*1 MONTANA, STATE OF Respondent, LARRY Plaintiff Appellant. BLAKNEY, L. Defendant No. 14534. Sept. 1979. Submitted Decided Dec. 1979. Rehearing Denied 1980. Jan. 1093. P.2d *2 Connor, Missoula, Smith, P. & Van Valkenburg, Connor John Missoula, for defendant Jr., appellant. argued, Troland, Gen., Helena, Asst. Atty. B. Mary Greely, Mike Atty. III, Gen., Helena, Atty., argued, L. Deschamps County Robert Missoula, and respondent. for plaintiff of the Court. the opinion delivered
MR. HARRISON JUSTICE *3 on the of deliberate charge arrested was Defendant-appellant 1977, 14, had obtained a after homicide on police June moved thereafter interrogations. Appellant the of several product District was involuntary. because it the confession suppress however, Court, denied the motion voluntary, the found confession the charge convicted of the was and set trial in matter. Appellant state From prison. in the Montana forty years and sentenced conviction he appeals. 1977, 11, police 9:00 on Saturday,
At p.m. approximately June the the River near the of Thibodeau in Clark Fork found Ann body Missoula, had ap- Montana. Ms. Thibodeau downtown area river, her into the death and thrown been parently strangled water ingestion from strangulation aggravated resulting that Ms. Thibodeau learned investigation police into the On lungs. and several appellant with evening spent June drove around evening, they During other young people. car, times to pick up various in stopping Missoula appellant’s beer, on parties. and to check some “park,” hidden some home, took his passengers progressed, appellant As the night before mid- Thibodeau shortly last one Ann except off the dropping trial, the police, ap- when first interviewed by as well as At night. home. In a confession he then took Ms. Thibodeau testified pellant however, he and Ms. stated appellant police, made Missoula after Fork River near Clark bridge Thibodeau parked said he of their companions. Appellant off the last dropping to his for unfaithful being Thibodeau with Ms. became angry her. brother, and suddenly strangled had been dating, whom she dead, and slid her off her from his car he dragged she was Thinking river. into the bridge Thibodeau’s death Ms. concerning Officers questioned appellant 11, at for p.m. approx- 11:00 on occasions: Saturday, four June hours; 12, at for 9:30 a.m. and one-half Sunday, one imately June hours; at 10:00 two and one-half Monday, approximately June hours; at 12:10 two and Tuesday, for p.m. approximately June addition these one and one-half hours. In for a.m. approximately and a to a of his car consented search interrogations, appellant the car search after conducted examination. Officers polygraph on 12. 1:00 a.m. Sunday, first interrogation approximately June had cleaned. The revealed car been recently The search appellant’s on be- was conducted Monday, examination polygraph June The examination and third sessions. questioning tween the second statements. Ap- prior some untruthfulness appellant’s indicated The fourth interview the third interview. during confessed pellant same confession. of a essentially consisted taping interview, of his Prior each advised rights appellant interviews, waivers his respecting rights. During pic- signed table of of the nude of the victim were exposed tures body with The interviews were conducted only room. interrogation officers in the room. interviewing present *4 were in the hall outside the Members of appellant’s family present room. was not confined between interviews. interview Appellant was 18 of at the time of the interviews. At Appellant years age two witnesses testified suppression hearing, expert appellant had a and not could understand his learning disability probably on the waiver forms used There rights presented police. was additional had an had com- IQ testimony appellant had most of the school pleted eighth grade, passed high exam, Butte, had taken vo-tech classes in and had equivalency worked in his father’s business. exist as whether made a for
Discrepancies request appellant counsel. It agreed appellant brought subject up counsel least one of the during sessions. questioning conflicts, however, toas when mentioned an testimony appellant what said an and about attorney, appellant wanting attorney, conduct of the interviewers and after appellant mentioning counsel. states he counsel and one was requested provided.
Appellant of the officers recalled that appellant One questioning appellant and of- if he he should talk with a lawyer asked him thought of- that was Both questioning ficer responded up appellant. resumed the interview after ficers agree appellant voluntarily for the of counsel. No counsel was provided ap- mentioning during interrogation process. pellant called On officers Wednesday, appellant police June and members to the Missoula where was be- he family County jail on held and the statements he had made the 13th ing repudiated 14th, he saw someone else murder Ms. Thibodeau. At stating trial, withdrew this hearing repudia- suppression tion and returned to his off the victim at original story dropping her home about midnight. raises three issues
Appellant appeal: 1. Did the District err in the motion to failing grant confession? suppress appellant’s MCA, 46-13-310(4),
2. Does section on a a defendant requiring motion to that a con- confessionwas suppress prove involuntary, stitute a denial of due in violation United States process Montana Constitutions?
