No. 84-240
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
MICHAEL KELLY PHELPS,
Defendant and Appellant.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert M. Holter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
David W. Harman argued, Libby, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Patricia Schaeffer argued, Asst. Atty. General, Helena
William A. Douglas, County Attorney, Libby, Montana
Thomas R. Bostock argued, Deputy County Attorney,
Libby, Montana
Submitted: January 25, 1985
Decided: March 13, 1985
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Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Michael Phelps appeals convictions of two counts of
deviate sexual conduct from the Lincoln County District
Court. The defendant was found guilty of these charges after
a two-day jury trial held February 22 and 33, 1984. He was
sentenced to six years imprisonment on each count, the terms
to run consecutively. We affirm.
Michael Phelps at the time of the alleged criminal acts
was twenty years old and had a ninth grade education. On
September 1, 1983, Theresa Jones, mother of David, five;
John, seven; Michelle, eight; and Michael, eleven, of Troy,
Montana, left her children in the care of the defendant to go
grocery shopping. When she returned home several hours
Later, she found the two younger boys hiding in a bedroom
closet. David and John were dressed in women's clothing.
The next day, the boys told her that the defendant had. sexu-
ally molested them. Subsequent examinations by local physi-
cians indicated the possibility of sexual abuse, although the
reports were not conclusive.
On September 8, 1983, the defendant was asked to appear
a t the Troy police station for questioning. Neal Bauer, a
detective sergeant with the Lincoln County sheriff's depart-
ment, conducted the questioning and Martin Koskela, a deputy
sheriff, was present during the interview. Detective Bauer
was trained in interrogation techniques used in sexual as-
sault investigations. When Phelps first arrived that after-
noon, the two officers read him his Miranda rights, had him
sign a Miranda waiver, and proceeded to question him about
the molestation incidents. The interrogation lasted just
under one and one-half hours and was broken into three
sessions separated by two short breaks. The first session
lasted seven minutes, the second approximately an hour, and
the third seven minutes.
The interrogations were tape recorded and a transcript
was made. The defendant was only read his complete Miranda
rights at the beginning of the first session. In the subse-
quent sessions, he was reminded of these rights and asked
whether he understood those rights and knew he was waiving
them. The defendant answered affirmatively.
Initially, Phelps denied any contact with the boys. In
the first session a bundle of woman's undergarments belonging
to Phelps was placed on a table in front of the defendant.
This evidence potentially embarrassed Phelps who admitted he
enjoyed wearing such clothing in the privacy of his home.
During the second session on September 8, the defendant
did state that he had sexual contact with the boys. He also
asked to see his father but was told that he would have to
wait until the pol-ice were finished questioning him. Defen-
dant's father was waiting outside the police offices at this
time .
In the third session the defendant fully implicated
himself in the sexual crimes. The defendant's confession
followed suggestions made by the officers of what he had
done. Phelps admitted that he fond!-ed the penis of both of
the boys and pushed a pencil up the rectum of one of the
children. He was subsequently charged by information with
two counts of deviate sexual conduct.
After a court-ordered mental examination at the state
hospital, the defendant was found competent to stand trial.
On November 9, 1.983, counsel filed a motion to suppress the
September 8 confession and a motion to sever the two counts
into separate trial-s. Phelps ' s position at th.e suppression
hearing was that he had fabricated the confession story only
to end the interrogation; he asserted that he was in fact
jnnocent of the crimes charged. At this time the defendant
also stated that he had been induced into the confession by
promises that he would receive mental health treatment at the
state hospital. The motion to suppress was denied and the
motion to sever was never acted on.
A jury found Phelps guilty of both counts of deviate
sexual conduct. Deviate sexual conduct is codified at
" (1) A person who knowingly engages j.n
deviate sexual relations or who causes
another to engage in deviate sexual
relations commits the offense of deviate
sexual conduct.
