State v. Blakney

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No. 14534 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 STATE OF MONTANA, Plaintiff and Respondent, LARRY BLAKNEY, Defendant and Appellant. Appeal from: District Court of the Fourth Judicial District, Honorable Jack L. Green, Judge presiding. Counsel of Record: For Appellant: Smith, Connor & Van Valkenburg, Missoula, Montana John P. Connor argued, Missoula, Montana For Respondent : Hon. Mike Greely, Attorney General, Helena, Montana Mary B. Troland argued, Assistant Attorney General, Helena, Montana Robert L. Deschamps 111, County Attorney, argued, Missoula, Montana Submitted: September 13, 1979 Decided : I- i k 1979 Mr. J u s t i c e John Conway H a r r i s o n d e l i v e r e d t h e Opinion of t h e Court. ~ e f e n d a n t - a p p e l l a n t w a s a r r e s t e d on t h e c h a r g e of d e l i b e r a t e homicide on J u n e 1 4 , 1977, a f t e r p o l i c e had o b t a i n e d a c o n f e s s i o n , t h e p r o d u c t of s e v e r a l i n t e r r o g a - tions. A p p e l l a n t t h e r e a f t e r moved t o s u p p r e s s t h e c o n f e s - s i o n because it w a s involuntary. The D i s t r i c t C o u r t , how- e v e r , found t h e c o n f e s s i o n v o l u n t a r y , d e n i e d t h e motion, and s e t t r i a l i n t h e matter. A p p e l l a n t w a s c o n v i c t e d of t h e c h a r g e and s e n t e n c e d t o f o r t y y e a r s i n t h e Montana s t a t e prison. From t h i s c o n v i c t i o n he a p p e a l s . A t a p p r o x i m a t e l y 9:00 p.m. on S a t u r d a y , June 11, 1977, p o l i c e found t h e body of Ann Thibodeau i n t h e C l a r k Fork R i v e r n e a r t h e downtown area of M i s s o u l a , Montana. Ms. Thibodeau had a p p a r e n t l y been s t r a n g l e d and thrown i n t o t h e r i v e r , h e r d e a t h r e s u l t i n g from s t r a n g u l a t i o n a g g r a v a t e d by t h e i n g e s t i o n of water i n t o t h e lungs. On i n v e s t i g a t i o n p o l i c e l e a r n e d t h a t M s . Thibodeau s p e n t t h e e v e n i n g of J u n e 1 0 , 1977, w i t h a p p e l l a n t and s e v e r a l o t h e r young p e o p l e . During t h e e v e n i n g , t h e y d r o v e around M i s s o u l a i n a p p e l - l a n t ' s c a r , s t o p p i n g a t v a r i o u s t i m e s t o p i c k up some h i d d e n b e e r , t o " p a r k , " and t o check on some p a r t i e s . A s t h e n i g h t progressed, a p p e l l a n t took h i s passengers home, d r o p p i n g o f f t h e l a s t one e x c e p t Ann Thibodeau s h o r t l y b e f o r e midnight. A t t r i a l , a s w e l l a s when f i r s t i n t e r - viewed by t h e p o l i c e , a p p e l l a n t t e s t i f i e d h e t h e n took M s . Thibodeau home. I n a c o n f e s s i o n made t o Missoula p o l i c e , however, a p p e l l a n t s t a t e d h e and M s . Thibodeau parked by a b r i d g e n e a r t h e C l a r k Fork R i v e r a f t e r d r o p p i n g o f f t h e l a s t o f t h e i r companions. A p p e l l a n t s a i d h e became a n g r y w i t h Ms. Thibodeau f o r b e i n g u n f a i t h f u l t o h i s b r o t h e r , whom s h e had been d a t i n g , and s u d d e n l y s t r a n g l e d h e r . Thinking s h e was d e a d , h e dragged h e r from h i s car and s l i d h e r o f f t h e bridge i n t o the river. O f f i c e r s questioned a p p e l l a n t concerning M s . Thibodeau's d e a t h on f o u r o c c a s i o n s : S a t u r d a y , J u n e 11, a t 1 1 : O O p.m. f o r a p p r o x i m a t e l y o n e and one-half h o u r s ; Sunday, J u n e 1 2 , a t 9:30 a.m. f o r a p p r o x i m a t e l y two and o n e - h a l f h o u r s ; Monday, J u n e 1 3 , a t 10:OO p.m. f o r a p p r o x i m a t e l y two h o u r s ; and Tuesday, J u n e 1 4 , a t 1 2 : l O a . m . f o r approximately one and one-half hours. I n addition t o these interrogations, a p p e l l a n t c o n s e n t e d t o a s e a r c h o f h i s car and a p o l y g r a p h examination. O f f i c e r s conducted t h e c a r s e a r c h a f t e r t h e f i r s t i n t e r r o g a t i o n a t a p p r o x i m a t e l y 1:00 a.m. on Sunday, June 1 2 . The s e a r c h r e v e a l e d a p p e l l a n t ' s c a r had been r e c e n t l y cleaned. The p o l y g r a p h e x a m i n a t i o n w a s conducted on Monday, J u n e 1 3 , between t h e second and t h i r d q u e s t i o n i n g sessions. The e x a m i n a t i o n i n d i c a t e d some u n t r u t h f u l n e s s i n a p p e l l a n t ' s p r i o r statements. Appellant confessed during t h e t h i r d interview. The f o u r t h i n t e r v i e w c o n s i s t e d of a taping of e s s e n t i a l l y t h e s a m e confession. P r i o r t o e a c h i n t e r v i e w , a p p e l l a n t w a s a d v i s e d of h i s r i g h t s and s i g n e d w a i v e r s r e s p e c t i n g h i s r i g h t s . During t h e i n t e r v i e w s , p i c t u r e s o f t h e nude body of t h e v i c t i m w e r e exposed on t h e t a b l e o f t h e i n t e r r o g a t i o n room. The i n t e r - views w e r e conducted w i t h o n l y a p p e l l a n t and t h e i n t e r v i e w - i n g o f f i c e r s p r e s e n t i n t h e room. Members o f a p p e l l a n t ' s f a m i l y w e r e p r e s e n t i n t h e h a l l o u t s i d e t h e i n t e r v i e w room* A p p e l l a n t w a s n o t c o n f i n e d between i n t e r v i e w s . A p p e l l a n t was 1 8 y e a r s o f a g e a t t h e t i m e o f t h e i n t e r - views. A t t h e s u p p r e s s i o n h e a r i n g , two e x p e r t w i t n e s s e s t e s t i f i e d a p p e l l a n t had a l e a r n i n g d i s a b i l i t y and p r o b a b l y could not understand his rights as presented on the waiver forms used by the police. There was additional testimony that appellant had an IQ of 94, had completed the eighth grade, had passed most of the high school equivalency exam, had taken vo-tech classes in Butte, and had worked in his father's business. Discrepancies exist as to whether appellant made a request for counsel. It is agreed that appellant brought up the subject of counsel during at least one of the question- ing sessions. The testimony conflicts, however, as to when appellant mentioned an attorney, what appellant said about wanting an attorney, and the conduct of the interviewers and appellant after the mentioning of counsel. Appellant states he requested counsel and one was not provided. One of the officers questioning appellant recalled that appellant asked him if he thought he should talk with a lawyer and the officer responded that it was up to appellant. Both questioning officers agree that appellant voluntarily resumed the interview after the mentioning of counsel. No counsel was provided for the appellant during the interroga- tion process. On Wednesday, June 15, 1977, appellant called police officers and family members to the Missoula County jail where he was being held and repudiated the statements he had made on the 13th and 14th, stating he saw someone else murder Ms. Thibodeau. At the suppression hearing and trial, appellant withdrew this repudiation and returned to his original story of dropping off the victim at her home about midnight. Appellant raises three issues on appeal: 1. Did t h e D i s t r i c t C o u r t err i n f a i l i n g t o g r a n t t h e motion t o s u p p r e s s a p p e l l a n t ' s c o n f e s s i o n ? 