State v. McKee

No. 05-199

IN THE SUPREME COURT OF THE STATE OF MONTANA

2006 MT 5

STATE OF MONTANA,

Plaintiff and Respondent,

v.

DANIEL N. McKEE,

Defendant and Appellant.

APPEAL FROM: The District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC 2004-79,
Honorable Douglas G. Harkin, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Michael J. Sherwood, Michael J. Sherwood P.C., Missoula, Montana

For Respondent:

Honorable Mike McGrath, Attorney General; John Paulson,
Assistant Attorney General, Helena, Montana

Fred Van Valkenburg, County Attorney; Suzy Boylan-Moore,
Deputy County Attorney, Missoula, Montana

Submitted on Briefs: November 9, 2005
Decided: January 10, 2006

Filed:

__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1 On February 22, 2005, subsequent to a plea of guilty, the District Court sentenced

sixteen-year-old Danny McKee to ten years with the Department of Corrections, with five

years suspended, on three counts of Assault with a Weapon, a felony, as specified in § 45-5-

213, MCA. The convictions are to run concurrently. McKee appeals from the court’s

judgment. We affirm in part and reverse in part.

¶2 We restate the issues as follows:

¶3 1. Did the District Court err when it denied McKee’s motion to dismiss the

information?

¶4 2. Did the District Court err when it denied McKee’s motion to suppress admissions

he made prior to the time law enforcement contacted his parents?

¶5 3. Did the District Court err when it denied McKee’s motion to suppress his

admission made at the scene of the investigatory stop?

BACKGROUND

¶6 On the evening of February 4, 2004, officers responded to a report that a female

bicyclist had been hit in the head by a blunt object as she rode home on River Road in

Missoula, Montana. The victim explained that she had been riding her bicycle home from

work when a car approached from behind and the passenger in the front seat struck her head

with what she described as a shovel or a bat, knocking her to the ground. The victim, who

was wearing a helmet, suffered a concussion. The victim told the police that she did not see

who did it, but knew the assailants were in a blue car.

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¶7 Shortly thereafter, law enforcement received a report of a male bicyclist who had

been riding in an alley north of Eighth Street when a blue car pulled up slowly behind him.

He felt a blunt object, which he believed might be a bat, narrowly miss striking him, just

grazing the hat on his head. The victim saw the person who struck him hanging out the

passenger car window. The victim also reported that had the bat not narrowly missed hitting

him, he could have been seriously injured.

¶8 A third victim called the police that same day, reporting that he had been threatened

by two juveniles at the Holiday Store at Russell and Third Streets. He reported that two

males had asked him to buy them beer, to which he responded in the negative. The man went

inside to tell the store staff, and as he exited, the two juveniles were sitting in a blue car; the

passenger told him, “You’re a dead man.” A few minutes later the youths came up behind

the man in their vehicle and the passenger swung a bat at him several times. The victim had

to repeatedly dodge the bat to keep from getting hit.

¶9 Officer Ken Guy responded to the area and located a vehicle matching the

description, with two males inside. Noting an inoperative rear tail light, Officer Guy turned

his patrol car around to stop the car, at which point the vehicle sped off. Officer Guy

followed the car for several blocks and because of snow tracks was able to locate where it

had been driven into an alley, over a curb, and into a yard. Officer Guy arrived just as two

males exited a blue Ford Tempo; he ordered the juveniles to stop and stand facing the side of

a nearby garage while he called for backup. The assailants identified themselves as Jacob

Elam and defendant, Daniel McKee, fifteen and sixteen-years-old, respectively.

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¶10 At the evidentiary hearing, Officer Hoffman testified that upon arriving at the scene,

he approached McKee and directed him to walk with him a distance from Elam and asked

him what they had been doing that night. In talking with McKee, Officer Hoffman stated

that a woman had reportedly been hit by a baseball bat or some blunt instrument and knocked

off her bike by two males in a blue car. Officer Hoffman further advised McKee that he,

Elam and their vehicle matched the reported description. McKee responded by stating: “I

only hit one of them.” Officer Hoffman inquired as to whether McKee’s response meant that

Elam had hit others, to which McKee did not respond. At the evidentiary hearing, Officer

Hoffman conceded that he used McKee’s admissions to obtain information from Elam.

Throughout this interaction, officers never advised McKee of his Miranda rights.

¶11 McKee and Elam were placed under arrest and transported to Missoula City Police

Department for further questioning. Officers took no steps to contact McKee’s parents; nor

did they inform McKee of his right to have officers notify his parents of his whereabouts. An

officer on duty that evening later testified that law enforcement had no obligation to call

McKee’s parents, nor did it have to obtain a waiver from McKee with regard to contacting

his mother and father.

