State v. Jones

No. 04-435

IN THE SUPREME COURT OF THE STATE OF MONTANA

2006 MT 209

_______________________________________

STATE OF MONTANA,

Plaintiff and Respondent,

v.

JOHN STANLEY JONES,

Defendant and Appellant.

______________________________________

APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus, Cause No. DC 03-12
The Honorable E. Wayne Phillips, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Craig R. Buehler, Attorney at Law, Lewistown, Montana

For Respondent:

Hon. Mike McGrath, Attorney General; Mark W. Mattioli, Assistant
Attorney General, Helena, Montana

Thomas P. Meissner, County Attorney; Monte J. Boettger, Deputy County
Attorney, Lewistown, Montana

____________________________________

Submitted on Briefs: June 21, 2006

Decided: August 29, 2006

Filed:

______________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1 John Stanley Jones (Jones) appeals from an order from the Tenth Judicial District

Court, Fergus County, denying his motion to suppress statements that he made to police

during an interview and the coat he wore on the day Gisela Morris (Gisela) was

murdered. We affirm.

¶2 We address the following issues Jones presents on appeal:

¶3 1) Did the District Court err when it denied Jones’s motion to suppress statements

Jones provided to police officers during a December 31, 2002, interview?

¶4 2) Did the District Court err when it denied Jones’s motion to suppress the coat

that the police took from Jones’s home?

PROCEDURAL AND FACTUAL BACKGROUND

¶5 The night security patrol for the Eagles’ Manor retirement home in Lewistown,

Montana, discovered seventy-year-old Gisela dead in her apartment on the evening of

December 16, 2002. Gisela had died of severe blunt force injuries to her head,

strangulation or suffocation, and four stab wounds to her neck. Gisela also had been

sexually assaulted before her death. Fergus County police initiated the investigation by

seeking to interview probationers and parolees who had not reported during the time

period surrounding the homicide. Fergus County Probation Officer Jim Simonich

(Simonich) assisted the police in locating some of his probationers.

¶6 Simonich supervised Jones’s probation. Jones had failed to report to Simonich in

early December 2002. Simonich went with police to Jones’s house, and informed Jones’s

brother and mother that the police wanted to talk to him. Simonich issued an arrest

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warrant for Jones’s failure to report on December 30, 2002. Jones belatedly reported to

Simonich on December 31, 2002. Simonich testified that Jones was “calm, polite, a little

bit joking, . . . no different than he had been any other time that he reported.” Simonich

informed Jones that the police wanted to talk with him regarding the homicide that had

occurred two weeks earlier. Jones said that he had nothing to hide and agreed to speak

with police. Simonich called the police department to advise that Jones was on the way.

Jones walked to the police station unaccompanied by Simonich.

¶7 Officer Travis Tilleman (Tilleman) spoke with Jones in an interview room at the

police station and videotaped the conversation. The door to the interview room closed

automatically, but was not locked. Tilleman promptly advised Jones of his Miranda

rights. Jones signed the statement indicating that he understood his rights and also signed

the waiver. The two engaged in what Tilleman described to be a “real free, full, and open

conversation.”

¶8 Jones denied having seen Gisela the day of the homicide, and provided a written

statement detailing his whereabouts on the evening of the homicide. Tilleman inquired

about a cut he noticed on Jones’s hand and Jones responded that he received the cut in a

fight with his friend on December 16, 2002. Jones permitted Tilleman to photograph his

hand. Tilleman asked Jones whether he would be willing to undergo a rape kit

examination. Jones replied that he would not mind and said, “I’m just here to do

whatever you guys want.” Tilleman next asked if Jones would have any problems taking

a polygraph test. Jones responded that he had ADHD and an anxiety disorder that may

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affect the results, so he would have to talk to an attorney first, but that he was “not saying

[he] wouldn’t.”

¶9 Tilleman asked Jones what he was wearing on December 16, 2002, and Jones

replied that he was wearing black jeans and a red and black Columbia coat. Tilleman

asked whether the police could look at the coat. Jones replied, “sure” and informed

Tilleman that Jones had the coat at home. Tilleman then suggested that they could go to

Jones’s home to “go get” the coat following the interview. Tilleman stated that he was

going to check on some things and left the room.