475 sufficient evidence the trial during 3. Did the State present a on the of deliberate homicide? charge verdict support guilty here, we must if
To resolve the first issue decide presented the District erred in confession finding appellant’s voluntary denied his to counsel. and if unconstitutionally right issue, To the first of this the voluntariness determine aspect confession, must of circumstances” sur we consider “totality of the the confession with no fact single being dispositive rounding 198, (1979), ., . . . . . P.2d issue. State v. Grimestad Mont. 598 202, 1245, 1251; (1977), 264, v. Lenon 174 Mont. 36 St.Rep. 901, When, here, 570 P.2d 906. defendant youthful questions the voluntariness of a the circumstances the Court must consider include: accused; accused; 1) 2) 3)
. .
of the
education
age
if
of the accused as
both the substance of the
knowledge
charge,
filed,
been
and the nature of his
to consult with an
has
any
rights
silent; 4)
the accused is held incom
and remain
whether
attorney
relatives,
municado or allowed to consult
friends or an at
with
5) whether the accused was
before or after for
torney;
interrogated
filed; 6)
7)
mal
had been
methods used in
charges
interrogation;
8)
non
whether vel
the accused refused
length
interrogations;
occasions;
9)
statements
whether
voluntarily give
prior
statement at a later date
accused has
extra
repudiated
judicial
.an
(5th
1968), 399
cert.
. ..” Westv. United States
Cir.
F.2d
1102,
903,
denied, 393
89 S.Ct.
We should also
the mental
consider
capacity
Warden,
(4th
1966),
v.
367
Maryland Penitentiary
Smallwood
Cir.
945,
denied,
1022,
1374,
cert.
87
18
F.2d
U.S.
S.Ct.
L.Ed.2d
460; the
of nude
of a murder victim
visibility
pictures
during
defendant’s
v. Roberts
interrogation, People
Mich.App.
examinations,
605,
182, 185;
143 N.W.2d
the use of polygraph
(9th
238, 241;
1975),
v.
Cir.
509 F.2d
defendant’s
Keiper Cupp
with the criminal
States
justice system, United
previous experience
558;
(9th
1971),
and,
451 F.2d
a defendant’s
Cir.
Glasgow
world,
(9th
v. Hilliker
adult
United States
Cir.
experience
1970),
101, 102-03,
denied,
436 F.2d
cert.
401 U.S.
91 S.Ct.
States,
One additional rule aids us in this case. We stated in deciding Grimestad:
.“. . The issue of voluntariness of a confession is factual largely determination, addressed to the discretion of the trial court... The *6 trial court’s as to of a voluntariness confessionwill not be judgment reversed on unless is of the appeal clearly against weight Lenon, evidence.” 598 P.2d from State v. 570 P.2d quoted at 906.
The trial court here reviewed the evidence and determined appellant confessed. In almost voluntarily considering one every the factors listed above relevant the volun determining confession, tariness of evidence appellant’s exists supporting of the District Court. holding was an
Appellant adult. He had most of his legally passed school examination and attended high equivalency vo-tech school. IQ within the normal Appellant’s adult The trial range. found that demonstrated an judge appellant of the understanding his English courtroom language during testimony. had Appellant worked in his father’s business. had Appellant prior experience with the criminal justice system, having been advised previously his in connection with rights matters. The four juvenile interroga- tion sessionslasted two about hours each and were out only spread sessions, home, over several Between went days. appellant free consult with members and move about as he family pleased. District found that Court did not in- polygraph procedure timidate stated at the appellant. Appellant suppression hearing that he did not much attention of the victim left pay pictures on a table exposed during questioning. Appellant repudiated else, his blame for the murder on someone but placing later returned his off the original victim her story dropping home. exists, above facts some to the contrary evidence
Although show the of the District does not contravene clearly decision Court must, therefore, the District of the evidence. We affirm weight on Court’s the voluntariness confession. ruling appellant’s issue, to the second of this whether Speaking aspect ap denied his. to counsel unconstitutionally right during pellant the District concluded: interrogation Court process, “That the defendant never made an effective assertion of counsel and in event thereafter waived the any knowingly intelligently of counsel he did not want a presence by spontaneously stating to the lawyer resuming talking police.” This conclusion two raises for questions consideration appeal: (1) and, (2) Did assert his to an appellant effectively right attorney? so, if did thereafter his waive counsel? right Miranda,
In
stated:
“Prior to
must be
any questioning,
warned
he has
person
silent,
remain
right
he
any
does make
bemay
statements]
him,
used as evidence
and that he has a
against
right
of an
either retained or
presence
attorney,
The defend-
appointed.
