State v. Wyman

Plaintiff-Respondent, Idaho, The STATE of WYMAN,Defendant-Appellant. W.

Alton

No. 11524.

Supreme Court Idaho.

March Morris, King, King of & L. Wiebe John

Boise, appellant. for Lee, Matthews Ellison Matthews of & M. Boise, Webb, Lloyd Pike, Bur- Webb J. Pedersen, Falls, Twin curiae. ton amicus & Kidwell, Gen., Atty. Lynn E. Wayne L. S. Thomas, Deputy Atty. Gen., Gordon Boise, Nielson, Deputy Atty. Gen., Senior respondent. for DONALDSON, Justice. rehearing. On previous opinion The issued in this case July and this withdrawn opinion hereby substituted therefor. Wy- Alton appeal is W. This for judgment man of conviction from the manslaughter against voluntary entered pri- Diggs. him the death of June by the mary involved the adherence issues require- officers to the arresting Arizona, ments of Miranda (1966), 16 L.Ed.2d 694 S.Ct. 19-615, I.C. and Idaho Rules of Criminal Procedure, 5(a). For Practice and rule below, judgment stated reasons conviction is affirmed. working approximately

After twelve hours, Wyman place of appellant left his p.m., employment at December occupied to a trailer house went deceased, Diggs, himself and June City, County, in Garden Ada Idaho. two then to a bar and went remained there morning drinking until 1:00 a.m. Saturday, leaving the December 2. While bar, began to Diggs and June argue. argument they continued while buy cigarettes drove to a cafe to and then to the trailer drove house. Upon trailer, ar- their return to the Wyman gument more heated. tes- became ri- trying he tified that as was to return closet, the fle to a deceased rushed across grabbed ri- the room and the barrel of the fatally weapon discharged, fle. The wounding Diggs. Wyman immediate- June ly telephoned for the ambu- lance. approximate- The first officer arrived at randa warning immediately either

ly 2:00 a.m.1 After observing the or immediately victim told aid, and initiating first Officer Merrill of victim’s death. Department Police asked a.m., Saturday, From 2:00 a.m. to 3:00 happened. Appellant what had officers were occu- replied gone that he had re- outside to pied primarily with the of collection the purchased trieve the newly cigarettes from physical evidence the Little of crime. di- car, shot, the heard a and returned to the rect questioning appellant, was done of the trailer to Diggs mortally find wound- June repeat he did the version of his initial ed. being outside when the victim wound- By that time the ambulance crew and ed. Officers Adair arrived, and Patterson had a.m., At appellant 3:00 was taken to the activity and the main treating was the of City Garden Police was held He Station. However, the victim. she was soon taken without questioning Part until 5:00 a.m. hospital to a appellant and the became the of this time he was locked in a cell. point focal of attention. a Within short departure time a.m., of questioning ambulance for At 5:15 of hospital, accompanied Wyman signed officer that was resumed. wrote a and the victim telephoned original statement repeating officers at his version of shooting.2 scene to inform them Diggs making that Prior to the state had June ment, testimony died. Police given signed initialed a noti to the and Wyman effect that given rights fication an oral Mi- form.3 The statement Wyman approxi- 1. All times hereinafter “I W. set forth are Alton have read above mate. (1) pages, and I statement of know same given as to be a true and correct statement all noticed 2. me. I have initialed mistakes “GARDEN CITY POLICE DEPART- by me. MENT STATEMENT FORM Ralph L. Snell “WITNESSED BY Date 12-2-72 /s/ Wyman Alton W. SIGNED Time 5:25 AM type appel- (Italic “I, Wyman Age AM” Alton “5:50 denotes W. make fol- writing. spelling appellant’s.) lant’s is my lowing statement free will and own duress, promise promise without of of reward or leniency any whatsover, manner RIGHTS to 3.“NOTIFICATION OF Ralph Snell of the Garden Police De- you you any questions, must we ask “Before partment, rights City, you under Full have certain Idaho. well understand knowing right Constitu- Idaho States I have the to both the tions. You do not and United absolute silent, any with us. have talk remain I to statement make right against court, to remain silent. used me in the absolute will be that I have You have Anything against you say right lawyer and will be used to the advice a before mak- can right ing any statement, right you talk to to that I You have have the to court. you any lawyer present lawyer we ask have a times, to me all a questions for advice before advise at you one, him that if I and cannot afford to have You have court represent right appoint questioning. to advice will a Defender to Public lawyer you go court, presence cannot me if and when I to a even if and if at and right any any making to I time wish refrain You have the to afford hire one. to may request Defender I statement so and services the Public do remain silent. my plme you employment any a to “I if afford hire at cannot time left go lawyer present piched up lawyer. you my or if to a home. I If at home want wife you lawyer, My you have the to went called Room. to bar We wish consult pres- stayed right picked up silent until their untill 1:00 then to remain absolute consulted, pack ciggeretts he be the been whether at Ghineese Lantern ent Gafe your cooking supper. choos- own or counsel of went home. I started I Public Defender questions you ing. now get ciggeretts. wish answer went to the car to I heard If right lawyer you present, I have shot. went into the house her without a and found any stop answering questions floor, help. and called Their was arguments during evening remain silent. time. referred to is hereinafter This statement the Mi- a recitation also contained form exhibit 7. herein- rights. This randa referred as exhibit

