No. 13903
I N THE SUPREME COURT O THE STATE OF M N A A
F OTN
1978
THE STATE O MONTANA,
F
P l a i n t i f f and Respondent,
ARLEN D . JOHNSON,
D e f e n d a n t and A p p e l l a n t .
Appeal from: D i s t r i c t C o u r t o f t h e Second J u d i c i a l D i s t r i c t ,
H o n o r a b l e James D . F r e e b o u r n , J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
Leonard Haxby a r g u e d , B u t t e , Montana
F o r Respondent :
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
S h e r i Sprigg argued, A s s i s t a n t Attorney General, Helena,
Montana
J o h n G. W i n s t o n , County A t t o r n e y , B u t t e , Montana
C r a i g P h i l l i p s a r g u e d , Deputy County A t t o r n e y , B u t t e ,
Montana
S u b m i t t e d : . ., . J u n e $?2,
. 1978
r . D e c i d e d : - !- 1 1 ~$78
Filed :
Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
This is an appeal by defendant from his conviction of
arson following a jury trial in the District Court, Silver Bow
County.
On November 26, 1976, at approximately 3:15 a.m., a fire
was reported at the Roadhouse in Butte, Montana. As a result of
that fire, the bar was burned and the carpet charred. An in-
vestigating officer and the fire marshal1 testified that the
windows were broken, a rock was found inside the bar, and beer
bottles which smelled of gasoline were found inside the bar.
A deputy sheriff testified that at about 3:10 a.m. he
saw defendant in a car in the vicinity of the Roadhouse. This
officer then proceeded to the scene of the fire. He testified
that when he left the fire, he saw this same car in a parking
lot farther down the street.
On November 27, 1976, defendant was questioned by the
police about the fire. The officer who questioned defendant
testified that defendant smelled of gasoline and had a bandage
on his right hand. Defendant stated he burned his hand on the
exhaust pipe of his car.
Defendant was arrested on the charge of arson at about
1:00 a.m. on December 1, 1976. At about that time, three other
defendants had been arrested for this offense. Allegedly each
of these defendants had confessed to their involvement and implicated
defendant. None of these defendants testified against defendant
at trial.
At between 8:00 and 8:30 a.m. on December 1, 1976, the
county attorney for Silver Bow County went to the jail to see
defendant. He asked the jailer to bring defendant out of his cell.
At trial, the county attorney testified as follows:
"Q. Could you relate the circumstances surround-
ing this conversation? A. Yes. I went to the
Jail about 8:30 in the morning and asked the Jailer
to get the Defendant, Arlen Johnson, out of the cell,
that I wanted to speak with him.
"When he brought him out, I made a statement to
the Defendant to the effect 'that investigation has
taken place that has implicated you in the Roadhouse
fire. Do you wish to make a statement regarding
the Roadhouse fire?' His reply to me was, 'Yes, I
did it. '
"At that time, I asked him, 'Have you been read
your rights?' He informed me that he had been read
his rights the previous evening, that would have
been 12:50 in the morning of the same day, he'd been
read his rights about seven hours before that it
would have been."
The county attorney then asked defendant to accompany him to his
office to make a written statement. At the county attorney's
office, defendant was read his rights and was asked to make a
statement about the fire. Defendant refused to make any further
statements. At trial, defendant denied having made the "Yes, I
did it" statement.
On December 8, 1976, the county attorney requested leave
to file an information against defendant and the other three de-
fendants. On December 10, 1976, defendant plead not guilty to
the charge of arson.
On December 10, 1976, defendant prepared a motion to quash,
which was filed on December 16, 1976. The basis of the motion
was that the county attorney's affidavit of probable cause was
insufficient. On December 13, 1976, the county attorney filed a
brief in opposition to defendant's motion. In this brief, the
county attorney first made reference to defendant's oral state-
ment to him.
On January 18, 1977, defendant filed a motion to suppress
all evidence, oral or tangible, that was obtained from defendant.
On February 24, 1977, defendant filed an amended motion to suppress.
In this motion, he sought suppression of any oral statements
made by defendant to the county attorney. On March 4, 1977, the
county attorney filed an affidavit concerning the statements
to him that defendant sought to have suppressed. Defendant
then requested that he be allowed to depose the county attorney
which was done on March 8, 1977. On April 1, the District Court
held a hearing on the motions to quash and suppress. The court
denied both motions on April 8, 1977.
On April 7, 1977, the other three defendants withdrew
their "not guilty" pleas and plead guilty to the charge of arson.
They were given a deferred imposition of sentence for 30 months,
with the first four months to be served in the county jail. The
court also ordered each defendant to make restitution in the sum
of $1,500 each.
Defendant's trial began on April 25, 1977. At trial,
defendant moved to bar the county attorney from testifying about
any admissions or confessions made by the defendant. After
listening to the county attorney's testimony, out of the presence
of the jury, the court ruled that defendant's statement was vol-
untary and admissible. At the end of the State's case, defen-
dant moved for a directed verdict or dismissal, which was denied.
The jury found defendant guilty. The court imposed a sentence
of five years in the state prison. Defendant is free on bond
while this case is on appeal.