2. Does s e c t i o n 46-13-301(4), MCA, r e q u i r i n g a d e f e n - d a n t on a motion t o s u p p r e s s t o p r o v e t h a t a c o n f e s s i o n was i n v o l u n t a r y , c o n s t i t u t e a d e n i a l of due p r o c e s s i n v i o l a t i o n o f t h e U n i t e d S t a t e s and Montana C o n s t i t u t i o n s ? 3. Did t h e S t a t e p r e s e n t s u f f i c i e n t e v i d e n c e d u r i n g t h e t r i a l t o s u p p o r t a g u i l t y v e r d i c t on t h e c h a r g e of d e l i b e r a t e homicide? To r e s o l v e t h e f i r s t i s s u e p r e s e n t e d h e r e , w e must decide i f t h e D i s t r i c t Court e r r e d i n f i n d i n g a p p e l l a n t ' s c o n f e s s i o n v o l u n t a r y and i f a p p e l l a n t w a s u n c o n s t i t u t i o n a l l y denied h i s r i g h t t o counsel. To d e t e r m i n e t h e f i r s t a s p e c t of t h i s i s s u e , t h e v o l u n t a r i n e s s o f t h e c o n f e s s i o n , w e must consider t h e " t o t a l i t y of circumstances" surrounding t h e c o n f e s s i o n w i t h no s i n g l e f a c t b e i n g d i s p o s i t i v e of t h e issue. S t a t e v . Grimestad ( 1 9 7 9 ) , Mon t . , 598 P . 2d 198, 202, 36 St.Rep. 1245, 1251; S t a t e v . Lenon ( 1 9 7 7 ) , Mont. , 570 P.2d 901, 906, 34 St.Rep. 1153, 1157. When, a s here, a youthful defendant questions t h e v o l u n t a r i n e s s of a c o n f e s s i o n , t h e c i r c u m s t a n c e s t h e C o u r t must c o n s i d e r include: ". . . 1) a g e of t h e a c c u s e d ; 2) e d u c a t i o n of t h e a c c u s e d ; 3) knowledge o f t h e a c c u s e d as t o b o t h t h e s u b s t a n c e of t h e c h a r g e , i f any h a s been f i l e d , and t h e n a t u r e o f h i s r i g h t s t o c o n s u l t w i t h a n a t t o r n e y and remain s i l e n t ; 4 ) whether t h e a c c u s e d i s h e l d incommunicado o r allowed t o c o n s u l t with r e l a t i v e s , f r i e n d s o r a n a t t o r n e y ; 5 ) whether t h e a c c u s e d w a s i n t e r - r o g a t e d b e f o r e o r a f t e r f o r m a l c h a r g e s had been f i l e d ; 6 ) methods used i n i n t e r r o g a t i o n ; 7 ) l e n g t h of i n t e r r o g a t i o n s ; 8 ) whether v e l non t h e a c c u s e d r e f u s e d t o v o l u n t a r i l y g i v e s t a t e m e n t s on p r i o r o c c a s i o n s ; and 9) whether t h e accused has repudiated an e x t r a j u d i c i a l statement a t a l a t e r d a t e . . ." West v . U n i t e d S t a t e s ( 5 t h C i r . 1 9 6 8 ) , 399 F.2d 467, 469, c e r t . d e n i e d , 393 U.S. 1102. W should a l s o consider t h e mental c a p a c i t y of t h e e d e f e n d a n t , Smallwood v. WardehMaryland P e n i t e n t i a r y ( 4 t h C i r . 1 9 6 6 ) , 367 F.2d 945, c e r t . d e n i e d , 386 U.S. 1022; t h e v i s i b i l i t y o f nude p i c t u r e s o f a murder v i c t i m d u r i n g t h e d e f e n d a n t ' s i n t e r r o g a t i o n , P e o p l e v. R o b e r t s ( 1 9 6 6 ) , 3 Mich.App. 605, 143 N.W.2d 1 8 2 , 185; t h e u s e o f p o l y g r a p h e x a m i n a t i o n s , K e i p e r v. Cupp ( 9 t h C i r . 1 9 7 5 ) , 509 F.2d 238, 241; a d e f e n d a n t ' s p r e v i o u s e x p e r i e n c e w i t h t h e c r i m i n a l j u s t i c e system, U n i t e d S t a t e s v. Glasgow ( 9 t h C i r . 1971), 451 F.2d 557, 558; and, a d e f e n d a n t ' s e x p e r i e n c e i n t h e a d u l t w o r l d , United S t a t e s v . H i l l i k e r ( 9 t h C i r . 1 9 7 0 ) , 436 F.2d 101, 102-03, c e r t . d e n i e d , 4 0 1 U.S. 958 and West v . United S t a t e s , supra. These a r e a l l f a c t o r s c o u r t s have t a k e n i n t o a c c o u n t i n d e c i d i n g i f a young p e r s o n v o l u n t a r i l y confessed. One a d d i t i o n a l r u l e a i d s u s i n d e c i d i n g t h i s c a s e . We s t a t e d i n Grimestad: ". . . The i s s u e of v o l u n t a r i n e s s o f a c o n f e s - s i o n i s l a r g e l y a f a c t u a l d e t e r m i n a t i o n , ad- dressed t o t h e d i s c r e t i o n of t h e t r i a l c o u r t ... The t r i a l c o u r t ' s judgment a s t o volun- t a r i n e s s o f a c o n f e s s i o n w i l l n o t be r e v e r s e d on a p p e a l u n l e s s i t i s c l e a r l y a g a i n s t t h e w e i g h t of t h e e v i d e n c e . " 598 P.2d a t 202, q u o t e d from S t a t e v . Lenon, 570 P.2d a t 906. The t r i a l c o u r t h e r e reviewed t h e e v i d e n c e and d e t e r - mined a p p e l l a n t v o l u n t a r i l y c o n f e s s e d . I n considering a l m o s t e v e r y o n e o f t h e f a c t o r s l i s t e d above a s r e l e v a n t i n d e t e r m i n i n g t h e v o l u n t a r i n e s s of a p p e l l a n t ' s c o n f e s s i o n , evidence e x i s t s supporting t h e holding of t h e D i s t r i c t Court. Appellant w a s 18, l e g a l l y an a d u l t . H e had p a s s e d most of h i s h i g h s c h o o l e q u i v a l e n c y e x a m i n a t i o n and a t t e n d e d vo- t e c h school. A p p e l l a n t ' s IQ i s 94, w i t h i n t h e normal a d u l t range. The t r i a l judge found t h a t a p p e l l a n t d e m o n s t r a t e d a n u n d e r s t a n d i n g o f t h e E n g l i s h language d u r i n g h i s courtroom testimony. A p p e l l a n t had worked i n h i s f a t h e r ' s b u s i n e s s . A p p e l l a n t had p r i o r e x p e r i e n c e w i t h t h e c r i m i n a l j u s t i c e system, having p r e v i o u s l y been a d v i s e d o f h i s r i g h t s i n c o n n e c t i o n w i t h j u v e n i l e matters. The f o u r i n t e r r o g a t i o n s e s s i o n s l a s t e d o n l y a b o u t two h o u r s e a c h and w e r e s p r e a d o u t over s e v e r a l days. Between s e s s i o n s , a p p e l l a n t went home, f r e e t o c o n s u l t w i t h f a m i l y members and move a b o u t as he pleased. The D i s t r i c t C o u r t found t h a t t h e p o l y g r a p h procedure d i d n o t i n t i m i d a t e appellant. Appellant s t a t e d a t t h e s u p p r e s s i o n h e a r i n g t h a t he d i d n o t pay much a t t e n t i o n t o t h e p i c t u r e s o f t h e v i c t i m l e f t exposed on a t a b l e d u r i n g t h e questioning. Appellant repudiated h i s confession, p l a c i n g blame f o r t h e murder on someone e l s e , b u t l a t e r r e t u r n e d t o h i s o r i g i n a l s t o r y of dropping o f f t h e v i c t i m a t h e r home. Although some e v i d e n c e t o t h e c o n t r a r y e x i s t s , t h e above f a c t s show t h e d e c i s i o n of t