No. 12593
I N TJ3E SUPREME COURT O THE STATE O M N A A
F F OTN
1974
THE STATE O MONTANA,
F
P l a i n t i f f and A p p e l l a n t ,
-vs -
HAROLD BRYAN SMITH,
Defendant and Respondent.
Appeal from: D i s t r i c t Court of t h e Second J u d i c i a l D i s t r i c t ,
Honorable James D. Freebourn, Judge p r e s i d i n g .
Counsel o f Record:
For A p p e l l a n t :
Hon. Robert L. Woodahl, A t t o r n e y General, Helena,
Montana
Thomas J . Beers, A s s i s t a n t A t t o r n e y General, argued,
Helena, Montana
L a r r y S t i m a t z , County A t t o r n e y , B u t t e , Montana
B r i a n T i e r n e y , Deputy County A t t o r n e y , a r g u e d ,
B u t t e , Montana
For Respondent :
Maurice F. Hennessey argued and Gary Winston a r g u e d ,
B u t t e , Montana
Submitted : February 25, 1974
Decided : 24 14
g
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
The State appeals from the granting of a motion to
suppress evidence in a murder case. We hold the order to suppress
was in part erroneous.
On May 14, 1972, at 4:47 p.m., the Butte police depart-
ment was called to investigate a homicide at the home of Harold
Bryan Smith, defendant. Smith and his wife had been separated
for several months. He had taken a room elsewhere while the
family continued to live at the residence to which the police
were called. Upon their arrival about 5:15 p.m., defendant
Smith and one Stewart, a friend of Smith's, were present. The
body of Smith's wife, Vicci, was found in an upper bedroom of
t n house.
ie
Thereafter, the sequence of events is complicated and
disputed. At the hearing to suppress evidence, Chief of Police
Russell testified he took Smith downstairs to the living room
about 5:30 to 5:45 p.m., read him the warning required by Miranda
v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L Ed 2d 694,
and a waiver of those rights, from a card which he carried for
that express purpose. That card was admitted into evidence at
the suppression hearing. Chief Russell testified he knew Smith
I
well for he, Smith, was an employee of the city. Russell stated
he particularly stressed, prior to Smith making any statements,
that Smith had a right to an attorney. Further, although Smith
was upset and crying, he seemed to understand the warning and waiver,
and at no time did Smith ask for an attorney. Detective Sgt.
Mulcahy testified that while he was engaged in taking photographs
of the bedroom, he heard Chief Russell tell Smith he was entitled
to an attorney while Smith and Russell were standing at the head
of the stairs, just prior to descending to the living room.
Shortly thereafter, Smith and Stewart were taken to the
police station, arriving there between 6;45 and 6:50 p.m. De-
tective Lt. Sullivan testified he read Smith the Miranda warning
and waiver from a card identical to Chief Russell's. That card
was also before the court at the hearing. Lt, Sullivan testified
the reading took place between 6:55 and 7:00 p.m. and, in his
opinion, Smith understood and made an intelligent waiver of those
rights. Lt. Sullivan testified the reading of the Miranda warn-
ing and waiver was recorded on a Sony casette recorder, after which
a short coffee break was taken. When the interrogation resumed
at 7:12 p.m., Deputy County Attorney Tierney backed the tape up
and restarted it, which had the effect of erasing the reading of
the Miranda warning and rights by Lt. Sullivan. Interrogation
continued for about one hour or until approximately 8:10 p.m.
These proceedings were recorded and transcribed in the county
attorney's office and were introduced as defendant's exhibits "A"
and "B". The essence of Smith's story up to this point was that
he knew nothing whatever about his wife's death other than the
discovery of her body.
It was at this point that Smith began to change his story.
Also at this point, due to a shortage of casette tapes at the
police station, the tape recorder was taken from the room where
Smith was being interrogated and was used to interview the witness
Stewart. When this occurred, Sgt. Mulcahy got his personal tape
recorder and used it to record Smith's change in story. This seg-
ment was introduced as defendant's exhibit "B-1". It is relatively
short. In it Smith confirmed that he had indeed been given the
Miranda warning and waiver by Chief Russell at the home. Sgt.
