No. 14616
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
THE STATE OF MONTANA,
Plaintiff and Respondent,
THOMAS DESS,
Defendant and Appellant.
Appeal from: District Court of the Eighth Judicial District,
Honorable H. William Coder, Judge presiding.
Counsel of Record:
For Appellant:
Lang and Donovan, Great Falls, Montana
Richard W. Lang argued, Great Falls, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Allen B. Chronister argued, Assistant Attorney General,
Helena, Montana
J. Fred Bourdeau, County Attorney, Great Falls,
Montana
Michael G. Barer argued, Deputy County Attorney, Great
Falls, Montana
Submitted: September 10, 1979
Decided : OCT 2 I. 1979
--
Filed:
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
~efendantappeals from a judgment of the District Court
of the Eighth Judicial District, Cascade County, the Honor-
able H. William Coder presiding, finding him guilty of the
crimes of misdemeanor criminal trespass, felony theft, and
three counts of felony criminal mischief. The criminal
trespass conviction related to appellant's allegedly unlaw-
fully entering and remaining in the J & L Tire Company in
Great Falls. The felony charges stemmed from appellant's
alleged theft and destruction of property belonging to Bison
Motor Company in Great Falls and the City of Great Falls.
At approximately 6:00 a.m. on January 19, 1978, two
Great Falls police officers responded to a burglar alarm at
the J & L Tire Company in Great Falls, Montana. On investi-
gation, they discovered two individuals hiding behind the
bathroom door in the tire company building. One of the
individuals was appellant Thomas Dess. The police officers
observed a leukemia poster lying on the floor of the shop
area of the building with no money in it. The police of-
ficers arrested appellant and his companion.
Sometime in the early morning hours of the same day, a
pickup truck was removed from the premises of Bison Motor
Company, the Ford dealership in Great Falls. The truck was
driven through the fence of the premises. In addition, the
lightbars and antennas of two police cars on the Bison Motor
Company lot were damaged. Great Falls police recovered the
pickup truck later that day south of Great Falls. They
found the pickup driven off the highway and stuck in some
snow. The truck had been damaged as a result of being
driven through the car lot fence.
A t a p p r o x i m a t e l y 10:30 a.m. on J a n u a r y 1 9 , w h i l e i n
c u s t o d y i n t h e G r e a t F a l l s j a i l , a p p e l l a n t a l l e g e d l y made a
s t a t e m e n t t o L t . James Cook c o n f e s s i n g t o p a r t i c i p a t i o n i n
t h e t h e f t o f t h e p i c k u p and t h e damaging o f t h e p o l i c e c a r s .
Lou Ann Bush, a s t e n o g r a p h e r f o r t h e G r e a t F a l l s P o l i c e
Department, r e c o r d e d t h e s t a t e m e n t .
On F e b r u a r y 3, 1978, t h e Cascade County a t t o r n e y f i l e d
an information i n D i s t r i c t Court charging a p p e l l a n t with
b u r g l a r y , t h e f t and c r i m i n a l m i s c h i e f . Appellant w a s ar-
r a i g n e d on F e b r u a r y 7 and e n t e r e d p l e a s o f n o t g u i l t y t o a l l
charges. D i s t r i c t J u d g e Truman G. B r a d f o r d s e t t r i a l i n t h e
m a t t e r f o r March 28, 1978. On March 3 , a p p e l l a n t w a s re-
l e a s e d from j a i l on b a i l . The t r i a l d a t e was c o n t i n u e d t o
A p r i l 11, 1978, d u e t o t h e i l l n e s s o f J u d g e B r a d f o r d . On
A p r i l 11, J u d g e B r a d f o r d s t i l l b e i n g ill, J u d g e Coder a c -
c e p t e d j u r i s d i c t i o n o f t h e case. H e l a t e r s e t a new t r i a l
d a t e f o r J u l y 1 0 , 1978. On J u n e 2 1 , d e f e n s e c o u n s e l Cameron
Ferguson f i l e d a motion f o r a n o r d e r c o n t i n u i n g t h e t r i a l
d a t e b e c a u s e of h i s r e s i g n a t i o n a s Cascade County p u b l i c
d e f e n d e r e f f e c t i v e J u n e 30, 1978, and r e q u e s t e d t h a t t h e
a t t o r n e y s u b s e q u e n t l y a s s i g n e d t o t h e c a s e be g i v e n a t l e a s t
a month t o become f a m i l i a r w i t h t h e c a s e . J u d g e Coder
e n t e r e d a n o r d e r r e s e t t i n g t h e t r i a l f o r September 4 , 1978.