h e D i s t r i c t C o u r t d o e s n o t c l e a r l y c o n t r a v e n e t h e w e i g h t of t h e e v i d e n c e . W e must, t h e r e f o r e , a f f i r m t h e D i s t r i c t C o u r t ' s r u l i n g on t h e volun- t a r i n e s s of a p p e l l a n t ' s c o n f e s s i o n . Speaking t o t h e second a s p e c t of t h i s i s s u e , whether a p p e l l a n t w a s u n c o n s t i t u t i o n a l l y denied h i s r i g h t t o counsel d u r i n g t h e i n t e r r o g a t i o n p r o c e s s , t h e D i s t r i c t C o u r t con- cluded: " T h a t t h e d e f e n d a n t n e v e r made a n e f f e c t i v e a s - s e r t i o n of c o u n s e l and i n any e v e n t t h e r e a f t e r knowingly and i n t e l l i g e n t l y waived t h e p r e s e n c e of c o u n s e l by s p o n t a n e o u s l y s t a t i n g h e d i d n o t want a lawyer and resuming t a l k i n g t o t h e p o l i c e . ' ' T h i s c o n c l u s i o n raises two q u e s t i o n s f o r c o n s i d e r a t i o n on appeal: (1) Did a p p e l l a n t e f f e c t i v e l y a s s e r t h i s r i g h t t o an attorney? and, (2) if so, did appellant thereafter waive his right to counsel? In Miranda, the Court stated: "Prior to any questioning, the person must be warned that he has a right to remain silent, that statements he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effec- tuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. - however, he indicates in any manner and at If, any stage of the process that he wishes to con- sult with an attorney before speaking there can be no questioning." (Emphasis added.) Miranda v. Arizona (1966), 384 U.S. 436, 444-45, 16 L.Ed.2d 694, 86 S.Ct. 1602. Although the witnesses at the suppression hearing gave conflicting testimony concerning the language used by appel- lant in allegedly asserting his right to counsel, the trial court found that appellant "brought up the subject of an attorney" twice, on the second occasion stating, "maybe I should have an attorney." This language brings appellant's assertion within the "indicates in any manner" language set out in Miranda as the requirement for an effective assertion of the right to counsel. Thus, the District Court errone- ously concluded that appellant did not effectively assert his right to counsel. We must decide, therefore, if the District Court also erred in concluding that appellant waived his right to counsel after an effective assertion of the right. Although the United States Supreme Court has not yet ruled on the issue, see Brewer v. Williams (1977), 430 U.S. 387, 405-06, 97 S.Ct. 1232, 51 L.Ed.2d 427, several of the circuit courts have held a defendant can validly waive the right to counsel after making a request for counsel. United States v. Rodri- guez-Gastelum (9th Cir. 1978), 569 F.2d 482, cert. denied, 436 U.S. 919; U n i t e d S t a t e s v . Hodge ( 5 t h C i r . 1 9 7 3 ) , 487 F.2d 945. W e h o l d t h a t t h i s view c o r r e c t l y i n t e r p r e t s t h e s i t u a t i o n i n Montana and a d o p t t h i s r u l e . I n so doing, w e r e c o g n i z e t h a t a w a i v e r o f t h e r i g h t t o c o u n s e l c a n n o t be presumed and t h a t t h e S t a t e b e a r s a heavy b u r d e n t o show waiver. N o r t h C a r o l i n a v . B u t l e r (1979) , - U.S. , 99 S.Ct. 1755, 60 L.Ed.2d 286, 292. Given t h i s s t a n d a r d and t h e D i s t r i c t C o u r t ' s f i n d i n g s o f f a c t , t h e D i s t r i c t C o u r t d i d n o t err i n h o l d i n g a p p e l l a n t waived h i s r i g h t t o c o u n s e l . The D i s t r i c t C o u r t found t h a t t h e f i r s t a s s e r t i o n o f t h e r i g h t w a s made on Sunday morning. A f t e r b e i n g a d v i s e d by t h e p o l i c e t h a t h e c o u l d have c o u n s e l i f he wished, a p p e l l a n t continued answering q u e s t i o n s . Thus, a p p e l l a n t v o l u n t a r i l y abandoned h i s r i g h t t o c o u n s e l a t t h i s p o i n t and u n i l a t e r a l l y resumed t h e i n t e r v i e w w i t h o u t prompting by t h e i n t e r v i e w i n g o f f i c e r s . The Sunday i n t e r - view t e r m i n a t e d a r o u n d noon w i t h no i n c r i m i n a t i n g s t a t e m e n t s b e i n g made by a p p e l l a n t . The n e x t i n t e r r o g a t i o n s e s s i o n d i d n o t b e g i n u n t i l Monday e v e n i n g . Between t h e i n t e r v i e w s more t h a n 30 h o u r s e l a p s e d , i n c l u d i n g a f u l l b u s i n e s s d a y i n which a p p e l l a n t was n o t d e t a i n e d and was f r e e t o c o n s u l t w i t h f a m i l y members o r a n a t t o r n e y i f h e wished. P r i o r t o t h e Monday i n t e r r o g a - t i o n , a p p e l l a n t a g a i n r e c e i v e d h i s Miranda w a r n i n g s and signed a waiver. During t h e q u e s t i o n i n g s e s s i o n , a p p e l l a n t again a s s e r t e d h i s r i g h t t o counsel. With t h i s , t h e o f f i - cers s t o p p e d q u e s t i o n i n g a p p e l l a n t and began t o l e a v e t h e room. A p p e l l a n t resumed t a l k i n g t o t h e p o l i c e and t h e y reminded him he had j u s t s a i d he wanted a n a t t o r n e y . Appel- l a n t t h e n s t a t e d h e d i d n o t want a l a w y e r and t h e i n t e r r o - g a t i o n continued. These facts--particularly the more than 30-hour time span between the first assertion of the right to counsel and any inculpatory statement, the rereading of his Miranda warnings and the signing of a waiver before any incriminating statement, and the express statement by appellant that he did not want a lawyer--represent a waiver of the right to counsel on the part of appellant. The law on the second issue raised by appellant is clear. Recent Montana and United States Supreme Court decisions invalidate section 46-13-301(4), MCA. Lego v. Twomey (1972), 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618; State v. Smith (1974), 164 Mont. 334, 338, 523 P.2d 1395, 1397. The State must prove the voluntariness of a confes- sion at a suppression hearing by a preponderance of the evidence. If the trial court applied section 46-13-301(4) and required appellant to prove the confession involuntary, it erred. Error by the trial court cannot be presumed but must be shown by the record. State v. Straight (1959), 136 Mont. 255, 264-65, 347 P.2d 482. Reviewing the record of the sup- pression hearing, the trial judge heard arguments by the prosecuting attorney that, while at the trial the State must prove voluntariness, the burden to show the police violated appellant's rights rested on appellant at the suppression hearing. Responding to this argument, the judge stated, "Well, it appears to me that what you say is true. Mr. Volinkaty [appellant's attorney], at the trial, if they wish to introduce this at trial, the burden is on the State to prove voluntariness; however, this is a motion to suppress and I think that, since it is your motion, you should pro- ceed at this