*1
MONTANA,
The STATE OF
Respondent,
Plaintiff
Appellant.
DESS,
THOMAS
Defendant
No. 14616.
Sept.
1979.
Decided Oct.
Lang argued, Great Lang Falls, for defendant and appellant. Gen., Asst.
Mike Allen B. Chronister argued, Atty. Greely, Atty. Gen., Helena, Bourdeau, Michael G. Barer County Atty., Fred J. Falls, and re- for plaintiff Great argued, Deputy County Atty., spondent. of the Court.
MR. HARRISON delivered opinion JUSTICE Defendant from appeals District Court judgment District, Eighth Cascade the Honorable H. County, Judicial William Coder him of the crimes of presiding, finding misde- guilty theft, meanor criminal and three trespass, felony counts of felony criminal mischief. The criminal trespass conviction related ap- pellant’s allegedly & unlawfully entering remaining LJ Tire in Great Company Falls. The stemmed from felony charges theft and destruction appellant’s alleged property belonging Bison Motor in Great Falls and the Company Great Falls. City
At a.m. 6:00 approximately two Great January Falls officers police alarm at the & responded burglar L Tire J Falls, in Great Montana. Company On investigation, they discovered two individuals behind the bathroom hiding door tire One' company individuals was building. Thomas Dess. The police officers observed leukemia poster lying on the floor of the area of the with no in it. shop building money officers arrested police and his companion.
Sometime in the hours of the same early morning day, pickup truck was removed from the premises of Bison Motor Company, *3 the Ford in dealership The truck Great Falls. was driven through addition, fence In and premises. antennas of lightbars two cars on the Bison Motor police lot were Company damaged. Great Falls police recovered the truck later that south pickup day of Great Falls. found the They driven off the and pickup highway stuck in some snow. The truck had been as result be- damaged driven lot ing the car fence. through 19, At a.m. 10:30 on while in in approximately January custody the Great Falls made a statement to Lt. jail, appellant allegedly Cook to theft confessing participation pickup James Bush, and cars. Lou Ann damaging police stenographer for the Great Falls Police recorded the statement. Department, 3, 1978,
On an in- Cascade filed February County attorney formation District Court with theft charging appellant burglary, criminal mischief. on arraigned February Appellant to entered of not all District Truman G. pleas charges. Judge guilty On March for March trial in the matter set Bradford was con- The trial date on bail. from jail was released appellant 11, 1978, Bradford. On of Judge due to the illness to tinued April ill, accepted Coder Judge being Bradford still Judge April date for July a new trial later set of the case. He jurisdiction filed a mo- Ferguson Cameron defense counsel 1978. On June of his resigna- trial date because continuing tion for an order 30, 1978, effective defender County public tion as Cascade June to the case assigned subsequently that the attorney and requested with the case. Judge familiar a month to become at least given 4, 1978. trial for September an resetting entered order Coder reset because the trial be attorney requested On the county July the trial for Coder set Judge 4 was a legal holiday. September held on that date. was subsequently and trial September 19, 1978, a was held con- suppression hearing On September made on the morning the statement cerning allegedly by appellant that he did not recall with talking of his arrest. testified Appellant Cook, Cook, from Lt. or máking Lt. his Miranda receiving warning his activities arrested. On being statement any concerning prior cross-examination, exhibited a recollection of other good 19, and stated a on a events that occurred on January signature waiver of form looked like his He rights signature. consistently Cook, however. The State called denied statement Lt. making at the Based on hearing. no witnesses suppression Coder, on concern that nothing while Judge expressing testimony, Miranda the fact his given the record supported on the record to ap- found no credible evidence support warnings, motion to the statement. and denied his suppress pellant’s position trial, read the into evidence over appellant’s At Ms. Bush statement objection. issues are raised appeal:
The following motion District err in denying appellant’s 1. Did the Court to be the statement allowing confession his alleged suppress at trial? read into evidence *4 speedy denied his constitutional
2. Was appellant trial?
Addressing issue of the of the suppression alleged confes sion, we find the District Court erroneously admitted appellant’s First, statement for two reasons. State failed to the volun prove tariness of confession at a suppression hearing by as preponderance of evidence required by case law. prior See State Grimestad 183 Mont. 598 P.2d 36; State v. Smith 164 Mont. 523 P.2d record,
Looking there be appears to no evidence intro- duced at the suppression hearing that made appellant voluntarily the statement. The witness at the On only hearing appellant. direct examination he testified that he had no recollection sign- a waiver of his Miranda or a ing rights to Lt. making statement On Cook. cross-examination the State established appellant that recalled that many events occurred specific night morning of his arrest and that the on a waiver of signature rights form not, however, looked like his did signature. State introduce any evidence he refuting appellant’s that did make a testimony not statement to Lt. Cook or receive his Miranda warnings.
