Black v. State

GOLDEN, Justice,

dissenting, with whom THOMAS, Justice, joins.

I disagree with this court’s holding. A two-hour police interrogation in her husband’s presence of a seven-months pregnant woman, whom the police had already identified as the principal suspect and who was at times upset and crying because of concern for being charged with a serious crime during her pregnancy, did not constitute coercion, rendering involuntary her in-culpatory statements to police. Therefore, I respectfully dissent.

Several aspects of the majority’s opinion trouble me. One is the majority’s unexplained and total disregard for the trial court’s findings of historical fact which frame the voluntariness issue. The trial court conducted a Jackson-Denno hearing1 before trial at which four witnesses testified, the three police officers who were present during the interrogation and Mrs. Black’s husband who was present with her at all times during the questioning. Mrs. Black chose not to testify. After hearing the testimony about the facts and circumstances surrounding the interrogation and the personal characteristics of Mrs. Black, the trial court had no difficulty determining that Mrs. Black’s inculpatory statements to police were not the product of coercion. Those facts and circumstances and personal characteristics are laid on the record. Under our appellate standards of review, we are bound to view them in the light most favorable to the state as the prevailing party.2 The majority has violated that appellate standard.

Another aspect of the majority’s opinion that troubles me is the majority’s failure to examine in fact the totality of the circumstances attending the interrogation. Indeed, without citation to any supporting legal authority, the majority identifies as a major factor in its ratio decidendi the police officers’ pre-interrogation focus on Mrs. Black as a prime suspect. That the police focused on her or “had the case made” against her before they initiated questioning is of no significance under the voluntariness jurisprudence I have studied.3

Equally troubling for me is the majority’s abject failure to link Mrs. Black’s emotional state (periodically upset and crying)4 to anything the police said or did during the questioning. As explained in Colorado v. Connelly, 479 U.S. 157, 165, 107 S.Ct. 515, 520-21, 93 L.Ed.2d 473, 483 (1986), a court looks for “the essential link between coercive activity of the State, on the one hand, and a resulting confession by a defendant, on the other.” Justice Frankfurter expressed the concept in this way:

Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to *976confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.

Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037, 1057-58 (1961).

A disinterested, objective examination of the totality of the circumstances, including Mrs. Black’s personal characteristics, readily and with unmistakable clarity shows that the police did not by word or deed coerce Mrs. Black to answer their questions and make her statements. At the outset of this examination, let us state that which is not involved here. The police used no lash, no rack on Mrs. Black. She makes no allegations of physical coercion. Unlike what the police did to Martin Frias, as reported in Frias v. State, 722 P.2d 135, 143 (Wyo.1986),5 the police here did not confront Mrs. Black with “a barrage of accusations and threats”; they did not repeatedly accuse her of lying; and they did not threaten her with the loss of her children and incarceration in the women’s prison unless she changed her story. Unlike Frias, the police here did not tell appellant they had evidence which they really did not have. Mrs. Black makes no allegation that any policeman ever even raised his voice against her. To the contrary, the undisputed evidence is that the policemen genuinely comforted Mrs. Black and told her that charges against her would likely be filed only after she had delivered her child. And, that was truly what happened.

Tellingly, the majority ignores examining the only allegation made by Mrs. Black in support of her effort to suppress her incul-patory statements, namely, that the police told both Mr. and Mrs. Black that it would probably go easier for them to cooperate because the police would report that cooperation to the prosecuting attorney. The trial court made appropriate short-shrift of that allegation, as would I, since under the withering fire of nearly every case, state or federal, on the point such a statement by police has been universally declared innocuous and constitutionally acceptable.6

My examination of the record, including the transcript of the Jackson-Denno hearing, reveals the following undisputed historical facts that we, as an appellate court, must accept as true:

