No. 14601
I N THE SUPREME COURT OF THE S A E O lQXCNW
T T F
1979
S A E O rnrnANA,
T T F
P l a i n t i f f and A p p l l a n t ,
-VS-
M N LEE GRIMESTAD,
YE
Defendant and kspondent .
Appeal f m : D i s t r i c t Court of the Eleventh J u d i c i a l D i s t r i c t ,
Honorable James M. Salansky, Judge presiding.
Counsel of Record:
For Appellant:
Hon. Mike Greely, Attorney General, Helena, M t a n a
Ted 0. Lympus argued, County Attorney, Kalispell , Mntana
For Respondent:
Christian, P.13cCurdyf Ingraham & Wid, Wnan, Montana
Fkank L. Ingraham argued, Wnan, Mntana
Submitted: April 27, 1979
Decided: N 9 1979
L
Filed: JUL ;. jyi?
Mr. Chief Justice Frank I. Haswell delivered the opinion of
the Court.
The State of Montana appeals from an order of the h is-
trict Court, Flathead County, granting defendant's motion to .
suppress evidence on the grounds that certain incrimination
statements and admissions made by defendant were not voluntary.
On October 3, 1977, around 7:00 in the evening, officers
of the Flathead County sheriff's department were summoned to the
scene of a shooting near the Isaac Walton Inn outside of Essex,
Montana, on Highway 2 East. Upon arrival, they encountered def-
endant Wayne Lee Grimestad waiting with a highway patrolman near
defendant's pickup truck. In the cab of the pickup, curled on
the floor face down and lying on the passenger's side with head
pointing toward the driver's side, was the body of Gary Jewett,
dead of a single bullet wound through the head. A .357 Magnum
pistol belonging to the deceased was on the floor of the pickup
under his body. One spent shell was found in the seat on the
driver's side.
According to an investigative report filed by the officer
in charge, defendant related the following circumstances when
interviewed at the scene:
Defendant and Jewett had left Kalispell at noon that day
on a fishing trip. They had stopped at several taverns during
the course of the day and had also tarried once along the way to
shoot Jewett's new pistol. They stopped at the Isaac Walton Inn,
intending to have a drink, but found the bar closed. As they
were returning to the pickup after finding they could not get
into the bar, Jewett stopped in the lobby to talk to a young
woman. Defendant waited in his pickup for three or four minutes
and then returned to get Jewett to leave. Jewett continued his
conversation. Defendant went back outside, sat waiting in the
pickup another three or four minutes, and then fired the pistol
out the driver's side window into the tree tops, hoping to
attract Jewett's attention. When Jewett still did not come,
defendant returned once more to the lobby and demanded "Come
on, let's go." This time Jewett accompanied defendant back to
the pickup.
They had driven down the road and were approaching a
stop sign at the highway when defendant heard a shot go off.
Defendant turned to Jewett to admonish him about firing from a
moving vehicle and saw him slumped over in his seat. Defen-
dant stopped the pickup, flagged down a passing vehicle, and
told the driver his partner had just shot himself. (Again, this
scenario is as reported by the investigating officer from state-
ments taken from defendant on the evening of the incident. The
report is dated October 11, 1977, which means it was filed sub-
sequent to an interview and a later polygraph exam administered
to defendant which are the central events in this appeal.)
On October 4, 1977, the day following the shooting, de-
fendant was at his parents' house where he was called on the tele-
phone by the Flathead County sheriff's office. Defendant's
mother answered the phone and relayed to him the message that the
sheriff's office would like him to come down for more question-
ing. She contends that the caller assured her that the author-
ities were convinced the shooting incident was an accident and
only wanted to clear up a few details. In fact, however, because
of certain physical evidence (body position, gun position, and
trajectory of the bullet), the sheriff's office felt that Jewett
could not have been holding the pistol himself when the fatal
shot was fired.
