State v. Cassell, 932 P.2d 478

State v. Cassell

932 P.2d 478

Mont.

1996

Check Treatment

*1 MONTANA, STATE OF Respondent, Plaintiff CASSELL, WALTER Appellant, Defendant 95-567. No. July Submitted on Briefs 1996. Decided December 1996. St.Rep. 1459. 280 Mont. 397. 932 P.2d 478. *2 §

See C.J.S. Criminal Law 941. Hooks, For William F. Appellant: Appellate Defender, Helena. Respondent: Joseph Mazurek, Attorney For P. General, Patri- Attorney J. Jordan, General, Helena; cia Assistant Dennis Paxi- nos, County Attorney, Billings. Yellowstone Opinion

JUSTICE NELSON delivered the of the Court. guilty Following plea a in the District Court the Thirteenth District, County, Yellowstone defendant Walter was Judicial Cassell appeals of deliberate homicide. District Court’s convicted suppress his confession. affirm. denial of motion We following appeal: We address the issue denying Did the District Court err in Cassell’s motion to suppress his confession? Background and Procedural

Factual 19, 1994, Depart- the Laurel Police of November morning theOn were notified County Department Sheriff’s and the Yellowstone ment behind the 500 block of dumpster had found in a body that a been victim, investigation The revealed Avenue in Laurel. Birch other Formo, drinking been with Cassell and several had John Birch at a house located at 506 Avenue previous night individuals ensued. Formo was stabbed 16 times argument fight an when body dragged His was then from house and severely beaten. dumpster. placed questioning along with the other detained Cassell was transported who were inside the house. Cassell

individuals subjected where he was to three Department Laurel Police incriminated himself in the second interrogations. Cassell custodial interrogations. third 25, 1994, by information with charged Cassell was On November homicide, felony. of not plea He entered the offense of deliberate July 20,1995, represent him. On guilty appointed and counsel a motion to the statements made counsel filed defense interrogations grounds right on the that Cassell’s during *3 under the Fifth Amendment of United self-incrimination against II, and Article Section 25 of the Montana Consti- Constitution States hearing A on Cassell’s motion was held on tution had been violated. days later, the District Court entered written 25, 1995. Four August denying and conclusions of law Cassell’s motion. findings of fact 30, 1995, Acknowledgment an of Cassell executed August On the offense as plea guilty charged. entered a of to Rights of Waiver of right appeal to the denial his reserved his specifically guilty plea if his confession and to withdraw his suppress to motion 2,1995, November the District appellate courts. On prevails he on the years to 100 in Montana State Prison sentenced Cassell Court years additional 10 for the use homicide with an offense of deliberate consecutively. are to run The sentences weapon. of

Discussion suppress motion to denying err in District Court Did the confession? advised that he was not Cassell asserted suppress, In his motion (1966), 436, 384 U.S. Arizona by Miranda v. as mandated of his that did not also contended 1602,16 L.Ed.2d 694. 86 S.Ct. 400 self-incrimination, right against that he was his constitutional

waive he made the and that he intoxicated at the time statements making hearing testimony the statements. After intimidated into interrogations officers who conducted the from the law enforcement Cassell, the District Court determined Cassell was as well as rights prior of his Miranda to his statements and that his advised Moreover, in that respect. were not violated constitutional voluntary and determined that Cassell’s statements were were court by intoxication impaired or taken at a time when he was not coerced understanding him from degree precluded that would have to such of a district court’s denial of a motion The standard of review clearly of fact are errone findings the court’s is whether correctly applied as a matter ous, findings those whether 462, 1019, (1995), 459, 273 Mont. 904 P.2d law. State v. Williams of 181, 188, 89, (1993), Flack 260 Mont. 860 P.2d (citing 1021 State v. 92). clearly supported fact is erroneous if it is not finding A evidence, the effect misapprehended if the district court substantial has a definite and firm conviction that or if this Court (1996), 460, a mistake. State v.Loh 275 Mont. the district court made (1995), 446, 592, (citing 601 State v. Hermes 273 Mont. 475, 914 P.2d 589). 587, 449, 904 P.2d guaran- the United States Constitution

