was a close personal friend of the two deceased women and had been in the truck with them when the vehicle overturned. He had spent time with them that evening. During the interrogation Pickar "had tears in his eyes or was whimpering." We conclude that there is sufficient evidence in support of the finding of emotional stress at the time of the interrogation.

The trial court found nothing in the record to indicate that Pickar had prior experience with police practices. The State disagrees, arguing that one of the interrogators testified that he knew Pickar from "prior visitation and dealings," and Pickar had pleaded guilty to fleeing or attempting to elude police and reckless driving in 1984. Pickar's prior conviction, however, was not disclosed to the trial court. Nor does the officer's oblique reference to his prior "visitation and dealings" with Pickar require the court to find that Pickar had a police record. The State had the burden of proving the voluntariness of Pickar's confession and of producing evidence on relevant factors, including Pickar's prior contacts with police. See State v. Whiteman, 67 N.W.2d 599 (N.D.1954); State v. Roquette, 290 N.W.2d at 264. Having failed to do so, it can hardly complain of the finding that Pickar had no experience with police, when the record would sustain no other finding.

The trial court also found that at the time of the confession, Pickar was suffering ill effects from physical injuries he sustained in the accident. The State challenges this finding, arguing that the defendant never complained to his interrogators about his pain or injuries. However, it is clear from the record that the officers knew that Pickar was in pain. One officer testified that, "I had gathered that he had rib injuries and that is why he was holding his side."

The State counters that Pickar's pain was not severe enough to vitiate the voluntariness of the confession. But there is no requirement that a single factor, such as the defendant's pain, be sufficient to render the confession involuntary. Schneckloth, supra. See Discoe, 334 N.W.2d at 470-71 n. 4. It is for the trial court to weigh the evidence of pain and its effect on the free will of the defendant as one factor in the totality of the circumstances. See Discoe, supra, 334 N.W.2d at 470-71 n. 4. Where the trial court has done so, we defer to its finding.

2. Police Conduct

The State next attacks several findings of coercive police conduct. The trial court found that the defendant, in a weakened and suggestible state, was interrogated in a small room for more than an hour and a half, where he was "boxed in" by his interrogators and asked more than twenty times whether he was driving the night of the accident. The trial court also found that the officers exerted psychological pressure on the defendant by playing on his sense of guilt and sense of duty to the families of his deceased friends.

Police conduct is an important...