Mulcahy testified that subsequent to this he read Smith the Miranda
warning and waiver from a form which the Butte police use for that
purpose. The reading commenced at 8:32 p.m. and Smith signed the
form at 8:35 p.m. His signature was witnessed by Chief Russell
and Sgt. Mulcahy. This form was introduced into the record as
defendant's exhibit "C" . Sgt. Mulcahy testified Smith knew and
understood what he, Mulcahy, was saying. Sgt. Mulcahy testified
the reading of the Miranda warning and waiver was recorded, how-
ever such reading does not appear in the tapes or transcript.
Immediately subsequent to the signing of the waiver form,
Lt. Sullivan testified he read the Miranda warning and waiver to
Smith from the top of a form entitled "Voluntary Statement",
State's exhibit "C". Immediately below the printed warning Smith
made a written statement. The statement was timed as completed
at 8:55 p.m., signed by Smith, and his signature was witnessed by
Lt. Sullivan, Sgt. Mulcahy and Deputy County Attorney Tierney.
The written statement was admitted as defendant's exhibit "D".
Apparently while the statement was being written, the
Stewart interview ended and the tape cassette was returned to
the room where Smith was being interrogated. After Smith signed
the statement at 8:55 p.m., the casette which had been used to
record exhibits "A", "B", and the Stewart interview, was used to
record the interrogation of Smith after he had signed the state-
ment. That lasted from approximately 8:55 p.m. until 9:12 p.m.
This transcription was admitted as defendant's exhibit "E".
Defendant was charged with second degree murder the next
day. In due course motion was made to suppress all evidence,
oral or tangible, obtained during the interrogation on May 14,
1972, and all evidence discovered subsequently as a result there-
of. After a hearing the district court granted the motion. The
State appeals that portion of the order suppressing the admission
of defendant's exhibits "C", "D" and "E", that is, the signed
waiver of rights, the statement and the tape and transcript of the
interrogation taken after the signing of the written statement.
The issue is whether it was error for the court to
suppress these exhibits as representing involuntary statements
and admissions.
When a motion to suppress is presented to a trial court,
its analysis of the evidence presented at the pretrial hearing
must focus on whether impermissible procedures were followed by
law enforcement authorities. The burden o£ proof of voluntari-
ness is upon the State, and it is required to prove voluntariness
by a preponderance of the evidence but not beyond a reasonable
doubt. State v. White, 146 Mont. 226, 405 P.2d 761; State v.
LaFreniere, Mont. , 515 P.2d 76, 30 St.Rep. 882; Lego v.
Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L Ed 2d 618.
In this case the trial court made findings of fact, some
of which upon review, we find erroneous. For the purposes of
findings
this opinion, we will set forth four of the/for our discussion.
2. That the chief of police in a private interrogation
psychologically coerced the defendant.
3. That the tape recordings and exhibits indicate that
the defendant was not given his rights until he had been question-
ed for at least one hour and twenty minutes.
4. That the defendant signed a waiver of his rights form
but was so emotionally distraught that he did not and could not
have knowingly and intelligently waived his rights.
5. That the confession of the defendant was not voluntary.
We note that the trial court adopted the defendant's pro-
posed findings of fact, noting in its order that they were adopted
in their entirety. Finding No. 2 appears to this Court to be the
basic finding and is premised on "psychologically coerced" testi-
mony. This finding in turn serves the court in findings Nos. 4
and 5.