¶12 Around midnight, two officers took McKee into a room, obtained a waiver of his

Miranda rights, and interrogated him for approximately an hour and a half. The officers

successfully obtained McKee’s admissions that he had struck a woman with a small wooden

bat while holding it out the window of a moving vehicle driven by Elam. McKee also

admitted that he had tried to strike two other males in a similar fashion. At approximately

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1:30 a.m. police contacted McKee’s father, who subsequently called his ex-wife to inform

her that their son was in police custody. Based upon McKee’s admissions and those made by

Elam, the police further detained McKee, transferring him to Missoula County Detention

Center. The next day McKee was transported to Missoula County District Court where the

court signed a detention order.

¶13 The prosecution filed an affidavit and motion to charge McKee as an adult by way

of information with three counts of felony assault with a weapon. McKee did not receive a

hearing regarding whether he should be transferred to Youth Court prior to the filing of the

information; instead, the court provided McKee with a hearing eight days after the State

charged him as an adult.

¶14 McKee filed consolidated pretrial motions which included: (1) a pre-trial motion

pursuant to § 46-13-101, MCA, to dismiss the information charging McKee as an adult

without first filing in Youth Court and conducting a transfer hearing; (2) a motion to suppress

any statements made by McKee after the stop and any evidence that was a product of those

statements; and (3) a motion to suppress McKee’s statements obtained by officers at the

police station without notifying his parents. After the evidentiary hearing, the District Court

denied all three of McKee’s pre-trial motions.

¶15 McKee subsequently entered a conditional plea agreement which allowed him to

appeal all adverse pre-trial rulings by the court. He then pled guilty to all three counts of

felony assault. The District Court sentenced McKee as an adult to ten years with the

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Department of Corrections, with five years suspended on each count to run concurrently.

McKee appeals the court’s adverse pre-trial rulings.

STANDARD OF REVIEW

¶16 “The grant or denial of a motion to dismiss in a criminal case is a question of law

which we review de novo on appeal. Our standard of review is plenary, and we determine

whether a district court’s conclusion is correct.” State v. Mallak, 2005 MT 49, ¶ 13, 326

Mont. 165, ¶ 13, 109 P.3d 209, ¶ 13 (citation omitted).

¶17 We review a district court’s denial of a motion to suppress evidence by determining

whether the district court’s findings of fact are clearly erroneous and whether those findings

were correctly applied as a matter of law. State v. McCollom, 2005 MT 61, ¶ 7, 326 Mont.

251, ¶ 7, 109 P.3d 215, ¶ 7.

DISCUSSION

Issue 1

Did the District Court properly deny McKee’s motion to dismiss the information?

¶18 McKee argues that before the prosecution filed the information, he was entitled to a

hearing to determine whether it was appropriate to prosecute him in district court rather than

in youth court. To support his argument, McKee cites State v. Butler, 1999 MT 70, ¶ 32, 294

Mont. 17, ¶ 32, 977 P.2d 1000, ¶ 32, in which this Court held “that the District Court violated

Butler’s right to due process as guaranteed by the Fourteenth Amendment to the United

States Constitution when it allowed the prosecution to file an information in District Court

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pursuant to § 41-5-206, MCA (1997), without first affording Butler a hearing.” (Emphasis

added.)

¶19 Importantly, at the time we decided Butler, the provisions of § 41-5-206, MCA,

differed from today’s version in that the statute did not include any transfer hearing

requirement. Because we determined that the decision to prosecute a youth in district court

rather than youth court could mean the difference between detaining a minor defendant until

age twenty-five or losing his life, we concluded that a decision to transfer a youth to district

court “is critically important” warranting a hearing. Butler, ¶ 26.

¶20 Subsequent to Butler, the Legislature amended § 41-5-206, MCA, to provide in

subsection (3) that “[w]ithin 30 days after leave to file the information is granted, the district

court shall conduct a hearing to determine whether the matter must be transferred back to the

youth court, unless the hearing is waived by the youth or the youth’s counsel in writing or on

the record.” While this provision contradicts Butler insofar as it permits a hearing to be held

within thirty days after the information is filed, rather than prior to a filing, we conclude that

the statute satisfies the concern we addressed in Butler that due process requires the court to

afford a youth “the opportunity with the assistance of counsel to challenge the prosecution’s

allegations that there was probable cause or that the seriousness of the crime or the interests

of the community protection require[] an information to be filed in District Court.” Butler,

¶ 27. To the extent that Butler requires a hearing before filing in district court, it is

overruled.

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¶21 Because we hold that § 41-5-206(3), MCA, of Montana’s Youth Court Act satisfies

due process requirements and the District Court complied with this statute by providing

McKee, represented by counsel, a full opportunity to present evidence and argument

concerning the appropriate forum for the prosecution of his case, we conclude that the

District Court did not commit error when it denied McKee’s motion to dismiss the

information.