. The Fifth Amendment to criminal case to be a compelled “shall be person tees that no Similarly, II, himself. Article 25 of the ...” Section against witness person compelled shall be provides “[n]o Constitution Montana Miranda, In proceeding.” himself in a criminal testify against privilege against Court stated that the self- Supreme States United “only person guaranteed when the incrimination is fulfilled in the unfettered speak silent unless he chooses ‘to remain right ”Miranda, 460, 1620, at at 384 U.S. S.Ct. ofhis own will.’ exercise (1964), 1, 8, 378 U.S. (citing Malloy Hogan 16 L.Ed.2d at 715 659). 653, 1489, 1493, 12 L.Ed.2d S.Ct. rights only Fifth Amendment if may waive his

An individual voluntarily, knowingly intelligently. has been made the waiver 1612, 16 L.Ed.2d at 707. See Miranda, U.S. at 86 S.Ct. 99, 109, 606 P.2d 1049. State v. Allies also *4 largely question a factual to be of a'confession is The voluntariness totality of the circumstances by taking into account determined Loh, (citing 914 at 601 was made. P.2d the confession under which 1208). 358, 376, 1196, The (1992), 251 Mont. P.2d Mayes State includes several factors: the defendant’s totality of the circumstances education; interrogation technique used level of age and or her the defendant was advised of his Miranda police; whether justice with the criminal prior experience the defendant’s rights; background and interrogation; the defendant’s system demeanor, coherence, articulateness, the defendant’s experience; Loh, full of his or her faculties. 914 P.2d at capacity to make use in Loh that 601-02. We also stated by any confession or admission extracted sort threat or any influence, by any or

violence, by improper the exertion of direct slight, potential being has the implied promises, or however involuntary. 217, State v.

Loh, (citing Phelps 914 P.2d at 602 451). 696 P.2d 46-13-301(1), MCA, authorizes a motion to suppress Section given by or admission a defendant on the basis that confession involuntary. Furthermore, hearing at a concerning statement was suppress, proving, merits of a motion to the State has the burden of by a that the confession or admission preponderance 46-13-301(2), voluntary. MCA. was Section custody concedes that Cassell was in at the time of the State duty interrogations and that the officers had a to inform Cassell of interrogated pm his Miranda Cassell was first 12:40 on 19, 1994, only or after he had November one two hours been taken Jay and Undersheriff Bell custody. George into Detective Jensen hearing At the his motion to interrogation. suppress, conducted the on rights during that he not advised of his Miranda Cassell testified However, both Jensen and Bell testified that Jensen this interview. rights by reading his Miranda the advisement of informed Cassell of The officers also possession. from a card Jensen had in his they conducting testified that informed They spelling pro- the correct investigation. criminal obtained any questions of Cassell’s name and asked him if he had nunciation attorney like to have an rights and whether he would about his present. Bell testified that Cassell indicated understood

Jensen and that he willing to talk. Jensen testified obtained rights and was remainder of the interview. tape-record permission that he had been acknowledge tape Jensen did not have question Jensen conducted the 5-minute informed of his before interview, At of this Cassell was and answer session. the conclusion *5 taken out and placed in a holding area. Jensen testified that he did not sign have Cassell a written waiver of rights as it was not common practice County Yellowstone to do so. brought back into the interrogation room at 2:48 pm day.

that same Jensen and Bell again were present. Jensen testified that he asked Cassell if him he would like his read to again, but Cassell stated that he understood what his were. Jensen informed Cassell that his statement was not consistent with what the other present individuals at the time of the murder had told them. After 5 or 10 conversation, minutes of gave permission to again be recorded.

Cassell testified that during this interview, second the officers told him that Montana had a death penalty and if Cassell cooperated they would see if get years could him 110 rather than hanging. Jensen testified that one of people he interviewed that day, possibly Cassell, had asked him if Montana was a penalty death state and he responded that it was application but that of the death penalty would be determined others.

After the tape on, recorder was turned Jensen conducted a 3-min- question ute and answer session However, with Cassell. Jensen did not affirm on the tape that Cassell had been advised rights. of his It was in this second interview that Cassell incriminated himself. following day,

At noon the Jensen and Rosenberg Officer Laurel Police Department interviewed Cassell. Jensen testified that again he advised Cassell of his rights by Miranda reading the warn- ings from a prior card to the Jensen interview. testified that Cassell objected to having his statement recorded this time but that Cassell go previous did over his statement. Cassell later claimed that he denied the officers’ request interview, for another hence there was no third interview.