¶10 Captain Dave Sanders (Sanders) returned to the interview room instead of

Tilleman. Sanders stated that discrepancies existed between what Jones had told

Tilleman and what witness accounts reported. Jones then promptly informed Sanders

that he had in fact seen Gisela the day of the homicide. Sanders asked why Jones had

told Tilleman that he had not seen Gisela for several months. Jones argued that Tilleman

had narrowed his inquiry to Jones’s actions after 3:00 or 4:00 PM on December 16, 2002,

and that Jones had visited Gisela earlier that day. Sanders then employed the “guilt

assumption technique” and informed Jones that the police “investigation demonstrates

that you were the person that did this.” Jones stated that he was through talking and that

“[i]f you’re gonna arrest me, just arrest me. I don’t want to sit here and listen to you.”

Nonetheless, Jones kept talking and continued to deny his involvement in the crime.

¶11 Sanders asked if Jones would be willing to submit to a polygraph test, and again

Jones stated that he would have to first talk to an attorney. Sanders left the room and

Jones smoked a cigarette. Sanders returned and asked if Jones was willing to continue

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talking and if Jones still would allow the police to look at the coat Jones had been

wearing on December 16, 2002. Jones responded affirmatively and stated that he had

nothing to hide. Sanders asked if Jones had walked or driven to the station. Jones had

walked, and Sanders said, “[w]e’ll just give you a ride.”

¶12 Tilleman drove a squad car the mile-and-a-half from the police station to Jones’s

home with Jones and Sanders in the back. Jones went to his room, retrieved the coat, and

brought it to the kitchen area. Tilleman and Sanders testified that Jones signed a consent

form before relinquishing the coat. Jones stated that the officers first took possession of

the coat and that he signed the consent form afterwards. The officers then left Jones’s

home.

¶13 Sanders telephoned Jones shortly after police returned to the station and an

inspection of the coat had revealed blood stains. Sanders asked Jones if he would be

willing to return to the station for a second interview. Jones agreed and appeared shortly

after the phone call. Jones and Sanders returned to the interview room. The officers

again videotaped the conversation. Sanders advised Jones of his Miranda rights for the

second time that day. Jones signed a form acknowledging that he both understood his

rights and that he chose to waive them. Sanders asked Jones more questions that

employed the guilt assumption technique. For example, Sanders made statements

repeatedly to the effect that he knew it would take courage, but that Jones should just tell

Sanders what happened. Sanders also stated frequently that he knew Jones had a

conscience.

¶14 Jones left the station and did not return until January 2, 2003, when Sanders

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telephoned and asked Jones again if he was willing to come in for an interview. Jones

appeared at the station a third time. Sanders again provided to Jones Miranda warnings

in the same interview room used before. Jones promptly invoked his rights. Sanders

ended the interview. Law enforcement did not have further contact with Jones until they

arrested him on March 4, 2003, for deliberate homicide, sexual intercourse without

consent, aggravated burglary, and commission of an offense with a dangerous weapon.

¶15 Jones filed a motion to suppress the statements he made during the December 31,

2002, interviews and the coat police acquired from his home. The District Court held a

two-and-a-half-day suppression hearing and received testimony from various witnesses

including Tilleman, Simonich, and Jones. The court also reviewed—at least twice—the

videotapes of Jones’s interviews. The court concluded that Jones made the statements on

December 31, 2002, voluntarily, and that law enforcement did not violate Jones’s Fifth

Amendment rights. The court also concluded that police did not violate Jones’s Fourth

Amendment rights when they seized his coat. Consequently, the District Court denied

Jones’s motions to suppress.

¶16 Following a fourteen-day trial held in January and February 2004, a jury convicted

Jones of deliberate homicide, aggravated burglary, and commission of an offense with a

dangerous weapon. Jones appeals the District Court’s decision to deny his motions to

suppress.

STANDARD OF REVIEW

¶17 We engage in a twofold review of a district court’s denial of a motion to suppress.

State v. McCollom, 2005 MT 61, ¶ 7, 326 Mont. 251, ¶ 7, 109 P.3d 215, ¶ 7. We initially

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review the court’s findings of fact to determine whether they are clearly erroneous.

McCollom, ¶ 7. A finding of fact is clearly erroneous if substantial evidence does not

support it, if the district court misapprehended the effect of that evidence, or if a review

of the record leaves this Court with the definite and firm conviction that the district court

made a mistake. McCollom, ¶ 7. We then engage in a plenary review of the conclusions

of law to determine whether the district court's interpretation of the law is correct.

