NO. 95-043
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
v.
FRANK MICHAEL GREY,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
David M. Ortley, Kalispell, Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Jennifer
Anders, Assistant Attorney General, Helena, Montana;
Thomas J. Esch, Flathead County Attorney, Valerie
D. Wilson, Deputy Flathead County Attorney,
Kalispell, Montana
Submitted on Briefs: August 31, 1995
DEC 05 1995
Fil
Justice James C. Nelson delivered the Opinion of the Court.
Defendant Frank Michael Grey (Grey) appeals from the Eleventh
Judicial District Court, Flathead County's order denying his motion
to suppress his videotaped statement and judgment of conviction.
We reverse.
We find the following issue dispositive:
Whether the District Court erred in denying Grey's motion to
suppress his videotaped statement on the ground that the statement
was obtained involuntarily and thus in violation of Grey's Fifth
Amendment right against self-incrimination?
BACKGROUND
John Zauner (Zauner) owns a Western Auto store in Kalispell,
Montana where Grey was employed as a salesclerk. After noting
merchandise missing from his store, and after finding that Grey had
a prror conviction of theft from a store at which he worked, Zauner
contacted the Kalispell Police Department. The police initiated an
investigation focused on Grey. The thefts occurred after Zauner
hired Grey and some could be traced to Grey's shift. Additionally,
Zauner saw the same kind of radar detector mount that was missing
from his store in Grey's pick-up truck and knew that Grey always
carried a gym bag to and from work. The police placed a video
camera in the store to "make it look as if there was a hidden
camera."
The police contacted Grey at Western Auto, informed him that
an investigation was being conducted, and told him that all the
employees would be interviewed, but he was the first. The police
asked Grey to go to the Kalispell Police Department for the
interview. Grey voluntarily drove himself to the station and was
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initially interviewed in the public area of the station. Officer
Holt told Grey that he was investigating a theft totalling $22,000
and again told Grey that he would interview each employee. Officer
Holt used the "Reed" technique of interviewing to interpret Grey's
responses and body mannerisms to determine whether he was more
likely guilty than not.
At that point, Officer Halt contends that he gave Grey his
Miranda warnings, asked him if he wanted to continue talking, and
took him to the booking room for formal interrogation. Grey
contends that Officer Holt did not give him his Miranda warnings.
The police did not obtain a written waiver or record giving Grey
his Miranda warnings, but did videotape the interview. Officer
Holt began the interrogation by again telling Grey that
approximately $20,000 was missing from Western Auto and asking Grey
whether the lie detector would "go beep" when he answered
questions. During the interrogation, Grey confessed to taking
merchandise from Western Auto. Both parties agree that the
interview constituted a custodial interrogation.
The police arrested and incarcerated Grey. Grey filed a pre-
trial motion to suppress the statement and videotape alleging that
they were both obtained in violation of his privilege against self-
incrimination. On September 19, 1994, the District Court denied
Grey's motion to suppress. On the date scheduled for trial, the
District Court heard Grey's renewed motion to suppress, denied the
motion, and granted Grey's oral motion to continue trial.
Following a bench trial, the District Court found Grey guilty of
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felony theft, common scheme, and ordered him to serve 90 days in
the Flathead County jail and deferred his sentence for 2 years on
certain conditions.
DISCUSSION
Whether the District Court erred in denying Grey's motion to
suppress his videotaped statement on the ground that the statement
was obtained involuntarily and thus in violation of Grey's Fifth
Amendment right against self-incrimination?
On appeal, Grey raises five issues for our consideration.
Since we reverse the District Court on the second issue, we will
only discuss that issue. We review a district court's findings of
fact regarding suppression hearing evidence to determine whether
those findings are clearly erroneous. State v. Kaluza (1993), 262
Mont. 360, 361, 865 P.Zd 263, 264 (citing State v. Bower (19921,
254 Mont. 1, 7, 833 P.2d 1106, 1110 and State v. Cope (1991), 250
Mont. 387, 396, 819 P.2d 1280, 1286). The issue of voluntariness
is largely a factual determination that is within the discretion of
the district court. State v. Lenon (19771, 174 Mont. 264, 271, 570
P.2d 901, 906.