ant
waive effectuation of these
may
the waiver is
rights, provided
however,
made
voluntarily, knowingly
intelligently.
he in-
If,
dicates in any manner and at
any
he
stage
process
*7
wishes to consult with an
before
there can be no
attorney
speaking
added.)
(1966),
questioning.”
Miranda
(Emphasis
v. Arizona
384
436, 444-45,
U.S.
86 S.Ct.
Although conflict- suppression hearing gave ing testimony used concerning language in al- by appellant counsel, his legedly asserting the trial court found that right ap- twice, of an on the pellant “brought up subject attorney” sec- ond occasion I should have an This stating, “maybe attorney.” language brings assertion within the “indicates in appellant’s any set out in manner” Miranda as the for an ef- language requirement Thus, fective assertion of the to counsel. the District er- right Court concluded that roneously did assert his appellant effectively to counsel. right
478 decide, therefore,
We must if the District also erred in Court waived an ef concluding his counsel after appellant right fective assertion of the the United States right. Although Supreme issue, has not ruled on see Brewer v. Williams yet 387, 405-06, 1232, 424, 97 U.S. S.Ct. 51 L.Ed.2d several the circuit courts have held a defendant can waive the validly right to counsel after for counsel. United States v. making request (9th denied, 1978), 482, Cir. 569 F.2d cert. Rodriguez-Gastelum 760; 436 U.S. 98 S.Ct. 56 L.Ed.2d United States (5th 1973), 487 We hold that this view cor Cir. F.2d 945. Hodge the situation in Montana and this rule. In so rectly interprets adopt we that a waiver of the counsel cannot be recognize right doing, and that the State bears burden show waiver. heavy presumed (1979),--U.S.--, North Carolina v. Butler S.Ct. 286, 292. L.Ed.2d this standard and the District Court’s findings
Given fact, waived his did not err in holding appellant District Court found that the first assertion counsel. District Court right After advised was made right Sunday morning. being wished, continued that he have counsel if he appellant could police Thus, abandoned his voluntarily answering questions. the inter at this resumed unilaterallly counsel right point officers. The Sunday view without interviewing prompting state around noon with no incriminating interview terminated made being by appellant. ments until eve- did not begin Monday session
The next interrogation hours in- elapsed, more than 30 the interviews Between ning. was not detained which appellant a full business day cluding if or an he attorney members to consult with family was free re- again interrogation, appellant to the Monday wished. Prior the ques- a waiver. During and signed his Miranda warnings ceived session, to counsel. With his right asserted appellant again tioning leave this, began questioning appellant the officers stopped re- to the and they police resumed talking the room. Appellant then an attorney. Appellant said he wanted him he had just minded continued. and the interrogation not want a lawyer he did stated
479 — the more than 30-hour time be- These facts span particularly to counsel and tween the first assertion the right any inculpatory statement, the of his Miranda rereading warnings signing statement, a of waiver before any incriminating express — that he did not want a a statement by appellant lawyer represent tjbe waiver of to counsel on the right part appellant. law on the
The second issue raised is clear. Re by appellant cent Montana United decisions in Supreme States 46-13-301(4), (1972), validate section MCA. 404 Lego Twomey 619, 618; (1974), U.S. S.Ct. 30 L.Ed.2d State v. Smtih Mont. 523 P.2d 1397. The State must prove voluntariness of a at a confession suppression hearing by preponderance evidence. If the trial court section applied 46-13-301(4) and required the confession in appellant prove it erred. voluntary,
Error
the trial court cannot be
by
but must be
presumed
shown
the record. State v.