On J u l y 27, t h e c o u n t y a t t o r n e y r e q u e s t e d t h e t r i a l b e r e s e t
b e c a u s e September 4 w a s a l e g a l h o l i d a y . J u d g e Coder s e t
t h e t r i a l f o r September 2 5 , 1978, and t r i a l was s u b s e q u e n t l y
h e l d on t h a t d a t e .
On September 1 9 , 1978, a s u p p r e s s i o n h e a r i n g was h e l d
c o n c e r n i n g t h e s t a t e m e n t a l l e g e d l y made by a p p e l l a n t o n t h e
morning o f h i s a r r e s t . A p p e l l a n t t e s t i f i e d t h a t he d i d n o t
r e c a l l t a l k i n g w i t h ~ t Cook, r e c e i v i n g h i s Miranda w a r n i n g
.
from Lt. Cook, or making any statement concerning his acti-
vities prior to being arrested. On cross-examination,
appellant exhibited a good recollection of other events that
occurred on January 19, and stated a signature on a waiver
of rights form looked like his signature. He consistently
denied making a statement to Lt. Cook, however. The State
called no witnesses at the suppression hearing. Based on
appellant's testimony, Judge Coder, while expressing concern
that nothing on the record supported the fact that appellant
was given his Miranda warnings, found no credible evidence
on the record to support appellant's position and denied his
motion to suppress the statement. At trial, Ms. Bush read
the statement into evidence over appellant's objection.
The following issues are raised on appeal:
1. Did the District Court err in denying appellant's
motion to suppress his alleged confession and allowing the
statement to be read into evidence at trial?
2. Was appellant denied his constitutional right to a
speedy trial?
Addressing the issue of the suppression of the alleged
confession, we find the District Court erroneously admitted
appellant's statement for two reasons. First, the State
failed to prove the voluntariness of appellant's confession
at the suppression hearing by a preponderance of the evi-
dence as required by prior case law. See State v. Grime-
stead (1979), - Mont. , 598 P.2d 198, 222, 36 St.Rep.
1245, 1250-51; State v. Smith (1974), 164 Mont. 334, 338,
523 P.2d 1395, 1397.
Looking to the record, there appears to be - evidence
no
introduced at the suppression hearing that appellant volun-
tarily made the statement. The only witness at the hearing
was appellant. On direct examination he testified that he
had no recollection of signing a waiver of his Miranda
rights or making a statement to Lt. Cook. On cross-examina-
tion the State established that appellant recalled many
specific events that occurred the night and morning of his
arrest and that the signature on a waiver of rights form
looked like his signature. The State did not, however,
introduce any evidence refuting appellant's testimony that
he did not made a statement to Lt. Cook or receive his
Miranda warnings.
While the testimony introduced by the State tends to
show that appellant was capable of making a voluntary state-
ment, it does not show by a preponderance of the evidence
that he made a voluntary statement as required by the case
law. Even though the trial court's judgment at a suppres-
sion hearing will not normally be reversed on appeal, when
the State fails to show that appellant was advised of his
Miranda rights, that appellant made the statement attributed
to him, or any evidence other than appellant had the mental
capacity to make a voluntary statement, a finding the State
has carried its burden to prove voluntariness by a prepon-
derance of the evidence is clearly against the weight of the
evidence and must be overturned on appeal.
The second reason appellant's purported confession
should not have been admitted is of the inadequacy of the
Miranda warning allegedly given appellant. The warning
allegedly given appellant included the following language:
"We have no way of giving you a lawyer, but one will be
appointed for you, if and when you go to court."
A split of authority exists on the adequacy of a
Miranda warning containing this language. Several courts
have h e l d warnings n e a r l y i d e n t i c a l t o t h e one c h a l l e n g e d
here invalid. Commonwealth v. Johnson ( 1 9 7 9 ) , Pa. S u p e r .
, 399 A.2d 111, 112; U n i t e d S t a t e s e x r e l . W i l l i a m s v .