Issue 2

Did the District Court err when it denied McKee’s motion to suppress admissions he made

prior to the time law enforcement contacted his parents?

¶22 “Under the Montana Youth Court Act, a youth taken into custody for questioning

upon a matter that could result in allegations that the youth is delinquent must be advised of

his right against self-incrimination and his right to counsel, and the youth’s parents must be

immediately notified by the investigating officer.” In the Matter of C.T.P., 2004 MT 63,

¶ 24, 320 Mont. 279, ¶ 24, 87 P.3d 399, ¶ 24. Section 41-5-331, MCA, states the following:

41-5-331. Rights of youth taken into custody—questioning—waiver
of rights. (1) When a youth is taken into custody for questioning upon a matter
that could result in a petition alleging that the youth is either a delinquent
youth or a youth in need of intervention, the following requirements must be
met:
(a) The youth must be advised of the youth’s right against self-
incrimination and the youth’s right to counsel.
(b) The investigating officer, probation officer, or person assigned to
give notice shall immediately notify the parents, guardian, or legal custodian of
the youth that the youth has been taken into custody, the reasons for taking the
youth into custody, and where the youth is being held. . . .
(2) A youth may waive the rights listed in subsection (1) under the
following situations:

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 (a) when the youth is 16 years of age or older, the youth may make an
effective waiver[.]

¶23 McKee argues that when law enforcement took him into custody, it should have,

pursuant to § 41-5-331(1)(b), MCA, immediately notified his parents or, pursuant to

subsection (2)(a), advised him that he could waive the right to parental notification. Because

the officers failed to do so, McKee contends that the admissions he made in the three and a

half hours prior to the time his parents were notified should have been suppressed by the

District Court. The court denied McKee’s motion to suppress because it interpreted § 41-5-

331, MCA, as providing the parents, not the youth, with the right to notification—“the parent

notification is not a right that is personal to the youth that requires a waiver.”

¶24 The State argues that the District Court correctly interpreted § 41-5-331, MCA,

when it denied McKee’s motion to suppress. While conceding that subsection (1)(b) of the

statute mandates that law enforcement “shall immediately notify the parents” of a youth

taken into custody, as well as the reasons for the custody and where the youth is being held,

the State argues that this “right” belongs to the parents. The State therefore argues that it was

not required to obtain a waiver of parental notification from McKee before the police

questioned him. We disagree.

¶25 We interpret § 41-5-331, MCA, as operating in accordance with its title—that is, it

protects the “[r]ights of youth taken into custody.” Interpreted as a whole, subsection (1)

ensures that a youth taken into custody understands his rights; subsection (1)(a) mandates

that law enforcement must advise a youth of his right against self-incrimination and his right

to counsel, while subsection (1)(b) states that law enforcement “shall immediately notify the
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parents, guardian, or legal custodian . . . .” These subsections compliment each other, in that

the latter allows parents the opportunity to assist their child in deciding whether to waive his

or her rights or alternatively, obtain counsel.

¶26 Moreover, we read the right of parental notification as belonging to the youth, not to

the parents. The plain language of subsection (2)(a) states that “[a] youth may waive the

rights listed in subsection (1) . . . when the youth is 16 years of age or older . . . .”

Consequently, the right to parental notification belonged to McKee, not his parents. While

McKee signed a written waiver of his right against self-incrimination and his right to counsel,

he did not waive his right to parental notification. We therefore conclude that the District

Court should have suppressed the statements provided to law enforcement before McKee’s

parents were notified.

Issue 3

Did the District Court properly deny McKee’s motion to suppress his admission made at the

scene of the investigatory stop?

¶27 “The Fifth Amendment to the United States Constitution and Article II, Section 25,

of the Montana Constitution provide that no person shall be compelled, in any criminal case,

to be a witness against himself.” State v. Olson, 2003 MT 61, ¶ 13, 314 Mont. 402, ¶ 13, 66

P.3d 297, ¶ 13. In Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694,

the Supreme Court “held that the prosecution may not use statements that stem from a

custodial interrogation of a defendant unless the defendant is warned, prior to questioning,

that he has a right to remain silent, that any statement he does make may be used as evidence

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against him, and that he has a right to the presence of an attorney.” Olson, ¶ 13 (citing

Miranda, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706).

¶28 McKee argues that his Fifth Amendment and state constitutional rights were violated

when law enforcement inquired as to “what they had been doing,” while McKee, at the

direction of the officers, stood with his hands on the wall, facing the side of a nearby garage.

