No. 94-211
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Appellant,
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorabie Robert S. Kelier, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Joseph P. Mazurek, Attorney General; Jennifer
Anders, Ass't Attorney General, Helena, Montana
Charles Sprinkle, Lincoln County Attorney; Bernard
G. Cassidy, Deputy County Attorney, Libby, Montana
For Respondent:
Amy N. Guth, Public Defender's Office, Libby
Montana
Submitted on Briefs: July 27, 1995
Decided: October 19, 1995
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
The State of Montana (State) appeals from the order of the
Nineteenth Judicial District Court, Lincoln County, suppressing a
statement of Benedict Hermes (Hermes). We affirm.
We address the following issues on appeal:
1. Did the District Court err in suppressing Hermes'
statement after finding that the statement was involuntary?
2. Did the District Court err in determining that the State
could not use Hermes' statement for impeachment purposes?
In September of 1993, Detective Craig Martin (Martin) of the
Lincoln County Sheriff's Office received information from Jeff
Wedel (Wedel) , a social worker with the Montana Department of
Family Services, that Hermes had sexually assaulted S.S., a minor
child. Martin interviewed S.S. and her father about the incident
on September 23, 1993. Later the same day, Martin and Wedel went
to Hermes' residence in an isolated part of Lincoln County, where
Martin interviewed Hermes in Wedel's pickup truck. Martin recorded
the statement.
On October 12, 1993, the State charged Hermes by information
with the offense of sexual intercourse without consent. Hermes
pled not guilty.
Hermes subsequently moved to suppress the statement taken by
Martin on the grounds that the statement was involuntary. The
District Court held a hearing on the motion at which Martin, Hermes
and Hermes' father testified. Thereafter, the court entered
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findings with regard to the circumstances under which Martin
obtained Hermes' statement and ultimately found that the statement
was involuntary. On that basis, the District Court entered its
order and memorandum suppressing the statement from use at trial
for all purposes. The State appeals.
1. Did the District Court err in suppressing Hermes'
statement after finding that the statement was
involuntary?
Psychological pressure exerted upon a defendant to procure a
confession renders the confession involuntary. State v. Allies
(1979), 186 Mont. 99, 112, 606 P.2d 1043, 1050 (citations omitted).
An involuntary confession violates a criminal defendant's Fifth and
Fourteenth Amendment privileges against self-incrimination and may
not be used as evidence at trial without violating the defendant's
Fourteenth Amendment right to due process of law. State v. Lenon
(19771, 174 Mont. 264, 271, 570 P.2d 901, 906 (citations omitted).
Moreover, § 46-13-301(l), MCA, specifically authorizes a motion to
suppress any confession or admission given by a defendant on the
basis that the statement was involuntary. The State has the burden
of proving by a preponderance of the evidence that the confession
or admission was voluntary. Section 46-13-301(2), MCA.
By placing the "preponderance of evidence" burden of proof on
the State, § 46-13-301, MCA, clarifies that the question of
voluntariness is primarily one of fact. We consistently have
emphasized that point by stating, for example, that 0 [aln analysis
of the voluntariness of a confession is a factual question which
must take into account the totality of the circumstances." State
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v. Mayes (1992), 251 Mont. 358, 376, 825 P.2d 1196, 1208 (citation
omitted).
The District Court listened to the taped interview at issue
and held a hearing on the admissibility of Hermes' statement. The
court found that, after Hermes agreed to talk with Martin, Martin's
tone of voice and questions changed as he I’ [went] o n the
offensive." The court noted that the interview took place in a
"small enclosure" with a third person sitting behind Hermes and
found that this was a coercive setting. The court also noted that
Martin did not advise Hermes of his rights pursuant to Miranda v.
Arizona (19661, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
The District Court set forth some of the questions Martin
asked Hermes. Each such question was phrased in a way that assumed
Martin sexually assaulted S.S. The court noted that Martin never
asked Hermes what happened and found that Martin asked Hermes
exclusively accusatory questions. The District Court found that
Martin's accusatory questions compounded the coercion already
present in the interview setting.
In an order and supporting memorandum dated February 10, 1995,
the District Court made findings regarding the coercive nature of
Martin's interrogation of Hermes and ultimately found that the
State did not prove by a preponderance of the evidence that Hermes'
confession was voluntary. Additionally, the court found that
Martin used psychological pressure to induce Hermes' confession
and, as a result, that Hermes' confession was involuntary.
