Timothy BEAVERS, Petitioner, v. STATE of Alaska, Respondent.
No. S-8399.
Supreme Court of Alaska.
March 10, 2000.
John A. Scukanec, Assistant Attorney General, Anchorage, Bruce M. Botelho, Attorney General, Juneau, for Respondent.
Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.
OPINION
MATTHEWS, Chief Justice.
I. INTRODUCTION
The superior court dismissed Timothy Beavers‘s robbery indictment on the ground that his confession was involuntary. The court of appeals reinstated the indictment, finding the confession voluntary under the “totality of the circumstances.” Beavers argues that his confession was presumptively involuntary because it was partially induced by a police officer‘s threat of harsher treatment. Because we agree with Beavers, we reverse the court of appeals decision and vacate Beavers‘s indictment.
II. FACTS AND PROCEEDINGS
A. Facts
The facts of this case are uncontested. On November 1, 1995, Alaska State Troopers Gerald Graham and David Tullis questioned Beavers, then sixteen years old, during their investigation of two Anchorage robberies. At approximately 2:00 p.m. the troopers arrived at the restaurant where Beavers worked. They identified themselves and informed Beavers of their desire to question him outside the restaurant in order to avoid the noise inside. At Graham‘s invitation, Beavers entered the troopers’ vehicle and sat in the passenger‘s seat; Graham and Tullis occupied the driver‘s and rear seats, respectively. The interview that followed lasted twenty-one minutes.
Graham explained that he had recently interviewed several of Beavers‘s friends who were also implicated in the robberies under investigation and that the troopers now desired to obtain Beavers‘s “side of the story.” The discussion shifted toward various burglaries committed by one of Beavers‘s friends. Beavers answered a few questions indicating his knowledge of his friend‘s involvement in the crimes. Graham then reiterated his earlier admonition concerning the importance of Beavers‘s cooperation in the interview:
And I want to make sure that uhm, I mean, if you‘re involved in the burglaries, you need to tell me. If you‘re not, that‘s fine, but if I later come back and find out that you are involved there‘s going to be some problems here, you understand? Okay. I want to get this cleared up now.
He also repeated his previous assurance that Beavers was not under arrest and could leave at will. Graham then directly questioned Beavers about his involvement in the burglaries. Beavers denied any participation.
Following Beavers‘s initial denial, Graham asked him several questions concerning his friends and the location of various stolen items. After Beavers had answered the questions to the troopers’ satisfaction, Graham spoke the words that form the basis of Beavers‘s present appeal:
Okay. Well I know you‘re telling the truth because it‘s the same stuff we‘ve already been told. I, but I have to confirm it. I mean, there‘s stuff I know and stuff I don‘t know. That‘s how I we do an interview. And, if you‘re telling me the truth, you‘ll be telling me stuff that I already know and I‘ll know that you‘re telling me the truth. This is important, okay? It, it‘s very important. I know that when you‘re young, you do some stupid stuff, make a, make a wrong turn somewhere, okay. And, and you do some crazy stuff, okay? But, if you‘re, if you try and hide it from me you‘re really going to get hammered. I mean it‘s, you gotta come out and tell me the truth on this stuff, okay? I know some stuff that you‘re into and we‘re going to have to talk about that, okay?
(Emphasis added.)
Beavers responded affirmatively. Graham then asked Beavers if he understood. Beavers replied “[n]ot really. Like what kind of stuff?” Graham indicated his desire to discuss one of the robberies under investigation and showed Beavers a lineup containing photographs of Beavers and one of the other youths implicated in the robbery. Graham asked Beavers to identify himself and the other youth in the photograph, and Beavers complied.
Graham then asked Beavers if he understood what the lineup photographs were used for. Beavers gave a brief, inaudible answer, after which Graham responded:
That‘s right. You walk up to a victim and you say, “See anybody in here you recognize?” and they go (smack) “I recognize this person, ‘this person was there. This person was one of the guys that robbed me.” Now if you want to lie to me and get in more trouble, that‘s fine, okay? That‘s your decision. This is the only chance I can help you. You‘re young, you need to get this cleaned up now, okay? You want to tell me the truth?