Grey argues that the police used impermissible procedures to
obtain his confession, rendering it involuntary and violative of
both his Fifth Amendment privilege against self-incrimination and
his Fourteenth Amendment right to due process of the law. Grey
also contends that the police did not administer adequate Miranda
warnings and should have recorded the warnings and obtained a
written waiver. Grey claims that he did not voluntarily,
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intelligently, and knowingly waive his rights. Therefore, he
contends that the District Court erred in admitting his statement
into evidence.
Confessions are generally admissible. To be admissible,
however, a confession must be made freely, voluntarily, and without
compulsion of any sort. State v. Allies (1979), 186 Mont. 99, 109,
606 P.2d 1043, 1049.
The abhorrence of society to the use of involuntary
confessions does not turn alone on their inherent
untrustworthiness. It also turns on the deep-rooted
feeling that the police must obey the law while enforcing
the law; that in the end life and liberty can be as much
endangered from illegal methods used to convict those
thought to be criminals as from the actual criminals
themselves.
Allies, 606 P.2d at 1047 (quoting Spano v. New York (1959), 360
U.S. 315, 320, 79 S.Ct. 1202, 1205, 3 L.Ed.2d 1265, 1270).
The procurement of a confession must comport with the
guarantee that an individual will not be compelled to incriminate
himself or herself, and that the individual may not be convicted of
a crime without due process of law. Allies, 606 P.2d at 1047. It
follows that I' [ilf a defendant's confession is involuntary, it
violates [the1 Fifth Amendment privilege against self-incrimination
and may not be used as evidence at [the] criminal trial without
violating [the] Fourteenth Amendment right to due process of the
law." Lenon, 570 P.2d at 906 (citing Brown v. Mississippi (1936),
297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682). A defendant may waive
the Fifth and Fourteenth Amendment rights only if the waiver of
those rights is made voluntarily, knowingly, and intelligently.
Miranda v. Arizona (19661, 384 U.S. 436, 444, 86 S.Ct. 1602, 1613,
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16 L.Ed.2d 694, 707; State v. Blakney (1982), 197 Mont. 131, 134,
641 P.Zd 1045, 1049.
Voluntariness is the underlying test of admissibility of
confessions. Lenon, 570 P.2d at 906 (citing Brown v. Illinois
(1975), 422 U.S. 590, 604, 95 S.Ct. 2254, 2262, 45 L.Ed.2d 416,
427).
Voluntariness has reflected an accommodation of the
complex values implicated in police questioning of a
suspect . . At one end of the spectrum is the
acknowledged need for police questioning as a tool for
the effective enforcement of criminal laws . . At the
other end of the spectrum is the set of values reflecting
society's deeply felt belief that the criminal law cannot
be used as an instrument of unfairness . . . [Citations
omitted.]
Schnekloth v. Bustamonte (1973), 412 U.S. 218, 225-26, 93 S.Ct.
2041, 2046, 36 L.Ed.2d 654, 861. In determining whether a
defendant's confession was voluntary, the United States Supreme
court has assessed the totality of all the surrounding
circumstances, including the characteristics of the accused and the
details of the interrogation. Schnekloth, 412 U.S. at 226.
Significantly, none of the decisions regarding the admissibility of
a confession turns on the presence or absence of a single
controlling criterion, each reflects a careful scrutiny of all the
surrounding circumstances. Schnekloth, 412 U.S. at 226.
Accordingly, this Court has held that an analysis of the
voluntariness of a confession is a factual question that must take
into account the totality of the circumstances. State v. Mayes
(1992), 251 Mont. 358, 376, 825 P.2d 1196, 1208 (citing Allies, 606
P.2d at 1050).
Pursuant to § 46-13-301(l), MCA, a defendant may move to
suppress a confession that the defendant feels was involuntary.
This section places the burden on the State to prove by a
preponderance of the evidence that the confession was voluntary.