after a.m., taken to appellant was At 11:30 poly- give by Bud Mason office used a.m., was resumed questioning At 7:40 consti- signed two Appellant graph tests. a second signed appellant wrote re- forms, and a tutional changed to story had statement. stay, he During appellant’s form.5 lease holding Wyman admitted extent and without questioned with discharged.4 it hands when rifle lawyer making right any statement, to the advice “WAIVER right have that I have the “(Place at the end of each statement initials times, lawyer present all advise me at you only completely understand below appoint one, the court will if I cannot afford means.) such statement what represent if and me Defender to a Public when I I wish to refrain my read the above statement “I have any go court, if at time and that to that: and understand making any statement right si- to remain I have the absolute “I. may I do so and remain silent. AWW lent. my place employment at 9:45. of “Left say Anything used and will be I can “2. up drove to Went home. Picked June and against me in AWW Court. stayed My their untill har called Room. We right a the advice of I have the to “3. 1:00, Lantern and then went to the Chineese any questions. lawyer answering pack ciggeretts. got to a Then returned AWW to eat at the trailer house. We decided lawyer right to have a “4. I have the argument. thru home. had small She We any present during questioning. AWW my time I the trailer. At the cloths out of right lawyer I even if “5. I have the to cigeretts. get pack to the car to went one, and if I cannot cannot afford got I trailer and went inside. I hack to the one, may I afford use the services leaning davenport. gun sat on anytime. AWW the Public Defender hy picked against I it the daveno. the wall any questions If I “6. choose to answer grahed up it it She to return to closet. lawyer without the advice of a or with- hy it I laid her down the barrel and went off. lawyer being present, I out have help. and called for right stop answering questions at _, “I, the above state- have read any and remain silent. AWW consisting ( ) pages, I know and willing questions and make “I am answer and statement to be true correct the same lawyer, I I a statement. do not want a given by I all mistakes me. have initialed as noticed doing. and know what I am No understand promises by me. me, or threats have been made to Ralph L. BY Snell “WITNESSED /s/ any pressure and no kind has been used Wyman” Signed Alton W. against me. Ralph writing. (Italic type appellant’s L. “Witness Snell denoes /s/ spelling appellant’s.) Witness Wyman Alton W. SIGNED 5. “DEPARTMENT LAW ENFORCE- OF City P.D. Place Garden LIQUOR AND MENT LAW CRIM- Date 12-2-72 INAL INVESTIGATIONS Time 5:15 AM BOISE, IDAHO 83707 2, (Italic type writing.) Date appellant’s “Place Boise Dec. denotes hereby request, Wyman, “I, Alton W. do DEPART- “GARDEN CITY POLICE threats, coercion, voluntary, duress, without MENT STATEMENT FORM promises immunity, or to be ex- of reward Date 12-2-72 (Lie Polygraph with the use of the amined AM Time 7:40 Detector) instrument. Wyman “I, Age Alton W. make the fol- operation of the in- “I understand appa- my lowing electronic own free will involves the use of strument promise emotional, physio- duress, promise recording ratus for the of reward leniency whatsoever, responses questions any logical manner asked of Bill Adair City Depart- Polygraph examiner. the Garden Police “I had nature of this examination have knowing ment, City, Idaho. Full well Garden Mason, explained and do to me A. R. right to remain I have the absolute hereby placing silent, consent both to statement I make will be apparatus my person, necessary upon court, against and to me in that I have used native, sensing polygraph attached to by grief, devices of was too overcome body. questioning fatigue, his done without intelligently alcohol voluntarily rights. Since, ap- was Mason and waive Officer pellant continues, Adair and original recorded. The cas- statements recording settes he made wrongfully acquired by which the was done were police, 31, 32, subsequent are exhibits and 33. written statements (exhibits taped interrogation 7 and 30) and p.m., appellant At (exhibits 32, 31, 33) are inadmissible placed back to Jail “poisonous under the so-called fruit” doc- in a cell. States, trine of Harrison v. United p.m., Saturday, At 7:30 December 88 S.Ct. 20 L.Ed.2d 1047 first appellant was arrested for Subsequently, trans- deree murder. investigating When jail to the Ada and was ar- officers in County ferred itially scene, 4, 1972, arrived on raigned Monday, ask on shooting about the charge. before read However, him the Miranda warning. Prior to trial filed motion a review of the record indicates that those suppress and 33. exhibits preliminary questions proper under by jury This motion was At trial denied. permits the rule that questioning of an in guilty vol- appellant was found to be dividual if that individual has not become sub- untary manslaughter. Judgment was point the focal of an investigation. State sequently against him and he was entered McClellan, 569, 96 Idaho 532 574 P.2d custody of the sentenced to the State (1975); Sanches, 125, State v. 94 Idaho for an indeterminate Board Corrections 483 P.2d (1971). 173 period time, years. (6) not to exceed next contends that judgment It is from that of conviction once the Miranda warning given, appeal that this is taken. was unable to waive the intelligently Appellant’s assignments first and voluntarily of error because of the combined effects deny- fatigue, intoxication, contend that trial court erred in grief 7, 30, suppress thinking processes. the motion his exhibits Upon such 32, claims, primary and 33. The is contention is entitled to fair Miranda, hearing that requirements supra, assess underlying both the were not factual by met issues investigating officer. and the voluntariness of According appellant, to the statement. he was not State v. Ortega, 95 Idaho given an warning (1973). oral Miranda P.2d 466 The defendant or, scene of the shooting, hearing, in the alter- afforded such a and the court recording operated the use of contemporaneously “This examination devices was concluded at- completely with the above date. I this examination. do reaffirm hereby entirety my agreement. “I do release its and forever hold harm- above In addi- tion, any Depart- knowingly intelligently less the I State Idaho continue and/or thereof, my rights, agents employees, including to waive all their those listed and/or above, assigns, any liability willingly or their heirs or and I made all statements flowing operation I from the of the devices or make. Wyman A. R. use of the thereof. Mason results Alton W. /s/ agree “I further the results of the (Signature person WITNESSED ” may examination be made available to the examined) proper authorities. (Italic type appellant’s writing.) denotes Wyman A. It. Mason Alton W. /s/ (Signature person WITNESSED examined) being AM