Twomey ( 7 t h C i r . 1 9 7 2 ) , 467 F.2d 1248, 1250; United S t a t e s
v. Garcia ( 9 t h C i r . 1 9 7 0 ) , 431 F.2d 134. I n Williams t h e
c o u r t reasoned:
"We h o l d t h a t t h e warning g i v e n h e r e w a s n o t an
' e f f e c t i v e and e x p r e s s e x p l a n a t i o n ; ' t o t h e con-
t r a r y , i t was e q u i v o c a l and ambiguous. I n one
b r e a t h a p p e l l a n t was informed t h a t he had t h e
r i g h t t o appointed counsel during questioning.
I n t h e n e x t b r e a t h , he w a s t o l d t h a t c o u n s e l
c o u l d n o t be p r o v i d e d u n t i l l a t e r . In other
words, t h e s t a t e m e n t t h a t no lawyer c a n be
p r o v i d e d a t t h e moment and c a n o n l y be o b t a i n e d
i f and when t h e a c c u s e d r e a c h e s c o u r t s u b s t a n -
t i a l l y r e s t r i c t s t h e absolute r i g h t t o counsel
p r e v i o u s l y s t a t e d ; i t conveys t h e c o n t r a d i c t o r y
a l t e r n a t i v e message t h a t an i n d i g e n t i s f i r s t
e n t i t l e d t o c o u n s e l upon an a p p e a r a n c e i n c o u r t
a t some unknown, f u t u r e t i m e . The e n t i r e warn-
i n g i s , t h e r e f o r e , a t b e s t , m i s l e a d i n g and con-
f u s i n g and a t w o r s t , c o n s t i t u t e s a s u b t l e temp-
t a t i o n t o t h e u n s o p h i s t i c a t e d i n d i g e n t accused
t o forego t h e r i g h t t o counsel a t t h i s c r i t i c a l
moment." 467 F.2d a t 1250.
O t h e r c o u r t s have u p h e l d warnings v e r y s i m i l a r t o t h e
one given here. Wright v . S t a t e of North C a r o l i n a ( 4 t h C i r .
1 9 7 3 ) , 483 F.2d 405, 407, c e r t . d e n i e d , 415 U.S. 936 ( 1 9 7 4 ) ;
Massimo v. U n i t e d S t a t e s (2nd C i r . 1 9 7 2 ) , 463 F.2d 1171,
1174, c e r t . d e n i e d , 409 U.S. 1117; U n i t e d S t a t e s v . Lacy
( 5 t h C i r . 1 9 7 1 ) , 446 F.2d 511, 513. Those c o u r t s a d o p t e d
t h e r a t i o n a l e t h a t t h e only conclusion a defendant given t h e
warning would b e j u s t i f i e d i n r e a c h i n g w a s t h a t , ". . .
s i n c e he w a s c l e a r l y e n t i t l e d t o have a lawyer p r e s e n t
d u r i n g t h e q u e s t i o n i n g and s i n c e no lawyer c o u l d be p r o -
v i d e d , he c o u l d n o t now be q u e s t i o n e d . " Massimo, 463 F.2d
The h o l d i n g t h a t t h e warning was i n v a l i d i s more con-
s i s t e n t w i t h Miranda and based on a b e t t e r r a t i o n a l e t h a n
the holding to the contrary. Miranda requires interrogators
to be effective and express in explaining the right to
appointed counsel to a defendant. Miranda v. Arizona (1966),
384 U.S. 436, 473, 86 S.Ct. 1602, 16 L.Ed.2d 694. Williams
correctly points out that the language challenged here is
neither effective nor express, but rather equivocal and
ambiguous, informing a defendant of the right to appointed
counsel in one breath and telling him counsel cannot be
provided in the next. The rationale that a defendant would
only be justified in reaching one conclusion based on the
warning given here adopted by the courts holding the warning
adequate under Miranda is unconvincing. The language of the
warning is confusing, and several conclusions as to its
meaning could be envisioned by a person presented with it.
We therefore find the Miranda warning given appellant
defective and the District Court improperly admitted appel-
lant's confession over his objection on this basis.
Having determined appellant's January 19 statement
inadmissible, we must reverse appellant's conviction on the
felony charges stemming from appellant's alleged theft of
the pickup from Bison Motor and the damaging of the pickup
and the two police cars. The confession undoubtedly weighed
heavily in the minds of the jurors in finding appellant
guilty of those offenses.
Concerning appellant's conviction for misdemeanor
criminal trespass, however, we do not find reversal warranted.