The central question is whether the State has established by a
preponderance of the evidence that the defendant was advised of his
constitutional rights and whether that defendant knowingly waived
them and voluntarily gave a statement. State v. Blakney (19821,
197 Mont. 131, 143, 641 P.2d 1045, 1051.
Several factors can culminate in a totality of circumstances
that render a confession involuntary. A confession extracted by
any sort of threat or violence, by any direct or implied promises,
however slight, or by the exertion of any improper influence has
the potential to be involuntary. State v. Phelps (1985), 215 Mont.
217, 224, 696 P.2d 447, 451. Physical coercion, psychological
coercion, inadequate Miranda warnings, and impermissible police
practices are each factors weighed in a court's consideration of
undue influence. Brown v. Mississippi, 297 U.S. 270 (holding that
physical brutality led to an involuntary confession); Payne v.
Arkansas (1958), 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (holding
that mental coercion led to an involuntary confession); Miranda,
384 U.S. 436 (holding that failure to warn defendant of rights
rendered confession inadmissible); Allies, 606 P.2d 1043 (holding
that impermissible police procedures rendered confession
involuntary). In the instant case, the police followed
impermissible practices and failed to administer adequate Miranda
warnings.
When a defendant moves to suppress a statement, the district
court ' s analysis should focus on whether the law enforcement
authorities followed impermissible procedures. Allies, 606 P.2d at
1049; State v. Grimestad (1979), 183 Mont. 29, 36, 598 P.2d 198,
202. For example, in Allies, the defendant voluntarily presented
himself at the police station three times, underwent a polygraph
test, and eventually confessed to four murders. The police used
two impermissible procedures in Allies; they lied to the defendant
and used subtle psychological pressure. Even though the police
advised the defendant of his Miranda rights, we held that in
considering the totality of the circumstances, the State did not,
by a preponderance of the evidence, show that the defendant
voluntarily and knowingly waived his constitutional right against
self-incrimination or that he voluntarily confessed.
In Maves, a defendant found guilty of incest confessed after
taking a polygraph test. Maves, 825 P.2d 1196. This Court
suppressed the confession because the combination of the
circumstances surrounding his confession mandated suppression. At
the time the defendant confessed, he had been awake for more than
30 hours, questioned continually, separated from his children, and
lied to about evidence against him. w, 825 P.2d at 1208. The
polygraph test indicated that the defendant was not telling the
truth, and the examiner used that information to obtain a
confession.
In State v. Craig (1993), 262 Mont. 240, 864 P.2d 1240, the
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defendant had slept prior to the exam and the officers did not lie
about evidence, however we still held that the district court did
not err in suppressing a statement made by the defendant following
a polygraph examination where police officers used the results of
the polygraph to elicit a statement or confession. We reached that
result even though at no time did the police make any false
statements to the defendant in order to induce a confession.
Craiq, 864 P.2d at 1243 (Nelson, J., dissenting).
In the instant case, the police made false statements in order
to induce Grey's confession and thus clearly used impermissible
procedures. The Kalispell Police Department's investigation
singled out Grey and focused on obtaining enough evidence to charge
him. They lied to him and told him that they were going to
interview each employee. They lied to him about the extent of the
theft problem. They lied to him that $22,000 worth of merchandise
had been stolen, when in fact, only several hundred dollars worth
of property was missing. They set up a video camera in the store
purely to create a false impression that the store was monitored.
Lastly, they told Grey that the lie detector test would go "beep"
if Grey did not tell the truth, when in fact Grey did not have to
take a lie detector test. In summary, Officer Halt's use of
deception to obtain Grey's confession was not a permissible police
procedure.
The police committed an additional transgression of procedure
in this case by not giving Grey adequate Miranda warnings. In
State v. Johnson (19781, 177 Mont. 182, 580 P.2d 1387, we held that
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the requirements of Miranda were not met when a county attorney
testified that the defendant was given his rights but there was no
proof regarding what the defendant was told about his rights. We
concluded that without knowing what the defendant was told, we
could not possibly determine if the defendant was properly advised
of his rights prior to making a statement to the county attorney.