time." This record presents the possibility of two errors by the District Court. First, the trial judge could have erred in requiring the appellant to go forward with the evidence. The federal courts have considered this question on several occasions. Speaking to this issue in a case involving the suppression of wiretap evidence, the Fifth Circuit Court stated: "(b) Burdens of proof in suppression hearings. It is well establishedthat the burdens of production and persuasion generally rest upon the movant in a suppression hearing. [Cita- tions omitted.] Concededly, in some well- defined situations the ultimate burden of persuasion may shift to the government upon an initial showing of certain facts by the defendant. For example, if a defendant pro- duces evidence that he was arrested or sub- jected to a search without a warrant, the burden shifts to the government to justify the warrantless arrest or search. [Citation omitted.] Or if a defendant shows that a con- fession was obtained while he was under cus- todial interrogation, the government then has the burden of proving that the defendant volun- tarily waived his privilege against self-incri- mination . .. - -in those situations, - even the defendant must first discharge - initial bur- his - - producing some evidence on specific den of to - factual allegations sufficient - - make a prima facie showing of illegality." United States v. DeLa ~et(t une5h Cir. 1977), 548 F.2d 528, 533-534, cert. denied, 431 U.S. 932 and 434 U.S. 954. In United States v. Crocker (10th Cir. 1975), 510 F.2d 1129, the trial court denied appellant's motion to suppress a confession. On appeal, the appellant contended the trial court at the suppression hearing improperly required her to assume the burden of proof and of going forward with the evidence. The Circuit Court responded to this argument, saying: "It is fundamental on a motion to suppress there must be 'a foundation in fact for the legal re- sult.' Rogers v. Richmond, 365 U.S. 534, 546, 81 S.Ct. 735, 742, 5 L.Ed.2d 760 (1961). Logic dictates that a pre-trial Motion to Suppress f i l e d by a n a c c u s e d d o e s i n f a c t c a s t t h e bur- den upon t h e movant t o p r e s e n t f a c t s n e c e s s a r y t o sustain h i s position. [Citation omitted.]" C r o c k e r , 570 F.2d a t 1135. The c o u r t g o e s on t o s t a t e : "While t h e d e f e n d a n t must f i r s t p r e s e n t e v i d e n c e i n s u p p o r t o f h i s motion t o s u p p r e s s which s a - t i s f i e s h i s burden o f c h a l l e n g i n g t h e l e g a l i t y of t h e c o n f e s s i o n , w e have r e c o g n i z e d t h a t t h e -- Government must t h e n c a r r y t h e c o u n t e r v a i l i n g burden of p r o v i n g a waiver o f t h e c o n s t i t u t i o n a l privilege against self-incrimination." 510 F.2d a t 1135. See a l s o U n i t e d S t a t e s v . P o l i z z i ( 9 t h C i r . 1 9 7 4 ) , 500 F.2d 8 5 6 , 910, c e r t . d e n i e d , 419 U.S. 1120. These c a s e s i n d i c a t e a t r i a l judge c a n p r o p e r l y r e q u i r e a p a r t y moving f o r t h e s u p p r e s s i o n of e v i d e n c e t o i n i t i a t e suppression hearing proceedings. The r a t i o n a l e f o r s u c h a p r o c e d u r e i s t h e r e q u i r e m e n t t h a t t h e movant e s t a b l i s h a prima f a c i e c a s e t h a t a c o n s t i t u t i o n a l i n f r i n g e m e n t h a s oc- curred. Once t h i s h a s been accomplished, t h e u l t i m a t e burden of p r o v i n g t h e p r o p r i e t y o f t h e s t a t e ' s a c t i o n s h i f t s t o the state. Thus t h e D i s t r i c t C o u r t h e r e d i d n o t err i n r e q u i r i n g a p p e l l a n t t o p r e s e n t h i s evidence f i r s t a t t h e suppression hearing. Although a l l o w a b l e , w e do n o t recommend t h i s p r o c e d u r e a s standard p r a c t i c e a t suppression hearings. The D i s t r i c t C o u r t s s h o u l d employ t h i s p r o c e d u r e o n l y when n e c e s s a r y t o e s t a b l i s h a prima f a c i e c a s e of i n f r i n g e m e n t by t h e S t a t e . I f a prima f a c i e c a s e i s p r e s e n t e d by t h e p a r t y r e q u e s t i n g t h e suppression of evidence t o t h e t r i a l c o u r t ' s s a t i s f a c - t i o n t h r o u g h p r e h e a r i n g documentation, t h e S t a t e s h o u l d be required t o i n i t i a t e t h e suppression hearing proceedings. T h i s p r o c e d u r e w i l l c l e a r l y p l a c e t h e burden of proof on t h e S t a t e a s r e q u i r e d by Lego and Smith. The second possible error presented here is whether there was an improper burden of proof put on appellant at the suppression hearing. The above excerpt from the hearing transcript clearly shows the trial judge applied the incor- rect standard at the suppression hearing. After hearing the State's argument that appellant was required to prove the confession involuntary, the judge stated he thought that what the prosecuting attorney said was true and required appellant to proceed. As noted above, we find that this required appellant to assume the obligation of going forward with the evidence. It also shifted the burden of proof to appellant. However, we find here that even though the trial court's ruling did shift the burden, the ruling can be sustained as harmless error. The error here is federal constitutional error. Lego v. Twomey, supra; Jackson v. Denno (1964), 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. While not all errors of constitutional magnitude call for reversal, ". . . before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Chapman v. California (1967), 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705. In determining the existence of harmless constitutional error, the appellate court considering the question has the task of applying the harmless beyond a reasonable doubt test. Chapman, 386 U.S. at 24; see also Harrington v. California (1969), 395 U.S. 250, 89 S.Ct. 1726, 23 ~ . ~ d . 2 d 284; Schneble v. Florida (1972), 405 U.S. 427, 92 S.Ct, 1056, 31 L.Ed.2d 340. Applying this standard to the instant case, we find the error was harmless beyond a reasonable doubt. We are aided in our decision by the rationale expressed in Rogers v. United States (5th Cir. 1964), 330 F.2d 535, cert. denied, 379 U.S. 916. Rogers is another case holding no error exists in requiring a defendant to initiate suppression hearing proceedings. 330 F.2d at 542. In so holding, the court stated: ". . . The burden of producing evidence is never crucial unless certain necessary facts in a case are not aired. Here- - salient facts were - all the aired. Few were even in dispute. The defendant, therefore, was not prejudiced by the order in which the evidence iia~-~resented. And the dis- trict judge allowed defendant's counsel to ex- amine all of the witnesses as hostile. There is no prejudicial error in the record." 