The rule in this state is that the question of whether an
alleged confession made while in custody is voluntary depends
largely on the particular facts of each case; its admissibility
in the first instance is a matter for the trial court's determin-
ation and its findings thereon will not be reversed on appeal
unless clearly against the weight of evidence. State v. White,
146 Mont. 226, 405 P.2d 761; Couch v. U.S., 409 U.S. 322, 34 L Ed
2d 548, 93 S.Ct. 611; Procunier v. Atchley, 400 U.S. 446, 27 L Ed
2d 524, 91 S.Ct. 485; Sims v. Georgia, 389 U.S. 404, 19 L Ed 2d
634, 88 S.Ct. 523; Beecher v. Alabama, 389 U.S. 35, 19 L Ed 2d 35,
88 S.Ct. 189, 408 U.S. 234, 33 L Ed 2d 317, 92 S.Ct. 2284.
We think finding of fact No. 3 is not supported by sub-
stantial credible evidence. Smith stated that he was not given
his Miranda warnings, or that he did not remember if they were
given. Against these contradictory self-impeaching statements we
have the testimony of two experienced police officers who testi-
fied that they did in fact read Smith the warnings. The cards
from which the warnings were read were introduced into evidence.
A third officer overheard Smith being asked if he wanted an attor-
ney. Each of the officers testified that Smith understood and
knowingly waived his rights. Each of the officers was thoroughly
cross-examined, and in addition, all witnesses were excluded from
the courtroom while others were testifying. Again to compare, Smith
both admitted and denied, and on occasion could not remember if
he were given the warnings. This self-impeaching, contradictory
testimony does not amount to substantial credible testimony suf-
ficient to uphold the finding of the trial court.
In the face of this testimony, we hold that a finding that
Smith was not given his Miranda warnings is clearly against the
weight of the evidence; hence we find that Smith did in fact re-
ceive an adequate Miranda warning prior to any interrogation
whatever.
It must be noted in considering our holding that we are
involved only with exhibits " C " and "D", for as will be imrned-
iately discussed, all tapes including exhibit "E" were properly
excluded by the trial court.
Exhibit "C" is a waiver form signed at 8:32 p.m. in a
detective's office at city hall. At the time he signed the waiver
he had been in custody no more than 3 hours if the time were
figured from the time of the arrival of police at the home. He
had been at the police station no longer than 2 hours.
Exhibit "D" is the voluntary statement which also had a
Miranda warning heading up the statement. It is handwritten and
signed by Smith with a completion time of 8:55 p.m.
We will next consider the various tapes presented to the
trial court as evidence. This Court in State v. Warwick, 158
Mont. 531, 542, 494 P.2d 627, sets the standards for admissibility
of sound recordings. They are:
"(1) a showing that the recording device was
capable of taking testimony, (2) a showing that
the operator of the device was competent, (3)
establishment of authenticity and correctness
of the recording, (4) a showing that changes,
additions or deletions have not been made,
(5) a showing of the manner of the preservation
of the recording, (6) identification of the
speakers * * *."
Our review indicates that the tapes wholly fail to meet
the standards set above, hence they are inadmissible, and the
trial court properly so held.
