Sheriff v. Bessey

for . . . Payments which have not accrued at the time either notice that he party gives has filed a motion for modification or be modified adjustment or adjusted by showing changed Court upon circumstances. added.) (Emphasis statute, noted, leaves the matter to the discretion of the

district court. The district court apparently considered the delay unintentional, to be proceedings since the parties were trying to resolve Christie’s motion out of court. We conclude that such a conclusion was not an abuse of discretion.

CONCLUSION abatement, We conclude that the issues of child support sharing visitation, costs related transportation to child and the due date of support payments were not properly at issue before court, the district and we reverse the judgment regarding these Moreover, matters. we also conclude that the district court abused its by abating discretion child support during four weeks in the summer when the children were scheduled to visit father, their and accordingly reverse that part the order entered Finally, below. the district court did not abuse its discretion in the date which determining upon the increased child support would commence.

SHERIFF, COUNTY, Appellant, WASHOE BESSEY, Respondent. KEVIN

No. 26362 April 914 P.2d 618 General, Papa, Attorney Frankie Sue Del Carson City; Gammick, Hatlestad, Gary Richard A. H. Attorney, District Washoe for Attorney, County, Appellant. District Deputy Defender, Michael and John Specchio, Petty, Reese Public Defender, County, Public Washoe for Deputy Respondent.

OPINION Court, Shearing, J.: By the Bessey Kevin with two charged respondent

The State counts of assault, assault, count of sexual two attempted sexual one counts seduction, one count of statutory attempted statutory sexual seduction, and one count of After open gross sexual lewdness. hearing, justice bound over peace Bessey a preliminary charges. Bessey a number of the filed a for petition for trial on court. The writ of habeas district district court corpus evidence, that detective had fabricated improperly found con- statements should have been Bessey’s inculpatory cluded and dismissed the information. The State filed a suppressed, that use of the fabricated arguing sheriff’s evidence in the appeal, render the interrogation inculpatory did not statements involun- tary. agree. We out that

Preliminarily, point Bessey employed we the wrong challenge admissibility inculpatory state- procedure corpus may “Pretrial habeas not be used to challenge ments. of evidence on constitutional admissibility grounds. Cook v. State, (1969). P.2d 523 a challenge 85 Nev. Such should evidence, a motion to suppress be made in review of the sought be trial and ruling following district court’s convic- Griffin, 302, 304, 1216, Nev. 646 P.2d tion.” Hardin 98 1217 (1982). granting The district court erred in pretrial habeas relief not be used to challenge admissibility because habeas of constitutional grounds. evidence on had filed a motion to Bessey proper suppress, Even if his not have been suppressed. Bessey statements should inculpatory statements were made inculpatory contended that after the Bessey officer showed a fabricated document police implicating a him as the of sexual assault on a minor. wás perpetrator Bessey to the for an police department asked to come interview after a fourteen-year-old girl gave a statement to the that police alleging numerous sexual acts on her Bessey had without her performed interview, Bessey At the denied in engaging consent. sexual the police acts with the minor until officer asked him if he could of the couch at the why analysis apartment where these explain acts occurred showed his semen The allegedly present. actual negative, presented Bessey was but officer with a analysis false crime lab which the officer had report, prepared. Bessey then made a of inculpatory number statements. confession, determine the voluntariness of a

“To the court totality must consider the effect of the of the circumstances on the in each question will of the defendant. case is whether the will was overborne when he confessed.” defendant’s Passama v.