McCollom, ¶ 7. The specific question of whether a defendant has given a voluntary

confession “‘is largely a factual determination that is within the discretion of the district

court.’” State v. Hill, 2000 MT 308, ¶ 37, 302 Mont. 415, ¶ 37, 14 P.3d 1237, ¶ 37

(quoting State v. Grey, 274 Mont. 206, 209, 907 P.2d 951, 953 (1995)).

DISCUSSION

¶18 Jones argues that this Court should reverse the District Court and grant his motion

to suppress statements he made to officers on December 31, 2002, and suppress the coat

police seized that same day. Jones premises his argument on the fact that his probation

officer, Simonich, forced him to appear at the police station initially, and thus, any

statements made thereafter were involuntary. Jones also claims that the totality of the

circumstances surrounding the interview demonstrate involuntariness independent of the

manner in which he appeared at the station. Finally, Jones contends that the police

obtained information and Jones’s consent regarding the coat Jones wore on December 16,

2002, only as a result of the involuntary statements and an illegal consent form, and

consequently, the District Court should have suppressed evidence of the coat.

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 ISSUE ONE

¶19 Did the District Court err when it denied Jones’s motion to suppress statements

Jones provided to police officers during a December 31, 2002 interview?

¶20 Section 46-13-301(1), MCA, permits a defendant to move to suppress a confession

or admission if it was given involuntarily. The statute places the burden on the state to

prove by a preponderance of the evidence that the confession or admission was

voluntarily given. Section 46-13-301(2), MCA; State v. Maestas, 2006 MT 101, ¶ 17,

332 Mont. 140, ¶ 17, 136 P.3d 514, ¶ 17. Voluntariness depends upon the totality of the

circumstances. State v. Reavley, 2003 MT 298, ¶ 15, 318 Mont. 150, ¶ 15, 79 P.3d 270, ¶

15.

¶21 The totality of the circumstances includes the defendant’s age, experience,

education level, the defendant’s prior experience with the criminal justice system and

police interrogation, whether the accused was advised of his Miranda rights, and whether

the police used impermissible practices to extract incriminating statements from the

defendant. Reavley, ¶ 15. The court should consider any physical coercion,

psychological coercion, deception, use of threats, and direct or implied promises when

determining whether police employed impermissible practices to extract incriminating

statements from the defendant. State v. Hoffman, 2003 MT 26, ¶¶ 18-19, 314 Mont. 155,

¶¶ 18-19, 64 P.3d 1013, ¶¶ 18-19. We analyze each factor in turn.

¶22 Jones’s personal attributes

¶23 Jones’s age, experience, education level, and prior experience with the criminal

justice system and police interrogation support a conclusion that Jones provided the

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statements to police voluntarily. Jones was 35 years old at the time of the interviews.

The District Court found that Jones could read and write and that he completed the 11th

grade. Although it took him three tries, Jones earned his GED. Jones has held several

jobs over his life, considers himself “pretty intelligent,” and stated that he enjoyed

reading adult mysteries.

¶24 Moreover, Jones had significant experience with the criminal justice system.

Jones had been convicted of six felonies. Jones knew how to assert his rights, as

evidenced by the fact that he declined requests by both Sanders and Tilleman to submit a

polygraph test without first speaking with an attorney. Jones also knew how to terminate

a police interview, as he demonstrated when he stated promptly that he would have to

speak with a lawyer before answering further questions when the third interview with

police commenced on January 2, 2003. Further, the District Court included in its

findings of fact that Tilleman interrogated Jones previously in 2001 and that Jones

“voluntarily left that interview. . . .” These factors weigh in favor of the voluntary nature

of the statements Jones provided on December 31, 2002.

¶25 Miranda warnings

¶26 The presence of timely and complete Miranda warnings further supports a finding

of voluntariness. Reavley, ¶ 15. An individual may waive his Miranda rights only if the

waiver has been made voluntarily, knowingly, and intelligently. State v. Lawrence, 285

Mont. 140, 148, 948 P.2d 186, 191 (1997). Officers provided Miranda warnings to Jones

before they began asking him questions at the first interview on December 31, 2002. The

officers then repeated the Miranda warnings when the second interview began only two

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hours later. Jones does not argue on appeal the sufficiency of these Miranda warnings, or

that he did not provide the waiver voluntarily, knowingly, and intelligently. Jones does

argue, however, that he unequivocally invoked his right to counsel when he stated that he

was “through talking.” The State responds by asserting that Jones’s statements were not

clear, unambiguous, and unequivocal. See Reavley, ¶ 21. The State argues additionally

that the officers provided Miranda warnings gratuitously since they never subjected

Jones to “custodial interrogation.” See State v. Dawson, 1999 MT 171, ¶ 30, 295 Mont.