On appeal, defendant raises four issues for our consid-
eration. We hold that defendant's conviction must be reversed
and, therefore, we will only discuss the issue that requires
reversal. That issue is whether the trial court improperly ad-
mitted the testimony of the county attorney as to any statements
defendant may have made.
Defendant contends that the testimony of the county
attorney about the alleged statement of defendant to him was
inadmissible evidence. He argues that there was no proof that
he was given his Miranda rights. Further, he claims that he
did not make the statement the county attorney testified to.
On the other hand, the State argues that defendant's
statement was voluntary. They contend that such a statement
is admissible evidence without defendant being given his Miranda
rights prior to the statement. They go on to argue that if de-
fendant had to be given his Miranda rights prior to his state-
ment, to make it admissible in evidence, the county attorney
testified that defendant was given his rights. They argue then
that the requirements of Miranda were met.
We hold that the requirements of Miranda were not met
in this case. State v. Lenon (1977), Mont . , 570 P.2d 901,
34 St.Rep. 1153, is distinguishable upon its facts. In Lenon
this Court found that two earlier warnings of defendant's Miranda
rights, prior to his confession, were sufficient to allow the
confession into evidence. In that case the defendant was given
two verbal warnings the night of his arrest, and the next day
defendant wrote his confession on a form which also had the
Miranda warning on it. Clearly, in Lenon, the requirements of
Miranda were met. However, that is not so in the case now before
us.
Here, the only evidence in the record that defendant
was given his Miranda rights was the testimony of the county
attorney that defendant was given his "rights". We do not know
what the defendant was told about his rights. Without knowing
that, we cannot possibly determine if defendant was properly ad-
vised of his rights prior to making any statement to the county
attorney.
Defendant's statement was inadmissible without his being
given the Miranda warning or otherwise being fully advised of his
rights. The underlying test of admissibility of a confession
is voluntariness. State v. Zachrneier (1968), 151 Mont. 256,
441 P.2d 737. As was pointed out in Zachmeier, the object of
the rules of Miranda is to make sure that a confession is
voluntary.
We recognize that Miranda warnings are not required in
every instance. State v. Hallam (1978), Mont . , 575 P. 2d
55, 35 St.Rep. 181. But, contrary to the State's position, it
cannot be said that because a statement is voluntary, Miranda
warnings are not required. Whether such warnings must, or must
not be given, depends upon the circumstances surrounding the
alleged confession.
This Court has said that where the police investigation
has focused on a particular suspect who is held in police custody,
law enforcement officers must adopt effective safeguards securing
the suspect's constitutional right against self-incrimination
prior to questioning him, in order to render any statements the
suspect makes admissible in evidence against him at his trial.
State v. Lucero (1968), 151 Mont. 531, 445 P.2d 731. We have held
that where an individual is not in custody and the police inves-
tigation has not focused on just that individual, any voluntary
statements made by the individual are admissible without the
Miranda warnings being given. State ex rel. Berger v. District
Court (1967), 150 Mont. 128, 432 P.2d 93. Nor are Miranda warn-
ings necessary when an individual makes a voluntary statement
to a person who is not a law enforcement officer. State v. Hallam,
supra. A statement that is spontaneous outburst is admissible
without the Miranda warnings. United States v. Mattson (1972),
469 F.2d 1234, cert.denied 410 U.S. 986, 93 S.Ct. 1513, 36 L Ed 2d
183. It has been held that an unsolicited remark, not in response
to interrogation, is admissible without the Miranda warnings.
United States v. Trosper (19711, 450 F.2d 319. In all of these
cases, the determination of whether Miranda warnings are necessary
was made by examining all of the circumstances surrounding the
individualts statement.
Our examination of the circumstances surrounding de-
fendant's statement in the light most favorable to the State
shows that defendant had to be given his Miranda rights to make
his statement admissible. Undeniably, defendant was in custody
and deprived of his freedom of action. The investigation of the
fire at the Roadhouse had focused on defendant. His statement
was not a spontaneous outburst or an unsolicited remark. His
response was to the question of the county attorney. Before
the question was asked, defendant was informed that he was impli-
cated in the Roadhouse fire. We believe that this was a clear
attempt to coerce the defendant to incriminate himself. It was
this type of questioning that Miranda addressed. All of the
circumstances here show that defendant had to be warned of his
Miranda rights in order to make his statement admissible.
We hold that absent proof that defendant was giyen the
Miranda warning or otherwise effectively advised of his rights,
the testimony of the county attorney about any statement defen-
dant is claimed to have made is inadmissible.
Without the inadmissible testimony of the county attorney
there was no evidence introduced at trial that would support
defendant's conviction. The only other evidence introduced was
that defendant was seen in the area of the fire, that his clothes
smelled of gasoline, and, that his hand was bandaged from a burn
for which defendant had an explanation. Since this evidence is
not sufficient to support a conviction, a new trial cannot be
granted. State v. Langan (1968), 151 Mont. 558, 445 P.2d 565.
The conviction of defendant is reversed and the case re-
manded to the District Court with instructions to dismiss.
Chief Justice
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Justices