No. 14534
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
STATE OF MONTANA,
Plaintiff and Respondent,
VS.
LARRY L. BLAKNEY,
Defendant and Appellant.
.1 from: District Court of the Fourth Judicial District,
In and for the County of Missoula
Honorable Jack L. Green, Judge presiding.
Counsel of Record:
For Appellant:
Smith, Connor & Van Valkenburg, Missoula, Montana
Fred Van Valkenburg argued, Missoula, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Mary B. Troland argued, Assistant Attorney General,
Helena, Montana
Robert L. Deschamps, I11 County Attorney, Missoula, Montana
- -
Submitted: October 19, 1981
FEB I:: -2 Decided : '53 25 m
Filed:
Y -
J
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
This case is before the Court on remand from the
United States Supreme Court for reconsideration in light of
Edwards v. Arizona (1981), - U. S. , 101 S.Ct. 1880, 68
L.Ed.2d 378. Blakney v. State of Montana, No. 79-6366. This
Court reheard the case en banc on October 19, 1981, after
both the State and the appellant submitted new briefs.
The facts involved are discussed fully in our opinion
in State v. Blakney (1979), - Mont. -, 605 P.2d 1093, 36
St.Rep. 2193, and need not completely be repeated here.
However, when certain facts are considered together with
those in Edwards, it becomes apparent that Edwards is
inapposite both factually and legally to the case before us.
The crime for which the appellant was convicted
occurred on the evening of Friday and Saturday, June LO and
11, 1977. The appellant was not arrested until June 14,
1977. He was interviewed by the police on four separate
occasions. Before each interview the appellant was advised
of his rights and signed separate waivers to those rights.
Between interviews, the appellant was not detained and was
free to consult his friends and an attorney, if he desired
one. A polygraph examination that took place between the
second and the third interviews indicated appellant was not
telling the truth. After this examination appellant con-
fessed. In the fourth interview a tape was made of that
confession.
In Edwards, supra, the defendant was arrested and
informed of his Miranda rights. He acknowledged his
understanding of those rights and was then interrogated.
During questioning he indicated a desire to speak to an
attorney. At that point the interrogation ceased, and he
was returned to his jail. The next day, after Edwards told
the detention officers he did not wish to speak with anyone,
he was informed that he had to talk with officers there to
interview him. After those officers played a taped state-
ment of an alleged accomplice of Edwards, he made a state-
ment to them about his part in the crime.
The United States Supreme Court held that the use of
Edwards' confession against him at trial violated his rights
under the Fifth and Fourteenth Amendments as construed in
Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694. The Court enunciated two distinct grounds for
disapproving the Arizona Supreme Court's judgment.
First, the Court found that the state court had
applied an "erroneous standard" in determining a waiver
because it did not focus on the "knowing and intelligent"
aspect of Edwards' purported waiver separately from the
issue of voluntariness. According to the Supreme Court,
consideration of an alleged waiver of right to counsel under
the Fifth Amendment requires this two-pronged evaluation.
The Supreme Court also reconfirmed and clarified its
ruling in Miranda v. Arizona, supra, that when an accused
asserts his right to counsel during a custodial interroga-
tion, the interrogation must cease until an attorney is
present. Justice White, speaking for the Court said:
". . . although we have held that after ini-
tially being advised of his Miranda rights,
the accused may himself validly waive his
rights and respond to interrogation, see,
North Carolina v. Butler supra, at 372-376,
the Court has strongly indicated that addi-
tional safeguards are necessary when the
accused asks for counsel; and we now hold
that when an accused has invoked his right to
have counsel present during custodial inter-
rogation, a valid waiver of that right cannot
be established by showing only that he re-
sponded to further police-initiated custodial
interrogation even if he has been advised of
his rights. We further hold that an accused,
such as Edwards, having expressed his desire
to deal with the police only through counsel,
is not subject to further interrogation by
the authorities until counsel has been made
available to him, unless the accused himself
initiates further communication, exchanges or
conversations with the police." Edwards v.
Arizona, - U.S. at - 101 S.Ct. at 1884,
,
68 L.Ed.2d at 386.
Here, the trial judge, in an order denying a motion
to suppress evidence and to change venue, issued complete
findings of fact and conclusions of law. That order, which
followed a full hearing, was not fully contained in our
previous opinion, but is here set forth in toto:
"FINDINGS OF FACT
"1. That the defendant was interviewed by
the police three times with the last inter-
view being preceeded [sic] by a polygraph
examination. The first interview began at
11:23 p.m. on June 11, 1977 and finished
about 12:56 a.m. on June 12; the second
interview began at 9:51 a.m. on June 12 and
ended sometime between noon and 1:00 p.m.;
the third and final interview began at 9:20
p.m. on June 13 and finished around 10:45
p.m. on the same date.