Beavers immediately admitted his participation in the robbery. Responding to Graham‘s requеst that he describe the incident “in [his] own words,” Beavers provided a detailed account of the robbery and explained how the youths had disposed of the stolen property. When Graham subsequently inquired about the other robbery under investigation, Beavers likewise admitted his involvement and described that incident for the troopers.
Graham acknowledged Beavers‘s forthrightness during the interview. He asked
B. Proceedings
In presenting its case to the grand jury, the prosecution relied in part upon Beavers‘s confession to Trooper Graham. The grand jury returned an indictment for first-degree robbery against Beavers.
Beavers moved to suppress his confession in superior court, alleging that it had been involuntarily given and obtained in violation of his Miranda rights.1 The state opposed Beavers‘s motion. After an evidentiary hearing, the superior court ruled that the troopers had not violated Beavers‘s Miranda rights because Beavers was not in custody during the interview.2
However, the superior court also found that Beavers‘s confession had been involuntary. The court noted the “politely confrontational” tone of Graham‘s interrogating tactics; that Beavers was only sixteen at the time of the interview; that the interview had occurred in the troopers’ vehicle; that the troopers had subjected Beavers to “coercive suggestion” by identifying themselves as law enforcement officers; that Graham had represented to Beavers his alleged knowledge of numerous details surrounding the crimes; and that Graham had dominated the conversation through his constant questions. The court also emphasized Graham‘s statements that Beavers would be “hammered” if he tried to conceal the truth from the troopers, that Beavers “need[ed] to get this cleaned up,” and that he should tell the troopers the truth about the robberies.
Based upon Graham‘s statements to Beavers and the circumstances surrounding the interview, the superior court found that Graham had excessively pressured Beavers and essentially indicated to him that he lacked any choice but to confess. As a result, the court concluded that Beavers‘s will had been overcome and that his confession was coercеd. The court thus granted Beavers‘s motion to suppress the confession and dismissed the indictment against him.
The state appealed the superior court‘s disposition of the voluntariness issue to the court of appeals, which reversed the lower court‘s determination. After reviewing the circumstances surrounding Beavers‘s confession, the court of appeals concluded that his age, the troopers’ tactics, and the tone of the interview were insufficient to overcome Beavers‘s will.
The court of appeals also held that Graham‘s statement to Beavers that he would be “hammered” if he lied did not render Beavers‘s confession involuntary. Analogizing the trooper‘s threat to a promise of more favorable treatment, the court of appeals analyzed Beavers‘s confession under the “totality of circumstances” approach and determined that his statement was voluntary notwithstanding the threat. The court of appeals thus reversed the superior court‘s order and reinstated Beavers‘s indictment.
Beavers seeks reversal of both the reinstatement of his indictment and the determination that his confession was voluntary. We granted Beavers‘s petition, directing the parties to address, inter alia, the issue of whether an officer‘s threat of harsher treatment should be analyzed in the same manner as a
III. STANDARD OF REVIEW
We review the trial court‘s determination concerning the voluntariness of Beavers‘s confession as a mixed question of law and fact.3 Our review reflects the three-part nature of the lower court‘s inquiry: “First, the trial judge must find the external, phenomenological facts surrounding the confession. Second, from these external facts, the judge must infer an internal, psychological fact: the mental state of the accused. Finally, the judge must assess the legal significance of this inferred mental state.”4
The first step of this process involves the trial judge‘s role in fact-finding and weighing the credibility of witnesses; we review the judge‘s findings of historical fact deferentially, and will overturn them only if clearly erroneous.5 In determining the accused‘s mental state and its legal significance, however, we conduct an independent examination of the entire record and base our conclusion upon the totality of circumstances surrounding the confession.6