Defendant voluntarily went to the sheriff's office that
afternoon and submitted to an interview. He was not accompanied
by counsel. He was shown, read, and signed a Miranda rights form
and waiver, which procedure was prefaced by one of the officers
saying: " .. . I don't want to freak you out with the thing,
but just by our procedures and the way the courts go and every-
thing, before we talk to anybody about virtually anything we
have to advise them of their rights, and I don't want you to
get all excited thinking we're accusing you of anything or we
suspect you of anything or anything else, but that's part of the
procedure."
The transcript of the interview on October 4 is of the
same tenor as the statements from the investigative report con-
cerning the evening of the incident. Defendant said the gun was
sitting on the seat between him and the decedent when they left
the Isaac Walton Inn. Both men had reached a point of intoxi-
cation where they were "pretty well along the road," but neither
was incapacitated to any extreme. Defendant's truck had rounded
a curve, was slowing for a stop sign, and the shot went off. De-
fendant said he did not see what happened.
The officers repeatedly suggested that the physical evi-
dence indicated that the decedent could not have been holding
the gun when it went off. They emphasized again and again that
they were convinced that the shooting was no more than an unfor-
tunate accident. They theorized that what occurred was that
Jewett, who had a reputation as a hothead when drinking, was
"messing with" the gun and defendant grabbed for it, causing it
to fire. Defendant repeatedly stated that he did not recall any
such occurrence. The officers insisted that the physical evidence
did not match defendant's story. Defendant steadfastly maintained
he was telling all he knew, that he was not really sure what hap-
pened, and that he had come to the interview hoping the sheriff's
office could clarify it for him. The officers suggested a poly-
graph at a later date and defendant closed the interview by say-
ing: "Well, if you need any help, like you said, take the test
or whatever, I mean, I've got to find out for myself what happened."
Several days after this first interview, a sheriff's
deputy again telephoned defendant at his parents' home. His
mother again took the call. He was requested to come back to
the sheriff's office for a polygraph examination. His mother
said she asked the caller "Well, then maybe we should get a
lawyer for Wayne," to which she stated the caller responded
"What do you want a lawyer for unless you need one."
On October 8, 1977, pursuant to arrangements made by
phone calls, defendant again voluntarily presented himself,
again unrepresented by counsel, at the Flathead County sheriff's
office. He was accompanied by his parents, who waited for him
while he was privately subjected to a polygraph test by two
officers. Apparently no tape or transcript was made of this sec-
ond stationhouse interrogation; none appears in the record. The
officers who administered the test maintained that the polygraph
registered a negative response when defendant replied to the
question "Did you deliberately shoot Gary Jewett?" They also main-
tained that during the course of the conversations on that day,
defendant repudiated his earlier statements and recalled specific
incriminating details of the shooting incident.
At the conclusion of the polygraph interview, the officers
asked defendant to make a written statement embodying the sub-
stance of what he had told them. The original of that statement
is not part of the record, and the copy is difficult to decipher.
It appears to read as follows:
"We stopped at the Isaac Walton to have a beer.
the Bar was closed I was going to leave and Gary
was talking to a girl. I said lets go. I went
out in the pickup and waited. Look at his gun
check to see if it was loaded it had only 1
shell in it I looked around (undecipherable) shot
it into a tree a woman was looking out a window
then I went in to get gary. I went out to the
pickup then gary came out he was saying something
about Jim & Gordie then he said I'll show them I
grab for the gun and it went off. Then I really
don't remember much.
After firing at the tree I reloaded the gun W.L.G."
Several matters by way of explanation and background of this
written statement require comment. The reference to " ~ i m
and
Gordie" is to the deceased's two children. The last sentence
appended to the end of the statement was added at the specific
request of one of the interrogating officers. It is also note-
worthy that defendant's parents maintained that after the poly-
graph interview, but while defendant was still isolated and
apparently before he executed the written statement, one of the
interrogating officers came out and told them: "I believe Wayne
did it, but without a doubt it was an accident."