by
136 Mont.
Straight
264-65,
“(b) Burdens It well proof suppression hearings. established the burdens of and persuasion general- production *9 hearing. rest the movant suppression ly upon [Citations situations the ultimate in some well-defined Concededly, omitted.] an initial shift to the may government upon burden of persuasion if a defend facts the defendant. For example, of certain showing or to a search that he was arrested subjected ant evidence produces warrant, to shifts the government justify without a the burden if a defend or search. Or the warrantless arrest [Citation omitted.] under while he was that a confession was obtained ant shows of then has the burden interrogation, government custodial waived his against that the defendant voluntarily privilege proving situations, the must . . . even in those self-incrimination defendant evidence on burden some his initial producing discharge of first to make a show prima allegations specific facie sufficient factual ” 1977), (5th 548 Cir. States v. DeLa Fuente United illegality. ing of 932, 2640, denied, 528, 533-534, 97 53 431 S.Ct. cert. U.S. F.2d 954, 479, 312. 98 S.Ct. 54 L.Ed.2d 249 434 U.S. L.Ed.2d 1129, (10th 1975), 510 F.2d v. Crocker Cir. In United States a confession. On motion suppress trial court denied appellant’s the trial court at the suppression contended appeal, her to assume the burden proof required hearing improperly The responded forward with the evidence. Circuit Court of going to this argument, saying: must ‘a foun- on a motion to there be is fundamental suppress
“It Richmond, 365 U.S. for the result.’ legal Rogers dation in fact 742, (1961). 735, dictates 760 Logic 5 L.Ed.2d 81 S.Ct. does in fact an accused that a Motion filed Suppress pre-trial facts sus- necessary the movant present cast the burden upon Crocker, at 1135. 510 F.2d tain his position. omitted.]” [Citation on to state: goes The court evidence in support first must present
“While the defendant of challenging his burden which satisfies his motion suppress that the Government have recognized we legality a waiver of proving burden countervailing then carry must F.2d self-incrimination.” against privilege the constitutional at 1135. 856, (9th 1974), 500 F.2d also States v. Polizzi Cir.
See United denied, 820. 95 S.Ct. 42 L.Ed.2d cert. U.S. can require party These cases indicate trial judge properly hear- for the of evidence initiate suppression moving suppression rationale for such a is the require- ing procedure proceedings. that a constitu- that the movant establish a facie case prima ment accom- tional has occurred. Once this has been infringement of the state’s the ultimate burden proving propriety plished, Thus, shifts to the state. the District here did not err in action his evidence first the suppression present requiring appellant hearing. allowable, we do not recommend this
Although procedure standard The District Courts practice suppression hearings. *10 should this when establish a necessary employ procedure only a facie case of the If facie case infringement by State. prima prima of evidence to is presented by party requesting suppression documentation, court’s satisfaction through prehearing the trial be to initiate the required the State should suppression hearing pro- on This will the burden ceedings. procedure clearly place proof required Smith. by Lego The second error here is whether possible presented there was an burden of at the put improper proof sup The above from the hearing. excerpt hearing transcript pression standard at shows the trial the incorrect clearly judge applied After hearing. hearing argument State’s suppression ap the confession was pellant required prove involuntary, judge he that what the said was true attorney stated thought prosecuting above, noted we find that As required appellant proceed. to assume the forward this required appellant obligation going with the evidence. It also shifted the burden proof appellant. However, here that even the trial court’s ruling we find though burden, can be as harmless did shift the sustained error. ruling constitutional error. The error here is federal v. Lego Twomey, 1774, (1964), 368, 378 84 S.Ct. 12 v. Denno U.S. supra; Jackson While not all errors of constitutional call magnitude L.Ed.2d 908. 482 reversal,
for “. . . before federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless a reasonable doubt.” v. beyond Chapman California (1967), 824, 828, 386 87 17 705. U.S. S.Ct. L.Ed.2d error,
In
the existence of harmless constitutional
determining
court
has the task of
appellate
considering
question
applying
the harmless
a reasonable doubt test.
386
beyond
U.S.
Chapman,
824;
24,
87
see also
v.
395
S.Ct.
Harrington
Califronia
250,
1726,
284;
89
U.S.
S.Ct.
23 L.Ed.2d
Schneble v. Florida
427,
1056,
(1972), 405
92
U.S.
S.Ct.
