State v. Cassell

NO. 95-567
IN THE SUPREME COURT OF THE.STATE OF MONTANA
1996

STATE OF MONTANA,
Plaintiff and Respondent,
v.
WALTER CASSELL,
Defendant and Appellant,

APPEAL FROM: District Court of the Thirteenth Judicial District,
1n and for the County of Yellowstone,
The Honorable Maurice R. Colberg, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William F. Hooks, Appellate Defender, Helena,
Montana
For Respondent:

Joseph P. Mazurek, Attorney General, Patricia J.
Jordan, Assistant Attorney General, Helena, Montana;
Dennis Paxinos Yellowstone County Attorney,
Billings, Montana

Submitted on Briefs: July 25, 1996

Decided: December 30, 1996
Filed:

Clerk r:
Justice James C. Nelson delivered the Opinion of the Court.

Following a plea of guilty in the District Court of the
Thirteenth Judicial District, Yellowstone County, defendant Walter

Cassell was convicted of deliberate homicide. Cassell appeals the

District Court's denial of his motion to suppress his confession.

We affirm.

We address the following issue on appeal:

Did the District Court err in denying Cassell's motion to

suppress his confession?

Factual and Procedural Background

On the morning of November 19, 1994, the Laurel Police

Department and the Yellowstone County Sheriff's Department were

notified that a body had been found in a dumpster behind the 500

block of Birch Avenue in Laurel. The investigation revealed that

the victim, John Formo, had been drinking with Cassell and several
other individuals the previous night at a house located at 506

Birch Avenue when an argument and fight ensued. Forma was stabbed

16 times and severely beaten. His body was then dragged from the

house and placed in the dumpster.

The police detained Cassell for questioning along with the

other individuals who were inside the house. Cassell was

transported to the Laurel Police Department where he was subjected

to three custodial interrogations. Cassell incriminated himself in

the second and third interrogations.
On November 25, 1994, Cassell was charged by information with

the offense of deliberate homicide, a felony. He entered a plea of

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not guilty and counsel was appointed to represent him. On July 20,
1995, defense counsel filed a motion to suppress the statements
made by Cassell during the interrogations on the grounds that

Cassell's right against self-incrimination under the Fifth
Amendment of the United States Constitution and Article II, Section

25 of the Montana Constitution had been violated. A hearing on
Cassell's motion was held on August 25, 1995. Four days later, the
District Court entered written findings of fact and conclusions of

law denying Cassell's motion.

On August 30, 1995, Cassell executed an Acknowledgment of
Waiver of Rights and entered a plea of guilty to the offense as

charged. Cassell specifically reserved his right to appeal the

denial of his motion to suppress his confession and to withdraw his
guilty plea if he prevails in the appellate courts. On November 2,

1995, the District Court sentenced Cassell to 100 years in Montana

State Prison on the offense of deliberate homicide with an

additional 10 years for the use of a weapon. The sentences are to

run consecutively.

Discussion

Did the District Court err in denying Cassell's motion to

suppress his confession?

In his motion to suppress, Cassell asserted that he was not

advised of his rights as mandated by Miranda v. Arizona (1966), 384

U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Cassell also contended

that he did not waive his constitutional right against self-

incrimination, that he was intoxicated at the time he made the

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statements and that he was intimidated into making the statements.
After hearing testimony from the law enforcement officers who
conducted the interrogations as well as Cassell, the District Court

determined that Cassell was advised of his Miranda rights prior to

his statements and that his constitutional rights were not violated
in that respect. Moreover, the court determined that Cassell's

statements were voluntary and were not coerced or taken at a time

when he was impaired by intoxication to such a degree that would

have precluded him from understanding his rights.

The standard of review of a district court's denial of a

motion to suppress is whether the court's findings of fact are
clearly erroneous, and whether those findings were correctly

applied as a matter of law. State v. Williams (1995), 273 Mont.
459, 462, 904 P.2d 1019, 1021 (citing State v. Flack (1993), 260

Mont. 181, 188, 860 P.2d 89, 92). A finding of fact is clearly
erroneous if it is not supported by substantial evidence, if the

district court misapprehended the effect of the evidence, or if

this Court has a definite and firm conviction that the district

court made a mistake. State v. Lob (1996), 275 Mont. 460, 475, 914

P.2d 592, 601 (citing State v. Hermes (1995), 273 Mont. 446, 449,

904 P.2d 587, 589).

The Fifth Amendment to the United States Constitution

guarantees that no person "shall be compelled in any criminal case

to be a witness against himself. ." Similarly, Article II,

Section 25 of the Montana Constitution provides that ' Inlo person
shall be compelled to testify against himself in a criminal