" ( 2 ) A person convicted of the offense
of deviate sexual conduct shall be im-
prisoned in the state prison for any term
not to exceed 10 years or be fl.ned an
amount not to exceed $50,000, or both.
. . ." (Emphasis added.)
Deviate sexual relations is defined in the criminal
code to be, "sexua.1 contact or sexual intercourse between two
persons of the same sex or any form of sexual intercourse
with an animal." Section 45-2-101(20), KCA.
Phelps appeals the judgment and sentencing of the
District Court and raises the following issues:
(1) Whether the District Court abused its discretion
in admitting the defendant's confession into evidence.
(2) Whether the District Court abused its discretion
in determining that a five-year-o1.d chi12 was competent to
testify.
(3) Whether the District Court abused its discretion
in not severing the counts into separate trials.
(4) Whether the cumulative error doctrine applies, and
whether the defendant received a fair trial.
Appellant argues that his confession was invol-untary
d.ue to psychological coercion evidenced by the following
alleged facts: (1) the officers lied to him about the exis-
tence of a medical report concerning the child abuse; (2) the
sack of women's clothing that Phelps occasionally wore was
thrown on the ta.ble during questioning; (3) the officers
induced him to confess by promising future mental counseling;
(4) the confession followed the exact pattern of leading
questions; (5) Phelps interchanged the names of the two boys;
(6) the officers refused to 1-ethim see his father during the
interrogation; and (7) prior to the interrogation the defen-
dant had denied committing the offenses to other officers.
Appellant cites authority for the proposition that
vol.untariness depend-s on the totality of the circumstances.
He argues that reversal is warranted in this case because
there is not substantial credible evidence to support the
District Court's admission of the confession.
The State notes that the issue of voluntariness is a
factual determination to be made by the trial court. State
v. Lenon (1977), 174 Mont. 264, 570 P.2d 901. The State
points out that the defendant did not claim at trial or on
appeal that his Miranda rights were not honored. The State
maintains that the defendant's testimony at the suppression
hearing clearly reflects his understanding of the underlying
constitutional rights:
"Q. [Deputy County Attorney] When
Detective Bauer advised you that at. the
beginning of these statements you had a
right to remain silent, did you. under-
stand that?
"A. [Phelps] Yes, I did.
" 9 . And when he advised you that you had
a right to an attorney, did you under-
stand that?
"A. Yes.
"Q. Did you ask at any time for an
a-ttorney during the taking of these
statements?
"A. No.
"Q. Did you ever ask them just to stop,
that you didn't wa-nt to continue anymore?
"A. I was tempted, yes.
"Q. But you didn't ask them, did you?
"A. No. Because I wanted to figure out
what the heck they were up to."
Thus, this case is distinguishable from federal and Montana
ca.se law in which the validity of the waiver of constitution-
al rights was challenged. In the case at bar the voluntari-
ness of the confession is questioned.
The parties agree on the case law that must be applied
to the facts of this case. This Court has addressed the
voluntariness issue in five major appellate decisions over
the past several years. State v. Davison (Mont. 1980) I 614
p.2d 489, 37 St.Rep. 1135; State v. Allies (19791, 186 Mont.
99, 606 P.2d 1043; State v. Rl-akney (19791, 185 Mont. 4701
605 P.2d 1093, cert. granted, Blakney v. State of Montana
(1981), 451 U.S. 1013, 101 S.Ct. 2999, 69 L.Ed.2d 384, aff'd,
State v. B1akn.e~(1982), 197 Mont. 131, 641 P.2d 1045; State
v. Grimestad (1979), 183 Mont. 29, 598 ~ . 2 d198; State v.
Lenon (1977), 174 Mont. 264, 570 P.2d 901-
The principles discussed in these cases have been
consistently set forth; there exists no need to review their
application in depth.
A common theme in appellant's arguments is a claim of
diminished mental capacity and evidence of mental illness.