"2. That the defendant always had a close
relative either with him or nearby during
each of his interviews with the police, and
on several occasions during the breaks in the
interviews, the defendant privately consulted
with these relatives.
"3. That between each interview the defen-
dant was allowed to return home, with the
time for the next interview session being
mutually agreed upon by the defendant and the
interviewing officers.
4. That the defendant was thoroughly
instructed on his 'Miranda' rights prior to
each interview and on each occasion, after
having any questions answered, he acknowl-
edged he understood his rights and signed a
written waiver of his rights.
"5. That the defendant has an I.Q. of 94;
has attended high school and a vocational
technical center; has passed four-fifths of
the grade equivalency diploma (G.E.D.)
examination; and has demonstrated an adequate
adult command of the English language during
police interviews and in his courtroom
testimony.
"6. That a tape recording of the defendant's
polygraph examination clearly indicates that
the defendant was not threatened or intimi-
dated by the procedures used.
"7. That on two occasions the defendant
brought up the subject of an attorney. The
first occasion was during the June 12 inter-
view when the defendant asked the police if
they thought he should get an attorney, to
which the police responded that this decision
was up to him. After receiving this advice
the defendant voluntarily resumed talking to
the police.
"The second occasion was after the polygraph
examination on June 13 when the defendant
stated 'Maybe I should have an attorney'.
With this, the police stopped talking to the
defendant and began to leave the room, but
before they were able to leave the defendant
resumed talking to them. At this point, the
defendant was reminded that he had just
indicated he wanted an attorney, to which the
defendant responded that he did not want a
lawyer. With this the interview continued.
"8. That the defendant was not in police
custody for a day and one-half between his
first mention of an attorney and his next
interview, but during this time made no
effort to secure or consult with an attorney.
"9. That no facts have been offered showing
actual prejudice in the community against the
defendant.
"From the foregoing findings of fact, the
Court now makes its:
"CONCLUSIONS OF LAW
1.
I' That the defendant was competent to
understand his constitutional rights and
intelligently and knowingly waived them.
"2. That the statements made by the defenant
[sic] were voluntary and were therefore not
gained in violation of his constitutional
rights.
"3. That the defendant never made an effec-
tive assertion of counsel and in any event
thereafter knowingly and intelligently waived
the presence of counsel by spontaneously
stating he did not want a lawyer and resuming
talking to the police.
"4. That the court cannot determine that
there is any actual prejudice in the com-
munity against the defendant thereby pre-
cluding him from having a fair trial."
In spite of the Supreme Court's apparent need to
reconfirm Miranda, it is our opinion the Court did not
intend to impede legitimate methods of law enforcement by
further expanding Miranda:
"In concluding that the fruits of the inter-
rogation initiated by the police on January
20 could not be used against Edwards, we do
not hold or imply that Edwards was powerless
to countermand his election or that the
authorities could in no event use any incrim-
inating statements made by Edwards prior to
his having access to counsel. Had Edwards
initiated the meeting on January 20, nothing
in the Fifth and Fourteenth Amendments would
prohibit the police from merely listening to
his voluntary, volunteered statements and
using them against him at the trial. The
Fifth Amendment right identified in Miranda
is the right to nave counsel present at any
custodial interrogation. Absent such inter-
rogation, there would have been no infringe-
ment of the right that Edwards invoked and
there would be no occasion to determine
whether there had been a valid waiver. Rhode
Island v. Innis, supra, makes this suffi-
ciently clear. 446 U.S., at 298, n 2."
Edwards v. Arizona, U.S. at - 101 ,
S.Ct. at 1885, 68 ~ . ~ d y d387.
at
On reconsideration the appellant contends that
the Montana courts' rulings on his confession suffer from
the same inadequacy as the ruling rendered against Edwards
by the Arizona Supreme Court--failure to meet the two-
pronged test of a "voluntary" and "knowing and intelligent"
waiver. A careful review of this case, however, reveals
that in actuality both the District Court and this Court
carefully adhered to the principles enunciated by the
Supreme Court in Edwards for determining the validity of the
appellant's waiver of the right to counsel.
