State v. Welker

• Decision Date: 22 January 1997
• Docket Number: Docket No. 22059
• Citation: 932 P.2d 928,129 Idaho 805
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Rick E. WELKER, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 928

932 P.2d 928

129 Idaho 805

STATE of Idaho, Plaintiff-Respondent, v. Rick E. WELKER, Defendant-Appellant.

Docket No. 22059.

Court of Appeals of Idaho.

Jan. 22, 1997.

Petition for Review Denied

March 19, 1997.

Grover & Archibald, Rigby, for appellant. R. James Archibald argued.

Alan G. Lance, Attorney General; Catherine O. Derden, Deputy Attorney General, Boise, for respondent. Catherine O. Derden argued.

WALTERS, Chief Judge.

Rick E. Welker was convicted of one count of lewd conduct with a minor under sixteen, I.C. § 18-1508. The district court imposed a unified sentence of fifteen years, with a three-year minimum period of confinement. Welker appeals, raising several issues relating to alleged errors during his jury trial. For the reasons set forth below, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 15, 1995, ten-year old A.K. attended a birthday party given for her stepsister, C.H., at the home of Rick E. Welker. At the time, C.H.'s father was married to A.K.'s mother, and C.H.'s mother was married to Welker. Also at Welker's house that day were three other young girls, who attended the party, and four teenage boys, one of whom was Welker's son. Welker and his wife left the house between 6:00 p.m. and 6:30 p.m. that evening, and returned around midnight. The girls stayed home and the boys came and went during the evening.

Welker's home had one small bedroom upstairs with two single beds. During the evening of August 15, all four of the girls, and one of the boys, slept in this room. Sometime during the night, A.K. was awakened by someone lying on top of her. This person, whom A.K. described as a man with a lot of whiskers and who smelled of beer, licked her face and began putting his fingers around her vagina. He then took off her pants and started rubbing against her while breathing heavily. According to A.K., the man also put his hands on her legs and spread them apart while he moved up and down on top of her. When she pretended she was waking up, the man put her pants back on and left the room. A.K. testified that when she heard the man walk down the stairs, all of the other children in the room were still asleep. A.K. also testified that she immediately got up, woke C.H. and told her what had happened. A.K. told Welker and his wife of the incident the next day, but did not inform her mother and stepfather of the incident until the following week.

Welker went to the police after being contacted by A.K.'s mother and stepfather, and informed them of the alleged incident. He told the police that he could not provide any further information about who had been involved and requested that they investigate the matter further. The police contacted a representative of the Idaho Department of Health and Welfare, who later videotaped an interview with A.K. After reviewing the taped interview, the police interviewed Welker, and Welker agreed to take a polygraph test. Officer Les Stimpson of the state Bureau of Investigation administered the polygraph examination after advising Welker of his Miranda rights. Welker denied the offense when he was taking the polygraph and, at the completion of the test, was told that the polygraph indicated that he was lying. Welker then admitted to Officer Stimpson that he had touched A.K., and prepared a written confession admitting his actions.

Welker was charged with one count of lewd conduct with a minor under sixteen, I.C. § 18-1508. He filed a motion to suppress the confession, which the district court denied after a hearing. He also filed a motion in limine to exclude evidence of a prior conviction for a sex offense, which was granted. During the trial, Welker made two motions for a mistrial on the ground that testimony had been admitted in violation of the order granting his motion in limine. Both motions were denied. A jury found Welker guilty of the lewd conduct charge. The district court imposed a unified sentence of fifteen years, with a three-year minimum period of confinement. Welker then filed a timely notice of appeal, followed by a motion to reduce the sentence. He also filed a motion for a new trial claiming that he had newly discovered evidence in the form of recanted testimony. The district court denied both motions.

II. ISSUES

Welker contends that the district court erred in: (1) denying his motion to suppress the confession; (2) admitting testimony which alluded to his previous sex offense after granting Welker's motion in limine to exclude evidence of the prior conviction; (3) denying his request to allow the jury to view the scene of the crime; and (4) denying his motion for a new trial which asserted that the victim had subsequently recanted her testimony. Welker also argues that the prosecution erred by making comments during closing argument to the jury which improperly referred to unadmitted medical evidence regarding A.K.'s physical examination after the attack.

III. DISCUSSION

A. Motion to Suppress the Confession.

Welker claims that the district court erred in denying his pretrial motion to suppress his confession. He argues that the polygraph examination was improperly administered and, as a consequence, an inaccurate reading was produced. Welker also asserts that the improper reading was used, along with Officer Stimpson's promises of leniency and his false statement that the victim had already identified Welker as her attacker, to obtain an involuntary confession.