325 State, 212, 214, 321, 103 Nev. 735 P.2d (1987). 323 Police is a relevant factor in determining whether or not a confession is voluntary. 731, See Frazier v. Cupp, 394 U.S. 739 However, (1969). an officer’s lie about the strength of the evi is, itself, dence against the defendant insufficient to make the McGinnis, confession involuntary. Holland v. 1044, 963 F.2d denied, (7th 1051 1082, Cir. cert. 506 U.S. 113 S. Ct. (1993). 1053 country Cases rule that throughout general through subterfuge confessions obtained the use of are not viti- are not long ated so as the methods used of a type reasonably Drechsler, to an untrue statement. C.T. likely procure Annota- tion, Admissibility Its Inducement of Confession Affected Fraud, Trickery, through Artifice, Deception, A.L.R.2d 99 772, (1965 1993). & Supp. 783 Frazier, falsely In told defendant that his codefend- The court already ant had confessed. concluded that fact “[t]he misrepresented that the statements [the codefendant] relevant, is, in our had made while insufficient view to make this voluntary otherwise confession inadmissible.” 394 U.S. at 739. The Holland court stated that the numerous varieties of “[o]f to a trickery ... a lie relates connection suspect’s likely the crime is the least to render a confession involuntary.” say at 1051. The court went on to the following: F.2d 963 course, may misrepresentations, Such cause suspect confess, coercion; but causation alone does not constitute if did, following interrogations it all confessions would be involuntary always because “it can almost be said that the Fenton, caused the confession.” Miller v. interrogation 796 denied, 598, 989, (3d Cir.), F.2d cert. U.S. 107 S. 585, Thus, (1986). Ct. 93 L. Ed. 2d 587 the issue is not causation, coercion, degree improper but and in this degree slight. Inflating instance little, all, Holland’s interfered if at with his “free and confess, Burbine, deliberate choice” of whether to Moran v. 412, 421, S. Ct. 475 U.S. 89 L. Ed. 2d 410 (1986), for it did not lead him to consider anything beyond innocence, his actual regarding guilt his own beliefs his and right wrong, judgment moral sense of regarding garnered the likelihood that the had valid enough words, him to the crime. In other the linking of interject type did not extrinsic consider by that would overcome Holland’s will an distorting ations rational choice of whether to confess or remain otherwise silent.

Id. at 73. Kelekolio,

In State v. (Haw. 849 P.2d 1993), the Hawaii Court considered the Supreme relevant case law and scholarly and formulated a authority by rule which to measure the of the legitimacy use of deception by in eliciting confessions or inculpatory statements from suspects and arrest- ees. Kelekolio court adopted rule: following by the

[E]mployment police of deliberate falsehoods intrin- sic to the facts of the alleged offense in question will be treated as one of the totality of circumstances surrounding the confession or statement to be considered in assessing its voluntariness; hand, on the other deliberate falsehoods offense, extrinsic to the facts of the alleged which are of a type reasonably likely to an procure untrue statement or to influence the accused to make a confession regardless of se, guilt, will be as coercive regarded per thus obviating the need “totality for a of circumstances” analysis of voluntari- ness. P.2d at 73. of intrinsic

Examples falsehoods would include misrepresenta tions the existence of regarding incriminating evidence such as placement scene, of defendant’s vehicle at the crime physical car, evidence linked to the victim in the defendant’s presence of defendant’s fingerprints at crime scene car, or in the getaway positive identification reliable eyewitnesses, and identification of the defendant’s semen in the victim or at the crime scene. See id. Examples of extrinsic falsehoods of a type reasonably likely to procure an untrue statement or to influence an accused to make a regardless confession would include the following: assur confession, ances of divine upon salvation promises of mental confession, health treatment exchange for assurances of more favorable treatment rather than incarceration in for exchange confession, misrepresenting consequences a particular conviction, representation that welfare benefits would be with drawn or children away taken unless there is a confession or of harm or benefit suggestion to someone. See Lynumn v. Illi nois, Kelekolio, (1963); 372 U.S. 528 P.2d at 73-74. In this the detective’s lie and the falsified lab report went to the strength of the evidence against Bessey, a consideration Therefore, intrinsic the facts of the alleged offense. the court must consider the totality of the circumstances which produced Bessey’s statements to determine whether they were voluntary. We conclude that there nothing in the treatment of Bessey or setting interrogation that was coercive. Bessey went to the police station voluntarily and the length the interview was