While the testimony introduced the State tends show by that statement, a it appellant capable making voluntary does not a show by of the evidence he a preponderance that made voluntary as statement the case law. required by Even the trial court’s though at a will not be reversed judgment suppression hearing normally when State fails to show that was advised appeal, his Miranda made rights, the statement attributed to him, or evidence other any than had the mental .appellant capacity statement, to make voluntary the State has carried its finding burden to prove voluntariness of the evidence preponderance is clearly against evidence must over- weight turned on appeal. reason confession should
The second appellant’s purported not been admitted is of the the Miranda warn have inadequacy The warning given appellant. allegedly ap ing allegedly given “We have no way giv- included following language; pellant
121 for if and when you, one will be appointed but ing you lawyer, to court.” go you of a warning on the Miranda adequacy
A
exists
split
authority
held
courts have
warnings nearly
this
Several
containing
language.
v.
here invalid. Commonwealth
to the one challenged
identical
112;
349,
111,
ex
399 A.2d
United States
484 Pa.
Johnson
1250;
1248,
(7th
1972), 467 F.2d
Twomey
rel. Williams v.
Cir.
(9th
1970),
“We hold that the
here
given
warning
to the
was
am-
equivocal
it
contrary,
express explanation;’
was
he had the
one breath
informed that
biguous.
In
breath,
In
next
to
counsel
right
during questioning.
appointed
was
that
not be
until later. In other
he
told
counsel could
provided
words,
at the mo-
the statement that no
can be
lawyer
provided
ment and can
be obtained if and when the accused reaches
only
to
court
restricts the absolute
counsel
right
previously
substantially
stated;
that an
it
alternative
in-
conveys
contradictory
message
first entitled to
an
in court at
is
counsel
digent
upon
appearance
unknown,
is, therefore,
some
time.
at
warning
future
The entire
best,
worst,
and at
a subtle
constitutes
misleading
confusing
to the
accused to
forego
temptation
unsophisticated, indigent
at this critical moment.”
Having 19 statement inadmissi- appellant’s January ble, we must reverse conviction the appellant’s felony charges alleged from theft of the stemming appellant’s from Bison pickup of Motor and the the and the two damaging police cars. The pickup confession in the the undoubtedly weighed minds of heavily jurors in of those finding appellant guilty offenses. conviction
Concerning for misdemeanor appellant’s however, criminal we do not find reversal warranted. trespass, This Court will not reverse the District if an Court error by District Court constitutes harmless error. State v. Rozzell 443, 450-51, 881; 486, 877, 157 Mont. P.2d State v. Straight 255, 265, 482, 136 Mont. 347 488. When P.2d the error is error, federal constitutional with the as admission of improper ap confession, the error cannot pellant’s be considered harmless unless the court finds it v. harmless reasonable doubt. beyond Chapman 18, 23-24, 824, (1967), 386 U.S. 87 S.Ct. 17 L.Ed.2d California 705. The United Court has found harmless con Supreme States stitutional error when the inadmissible evidence was cumulative
123
showed the defendant’s guilt.
evidence overwhelmingly
and other
1056,
(1972), 405
31
Florida
U.S.
S.Ct.
Schneble v.
340;
(1969), 395 U.S.
L.Ed.2d
Harrington
California
is the case here.
Appellant’s
stand, therefore,
claim
unless
trial
has
appellant’s speedy
must
out
This Court
test set
balancing
merit.
employs
four-part
(1972), 407
Barker v.
S.Ct.
Wingo
101, to
determine the
trial claim.