330 F.2d at 543. (Emphasis added.) As in Rogers, the trial judge heard all the salient facts at the suppression hearing. The trial court heard testimony from eleven witnesses including appellant, appel- lant's father, the officers who interviewed appellant, the polygraph examiner, a clinical psychologist, and a learning disabilities specialist. The trial judge allowed appellant's attorney to examine witnesses as adverse in appellant's initial presentation. At the conclusion of the appellant's initial presentation, the State introduced evidence of voluntariness through its own witnesses. When the State rested, the trial court gave appellant the opportunity to present rebuttal testimony. Throughout the proceedings, both sides conducted extensive direct, cross, redirect, and recross examination of the witnesses. In addition to the witness testimony, the trial judge had the benefit of briefs from appellant and the State on the voluntariness question. After considering all this testimony and the briefs of counsel, the trial judge found the confession voluntary. Given the extensive nature of the proceedings and the full right of appellant to present his case on this issue, we are convinced beyond a reasonable doubt the trial judge would have reached the same result regardless of the improper placing of the burden of proof on appellant. Any error thus constitutes harmless error and does not warrant returning the case to the trial court. Appellant's arguments concerning the third issue lack merit. Regarding the sufficiency of evidence to support a guilty verdict, this Court has said: "On appeal we examine the evidence to determine whether the verdict is supported by substantial evidence. In doing so, we view the evidence in the light most favorable to the state." State v. Merseal (1975), 167 Mont. 412, 415, 538 P.2d 1366, 1368. Beyond the confession, the State presented evidence that placed appellant with the victim about three blocks from the scene of the murder near the probable time of the murder. Appellant could not explain his whereabouts at the time the murder probably occurred. Appellant had told his brother, "I think they're going to get me for the murder" before the police even questioned him about the homicide. And, appellant had borrowed his brother's shoes the morning after the murder because his own were wet, even though every witness who was with appellant and the victim on the night of the murder agreed that appellant had not walked near any water. This evidence, when viewed in the light most favor- able to the State, as we must do when the State prevails at the trial level, sufficiently supports appellant's convic- tion on the charge of deliberate homicide. For the foregoing reasons, we affirm the judgment of the District Court. We concur: Z&$Chief Justi Justices Mr. Justice John C. Sheehy dissents: This is the kind of case that is guarantied to add gray hairs to an already graying judge's head. The record discloses a strong possibility that defendant Larry Lynn Blakney is guilty of deliberate homicide in the murder of Ann Thibodeau. But the record also discloses a strong possibility that the confession uttered by Larry Lynn Blakney was involuntary, was obtained with indicia of coercion, and the District Court put the burden of proof with respect to voluntariness upon the wrong party at the suppression hearing. Reversal means further expense to the county and a possible loss of a conviction. Affirmance means that Blakney's constitutional rights must be explained away, and places our approval on the procedure that led to the confession. Therefore, I come down on the side of reversal. The circumstances surrounding the confession need some further elaboration. The body of Ann Thibodeau was found at approximately 9:00 p.m. on Saturday, June 11, 1977 in the Clark Fork River, near downtown Missoula. Blakney, at the officer's request, went to the Missoula police station at 10:30 p.m. that evening. He was interrogated beginning at approximately 11:30 p.m. for one and one-half hours. Following the interrogation, which was recorded, Blakney was taken to his home by interrogating officers, where his car was searched pursuant to his consent. They also were shown the interior of Blakney's home. They broke off contact with him at 2:00 a.m. on the morning of June 12, 1977. Arrangements were made at that time for Blakney to come into the police station that morning at approximately 9:45 a.m. for a second interview. This second interview on June 12, 1977, lasted approximately two to two and one-half hours. Again the interrogation was conducted in the police interrogation room in the presence of two police officers. At this interrogation arrangements were made for Blakney to take a polygraph examination on the following day at a time to be agreed upon. Although the testimony of the officers is inconsistent about the matter, it is conceded by the two officers and it was found by the trial court that some type of request for an attorney was made by Blakney during the interrogation of June 12. On Monday, June 13, 1977, Blakney went to the police interrogation room to undergo the polygraph examination. It was conducted by a Cascade County deputy. The examination commenced at approximately 9:15 p.m. and was conducted in the presence of four police officers, including the polygraph examiner. Since Blakney's father had gone on vacation the previous day, his uncle came to the police station with him. When the polygraph examination began, the uncle was seated at an open door outside the interrogation room and was able to hear the first few questions of the polygraph examination. The examiner shook his head in the negative, said something to another police officer, who then suggested to the uncle that he remove himself, or go upstairs to get a soft drink or something. The uncle did this, and when he attempted to return to the interrogation room, found the door to the basement, through which he had come, locked. He waited there until the polygraph interrogation was completed at which time an officer came out to the uncle to tell him that the boy "was confessing." During the polygraph examination, the young defendant was seated facing the wall, and on the table near -18- him were spread out parts of the police file, but particularly a dozen or so pictures of the nude body of Ann Thibodeau. When the polygraph examiner had finished his examination, he removed the chart from the machine, and placed the defendant behind him, showed to the defendant, the polygraph chart recording of a "known lie". The examiner then went on to state by showing other "highs" in the chart, that Blakney was lying. Blakney testified that the polygraph examiner said "well, I've got some daughters of my own, I wouldn't want the same thing to happen to them as what happened to Ann." Blakney also testified that the examiner told him that the examiner would take the polygraph test and flash it up on a big screen in front of the jury and would show the jury the places where the examiner maintained that Blakney lied. The