On November 21, 1977, a complaint was filed in Flathead
County justice court charging defendant with deliberate homicide
in the shooting death of Gary Jewett. A preliminary hearing was
held before the Justice of the Peace. At the preliminary hearing,
one of the officers who was present at the polygraph interview
testified that defendant had stated during that conversation
that, contrary to his previous statements, in actuality "the shoot-
ing had occurred directly in front of the Isaac Walton Hotel, that
(defendant) remembered having the gun in his possession when it
went off and he then backed away from the building, drove on down
the road. "
In all, five officers testified at the preliminary hear-
ing, relating various facts set forth above and explaining from
the results of their investigations why they concluded the dead
man could not have been holding the gun himself when the fatal
shot was fired. Based on that testimony, the justice of the peace
concluded there was probable cause to bind the case over to Dis-
trict Court. Thereafter, defendant was formally charged by In-
formation with deliberate homicide.
The motion to suppress evidence which has resulted in this
appeal was filed on August 17, 1978. ~t requests suppression of
all admissions or statements made by defendant on October 8, 1977,
the day of the polygraph examination and alleged repudiation of
defendant's original version of the incident, on the grounds
that those statements and admissions were not voluntary. An a£-
fidavit of defendant accompanying the motion states that he was
informed by the Flathead County sheriff's department on that
day that he did not need counsel; that the officers told him
if he could not remember the circumstances of the shooting "he
would have to be institutionalized because the State cannot have
people running around loose who could not remember things"; that
the officers suggested to defendant that certain events had prob-
ably transpired at the time of Jewett's death; and that the state-
ments and admissions defendant made to the officers were the pro-
duct of coercion and intimidation in that he was in fear of incar-
ceration in a mental institution.
A hearing on defendant's motion to suppress was held in
Flathead County District Court, commencing on September 15, 1978.
Defendant testified, in summary, that he did not remember what
had happened during the shooting incident and that any oral ad-
missions he had made on the day of the polygraph examination were
in the context of statements to the effect that "If you say it
happened this way, you must be right because I really don't re-
member." As to the written statement executed subsequent to the
polygraph interview, defendant testified that the officers had
requested him to write down what they had gone over, to "make a
written statement and it will help you to remember." He also
testified that at the time he made the written statement, he was
in fear he would be institutionalized because the polygraph oper-
ator had allegedly told him "we can't have you walking around
society being able to do something like this and not remember."
The testimony of the officers who had participated in
the polygraph exam and surrounding conversations indicated that
defendant had indeed qualified many of his statements with the
explanation that "if you say it had to happen that way, that
is probably the way it happened." The officers also recalled
that a remark had been made to defendant about possibly send-
ing him to Warm Springs for an evaluation. They maintained,
however, that defendant was never told he would be institution-
alized if he did not cooperate. Their testimony was unclear as
to whether the remark was made to defendant before or after he
executed the written statement.
Concerning the contents of the written statement, the
polygraph examiner testified at one point that he was satisfied
it contained the same statements defendant had made orally in
the conversations surrounding and involved in the polygraph inter-
view. He later contradicted that testimony, saying that the
written statement contained only some, but not all, of the oral
admissions.
On the issue of whether the officers suggested to defen-
dant how the events must have transpired, the testimony indicates
that some such suggestion occurred. It was also admitted that
the final sentence in defendant's written statement was added at
the specific request of one of the officers. The officer who
made the request testified that he did so because "it had been
one of the statements" defendant made during the conversation
and "I just wanted him to put it on the statement."
On October 11, 1978, the District Court entered findings
of fact and conclusions of law and an order granting defendant's
motion to suppress on the grounds that the State, under the total-
ity of the circumstances present here, had failed to prove that
defendant's statements were voluntary. The State moved for re-
consideration or rehearing. The State's motion was denied and
this appeal followed.