IV. DISCUSSION
A. Alaska Law Regarding the Voluntariness of Confessions
Legal principles derived from our previous decisions provide the framework for addressing the issues in the present case. “A confession is not admissible into evidence unless it is voluntary. In determining whether a confession is the product of a free will or was the product of a mind overborne by coercion the totality of circumstances surrounding the confession must be considered.”7 Among the circumstances relevant to the court‘s determination of voluntariness are “the age, mentality, and prior criminal experience of the аccused; the length, intensity and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement.”8
The prosecution must prove the voluntariness of the confession by a preponderance of the evidence.9 When the accused is a juvenile, the state assumes a particularly heavy burden of proof.10 We have also recognized “[t]he manner of interrogation, including whether any threats or promises induced the confession, [as] an important factor to be considered.”11 We have repeatedly quoted the test enunciated in Bram v. United States12 as a baseline for voluntariness analysis:
[A] confession, in order to be admissible, must be free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.13
Significantly, however, Bram‘s seemingly absolute prohibition on all promises is not dispositive:14
That language has never has never been applied with wooden literalness.... The Supreme Court has consistently made clear that the test of voluntariness is whether an examination of all the circum-
stances discloses that the conduct of law enforcement was such as to overbear (the defendant‘s) will to resist and bring about confessions not freely self determined.15
We have noted that the facts of Bram do not require a blanket rule against promise-induced confessions; that subsequent Supreme Court decisions demonstrate the importance of case-specific factual nuances in determining voluntariness; and that a per se approach might result in the loss of reliable and probative confessions.16
We have thus expressly “reject[ed] a per se rule which would condemn any incriminatory statement obtained by means of a promissory inducement,” and have instead adopted a “totality of circumstances” approach in examining the voluntariness of an accused‘s confession.17 We have employed this multi-factor analysis even when police have engaged in improper conduct to induce confessions, and we have affirmed the voluntariness of inculpatory statements induced by police trickery and misrepresentation of evidence.18
But in Webb v. State19 we recognized that “certain improper conduct is so coercive as to render a Miranda waiver involuntary without regard to the totality of circumstances.”20 The police officer in Webb had conditioned the return of a suspect‘s driver‘s license to him upon his agreement to provide a statement.21 We concluded that the officer‘s conduct was sufficiently coercive to render the suspect‘s confession involuntary notwithstanding the other factors surrounding the interrogation.22
We noted that the suspect in Webb was “presented with the illusory choice of exercising his right to remain silent and losing a valuable property interest, his driver‘s licence, and making an incriminating statement to secure [its] return.”23 Condemning this Hobson‘s choice, we held that Miranda waivers “obtained by conditioning the exercise of the constitutional guarantee against self-incrimination against the loss of another constitutionally protected interest” were per se involuntary.24
B. Police Threats Are Presumptively Coercive.
Although we have repeatedly stated that a police officer‘s promissory inducement represents only one factor in the “totality of circumstances” approach, we have never expressly evaluated a police officer‘s threat of harsher treatment under the same analysis. The issue of whether courts should analyze promises and threats identically constitutes the central issue in the present appeal, and it is one of first impression for this court.
Beavers asks us to hold police threats per se coercive, obviating judicial examination of the other factual circumstances surrounding an accused‘s confession. The state argues that a threat should, like an officer‘s promise of leniency, represent merely one of several factors for consideration under this court‘s “totality of circumstances” approach.