As in the trial judge Rogers, from eleven court heard testimony The trial hearing. pression father, who *11 the officers witnesses including appellant, appellant’s examiner, a clinical the psychol- appellant, polygraph interviewed The trial allowed judge disabilities learning specialist. and ogist, as adverse in appellant’s to examine witnesses attorney appellant’s of the initial the conclusion appellant’s At initial presentation. of voluntariness introduced evidence the State presentation, rested, court the trial own When the State its witnesses. through the rebuttal testimony. opportunity present gave appellant direct, conducted extensive both sides the Throughout proceedings, redirect, cross, the addi- and examination of witnesses. In recross had the of the trial benefit tion to the witness testimony, judge the on the voluntariness question. briefs from appellant counsel, of the and the briefs testimony all this considering After Given the extensive found the confession voluntary. trial judge of and the full appellant present of the proceedings right nature issue, we convinced reasonable doubt his case on this are beyond of the result the regardless the would have reached same trial judge error proof appellant. the burden placing Any improper not warrant the returning harmless error does thus constitutes case the trial court. lack the third issue concerning arguments
Appellant’s support guilty of evidence the Regarding sufficiency merit. verdict, this Court has said: we examine the
“On evidence determine whether the appeal so, substantial verdict is evidence. In we view supported by doing the in the most evidence favorable to the light State.” State v. Merseal Mont. 538 P.2d 1938. evidence that the the State presented placed
Beyond with the victim about three blocks from scene appellant time of the could Appellant murder near murder. probable at the time murder occurred. probably his whereabouts explain brother, to me for had told his “I think they’re going get Appellant him before the even about questioned murder” police And, had borrowed his brother’s shoes homicide. appellant wet, because his own were even though after murder morning who the victim on the night witness was with appellant every had not walked near any murder agreed evidence, most favorable when viewed the light water. This level, State, must when the trial as we do State prevails on the charge conviction supports sufficiently appellant’s homicide. deliberate reasons, of the District we affirm the foregoing judgment
For Court.
MR. CHIEF HASWELL and DALY concur. JUSTICE JUSTICE MR. SHEEHY dissenting: JUSTICE This is the kind of case that is to add guaranteed hairs an gray already graying judge’s head. The record discloses strong that possibility defendant Larry Lynn Blakney guilty deliberate homicide in the murder of Ann Thibodeau. But the record also discloses that the strong possibility confession uttered was by Larry Lynn was Blakney obtained with in- involuntary, coercion, dicia and the District Court the burden of put proof with to voluntariness respect at upon wrong party suppres- sion hearing. Reversal means further to the and a expense county loss of a possible conviction. Affirmance that means con- Blakney’s stitutional must be rights our explained away, places approval Therefore, on the led the procedure confession. I come down on the side of reversal.
The circumstances the confession need surrounding some further elaboration. The of Ann Thibodeau was body found at approx- 9:00 on imately p.m. 1977 in the Saturday, Clark Fork June River, near downtown Missoula. at the officer’s Blakney, request, went to the Missoula station at 10:30 police He p.m. evening. was interrogated beginning 11:30 for approximately p.m. one and one-half hours. Following which was interrogation, recorded, officers, taken his home Blakney by interrogating where his car was searched to his pursuant consent. also They were shown the interior of home. broke off contact Blakney’s They with him at 2:00 a.m. morning 1977. Arrangements June were made at that time for to come into the station Blakney police for a morning 9:45 a.m. second approximately interview. 12, 1977,
This second interview on lasted approximately June two to two and one-half hours. was con- Again interrogation ducted in the room police interrogation in the of two presence officers. At this police interrogation arrangements were made for to take a examination on the Blakney at a polygraph following day time be agreed of the officers is in- upon. Although testimony matter, consistent about the it is conceded two officers and it
4-85 for an at- that some of request the trial court type was found 12. interrogation Blakney during was made by torney June went to the inter- Blakney police On Monday, June examination. was con- room It rogation undergo polygraph *13 examination commenced ducted Cascade County deputy. in the 9:15 and was conducted p.m. presence approximately officers, four the examiner. Since police including polygraph had on vacation the his uncle father Blakney’s gone previous day, to station When the examina- came with him. police polygraph tion the uncle was seated an door outside inter- began, open room and was able to hear the first few of the rogation questions examination. The examiner shook his head in the nega- polygraph tive, officer, to said another who then something suggested police himself, to that he or to aget the uncle remove soft go upstairs this, he to drink or The uncle did and when something. attempted basement, room, to return found the door interrogation come, waited there until the which he had locked. He through was at which time an officer polygraph interrogation completed came out to the uncle to tell that the “was him boy confessing.” examination, defendant was During polygraph young wall, on seated and the table near him were out facing spread file, of the but a dozen or so of the parts pictures police particularly nude Thibodeau. When the examiner had body Ann polygraph examination, machine, he chart from the finished his removed the defendant, him, and the defendant behind showed placed chart of a “known lie.” The examiner then recording polygraph chart, went on to state other in the that “highs” by showing examiner testified Blakney lying. Blakney polygraph own, “well, some I wouldn’t want the daughters said I’ve got my to them to Ann.” same as what thing happen happened Blakney told him that the examiner would also testified the examiner on a in front of the take the test and flash it screen up big polygraph main- and show the where the examiner places would jury jury tained that lied. Blakney in this is as examiner regard
The testimony polygraph follows: results, did reviewed the you came over After
“Q. Larry you Yes, told him did. I at that time? A. I make statements Larry any with the be best if he leveled would I thought probably what and told them happened. authorities married? A. Yes. “Q. Are you children? A. Yes. have “Q. any Do you two one have boys, or A. I “Q. boys girls? And are they one 16. A. No.
