State v. Flack

NO. 92-361
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
BRUCE A. FLACK,
Defendant and Appellant.

APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Byron L. Robb, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Bruce E. Becker, Attorney at Law, Livingston,
Montana
For Respondent:
Hon. Marc Racicot, Attorney General; Barbara C.
Harris, Assistant Attorney General, Helena, Montana
Wm. Nels Swandal, Park County Attorney, Livingston,
Montana
Justice Karla M. Gray delivered the Opinion of the Court.

Bruce Flack appeals from an order of the Sixth Judicial
District Court, Park County, denying his motion to suppress
statements made on January 5 and January 8, 1992. We affirm in
part and reverse in part.
On January 5, 1992, Bruce Flack (Flack) and Alan Gustafson
(Gustafson) were taken to the Park County Sheriff's office as
suspects in a robbery. The two were suspected of breaking into the
Bill Eyman residence near Livingston, Montana, and stealing
approximately $265 in cash, credit cards, blank checks, and several
firearms.
Flack was detained at the sheriff's office while Gustafson was
interrogated. After waiting approximately four hours, Flack was
taken into an interrogation room, where Charles Johnson (Johnson),
Park County Sheriff, and Lynn Gillett (Gillett), Captain of the
Livingston City Police, were present. Before the interrogation,
Flack was advised of, and waived, his Miranda rights. During the
taped interrogation, Flack denied any knowledge of the robbery.
After fifty-five minutes of questioning, Johnson arrested Flack for
the robbery pursuant to a valid arrest warrant. At that time,
Flack stated, "I guess I'm going to have to get me a lawyer. You
guys are going to have to prove i .
t'
With that remark, the interrogation formally concluded and the
tape recorder was turned off. Johnson left the room. Gillett
continued to talk with Flack for five to ten minutes, detailing the
information already obtained by the prosecution relating to the
2
robbery. In response, Flack indicated that he had been at the
Eyman residence at the time of the robbery but stated that he had
remained on the road. Flack refused to have the statement
recorded.
On January 6, Flack was brought before a justice of the peace
for his initial appearance. The justice of the peace informed
Flack of the charge and advised him of his rights, including the
right to be represented by an attorney. Bail was set. Flack was
given, and completed, a form requesting court-appointed counsel.
Public Defender Dan Yardley spoke with Flack on January 7, but
determined that his representation of the youth might create a
conflict in representing Flack. ~ifferentcounsel was appointed to
represent Flack on January 15.
Flack remained in jail because he was unable to make bail.
During the morning of January 8, Flack was again questioned by
Gillett. The parties dispute who initiated the interrogation.
Gillett did not readvise Flack of his Miranda rights at the
beginning of the interrogation. Instead, Gillett asked if Flack
remembered the Miranda warning previously read to him; Flack
responded affirmatively. Gillett then asked if Flack was willing
to waive his rights and answer questions; again Flack responded
"Yes." During the twenty-five minute interrogation, Flack
confessed his involvement in the robbery.
On February 19, Flack moved to suppress the January 5 and
January 8 statements. Flack asserted that his constitutional
rights were violated on January 5 when the State resumed the
interrogation after he requested legal representation, and on
January 8 when he was interrogated again without legal counsel.
Furthermore, Flack asserts that he was not properly advised of his
Miranda rights at the January 8 interrogation and, on that basis,
that he did not knowingly, intelligently and voluntarily waive his
right against self-incrimination. After a suppression hearing, the
District Court entered its findings of fact, conclusions of law and
order denying the motion to suppress the statements.
The Park County Attorney and Flack filed a "Stipulation of
Factsffon March 25. The stipulation listed the facts that the
prosecution could establish if a trial was held. The stipulation
indicated the Flack would neither resist the State's case nor plead
guilty to the robbery charge. Flack expressly reserved his right
to appeal the order denying his motion to suppress.
Based on the agreed statement of facts, the District Court
found Flack guilty of robbery. The court sentenced Flack to a term
of eight years at the Montana State Prison, with five years
suspended. Flack appeals the denial of his motion to suppress the
January 5 and January 8 statements.
Did the District Court err in denying the motion to suppress
Flack's January 5 statement?
At the suppression hearing, the State maintained that the
January 5 statement was not a result of continued interrogation by
Gillett. Gillett testified as follows:
Q. Now, what happened after the interview was over?
A. Sheriff Johnson left the room, to get the work
started because he had placed Mr. Flack under arrest, and
4
 I was just generally talking with Mr. Flack and advised
him that we knew what went on.
Q. Did you ask him any questions after the interview?
A. No, I just advised him.