TIME statements ob- ap- arraigned that all ly given appellant was found are inadmis- following that suf- tained appellant was warnings, the propriate exclu- on the meaning This claim is based sible. ficiently to understand alert States, McNabb v. United sionary rule of his statements warnings, of the L.Ed. 819 638 S.Ct. voluntarily made. U.S. to the States, 354 Mallory v. United (1943) and re the record examination Our 1 L.Ed.2d 77 S.Ct. ap shooting the following veals that (1957). to summon the author pellant was able ities, aid, the event initiate first discuss rejected A of states have in a somewhat (although with the “Mc- per application of the federal se attempt re manner), “rambling” render Nabb-Mallory” rule which would Moreover, weapon turn the ain closet. ob confession or inadmissible a of coer contains evidence record during an unlaw tained from an accused short, findings lower In cion. ful because detention—unlawful requirements Miranda are court as to the un magistrate “without supported by competent evi substantial though the state delay” necessary —even Thus, assignment rejected. dence. Instead, voluntarily given.8 such ment was Ranstrom, State P.2d Idaho factor, to delay merely regarded as a Thomas, 942 (1971); State v. 94 Idaho circumstances, in be considered with other statement was in determining whether the Furthermore, since Miranda adhered Was inadmissible un voluntary and therefore throughout questioning, appel- process Four der the due clause of the 31, 32, challenge lant’s to exhibits and 33 teenth Amendment.9 find this to We under the Harrison is not tenable. doctrine approach. the more well-reasoned argues further do not want it understood We tapes statements and are inadmissible due opinion from this Court condones (cid:127)to violations of I.C. 19-615 and I.C.R. the failure of the Following 5(a).7 rule arrest I.C. warrant, 5(a). 19-615 and I.C.R. rule Such provisions require these § failure could result an unconstitutional the magistrate accused be taken before a liberty, restraint on the since arraigned unnecessary delay” “without is incarcerated without a determination of complaint “a be The filed forthwith.” probable whether cause ar- appellant existed for the prompt- contends that he was not er, 331, (1972) ; upon 6. 179 Colo. 500 P.2d 980 “I.C. 19-615. Procedure arrest (Okl.Cr. Freeman, Luttrell v. 444 P.2d 857 warrant. —When an arrest is made Ariz.App. 1968) ; Perez, 567, peace pri- v. 442 State 7 without a warrant officer or (1968) People Combes, ; person person must, P.2d 125 v. 56 Cal. vate the arrested with- (1961) ; 135, Cal.Rptr. 4, delay, 4 2d 14 P.2d out 363 be taken before the Leland, 598, v. 190 P.2d State Or. 227 785 nearest or most accessible in the (1951) county ; Gardner, v. 119 made, State Utah in which the arrest is and an (1951) Fouguette, ; information, stating charge against v. P.2d 559 State 230 the (1950). person, also magistrate.” 221 P.2d 404 See 67 Nev. must be laid before such (1951). Annot., 19 A.L.R.2d 1331 * ** 5(a)— “I.R.C., person 7. rule If a Eiland, warrant, v. 450 301 9.Commonwealth Pa. arrested without he shall be Mojarro Padilla, (1973) ; magistrate, complaint v. State A.2d 651 and a (1971) ; person ap- State 549 483 P.2d shall filed Ariz. be forthwith. When a 107 ; (W.Va.1971) pears initially mag- Plantz, magistrate, 614 180 S.E.2d v. before (Iowa Milford, applicable v. N.W.2d 590 State istrate shall with the sub- 186 Commonwealth, 1971) ; 462 v. S.W. Reeves divisions rule.” Johnson, People (Ky.1971) ; v. 2d 926 People Hosier, (Colo. v. Ill.2d 256 N.E.2d 1974) ; Futch, Commonwealth v. Pa. (1972) ; People v. Weav A.2d 417 However, de- appellant we hold that such a acknowledges rest.10 deceased. The lay ipso does statements recordings may properly not facto make the ad- challenge The record indicates none into to inadmissible. mitted evidence. The tape. the “third tactics that are degree” contents record in- target “McNabb-Mallory” extensively rule were dicates that the officers were police. lengthy no Certainly, used cross-examined trial on the issue of the interrogations place. Appellant trajectory, took appellant’s explana- thus the questioned for an hour from shooting less than tion to how as occurred jury. the time he was taken to station Based the record polygraph Also appellant’s until the time of the test. trial and paucity author- ity, appellant given, say appellant this interim the we cannot has met rest, as lie requested, showing prejudicial time to down and burden of error. Anstine, State polygraph test was administered Idaho P.2d Mason, (1966); Mundell, Bud who was not with associated State 66 Idaho Force, but rather Police 158 P.2d 818 (1945). The test polygraphist was a for the state. The burden is not met in re also place did not station but take gard appellant’s claim as of error Building. in Mason’s in the Derr office portion ap of the interrogation wherein Only present one officer was at the time pellant prior discloses a arrest for “drunk taken, the statements were en driving.” goes, according ap This present during officers were the adminis- pellant, beyond scope impeachment tration of the tests. While which allows the into evidence admission approximately entire examination lasted prior felony appel convictions. The hours, four it in that continuous objected only lant to the material breaks were is this allowed. It Court’s it played jury. had been Rather opinion appellant to show failed mistrial, than trial in judge declare coercion and involuntariness needed jury disregard structed the that mate justify the exclusion the exhibits. rial not In relevant to the issue at hand. We therefore find no reversible error. relatively view of the and the instruction compari trivial nature of the admission in appellant’s first of final two charge degree son with the first murder assignments of tapes, error as to the con tried, being prejudicial tends that error resulted from met the burden discuss taped interrogations inclusion in the ed above. of the theories of the officers as to Appellant assigns method error the commission of the shooti next ng.11 photo tapes of a interrogating by The the the court contain admission trial appellant appellant approximately officers’ one graph statements to the that taken of trajectory The hour arrived. of the fatal bullet that after the first indicated standing the parallel appellant rifle barrel photograph to the floor shows when the shot hold was fired. the kitchen area of the trailer house According officers, looking the the ing cigarette this would the toward indicate that a wearing had deliberately aimed the rifle at camera. The clothes jury ju theories, requires 10. The Fourth to the Amendment went a officers’ replay preju room—allowing probable jury dicial of determination a cause as prerequisite police officers with to extended restraints of liber dicial statements following judicial ty guidance We an a officer. arrest. v. United Johnson out States, unfounded, 92 implication 333 U.S. 68 S.Ct. L.Ed. as find such (1948). tape indicates of the record search evidence, was into recorder, offered while ap assignments, 11. In connection with these pellant tapes, containing as evidence. never admitted notes' behavior. irrational bouts tions and Tes- on them. patches dark substance of a the victim’s appellant contends The that the substance indicated timony at trial be- admissible history is psychiatric entire Diggs’ blood. was June theory. proffered self-defense cause of Oldham, 92 Idaho of State v. The case Wilson, Idaho v. case of State The for is offered (1968), 438 P.2d 275 authority is offered (1925) 243 P. 359 are posed proposition photographs de- rule that when for the merely portray they not admissible when prosecution criminal in a fendant support a contention arranged scene theory self-de- upon a homicide relies in profferer. Oldham advanced for be- the victim reputation of fense the chisel photograph volved a cold dangerous turbulent, quarrelsome, fitted being car was found Oldham’s is admissible. coin juke on a box’s into an indentation wit- several indicates that record to show intention was box. The obvious nesses, tes- psychiatrist, including the fit the mark the chisel would to- propensities tified as to the victim’s fall un at hand does not box. The case discretion ward violence. In view of the authority der of Oldham because evidentiary afforded the trial court carefully photograph not a challenged matters, the trial court it was not error for attempting arranged to simulate scene primarily that was to exclude evidence prior event, simply photograph but rather State, P.2d 637 Avery v. cumulative. appellant wearing the same clothes People, 169 (Alaska 1973); Maes v. Colo. wearing had been at the time of (1969). 454 P.2d 792 re attempt shooting. It was not an event, ap enacting simply showed judg- court did not err. The trial pellant photograph time the ment of conviction is affirmed. If it it was harmless taken. was error SHEPARD, JJ., McFADDEN appearance appellant’s

