State v. Thompson

• Decision Date: 28 July 1977
• Docket Number: Cr. N
• Citation: 256 N.W.2d 706
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Dwight THOMPSON, Defendant and Appellant. o. 578.
• Court: North Dakota Supreme Court

Page 706

256 N.W.2d 706

STATE of North Dakota, Plaintiff and Appellee, v. Dwight THOMPSON, Defendant and Appellant.

Cr. No. 578.

Supreme Court of North Dakota.

July 28, 1977.

Kent A. Higgins, Bismarck, for defendant and appellant.

Richard L. Schnell, State's Atty., and Thomas M. Tuntland, Asst. State's Atty., Mandan, for plaintiff and appellee; argued by Thomas M. Tuntland, Asst. State's Atty., Mandan.

PEDERSON, Justice.

This is an appeal from a conviction on two counts of burglary in a case where jury trial was waived.

ON MOTION TO DISMISS APPEAL

On April 7 this Court heard Thompson's motion under Rule 11(d), NDRAppP, for an extension of time to transmit the record on appeal. Rule 2, NDRAppP, provides:

"In the interest of expediting decision, or for other good cause shown, the supreme court may, except as otherwise provided in Rule 26(b), suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction."

By an unpublished minute order from this Court, Thompson was granted until April 18 to serve and file his appellant's brief, the State was given until May 2 to serve and file its response, and the case was set for oral argument at the May term of court. On April 22, the State, not having received service of the appellant's brief, filed a motion to dismiss the appeal.

Counsel for Thompson argued that dismissal of the appeal was too drastic a remedy; that it would be a more appropriate sanction for this Court to assess costs. Under the circumstances here, where the State has not been materially prejudiced, where the default is that of the lawyer and not the client, and where the presentation of the case to this Court for decision has not been delayed, we prefer to reach the merits and we conclude that it is an appropriate exercise of discretion and in the furtherance of justice that we deny the motion to dismiss.

As we said in McCullough v. Swanson, 245 N.W.2d 262, 265 (N.D.1976), we cannot permit previous admonitions to be disregarded or to be treated as empty noise. See also, State v. Howe, 257 N.W.2d 413 (N.D.1977). We assess motion costs of $250.00 in favor of the State and against the appellant.

ON THE MERITS

About 5 or 5:30 p. m., April 26, 1976, Dwight Thompson arrived voluntarily at the Burleigh County jail to visit Michael Morrell, who had previously confessed to several burglaries in Burleigh and Morton Counties. Morrell apparently had implicated Thompson. Deputy Sheriff Peck refused to permit the visit but, upon learning of Thompson's identity, asked him to stay while he checked out a possible warrant for Thompson's arrest in Morton County. After a short delay, Peck learned that there was a Morton County warrant. He then made an arrest on the Morton County charge and "gave Thompson the Miranda ¹ warnings," and was assured by Thompson that he understood his rights.

Peck then asked Thompson if he would make a written statement as to his part in the burglaries. Thompson agreed that he would do so but, after a bare start (one or two lines), he said he wanted to think about it first. Thereafter, Peck and Thompson engaged in additional "informal conversation," which included a question by Peck as to whether Thompson admitted being involved in any of the burglaries. Thompson said he was involved in the burglaries on Main Avenue. This admission appears in the record of the suppression hearing but, for some unknown reason, was not introduced as evidence at the trial.

When Peck asked about the possible return of the stolen merchandise, Thompson said he had nothing at his home nor in his car. He consented to a search of his car which was in the parking lot near the jail. From the trunk of Thompson's car, Peck seized some new tools a hammer (Exhibit 35), a Phillips screwdriver (Exhibit 34), and battery clamps (Exhibit 22). Evidence introduced indicated that items of the same type were missing from the two Morton County burglaries.

As the search by Peck, with Thompson's cooperation, was about ended, Deputy Sheriff McClure from Morton County arrived in the parking lot with the arrest warrant and a warrant authorizing a search of the car. McClure served the arrest warrant on Thompson and received from Peck the tools seized. McClure tagged the items and apparently assumed custody of Thompson, but did not give Miranda warnings nor did he question Thompson.