testimony of the polygraph examiner in this regard is as follows: "Q. After Larry came over and you reviewed the results, did you make any statements to Larry at that time? A. Yes, I did. I told him I thought it would probably be best if he leveled with the authorities and told them what happened. "Q. Are you married? A. Yes. "Q. Do you have any children? A. Yes. "Q. And are they boys or girls? A. I have two boys, one 19 and one 16. "Q. No girls? A. No. "Q. Did you make a statement to Larry at that time that you had a couple of daughters and you didn't want this happening to them? A. Okay. To clarify what I am talking about -- and talking about marriage -- on my first marriage, I have two sons by my first marriage. On my second marriage, I have two daughters, stepdaughters, and that's true. "Q. Did you make a statement to that effect, that you knew he was lying and that you didn't want this to happen to your daughters? A. I'm not going to say that I made that statement. I honestly don't remember. "Q. Can you honestly say that you did not make the statement? A. No. I wouldn't honestly say that. "Q. Did you make any other statements to him? A. Yes, I did. Before we first started the exam, when we went over the advisement of rights, and also the waiver of rights on the bottom, made it very plain to Larry, and asked him if he knew that this was being done voluntarily on his part, and that the polygraph results cannot be used against him in the State of Montana. "Q. Did you make a statement to Larry after the test was concluded of something to the effect that you were going to put the results of the test on a screen and have it shown to a jury and he would be found guilty of deliberate homicide? A. No. "Q. Did you make any statement that was similar to that? A. To the best of my knowledge, no. "Q. Did you make any other statement, other than possibly one about the daughters, concerning either the use of the results or Larry's involvement in the crime? A. Yes, I probably did, because in most cases, I'll tell them that, if it is stipulated that the results can be used, but only if his attorney and the prosecuting attorneys will stipulate it, that the results can be used." Immediately following this, the two officers who originally interrogated Blakney came back into the room. Blakney testified that they told him they knew that he did it and that he ought to tell everything. At this point, Blakney testified that he again requested an attorney. The officers testified that he made such a request but that then he went on talking and so nothing further was done about it. Blakney testified that he assumed that because they continued interrogating him that he was not going to get an attorney at that time. At this point, according to the testimony of the officers, Blakney, who was concerned about what a confession would mean to members of his family, was assured that it was a good thing for him to do and that the family would understand. With that, Blakney confessed to the murder. Later he gave a further confession that was taped or recorded. The evidence concerning the actual confession reveals a very emotional scene. It is this evidence and testimony that leads me to conclude that Blakney probably committed the murder. But the testimony in evidence leading up to the confession also forces me to conclude that his constitutional rights against self-incrimination and his right to counsel were overridden. Of course, if the first oral confession was uncon- stitutionally brought about, then the second confession is likewise inadmissible. In any event, in considering the voluntariness of a confession, its truth or falsity is not to be considered. State v. White (1965), 146 Mont. 226, 405 P.2d 761; cert-den. 384 U.S. 1023, 86 S.Ct. 1955, 16 L.Ed.2d 1026. Where a confession is given in the absence of counsel, the underlying test of admissibility of confession is whether it is given voluntarily, and with the defendant's free will. State v. Lucero (1968), 151 Mont. 531, 445 P.2d 731; State v. Noble (1963), 142 Mont. 284, 394 P.2d 504. The majority opinion tacitly concedes that the evidence respecting voluntariness is close, and that there is evidence which would support either side of the issue. It is further clear from the record, that the District Court assumed that it was bound by the provisions of section 43-13-302(4), MCA, that the "burden of proving that a confession or admission was involuntary shall be on the defendant." This is the first -21- case where the Montana Supreme Court directly invalidates that portion of section 46-13-301(4), MCA. This Court had, however, in State v. Smith (1974), 164 Mont. 334, 338, 523 P.2d 1395, stated that the rule in Montana was that the state must prove the voluntariness of a confession by a preponderance of the evidence. This rule was also enunciated in State v. LaFreniere (19731, 163 Mont. 21, 27, 515 P.2d 76. The majority opinion concludes that the District Court did in fact apply an incorrect standard by placing the burden of proof upon Blakney to prove the involuntariness of his confession. Having so concluded, the majority goes further and determines that the mistake of the District Court constituted harmless error beyond a reasonable doubt. On that point, I must dissociate myself from the majority. I cannot agree with the majority that the evidence of voluntariness was harmless beyond a reasonable doubt. I am not mentally agile enough to make that syllogistic leap. In my opinion, when the District Court concluded that Blakney did not carry his burden of proof, a burden he did not have under a correct version of the law, the District Court committed error beyond a reasonable doubt. To clarify my position, I find no particular significance or error in the fact that Blakney was required to put his evidence on first at the suppression hearing. The correct procedure at suppression hearings calls for the defendant to put his case on first, at least to establish a prima facie case of involuntariness, because otherwise his motion would be defeated if no evidence were given on either side. Once the prima facie case has been established the burden of persuasion shifts to the State to prove the voluntary character of the confession. -22- I also want to make clear that I have stated the rule in Montana that voluntariness must be proved by the State by a preponderance of the evidence, only because the rule is - stare decisis.1: disagree with the holding of this Court in State v. LaFreniere, supra, which refused to adopt the standard of proof respecting voluntariness as beyond a reasonable doubt. Our court was following a decision in Lego v. Twomey (1972), 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618, 626, 627. There, the United States Supreme Court decided that proof beyond a reasonable doubt of the voluntariness of a confession was not constitutionally required. When the logic of the nine men in Washington in reaching a decision does not hold water, and we are not bound by the decision, we should not follow it blindly. The United States Supreme Court reached the preponderance rule in such cases upon the reasoning that "the purpose that a voluntariness hearing is designed to serve has nothing whatever to do with improving the reliability of jury verdicts . . ." 