error because the concur. probative appel clothing value to shooting lant’s and his at version BAKES, (dissenting).

tempts Justice administering first aid to Hokenson, victim. State v. See Idaho holds that Beason, P.2d (1974); State appellant’s second written statement and (1973); Idaho 506 P.2d 1340 State tape recordings his oral statements Dillon, 93 Idaho properly were It admitted into evidence. my recorded conclusion that oral statements were taken in violation of Appellant assigns also as error the 19-615, 5(a) under I.C. I.C.R. imposed limitations the trial court and the Fourth Amendment to the Consti- evidence of the psychiatric victim’s his tution of the I United States. also believe tory. While the victim had been under that these statements and the second writ- psychiatrist care of a Boise from 1959 statement, ten to the extent until the time shooting, of-the the doctor self-incriminatory, were introduced into to testify only allowed as to two con evidence in violation of the defendant’s sultations. Those were Au June rights under Fifth Amendment to the gust of 1972. the Constitution of United States. For reasons, these I would reverse and remand An proof offer of presented was to the for a new trial. trial court the defense point to the that the doctor in diagnosed 1959 had the arguments Because the defendant’s victim as suffering schizophre- from acute connection only with these can be nia. As a result of the illness the victim understood to reference the circum- had occasionally had auditorial detainment, hallucina- stances of his arrest and a re- 2, they brought the from breakfast defendant of December and