Cassell contends on appeal that the District Court erred in denying motion to because the State failed to prove by a prepon- derance of the evidence: that the officers properly advised him of his rights; Miranda that the officers obtained a knowing, intelligent and voluntary waiver of his right against constitutional self-incrimina- tion; or that voluntarily gave any statement. Grey (1995),

Cassell relies on State v. 907 P.2d for the proposition law enforcement officers must record a defendant’s waiver of Cassell contends the State’s failure of proof is “most evident in its willful refusal to record or preserve otherwise some record of the alleged advisement of the warnings. Miranda ...”

Grey factually distinguishable from the instant Grey, case. In warnings the Miranda inadequately given. Moreover, the law enforcement officers used impermissible tactics, including lying and deception, Grey’s obtain Additionally, confession. there was no Grey clear evidence that Here, waived his rights. while giving warnings and the waiver were not tangibly recorded, the trial court observed the witnesses and found that the warnings were adequately given and waived and that impermissible no tactics were used.

Law enforcement officers should be encouraged to preserve tangible advising record of defendants of their rights and a defen *6 dant’s waiver of rights. those To the they extent that not, do failure will be viewed with distrust. We Grey, however, declined in require that tape interviews be recorded. How the record preserved is up is still to the law enforcement Grey officers. did not set out a rule exclusion, guideline but a weighing evidence. Here the law enforcement officers established to the court’s satisfaction that the warnings Miranda properly were given and that impermissible no tactics were used totality and under the of the circumstances the voluntary. confessions were That is all that required. The fact that the warnings and waiver preserved were not tangibly, even if viewed distrust, with does not terminate the if the inquiry, court is satisfied from all the available that the State’s burden of proof was met. totality Based on the circumstances, of the we conclude that Cassell’s statements voluntarily were made and that his waiver of his Fifth Amendment rights was knowingly, made intelligently and vol- untarily. years Cassell was 43 old at the time of the interrogations and lengthy he had a police Thus, record. he was familiar with the justice system criminal interrogation methods. None of the three interrogations overly were long and no threats were made. Moreover, as the pointed out, District Court given by answers Cassell to questions asked of taped him in the interviews were appropriate questions, to the thereby refuting argument that he was too intoxicated to what understand was happening.

Accordingly, hold we that the District Court did denying not err in Cassell’s motion to his confession.

Affirmed. TURNAGE,

CHIEF JUSTICE JUSTICES HUNT and ERDMANN concur. specially

JUSTICE TRIEWEILER concurring. majority I concur with the result of the opinion for two reasons. First, interrogation prior Walter Cassell was done to the issuance of our decision in State Grey Second, Grey P.2d 951. even the decision did not require that Miranda However, I tape why advice be recorded. see no reason Miranda warnings suspect’s interrogation and a consent should not be readily availáble, therefore, recorded when the means to so do are that, future, write to indicate I separately require would either silent, waiver of a defendant’s to remain right written or a record given person of the Miranda advice that was to that and his or her response. case, three separate

In this Cassell was interviewed on occasions. recorded, including Portions of two interviews were his incriminating However, reason, statements. for some when he was advised of his Fifth rights pursuant Amendment to the United States Con- during interview, stitution the first and when he was reminded of interview, rights during those the second the recorder had not been Therefore, turned on. there is no record that Cassell was informed of there is that he rights, rights. no record waived those investigating officers contend that Cassell was advised of his them, part but that that rights and did waive conversation was during that time establishing rapport not recorded because Cassell denies that he was suspect. given warning, with court, that he The trial and this Court denies waived review, required speculate actually transpired, are about what *7 credibility the relative of the witnesses to the conversation. based on nearly always It is no secret that law enforcement will win that Therefore, they have no incentive to record that of the part contest. follows, conversation, actually give and it have little incentive to the advice. required hand, it assuming given, the other the advice was that was