This Court has said that where the police investigation
has focused on a particular suspect who is held in police
custody, law enforcement officers must adopt effective
safeguards securing the suspect's constitutional right
against self-incrimination prior to questioning him. . .
Johnson, 580 P.Zd at 1389.
Moreover, a valid waiver will not be presumed simply from the
silence of the accused after a warning is given or simply from the
fact that a confession was in fact eventually obtained. The
evidence must show the defendant intelligently understood his or
her rights and rejected them. Miranda, 384 U.S. at 475. In
Allies, we noted that the defendant was advised of his Miranda
rights before he confessed. However, we proceeded with the
understanding that " [mlore than mere lip service must be given to
Miranda and the principles it embodies." Allies, 606 P.Zd at 1050.
Similarly, in Grimestad, the State appealed the district
court's order granting defendant's motion to suppress evidence on
the grounds that certain admissions were not voluntary. The police
downplayed defendant's Miranda rights and persisted in assuring the
defendant that he was not a suspect. In Grimestad, we agreed with
the district court that "mere lip service was given to the Miranda
requirements . . . rather than a meaningful warning." Grimestad,
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598 P.Zd at 203.
Similarly, in the instant case, the police gave mere lip
service to the Miranda requirements. The officer who interrogated
Grey testified that he gave Grey his Miranda rights before taking
Grey to the interrogation room. However, he did not recall exactly
what he told Grey, merely that he had recited the Miranda
requirements from memory. The officer did, however, remember that
he chose not to use a waiver form because he did not want to
jeopardize the interrogation. He further testified that although
Grey did not specifically say so, by agreeing to continue to talk
with the police officers, Grey agreed to waive his rights.
The State simply did not prove by a preponderance of the
evidence that Grey voluntarily confessed. It is immeasurably more
difficult for the State to sustain its burden to prove the
voluntariness of a confession when there is no record of the
Miranda warnings other than the officer's testimony that he gave
them.
We do not hold that the police must tape record or create an
audio-visual record of Miranda warnings and the detainee's waiver,
as Grey urges we should and as some jurisdictions have. See, for
example, Stephan v. State (Alaska 19851, 711 P.2d 1156 and State v.
Scales (Minn. 1994), 518 N.W.2d 587. Although that may be the
better practice and would help assure that the accused receives a
constitutionally adequate Miranda warning while, at the same time,
enhancing the prosecution's ability to meet its burden to prove
voluntariness, we leave the imposition of any such procedural
11
requirement to the legislature and to individual law enforcement
agencies. Similarly, we do not hold that in every instance the
failure to secure a written Miranda waiver will be fatal. We
recognize, as one example, that an officer Mirandizing a suspect in
the field at the time of arrest, may not be able to preserve a
tangible record of his or her giving of the warning or of the
accused's waiver.
Nevertheless, the situation in the instant case does not
involve the arresting officer's administration of the Miranda
warning in the field. We do hold, that, in the context of a
custodial interrogation conducted at the station house or under
other similarly controlled circumstances, the failure of the police
officer to preserve some tangible record of his or her giving of
the Miranda warning and the knowing, intelligent waiver by the
detainee will be viewed with distrust in the judicial assessment of
voluntariness under the totality of circumstances surrounding the
confession or admission. That is all the more so where the
evidence demonstrates that, as here, the police officer made a
conscious decision not to secure a written waiver or otherwise
preserve his giving of the Miranda warning and the detainee's
waiver on the premise that to do so would alert the accused to
exercise his rights and, thus, jeopardize the interrogation.
In the instant case, assuming, arguendo, that the warning was
given, the mere perfunctory reading of Grey's Miranda rights was
not sufficient; the police, here, made a pretense of advising Grey
of his rights while simultaneously making sure he did not assert
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them. Such a procedure renders the giving of the Miranda warnings
a hollow and meaningless exercise, indeed, and does not comport
with due process.
Based on the totality of the circumstances of police deception
and failure to give Grey an adequate Miranda warning, we hold that
the District Court's findings were clearly erroneous. The District
Court misapprehended the evidence in finding that Grey's confession
was voluntary.
Accordingly, Grey's conviction is reversed.
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