view of events the steak eggs. breakfast steak or and 1972, for necessary. The defendant left the the defendant was offered Friday morning, Although December work on food, and, apparently upset ending he was accord- put hour shift and in a twelve that, ing testimony, he his “couldn’t approximately to eat.” p.m. 10:30 After deceased, to Diggs, the returned and a.m., time, approximately At June this 7:00 trailer, stopped only long they the where questioning resumed. Officer Sheffield enough his change the defendant to defendant, laced told in accusations the City They then went to Garden shoes. thought de- expletives, with he the they stayed the a.m. bar where until 1:00 concerning shoot- fendant’s the bar, closing they were at While time. they a lie and wished to know was eat, to but nothing had defendant more defendant about incident. or drank five bottles of beer three lawyer to see a testified that he asked whiskey. He and four shots of time, police June this but the officers testified trailer, Diggs where the returned to the request. (In his did not make this he food, prepare but began to some defendant in the tape made later recorded statements meal or be- he was unable to cook the eat if day, asked he wanted the defendant was Diggs. argument cause of an lawyer, June to answered that he see a but Following shooting, the defendant not.) made later defendant Some her telephone operator, told called the statement, set written the one second to emergency there and asked her was an opinion, majority forth at footnote 4 of help. police and the am- send officers Shortly Idaho at 547 P.2d shortly operators thereaf- bulance arrived thereafter, to a the defendant was returned testimony of According to the one ter. approxi- until cell. He remained there “dis- officers, was the defendant a.m., to mately 11:30 when he was taken traught” up,” and “shook officer given polygraph tests. asked to down because the defendant lie questioned intermit- defendant thought going defendant to faint. by a operator polygraph tently trailer, spite In the commotion in next for the City officer Garden lie down until defendant continued to During this time four five hours. up by requested another to stand different of two recordings were made officer. re- question sessions. These and answer state- both the cordings, included approximately At a. m. the 3:00 defend- questions and the defendant ments City police ant was taken Garden arguments officers approximately station. At 5:00 a.m. the evi- into operator, were admitted City police began questioning him. ap- 31, 32 and 33. At as exhibits dence During interrogation, this the defendant proximately p.m., defendant gave the statement forth in footnote set jail placed returned the Garden of the opinion, 97 Idaho at Saturday eve- p.m. on At 7:30 a cell. being P.2d at which he denied formally 1972, he ning, December Diggs in the was shot. trailer when June degree He first murder. arrested for After given had officers Mon- magistrate until statement, Sheffield, Thomas the offi- though there day, even charge cer in investigation, took County Ada available was a working other officers who had been day. hours twenty four the case to breakfast. While the de- meantime, efforts away In the station the defendant em- cell, the defendant’s according wife and of was locked in fendant’s happened had ployer find out what testimony sleep defendant’s he did dur- Wyman, the Lavina rebuffed. ing him were time. When the officers returned Although liberty had during that time. wife, prelimi- testified defendant’s approximately 3:00 been restrained since nary hearing she had called Gar- he was taken to a.m., morning a.m. when police City den station 10:00 4:00 station, his City police wife p.m. Garden p.m. Saturday, December and 5:00 he been told that employer and his had told the de- and that she had been later in the after- probably would be free charged fendant had not been noon, employer had been told that and his probably be- crime and would be released unnecessary post it would be bond evening. tween 5:00 and 7:00 Jack finally, defendant was Landers, And employer, him. the defendant’s testified Monday, magistrate taken before a until hearing preliminary he had days he two December over police called the to ask if station he could speak custody. taken into defendant, with the but was told that he could not. had also asked if it He questioning The lengthy custodial before possible for him post bond and was told a magistrate. bringing the before defendant probably that the would defendant be on questioning of the defend- The continued the street that afternoon. tape recordings ant two which led to the which into evidence were admitted formally was not Although the defendant defendant’s done violation placed evening under until the arrest under I.C. I.C.R. 5 19-615 and approximately 3:00 a.m. Fourth Amendment the Constitution of that morning always physically he was re- provides 19-615 United States. I.C. § police City strained officer or Garden following: operator, during which time being questioned or confined to a upon arrest without “19-615. Procedure liberty cell. His certainly restricted is made with- warrant. —When an arrest time, during this though even he had not by peace pri- out a warrant officer or been formally placed Indeed, under arrest. must, person person vate arrested at the preliminary hearing, City Garden delay, without be taken be- Ralph officer Snell testified that mag- fore the most accessible nearest or when the was in custody at the county istrate in the in which the arrest station after m. 5:00 a. made, information, stating and an he was not free to leave. charge against person, must be laid Thus, when ques- the defendant was magistrate.” (Emphasis before such tioned at 7:00 morning a.m. on the of De- added). cember gave the written statement provides following: I.C.R. 5 set 4, ante, forth in footnote he had not appearance “I.C.R. 5. Initial before slept for twenty twenty-one hours, he . . magistrate. (a) IN GENERAL. — had not period, eaten he had warrant, person If a without a arrested drunk five beers and three or four shots of magistrate, he shall be whiskey, he through had suffered complaint and a be filed shall forthwith. highly emotional experience that earlier in initially person appears When a morning had caused him to be so dis- magistrate, shall traught upset officers had applicable with the of this subdivisions asked him to lie down because feared rule. he would questioned faint. he When by the polygraph operator between 11:30

a.m. and p.m. on that day, during “(d) INITIAL DETERMINATION OF recordings admitted PROBABLE If the defend- CAUSE. into made, evidence were warrant, gone had ant was arrested without sleep for between twenty-six magistrate shall, complaint after the thirty-one hours, and still had him, not eaten is laid before determine whether