1. When questioning Mr. Black the night before the day on which Mrs. Black was questioned, the police asked, and did not order, him if he would return the next morning and bring his wife.
2. Mr. and Mrs. Black voluntarily came to the police station around 9:00 a.m. the next day.
3. Mrs. Black was about seven months pregnant; was the mother of two young children; helped her husband run a tree and lawn care business in which she was the bookkeeper; had graduated from high school; was in her early thirties; and had no known physical or mental impairments.
4. Mr. Black remained with Mrs. Black at all times.
5. The police told them they did not have to answer any questions if they did not want to.
6. The police told them they were not under arrest and could leave at any time.
7. The police and the Blacks were seated in a meeting or debriefing room with windows, carpet on the floor, a table and a telephone.
8. The questioning was of about two hours duration.
*9779. The Blacks were cooperative and spoke freely, never indicating they did not want to answer a question asked.
10. At times during the questioning, Mrs. Black cried, but she was not crying the entire time.
11. When the questioning was concluded, the Blacks left the police station the way they had arrived, in their own car without police involvement.

There is no evidence here that Mrs. Black’s free will was overborne by the police questioning. In sum, I agree with the trial court that Mrs. Black’s answers and statements were freely given. In this regard, I recall the words of Justice Guthrie writing for the court in Lonquest v. State, 495 P.2d 575, 580 (Wyo.1972): “This may have been the result of compulsions but ones that originated within this defendant and not from any outside source.”

Finally, I am troubled by the total absence of state constitutional analysis in a majority opinion expressly driven by the due process clause of the Wyoming Constitution.7 The majority boldly declares that the police in their questioning of Mrs. Black crossed the line drawn by that due process clause. Declaring it is one thing, demonstrating it, quite another. The majority fails to demonstrate coercive interrogation of Mrs. Black by the police.

The majority declares8 the cherished principle of federalism that a state constitutional provision may be more protective of citizens’ rights than its counterpart in the Federal charter. Declaring that our state’s due process clause is more protective of Mrs. Black’s rights against police questioning than the due process clause of the United States Constitution is one thing. Demonstrating it, quite another. The majority fails to demonstrate why the state’s due process clause is more protective than its federal counterpart. Saying it is so, does not make it so. It must be proved by appropriate jurisprudential technique, both principled and analytic in nature. In most instances, if not all, state constitutional analysis is an arduous undertaking. Here, regrettably, the majority has not even broken a sweat. The majority employs the “it-is-so-because-I-say-it-is-so” analytical technique. That is not appropriately principled analytic jurisprudence; that is only the unattractive exercise of raw power.

. Ramos v. State, 806 P.2d 822, 829 (Wyo.1991).

. This court has said "the prosecution must convince the trial court at least by a preponderance of evidence that the confession was voluntary.” Dodge v. State, 562 P.2d 303, 308 (Wyo.1977). See also United States v. Chalan, 812 F.2d 1302, 1307-08 (10th Cir.1987).

. See, e.g., United States v. Leach, 749 F.2d 592, 599-600 (10th Cir.1984).

. Mere emotionalism and confusion do not necessarily invalidate a statement or confession. Corn v. Zant, 708 F.2d 549, 567 (11th Cir.1983) (citing Sullivan v. Alabama, 666 F.2d 478, 483 (11th Cir.1982)).

. Contrary to the majority’s statement in footnote 5, this court in Frias did not rule that Frias’ statements were the product of police coercion and, thus, were not made voluntarily. Rather, this court held that his statements were inadmissible because the trial court failed to expressly find that his statements were voluntary. Frias, 722 P.2d at 143.

. See, e.g., United States v. Leon Guerrero, 847 F.2d 1363, 1366-67 (9th Cir.1988) and cases cited therein; Hawkins v. Lynaugh, 844 F.2d 1132, 1139-41 (5th Cir.1988); United States v. Pelton, 835 F.2d 1067, 1072-73 (4th Cir.1987) and cases cited therein; United States v. Guamo, 819 F.2d 28, 31 (2nd Cir.1987); Beasley v. United States, 512 A.2d 1007, 1015-16 (D.C.App.1986); State v. Robertson, 219 Neb. 782, 366 N.W.2d 429, 433 (1985) and cases cited therein.

. "No person shall be deprived of life, liberty or property without due process.” Wyo. Const, art. 1, § 6.

. See majority at-.