L.Ed.2d
validity
speedy
(1979), Mont.,
State v. Bretz
Under the of of the Barker the length delay prong and shift the between arrest his trial days passed appellant’s reason and the absence of delay burden of for explaining to to the State. State v. appellant Cassidy prejudice 738. Mont. P.2d
The reason for a of the delay approximately majority — one-half of months—was State inability six and the eight to a to hear the and the inadvertent judge scheduling case provide of for This constitutes unintentional delay the trial Labor Day. than in determining must be less intentional weighed heavily delay aof claim. validity speedy 578 P.2d at Cassidy, 738. The re- maining seven weeks of the followed delay motion for continuance and must be attributed to appellant. met his burden of to a
Appellant
asserting
right
speedy
trial
action
taking affirmative
regarding
right, making
motion to
of a
dismiss for lack
trial
between
time the
speedy
matter was
for
set
trial and the trial date.
578 P.2d at
Cassidy,
State v. Steward
168 Mont.
citing
543 P.2d
To ascertain the
of
presence
the fourth element of the
Barker
to the
because of
prejudice
must
delay
test—
—we
(1)
consider the
interests of
following
of
appellant:
prevention
op
incarceration; (2)
pretrial
minimization of
or con
pressive
anxiety
accused; (3)
cern of the
limitation
of
the defense will
possibility
Bretz,
be impaired.
Barker,
185 P.2d at
at
quoting
Here,
Considering together, must we ultimately resolve this issue find the here length delay barely exceeds shortest held sufficient delay previously trigger trial speedy inquiry. attributable to the portions delay are State institutional less than intentional delays given weight Seven weeks of the can be delays. delay imputed appellant. Ap asserted his trial on one pellant only occasion. speedy Ap rests rather pellant’s proof prejudice judicial presumption than concrete evidence actual harm through oppressive pretrial incarceration, concern, or of his defense. impairment anxiety *8 facts, of actual sufficient we do not “... find showing these Given of of harsh dismissal remedy invoke the extremely prejudice Bretz, P.2d at 268. v. supra, cause.” State and conviction theft charges felony felony Appellant’s reversed. The misdemeanor criminal criminal mischief is trespass is affirmed and remanded to the District Court for conviction on that matter. sentencing SHEA, coneur. and SHEEHY
MR. DALY JUSTICES in and dis- concurring MR. CHIEF HASWELL part JUSTICE senting part: theft and
I concur in convictions reversing appellant’s felony I dissent criminal mischief for the reasons stated majority. by conviction. from the affirmance of criminal appellant’s trespass hold that admission of confession majority appellant’s error insofar as his conviction of criminal is harmless trespass (1) The basis of the is threefold: the con- ruling concerned. majority (2) & L fession inside the Tire merely places appellant building; J cumulative; (3) over- this evidence is and other evidence merely shows whelmingly guilt. far beyond placing ap-
In
view
confession
my
goes
simply
his confession
building.
inside the & L Tire
In
pellant
J
&
in between
and
“. . . went
L Tire
stated that he
Dale Gladue
J
tire
other
That coin
There
building.
laundry.
place
two
was broken out on
sides.
in the
door and
garage
glass
hole
big
Sambo’s,
said
in. We went
sat there
Dale
some-
We looked
an
system
back.
told him there was
alarm
about
I
thing
going
coins off the
and took the
desk
through
there. We went back
it.
is when the
showed
policeman
up.”
that is about
That
is “whether
constitutional harmless error
The test
federal
complained
the evidence
there is a reasonable possibility
v. Connecticut
Fahy
conviction.”
contributed
have
might
Or,
stated
L.Ed.2d 171.
S.Ct.
a reasonable
beyond
was harmless
another
whether
error
way,
doubt.
Chapman
386 U.S.
87 S.Ct.
California
The elements of the (1) crime of criminal are a trespass knowing, (2) (3) unlawful entering into the premises another. Section *9 45-6-203, MCA The quoted of the confession part estab- clearly lishes the first two elements of the crime. It is the direct only evidence of unlawful knowing, entry. I cannot fairly say there is no reasonable that the possibility inadmissible confession contributed to appellant’s conviction or that the error was harmless beyond reasonable doubt.
I would therefore remand for a new trial free from the taint the unlawful confession.