4% “ ‘ situations many . . Because . probable is to believe that

there cause officers in the course which confront and that offense has committed been executing their duties or less .” are more it. . . committed defendant has for ambiguous, must be allowed room added). (Emphasis . .’ mistakes on their . part. some taken be- defendant not forthwith was States, U.S. Brinegar v. United [338 magistrate was into after he fore 1302, L. 1311 69 S.Ct. [93 160] Instead, he alter- custody at 3:00 a.m. (1949)]. Ed. 1879 in for questioned a cell nately confined or implement “To Amendment’s Fourth hours, following which sixteen protection against invasions unfounded formally then arrested. He has re liberty privacy, and the Court then, ei- presented magistrate before a quired probable that the existence ther, approximately 40 another waited by a de cause be decided neutral and mag- brought hours before a before he was possible. magistrate whenever tached Thus, it is clear that al- istrate. I think principle of this classic statement though the defendant had been formal- States, appears 333 in Johnson United p.m., ly arrested 7:00 10, 13-14, L. 92 U.S. S.Ct. since been under arrest a.m. he had (1948): Ed. 436 morning, that under terms of and “ ‘ to be . statute and rule he was entitled . Fourth Amendment’s] [The duty protection brought magistrate, requiring whose that before a consists [the men 5(d) under have de- usual I.C.R. would been to inferences reasonable probable by neu- cause draw from be drawn termine whether there evidence] tral instead to believe that the defendant had commit- and detached crime, being engaged judged ted advise the defendant of officer and to competitive enterprise fer- provide him with counsel often 111, 95 rights. reting advise him out concerning those crime.’” 420 U.S. S.Ct. at 862. Furthermore, right had recognized under the Amendment to Fourth the Con- Court that officers ambiguous stitution of the States to will often confronted be be with United judicial permits officer to determine situations and that the Constitution situations, probable there them i. whether be- arrest persons cause to such e., lieve that he had committed an must be for some offense. “room allowed right explained part.” But, This in the case mistakes their once the de- recent arrested, Pugh, Gerstein v. fendant is the officer U.S. 95 S.Ct. whether case, not, (1975). In a mistake or the Fourth L.Ed.2d made began discussing be requires the Court standard Amendment the defendant Furthermore, magistrate. for arrest. taken before a require our statute it be done rule and “The arrest is probable standard for complaint filed “forthwith” cause, defined in terms of facts and cir- delay.” “without pru- cumstances ‘sufficient to warrant a man in believing policeman’s dent that the on-the-scene assess- [suspect] “[A] legal provides had committing probable committed was cause an of- justification Ohio, 89, 91, fense.’ sus- arresting Beck a person crime, pected period S.Ct. and for a brief L.Ed.2d 142 standard, like take the administrative