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proceeding." In Miranda, the United States Supreme Court stated
that the privilege against self-incrimination is fulfilled "only
when the person is guaranteed the right 'to remain silent unless he

chooses to speak in the unfettered exercise of his own will."~

Miranda, 384 U.S. at 460, 86 S.Ct. at 1620, 16 L.Ed.2d at 715
(citing Malloy v. Hogan (1964), 378 U.S. 1, 8, 84 S.Ct. 1489, 1493,

12 L.Ed.2d 653, 659).

An individual may waive his Fifth Amendment rights only if the

waiver has been made voluntarily, knowingly and intelligently.
Miranda, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 707. See
also State v. Allies (1979), 186 Mont. 99, 109, 606 P.2d 1043,

1049. The voluntariness of a confession is largely a factual

question to be determined by taking into account the totality of

the circumstances under which the confession was made. Loh, 914
P.2d at 601 (citing State v. Mayes (1992), 251 Mont. 358, 376, 825

P.2d 1196, 1208). The totality of the circumstances includes

several factors: the defendant's age and level of education; the

interrogation technique used by the police; whether the defendant

was advised of his or her Miranda rights; the defendant's prior

experience with the criminal justice system and police

interrogation; the defendant's background and experience; and the

defendant's demeanor, coherence, articulateness, and capacity to

make full use of his or her faculties. m, 914 P.2d at 601-02.

We also stated in Lob that

a confession or admission extracted by any sort of threat
or violence, by the exertion of any improper influence,
or by any direct or implied promises, however slight, has
the potential for being involuntary.
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L&I, 914 P.2d at 602 (citing State v. Phelps (19851, 215 Mont. 217,
224, 696 P.2d 447, 451).
Section 46-13-301(l), MCA, authorizes a motion to suppress any

confession or admission given by a defendant on the basis that the

statement was involuntary. Furthermore, at a hearing concerning
the merits of a motion to suppress, 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.

The State concedes that Cassell was in custody at the time of
the interrogations and that the officers had a duty to inform

Cassell of his Miranda rights. Cassell was first interrogated at

12:40 pm on November 19, 1994, only one or two hours after he had

been taken into custody. Detective George Jensen and Undersheriff

Jay Bell conducted the interrogation. At the hearing on his motion

to suppress, Cassell testified that he was not advised of his

Miranda rights during this interview. However, both Jensen and

Bell testified that Jensen informed Cassell of his Miranda rights

by reading the advisement of rights from a card Jensen had in his

possession. The officers also testified that they informed Cassell

that they were conducting a criminal investigation. They obtained

the correct spelling and pronunciation of Cassell's name and asked

him if he had any questions about his rights and whether he would

like to have an attorney present.

Jensen and Bell testified that Cassell indicated he understood

his rights and was willing to talk. Jensen testified that he

obtained Cassell's permission to tape-record the remainder of the

6
interview. Jensen did not have Cassell acknowledge on tape that he
had been informed of his rights before Jensen conducted the 5-

minute question and answer session. At the conclusion of this
interview, Cassell was taken out and placed in a holding area.

Jensen testified that he did not have Cassell sign a written waiver

of rights as it was not common practice in Yellowstone County to do

so.

Cassell was brought back into the interrogation room at 2:48

pm that same day. Jensen and Bell were again present. Jensen

testified that he asked Cassell if he would like his rights read to

him again, but Cassell stated that he understood what his rights

were. Jensen informed Cassell that his statement was not

consistent with what the other individuals present at the time of
the murder had told them. After 5 or 10 minutes of conversation,

Cassell gave permission to again be recorded.

Cassell testified that during this second interview, the

officers told him that Montana had a death penalty and if Cassell

cooperated they would see if they could get him 110 years rather

than hanging. Jensen testified that one of the people he

interviewed that day, possibly Cassell, had asked him if Montana

was a death penalty state and he responded that it was but that

application of the death penalty would be determined by others.

After the tape recorder was turned on, Jensen conducted a 3-

minute question and answer session with Cassell. However, Jensen

did not affirm on the tape that Cassell had been advised of his

rights. It was in this second interview that Cassell incriminated
himself.