Edwards makes clear that judging waiver of the right
of counsel under the Fifth Amendment necessarily entails a
finding of a knowing and intelligent relinquishment of a
known right. Although Edwards does not fully discuss the
factors relevant to making such a finding, the cases cited
in that opinion set forth the pertinent areas of inquiry
into the issue.
According to Johnson v. Zerbst (1938), 304 U.S. 458,
464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466, the existence
of a valid waiver "must depend, in each case, upon the
particular facts and circumstances surrounding that case,
including the background, experience, and conduct of the
accused." Other appropriate considerations include the age,
education, and intelligence of the accused, and his capacity
to understand the warnings given him, the nature of his
Fifth Amendment rights, and the consequences of waiving
those rights. Fare v. Michael C. (1979), 442 U.S. 707, 725,
99 S.Ct. 2560, 2572, 61 L.Ed.2d 197, 212; North Carolina v.
Butler (1979), 441 U.S. 369, 373, 99 S.Ct. 1755, 1758, 60
L.Ed.2d 286, 292; Faretta v. California (1975), 422 U.S.
806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562, 581. In
addition, a valid waiver must include not merely a compre-
hension of the benefits being abandoned, but also an actual
relinquishment of those benefits, as evidenced by the
actions or statements of the accused. Brewer v. Williams
(1977), 430 U.S. 387, 404-405, 97 S.Ct. 1232, 1242, 51
L.Ed.2d 424, 439-441.
In denying appellant's motion to suppress, the Dis-
trict Court, after a full hearing, explicitly concluded that
the appellant "was competent to understand his constitu-
tional rights and intelligently and knowingly waived them."
See Conclusion of Law No. 1. In support of that conclusion,
the court made specific findings of fact on many of the same
considerations approved by the Supreme Court in Edwards and
its predecessor cases. See Findings of Fact Nos. 4 and 5.
As noted in our original opinion, each of these findings had
adequate support in the record of the suppression hearing.
In addition, the appellant's conduct and statements
during and between his interviews with the police and at the
time of the waivers of his right to counsel were thoroughly
examined by the trial court. The court noted that the
appellant, although at liberty for a day and a half between
his first mention of counsel and his next interview session,
made no attempt to consult an attorney. See Finding of Fact
No. 8; cf., Brewer v. Williams, 430 U.S. at 404-405, 97
S.Ct. at 1242, 51 L.Ed.2d at 439-441 (in which the United
States Supreme Court noted Williams' continual reliance on
the advice of counsel). The trial court also specifically
described the overt actions of the appellant manifesting
waiver of his previously-asserted right to counsel and his
explicit statement in the crucial interview that he did not
want a lawyer. See Finding of Fact No. 7.
On review, this Court examined even more fully the
knowing and intelligent quality of appellant's actions,
using the principles enunciated in the cases cited in
Edwards. The pertinent factors examined included the age of
the accused, his education, his knowledge of the nature of
his Fifth Amendment rights, his mental capacity, his
previous experience with the criminal justice system, and
his experience in the adult world. State v. Blakney, -
Mont. at -, 605 P.2d at 1096-1097, 36 St.Rep. at 2196.
It is true these considerations were undertaken in
tnat part of our the opinion allocated to the determination
of "voluntariness" of the appellant's confession. However,
our established rules for judging voluntariness, as set
forth in the Blakney decision, plainly encompass, both
legally and logically, an assessment of the knowing and
intelligent quality of the actions of the accused as that
assessment has been prescribed by the United States Supreme
Court in the waiver cases considered above. As to this
aspect of "voluntariness," this Court previously found:
"The trial court here reviewed the evidence
and determined appellant voluntarily con-
fessed. 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.
"Appellant was 18, legally an adult. He had
passed most of his high school equivalency
examination and attended vo-tech school.
Appellant's IQ is 94, within the normal adult
range. The trial judge found that appellant
demonstrated an understanding of the English
language during his courtroom testimony.
Appellant had worked in his father's busi-
ness. Appellant had prior experience with
the criminal justice system, having previ-
ously been advised of his rights in connec-
tion with juvenile matters . .
. Between
sessions, appellant went home, free to
consult with family members and move about as
he pleased." State v. Blakney, - Mont. at
-, 605 P.2d at 1096-1097, 36 St.Rep. at
2196.
Tne Court also found that prior to each interview with the
police, the appellant was informed of his Miranda rights and
signed written waivers.