212, ¶ 30, 983 P.2d 916, ¶ 30 (stating that Miranda warnings are only required if the

accused is subjected to a “custodial interrogation”).

¶27 We conclude that regardless of whether the police subjected Jones to a “custodial

interrogation,” Jones’s statements that he was “through talking” do not constitute an

unequivocal invocation of his right to counsel or to remain silent on the facts of this case.

The District Court sits in the best position to assess the credibility of witnesses and weigh

the testimony. Spooner Const. & Tree Serv., Inc. v. Maner, 2003 MT 43, ¶ 35, 314 Mont.

268, ¶ 35, 66 P.3d 263, ¶ 35. The court specifically found, after reviewing the tapes and

hearing Jones’s oral testimony, that “the subsequent conversation was not conducted

against [Jones’s] will . . . .” The videotape demonstrates that Jones said that he was

“through talking,” but yet continued talking unprompted by Sanders. Substantial

evidence supports the District Court’s finding that Jones did not unequivocally invoke his

Miranda rights. The presence of sufficient Miranda warnings and the fact that Jones did

not invoke his rights further supports the State’s position that Jones made his statements

voluntarily. See Reavley, ¶ 14.

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¶28 Practices used to extract incriminating statements

¶29 Jones asserts that Sanders’s use of the “guilt assumption technique” of questioning

rendered Jones’s statements involuntary. Jones does not allege, however, that Sanders

ever lied to him. The State admits that Sanders employed a “guilt assumption technique”

when he spoke with Jones on both occasions.

¶30 In State v. Hill, 2000 MT 308, 302 Mont. 415, 14 P.3d 1237, we analyzed the

voluntariness of Hill’s statements under the totality of the circumstances test. As here,

Hill argued that the police used impermissible practices to extract statements from him.

We concluded that when the police merely confronted Hill with physical evidence and

“appealed to Hill’s morality in asking for an admission but did not promise or threaten

any particular treatment,” that such actions did not amount to impermissible practices.

Hill, ¶ 45. We noted that the police did not ever mislead Hill about the evidence against

him, Hill, ¶ 45, and affirmed the district court’s decision to admit his statements. Hill, ¶

48.

¶31 As in Hill, the police here did not ever mislead or lie to Jones. Thus, the use of the

guilt assumption technique, without more, does not constitute such physical or

psychological coercion, deception, threats, or promises sufficient to tip the totality of the

circumstances test in Jones’s favor. Hill, ¶¶ 45, 48.

¶32 Jones also claims that Simonich forced him to speak with police initially when

Simonich advised Jones that Jones “needed” to talk with law enforcement and informed

Jones’s family the day before that he needed to see Jones. Jones reasons that any

statements he made after appearing at the police station are the result of the exploitation

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of an illegal act and should be suppressed. See generally State v. Bilant, 2001 MT 249, ¶

22, 307 Mont. 113, ¶ 22, 36 P.3d 883, ¶ 22. Jones points also to Simonich’s actions of

calling the police department while Jones was in his office to set up the police interview

and Simonich issuing an arrest warrant for Jones based on his failure to report as further

evidence of Jones’s involuntary appearance at the police station.

¶33 Jones’s mother testified that when she told her son on December 30, 2002—the

day before Jones met with Simonich—that the police wanted to speak with him, he

responded, “I’ve got nothing to hide; I’ll go.” Simonich testified that he did not tell Jones

that he had issued a warrant for Jones’s arrest, and thus, did not use the arrest warrant to

threaten Jones. Jones walked unescorted to the police station after leaving Simonich’s

office and stated repeatedly that he would talk to police because he “had nothing to hide.”

Further, Jones returned to the police station a second time, prompted only by Sanders’s

phone call asking him if he was willing to come in and answer more questions. Taking

into consideration these facts, and the totality of the circumstances, including Jones’s

personal attributes addressed in ¶¶ 23-24, we conclude that Simonich did not compel

Jones to speak with police. Thus, Jones’s statements did not result from an illegal act and

do not warrant exclusion. See Bilant, ¶ 22.

