State v. Connor

FULLER, Judge Pro Tem.,

dissents.

I dissent as to Part II, and concur with Part III of the majority opinion.

Connor’s undisputed testimony showed: he was under orders by the state police to cooperate in any investigation (T. p. 22, Is. 9-10); he was placed on administrative leave and told he was required to meet with the state’s investigator by the state police district commander (T. p. 7, Is. 7-15); Connor’s understanding was that he would be terminated from his employment if he did not submit to investigations (T. p. 8, Is. 3-8).

The Garrity v. New Jersey rule to exclude incriminating statements may be applied where a threat of termination was strongly implied. See United States v. Friedrick, 842 F.2d 382, 395 (D.C.Cir.1988). Connor’s testimony meets the two-pronged test suggested in Friedrich: 1. the defen*550dant must have subjectively believed that he was compelled to give a statement after threat of loss of his job; 2. this belief must have been objectively reasonable at the time the statement was made.

The state ordered Connor to cooperate in any investigation, placed him on administrative leave, and told him he was required to meet with the state’s investigator. Isn’t this evidence sufficient to show Connor’s subjective belief was objectively reasonable? Isn’t the state’s message to Connor abundantly clear?

Connor’s testimony shows his belief was derived from actions taken by the state. State action is a necessary prerequisite to concluding that Connor’s belief was objectively reasonable. See United States v. Camacho, 739 F.Supp. 1504, 1515 (S.D.Fla.1990).

In my view, the trial judge’s finding that Connor had an objectively reasonable belief that his use of the Fifth Amendment would result in loss of his job was based on the totality of the circumstances, and was not clearly erroneous. The proper standard of review is to defer to the trial judge’s findings of fact unless they are clearly erroneous. State v. Rusho, 110 Idaho 556, 559, 716 P.2d 1328, 1331 (Ct.App.1986); State v. Davis, 115 Idaho 462, 464, 767 P.2d 837, 839 (Ct.App.1989).

In my view, the trial judge, as finder of fact, did properly find from the undisputed evidence that Connor had an objectively reasonable belief. The trial judge’s finding was supported by substantial evidence and should be affirmed. See State v. Aitken, 121 Idaho 783, 784, 828 P.2d 346, 347 (Ct.App.1992).

The trial judge did not make any specific findings about whether the state met its burden of proof to show Connor’s statements to the investigator were voluntary. The state presented no evidence to contradict Connor’s testimony. On remand, this Court should permit the trial judge the opportunity to determine this issue. The state has the burden of proof to show, by a preponderance of the evidence, that Con-nor’s statements were voluntary. See State v. Culbertson, 105 Idaho 128, 130, 666 P.2d 1139, 1141 (1983).

BISTLINE, J., concurs.