The state contends that the court did not err in finding that Welker's noncustodial confession was made voluntarily. The state argues that substantial evidence exists in the record to support the district court's findings that: (1) the polygraph test was properly conducted; (2) Welker voluntarily chose to submit to the polygraph; (3) Welker received adequate Miranda warnings before the polygraph test was conducted and before making any incriminating statements; and (4) Welker had the ability to understand the potential consequences of his confession. While the state concedes that even though the district court failed to make explicit findings on whether Officer Stimpson attempted to deceive Welker with false assertions, and whether the officer made any type of promise as to leniency, the state asserts that the district court's statement, "nevertheless, overall, the state has properly shown that the defendant's confession was a product of his own free will," is an implicit finding that no improper coercive methods were used. The state further submits that this implicit finding is supported by the record.

In reviewing an order granting or denying a motion to suppress evidence, an appellate court will defer to the trial court's factual findings unless the findings are clearly erroneous. State v. Medley, 127 Idaho 182, 185, 898 P.2d 1093, 1096 (1995); State v. Peightal, 122 Idaho 5, 7, 830 P.2d 516, 518 (1992); State v. Knapp, 120 Idaho 343, 346, 815 P.2d 1083, 1086 (Ct.App.1991). If the trial court did not make explicit findings of fact, the appellate court should examine the record to determine the implicit findings that underlie the judge's order. State v. Kopsa, 126 Idaho 512, 517, 887 P.2d 57, 62 (Ct.App.1994); State v. Middleton, 114 Idaho 377, 380, 757 P.2d 240, 243 (Ct.App.1988). The implicit findings of the trial court should be overturned only if not supported by substantial evidence. State v. Kirkwood, 111 Idaho 623, 625, 726 P.2d 735, 737 (1986); Middleton, supra. Further, when reviewing on appeal a decision denying a motion to suppress, we exercise free review over the trial court's determination as to whether constitutional requirements have been satisfied in light of the facts found. Medley, supra; Kopsa, supra.

The burden is upon the state to show, by a preponderance of the evidence, that a defendant's confession was voluntary. State v. Carey, 122 Idaho 382, 385, 834 P.2d 899, 902 (Ct.App.1992); State v. Aitken, 121 Idaho 783, 784, 828 P.2d 346, 347 (Ct.App.1992). The voluntariness of a confession must be measured by a "totality of the circumstances" test. State v. Johns, 112 Idaho 873, 879, 736 P.2d 1327, 1333 (1987); Aitken, supra. For a defendant's statement to be involuntary, the defendant's will has to have been overcome by police conduct at the time he confessed. State v. Davila, 127 Idaho 888, 892, 908 P.2d 581, 585 (Ct.App.1995); State v. Wilson, 126 Idaho 926, 928, 894 P.2d 159, 161 (Ct.App.1995); State v. McLean, 123 Idaho 108, 111, 844 P.2d 1358, 1361 (Ct.App.1992). If the defendant's free will is undermined by threats or through direct or implied promises that are not honored, then a statement cannot be considered voluntary, and is inadmissible. State v. Wilson, 126 Idaho 926, 929, 894 P.2d 159, 162 (Ct.App.1995).

Nevertheless, deception or trickery does not automatically make a confession involuntary. See, e.g., United States v. Miller, 984 F.2d 1028, 1031 (9th Cir.1993) (psychological coercion conducted by law enforcement officials does not automatically make confession involuntary); Shedelbower v. Estelle, 885 F.2d 570, 574 (9th Cir.1989) (confession was not solely a product of officer's false statement that victim had identified photograph of petitioner as one of her attackers); State v. Kokoraleis, 149 Ill.App.3d 1000, 103 Ill.Dec. 186, 501 N.E.2d 207, 217 (1986) (police officers' false statement that they had already obtained confession from accomplice implicating defendant in crime, did not render defendant's subsequent statements involuntary); State v. Churchill, 231 Kan. 408, 646 P.2d 1049, 1053-54 (1982) (police officer's statement that codefendant had not passed polygraph examination was not a device calculated to produce a confession). Instead, a court must weigh the deception or trickery against such circumstances as the defendant's knowledge of his right to remain silent and his apparent ability to make a rational decision. See, e.g., Miller, 984 F.2d at 1032; State v. Braun, 82 Wash.2d 157, 509 P.2d 742, 744 (197...