Insofar as defendant's exhibits " C " and "D" are concerned
(the letters "C" and "D" are used both as state's and defendant's
exhibits) we find that the trial court erred in excluding these
exhibits. The so-called "psychological coercion" holding in the
court's findings is not in our opinion present and controlling
as to these exhibits. There is in White an excellent discussion
of cases where the admissibility of a confession or admission was
denied due to various types of coercion. None of the cases cited
c a n be c o n s i d e r e d s i m i l a r f a c t u a l s i t u a t i o n s . Here t h e q u e s t i o n -
i n g was n o t l e n g t h y , t h e r e was no p h y s i c a l b r u t a l i t y i n o b t a i n -
i n g t h e c o n f e s s i o n , no l o n g p e r i o d of b e i n g h e l d incommunicado
o r d e n i e d t h e c o n s u l t a t i o n of f r i e n d s o r f a m i l y , no uneducated
m i n o r i t y , n o r was t h e r e d e c e i t o r o f f i c i a l p r e s s u r e used on a
fatigued individual. R a t h e r , h e r e w e have a n a d u l t male who had
been a t p o l i c e h e a d q u a r t e r s no l o n g e r t h a n two h o u r s making a
statement concerning t h e crime. T h i s same d e f e n d a n t c a l l e d t h e
p o l i c e t o h i s e s t r a n g e d w i f e ' s home i n v i t i n g t h e i r i n q u i r y . To
s t r i k e t h a t e v i d e n c e b e c a u s e someone i n t h e f u n c t i o n a l p r o c e s s
o f t a k i n g t h e s t a t e m e n t s on t a p e e r r e d i s n o t a r e a s o n t o f i n d
f o r t h e accused. A l l t h e s a f e g u a r d s i n t h e h a n d l i n g o f an a c -
c u s e d must be m e t , such a s t h e r u l e s o f a r r e s t , s e a r c h and s e i z u r e ,
and t h e t a k i n g of a d m i s s i o n s and c o n f e s s i o n s . Almost w i t h o u t
e x c e p t i o n law enforcement o f f i c i a l s and p r o s e c u t o r s have a c c e p t e d
and s t r i c t l y a d h e r e t o t h e s e r u l e s . I n our opinion t h e r e w a s an
i n t e l l i g e n t waiver o f a known r i g h t by Smith a t t h e t i m e he s i g n e d
e x h i b i t s " C " and "D" and t h e y should be a d m i t t e d a t t r i a l .
It i s so ordered.
W concur:
e
Chief J u s t i c e
Justices (;/
Mr. Justice Haswell and Mr. Justice Daly dissenting:
We dissent.
The statement of events surrounding the custodial
interrogation of defendant set forth in the majority opinion
is incomplete. There is contrary and conflicting evidence
in the record supporting the findings of the district court
that defendant did not consciously and intelligently waive
his known and understood constitutional rights, that psychologi-
cal coercion was present, and that defendant's written waiver
and statement was involuntary.
For example, Lt. Sullivan testified that the interroga-
tion continued after defendant said he wanted to remain silent
and thereafter the purported waiver and signed written state-
ment resulted:
"Q. And isn't it a fact that after it was
indicated to you and Chief Russell and Assistant
Attorney, Brian Tierney, Mr. Smith thought that
Mr. Tierney was representing him and after Mr.
Smith said he wished to remain silent that you
continued to interrogate him and came up with
Exhibits C and D? A. Are you referring to
this, I want to remain silent?
"Q. Yes. After he said that, when the subse-
quent chain of events was there was a continued
interrogation with C and D coming into being,
isn't that correct? A. Could I explain?
"Q. Well, it's either a fact that you did question
or you didn't? A. Yes, I did, but I don't read
that meaning into it.
"Q. But you did continue to question? A. Yes."
Sgt. Mulcahy testified:
"Q. In fact, he was upset and crying throughout
the interrogation from listening to the tape was
he not? A. Off and on.
"Q. And would you say at any time that he could
have been in shock like he was in a daze? A. Yes,
sir. I wouldn't want to define shock, but I would
say that at times he appeared to be in shock or dazed."
The Chief of Police testified that he told defendant
that he didn't believe the story defendant was telling, and
t h a t " i f t h e t r u t h was t o l d t h a t i t would be e a s i e r on
everybody, t h a t w e w o u l d n ' t have t o b r i n g h i s c h i l d r e n i n t o
t h i s t h i n g and t h a t , I d i d t a l k l i k e t h a t . "
This testimony c o n s t i t u t e s s u b s t a n t i a l c r e d i b l e evi-
dence s u p p o r t i n g t h e f a c t f i n d i n g s o f t h e d i s t r i c t judge and
r e n d e r s t h e waiver and w r i t t e n s t a t e m e n t o f t h e d e f e n d a n t
i n a d m i s s i b l e under Miranda v. A r i z o n a , 3 8 4 U . S . 4 3 6 , 8 6 S.Ct.
W would a f f i r m Judge F r e e b o u r n ' s o r d e r s u p p r e s s i n g
e
t h e evidence.