ISSUE TWO

¶34 Did the District Court err when it denied Jones’s motion to suppress the coat the

police took from Jones’s home?

¶35 Jones argues that the coat should be excluded from evidence because the police

only had knowledge of its existence due to the involuntary statements Jones made during

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the first two interviews. We resolved this issue above, however, when we concluded that

all Jones’s statements to officers were voluntary. Such statements include Jones

informing the police what he was wearing on December 16, 2002, as well as his

affirmative response to Tilleman’s request to take a look at the coat. We deem Jones’s

argument on this point meritless.

¶36 Jones asserts next that the signed form that provided consent for officers to

remove the coat from his home is invalid. Although warrantless searches are per se

unreasonable, knowing and voluntary consent by a citizen to a search is a recognized

exception to the warrant requirement. State v. Olson, 2002 MT 211, ¶ 20, 311 Mont. 270,

¶ 20, 55 P.3d 935, ¶ 20. The prosecution carries the burden of establishing that consent

to a warrantless search was freely and voluntarily given and uncontaminated by any

express or implied duress or coercion. Olson, ¶ 20.

¶37 Jones argues that the fact he did not sign the consent form until after the State

already seized the coat automatically renders the consent invalid. Jones cites Olson in

support of this argument. In Olson, officers entered the kitchen of Kathy Olson (Olson),

and arrested her pursuant to a lawful arrest warrant. Olson, ¶ 3. An officer conducted a

search of the entire home after the arrest and discovered dangerous drugs and

paraphernalia. Olson, ¶ 5. Olson, in handcuffs, then provided written consent for

officers to search her home. Olson, ¶ 5. We considered on appeal the district court’s

decision to deny Olson’s motion to suppress the drug evidence. Olson, ¶ 2. We deemed

the search a violation of Olson’s Fourth Amendment rights and stated that “[c]onsent to a

search is not voluntary where it is given only after law enforcement already has

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conducted an illegal search because the consent flows directly from the unlawful

intrusion.” Olson, ¶ 22.

¶38 The parties here dispute the precise timing of when Jones signed the consent form.

Tilleman testified that Jones signed the consent form and relinquished his coat

contemporaneously. Sanders testified that Jones relinquished the coat after signing the

consent form. Testimony that Tilleman provided later comported with Sanders’s

testimony. More importantly, Jones’s signing of a written consent form simply

memorialized the oral consent that Jones provided. The only question would be whether

Jones freely and voluntarily provided his oral consent before the officers seized his coat.

We determined that all of Jones’s statements to the police, including his affirmative

response to Tilleman’s request to take a look at the coat, were given freely and

voluntarily. We conclude that Jones provided his oral consent before the officers took

possession of his coat.

¶39 Thus, even if Jones provided his written consent simultaneously with the officers’

possession of the coat, or even after the officers took possession of the coat, such consent

is valid. In contrast to Olson, the police here did not discover the coat pursuant to an

illegal search. As discussed in ¶¶ 18-33, above, Jones provided all statements voluntarily

and the police operated consistently within the parameters of Jones’s constitutional rights.

As there was no illegal search or evidence acquired, the precise timing of when Jones

signed the written consent form does not affect our conclusion that Jones’s consent for

officers to seize his coat is valid. The State has met its burden of demonstrating that

Jones freely and voluntarily consented to the officers’ seizure of his coat. See Olson, ¶

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20. Whether Jones’s ensuing memorialization of his free and voluntary oral consent took

place before or after the officers took possession of his coat is irrelevant.

¶40 Finally, Jones asserts that his consent to “look at” the coat did not also translate

into consent to seize the coat. The written consent form Jones signed includes language

that grants the Lewistown Police Department permission to “conduct a complete search

of the premises” and “permission to take from [the] premises” anything the police deem

evidence for criminal prosecution. Jones signed the consent form voluntarily. See ¶ 37,

above. Thus, we are not persuaded by this argument in light of the consent form’s plain

language.

CONCLUSION

¶41 The State has met its burden to prove that it did not illegally coerce Jones into

making statements to officers. The State has also proven that Jones provided them with

consent to seize the coat Jones wore on the day of the homicide voluntarily. Affirmed.

/S/ BRIAN MORRIS

We Concur:

/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON

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