Recognizing the existence of some conflicting evi-
dence, this Court determined that there was, in fact, suffi-
cient evidence to support the record for a finding of
"voluntariness." We find that this determination was
correct, that it constitutes a valid decision both on the
actual voluntariness of the appellant's actions and on the
knowing and intelligent quality of the appellant's waiver of
the right to counsel and his subsequent confession. Having
reviewed and fully evaluated the factors pertinent to
waiver, as set forth by the United States Supreme Court in
Edwards, and having found ample evidence in the record to
justify the conclusions already reached, we find no reason
to reverse this Court's earlier ruling on "voluntariness."
The second phase of the decision in Edwards, supra,
dealt with the sequence of events leading to the uncounseled
confession of the accused. The pivotal reason given by the
United States Supreme Court for finding the purported waiver
of right to counsel invalid was that the police, rather than
Edwards, initiated the renewed questioning after the right
to counsel had been asserted. We have previously set fortn
the Court's ruling in that matter.
A great deal of testimony heard by the District Court
related to events or observations occurring while appellant
was making his statement at the police station. This
evidence is relevant only to the extent it supports or
impeaches the credibility of the witnesses, or tends to show
the appellant's condition at the time he was at the police
station. The appellant's understanding in making the
statement is relevant only insofar as it, too, bears on his
condition and state of mind when he made the statement or as
it aids in weighing the credibility of the police officers
involved. The central question on this motion, then, is
whether the State has proved by a preponderance of the evi-
dence that the appellant was advised of his constitutional
rights and whether he knowingly waived them and voluntarily
gave a statement. This standard of the burden of proof
which the State must meet as to the voluntariness of a
confession was set by the United States Supreme Court in
Lego v. Twomey (1972), 404 U.S. 477, 92 S.Ct. 619, 30
L.Ed.2d 618, where it was held that a trial court need be
satisfied "only by a preponderance of the evidence," as
opposed to the standard of proof beyond a reasonable doubt.
The question of voluntariness in the instant case is
complicated as to the facts of what occurred at the police
station. Ordinarily, it is the fact-finder at trial who
determines if the statement was in fact made and what was
said.
The factors a court is to consider in deteriaining
whether a confession or admission was voluntary are set
forth in a number of cases. In Schneckloth v. Bustamonte
(1973), 412 U.S. 218, 226, 93 3.Ct. 2041, 2047, 36 L.Ed.2d
854, 862, the Court held:
"In determining whether a defendant's will
was overborne in a particular case, the Court
has assessed the totality of all the sur-
rounding circumstances--both the character-
istics of the accused and the details of the
interrogation. Some of the factors taken
into account have included the youth of the
accused . . .
lack of education . . . intel-
ligence . . . lack of any advice to the
accused of his constitutional rights . . .
length of detention . . . repeated and pro-
longed nature of the questioning . . . and
the use of physical punishment such as
deprivation of food or sleep. . ."
Other factors were mentioned in Culonbe v. United States
(1961), 367 U.S. 568, 601-602, 81 S.Ct. 1860, 1878, 6
". . . extensive cross-questioning (of defen-
dant). . . undue delay in arraignment . . .
failure to caution the prisoner (as to his
constitutional rights) . . . refusal to
permit coinmunication with friends and legal
counsel . . .duration and conditions of
detention . . . the manifest attitude of the
police toward him, (and) his physical and
mental state. ." .
Appellant urges that the attitude of the police offi-
cers here made his confession involuntary in that they
believed he was responsible for the murder. It is signi-
ficant that the appellant does not himself claim that the
manifest attitude of the police caused him to say anything.
It is his attorney who argues that it would have had that
effect.
Although the appellant was young, he had had prior
contact with the police. However, appellant does not claim
that he had been held incommunicado, had been subjected to
prolonged questionings, had any mental problems, was lacking
in intelligence or had been tricked into giving a
confession.
As we have previously noted, this case is clearly
distinguishable from Edwards. Here, both the District Court
and this Court found that the appellant asserted his right
to counsel and that the police ceased their interrogation.
It was the appellant himself who resumed his dialogue with
the authorities. In the critical interview session leading
to the contested confession, police officers reminded the
appellant, before proceeding further, that he had requested
an attorney. The appellant not only continued to talk with
them but also specifically stated he did not want counsel.
See Finding of Fact No. 7. Thus, in this case each
assertion of the right to counsel was followed by the
appellant's own reinstigation of the conversation with the
police officers.