McClure then learned that a Bismarck police officer, Frohlich, wanted to talk to Thompson, so he was taken across the street to the Bismarck police headquarters. Frohlich gave Thompson the Miranda warnings, then asked Thompson if he would talk about burglaries in Bismarck. The reply was that "he wanted to make a deal." Frohlich refused to discuss a deal. Testimony at the suppression hearing, from both Frohlich and McClure, disclosed that Thompson then indicated that he did not wish to talk.

At this point, Morton County Deputy Sheriff Hoffman entered the Bismarck police headquarters and asked to have a few minutes of Thompson's time. Taking Thompson into an adjoining room, Hoffman again gave the Miranda warnings. Hoffman testified that he then told Thompson that "the jig is up" and that, after a short conversation, Thompson admitted his participation in the two Morton County burglaries as well as some others, and showed Hoffman where the loot was hidden. This was at about 7:15 p. m., or about two hours after Thompson first arrived at the Burleigh County jail.

Thompson argues that all of the evidence acquired from or through him, subsequent to the time that he informed Deputy Sheriff Peck that he wanted to think about it first before making a written statement, is "tainted fruit" ² and should have been suppressed, and should not have been admitted at the trial under the applicable exclusionary rule.

At the conclusion of the suppression hearing, Rule 12(b)(3), NDRCrimP, the trial court found as a fact that, after being given the Miranda warnings (on three separate occasions), Thompson "at no time indicated a desire to remain silent," and that he indicated only that "he would like to think about giving a written statement," and "his only interest appeared to be making some kind of deal." The trial court's conclusion of law was that Thompson's statements and the derivative evidence were freely and voluntarily given and were not the result of any force, threats, custodial coercion, other coercion, promises or improper influence of any sort.

Thompson's argument is (1) that there was a sufficient indication of his wish to remain silent, if not when he first stated that "he wished to think about" making a written statement, then certainly when he informed Frohlich and McClure that he did not wish to talk; (2) that his right to remain silent was not "scrupulously honored" when he was interrogated three times in about one hour; (3) the testimony of the accomplice (Morrell) was not sufficiently corroborated, as required by § 29-21-14, NDCC, when all inadmissible evidence is excluded; and (4) the findings and conclusions made by the court after the suppression hearing are erroneous as a matter of law.

In reviewing the order denying suppression we must consider matters of burden of proof and scope of review. In Lego v. Twomey, 404 U.S. 477, 488, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972), Justice White, writing for the majority, said that " * * * no substantial evidence has accumulated that federal rights have suffered from determining admissibility (of a confession) by a preponderance of the evidence." The Supreme Court of Arizona, in a fairly recent decision, said:

"A hearing was had prior to trial on the question of the voluntariness of the defendant's statements. As required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) the trial court heard the evidence concerning the taking of the statements from the defendant. After hearing the evidence the trial court ruled that the confession was admissible because it was voluntarily made. Since Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972) the burden of proof in a voluntariness hearing is by a preponderance of the evidence. The record of the hearing supports the conclusion of the trial court that the statements of the defendant were voluntarily made." State v. Arredondo, 111 Ariz. 141, 526 P.2d 163, 166-167 (1974).

This Court has not considered this point since Miranda ; however, we see no reason at this time why we should not reaffirm what we said in State v. Nagel, 75 N.D. 495, 28 N.W.2d 665, 677 (1947):

"As to whether a confession is voluntarily or involuntarily made is a matter to be determined in the first instance by the court. And where the evidence is conflicting, such determination by the court will not be disturbed on appeal unless manifestly against the weight of the evidence."

The State has a heavy burden to show a waiver of the constitutional right to remain silent, and that statements made after an indication of a wish to remain silent are, in fact, voluntary. See State v. Manning, 134 N.W.2d 91, 97 (N.D.1965). We find that the determination of voluntariness made in this case was manifestly against the weight of the evidence. The record of the suppression hearing contains testimony by both Frohlich and McClure that Thompson had indicated that he did not wish to talk after learning that he could not make a deal. There was no contradictory testimony at that hearing.

Because Thompson did not appeal the suppression order but waited until a judgment of conviction was entered, from which he appealed, it is necessary that we consider separately the issues which challenge the conviction itself.

Thompson relies principally upon a statement made by this Court in State v. Iverson, 187 N.W.2d 1, 13 (N.D.1971), where we said, in reference to Miranda warnings:

"Once these warnings have been given and the individual in any manner indicates...