This those for of detention to seizures, steps represents searches the sus- incident arrest. Once a nec- essary pect however, reasons custody, accommodation between the indi- magis- dispensing right liberty justify vidual’s State’s with evaporate. duty judgment neutral control crime. trate’s factor, garded longer as a danger considered There determining suspect circumstances, escape will or further other commit involuntary their evi- whether statement was crimes while submit And, magistrate. inadmissible under the due dence a while the and therefore process taking summary ac- Amend- State’s reasons for clause of the Fourteenth subside, suspect’s a more tion need for ment. find this to be the We probable approach.” 97 Idaho neutral determination of cause well-reasoned significantly. omitted). increases The conse- (footnotes P.2d at 536 quences may be prolonged of detention a fac- “delay is ... By stating more serious than the interference occa- tor, in deter- ... considered to be . . sioned When arrest. involun- mining whether the statement high, judg- stakes are this the detached inter- tary,” majority confused the has magistrate ment is of neutral essential require- protected sought to ests be if Fourth Amendment is to furnish Fourth ment of I.C.R. meaningful protection from unfounded to the Constitution Amendment Accordingly, liberty. interference with be arrestee must that an United States re- we that the Amendment hold Fourth magistrate forthwith presented before judicial quires proba- determination of purpose unnecessary delay. The without prerequisite ble cause aas to extended Amendment Fourth and of the of I.C.R. 5 liberty following restraint on arrest.” being held an arrestee prevent is to (empha- 420 U.S. at 863 95 S.Ct. by de- illegal confinement in an extended added). sis probable cause is termining there whether Thus, cer- while officers were has committed arrestee to believe tainly taking justified in defendant into constitutional The arrestee’s an offense. custody, the defendant’s prolonged deten- to a Fourth Amendment right under the being brought tion magis- before following war- hearing probable cause rights trate was a violation of his under I. if the protected cannot rantless arrest 19-615, C.R. I.C. and the Fourth § the arrestee admissibility statements Amendment to the Constitution which confinement illegal given during the majority opinion United States. rec- is illegal confinement product are a ognizes and scolds the violation Amend- the Fifth solely against tested failure “to with I.C. 19-615 The United test of voluntariness. ment’s rule 5(a).” I.C.R. are re- Court, we Supreme States question then we which must decide evalu- not to follow, has chosen quired to appropriate remedy is: what ? The Amendment of Fourth ate violations Supreme Court of the United States not of voluntariness. basis purely question Pugh, answer this Gerstein 95 S.Ct. Illinois, 422 U.S. Brown v. analyzing By S.Ct. L.Ed.2d 54. 2254, 45 L.Ed.2d majority proposes in this case the fol- taken dur- admissibility statements lowing as the question: answer to this in terms solely detention an unlawful inter- Amendment Fifth the arrestee’s rejected a majority “A of states have consider has failed to ests, majority ‘Mc- of the federal per application se us. before questions critical ren- Nabb-Mallory’ which would rule opinion, the to its of state- inadmissible a confession In footnote der to bol- annotation an eight accused cases obtained from an cites ob- a confession because its ster contention an unlawful detention—unlawful unlawful during an from accused tained inadmissible, necessarily delay’ is not detention ‘without —even be con- voluntarily merely a factor delay the statement was though determining voluntariness Instead, merely re- delay is given. sidered such admissibility. predate judge.” All of the cases 500 P.2d at 982. While doI Pugh. light Gerstein v. Four these believe such a cases rule can survive predate Supreme the annotation the landmark Mi- the decision of Court decision, randa if Pugh, and all but one of these United States in Gerstein v. even predate proper applied, four be- this were the also so I do not rule to be it Mallory, lieve cannot be those older cases are of said this record that there precedential attempt taking was no studied value. Neither do I believe to avoid magistrate, that all ma- of the more recent cases the because jority sought in that those who has cited footnote stand to contact the defendant Perez, proposition. ap- that majority’s morning State v. to obtain his release were Ariz.App. 567, parently rebuffed, (1968), P.2d 125 defendant was given during magistrate not a an not a involve until Mon- detention; day morning, days unlawful it a statement over two involved Therefore, given after his at the time arrest and a arrest. is in- claim Weaver Furthermore, subsequent apposite alleged to this both unlawful deten- case. upon tion would Hosier and make that statement inadmissi- Weaver were also based Freeman, premise compliance ble. re- Luttrell with the v. quirements an (Okl.Cr.1968), corpus pro- a habeas of Miranda would render en- was admissible, suing trial, ceeding, not a ad- admission confession criminal and the i.e., missibility warnings pro- that the Miranda to during given of a an confession taken alleged tect Fifth unlawful not defendant’s Amendment detention was dis- protect opinion. People cussed in would also his Fourth In v. Hos- Amendment ier, rights against (1974), Supreme unlawful arrest P.2d 1161 or unlawful liberty. restraint of his That Court of Colorado held that basis the admission of a which the given by confession an of this Court arrestee who original opinion wrote its had not in this case magistrate been taken before a unnecessary rehearing, appar- without which it delay grounds was not withdrew ently recognizing for reversal unless that the rationale the arrestee could show Hosier and he had been cases was incorrect “denied some basic constitu- Weaver right by tional view of the decision recent of Brown v. Il- reason the failure linois, supra. Supreme In Brown the with the rule.” P.2d 1164. Hosier Court of the Pugh, Gerstein United States held that predated v. clearly warnings Miranda prolonged states were not cure-all deprivation liberty following presentation mag- which made statements taken an without illegal probable arrest In istrate admissible into evidence. for a cause determination is a Brown, violation Supreme of an arrestee’s Fourth of the United Court Thus, rights. Amendment the rationale States hold- characterized lower court for the Hosier has decision been under- ing in following manner: by Pugh mined Gerstein because Hosier words, court, appears in other “The implicitly part upon holding based in warnings in have held that the Miranda prolonged proba- detention without a themselves chain broke causal ble by cause determination statement, subsequent even not a so denial of a right. basic constitutional People Weaver, continuing In one effects induced 179 Colo. custody, was admissible (1972), Supreme P.2d 980 unconstitutional Court of sense, as, it in the long so traditional Colorado held that a statement taken dur- voluntary an in viola- delay coerced unnecessary not inadmis- shows, and Fourteenth Amend- sible “if the tion of Fifth record also as it does here, attempt 422 U.S. at S.Ct. that there no studied ments.” avoid taking county the defendant before a judi- delay before a hold that a went on to