Q. And do you recall what you told him a: that time?
t
A. No, I don't.
Q. What, if anything, did the Defendant say?
A. He voluntarily said that he was there, but he only
stood on the road.

Q. Did you ask him a question to elicit that response?
A. NO.
Flack testified that he believed he made the statement while
under further interrogation:
Q. What happened after they turned off the tape
recorder?
A. Gillett proceeded to talk to me.
Q. Was Charlie Johnson there?
A. No, he left the room at that point.
Q. What did he talk to you about?
A. Saying that I might as well just go ahead and hang
it up because they got me, and that I couldn't get out of
it, or whatever.
Q. Did you feel like you were being interrogated
further?
A. Yes,Idid.
Q. And this all happened after you said, I guess I
should get an attorney?
A. Yes.
On the basis of the testimony presented at the suppression
5
hearing, the District Court concluded that "any incriminating
statement or admission made by Bruce Flack on January 5, 1992, was
made spontaneously by him, and was not elicited by questions from
law enforcement personnel." On that basis, the District Court
denied the motion to suppress the statement.
Our standard for reviewing a district court's conclusion of
law is whether the court's interpretation of the law is correct.
Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 474-75, 803
P.2d 601, 603. To determine whether the District Court correctly
concluded that the January 5 statement was not elicited by Gillett
and, therefore, was not obtained in violation of Flack's
constitutional rights, we examine whether the comments made by
Gillett after Flack invoked the right to counsel constituted an
interrogation.
The United States Supreme Court addressed the meaning of
interrogation in the context of an accused's right to counsel in
Rhode Island v. Innis (l98O), 446 U.S. 291, 100 S.Ct. 1682, 64
L.Ed.2d 297. There, the defendant asked to speak with an attorney
after he was arrested for the homicide of a taxi driver and advised
of his Miranda rights. While transporting the defendant to the
police station, an officer expressed concern to another officer
that handicapped children, who frequented the area where the arrest
occurred, might find the missing murder weapon. The defendant
overheard the conversation and requested that they return to the
scene of the arrest where he would locate the weapon.
The United States Supreme Court addressed whether the
officers' conversation relating to handicapped children was
tantamount to interrogation in the context of Miranda v. Arizona
(l966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The Court
indicated that language in Miranda suggested that the Miranda rules
applied only to interrogation that involved express questioning of
a defendant held in custody. The police practices that invoked the
concerns addressed in Miranda, however, included techniques of
persuasion in addition to express questioning. On that basis, the
Court concluded that the Miranda safeguards were not limited to
situations in which a defendant in custody was subjected to express
questioning. Innis, 446 U.S. at 300-301.
The Court determined in Innis that interrogation under Miranda
includes "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 likelyto elicit an incriminating
response from the suspect." Innis, 446 U.S. at 300-301.
Furthermore, the Court stated that in order to determine whether an
incriminating response was reasonably likely to be elicited from
the suspect, the primary focus should be on the perceptions of the
suspect rather than on the intent of the police. Innis, 446 U.S.
at 301.
Applying these principles to the facts before it in Innis, the
