State v. Schneider

• Decision Date: 08 December 2008
• Docket Number: No. 05-443.,05-443.
• Parties: STATE of Montana, Plaintiff and Appellee, v. Brian Robert SCHNEIDER, Defendant and Appellant.
• Court: Montana Supreme Court

197 P.3d 1020

2008 MT 408

347 Mont. 215

STATE of Montana, Plaintiff and Appellee, v. Brian Robert SCHNEIDER, Defendant and Appellant.

No. 05-443.

Supreme Court of Montana.

Submitted on Briefs June 1, 2006.

Decided December 8, 2008.

For Appellant: Peter B. Ohman, Chief Deputy Public Defender; Bozeman, Montana.

For Appellee: Hon. Mike McGrath, Montana Attorney General; Helena, Montana, Martin D. Lambert, Gallatin County Attorney; Bozeman, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Appellant Brian Robert Schneider (Schneider) appeals from the order of the Eighteenth Judicial District Court, Gallatin County, denying his motion to suppress incriminating statements he made during a custodial interrogation. We affirm.

¶ 2 We consider the following issues on appeal:

¶ 3 1. Does admission of Schneider's statements concerning his involvement in a murder, made to law enforcement officers during a custodial interrogation, conducted outside the presence of counsel appointed for Schneider on a different charge, violate Schneider's state constitutional rights?

¶ 4 2. Does application of the Cobb "offense-specific" test violate Schneider's right to equal protection under state and federal constitutional law?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 On February 22, 2004, Schneider and his companion, Lee Cowan (Cowan), were stopped and questioned by authorities in Pima County, Arizona, while trying to gain entrance to Mexico. Thereafter, Cowan confessed to murdering his mother and her boyfriend in Gallatin County, Montana. Authorities arrested both men.

¶ 6 At the time of the arrest, Schneider was on probation for felony theft in the Fifth Judicial District Court, Madison County, Montana. As a condition of Schneider's probation, he was prohibited from leaving Montana without his probation officer's permission. Schneider had not sought permission to leave Montana before departing for Mexico with Cowan. As a result, the Madison County Attorney's Office filed a petition to revoke Schneider's deferred sentence on the ground that Schneider had "left his assigned district without the written permission of his supervising officer." An arrest warrant was issued on February 23, 2004, and on that same day, in response to the warrant, Arizona filed an "interim complaint" against Schneider in Pima County Superior Court, charging him with the crime of being a fugitive from justice pursuant to Ariz.Rev.Stat. § 13-3842. Schneider appeared in Pima County Superior Court and was appointed a public defender, Verne Hill (Hill), to represent him. Schneider met with Hill two days later on February 25, 2004.

¶ 7 The next day, while still in custody in Arizona, law enforcement officers from the Gallatin County Sheriff's Office, the Pima County Sheriff's Office, and the Montana Division of Criminal Investigation interrogated Schneider regarding the Cowan murders. At the time of the interrogation, the officers were uncertain about Schneider's involvement with the murders. The officers initiated the interrogation and did not contact or seek permission to do so from Hill. However, before questioning Schneider, the officers advised Schneider of his Miranda rights. Schneider waived those rights both orally and in writing, and did not indicate a desire for the assistance of counsel at any time during the questioning, wherein he made incriminating statements regarding his involvement with the Cowan murders.

¶ 8 On April 2, 2004, based on the incriminating statements made during the interrogation and in conjunction with other evidence obtained by law enforcement, the State charged Schneider with two counts of accountability for deliberate homicide. On October 6, 2004, Schneider moved to suppress the statements he made during the Arizona interrogation. After briefing and a hearing, the District Court denied Schneider's motion, primarily in reliance on the United States Supreme Court decision of Texas v. Cobb, 532 U.S. 162, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001). Schneider then pled guilty to the accountability charges, reserving the right to appeal the District Court's order denying his motion to suppress. The court sentenced Schneider to two consecutive 100 year sentences. Schneider appeals the District Court's denial of his motion to suppress.

STANDARD OF REVIEW

¶ 9 We review the denial of a motion to suppress to determine if the district court's findings of fact are clearly erroneous, and whether its interpretation and application of the law is correct. State v. Pierce, 2005 MT 182, ¶ 12, 328 Mont. 33, ¶ 12, 116 P.3d 817, ¶ 12. Findings of fact are clearly erroneous if they are unsupported by substantial evidence, the court misapprehended the effect of the evidence, or review of the record convinces us that a mistake has been made. Pierce, ¶ 12. We review a district court's conclusions of law and interpretations of the constitution de novo. State v. Mizenko, 2006 MT 11, ¶ 8, 330 Mont. 299, ¶ 8, 127 P.3d 458, ¶ 8.