327 relatively only short. The factor that was out of the ordinary was of the falsified lab the report. Based on law in this production area and the facts of this there is no reason to believe that statements were not Bessey’s inculpatory voluntary. The false would not have concerns on report implicated Bessey’s part other than consideration of his own or innocence and the nothing him. There is about the against fabricated Bessey document to in this case which would have presented produced false confession. Bessey upon

The one case relies suppression (Fla. is v. Cayward, of his admissions State 552 So. 2d 971 Dist. denied, 1989), (Fla. 1990). Ct. review 562 2d App. So. 347 In Cayward, the fabricated two scientific reports that indi- cated that the semen stains on the victim’s underwear came from The Cayward. police showed false reports Cayward him of they suspected sexually assaulting because and smothering interview, niece. Some time later in the five-year-old Cayward The Florida court held that the confessed. manufacture of false documents officials offends the traditional notions of due under both the state and federal constitutions. Id. at process We with the Florida court’s disagree 974. standard and rationale. Cayward great court on the fact placed emphasis that the statement to the was written rather than suspect false verbal and decided to draw a rule on that basis. Under bright-line decision, the could have Cayward verbally lied to the found; but, defendant him that his semen had been by telling fact that the lie was embodied in a made piece paper it a violation of due This is a distinction without a process. real Moreover, ignores difference. it the basic test for the voluntari- which the United ness of confessions States Court has Supreme Bustamonte, v. 412 set out. Schneckloth U.S. Passama,

(1973); Nev. at 103 735 P.2d at 323. Under law, whether question is prevailing appropriate deception, nature, would have induced a false whatever its confession under Holland, not, the circumstances. F.2d at 1051. If it would 963 violated, rights then the defendant’s were not suppression the defendant’s statements is unwarranted. Id. subsequent

It been that fabricated documents used in argued interroga- has way tion find their into court as evidence. The case of United (11th 1990), F.2d Cir. on Khoury, States 948 modified (11th F.2d 713 Cir. is used as an grounds, other that the Khoury actually system demonstrates works to example. from fabricated documents. docu- differentiate authentic False rules are astray,” evidentiary designed ments but our may “go Moreover, Khoury our forums. legal their use in prevent court recognized that falsifications, “such in certain circum- stances, may be a necessary investigatory method. . . 901 F.2d at 970.

The Cayward court also raises the bogeyman that allowing police use false documents in interrogation would open the door to fabrication documents, of court such as warrants or judgments, thus eroding the public’s respect for the authority of court orders. 552 So. at 2d 974-75. We strongly disagree. One postulate can all types of scenarios which not would pass consti- tutional muster and would erode the confidence, public’s but that does not mean that the rather innocuous document used in the interrogation in the instant case is such document. Some would argue that the police should not lie at all. How- ever, that is not the Otherwise, current policy. many common police tactics would be barred. Several techniques which involve deception include undercover officers, police sting operations, and interrogation such techniques as offering false sympathy, victim, blaming the the minimizing seriousness of the charge, using a routine, good-cop/bad-cop or suggesting that there is sufficient evidence when there is not. As long as the techniques do not tend to produce inherently unreliable statements or revolt our sense of justice, they should not be declared violative United States or Nevada constitutions.

The position that permitting police to fabricate documents leads us down a slippery slope displays little confidence in our courts and is out-of-step with what we are trying to accomplish— namely, to justice. achieve It bemay a comfort to judges to have a bright-line dictating test that verbal in lying interrogation is allowed, but fabrication of documents is However, forbidden. ignores this the basic question at issue—would the police action have induced a false confession? If the deception, whatever its nature, not, would the confession should be admissible. In the instant there is no evidence or credible argument fabricated document did or produce likely produce a false confession. we Accordingly, reverse the judgment of the district court and remand this case to the district court for further proceedings.