We have previously held that “[a] person is entitled to Miranda warnings only if he or she is

subject to a custodial interrogation.” Olson, ¶ 14 (citing State v. Elison, 2000 MT 288, ¶ 27,

302 Mont. 228, ¶ 27, 14 P.3d 456, ¶ 27). A custodial interrogation occurs when there is a

significant restriction of personal liberty similar to an arrest—in other words, “if a person has

no free right to leave, then the interrogation is custodial.” Olson, ¶ 15 (citations omitted).

This Court examines the following six factors in determining whether or not a custodial

interrogation has occurred: (1) place of the interrogation; (2) time of the interrogation; (3)

persons present during the interrogation; (4) whether Miranda warnings were gratuitously

given; (5) the length and mood of the interrogation; and (6) whether or not the suspect was

arrested following the interrogation. Olson, ¶ 15 (citation omitted).

¶29 In Olson, police officers stopped the defendant’s vehicle and removed her from the

car. An officer approached Olson and informed her that he knew a meth lab had been placed

in the trunk of her car. Initially, Olson denied the allegation, but after the officer spoke to her

about the health risks of a meth lab, she admitted that the equipment was located in her

vehicle. Olson, ¶ 8. This Court held that the officer “should have known that his statements

were reasonably likely to elicit an incriminating response from Olson” and “because Olson

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did not receive Miranda warnings before she was interrogated by [the officer], the statements

she made . . . were obtained in violation of her Fifth Amendment right against self-

incrimination, and must be suppressed.” Olson, ¶ 20.

¶30 In this case, Officer Guy stopped McKee and Elam as they exited their vehicle and

directed them to face a garage with their arms and hands on the wall. According to Officer

Guy’s own admission, at this point the young men were not free to go. When Officer

Hoffman arrived at the scene, he directed McKee to walk with him and then elicited

incriminating statements from McKee by telling him that he and Elam matched a woman’s

description of assailants who hit her on the head with a blunt instrument while she was riding

her bike. When the prosecution asked Officer Hoffman at the suppression hearing why he

asked McKee to walk away with him, Officer Hoffman testified as follows:

[Officer]: Well, we wanted to keep them separate. A lot of times, just their
general eye contact with each other, verbal contact, can change their stories or
fabricate a story, so we like to separate potential victims – witnesses or – or
suspects.

[Prosecutor]: Okay. And did you have a conversation with him then?

[Officer] Yes.

[Prosecutor]: Okay. Tell us about that.

....

[Officer]: Walked him away. I made him [stand] with his back towards the
other subject. I could keep my visual on both of them at that time. And I
asked what they had been doing.

¶31 We noted in Olson that an “‘interrogation’ in the context of the Fifth Amendment

and Article II, Section 25, of the Montana Constitution, refers not only to express
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questioning, but also to any words or actions on the part of the police (other than those

normally attendant to arrest and custody) that the police should know are reasonably likely to

elicit an incriminating response from the suspect.” Olson, ¶ 18 (citations and quotations

omitted). In analyzing whether an officer’s words “are reasonably likely to elicit an

incriminating response,” we focus on the perception of the suspect, not the intent of the

officer. Olson, ¶ 18.

¶32 At the time Officer Hoffman directed McKee to walk with him in order to elicit a

statement, three armed, badged and uniformed police officers were present at the scene.

McKee did not feel free to leave, nor was he. Moreover, Officer Hoffman’s testimony

illustrates that when he approached McKee the “mood of the investigation” was one which

focused on the clear potential that McKee was a suspect and which prompted an

incriminating statement from him. After police identified McKee as matching the physical

description of the suspects, he was separated by police in order to isolate him from Elam and

impede his ability to “fabricate a story.” Then, McKee was asked an open-ended question

about his activities that night. Finally, he was advised that police were investigating reports

of physical assaults. This evidence demonstrates that the officers intended to obtain a

statement from McKee about McKee’s involvement in the assaults under investigation. As

such, a Miranda warning was required.

¶33 Given the circumstances surrounding law enforcement’s questioning of McKee prior

to his arrest and in the absence of Miranda warnings, we conclude that an illegal custodial

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interrogation took place. Consequently, the District Court should have suppressed McKee’s

admissions.

CONCLUSION

¶34 We conclude that the District Court did not commit error when it conducted a

transfer hearing eight days after the filing of the information, rather than before. However,

we conclude that the District Court erred when it failed to suppress the statements McKee

provided to law enforcement before his parents were notified and without a waiver of such

notification, as well as the evidence obtained by officers prior to McKee’s arrest and without

Miranda warnings. We affirm in part, reverse in part, and remand for further proceedings

consistent with this decision.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ PATRICIA O. COTTER
/S/ JIM RICE
/S/ JAMES C. NELSON

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