“Q. girls? No at that Larry a statement time that make you Did “Q. you didn’t want this you of daughters happening a couple had — and talking what am about talking To I clarify them? A. Okay. — two sons my I have marriage, first my about marriage have two daughters, step- I On second marriage, first marriage. my and that’s true. daughters, effect, he knew to that you make a statement
“Q. Did you your want happen and that didn’t you was lying *14 statement. I to that made that not I going say I’mA. daughters? don’t remember. honestly not make the statement? that did
“Q. honestly say you Can you that. wouldn’t honestly say A. No. I Yes, to I did. statements him? A. make other Did “Q. any you exam, over the advise- when we went we first started Before bottom, made on the also the waiver of rights ment of rights, that this was being him if he knew and asked Larry, very plain cannot that the results on his polygraph done voluntarily part, of Montana. him in be used against was con- the test after a statement Larry Did make “Q. you put that were going to the effect you of something cluded and he to a jury and have it shown on a screen of the test results No. homicide? A. of deliberate found guilty would be To to that? A. that was similar statement make “Q. any Did you no. knowledge, the best my statement, one other than possibly other make any Did
“Q. you or either the use results concerning about the daughters, Yes, did, the crime? A. I because involvement in probably Larry’s that, cases, if it that the results tell then is stipulated in most I’ll you used, attorneys and the only attorney prosecuting can but if his be it, that can be used.” will the results stipulate this, who the two inter- officers originally Immediately following into the testified that Blakney came back room. rogated Blakney that he to tell knew that he did it and ought told him they they that he again At this testified point, Blakney requested everything. an that such but request The officers testified he made attorney. and so further was about then he went done talking nothing it. testified that he assumed that because continued they Blakney not an at that him that he was interrogating going get attorney time. officers,
At this to the Blakney, point, according testimony who concerned what a about confession would mean of his was assured that it was a for good members family, thing that, him to do and would understand. With family confessed the murder. Later he a further confes- Blakney gave sion that was or recorded. taped
The evidence the actual confession a very reveals concerning It is me to emotional scene. this evidence and leads testimony conclude that committed the murder. But Blakney probably also me to in evidence the confession forces testimony leading up that his rights conclude constitutional self-incrimination against his counsel were overridden. right course, real was unconstitutionally if first confession Of about, then is likewise inadmissible. the second confession brought event, of a its the voluntariness considering In any v. White to be considered. State truth or falsity 761; den. 405 P.2d cert. 384 U.S. S.Ct. Mont. *15 in the absence Where a confession is given
The
concedes that
majority opinion tacitly
the evidence respect-
close,
voluntariness is
and that
ing
there is evidence which would
record,
either side of the
support
issue. It
further clear from the
that the District
assumed that
Court
it was bound
provisions
46-13-301(4), MCA,
of section
that the “burden of
that a
proving
confession or admission was
on
shall be
involuntary
defendant.” This is the first case where the Montana Supreme
46-13-301(4),
Court
invalidates that
directly
portion
section
had, however,
(1974),
MCA. This Court
Smith
334, 338,
Mont.