Steffen, J.,C. J., concurs. Springer, concurs in result only. Rose, J., Young, J., with whom joins, dissenting: I dissent because majority is providing police and prosecu- with tors an investigatory weapon which they have little if for, need but which has great potential for intentional abuse and inadvertent harm and havoc. This case sets the limits to which law enforcement can ingo

using deception or falsehoods to secure a confession from a sets no Unfortunately, majority defendant. limits at all- to use all manner of falsehoods permitting decep- in to secure a confession. that law attempting Understanding tion crime, fighting enforcement needs some latitude in this court to use verbal but permit deception prohibit should their use form, or in written or other deception tangible of falsehoods such tests, statements, falsified lab witness or as doctored photo- This strikes an balance between the graphs. appropriate necessity evidence, for the to use some deception developing carrying while of such or prohibiting falsehoods to over an truly advantage unfair accused. “The determining admissibility test for of a statement obtained is whether that by police deception deception produced a false or untrustworthy confession or statement.” State v. Haywood, 439 1989). (Neb. states, majority N.W.2d As the correctly most have this is courts taken on this issue. approach See Kelekolio, (Haw. 1993); State v. P.2d C.T. Drechsler, Annotation, Admissibility of Confession Affected Fraud, through Artifice, Deception, Trickery, Its Inducement (1965 1993). A.L.R.2d & Supp. 772 case, In this the detective’s lie and the falsified lab went report against Bessey to the of the evidence and strength may not have on any Bessey’s concerns other than implicated part consider- ation of his own or innocence and the evidence against him. hand, On the other none of the cases cited above or cited by its dealt with the majority opinion fabrication of Thus, evidence by documents or physical police. those cases did reliability not consider the of a confession induced by confronta- evidence, ostensibly tion with irrefutable hard scientific as allegations. they to mere oral Nor did opposed consider the of propriety practical consequences police fabrication of docu- Although ments or other evidence. these considerations are majority in the instant fails to implicated acknowledge recognize and therefore fails to that the them Florida court’s physical distinction between oral lies and fabricated or documen- very significant evidence is based on a real and difference. tary The Florida court held that the manufacture of documents by a confession the line overstepped obtain of permitted and violated due under the federal process and state (Fla. State v. 552 So. 2d Cayward, constitutions. Dist. dismissed, (Fla. 1990). Ct. review 562 So. 2d 347 App. in that case was suspected sexually The defendant assaulting niece, five-year-old but the had smothering insuffi- him. charge cient evidence to office, knowledge attorney’s

With the of the state the police they which reports fabricated two scientific intended to use ploys interrogating the defendant. One false report was on prepared stationery of the Florida Department Crimi- Enforcement; nal Law another was on prepared stationery of Codes, Inc., Life testing organization. These false reports indicated that a scientific test established that the semen stains on the victim’s underwear came from the defendant. The police showed the to the reports defendant as a device to induce a interview, confession. Some time later during the the defendant confessed.

Id. at 972.

The Florida court cited “the basic principle that when conduct of law enforcement outrageous, is due process bars govern- ment from invoking judicial process conviction,” to obtain a but it also recognized “police deception does not render a involuntary confession se.” Id. per at 973. case, however,

The instant presents a different question and one which to be one appears of first impression not only in Florida but in the United States. The reporters are filled with examples false making verbal assertions to but suspect, counsel has not indicated nor has our research revealed case in which the police actually manufactured false documents and used them precisely as the police did in this case.

Id. Reasonable expectations regarding adversarial nature of police interrogation “do not encompass the notion that the police will knowingly fabricate tangible documentation or physical evi- dence against an individual. . . . Thus we think the manufacturing of false documents police officials offends our traditional notions of due process of law under both the federal and state constitutions.” Id. at 974. addition,

In the court in Cayward based its decision on “practi- cal concerns.” Id. “Unlike oral misrepresentations, manufac- tured documents have the potential indefinite life and the facial appearance of authenticity. A report falsified for interrogation purposes might well be retained and filed in police paperwork. Such reports have the potential of finding their way into the courtroom.” Id. The court noted the immense workload of the police and prosecutors and the long periods of time that investiga- tions and prosecution may take. Officials who prepare false leave, die, reports may or forget the origins of the reports. The prevalence of photocopying exacerbates the possibility for confu- Also, sion. false might documents be disclosed to the media as a record. public Id. Cayward

The court went on to note that courts routinely accept documents which appear to be self-authenticating. One of the Furthermore, Cayward was such a document. reports the false at issue the door to approve reports might open fabrica- documents, tion of court such as warrants or which judgments, for the public’s respect authority could erode the of court orders. Id. at 975.