It is clear, therefore, that this case is not
controlled by the specific holdings in Edwards concerning
police-initiated interrogation following an unfulfilled
request for counsel by the accused. Justice White in
Edwards did discuss a proper scope of judicial inquiry in a
situation such as that presented here, where the police
actively participated in an excnange initiated by the
accused:
"If, as frequently would occur in the course
of a ineeting initiated by the accused, the
conversation is not wholly one-sided, it is
likely that the officers will say or do
something that clearly would be 'interroga-
tion.' In that event, the question would be
whether a valid waiver of the right to
counsel and the right to silence had
occurred, that is, whether the purported
waiver was knowing and intelligent and found
to be so under the totality of the circum-
stances, including the necessary fact that
the accused, not the police, reopened the
dialogue with the authorities." Edwards v.
Arizona, - U.S. at , 101 S.Ct. at 1885,
-
n. 9, 68 L.Ed.2d at 387, n. 9.
In this case both the District Court and this Court
previously determined the "necessary fact" that it was the
appellant who reinitiated the colloquy with the authorities.
In addition, the knowing and intelligent quality of the
appellant's actions, under the totality of the circum-
stances, was addressed by this Court in its original opinion
and decided adversely to the contentions of the appellant.
Thus, the determination required by the Supreme Court as
described in the above-quoted footnote has already taken
place under the circumstances of the appellant's case and is
properly based on the record.
The appellant also argues there is insufficent evi-
dence to demonstrate that he knew the essence of his right
to counsel and that he did not validly waive that right. In
support of this claim, the appellant alleges various "unac-
ceptable" circumstances leading to his confession. However,
the allegations now presented by the appellant as to his
lack of understanding were fully presented to this Court
before its previous decision. This Court found sufficient
evidence in the record to support the District Court's
findings and conclusions on the factors relevant to a
knowing waiver. The Court also made its own findings on the
record as to other pertinent factors relating to appellant's
ability to understand his rights. See State v. Blakney, -
Mont. at -, 605 P.2d at 1096-1097, 1098, 36 St.Rep. at
2196-2197. Appellant points out that the State has a heavy
burden to show the waiver and that some of the evidence at
the suppression hearing was conflicting. He has, however,
offered no cognizable justification for this Court now to
backtrack from its original determinations. Neither the
Edwards decision, the cases cited therein, nor the record in
this case require this Court to reverse its earlier holding
that the appellant's confession was admissible.
As an alternative request for relief, the appellant
urges the case be returned to the trial court for a
rehearing on the issue of knowing and intelligent waiver. A
review of the transcript of the original suppression hearing
reveals that the factual questions pertinent to the issue
were fully investigated by both the State and the appellant
at the original proceedings. In addition, the trial court
entered specific findings and conclusions on whether the
appellant could and did waive his right to counsel. We
therefore find no necessity for a rehearing.
We have reviewed the record carefully in light of the
decision in Edwards v. Arizona, supra, and find that neither
the facts nor the legal principles announced in that deci-
sion require a substantive change in our earlier opinion.
Therefore, we affirm our holding that appellant's confession
was admissible at trial.
We concur:
Justices
Mr. Justice John C. Sheehy dissenting:
With suitable respect, I read the majority opinion as
sidestepping the review required of us under the remand of
the United States Supreme Court in the light of Edwards v.
Arizona (1981), U.S. , 101 S.Ct. 1880, 68 L.Ed.2d
378. The majority opinion seems to be a justification of
its earlier opinion, one that the United States Supreme
Court has remanded as possibly unjustifiable. Blakney's
confession, says the majority here, was voluntary; ergo, the
waiver of counsel by Blakney was knowing and intelligent. I
do not agree.
In Edwards, we are reminded that under Schneckloth v.
Bustamonte (1973), 412 U.S. 218, 246, 93 S.Ct. 2041, 2057,
36 L.Ed.2d 854, 874, the voluntariness of a consent or
admission on one hand, and a knowing and intelligent waiver
on the other, are discrete inquiries. Edwards, U.S. I
101 S.Ct. at 1884, 68 L.Ed.2d at 385-386.
I believe that this case was remanded to us by the
United States Supreme Court because this Court, like Arizona
in Edwards, had focused on the voluntariness of petitioner's
confession rather than on whether he understood his right to
counsel and intelligently and knowingly relinquished it.
The majority opinion does nothing to refocus its inquiry,
and to shed light on the question for which the case is
returned to us by the United States Supreme Court.