Michael Phelps, in the years precedina these offenses, re-
ceived psychological counseling at the Western Montana Mental
Health Clinic. In the pretrial mental. health evaluation
Phelps was diagnosed by a clinical psychologist and psychia-
trist as suffering a schizophrenic disorder. The psychologi-
cal report indicated Phelps had a ful-1 scale I.Q. of 91,
verbal f .Q. of 99, and performance I.Q. of 83. This report
was prefaced by the statement that: . . Mr. Phelps
". per-
forms at the average level of intelligence . . ."
Mental illness or deficiency does not in itself pre-
clude admissibility of defendant's statements so long as he
was capable of understanding the meaning and consequences of
his statements. It is an import-ant factor to consider in
examining the totality of the circumstances, but it is not
conclusive. LCchade v. State (Alaska 1973), 512 P.2d 907;
People v. Watson (Cal.App.3d 1977), 142 Cal.Rptr. 1-34; People
v. Lara (Cal. 1967), 432 P.2d 202; State v. Kreps (Hawaii
App. 1983), 661 P.2d 711; State v. Thompson (Kan. 19761, 558
P.2d 1079; Criswell v. State (Nev. 1970), 472 P.?d 342; State
v. Davis (Wash.App. 1983), 662 P.2d 78; State v. Allen (Wash.
1965), 406 P.2d 950. See also Annot., 69 A.L.R.2d 348, 350
(1960).
The psychological report and the defendant's own an-
swers at trial demonstrate average intelligence. The fact
that Phelps received psychological counseling and had been
diagnosed as a schizophrenic is not conclusive on the
question of voluntariness. People v. Watson, 142 Cal.Rptr.
at 140 (schizophrenic cond.ition does not render defendant
incapable of effectively waiving his rights, nor does evi-
dence of subnormality require the automatic exclusion of a
confession) . No expert testimony was offered to the effect
that Phelps was highly susceptible to suqgestion due to
mental illness or mental deficiency. See People v. Parks
(Colo. 1978), 579 P.2d 76, a.nd cases cited therein. Further-
more, the record reflects that he was capable of independent-
ly and intelligently answering questions at the pol-ice
station and at the suppression hearing.
A second allegation is that the confession was induced
by Detective Eauer ' s promise of future mental treatment.
Phelps's exact testimony was that Bauer gave hi.m "the dis-
tinct impression that to some extent he would recommend to
the Court that I be put into Warm Springs [State Hospital]."
The allegation is significant for the United States Supreme
Court has held:
"To be admissible, a confession must be
"'free and voluntary: that is, must not
be extracted by any sort of threats or
violence, nor obtained by any direct or
implied promises, however slight, nor by
the exertion of any improper influ-
ence. " ' " Brady v. United States (1970),
397 U.S. 742, 753, 90 S.Ct. 1463, 1471,
25 L.Ed.2d 747, 759 (quoting Rram v.
United States (1897), 168 U.S. 532,
The fact that Detective Bauer did not fully recall
making any implied promise to Phelps does not constitute a
denial. that such assurances were made. We note that the
interrogating officers turned off their tape recorder before
the alleged conversation took place on September 8.
Reviewing ??helps's and Bauer's testimony on this topic,
we can surmise that Phelps was given the impression that
there would be the possibility of treatment at the Warm
Springs State Hospital. However, we hold that such reassur-
ance does not render the subsequent confession inadmissible.
This alleged promise was couched in terms of a mere possibil-
ity or an opinion; as such, it does not constitute a suffi-
cient promise to render a confession involuntary. See, State
v. McVay (Ariz. 1.980), 617 P.2d 1134 (confession properly
admitted where it was induced by prison officer's promise to
speak to the warden about getting defendant removed from
isolation cell). But cf., State v. Capwell. (Or.App. 1983),
669 P.2d 808 (pre-Miranda statements rendered defendant's
confession involuntary in violation of state constitution
where officers told defendant that the court would consider
treatment instead of incarceration providing defendant con-
fessed, and defendant was convinced that by telling the truth
he would not go to court).
