728 P.2d 419 | Mont. | 1986
No. 85-620
I N THE SUPREME COURT OF THE STATE OF MONTANA 1986 STATE OF MONTANA, P l a i n t i f f and A p p e l l a n t -vs- JOSEPH FLOYD R O R V I K , Defendant and Respondent. APPEAL FROM: D i s t r i c t C o u r t of t h e N i n t h J u d i c i a l D i s t r i c t , I n and f o r t h e County o f T e t o n , The Honorable R. D . M c P h i l l i p s , Judge p r e s i d i n g .
COUNSEL OF RECORD: F o r A p p e l l a n t : Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , Helena, Montana John P a u l s o n , A s s t . A t t y . G e n e r a l , Helena R u s s e l l R . Andrews, Teton County A t t o r n e y , C h o t e a u , Montana
For Respondent: C h a r l e s M. J o s l y n , Choteau, Montana S u b m i t t e d on B r i e f s : S e p t . 25, 1986 Decided: November 1 8 , 1986 NUV 1 d 1986 F i l e d : Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of the Court.
The State of Montana appeals from an order of the Ninth Judicial District Court granting defendant's motion to suppress. We reverse and remand.
During the early morning hours of January 13, 1985, a burglary occurred at the residence of Lloyd and Joanne Cunniff in Choteau, Montana. Numerous undergarments and swimsuits belonging to Joanne were stolen. The stolen items were valued at more than $300. The burglary was reported to the Teton County Sheriff's office and Ms. Cunniff informed the investigating officer that she suspected defendant.
On January 14, 1985, Deputy Sheriff William Hicks and Choteau Police Chief Anderson went to defendant's home and asked him to accompany them to the sheriff's office for an interview. Deputy Hicks desired to discuss the Cunniff burglary and Chief Anderson suspected defendant of taking a book from the Choteau library. Defendant agreed to the interview and accompanied the officers to the sheriff's office. He was not placed under arrest.
At the sheriff's office, Chief Anderson read defendant his Miranda rights and defendant signed a waiver of rights. First, Chief Anderson questioned defendant concerning the stolen library book. Deputy Hicks then questioned defendant about the Cunniff burglary. Hicks requested that defendant take a polygraph test and defendant refused. Defendant was told that there were fingerprints and footprints found at the residence which would possibly link him to the crime. These statements were untrue. Hicks pressed defendant further and suggested that he make a written statement. Defendant declined and stated he wanted to talk to an attorney. Q u e s t i o n i n g c o n t i n u e d f o r a n o t h e r few m i n u t e s t h e n t h e i n t e r v i e w was t e r m i n a t e d .
During t h e n e x t week, C h i e f Anderson e n c o u n t e r e d d e f e n d a n t on t h e s t r e e t and on two o c c a s i o n s asked d e f e n d a n t i f he had t a l k e d t o h i s a t t o r n e y . Defendant responded t h a t he had been busy b u t would a t t e m p t t o do s o . On J a n u a r y 2 1 , 1985, Chief Anderson a g a i n met d e f e n d a n t on t h e s t r e e t . Defendant s t i l l had n o t spoken w i t h an a t t o r n e y b u t a g r e e d t o go t o t h e s h e r i f f ' s o f f i c e f o r a n o t h e r i n t e r v i e w . Anderson and Hicks d i d n o t q u e s t i o n d e f e n d a n t , however d e f e n d a n t a g r e e d a t t h i s t i m e t o submit t o a p o l y g r a p h t e s t upon b e i n g a s s u r e d t h e r e s u l t s c o u l d n o t be used a s e v i d e n c e .
The p o l y g r a p h e x a m i n a t i o n o c c u r r e d i n Shelby on J a n u a r y 2 3 , 1985. Defendant was t r a n s p o r t e d t o Shelby by Deputy Hicks. Defendant s i g n e d a p o l y g r a p h p e r m i s s i o n form and was a d v i s e d t h a t t h e t e s t r e s u l t s c o u l d n o t b e used a s e v i d e n c e . Following t h e t e s t , t h e examiner informed Deputy Hicks t h a t d e f e n d a n t had been d e c e p t i v e on f o u r q u e s t i o n s . Deputy Hicks t o l d d e f e n d a n t he had been u n t r u t h f u l and a s k e d i f he wanted t o c o n f e s s t o t h e b u r g l a r y . Defendant d e s i r e d t o g i v e a s t a t e m e n t s o Hicks a g a i n had d e f e n d a n t s i g n a w a i v e r of r i g h t s form.