404 U.S. at 486. That reasoning is demonstrably wrong; it is precisely to assure the reliability of the jury verdict that suppression hearings are permitted. In fact, before the jury is permitted to hear a confession, the trial court is first required to determine that the confession is in fact voluntary. Jackson v. Denno (1964), 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. In Montana, by statute, the issue of the admissibility of the confession is not to be submitted to the jury. Section 46-13-301(5), MCA. When one considers that every element of the crime must be proved beyond a reasonable doubt (section 26-1-403(2), MCA) the catastrophic effect of permitting a jury to hear a confession of the defendant, -23- the admissibility of which is determined on a basis less than beyond a reasonable doubt, cannot be debated. California has moved away from the United States Supreme Court in this regard, and has held that the privilege against self-incrimination is so fundamental, and so highly regarded judicially, that the reasonable doubt standard presents the greatest chance of excluding involuntary confessions. People v. Jimenez (1978), 147 Cal.Rptr. 172, 580 P.2d 672. Persuasive to the California court was the fact that once a confession is determined by the trial court to be voluntary and therefore admissible, the jury does not redetermine the voluntariness issue, and the appellate court is bound to accept the trial court's resolution of conflicting evidence, unless it is so improbable as to be entirely unworthy of belief. Jimenez, supra, 580 P.2d at 678. The same situation exists in Montana. Under our code section above cited, the jury does not determine the issue of admissibility. On appeal this Court has held invariably that the District Court's decision as to admissibility is practically inviolate. State v. Smith (1974), 164 Mont. 334, 523 P.2d 1395; State v. Chappell (1967), 149 Mont. 114, 423 P.2d 47; State v. White (1965), 146 Mont. 226, 405 P.2d 761. Again, it offends my syllogistic power to find consistency in a rule which requires proof of elements of a crime beyond a reasonable doubt but which allows a confession, against the defendant's constitutional right of no self-incrimination, to be proved by a lesser standard. Finally, it is my conclusion that Blakney was denied his Miranda rights with respect to counsel. The majority opinion finds that he effectively asserted his right but that he waived the same. It is true that the United States Supreme Court has held that the State bears a "heavy burden" to show waiver of right to counsel. North Carolina v. Butler (1979), - U.S. , 99 S.Ct. 1755, 60 L.Ed.2d 286, 292. I am -24- f r a n k t o s t a t e t h a t I d o n ' t know what a "heavy burden" i s b u t I t h i n k i t s h o u l d be n o t h i n g l e s s t h a n beyond a r e a s o n a b l e doubt. Here a g a i n t h a t s t a n d a r d h a s n o t been m e t i n t h i s case. I would r e v e r s e and remand, a t l e a s t f o r a p r o p e r h e a r i n g a s t o t h e v o l u n t a r i n e s s of t h e c o n f e s s i o n . \ . ;-- k . -> ,A ___-____--_-------------- 4 ' / Justice "7---- Mr. Justice Daniel J. Shea dissenting: I would reverse the conviction. I cannot in good conscience abide by the bald conclusion of the trial court after a hearing on a motion to suppress, that the confession was voluntary and that defendant was not denied his right to counsel. I agree with the factual recitation and conclusions reached by Justice Sheehy in his dissent, although I am not convinced at this time that we should adopt the California standard that the State must prove beyond a reasonable doubt that a confession is voluntary before it can be introduced against him at trial. People v. Jiminez (1978), 147 Cal.Rptr. 172, 580 P.2d 672. I am not convinced, on the other hand, that the present preponderance of the evidence should be the proper standard. Rather, I believe that the State should be required to prove by clear and convincing evidence that the defendant's confession was voluntary. The standard of beyond a reasonable doubt is too stern, and the standard of preponderance of the evidence is too elusive or vaporous. It is too flexible a standard by which to judge something so fundamental as a constitutional right. Justice Sheehy does not agree, furthermore, that it was harmless error beyond a reasonable doubt to require the defendant to prove the involuntariness of the confession. Nor do I. Should a defendant challenge the voluntariness of his confession^ it is his duty to raise the issue by an appropriate motion to suppress with specific contentions; but once those allegations are made it is the duty of the State to proceed first with its case to prove that the confession was voluntary. Only if the State establishes a prima facie case of voluntariness by the standard of clear and convincing evidence should the defendant be required to come forward with -26- his own evidence disputing the State's claim. That was not done here, and regardless of the standard used, it is clear that the trial court in effect placed the burden on the defendant to prove that the confession was involuntary and to prove that he was denied his right to counsel. The record demonstrates that the trial court was under the mis- taken assumption it was the defendant's duty to prove involuntariness of the confession and nonwaiver of counsel rather than the duty of the State to prove a voluntary confession and waiver of counsel. In setting forth the wide latitude to be given a trial court in assessing and weighing the evidence, the majority refers to Grimestad where we simply repeated the time worn rule which applies to virtually all factual determinations by a trial court. The majority then proceeds to apply Grimestad to this case by stating: "The trial court here reviewed the evidence and determined appellant voluntarily confessed. In considering almost every one of the factors listed above as relevant in determining the voluntariness of appellant's confession, evidence exists supporting the holding of the District Court. '' I do not dispute that evidence exists supporting the holding of the trial court, but if a standard other than the virtually meaningless one of preponderance of the evidence (in the context of this case) were applied, the trial court would have been required to find that the State did not prove the confession voluntary and a waiver of counsel by clear and convincing evidence. The majority then proceeds to discuss the evidence as to each of the factors. The essential problem is, however, that another trial judge, if he was so inclined (let us say if he had philosophical leanings different. than those of -27- the trial judge concerning the right to counsel and obtaining confessions), could have taken the opposite position, and concluded, with adequate support in the record, that the State did not prove that the confession was voluntary and that the State did not prove that defendant waived his right to counsel. This decision of the trial court would have looked just as good in print, although not nearly as well accepted by the public. Viewed in the abstract, this deference given to trial court decisions on the facts is nice-sounding; it gives the distinct impression that the appellate court is not meddling in the factual determinations of the trial court. I would also like to believe that we could, with full assurance, give this kind of deference to the trial court and its fact-finding functions. We refer to this rule constantly when we uphold a decision of the trial court as to its factual determinations. Aside from the improper standard applied in this case (it should be at least by clear and convincing evidence), the problem in this case is in applying this rule of deference to a situation where there is no indication that the trial court listened carefully to the evidence, carefully evaluated the evidence, and then came to the proper conclusions by a careful application of the law to the facts as it perceived them to be. We are giving only lip service to one's constitutional rights if we do not require this of trial courts in reviewing their rulings on factual questions relating to alleged constitutional violations. How do we know, for example, that in this case after the motion to suppress was taken under advisement, if the trial court took five minutes in considering the case before reaching its decision, or whether it took fifteen hours in considering -28- the case before it reached its decision? This is not necessarily to say that a five minute consideration would automatically be inadequate or that a fifteen hour con- sideration would be adequate. But, it can be safely stated that, regardless of the decision, if one knew the trial court considered the case for fifteen hours before reaching its decision, it would at least indicate that it had carefully considered the case. It goes without saying that when this Court reviews decisions of a trial court, it is helpful that we know how the trial court perceived the facts if it is making a factual determination, and how it applied the law to the facts. It is most important when the issue involves a claimed violation of a fundamental right such as is involved here. Unfortunately, it is more often the case than not, that this Court does not receive any meaningful insight as to how and why a trial court reached a decision. The general rule seemingly applied by the trial courts is that the less it says about the facts, and how it applied the law to the facts, the better its chance will be that its decision will be upheld on appeal. That situation exists in this case, but it is much more serious. Here, the only findings of fact and conclusions of law involved, are those prepared by the County Attorney after the trial court had reached its decision, and which were then given to the trial court to sign. We perhaps get some insight as to what the prosecutor perceived the facts to be and the appropriate conclusions to draw from those facts, but it adds absolutely nothing to the legitimacy of the trial court's decision. Had it not been for the after-the-decision suggestion of a law school intern then working for the Missoula County Attorney, there would not have been any findings and con- clusions entered in this case. This important revelation was first unearthed during the oral arguments before this Court. The prosecutor explained the circumstances. -2 9- This Court was questioning the prosecutor as to whether the trial court had entered a memorandum in support of its decision or had entered findings of fact and conclusions of law. In reply, the prosecutor revealed that after the trial court had taken the suppression motion under advisement, it later notified the County Attorney's office that it had entered an order denying the defendant's motion to suppress, or was about to enter such an order. It was then that the law student suggested to the prosecutor that it would be a good idea if the prosecutor presented the trial court with findings and conclusions in support of its order. The prosecutor agreed that this was a wise suggestion and, accordingly, prepared findings and conclusions and presented them to the trial court for signature. The trial court adopted verbatim the findings and conclusions; indeed, the order in which the findings and conclusions appear is exactly the same document presented by the prosecutor. Thus, the only findings and conclusions before this Court for review are those prepared by and tailored by the prosecutor. The trial court had not requested proposed findings and conclusions from either side. Presumably, therefore, if the trial court did so at all, it was going to prepare and enter its own. At least the defendant would naturally believe this being that the trial court requested no findings or conclusions from either side. Counsel for defendant at the hearing on the motion to suppress is not the same counsel as argued this appeal, and I imagine it will come as quite a revelation to him as to the background leading up to the tailored findings and conclusions signed by the trial court. The majority, of course, has carried the day, but I would not give one ounce of weight to findings and conclusions -30- prepared, presented, and signed in this manner. To conclude, as the majority has, that all this deference should be given to the decision of the trial court in listening to, weighing and evaluation of the evidence, is an exhaltation of form over substance in the highest degree. Defendant did not have his fair day in court on the motion to suppress because of the trial court's erroneous ruling placing the burden on the defendant. This error was compounded by the strange decision-making process used. in this case. Where the findings were tailored by the prosecutor after the decision was made, and with no opportunity for the defendant to participate, how can anyone in good conscience believe that the trial court fairly received and evaluated the evidence and applied the law in a fair and even-handed manner? Assuming that the revelations of the prosecutor did not come to light during oral arguments, and that this Court believed that the findings and conclusions were those of the trial court alone, if we had a standard of review of questions of this nature requiring the State to prove by clear and convincing evidence rather than by the preponderance of the evidence, the evidence would have required this Court to reverse the District Court. By not adopting a more stringent standard, we are only encouraging trial courts to be as vague as possible in reaching their decisions on questions involving fundamental constitutional rights.