523 P.2d
stated that the rule in Montana
was that the state must
a
prove
voluntariness of confession
aby
of the evidence. This rule was
preponderance
also enunciated in
State v. LaFreniere
163 Mont.
I cannot agree not mentally a reasonable doubt. I am ness was harmless beyond to make that agile In when the enough syllogistic leap. my opinion, District Court concluded did his burden of Blakney carry law, a burden he did not have under correct version of the proof, the District committed error reasonable doubt. beyond
To find no or I error clarify my position, particular significance in the fact that his evidence on at required first Blakney put correct suppression hearing. procedure suppression first, calls for the defendant to on his case least to hearings put involuntariness, establish a case of because otherwise prima facie his motion would be defeated if no evidence were either given side. Once the case has been established the burden of prima facie
489 to the shifts the State prove voluntary character of persuasion the confession. that stated the rule in Montana clear I have also want make
I the a State by preponderance must be proved by that voluntariness evidence, disagree is decisis. I the rule stare the because only of LaFreniere, which supra, of in v. the this Court holding with voluntariness of respecting refused standard adopt proof a decision in following court was a doubt. Our reasonable beyond 477, 619, (1972), 92 30 L.Ed.2d v. 404 U.S. S.Ct. Twomey Lego 626, There, decided 618, Court the United States Supreme 627. a of of con- a doubt the voluntariness that reasonable proof beyond of the When the logic not constitutionally required. fession was a does not hold in decision reaching nine men in Washington water, decision, we should not follow we are not bound by reached the it The United States Court blindly. Supreme that “the reasoning pur- rule in such cases preponderance upon has designed nothing voluntariness is serve hearing a pose . . with of verdicts .” jury whatever to do improving reliability 486, at is 92 625. That reasoning demonstrably 404 U.S. S.Ct. verdict that is assure the wrong; reliability jury precisely fact, is before the jury per- are In hearings permitted. suppression court first deter- required mitted hear a trial is in v. Denno voluntary. mine the confession fact Jackson 1774, Montana, (1964), 368, 84 S.Ct. 12 L.Ed.2d908. In 378 U.S. statute, not to of the confession is admissibility the issue of 46-13-301(5), When one to the Section MCA. be submitted jury. crime must be proved beyond considers that element every (section 26-1-403(2), MCA) the ef- catastrophic reasonable doubt defendant, a confession of hear jury fect permitting on a less than beyond is determined basis of which admissibility doubt, has moved away be debated. California cannot reasonable has held regard, from the States Supreme United fundamental, self-incrimination is so that the privilege against standard the reasonable doubt judicially, so highly regarded confessions. excluding chance involuntary the greatest presents 490
People 21 Cal.3d Cal.Rptr. Jimenez P.2d 672.
Persuasive to the California court
fact that once a confes-
sion is determined
the trial court to be
and therefore
voluntary
admissible,
issue,
does not redetermine the
jury
voluntariness
and the
court is bound to
appellate
the trial court’s resolu-
accept
evidence,
tion of
unless it is
conflicting
so
as to be en-
improbable
tirely unworthy
belief.
Jimenez, supra,
Cal.Rptr.
Finally, conclusion that my Blakney denied his Miranda rights with to respect counsel. The majority opinion finds that he asserted his but effectively that he right waived the same. It is true that the United States Supreme Court has held that the State bears a “heavy burden” to show waiver of to right counsel. North (1979), 369, Carolina v. Butler 99 U.S. S.Ct. 60 L.Ed.2d 286, 292. I am frank to state that don’t I know what a “heavy burden” is but I think it should be less nothing than beyond reasonable doubt. Here that standard again has not been met in this case. remand,
I would reverse and at least for a to proper hearing the voluntariness of the confession.
