Wunder v. State, 85-14
Decision Date | 27 August 1985 |
Docket Number | No. 85-14,85-14 |
Citation | 705 P.2d 333 |
Parties | Robert Dean WUNDER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
Court | Wyoming Supreme Court |
Leonard D. Munker, Public Defender, Martin J. McClain, Appellate Counsel, Wyoming Public Defender Program, Cheyenne, Gerald M. Gallivan, Director, Wyoming Defender Aid Program, and Stephen J. Politi, Defender Aid Program, Laramie, for appellant.
A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Senior Asst. Atty. Gen., and Patrick J. Crank, Legal Intern, for appellee.
Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.
This appeal is from a judgment and sentence imposed on appellant after a jury found him guilty of taking indecent liberties with a five-year-old child in violation of § 14-3-105, W.S.1977. Appellant contends that the court erred in submitting his confession to the jury because it was not voluntary and was not obtained legally.
We affirm.
In the course of investigating this crime, Detective Lieutenant Billy Janes of the Torrington Police Department contacted appellant at his apartment. Janes immediately advised appellant of his constitutional rights in accordance with the holding in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, reh. denied 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121 (1966). He testified that he read the same from a card and asked appellant after each clause if he understood it, to which appellant said he did. He then interviewed appellant concerning the incident, and appellant acknowledged his involvement in it. Appellant's wife was present at the time and she testified that Janes read from the card and that appellant acknowledged that he understood. Thereafter, Janes signed a complaint against appellant and a summons was issued for appellant's appearance before the justice of the peace for preliminary proceedings.
Before that required by Miranda v. Arizona, supra, becomes necessary, the person interviewed must be subject to custodial interrogation. Brown v. State, Wyo., 661 P.2d 1024 (1983); Auclair v. State, Wyo., 660 P.2d 1156, cert. denied 464 U.S. 909, 104 S.Ct. 265, 78 L.Ed.2d 249 (1983). As said in Miranda v. Arizona, supra, 86 S.Ct. at 1612:
The United States Supreme Court further defined the test for "taken into custody or otherwise deprived of his freedom of action" in Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 3151-3152, 82 L.Ed.2d 317 (1984) * * * "(Footnotes omitted and emphasis added.)
In a footnote to the foregoing, the Court said:
"Cf. Beckwith v. United States, 425 U.S. 341, 346-347, 96 S.Ct. 1612, 1616-1617, 48 L.Ed.2d 1 (1976) ( )(quoting United States v. Caiello, 420 F.2d 471, 473 (CA2 1969) ); People v. P., 21 N.Y.2d 1, 9-10, 286 N.Y.S.2d 225, 232, 233 N.E.2d 255, 260 (1967) ( )." Fn. 35, 104 S.Ct. at 3152.
And in Shaffer v. State, Wyo., 640 P.2d 88, 97, 31 A.L.R.4th 166 (1982), we said:
" * * * One is not in custody of police unless it can be fairly said that his freedom of movement has been involuntarily curtailed by force or immediate threat of force from the police. * * * "
See Parkhurst v. State, Wyo., 628 P.2d 1369, cert. denied 454 U.S. 899, 102 S.Ct. 402, 70 L.Ed.2d 216 (1981); Sanville v. State, Wyo., 553 P.2d 1386 (1976); Rodarte v. City of Riverton, Wyo., 552 P.2d 1245 (1976).
In this case, Janes advised appellant, before asking him any questions, that he "would not be arresting him, that he was not under arrest, and that I was not going to arrest him at that time." The interview was had at appellant's apartment in the presence of appellant's wife. It took fifteen to twenty minutes. Appellant was not then arrested. The interview was on April 26, 1984. Janes signed the complaint on May 4, 1984. An arrest warrant was not issued. Rather, a summons was issued directing appellant to appear on May 14, 1984 to answer the complaint.
It cannot be said that, at the time of the interview, appellant's freedom of movement was involuntarily curtailed by the police in any way. A reasonable man in appellant's position would not have considered himself to have been in police custody.
Inasmuch as app...
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