This Court will not reverse the District Court if an error
by the District Court constitutes harmless error. State v.
Rozzell (1971), 157 Plont. 443, 450-51, 486 P.2d 877, 881;
State v. Straight (1959), 136 Mont. 255, 265, 347 P.2d 482,
488. When the error is federal constitutional error, as
with the improper admission of appellant's confession, the
error cannot be considered harmless unless the court finds
it harmless beyond a reasonable doubt. Chapman v. California
(1967), 386 U.S. 18, 23-24, 87 S.Ct. 824, 17 L.Ed.2d 705.
The United States Supreme Court has found harmless constitu-
tional error when the inadmissible evidence was cumulative
and other evidence overwhelmingly showed the defendant's
guilt. Schneble v. Florida (1972), 405 U.S. 427, 430, 92
S.Ct. 1056, 31 L.Ed.2d 340; Harrington v. California (1969),
395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284. That is
the case here.
The portion of the confession relating to the criminal
trespass charge merely places appellant inside the J & L
Tire building when the police arrived. The testimony of
both policemen who investigated the break-in places appel-
lant in the building. We conclude the admission of appel-
lant's confession was harmless error in regards to his
criminal trespass conviction.
Appellant's conviction for misdemeanor criminal tres-
pass must stand, therefore, unless appellant's speedy trial
claim has merit. This Court employs the four-part balancing
test set out in Barker v. Wingo (1972), 407 U.S. 514, 530,
92 S.Ct. 2182, 33 L.Ed.2d 101, to determine the validity of
a speedy trial claim. State v. Bretz (1979), Mont .
-1 - P.2d , 36 St-Rep. 1037, 1040-41 (Cause No.
13826, decided June 13, 1979). In making the speedy trial
determination, the Court considers the length of delay, the
reason for the delay, the defendant's assertion of his
speedy trial rights, and prejudice to the defendant. Bretz,
36 St.Rep. at 1041. None of these four factors is regarded
as either necessary in all circumstances or sufficient in
and o f i t s e l f t o d e t e r m i n e t h e d e p r i v a t i o n o f t h e r i g h t t o a
speedy t r i a l . R a t h e r , a l l must b e c o n s i d e r e d t o g e t h e r w i t h
o t h e r r e l e v a n t circumstances. The C o u r t must e n g a g e i n a
d i f f i c u l t and s e n s i t i v e b a l a n c i n g p r o c e s s . B r e t z , 36 St.Rep.
a t 1044-45.
Under t h e l e n g t h o f d e l a y p r o n g o f t h e B a r k e r t e s t , t h e
249 d a y s t h a t p a s s e d between a p p e l l a n t ' s a r r e s t and h i s
t r i a l s h i f t t h e burden of e x p l a i n i n g t h e r e a s o n f o r t h e
d e l a y and t h e a b s e n c e o f p r e j u d i c e t o a p p e l l a n t t o t h e
State. S t a t e v. Cassidy (1978), Mont. , 578 P.2d
735, 738, 35 St.Rep. 612.
The r e a s o n f o r a m a j o r i t y o f t h e d e l a y - - a p p r o x i m a t e l y
s i x and o n e - h a l f o f t h e e i g h t months--was t h e i n a b i l i t y of
t h e S t a t e t o p r o v i d e a j u d g e t o h e a r t h e c a s e and t h e i n a d -
v e r t e n t s c h e d u l i n g o f t h e t r i a l f o r Labor Day. This consti-
t u t e s u n i n t e n t i o n a l d e l a y and must b e weighed less h e a v i l y
than i n t e n t i o n a l delay i n determining t h e v a l i d i t y of a
speedy t r i a l claim. C a s s i d y , 578 P.2d a t 738. The remain-
i n g s e v e n weeks o f t h e d e l a y f o l l o w e d a p p e l l a n t ' s m o t i o n f o r
c o n t i n u a n c e and m u s t b e a t t r i b u t e d t o a p p e l l a n t .
A p p e l l a n t m e t h i s burden of a s s e r t i n g t h e r i g h t t o a
s p e e d y t r i a l by t a k i n g a f f i r m a t i v e a c t i o n r e g a r d i n g t h e
r i g h t , making a m o t i o n t o d i s m i s s f o r l a c k o f a s p e e d y t r i a l
between t h e t i m e t h e m a t t e r was s e t f o r t r i a l and t h e t r i a l
date. C a s s i d y , 578 P.2d a t 739, c i t i n g S t a t e v . S t e w a r d
( 1 9 7 5 ) , 168 Mont. 385, 390, 543 P.2d 1 7 8 , 182.