The investigating officer in this case walked a thin
line between constitut.ionally permissible police conduct and
reversible error. The conduct falls somewhere hetween a
situation where an officer tells a defendant that psychiatric
treatment is available if needed, State v. Allj-es, 6 0 6 P.2d
at 1 0 4 6 (confession suppressed on other grounds), and a case
where a defendant is promised treatment at the state mental
hospital in return for a confession. The latter situation
clearly violates the defendant's constitutional rights. Our
law enforcement officers would do well to review the dictates
of Rrady v. United States, 397 U.S. at 753, and proscriptions
therein against "implied promises, however slight."
An additional transgression of police conduct was
potentially committed in this case. Detective Eauer informed
Phelps in the first few minutes of his interrogation: ". . .
we've even got a doctor's report on this . . . we've got all
the evidence." The State argues that this observation is not
a falsehood; a doctor had examined the victim prior to Sep-
tember 8.
Detective Bauer possessed no medical report from the
examining physician, Dr. Griffith, at the time this declara-
tion was made. Bauer's partner, Officer Koskela, had talked
to the physician concerning his findings. However, those
findings were inconclusive.
In State v. Lenon, 570 P.2d at 906, this Court stated.:
"We cannot overemphasize our strong
condemnation of police practices . ..
wherein a police officer misinforms a
defendant as to other arrestees having
given confessions . . .."
Simil.arly, we cannot condone the tactics of this officer who
informed Phelps as to the existence of incriminating evidence
when the evidence was inconclusive.
Appellant has raised other allegations of coercion. We
have examined these contentions and find no impropriety in
the display of women's cl-ot-hing,
use of leading questions,
refusal to honor Phelps's request to talk to his father and
prior denials of the accused.
The combination of all the circumstances surrounding
this confessi-on does not mandate suppression. The totality
of the circumstances in this case includes: (1) the length of
the interrogatj-on and its breaks; ( 2 ) written and oral waiv-
ers of constitutional rights; ( 3 ) defendant's testimony at
the suppression hearing that he understood these rights; (4)
the mental condition of the d.efendant; (5) defendant's
impression that Bauer would recommend mental treatment a.t
Warm Springs; and (6) the statement of Detective Bauer con-
cerning z doctor's report.
A preponderance of the evidence supports the trial
court's holding t.ha.t,in the totality of the circumstances,
Phelps's confession was voluntary.
The second issue raised by appellant concerns the
competency of witness John, age five. The District Court
judge qualified the witness outside the presence of the jury
and concl-uded that the boy was marginally qualified and that
the jury should measure the effect and weight of his
testimony.
Appellant alleges that John was "coached" into testify-
ing. Appellant points out errors in the child's perception
of where he was when he testified and who the judge was. The
child stated at. one point tha.t he thought he was in a police
station and that the robed judge was a karate expert. The
State notes that John knew the difference between a truth a.nd
a lie and was aware of his duty to tell the truth in court.
There is no fixed age at which a person is considered
too young to testify. The relevant rule of evidence states:
"R-ule -601. Competency - general;
in
disqual-ification.
" (a) General rule competency. Every
person is competent to he a witness
except as otherwise provided in these
rules.
" (b) Disqualification of witnesses. A
person is disqualified to be a witness if
the court finds that (1) the witness is
incapable of expressina himself concern-
ing the m a E e r so as to be understood by
the iudge and jury either directly or
through interpretation by one who can
understand him or (2) the witness is
incapable of understanding the duty of a
witness - - - the truth."
to-tell Rule 601;
Mont.R.Evid. (Emphasis added.)
This rule was recently interpreted in State v. Rogers
(Mont. 1984), 692 P.2d 2, 41 St.Rep. 2131. In Rogers, this
Court upheld the lower court's determination that a
four-year-old girl was competent to he a witness in a sexual
abuse case. We noted that whether a child is competent to be
a witness is a determination left largely to the discretion
of the trial court. State v. Campbell (1978), 176 Mont. 525,
529, 579 P.2d 1231, 1233. The trial court must determine
whether the chi1.d understands the duty t.o tell the truth.