MR. SHEA dissenting: JUSTICE I would reverse the cannot conviction. I conscience abide good the bald conclusion of the trial court after a on a motion hearing that defendant voluntary that the confession was to suppress, to counsel. right was not denied his reached by recitation and conclusions with the factual
I agree
dissent,
at this
I am
convinced
in his
although
Sheehy
Justice
standard
the State
time that we should
California
adopt
volun
that a confession is
a reasonable doubt
must prove beyond
him trial. People
it can be introduced against
before
tary
I do not that evidence dispute exists of the supporting holding court, trial but if a standard other than virtually meaningless (in case) one of of the preponderance evidence the context of this were the trial court applied, would have been that find required the State did not the confession and prove voluntary a waiver counsel clear by evidence. convincing then proceeds discuss evidence as to each of majority however, is, the factors. The that problem essential another trial (let if he was so inclined us he had lean- if judge, say philosophical different those of the ings then trial right judge concerning confessions), counsel and could have taken obtaining the opposite concluded, record, with in the position, adequate support the State did not that the confession prove voluntary the State did not that defendant waived his to counsel. prove right decision trial This court would have looked in just good as well print, although nearly accepted public. abstract, Viewed in the deference trial court deci- given sions the facts distinct nice-sounding; gives impression that the is not court the factual appellate determina- meddling could, tions of the trial court. I would also like believe we assurance, with full this kind of give deference the trial court and its functions. We refer this rule when fact-finding constantly we decision the trial court as is factual uphold determina- tions. (it
Aside from the standard in this case should improper applied evidence), at be least clear and in this convincing problem *19 where to a situation there this of deference is in rule case applying to listened the carefully the trial court no indication is evidence, to evidence, came and then evaluated carefully to the facts a law application careful conclusions proper to one’s are service giving only lip them be. We as it perceived trial courts in if do not require we constitutional rights con- alleged on factual rulings questions relating their reviewing violations. stitutional know, this case the motion do for in after example, How we advisement, if the trial court took five taken under suppress decision, its or reaching the case before considering minutes case before it it fifteen hours in considering whether took not that a its This is five necessarily say reached decision? or be that a automatically inadequate minute consideration would But, can be hour consideration would be it adequate. safely fifteen that, decision, one knew the trial court stated if regardless decision, for hours considered the case fifteen before its it reaching would at indicate that it had considered the case. carefully least a that when this reviews decisions of
It without goes saying court, is that we know how trial court helpful perceived trial it determination, if and how applied the facts it is factual making law to It is when the issue involves a important the facts. most such as violation of fundamental is involved here. claimed right not, is than that this Court it more often case Unfortunately, to how why trial any meaningful insight does receive court reached a decision. The rule general seemingly applied facts, about the and how it applied trial courts less it says facts, the will be that its decision its chance the law the better case, but exists in this it is be That situation upheld appeal. will Here, of fact and conclusions more the only findings much serious. involved, Attorney are after County of law those prepared by decision, which were then given reached its the trial court had to as what We some sign. insight to the trial court perhaps get and the conclu- the facts be appropriate the prosecutor perceived facts, nothing but it to draw from those adds absolutely sions the trial court’s decision. legitimacy *20 not
Had it been for the after-the-decision of a law suggestion school intern then for the working Missoula County there Attorney, would not have been any and findings conclusions entered in this case. This revelation important was first unearthed the oral during before this arguments Court. The prosecutor the cir- explained cumstances.
This Court was the as to whether the questioning trial prosecutor court had entered a memorandum in of its decision or had support entered of fact and conclusions of law. the findings In reply, prose- cutor revealed that the trial after court had taken the suppression advisement, motion under it later notified the County Attorney’s office that it had entered an order the defendant’s motion denying or was about enter such an order. was then that suppress, It the law student to the that it would be a suggested prosecutor good idea if the the trial court with and prosecutor presented findings conclusions in of its order. The support prosecutor this agreed and, was a wise and con- suggestion accordingly, findings prepared clusions and them the trial court for presented signature. conclusions; indeed, trial court verbatim the and adopted findings in order which the and conclusions is findings appear exactly Thus, the same document presented by prosecutor. only and conclusions before this for findings review are those pre- and tailored pared by by prosecutor.
The trial court not had and requested conclu- proposed findings therefore, sions from either side. if the trial Presumably, court did all, so was and going enter its own. At least the prepare defendant would believe this that the naturally trial court re- being no or conclusions from either quested findings side. Counsel for defendant at the on the motion to hearing is the same suppress counsel as this argued I it will come as appeal, imagine quite revelation him as to the to the tailored background leading up and conclusions the trial findings signed court. course, but would not has carried the I day, give
The majority, and conclusions one ounce weight findings prepared, pre- conclude, sented, as the in this manner. To signed majority of the to the decision has, be given all deference should this evidence, to, of the and evaluation in weighing trial court listening in highest degree. substance of form over an exhaltation to sup- his in court on motion not have fair day did Defendant placing trial court’s erroneous ruling of the because press was compounded by defendant. This error burden Where the find- used in case. decision-making process strange made, the decision after prosecutor were tailored ings how can no for the defendant participate, and with opportunity re- that the trial court fairly conscience believe good anyone law in a fair and evaluated the evidence applied ceived and manner? even-handed did not come that the prosecutor revelations
Assuming *21 this that the and that believed oral Court during arguments, light alone, those court if we were trial conclusions findings of this nature requiring a standard of review questions had than evidence rather convincing clear prove by evidence, the would have required evidence preponderance a more the District Court. By adopting to reverse standard, trial as we are courts be only encouraging stringent their decisions on questions involving vague possible reaching fundamental constitutional rights.