The majority base their opinion largely on the findings
of fact and conclusions of law of the trial court in its
order denying the suppression of Blakney's confessions. The
majority opinion makes no mention of the two glaring flaws
in those findings of fact and conclusions of law that were
emphasized in the two dissents to the original opinion. See
605 P.2d at 1101-1107. We said in those dissents that the
findings were flawed because the District Court applied the
burden of proof to Blakney instead of to the State and that
this was erroneous. The majority opinion in the first case
concluded that the court had indeed applied the wrong rule
for burden of proof, but held this to be harmless error. In
a legal sense "harmless error" is a black hole in which all
matter is at one, and from which no light can be seen.
The other flaw in the trial court's findings and con-
clusions is that after the hearing on the motion to suppress,
the trial court entered an order denying the suppression.
It was following this that an intern working with the county
attorney in the case suggested that findings of fact and
conclusions of law would be proper. The trial court's
findings and conclusions were entirely prepared by the
county attorney, and were entered - -
ex post facto the order
denying suppression.
I firmly contend the State failed in its burden of
proof to show that Blakney understood his right to counsel
and intelligently and knowingly relinquished it, as required
under Edwards. A review of the record will show why.
The witnesses in the suppression hearing were placed
under the rule and so did not hear each other testify. At
the critical time of the request made by Blakney for an
attorney, those present were Officers Ibsen and Weaver and
Blakney himself.
Officer Ibsen was the first to testify at the suppression
hearing. His testimony was (1) Blakney made a request for
an attorney after he had first confessed to the act, ( 2 )
Blakney did not ask for an attorney before the entire con-
fession had been obtained, and (3) Ibsen was positive of
these facts.
"Q. [Blakney's counsel] Before he made any
statement, did he at all attempt to assert his
rights to obtain an attorney? A. [Ibsen] At
one point, I'm not sure if it was -- I believe
it was after the first time he had given his
confession -- he said that he thought he wanted
an attorney.
"Q. Now, you think it was after the first time.
Are you sure? A. It was after the first confession
or during -- in the middle of it.
"Q. What I'm interested in finding out from your
testimony is when Larry stated that he thinks he
better see a lawyer. Are you absolutely sure in
your mind that it was after he made his confession,
or was it right at the start of it? A. It was
after he had started to make his confession, and it
may have been, there, too, between the first time
and the second time he made that confession.
"Q. But you are positive that it was after the
first confession? A. After the first confession
was started, or towards the end of it.
"Q. What do you mean by 'started'? A. After he
was well into it."
Officer Weaver was called to the stand, and his testimony
was to the effect (1) that Blakney did - ask for a lawyer,
not
and (2) whatever statement he made was before any confession
by Blakney.
"Q. [Blakney's counsel] At any time subsequent
to completing the polygraph examination, did Larry
make a statement to the effect that 'Maybe I should
see a lawyer'? A. He made a statement similar
to that.
"Q. At that time, did you continue questioning,
or did you cease? A. Larry continued to talk.
"Q. Did you allow Larry to leave the room and
make a phone call for an attorney? A. He did
not ask to.
"Q. Did he ask you if he could go talk to his
uncle or did you allow him to leave the room and
talk to his uncle? A. I didn't deny him.
"Q. Did you stop your questioning at that
point? A. At what point?
"Q. When he said, 'I think I'd better see a
lawyer.' A. I stopped questioning, yes.
"Q. And yet, subsequent to that, he made a state-
ment; is that correct? A. Would you say it again,
sir?
"Q. Okay. Larry stated, 'Maybe I should see a
lawyer,' and you stopped questioning, but, yet, you
are saying that he made a statement after that?
A. He did not make -- he - - - ask- an attorney.
- did not - for
"Q. But he said, 'Maybe I should see one'? A. Yes.
"Q. And you didn't get him one? A. He did not ask
for one, sir.
"Q. That's not my question, whether or not he asked
for one. I'm asking you did you get him a lawyer
after he said, 'Maybe I should see a lawyer'? A. No,
sir.
"Q. At what point in time was this request or
assertion made? A. I do not recall the exact
incident or the exact way it was phrased, and so,
that means I don't recall when it was made in the
interview.
"Q. So, then, it could have been made before a
statement was given? A. Yes. I'm sure it was.
"Q. You are sure it was made? A. I'm sure of
that, yes." (Emphasis added.)
Blakney was the next to testify. His testimony was (1)
he had asked for a lawyer, (2) it was before he had given any
statement, and (3) the police just kept talking.