A criminal susрect‘s right to remain silent in the face of police interrogation represents one of the most fundamental aspects of our constitutional jurisprudence.25
Notes
In reaching our conclusion, we draw guidance from the Ninth Circuit‘s decision in United States v. Harrison.31 Harrison was suspected by federal authorities of money laundering. Without warning, fifteen federal agents entered Harrison‘s house with weapons drawn, arrested Harrison and her companion, and searched her home.32 The agents advised Harrison of her Miranda rights, after which an agent informed her of evidence linking her to the crime under investigation.33 The agent then told Harrison that she could potentially receive a twenty-year sentence for her participation in the crime, and asked whether she thought it would be better if the judge was told of her cooperation or noncooperation.34 Harrison responded that it would be better if the judge was informed of her cooperation, and she proceeded to confess her criminal involvement to the agents.35 The district court found Harrison‘s confession voluntary and ultimately convicted her of money laundering.36
The Ninth Circuit reversed Harrison‘s conviction, holding her confession involuntary.37 While expressing its continued adherence to the “totality of circumstances” approach, the court nevertheless established
The Harrison court reiterated the permissibility of confessions secured by an officer‘s promise of leniency.39 The court also acknowledged the arguable equivalence between such promises and police threats to inform the prosecutor of a suspect‘s refusal to cooperate, noting that “[i]n many ways, both types of statements are simply different sides of the same coin: ‘waive your rights and receive more favorable treatment’ versus ‘exercise your rights and receive less favorable treatment.‘”40 The Ninth Circuit determined, however, that
[t]he two types of statements are not entirely interchangeable. Defendants may get some benefit from learning about the possibility of reduced sentences, though that benefit would hardly vanish if the government communicated the prosрect of leniency through defendants’ attorneys rather than at the time of arrest. We also have observed that in most circumstances, speculation that cooperation will benefit the defendant or even promises to recommend leniency are not sufficiently compelling to overbear a defendant‘s will.41
In distinguishing promises to communicate a suspect‘s cooperation to the prosecutor from threats to inform the prosecutor of the suspect‘s lack of cooperation, the Harrison court reasoned:
Refusal to cooperate is every defendant‘s right under the fifth amendment. Under our adversary system of criminal justice, a defendant may not be made to suffer for his silence. Because there is no legitimate purpose for the statement that failure to cooperate will be reported and because its only apparent objective is to coerce, we disapprove the making of such representations.42
The Ninth Cirсuit thus rejected the government‘s request to examine Harrison‘s inculpatory statement in context of all the circumstances involved in the case and held the agent‘s suggestion that he might inform the judge of Harrison‘s failure to cooperate inherently coercive.43
We find Harrison‘s reasoning persuasive and agree with the Ninth Circuit‘s distinction between promises of leniency and threats of harsher treatment. We also note that at least two other cases have taken a similar approach.
In United States v. Tingle, a credit union employee (Tingle) was under suspicion of stealing funds.44 After claiming that she had been attacked by an unknown assailant who had tied her up and stolen money from the safe of the credit union, Tingle was escorted by two FBI agents to their vehicle for further questioning.45 During the hour-long interview, Tingle initially repeated the alibi she had given earlier.46 The agents accused her of lying and explained to her the advantages of truthfully cooperating with the investigation.47 They enumerated the crimes and corresponding prison terms—for which she might be found guilty.48 Tingle continued to deny the accusations.49
The agents explained to Tingle that it was in her best interest to cooperate, and told her that, depending on her decision, they would inform the prosecutor either of her coopera-
In State v. Strayhand, a theft and robbery suspect was arrested and interrogated at the police station.55 The interviewing detectives repeatedly threatened Strayhand with enhanced punishment for failure to cooperate with the investigation, warning him that they would ask for “a lot of jail time,” would “hang him in court,” and would “have it made” after informing the judge of his refusal to confess.56 During a subsequent interview later that day, Strayhand admitted his guilt and was eventually convicted at trial.57 The Arizona Court of Appeals reversed Strayhand‘s conviction, holding his cоnfession involuntary due to the detectives’ threats of harsher treatment.58
V. CONCLUSION
Threat-induced confessions should be considered presumptively involuntary absent evidence affirmatively indicating that the suspect‘s will was not overcome by the threats. We have reviewed the record in the present case and agree substantially with the trial court‘s view of the evidence. Trooper Graham‘s threat to Beavers that he would be “hammered” if he attempted to hide his conduct from Graham and that “we‘re going to have to talk about that” conveyed an unmistakable message that Beavers would be punished for exercising his constitutional right to silence. There are no affirmative indications that the trooper‘s threats of harsher treatment were ineffective. We therefore hold that the court of appeals’ decision must be REVERSED and the superior court‘s ruling reinstated.
BRYNER, Justice, with whom EASTAUGH, Justice, joins, dissenting.
I dissent from this opinion because it muddles the law of confessions and suppresses a statement that, by our traditional test, is voluntary.