We review a district court's findings of fact regarding
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suppression hearing evidence to determine whether they are clearly
erroneous. State v. Kaluza (19931, 262 Mont. 360, 361, 865 P.2d
263, 264; State v. Cope (1991), 250 Mont. 387, 396, 819 P.2d 1280,
1286. A finding of fact is clearly erroneous if it is not
supported by substantial evidence or, if it is so supported, the
trial court misapprehended the effect of the evidence or if this
Court is left with a definite and firm conviction that a mistake
has been committed. State v. Bower (1992), 254 Mont. 1, 7, 833
P.2d 1106, 1110 (citation omitted).
In this regard, we note that our recent decisions in State v.
Stubbs (Mont. 1995), 892 P.2d 547, 52 St.Rep. 232, and in State v.
Rushton (1994), 264 Mont. 248, 870 P.2d 1355, inadvertently
reverted to a "substantial credible evidence" standard of review
for a court's findings relating to suppression evidence. We take
this opportunity to reaffirm our holding in Cope, with regard to
the standard of review, that "we will not overturn a District
Court's findings of fact regarding suppression hearing evidence
unless those findings are clearly erroneous." Cope, 819 P.2d at
1286.
Voluntariness depends on the facts of each case, with no fact
being dispositive. Allies, 606 P.2d at 1050 (citation omitted).
In determining whether a confession is voluntary under the totality
of circumstances test, courts consider the characteristics of the
defendant and what transpired during the interview. Schneckloth v.
Bustamonte (1973), 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36
L.Ed.2d 854, 862. We have reviewed district court findings of fact
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under the totality of circumstances test many times and, in doing
SO, we have determined that the following factors, among others,
are relevant: the defendant's age and level of education (State v.
Davison (1980), 188 Mont. 432, 442, 614 P.2d 489, 495); the
interrogation technique and whether the defendant was advised of
his Miranda rights (Allies, 606 P.2d at 1050); the defendant's
prior experience with the criminal justice system and police
interrogation (State v. Craig (1993), 262 Mont. 240, 242, 864 P.2d
1240, 1242); and the defendant's background and experience (Matter
of J.W.K. (19861, 223 Mont. 1, 6, 724 P.Zd 164, 167).
The record before us is replete with evidence supporting the
District Court's findings regarding the circumstances surrounding
Hermes' confession and its ultimate finding that Hermes' confession
was involuntary. At the time of the interview, Hermes resided in
an isolated area of Lincoln County in a house without electricity.
He received formal education through approximately the seventh
grade level. He testified that, at the time Martin took his
statement, he was unaware of his Miranda rights. Additionally,
Hermes had neither been charged with a crime nor interrogated by
the police prior to this occasion.
Upon arriving at Hermes' residence, Martin informed Hermes
that he would like to ask him some questions, but failed to
disclose the subject he sought to discuss with Hermes. Martin
interviewed Hermes in the club cab of Wedel's pickup truck with
Martin in the driver's seat, Hermes in the passenger seat, and
Wedel in the back seat. The pickup truck's doors were closed
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"suppressed from use at trial in this matter for all purposes."
The State argues that it is entitled to use Hermes' statement for
impeachment purposes in the event Hermes testifies at trial and, as
a result, that the District Court erred as matter of law. We
review a district court's conclusions of law to determine whether
they are correct. Stubbs, 892 P.2d at 550 (citations omitted).
Relying on Miranda and Mincey v. Arizona (1978), 437 U.S. 385,
98 S.Ct. 2408, 57 L.Ed.2d 290, the State argues that a defendant's
prior incriminating statements properly may be used for
impeachment, despite the lack of Miranda warnings, if the defendant
testifies in a manner inconsistent with his earlier statements.
The State concedes, however, that the question of whether the
statement is admissible for impeachment purposes turns on the
question of voluntariness.
We concluded above that the District Court's findings of fact
regarding the involuntary nature of Hermes' statement were not
clearly erroneous. Thus, in addressing the first issue, we
essentially determined this issue as well. Even under the
authorities relied on by the State, "any criminal trial use against
a defendant of his involuntary statement is a denial of due process
of law . . .'I See, e.q., Mincey, 437 U.S. at 398. We hold,
therefore, that the District Court did not err in concluding that
the State could not use Hermes' statement for impeachment purposes.
Affirmed
We concur:
-1.