To a s c e r t a i n t h e p r e s e n c e o f t h e f o u r t h e l e m e n t o f t h e
Barker t e s t - - p r e j u d i c e t o t h e a p p e l l a n t b e c a u s e o f delay--we
must c o n s i d e r t h e following i n t e r e s t s of a p p e l l a n t : (1)
prevention of oppressive p r e t r i a l i n c a r c e r a t i o n ; ( 2 ) mini-
mization of anxiety o r concern of t h e accused; (3) limita-
tion of the possibility the defense will be impaired.
Bretz, 36 St.Rep. at 1044, quoting Barker, 407 U.S. at 532.
Here, appellant spent 43 days in jail before being released
on bond, not an oppressive length of time. He faced a
possible 40-year prison sentence. In Cassidy, we noted the
defendant was charged with crimes carrying a possible 20-
year prison sentence and said, ". . . [alnxiety and concern
on the part of defendant, under such circumstances and
considering the 'death time' involved, can be presumed."
Cassidy, 578 P.2d at 740. Under Cassidy, anxiety and con-
cern on the part of appellant can be presumed. As to impair-
ment of defense, none existed because appellant presented no
defense.
Considering all these factors together, as we must to
ultimately resolve this issue, we find the length of delay
here barely exceeds the shortest delay previously held
sufficient to trigger a speedy trial inquiry. The portions
of the delay attributable to the State are institutional
delays given less weight than intentional delays. Seven
weeks of the delay can be imputed to appellant. Appellant
only asserted his right to a speedy trial on one occasion.
Appellant's proof of prejudice rests on judicial presumption
rather than concrete evidence of actual harm through oppres-
sive pretrial incarceration, anxiety and concern, or impair-
ment of his defense. Given these facts, we do not ". . .
find a showing of sufficient actual prejudice to invoke the
extremely harsh remedy of dismissal of the cause." State v.
Bretz, supra, 36 St.Rep. at 1045.
Appellant's conviction on the charges of felony theft
and felony criminal mischief is reversed. The misdemeanor
criminal trespass conviction is affirmed and remanded to the
District Court for sentencing on that matter.
We concur:
a i e f Justice
,
/ .
, .
Justices
Mr. Chief Justice Frank I. Haswell, concurring in part and
dissenting in part:
I concur in reversing appellant's convictions of felony
theft and criminal mischief for the reasons stated by the
majority. I dissent from the affirmance of appellant's
criminal trespass conviction.
The majority hold that the admission of appellant's
confession was harmless error insofar as his conviction of
criminal trespass is concerned. The basis of the majority
ruling is threefold: (1) the confession merely places appel-
lant inside the J & L Tire building; (2) this evidence is
merely cumulative; and (3) other evidence overwhelmingly
-
shows appellant's guilt.
In my view the confession goes far beyond simply placing
appellant inside the J & L Tire building. In his confession
appellant stated that he and Dale Gladue ". . . went by J & L
Tire in between the tire place and the other building. That
coin laundry. There was a big hole in the garage door and
glass was broken out on two sides. We looked in. We went
to Sambo's, sat there and Dale said something about going
back. I told him there was an alarm system in there. We
went back through and took the coins off the desk and that
is about it. That is when the policeman showed up."
The test of federal constitutional harmless error is
"whether there is a reasonable possibility that the evidence
complained of might have contributed to the convictions."
Fahy v. Connecticut (1963), 375 U.S. 85, 84 S.Ct. 229, 11
L.Ed.2d 171. Or, stated another way, whether the error was
harmless beyond a reasonable doubt. Chapman v. ~alifornia
(1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.E~. 705.
2d
The elements of the crime of criminal trespass are
a (1) knowing, (2) unlawful (3) entering into the premises
of another. Section 45-6-203, MCA. The quoted part of the
confession clearly establishes the first two elements of
the crime. It is the only direct evidence of a knowing,
unlawful entry. I cannot fairly say that there is no rea-
sonable possibility that the inadmissible confession con-
tributed to appellant's conviction or that the error was
harmless beyond a reasonable doubt.
I would therefore remand for a new trial free from
the taint of the unlawful confession.