Today‘s opinion announces that “threat-induced” confessions must now be considered “presumptively involuntary absent evidence affirmatively indicating that the suspect‘s will was not overcome by the threats.”1 The court takes this rule from
In fact this new rule finds little support in our constitution or jurisprudence. We have consistently viewed the Alaska Constitution
In Stobaugh v. State, we expressly declined to hold that a confession induced by a promise should be deemed involuntary as a matter of law.5 Refusing to read “wooden literalness”6 into the United States Supreme Court‘s admonition in Bram v. United States that confessions not be “extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight,”7 we found three reasons to rejeсt a per se rule excluding confessions obtained by promissory inducements:
First, the facts of Bram do not require such a per se rule. Second, subsequent cases demonstrate that factual nuances may be very important in determining voluntariness. Third, the probable loss of reliable and probative confessions that would result from rigid adherence to a per se rule militates in favor of examining all the circumstances surrounding a promise-induced confession.8
Thus, we opted to adhere to the traditional test of voluntariness, which simply determines from the totality of the circumstances whether the police overbore the defendant‘s free will.9
Though Stobaugh considered only confessions induced by promises, the three reasons it gives for rejecting a per se rule apply with equal force to confessions induced by threats. First, here, as in Stobaugh, “the facts of Bram do not require such a per se rule.”10 The court‘s decision today pinpoints a valid distinction between threats and promises—a distinction missed by the court of appeals: threats are gеnerally more coercive than promises.11 But this hardly requires a rule that would exempt all threats from the traditional voluntariness analysis and categorically declare threat-induced statements to be involuntary.
Second, with promises and threats alike, “factual nuances may be very important in determining voluntariness.”12 There are limitless forms of threats, and they can occur under an infinite variety of circumstances; often the difference between a threat and a promise is a matter of subtle interpretation.13
Third, for both promises and threats, “the probable loss of reliable and probative confessions that would result from rigid adherence to a per se rule militates in favor of examining all the circumstances surrounding a confession.”14 The reasoning in Stobaugh thus refutes the per se rule that the court adopts in this case.
The court nevertheless cites three cases as favoring its decision to immunize threats from analysis under the traditional voluntariness test:15 United States v. Tingle,16 United States v. Harrison,17 and State v. Strayhand.18 But none of these cases supports the court‘s “woodenly literal” presumption. They all involve blatantly coercive custodial interrogation and are distinguishable on their facts.19 Here, by contrast, we have a brief,
A second point of distinction between Beavers‘s case and the three cases relied on by the court is that none of these cases categorically condemns all potentially threatening comments uttered during an interrogation. Each case involved overt or thinly veiled threats of reprisal for the accused‘s exercise of the constitutional right to silence; this particular type of threat—the threat that a defendant may “be made to suffer for his silence“—is the only type these cases condemn as without “legitimate purpose.”20
There can be no plausible claim of any such threat in this case. Beavers could not have understood the trooper‘s reference to getting “hammered” as a threat of reprisal for exercising his right to remain silent. When the comment occurred, Beavers had already abandoned his right to silence and was freely talking to the police about himself and his friends. He had been repeatedly told—and by all indications fully understood—that he was free to stop talking and leave at any time. In context, then, if the
After a brief silence, an agent told Harrison that he had documents showing that she was involved in money laundering. He said that the government had seized packages of drugs that had been mailеd to Marshall and could determine whether her fingerprints were on the packages. The agent informed her that she might be facing up to twenty years in prison. He asked her whether she thought it would be better if the judge were told that she had cooperated or had not cooperated. Harrison responded that it would be better if she talked to the agents and they told the judge that she had cooperated. She then gave a statement to the agents. Harrison, 34 F.3d at 890. And in Strayhand, the defendant, who had been arrested and jailed on suspicion of robbery, was removed from jail and subjected to a lengthy interrogation at the police station. Strayhand repeatedly refused to make a statement and asked to be taken back to jail, but the police continued the interrogation, repeatedly threatening to ask for an increased sentence if Strayhand refused to cooperate. The interrogation ultimately ended with the following statement to Strayhand: “I‘m going to go ahead and file cases and I get to go in and say you were uncooperative and didn‘t want to help me so I‘ve got it made. Makes me real easy here. But it‘s never too late. ... ” Strayhand later confessed. Strayhand, 911 P.2d at 581-84.
trooper‘s remark about getting “hammered” threatened any reprisal, the only reprisal it threatened was for lying—it anticipated Beavers‘s willingness to keep talking and warned him in realistic terms of the consequences that he was likely to face if he actively misrepresented the facts: “[I]f you‘re telling me the truth, ... I‘ll know that you‘re telling me the truth. This is important, okay? ... But, if you‘re, if you try and hide it from me you‘re really going to get hammered.”