Hicks t o l d d e f e n d a n t t h a t i f h e had any k i n d o f a problem Hicks would do e v e r y t h i n g p o s s i b l e t o see t h a t d e f e n d a n t r e c e i v e d some h e l p . Defendant t h e n s a i d , " I n e v e r do t h i s u n l e s s I ' m d r u n k . " Defendant c o n f e s s e d t o t h e Cunniff b u r g l a r y and a l s o produced a gem s t o n e he had s t o l e n from a n o t h e r home i n Choteau. A t t h a t p o i n t , d e f e n d a n t r e q u e s t e d t h e y r e t u r n t o Choteau where he would s i g n a w r i t t e n s t a t e m e n t .
Pursuant to Hick ' s request, Hicks and defendant stopped at defendant's home to gather the evidence from the burglaries. They proceeded to the Sheriff's office where a taped interview was conducted and defendant confessed in detail to the burglaries. Following the interview, Hicks had defendant take home a written confession form to fill out, which defendant completed the following week.
Counsel was appointed for defendant. A motion to suppress was filed covering all statements made by defendant and any evidence obtained as a result of such statements. The District Court granted the motion, finding that defendant had asserted his right to counsel and that further police initiated contact violated defendant's request for counsel.
The State appeals and raises the following issue: Did the District Court err in granting defendant's motion to suppress?
The District Court concluded that defendant's request for counsel at the first interview barred further police initiated interrogation. The court cited Smith Illinois
, 105 S.Ct. 490, 83 L.Ed.2d 488, as being (1984) U.S. decisive of the suppression issue. A reading of Smith reveals that the rule against further questioning once a defendant has asserted his right to counsel applies to custodial interrogation. In the present case, the District Court did not address whether defendant had been subjected to custodial interrogation. Based upon the facts in the record, we find that he was not.
In State v. Dupre (1982) 200 Mont. 165, 650 P.2d 1381, we held that a custodial interrogation situation requiring Miranda warnings does not arise merely because an individual is the focus of police investigation or because questioning takes place at the station house when there is no indication that freedom to depart is in any way restricted. In this instance, there is not a Miranda issue because defendant was given Miranda warnings prior to each interview with the police. Whether defendant was "in custody1' depends upon whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. California v. Beheler (1983) 4 6 3 U.S. 1121, 1 0 3 S.Ct. 3517, 77 L.Ed.2d 1275.
There is nothing in the record indicating defendant believed he was under arrest or was not free to leave the station house during any of the interviews. Defendant agreed to accompany the officers to the station house for the interviews and he agreed to take a polygraph test. The facts do not support defendant's assertion that he was not free to leave during the polygraph test and interview in Shelby. Defendant went to Shelby voluntarily to take the polygraph in order to clear up suspicion that he committed the Cunniff burglary. Further, during the interview following the polygraph test, defendant's request to return to Choteau was granted.
The suppression issue in this case requires analyzing two questions. First, whether defendant's confession was voluntary. Second, whether defendant made a knowing and intelligent waiver of his right to counsel. State v. Blakney (1982) 197 Mont. 131, 6 4 1 P.2d 1 0 4 5 . The District Court did not address the voluntariness issue. The court did address waiver, but concluded that Smith v. Illinois, supra, prohibited the police from further questioning of defendant once he had asserted his right to counsel. As noted above, the Smith rule does not apply in this instance for there was no custodial interroga.tion.
We reverse the suppression order of the District Court and remand for hearing on the issues of voluntariness and waiver. We Concur: ,/
f d 7 L T 6
Chief Justice
I concur in the result. \\ @hL d Justice , ,&hT