Court concluded that the officers could not reasonably foresee that
their conversation, which the Court characterized as a few offhand
remarks, was likely to elicit an incriminating response from the
defendant. On that basis, the Court determined that the defendant
had not been subjected to further interrogation after he invoked
his right to counsel. Innis, 446 U.S. at 303.
In the case before us, the District Court concluded that the
January 5 statement was made spontaneously by Flack and was not
elicited by questions from law enforcement personnel. Based on
m, it is clear that the District Court erred in limiting its
inquiry to whether the January 5 statement was elicited by direct
interrogation.
We determine that Gillett's comments constituted a practice
that law enforcement should know is reasonably likely to evoke an
incriminating response from a suspect; therefore, those comments
constitute interrogation. Unlike the officer's statement in Innis,
Gillett's comments cannot be characterized as a few overheard, off-
hand remarks. According to Gillett's own testimony, his comments
lasted five to ten minutes and were directed at Flack.
Furthermore, Gillett testified that his comments informed Flack of
the information in the prosecution's possession relating to the
robbery. Under these facts, Gillett should have reasonably
foreseen that his comments would evoke a response from Flack.
Our determination that Gillett's comments constituted
interrogation is further supported by considering them from Flack's
perspective. Gillett's comments immediately followed a fifty-five
minute interrogation and were made while Flack remained in the
interrogation room. As a result, there was no break between the
preceding direct questions and Gillett's comments that would have
dissipated the air of interrogation. Indeed, Flack testified that
he felt he was subjected to further interrogation following his
request to speak to an attorney. Furthermore, Flack's testimony
indicates his perception that Gillett's comments presumed his guilt
and suggested that he concede an inevitable conviction:
Q. What did he talk to you about?
A. Saying that I might as well just go ahead and hang
it up because they got me, and that I couldn't get out of
it whatsoever.
Under these circumstances, FlacklsJanuary 5 statement can properly
be considered a response to interrogation.
We conclude that the District Court erred in concluding that
the January 5 statement was not elicited by Gillett. Furthermore,
based on our determination that the statement was a product of
interrogation after Flack asserted his right to counsel, we
conclude that the District Court's denial of Flack's motion to
suppress violated Flack's constitutional right to the assistance of
counsel under Miranda, 384 U.S. at 474. We hold that the District
Court erred in denying Flack's motion to suppress the January 5
statement.
Did the District Court err in denying the motion to suppress
Flack's January 8 statement?
At the suppression hearing, the State maintained that Flack
had initiated the January 8 interview with Gillett, that he waived
his Miranda rights and that Flack's statement was given freely and
voluntarily. Gillett testified that he was notified by a jailer
that Flack wanted to talk to him. Detention officer Dennis McBride
testified that on the morning of January 8, Flack asked to talk to
Gillett, that he passed the request along to Gillett and that he
subsequently took Flack upstairs for the meeting with Gillett.
According to the transcript, the January 8 interview began as
follows:
Q: Bruce I will advise you that I have a recorder running
here, is that alright with you?
A: Yes.