The final, and perhaps most crucial, point distinguishing this case from Tingle, Harrison, and Strayhand is that none of those cases applies an artificial “presumption of involuntariness” like the constitutional presumption this court creates today. Although these cases all roundly condemn threats of reprisal for exercising the constitutional right to silence, they do not pretend that such threats automatically render confessions invalid; to the contrary, each case carefully and faithfully adheres to the traditional law of confessions, determining, from the totality of the circumstances, that the police actually overbore the defendant‘s free will.21
Thus, at best, the court creates a superfluous layer of presumption that distracts attention from the critical question: did Beavers voluntarily confess? At worst, the court creates a new presumptive test of voluntariness that bypasses the traditional, totality of the circumstances determination.
The court‘s insistence on affirmative evidence of voluntariness is troubling and will surely confound judges, practitioners, and police officers. If the court means by “affirmative evidence” only that, because all threats are potentially coercive and this case involves a threat, the state has failed to meet
The government cannot meet its burden of proving that Harrison decided of her own free will to give a statement. Harrison, 34 F.3d at 892 (internal citations omitted). Finally, in Strayhand, the court found that it must look to all of the circumstances surrounding a confession or confessions in determining whether the Defendant‘s will was overborne. Here, even in the absence of an explicit statement by the Defendant at the hearing on the motion to suppress that he confessed because the detectives persisted in questioning him and threatened him, that conclusion is inescapable on this record. The State had the burden of proof on this point, and it came forward with nothing to suggest anything but that the detectives’ impermissible tactics bore fruit. Keeping in mind that the question of whether a confession is voluntary must be decided upon the totality of circumstances, we believe that the flagrant refusal of the officers to honor the Defendant‘s repeated requests to remain silent had a significant effect on procuring his confession. The detectives recited the litany of
its heavy burden of proving voluntariness by a preponderance under the totality of the circumstances, then the presumption serves no purpose. A straightforward application of the conventional totality of the circumstances test would yield the samе conclusion.
But the court seems to mean something more since its decision reversing the court of appeals relies on the absence of “affirmative indications” of voluntariness and appears to stop short of independently reviewing the totality of the circumstances to determine whether the police actually “hammered” Beavers into an involuntary confession.
Yet there is no dispute here about the circumstances surrounding Beavers‘s confession, and the confession itself is entirely recorded. Short of an admission by Beavers that he confessed voluntarily, it is hard to conceive of any other “affirmative” evidence of voluntariness that the state might have presented. This situation is not unusual: the police currently record almost all interrogations. If a full recording of the confession does not suffice to dispel the presumption of involuntariness and require voluntariness to be determined under the totality of the circumstances, then the court‘s per se rule is something more than a conventional presumption:25 it is essentially a blanket rule
rights and then ran roughshod over them. This is coercive in itself. Further, had the officers honored the Defendant‘s request, the dialogue which led to and included the threats would never have taken place. Strayhand, 911 P.2d at 588, 592.
This of course would be the functional equivalent of Bram‘s now universally disavowed “woodenly literal” prohibition.26 I doubt that the court actually has such a rule in mind. But if the court means to land somewhere between the conventional test and Bram, its intended target is uncertain; it fashions a rule that will be misinterpreted and misapplied. And the price of this uncertainty will be paid in the needless suppression of voluntary confessions.
In my view, the present case provides a good example. Two troopers subjected Beavers to a brief, matter-of-fact interrogation. Beavers was not in custody. Though only sixteen years old, he had a regular job and was contacted at his place of employment. When asked if he would mind аccompanying the troopers to the station to “talk where it‘s a little quieter,” Beavers had the assertiveness and presence of mind to respond, “I prefer if we, like, talked here.” The troopers immediately honored his request. It seems apparent, then, that Beavers was capable of understanding that he had control over his own situation and had good reason to think that the troopers would not ignore his choices.