DISCUSSION

¶ 10 1. Does admission of Schneider's statements concerning his involvement in a murder, made to law enforcement officers during a custodial interrogation, conducted outside the presence of counsel appointed for Schneider on a different charge, violate Schneider's state constitutional rights?

¶ 11 Schneider argues that law enforcement officers violated his Article II, Section 24 right to counsel under the Montana Constitution when they interrogated him about the Cowan murders during his Arizona confinement, without informing or seeking the permission of the attorney appointed to represent him on the Arizona fugitive from justice charge. Acknowledging that the United States Supreme Court rejected such a claim in Cobb, Schneider "requests this Court . . . provide more protections to the citizens of the State of Montana than that provided by the United States Constitution" by interpreting Article II, Section 24 as more expansive than the corresponding Sixth Amendment to the United States Constitution. Schneider contends that the "offense specific" application of the Sixth Amendment by the United States Supreme Court in Cobb to determine when the right to counsel attaches is "problematic" and "fraught with problems," and asks us to apply a "factually related test to issues concerning appointment of counsel" under Article II, Section 24.

¶ 12 In Cobb, Cobb was arrested and charged with burglary. Over a year later, police arrested Cobb based on a tip that he had murdered a woman and her daughter who had been missing since the burglary. During a custodial interrogation, outside the presence of Cobb's counsel for the burglary charge, Cobb confessed to the murders. Cobb sought to suppress his confession as a violation of the Sixth Amendment, arguing that the burglary and the murders were closely factually related such that his Sixth Amendment right, which had attached for the burglary charge, also attached for purposes of the murder investigation, making the interrogation without his counsel unlawful. Cobb, 532 U.S. at 165-67, 121 S.Ct. at 1339-40.

¶ 13 The United States Supreme Court, Chief Justice Rehnquist writing, reaffirmed its earlier determination that the Sixth Amendment right to counsel is "offense specific," meaning that it only applies with respect to the charged offense and "it cannot be invoked once for all future prosecutions. . . ." Cobb, 532 U.S. at 167, 121 S.Ct. at 1340 (citing McNeil v. Wis., 501 U.S. 171, 175, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158 (1991)). Accordingly, the Court held that statements, which result from a defendant's un-counseled interrogation regarding offenses for which the defendant has not been charged, are "admissible notwithstanding the attachment of his Sixth Amendment right to counsel on other charged offenses," and despite the fact that the defendant's counsel for the charged offense may not have been present at, or informed of, the interrogation. Cobb, 532 U.S. at 168, 121 S.Ct. at 1340. However, the Court also recognized that, while the Sixth Amendment attaches only to charged offenses, "the definition of an `offense' is not necessarily limited to the four corners of a charging instrument." Cobb, 532 U.S. at 173, 121 S.Ct. at 1343. Rather, after the Sixth Amendment has attached, it "encompass[es] offenses that, even if not formally charged, would be considered the same offense under the Blockburger test." Cobb, 532 U.S. at 173, 121 S.Ct. at 1343. Thus, to define the term "offense" for purposes of the Sixth Amendment, the Supreme Court applied the definition of that term used in double jeopardy jurisprudence, noting that there was "no constitutional difference between the meaning of the term `offense' in the contexts of double jeopardy and of the right to counsel." Cobb, 532 U.S. at 173, 121 S.Ct. at 1343; see also Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Therefore, under the Sixth Amendment, "`where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.'" Cobb, 532 U.S. at 173, 121 S.Ct. at 1343 (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. at 182).¹ Justice Breyer, joined by Justices Stevens, Souter, and Ginsburg, dissented from the majority opinion. Lamenting the application of the Blockburger test, the dissent supported adoption of a "closely factually related" test sought by Cobb. Cobb, 532 U.S. at 186, 121 S.Ct. at 1350. The dissent asserted that the Cobb holding would permit the State, by simply charging only one of many possible offenses, to question nearly every person charged without first contacting counsel. Cobb, 532 U.S. at 182-83, 121 S.Ct. at 1348-49.

¶ 14 Schneider urges that we interpret Article II, Section 24 more expansively than the United States Constitution's Sixth Amendment. He premises his argument upon Justice...