Q: You remember the other day you were read your miranda
[sic] rights, do you remember those?
A: Y e s I do.

Q: And at this time are you still able, willing to waive
your rights and answer questions?
A: Yes.
Flack, on the other hand, testified that on the morning of
January 8, the jailer came to his cell and told him that he had a
visitor; he was taken to a room where Gillett was waiting with a
tape recorder. Flack denied having asked to see Gillett and
testified that he did not intend to give up his constitutional
rights.
The ~istrictCourt found the testimony of the law enforcement
witnesses more credible than Flackfs with regard to who had
initiated the January 8 interview. It also found, on the basis of
the officers1 testimony and the interview transcript, that Flack
was aware of his rights, knowingly and intelligently waived those
rights, and voluntarily confessed to the robbery. As a result, the
court concluded that the State had established by clear and
convincing evidence that Flackls confession was made voluntarily.
Our standard in reviewing a district court's findings of fact
10
is whether the findings are clearly erroneous. Rule 52(a),
M.R.Civ.P; Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470,
474, 803 P.2d 601, 603. The first prong of the clearly erroneous
standard is whether the finding is supported by substantial
evidence. Interstate Prod. Credit Ass'n v. DeSaye (lggl), 250
Mont. 320, 323, 820 P.2d 1285, 1287.
Here, there is no question that the court's findings are
supported by substantial evidence consisting of the officers1
testimony and the January 8 interview transcript. Flack asserts--
as though it were a matter of fact--that law enforcement initiated
the January 8 meeting: the District Court found otherwise, however,
based on substantial evidence of record. It is elementary that the
direct evidence of one witness who is entitled to full credit is
sufficient proof of any fact. Smith v. Fladstol (1991), 248 Mont.
18, 20, 807 P.2d 1361, 1363; 5 26-1-301, MCA. Here, the court
relied on testimony from two law enforcement officers. Similarly,
Flack asserts that the record of the January 8 interview is devoid
of any determination as to his waiver of rights; again, the court
found otherwise based on the record evidence set forth above.
The crux of the District Court's findings is its determination
that the testimony of the law enforcement officers was more
credible than Flack's. A trial court acting as a finder of fact is
in the best position to observe the witnesses, including their
demeanor and credibility. Nave v. State Comp. Mut. Ins. Fund
(l992), 254 Mont. 54, 58, 835 P.2d 706, 709. The weight of the
evidence and the credibility of the witnesses are exclusively the
province of the trier of fact and, in the event of conflicting
evidence, it is within the province of the trier of fact to
determine which will prevail. State v. Palmer (1991), 247 Mont.
210, 214, 805 P.2d 580, 582. Here, the District Court determined
the credibility of the witnesses before it and entered findings
based on substantial evidence. We conclude that the findings are
not clearly erroneous.
Nor is the court's conclusion that Flack waived his rights and
made his confession voluntarily erroneous. The conclusion is based
on the court's determinations that Flack initiated the January 8
interview and that he waived his rights at the beginning of that
interview. As such, Flacktslegal argument in this regard, relying
on Edwards v. ~rizona (l98l), 451 U.S. 477, 101 S.Ct. 1880, 68
L.Ed.2d 378, is misplaced.
In Edwards, the United States Supreme Court specifically
stated that an accused, having expressed a desire for counsel, is
not subject to further interrogation until counsel has been made
available to him, ttunlessthe accused himself initiates further
communication. exchanses or conversations with the ~olice."
Edwards, 451 U.S. at 484-85 (emphasis added). As discussed above
in addressing the first issue in this case, Flack expressed a
desire for counsel on January 5 and further interrogation at that
time violated his constitutional rights. The District Court
determined that, subsequent to that time, Flack initiated a further
interview with law enforcement. This is precisely the situation
contemplated by the Edwards exception to the "no further
interrogation" rule.
The District Court's findings are not clearly erroneous. Its
related conclusions are not erroneous as a matter of law. As a
result, we hold that the District Court did not err in denying the
motion to suppress Flack's January 8 statement.
Affirmed in part and reversed in part.

We concur:

,
' /
Justice Terry N. Trieweiler specially concurring.
I concur with the majority's conclusion that the statement
made by Bruce Flack on January 5 should be suppressed. I also
agree with the reasons given for that conclusion.
I concur with the majority's conclusion that there was
substantial evidence to support the District Court's finding that
Flack waived his Fifth Amendment rights prior to the statement
given to authorities on January 8, 1992.
By concurring in the majority opinion, I do not mean to
conclude that the defendant's situation does not present serious
concerns about his Sixth Amendment right to counsel. Flack was
arrested on January 5. He made his initial appearance and
requested court-appointed counsel on January 6. However, he
received no effective advice until January 15, ten days after his
arrest. By the time he waived his right to remain silent, he was
beginning his fourth day in jail without any meaningful advice from
counsel.
I concur in the result of the majority opinion because the
delay in appointment of counsel is not the basis of Flack's appeal.
That issue has not been briefed and is not bef re the Court.
7
 August 27, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:

Bruce E. Becker
Attorney at Law
P.O. Box 1113, 116 W. Callender
Livingston, MT 59047

Hon. Joseph P. Mazurek, Attorney General
Barbara C. Harris, Assistant Atty. General
215 N. Sanders, Justice Bldg.
Helena, MT 59620

Wm. Nels Swandal
Park County Attorney
414 E. Callendar St.
Livingston, MT 59047

ED SMITH
CLERK OF THE SUPREME COURT
S T A R OF,MONTANA