State v. Blakney

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
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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
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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
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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.
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 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
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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.