The Court then render facto does not ipso cial ex- officer] obtained or statement confession po- by the obtained evidence inadmissible not admis- illegal arrest ploitation of ‘unnecessary delay’ during the lice merely a Miranda it follows because sible upon defendant incumbent that it is rights. warning of Miranda and a waiver delay. prejudice from show some per warnings, Miranda alone “[T]he ar- has never this Court . While se, always act suffi- cannot make ‘prej- precisely constitutes ticulated what break, ciently product of free will ‘unnecessary de- udice’ in the context purposes, Amendment for Fourth it rule], we think lay’ proscribed [the illegality causal connection between ap- the federal appropriate to follow They assure and the confession. cannot evidence obtained proach all and exclude every Amend- that the Fourth case delay’ except that ‘unnecessary unduly ex- been violation n rela- reasonable which . . has no ploited. tionship delay whatsoever.” per reject the se we therefore “While A.2d at 419. appear to rule which Illinois the courts the written statement which While the adopt accepted, also decline have we on approximately 7:30 a.m. officers took at per for’ alternative se ‘but rule. or arguably not be character- Saturday could warnings . The Miranda are an delay, unnecessary result ized of factor, sure, important in determin- to be were those recorded statements which obtained whether the confession is in p.m. and 4:30 made between a.m. exploitation by illegal an arrest. But of certainly made in viola- the afternoon were only are be consid- not the factor tion of Fourth Amendment the defendant’s temporal proximity ered. The of the ar- stat- rights under the Idaho and his confession, presence rest and the magis- ute rule be taken before and circumstances, intervening and delay trate without unreasonable and, particularly, purpose and fla- be inadmissible should have been held to grancy of official misconduct are all Amend- for a violation of both the Fourth relevant. . . . The voluntariness and and the Idaho rule. statute requirement. is a threshold The voluntariness showing ad- the burden of And confessions. majority The that the defend- concludes missibility rests, course, prose- by fol- ant’s statements admissible 603-04, were at cution.” 422 at S.Ct. 95 lowing reasoning: (footnotes omitted). 2261-62 “The indicates none of the ‘third record applicable I believe the same rule be should degree’ target tactics that are during an following extended confinement ‘McNabb-Mallory’ by rule were used an arrest without warrant whenever police. Certainly lengthy interroga- no arrestee been brought has not place. Appellant ques- tions took delay and hour tioned for less than an from the adopt holding would Commonwealth time he was taken the police station Futch, (1972), v. 447 Pa. 290 A.2d 417 polygraph until the time test. a case cited in its footnote during Also interim proposition for8 that unreasonable de- given, requested, as he to lie lay is a factor to considered the ad- polygraph down and rest. The test was missibility confession, of a statement or Mason, administered Bud who was but which following: said the not associated with the Garden Po- “We Force, have held that polygraphist failure lice but rather was rule providing that one arrest- for the state. test did take [the not ed without place a warrant must be at the station in Mason’s 500 Rundle, Only ex Building.

office the Derr one Commonwealth rel. Butler present (1968)], at the time the state- Pa. A.2d 426 officer was [429 taken, any involuntary that ‘the ments officers test confes- were for sion, must present during itself with those ele- administration concern impinging upon ments the entire a defendant’s tests. While Baity, approximately four will.’ Commonwealth Pa. lasted examination hours, in that n. it was continuous n. A.2d It Thus the instant case we breaks were is this Court’s allowed. opinion weigh influencing must all the failed to show the factors appellant’s needed will the time he made coercion involuntariness justify statement. record uncontra- of the exhibits.” evinces exclusion at 537. appellant, Idaho P.2d dicted 20- evidence education, year-old grade tenth with a agree interroga- lengthy I cannot that no time; was isolated for several periods place. regu- tions took defendant was interrogation his initial he larly interrogated Saturday from 5:00 a.m. refused to admit involvement p.m. Saturday morning to 4:30 afternoon. shooting; that eleven hours later when slept nearly He had eaten twen- or get told he le- would more ty questioning began, hours before confessed, nient he treatment if he not eat sleep the next twelve signed statement; incriminating interrogated. hours over which he was arraigned was not until some The record indicates that he was bereaved twenty-five hours arrest. Diggs, the loss an intimate of June years. friend “The combination of all these factors for five He had consumed based on five the Commonwealth’s uncontra- beers and three or four shots of whiskey prior dicted evidence constituted a subtle but empty on an stomach to the powerful impermissi- shooting. nonetheless form condi- psychological tion ble . knowing intelligent to make a coercion. . We appellant’s signed rights easily waiver of his conclude that state- and could be in- involuntary timidated in and should there- Assuming such situation. suppressed.” for the have argument sake of his fore been 301 A.2d state- derogation ments had not been 654-655. his magis- to be Pennsylvania reasoning Court trate delay, without neverthe- applicable in this At the time of case. less I think it is clear a matter of law his arrest the defendant was bereaved that the give defendant state- intoxication; possibly he was state of ments knowing intelligent after a questioned any con- and refused to admit rights. waiver of his I believe the case nection then shooting; with the Eiland, Commonwealth v. 450 Pa. story told that his first lie and A.2d (1973), which the wanted; the truth was then inter- cited in opinion, points footnote 9 its to mittently questioned period over hour a ten

the result which we should reach gone during which time he had case. thirty sleep up food or hours. “[Tjhis emphasized fa- Court has a habitual arrestee that when was not questions techniques questioning in the miliar with the voluntariness ‘[t]he passed knowledgeable area all beyond rights. have of his Given physical factors, stage coercion in- these much more diffi- the circumstances cult psychological herently area and his waiver was coercing, coercion Accordingly, analysis knowing intelligent.

. a close all the sur- rounding I hold written statements necessary,’ circumstances would that his oral statements were and the recorded

inadmissible. I remand

For all of these reasons would

for a new trial. J.,

McQUADE, C. concurs. CORPORATION, corporation,

RADIOEAR Plaintiff-Respondent, CROUSE, Hearing

David F. dba Boise Aid Defendant-Appellant. Center,

No. 11743.

Supreme Court of Idaho.

March 1976.

Sept. 18, 1975.

Rehearing April 15, Denied

Case Details

Case Name: State v. Wyman

Court Name: Idaho Supreme Court

Date Published: Mar 2, 1976

Citation: 547 P.2d 531

Docket Number: 11524

Court Abbreviation: Idaho