Once the interview began, Trooper Graham immediately reassured Beavers that he was not under arrest and was free to go at any time. Beavers understood. He freely discussed his knowledge of some recent burglaries, truthfully denying any involvement. In the course of this discussion, Trooper Graham reminded Beavers, “Like I told you, you‘re not under arrest, you‘re free to go. Ah you know, I‘m not holding you here.” Beavers continued to answer questions.
Trooper Graham soon shifted the discussion to a recent robbery, exhorting Beavers to tell him the truth; in thе midst of this exhortation, the trooper uttered the “hammering” threat:
GERRY GRAHAM: Okay. Well I know you‘re telling the truth because it‘s the same stuff we‘ve already been told. I, but I have to confirm it. I mean, there‘s stuff I know and stuff I don‘t know. That‘s how I we do an interview. And, if you‘re telling me the truth, you‘ll be telling me stuff that I already know and I‘ll know that you‘re telling me the truth. This is important, okay? It, it‘s very important. I know that when you‘re young, you do some stupid stuff, make a, make a wrong turn somewhere, okay. And, and you do some crazy stuff, okay? But, if you‘re, if you try and hide it from me you‘re really going to get hammered. I mean it‘s, you gotta come out and tell me the truth on this stuff, okay? I know some stuff that you‘re into and we‘re going to have to talk about that, okay?
Beavers hardly seemed cowed by the prospect of “hammering.” In response to Trooper Graham‘s ensuing question, “I know some stuff that you‘re into and we‘re going to have to talk about that, okay?” Beavers answered, “Alright.” The trooper followed up by asking, “Do you understand that?” Beavers responded, “Not reаlly. Like what kind of stuff?” Trooper Graham answered that he was talking about the MAPCO robbery.
At that juncture, the trooper showed Beavers a photo lineup, asking him if he knew what it was. The lineup included photographs of Beavers and his friend, Danny. After making sure that Beavers recognized his own photograph and understood the significance of the lineup, Trooper Graham promised to help Beavers if he told the truth. Beavers immediately got the message and confessed:
GERRY GRAHAM: Do you know what these are?
TIM BEAVERS: Mug shots?
GG: Photo line ups, man. Who‘s that?
TB: Me.
GG: Who‘s that?
TB: Danny?
GG: Do you know what these are used for?
TB: (Inaudible)
GG: That‘s right. You walk up to a victim and you say, “See anybody in here you recognize?” and they go (smack) “I recognize this person, this person was there. This person was one of the guys that robbed me.” Now if you want to lie to me and get in more trouble, that‘s fine, okay? That‘s your decision. This is the only chance I can help you. You‘re young, you need to get this cleaned up now, okay? You want to tell me the truth?
TB: I was there.
My review of the record, including the transcript and audio tape of Beavers‘s interrogation, persuades me that Trooper Graham‘s brief mention of “hammering” did nothing to induce Beavers‘s confession and failed even to come close to overbearing his will. It seems to me that Beavers understood his position and had full control of his situation until Trooper Graham displayed the photo lineup. Beavers incorrectly assumed that he had been identified in the lineup, and this triggered his confession. Beavers did not confess for fear of being hammered but for fear of having been nailed. His choice was one motivated by self-interest, not panic.
If anything in the interrogation overbore Beavers‘s free will, it was Trooper Graham‘s use of the photo lineup to create the false impression that Beavers had been identified, coupled with the trooper‘s simultaneous offer to help Beavers if he told the truth. Yet these tactics—ruses and promises of assistance—fall within the generally accepted range of proper interrogation.27 And Beavers doеs not challenge this aspect of his interrogation.
Yet by relying on an artificial presumption of involuntariness, the court assigns conclusive significance to a mild and passively phrased threat that seemingly had no bearing on Beavers‘s free will. The court fails even to acknowledge as “affirmative indications that the trooper‘s threats ... were ineffective”28 the permissible and potentially far more powerful psychological tactics that immediately preceded Beavers‘s confession. Because the court‘s newly adopted presumption obscures its inquiry into voluntariness and leads it to suppress a valid and reliable confession, I dissent from its decision reversing the court of appeals.
Under