At noon the following day, Jensen and Officer Rosenberg of the
Laurel Police Department interviewed Cassell. Jensen testified
that he again advised Cassell of his Miranda rights by reading the

warnings from a card prior to the interview. Jensen testified that
Cassell objected to having his statement recorded this time but

that Cassell did go over his previous statement. Cassell later
claimed that he denied the officers' request for another interview,

hence there was no third interview.

Cassell contends on appeal that the District Court erred in
denying his motion to suppress because the State failed to prove by

a preponderance of the evidence: that the officers properly advised

him of his Miranda rights; that the officers obtained a knowing,

intelligent and voluntary waiver of his constitutional right

against self-incrimination; or that he voluntarily gave any
statement.

Cassell relies on State v. Grey (1995), 274 Mont. 206, 907

P.2d 951, for the proposition that laid enforcement officers must

record a defendant's waiver of his rights. Cassell contends that

the State's failure of proof is "most evident in its willful

refusal to record or otherwise preserve some record of the alleged

advisement of the Miranda warnings. . . .'I

Frey is factually distinguishable from the instant case. In

Grey, the Miranda warnings were inadequately given. Moreover, the
law enforcement officers used impermissible tactics, including

lying and deception, to obtain Grey's confession. Additionally,
there was no clear evidence that Grey waived his rights. Here,
while the giving of the warnings and the waiver were not tangibly
recorded, the trial court observed the witnesses and found that the

warnings were adequately given and waived and that no impermissible

tactics were used.

Law enforcement officers should be encouraged to preserve a

tangible record of advising defendants of their rights and a
defendant's waiver of those rights. To the extent that they do
not, that failure will be viewed with distrust. We declined in
Grey, however, to require that interviews be tape recorded. How
the record is preserved is still up to the law enforcement
officers. Grey did not set out a. rule of exclusion, but a
guideline for weighing evidence. Here the law enforcement officers
established to the court's satisfaction that the Miranda warnings

were properly given and that no impermissible tactics were used and
that under the totality of the circumstances the confessions were

voluntary. That is all that is required. The fact that the

warnings and waiver were not preserved tangibly, even if viewed

with distrust, does not terminate the inquiry, if the court is

satisfied from all the available evidence, that the State's burden

of proof was met.

Based on the totality of the circumstances, we conclude that
Gassell's statements were made voluntarily and that his waiver of

his Fifth Amendment rights was made knowingly, intelligently and

voluntarily. Cassell was 43 years old at the time of the

interrogations and he had a lengthy police record. Thus, he was

9
familiar with the criminal justice system and police interrogation
methods. None of the three interrogations were overly long and no
threats were made. Moreover, as the District Court pointed out,
the answers given by Cassell to the questions asked of him in the
taped interviews were appropriate to the questions, thereby

refuting Cassell's argument that he was too intoxicated to

understand what was happening.
Accordingly, we hold that the District Court did not err in
denying Cassell's motion to suppress his confession.
Affirmed.

We Concur:

Justices

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Justice Terry N. Trieweiler specially concurring.
I concur with the result of the majority opinion for two

reasons. First, the interrogation of Walter Cassell was done prior

to the issuance of our decision in Statev.Grey (1995), 274 Mont. 206,

907 P.2d 951. Second, even the Grey decision did not require that

Miranda advice be tape recorded. However, I see no reason why Miranda

warnings and a suspect's consent to interrogation should not be

recorded when the means to so do are readily available, and
therefore, write separately to indicate that, in the future, I

would require either a written waiver of a defendant's right to

remain silent, or a record of the Miranda advice that was given to

that person and his or her response.
In this case, Cassell was interviewed on three separate

occasions. Portions of two interviews were recorded, including his

incriminating statements. However, for some reason, when he was

advised of his rights pursuant to the Fifth Amendment to the United

States Constitution during the first interview, and when he was

reminded of those rights during the second interview, the recorder

had not been turned on. Therefore, there is no record that Cassell

was informed of his rights, and there is no record that he waived

those rights.
The investigating officers contend that Cassell was advised of

his rights and did waive them, but that that part of the

conversation was not recorded because during that time they were

establishing rapport with the suspect. Cassell denies that he was

11
given any warning, and denies that he waived his rights. The trial
court, and this Court on review, are required to speculate about

what actually transpired, based on the relative credibility of the

witnesses to the conversation. It is no secret that law
enforcement will nearly always win that contest. Therefore, they
have no incentive to record that part of the conversation, and it

follows, they have little incentive to actually give the required

advice.

