State v. Roquette

• Decision Date: 20 March 1980
• Docket Number: No. 689,689
• Citation: 290 N.W.2d 260
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Barry L. ROQUETTE, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 260

290 N.W.2d 260

STATE of North Dakota, Plaintiff and Appellee, v. Barry L. ROQUETTE, Defendant and Appellant.

Crim. No. 689.

Supreme Court of North Dakota.

March 20, 1980.

Cynthia A. Rothe, State's Atty., and Mervin D. Nordeng, Asst. State's Atty., Cass County, Fargo, for plaintiff and appellee; argued by Mervin D. Nordeng, Fargo.

Schuster Law Offices, Fargo, for defendant and appellant; argued by James R. Brothers, Fargo.

PAULSON, Justice.

Barry L. Roquette ("Roquette") appeals from a judgment of the Cass County District Court convicting him of the crime of arson, pursuant to § 12.1-21-01 of the North Dakota Century Code. We affirm.

On July 11, 1976, fire destroyed the building housing the Cripple Creek Lounge and other establishments in Fargo. Investigators determined that arson was the cause of the fire. Roquette was arrested on February 10, 1978, and charged with starting the fire that burned the Cripple Creek Lounge.

Investigation of the fire had commenced immediately and Roquette had been the principal suspect from the outset. During the nineteen months that the investigation was ongoing, Roquette was interviewed and questioned by the Fargo police several times. The police officers were so zealous, in fact, that one of these interviews was even conducted outside of their jurisdiction at Roquette's place of business at Hawley, Minnesota.

Officer James Lindblad of the Fargo Police Department and Deputy Michael Lyman of the Cass County Sheriff's Department arrested Roquette, pursuant to a warrant, on Interstate Highway 29 between Fargo and West Fargo. The police officers knew that Roquette was employed by Walkinshaw Trucking and had been informed by Roquette's employer that Roquette was to be at the intersection of I-29 and Cass County Highway 20 at about 3:00 p. m., in order to pick up a check from Walkinshaw's wife.

When he noticed that his truck was being followed by the police, Roquette pulled over to the shoulder of the road. Deputy Lyman showed Roquette a warrant for his arrest. The officers then took Roquette into custody and Officer Lindblad advised Roquette of his Miranda rights. ¹ Within about an hour of his arrest, Roquette signed a confession at the Cass County state's attorney's office. His confession was found to be voluntary and was used against Roquette at trial.

Roquette was tried by a jury and the jury found him guilty of the crime of arson in connection with the burning of the Cripple Creek Lounge. A judgment of conviction was entered on March 28, 1979.

Roquette has raised the following three issues on appeal:

(1) Whether or not the defendant's Fifth Amendment rights were violated when the arresting officers, at the time of the defendant's arrest, continued to interrogate him despite his assertion of his right to remain silent, and subsequently secured a confession without a repetition of the Miranda warnings.

(2) Whether or not the confession secured by the police was free and voluntary under the totality of the circumstances.

(3) Whether or not it was reversible error for the trial court to instruct the jury to give the preliminary hearing testimony of the deceased witness such weight and credence as they would if the witness had been present in court and testified at the trial.

More pertinent facts will be presented as they relate to discussion of the issues.

I.

The first issue is essentially whether or not Roquette's Miranda rights were violated by the arresting officers. It is undisputed that Officer Lindblad advised Roquette of his Miranda rights at the time of his arrest. What is in dispute is the question of whether or not Roquette asserted his right to remain silent. The right of the defendant to remain silent is a right which must be scrupulously honored. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); State v. Thompson, 256 N.W.2d 706 (N.D.1977). An essential element of the right to remain silent is the right to cut off questioning. The United States Supreme Court recognized this in the following passage from Miranda, supra 384 U.S. at 473-474, 86 S.Ct. at 1628:

"Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent." (Emphasis added.)

Roquette has directed us to excerpts from the transcript which support the fact that he did assert his right to remain silent. Officer Lindblad testified as follows:

"Q. Did you ask him whether he understood his rights?

"A. Yes, I did.

"Q. What did he indicate?

"A. He indicated that he understood his rights and he didn't want to talk about it at that time."

On cross-examination, Officer Lindblad reiterated his prior testimony as follows:

"Q. You read him his rights and he refused to speak?

"A. Right."

Officer Lindblad also testified that, after being advised of his rights, Roquette "shrugged his shoulders" and "indicated" that he did not want to talk.

Shortly after "indicating" to the police that he did not want to talk, Roquette began asking questions of the police. He specifically asked, "Why are you arresting me now?". This question was asked in the police car on the way to the police station from the scene of the arrest, approximately 15 or 20 minutes after Roquette was shown the arrest warrant, was advised of his Miranda rights, and indicated a desire to remain silent. The police officers understood Roquette's question to be a request for information about the evidence against him, which they supplied. The police officers believed that Roquette's reopening of questioning revealed a desire to cooperate with them. They therefore drove directly to the state's attorney's office where Roquette gave the statement in which he confessed to the arson at the Cripple Creek Lounge.

Counsel for Roquette argues that Roquette should have been re-apprised of his Miranda warnings at the point where he reversed his decision to remain silent and began talking to the police officers. We disagree. Counsel interprets Michigan v. Mosley, supra, as requiring a fresh set of warnings each time questioning is resumed. In effect, counsel has urged us to create a per se rule that questioning can only resume after the warnings are repeated. We do not interpret Mosley that way.

We quote the following language from Mosley, supra 423 U.S. at 102-103, 96 S.Ct. at 326:

"To permit the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the person being questioned. At the other extreme, a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests. Clearly, therefore, neither this passage ² nor any other passage in the Miranda opinion can sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent.

"A reasonable and faithful interpretation of the Miranda opinion must rest on the intention of the Court in that case to adopt 'fully effective means . . . to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored . . . .' 384 U.S., at 479, 86 S.Ct. 1602 at 1630, 16 L.Ed.2d 694 (10 Ohio Misc. 9, 36 Ohio Ops.2d 237, 10 A.L.R.3d 974). The critical safeguard identified in the passage at issue is a person's 'right to cut off questioning'. Id., at 474, 86 S.Ct. 1602, 16 L.Ed.2d 694 (10 Ohio Misc. 9, 36 Ohio Ops.2d 237, 10 A.L.R.3d 974). Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person's exercise of that option counteracts the coercive pressures of the custodial setting. We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his 'right to cut off questioning' was 'scrupulously honored'." (Emphasis added.)

In State v. Thompson, supra 256 N.W.2d at 712, we recognized that a defendant can make an intelligent evaluation of new information and on that basis make an uncoerced and voluntary waiver of the right to remain silent. In United States v. Davis, 527 F.2d 1110, 1111 (9th Cir. 1975), cert. den. 425 U.S. 953, 96 S.Ct. 1729, 48 L.Ed.2d 196 (1976), a case factually similar to the instant case, the Court said:

". . . the right to talk or remain silent is the defendant's, and no mechanical application of Miranda should prevent the informed, voluntary, and free exercise of that right (Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, ...