The has not addressed or even majority acknowledged these by concerns raised the Florida court. A federal complicated drug practical merely case shows that these concerns are not farfetched In United v. Khoury, States 901 F.2d hypotheticals. (11th 1990), (11th Cir. on other grounds, 910 F.2d 713 modified

Cir. the defendants moved for a new trial because govern- ment had withheld an prosecutors exculpatory investigatory from them in violation of report Brady Maryland, 373 U.S. 83 (1963). hearing, At an ex in camera parte government court that the report informed the district fictitious, completely signed by non-existent DEA spe- agents, chronicling cial conversation that never occurred a confidential informant who by with was invented the DEA. The of this elaborate ruse was to purpose create seemingly material, it in the law exculpatory plant enforcement com- network, and thus track down unauthorized puter access to by someone associated with a defendant in computer case. The

Khoury, 901 F.2d at 970. district court denied the defend- a new trial. The circuit court ants’ motion for reversed this denial on and mostly hearsay because it was based unsworn statements. an evidentiary hearing The circuit court remanded for to deter- Brady mine whether the constituted material. Id. at report 971. Khoury Cayward court cited and stated its own concern that false documents have to potential about “the wreak havoc “Nonetheless, astray.” should Id. at we they go recognize 970. falsifications, circumstances, in certain that such be a neces- here, method . . . .” Id. Unlike sary investigative the false Khoury document in was not to obtain a confession. employed Another with the is problem majority opinion tacitly that it need to fabricate prosecutors assumes that evidence to this, effective in cases like but the State has shown no necessity be documentary for the use of fabricated evidence in physical to obtain confessions from The rationale in attempting suspects. Cayward “fabricating] tangible documentation or applies against Cayward, an individual.” 552 So. at physical would not be violated oral process misrepresenta- 974. Due nature tions the contents or of a document or by police regarding item. Police officers could tape tangible audio or other still claiming they such items as were evidence employ props, against a without suspect, fabricating evidence and creating the potential for intentional or unintentional misuse. The record in this case indicates that document looking like a lab report have worked just would as well with it Bessey: appears that the and the lab had no sample of DNA from Bessey to compare with, any recovered semen but Bessey did not understand the hand, of this. On the other implications a more knowledgeable guilty, even if would realize suspect, that such a lab report must be whether phony, police actually fabricated it or just claimed to have it. The potential for havoc and injustice resulting from allowing police to fabricate evidence to obtain confessions to much appears greater be than its potential benefits in obtaining unobtainable, otherwise valid confessions. Cayward concerns voiced in and Khoury apply in this

case. Cayward is well reasoned and persuasive authority, espe- cially regard to and practical problems potential abuse that fabrication of documents can lead to. This court would be well advised to its and adopt reasoning hold that the use of fabricated documents to induce confessions violates due process under both Const, the federal and the state constitutions. U.S. amends. V Const, XIV, 1; 1, Nev. art. 8. § § DUBRAY, COEUR ROCHESTER Appellant, FERNO SYSTEM; INSURANCE INC; INDUSTRIAL STATE ADMINISTRATION — APPEALS OF DEPARTMENT Appeals SCHOUWEILER, Offi and ROBERT OFFICE Respondents. cer, No. 25883 913 P.2d 1289 April [Rehearing denied November 1997]

Case Details

Case Name: Sheriff v. Bessey

Court Name: Nevada Supreme Court

Date Published: Apr 3, 1996

Citation: 914 P.2d 618

Docket Number: 26362

Court Abbreviation: Nev.