On the other hand, assuming the advice was given, that it was

understood, and that the rights were waived, why not record the

conversation and avoid the inevitable challenge to the admission or

confession? That simple practice would have saved time for the

prosecuting attorney, the defense attorney, the trial court, and

this Court because it would have established with certainty that

Cassell's statement was either voluntary or that it should be

suppressed, in compliance with the Constitution, as applied in
Mrandav. Arizona (1966), 384 U.S. 436.

The majority correctly concludes that when a defendant moves

to suppress a confession or admission on the basis that it was

involuntary, the State has the burden to prove, by a preponderance

of the evidence, that the confession or admission was voluntary.

Section 46-13-301(2), MCA. The majority then notes that the

voluntariness of a confession is largely a factual question which

must be resolved by taking into account the totality of the

circumstances surrounding the confession, and lists six factors to

be considered. Three of those six factors include: (1) the

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interrogation technique used by the police; (2) whether the
defendant was advised of his or her Miranda rights; and (3) the

defendant's demeanor and capacity to make full use of his or her

faculties. The problem is that, in this case, as in Grey, we have

no direct knowledge of any of those three factors. The trial

court, and this Court, are required to speculate about all three

factors by trying to weigh the relative credibility of the people

involved in the interrogation. Such an unreliable process is

inexcusable when it is unnecessary because a means of absolute

verification was readily available.

1n Grey, we stated that:

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.

Grey , 274 Mont. at 214, 907 P.2d at 956

The excuse given for not recording Cassell's waiver of his

Fifth Amendment rights is equally inadequate. In this case, his

interrogators wanted to establish a rapport with him. However,

that apparently having been accomplished, nothing prevented them

from obtaining an acknowledgment from Cassell, once the recorder

13
had been turned on, that he had been advised of his rights and had

waived them. Certainly, that kind of acknowledgment could not have

been any more disturbing to him than being asked during a tape

recorded interview whether he committed deliberate homicide.

This is now the second case in which we have dealt with the
issue of whether it is necessary to record Miranda warnings and

Fifth Amendment waivers, where feasible. I would conclude, as the

Minnesota Supreme Court did in Statev. Scales (Minn. 1994), 518 N.W.2d

587, that following two such admonitions, further refusal to record
custodial interrogations is unreasonable and should result in

suppression of any incriminating statements made during those

interrogations. In that case, after issuing two previous warnings,

that Court stated that:

[Wle hold that all custodial interrogation including any
information about rights, any waiver of those rights, and
all questioning shall be electronically recorded where
feasible and must be recorded when questioning occurs at
a place of detention. If law enforcement officers fail
to comply with this recording requirement, any statements
the suspect makes in response to the interrogation may be
suppressed at trial. The parameters of the exclusionary
rule applied to evidence of statements obtained in
violation of these requirements must be decided on a
case-by-case basis. Following the approach recommended
by the drafters of the Model Code of Pre-Arraignment
Procedure, suppression will be required of any statements
obtained in violation of the recording requirement if the
violation is deemed "substantial." This determination is
to be made by the trial court after considering all
relevant circumstances bearing on substantiality,
including those set forth in 5 1503(2) and (3) of the
Model Code of Pre-Arraignment Procedure. If the court
finds a violation not to be substantial, it shall set
forth its reason for such finding. The rule and the
remedy will apply prospectively from the date of the
filing of this opinion.

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Scales, 518 N.W.2d at 592-93 (footnote omitted).

When the means is available, as it was in this case, there is

no practical justification for the State's failure to record a

custodial interrogation. By its failure to do so, it jeopardizes

the prosecution by risking suppression of incriminating statements

which have been legally obtained. Just as importantly, it makes
any determination that detainees have been illegally questioned

virtually impossible. Neither outcome is acceptable when the means
to avoid it is readily available.

Therefore, in the future, I will follow the rule from Scales and

vote to suppress all criminal admissions made during custodial

interrogations when there is neither a written waiver of the
detainee's rights, nor an electronic record of the State's advice

and the detainee's response, assuming it is feasible to do one or

the other.

For these reasons, I specially concur with the majority

opinion.

Justice William E. Hunt, Sr., joins in the foregoing concurring
opinion.

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