State v. Shamho (1958), 133 Mont. 305, 322 ~ . 2 d657.
The appellant's cases on "coached" witnesses are dis-
tinguishable. Jn the three cited cases, coaching was mani-
fest from the record. In Cross v. Commonwealth (Va. 19531,
77 S.E.2d 447, and People v. Delaney (Cal.. App. 1921), 199 P.
896, the children repeated a storv their mothers told them to
tell to the judge. In Lanoue v. State !Nev. 1983), 661 P.2d
875, the five-year-old witness indicated considerable confu-
sion concerning the concepts of truth and falsehood.
The inconsjstencies in John's perception of where he
was do not affect his competence. Competence is determined
by capacity of expression and appreciation of the duty to
tell the truth. There was no error committed by the District
Court in admitting John's testimony and allowing t.he jury to
measure its weight.
Phelps argues that the two counts of deviate sexual
conduct should have been tried separately . The relevant
statutory basis of this claim is S 46-11-404, MCA:
"Joinder - severance - offenses and
and of
defendants. ...
" (2) The court in which the case is
triable, in the interests of justice and
for good cause shown, may, in its discre-
tion, order that the different offenses
or counts set forth in the indictment,
information, or complaint be tried sepa-
rately or divided into two or more groups
and each of the groups tried separately.
An acquittal of one or more counts shall
not be considered an acquittal of any
other count.
"(4) If it appears that a defendant or
the state is prejudiced by a joinder of
related prosecutions or defendants in a
single charge or by joinder of separate
charges or defendants for trial, the
court may order separate trials, grant a
severance of defendants, or provide any
other relief as justice may require."
Appellant notes in his brief that: (1) consi-derations
of judicial economy exert strong pressure in favor of joint
trials; (2) defendant must show more than mere prejudice or
that he had a better chance of acquittal with separate tri-
als; (3) defendant must show the prejudice was so great as to
prevent a fair trial; a.nd (4) the balancing of prejudice and
iudicial economy is left to the sound discretion of the trial
judge. However, the appellant argues that he has met his
burden a.nd shown prejudice that constitutes reversible error.
It is the State's position that the defendant waived
the severance issue. The hearing on the motion to suppress
and. the motion to sever was set for December 9, 1983. The
suppression issue was heard first and this discussion
followed :
"MR. H A W A N [Appellant's Attorney] : Can
we continue to the hearing as to the
other motions that are set forth today
too?
"'THE COURT: I am sorry, yes.
"MR. HARMAN: We might as well clear this
up as long as we are here today.
"THE COURT: I had forgotten there were
'others.
"MR. HARMAN: The minute entry indicates
we are going to hear the Defendant's
motion to sever today, and on November 9
the Defendant filed a motion to sever,
and I do not intend to pursue that matter
any further. . ."
There was no further discussion on the motion and the Dis-
trict Court never issued a ruling.
We do not reach the issue of wa-iver for we find no
prejudice to defendant that outweighs considerations of
judicial economy. Additionally, the State argues persuasive-
ly that the effect of two separate trials on the young vi-c-
tims of these crimes should be considered. Each would
potentially be a witness in both trials and be compel.led to
appear and testify twice.
As a final matter, Phelps argues that a number of
prejudicial errors combined to deprive him of a fair trial.
The brief of appellant states:
"Here, the cumulative error is the combi-
nation of use of evidence of prior acts
without notice to the Defendant, the
prosecutor's improper closing argument,
iuror misconduct in reading a newspaper
account. I
'
Many of these claimed errors were not raised at trial
and may not be raised on appeal. Additi0na1l.y~ appellant ha.s
failed t o prove prejudice. Mere a l l e g a t i o n s o f error are
. i n , s u f f i c i e n t t o invoke t h e cumulative e r r o r d o c t r i n e .
The convictions i n the District Court are affirmed.
W e concur:
. -
Justices