"Q. Then where did the polygraph operator go?
A. Then, he left the room.
"Q. Who was in the room with you then? A.
Ibsen and Weaver came in.
"Q. Then what happened? A. They started, you know,
chumming up to me, and they was saying that, you know,
'Come on, Larry. We know you did it. You've got to
tell us. '
"Q. At this time, did you say anything about your
constitutional rights? A. Well, I said, 'Well, I
think I better talk to a lawyer.'
"Q. Was this before you had given them any
statement? A. Yes.
"Q. What did the police do? A. Just kept
talking.
"Q. What did you think that meant? A. That
they wasn't going to get me a lawyer.
"Q. Did you think there was any reason to ask
them again? A. Well, I already asked them, you
know, and I didn't want to push anything."
When the State then presented its case in the suppression
hearing, the county attorney recalled Officer Ibsen. At
this time, Officer Ibsen (1) repeated that there was request
for the attorney, (2) weakened his testimony as to whether
it was before the confession had been given, and (3) stated
that Blakney said he didn't want an attorney, (4) after a
statement made by Officer Weaver but not testified to by
Weaver.
"Q. [County attorney] Officer, was there any
mention of this first word about an attorney
again that night at all? A. [Ibsen] Yes, sir.
"Q. And when did that occur? A. That occurred
a matter of seconds after Mr. Blakney started talking
again.
"Q. What was it that he said? A. It was not about
-- it was not a mention of an attorney that he said,
but it was by Officer Weaver.
"Q. Officer Weaver said something about an attorney?
A. Yes, sir. He did.
"Q. And what did Officer Weaver say? A. He stopped
Mr. Blakney and he advised him that he had just
said he thought he wanted an attorney and, you
know, he indicated that since he had said that,
why was he talking again?
"Q. And what was Mr. Blakney's response to that?
A. Mr. Blakney's reply -- again, it is not a
quote. The best of my recollection, the wording
of it, 'I don't need one' or 'I don't want one.
"Q. And then what happened? A. Then he continued
on."
The State recalled Officer Weaver again to the stand.
By way of explanation, to this point, the evidence in the
record indicates that Blakney's request for an attorney had
been made on Monday night, following his polygraph examina-
tion. Weaver, on recall, testified (1) that a request had
been made by the attorney on Sunday morning, and (2) that
another request was made on Monday night but he could not
recall the events so as to confirm what Ibsen had testified
about that request.
"Q. [County attorney] Officer, do you recall, at
any time during the course of your dealings with
Mr. Blakney, whether he said anything about an
attorney? A. Yes, sir.
"Q. And can you tell us what happened or what
was said? A. At one point in the interview, the
Defendant asked me if -- something to the point --
I don't remember the exact words, but the gist of it
was, 'If you think I did it, then maybe I should
talk to an attorney.'
"Q. What was your response to this? A. At this
time, I got up from where I was sitting, I stood
up. I told Larry that -- I says, 'I don't know
what happened, but I believe that you possess some
information, and that's what I'm after.' If he
wanted an attorney, that was his decision, and we
would abide by it.
"Q. And what happened after that? A. He just
started talking again about what we were asking
him questions regarding to.
"Q. NOW, when did this particular event occur?
A. It occurred about midway through the second
interview.
"Q. This would be the interview on Sunday morning?
A. Yes.
"Q. Did you have the occasion to talk to the
Defendant again where there was anything like that
that you can recall? A. I remember the event
occurring about the same way on Monday night, but
I do not remember the particulars of what happened,
like I do the Sunday morning conversation.
"Q. Do you remember anything at all about it?
A. All I can remember is that we did stop and the
conversation proceeded something as the order of the
first one.
"Q. But you don't recall the exact words that were
said? A. No, sir.
On cross-examination, Weaver continued:
"Q. [Blakney's counsel] Were there any other
interviews on Sunday? A. No.
"Q. So he did mention an attorney? A. Yes.
"Q. NOW, I think you said that Larry said some-
thing to the effect that, 'If you think I did it,
maybe I should see an attorney.' Is that your
statement? A. Yes.
"Q. And then, what did you do following that
statement? A. As I indicated earlier, I got
up from where I was seated, and as I remember,
he wanted to know what I thought in this same
general area that we are talking about, here.
"Q. About whether he should see an attorney?
A. Yes, and what I thought, you know, whether
I thought he had done something. And I told him
it was his decision, that I was just after
some information that I thought he possessed.