On understood, waived, why that not record the rights and the challenge the inevitable to the admission of conversation and avoid would have saved time for the simple practice confession? That attorney, court, the trial and this attorney, the defense prosecuting certainty that Cassell’s it would have established with Court because it in voluntary suppressed, either or that should be statement was Constitution, applied in Miranda Arizona the as compliance with 436, 86 16 L.Ed.2d 694. 384 U.S. S.Ct. correctly that a defendant moves to majority The concludes when it a or admission on the basis that was involun- confession prove, by preponderance the a tary, the State has burden voluntary. or admission was Section that the confession 46-13-301(2), the majority The then notes that voluntariness MCA. a must resolved largely question is factual which be of a confession totality surrounding the of the circumstances taking into account by confession, lists six factors to be considered. Three of those the (1) interrogation technique police; used the six factors include: (2) of rights; defendant advised his or her Miranda whether the (3) make capacity demeanor and full use of his defendant’s that, case, in problem Grey, The is this as we have or her faculties. court, three The knowledge direct of of those factors. trial no Court, required by trying are about all three factors speculate this interro- weigh credibility people the relative of involved in the Such an unreliable is inexcusable when it is unneces- gation. process sary readily because a means absolute verification was available. In we stated that: Grey, that, in the of a con- hold, interrogation

We do context custodial similarly ducted at the station house or under other controlled circumstances, police preserve the failure of the officer to some his or of Miranda tangible giving warning record of her intelligent by the will be with knowing, waiver detainee viewed judicial under the distrust assessment voluntariness surrounding totality of circumstances the confession or admission. that, more so the evidence demonstrates as That is all the where here, the decision not to secure a officer made conscious or his of the Miranda preserve giving written waiver otherwise to do so warning premise and the detainee’s waiver on the and, thus, rights jeopardize accused would alert the to exercise interrogation. Mont, P.2d at 956. Grey, Fifth recording waiver of his given not excuse case, interroga- inadequate. In this equally Amendment However, appar- rapport establish with him. tors wanted to ob- them from ently having accomplished, nothing prevented been Cassell, had been acknowledgment once the recorder taining an from waived on, had of his and had turned that he been advised could not have been Certainly, acknowledgment that kind of them. *8 any disturbing more to him than being during tape asked recorded interview whether committed deliberate homicide.

This is now the second in case which we have dealt the with issue of it is to necessary whether record Miranda warnings and Fifth waivers, Amendment where I conclude, feasible. would the as Min- (Minn. Supreme nesota Court did in State v. 1994), Scales 518 N.W.2d following admonitions, two such further refusal to record custodial interrogations is unreasonable and should in sup- result pression any incriminating of during statements made those interro- case, In gations. issuing after previous warnings, two that Court stated that: all interrogation

[W]e hold that custodial including any informa- any rights, tion about waiver of and rights, those all questioning electronically be shall recorded where and be feasible must re- questioning place corded when occurs aat of detention. If law to comply enforcement officers fail with recording require- this ment, any suspect response statements the makes in the to inter- may be at rogation suppressed parameters trial. The of the exclu- sionary rule to applied evidence of statements in obtained violation of requirements these must be decided on a case-by-case basis. Following by the approach recommended the drafters of the Model Procedure, Pre-Arraignment suppression Code of required will be of in any statements obtained violation of the recording require- ment if the violation deemed “substantial.” This determination be is to made the trial court after considering all relevant bearing substantiality, circumstances including set those forth 1503(2) (3) in of Pre-Arraignment the Model Code of § Proce- substantial, If the finds a dure. court violation not be it shall set finding. remedy forth its reason for such The rule the will prospectively the apply filing from date of this opinion. (footnote omitted). Scales, 518 N.W.2d 592-93 available, case, When the means is as it was in this there is no justification practical for the State’s failure to record a custodial By so, its failure to do interrogation. jeopardizes prosecution by it risking suppression incriminating statements which have been it legally importantly, obtained. Just as makes determination illegally virtually impossible. questioned that detainees have been readily acceptable Neither outcome is when the means avoid it is available.

Therefore, future, will I follow rule from Scales vote during interroga- all criminal admissions made custodial rights, tions there is neither a when written waiver of detainee’s nor an electronic record of the State’s advice detainee’s response, assuming it is one or feasible do the other. reasons, specially majority

For these I concur with the opinion. joins HUNT foregoing concurring opinion. JUSTICE