The only issue we are asked to resolve is whether the Dis-
trict Court abused its discretion in granting the motion to suppress;
that is, whether there was insufficient evidence to support the
findings and conclusions that defendant's admissions (if, indeed,
the statements he made can even be characterized as such) were
not voluntary.
There are two recent Montana cases containing extended
discussion of the principles that control here: State v. Smith
(1974), 164 Mont. 334, 523 P.2d 1395, and State v. Lenon (1977),
Mont . I
"When a motion to suppress [statements and ad-
missions] is presented to a trial court, its
analysis of the evidence presented at the pre-
trial hearing must focus on whether impermissible
procedures were followed by law enforcement
authorities. The burden of proof of voluntari-
ness is upon the State, and it is required to
prove voluntariness by a preponderance of the
evidence but not beyond a reasonable doubt.
[Citations omitted.]" Smith, 164 Mont. at 338,
523 P.2d at 1397.
" ...
The issue of voluntariness of a confession
is largely a factual determination, addressed to
the discretion of the trial court ...
The trial
court's judgment as to voluntariness of a con-
fession will not be reversed on appeal unless it
is clearly against the weight of the evidence.
[Citations omitted.]" Lenon, 570 P.2d at 906, 34
St.Rep. at 1157-1158.
" ..
. The question of voluntariness largely depends
upon the facts of each case, no single fact being
dispositive . . .
The determination of voluntari-
ness, rather, depends upon the 'totality of the cir-
cumstances.' [Citations omitted.]" Lenon, 570 P.2d
at 906, 34 St-Rep. at 1157.
If there is substantial credible evidence to support a
District Court's findings and conclusions that a confession or
admission was involuntary, an order suppressing the evidence must
be affirmed. Smith, supra.
There are numerous other Montana decisions cited in the
parties' briefs which address either specifically or peripherally
the issues involved here. See State v. Chappel (1967), 149 Mont.
114, 423 P.2d 47; State v. White (1965), 146 Mont. 226, 405 P.2d
761; State v. Zachrneier (1968), 151 Mont. 256, 441 P.2d 737.
These cases, however, are incorporated either implicitly or by
specific citation in Smith, supra, or Lenon, supra, so any
extended discussion of them would add nothing to the controlling
principles set forth above. Smith and Lenon make it clear that
the standard to be applied by the trial judge on a suppression
question is "preponderance of the evidence," but when the same
question comes to us on appeal the credibility of the witnesses
and the weight to be given their testimony is for the trial court's
determination and our review is limited to determining whether
I
there is substantial credible evidence supporting the District
Court's findings.
The focus of the findings and conclusions entered in
support of the suppression order here was on the downplaying of
defendant's Miranda rights and the continued assurances by the
investigating officers that he was not a suspect of a crime. Those
were the primary elements supporting the District Court's con-
clusion that the State had not sustained its burden of proving
that defendant had waived his constitutional right to counsel,
his right against self-incrimination, and that his statements
were voluntary. We agree with the District Court that mere lip
service was given to the Miranda requirements here, rather than
a meaningful warning.
The inadequate Miranda warning, however, was not the
only incident of improper procedure by the law enforcement author-
ities recognized by the District Court. In addition, numerous
other questionable tactics are implicitly criticized in the
findings and conclusions. The repeated suggestions by the offi-
cers that the shooting had to have happened in a particular way;
the addition of a sentence to defendant's written statement at
the specific request of one of the officers; the variation be-
tween defendant's alleged oral admissions and the written state-
ment supposedly embodying the oral discussion, and the threat
of incarceration in a mental institution (regardless of whether
actually implied by the officer or only inferred by defendant from
the officer's remark) all were part of the totality of the
circumstances weighed by the District Court. When taken to-
gether they provide substantial credible evidence supporting the
findings and conclusions of the District Court.
A£ f irmed.
-
...............................
Chief Justice
We concur: r