"Q. At that point in time, was he a suspect in
your eyes? A. No, sir.
"Q. But he did make a request or a mention of
an attorney on the Sunday morning interview?
A. No request; just a mention, sir.
"Q. Do you remember testifying in this Courtroom
on Tuesday? A. Yes, sir.
"Q. About the Monday night incident? A. Yes,
sir.
"Q. Do you remember me asking you if, on Monday
night, Larry made a mention or request for an
attorney? A. As I recall -- I am not sure, but
as I recall, I referred that incident to the second
interview.
"Q. I think that I asked you if, after the polygraph
examination, Larry made a reference to an attorney,
and you said, 'Yes.' And I said, 'Was that before
the first statement was taken?' And you said, 'Yes.'
"[County attorney] Your Honor, I'll object on the
grounds that this would be proven by the record,
and the Court, of course, has heard the testimony,
so I think that the question is argumentative.
"THE COURT: Sustained.
"[Blakney's counsel] Your Honor, if I could address
that, this is cross examination, and there appears
to be a material conflict in this witness's
testimony. We have been recessed for this
particular witness over a weekend. Apparently,
he has talked to the County Attorney's office.
It's a possible conspiracy, here, to violate
this man's constitutional rights, and I think that
leeway should be granted to find out just what
happened.
"THE COURT: I have ruled, and when I want argument,
I'll ask for it. Your next question.
"Q. [Blakney's counsel] You don't recall making
the statement on Tuesday, then, that the mention
of an attorney was before the first statement was
taken? A. As I remember my Tuesday testimony,
when I referred to the question of an attorney and
I gave my explanation as I did today, I was
referring to the second statement taken.
"Q. And not to the Monday night incident? A.
No. As I testified here today, I remember the
Monday night occurrence, but not -- I didn't relate
to it.
"Q. Is your testimony, then, that you remember
what occurred Monday night after the polygraph
examination? A. Pardon me, sir?
"Q. Do you remember what happened after the
polygraph on Monday? A. Yes, sir.
"Q. And do you remember -- I think you mentioned
on direct examination that you don't recall the
exact words that were used by Larry in reference
to an attorney; is that correct? A. On Monday
night, I do not.
"Q. But now, you are saying that the request or
mention came some time after the first statement
was started? A. I recall the incident of what
the conversation was saying during the second
statement, and not the Monday night statement.
"Q. Do you recall at this time whether or not,
on Monday night, Larry made mention of an attorney
either before the first statement began, during
the first statement, or some time after? A. On
Monday night?
"Q. Yes. A. I recall an incident occurring; I
do not recall what occurred.
"Q. Do you recall when it occurred? A. It
occurred while we were talking to Larry.
"Q. Before or after a statement was given? A.
I do not recall when it was given."
Blakney was recalled to the stand respecting the
Sunday morning incident testified to by Weaver and testified:
"[County attorney] Mr. Volinkaty asked you
something about some attorney on a Sunday
morning interview, and you said something about
something -- something an attorney. A. On
Sunday?
"Q. Yes, Sunday morning. The one between -- oh,
I don't know -- nine and twelve which Officer
Weaver testified about. A. That I asked for an
attorney?
"Q. Yes. A. No, I didn't.
"Q. You didn't ask for an attorney? A. Not on
Sunday. I asked on Monday.
"Q. So what Officer Weaver testified about wasn't
true, in your opinion? A. NO, it wasn't."
Based on that testimony, I determine that the findings
of the trial court were clearly erroneous. I find it incredible
that Blakney requested counsel at the Sunday morning interview,
when he was not apparently under suspicion for the crime. I
find it incredible that he said he "didn't want an attorney"
at the Monday night interview, when the person to whom it is
claimed he made that statement has no recollection of it at
all. I further believe that when Blakney stated he wanted
an attorney, he was cajoled by the interrogating officer
that all they wanted was "some information that he possessed."
A further indication of the unreliability of the trial
court's findings is no. 6, which stated that "a tape recording
of the defendant's polygraph examination clearly indicates
that the defendant was not threatened or intimidated by the
procedures used." There was no tape recording of that
particular examination.
The State failed in its burden to show that Blakney
intelligently and knowingly relinquished his right to counsel,
or that he understood his right to counsel. Under Edwards,
I would vacate his conviction, and remand with instructions
to suppress the evidence of his con,
9sions.
Mr. Justice Daniel J. Shea and Mr. Justice Frank B. Morrison, Jr.,
concur i the foregoing dissent.
n