### IN THE SUPREME COURT, STATE OF WYOMING

20 2 1 WY 48

OCTOBER TERM , A.D. 2020

March 31 , 2021

MAXWELL B. SCHWARTZ,

Appellant (Defendant),

v.

THE STATE OF WYOMING,

Appellee (Plaintiff). S

- 20

- 0186

A

ppeal from the D istrict Court of Con verse Cou n t y
T

h e Ho nora ble F. Scott Peasley , Judge

Representing Appellan t : Office of the State Public Defender: Diane M. Lozano, State Public Defender;

Kirk A . Morgan, Chief Appellate Counsel ; David E. Westling , Senior Assistant Appella te Counsel. Argum ent by Mr . Wes tling.

R epre senting App elle e : Bridget L. H ill , Attorney General; Jenny L

. Craig , Dep uty Attorney General;

J

oshua C . Eames , Senior Ass istant Attorney General ; Catherine M. Mercer

, Assistant Attorney General. Ar gument by Ms. Mercer

.

Befo re D AVI S, C.J., an d FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

NOTICE: This opinion is subject to for mal revi sion before pu blication in Paci fi c Reporter T hi rd. Rea ders

are requested to notify the Clerk of the Sup reme Court, Supreme Court Building, Cheyenne, Wyo min g 82002, of any typographical or other formal errors so that correction may be made befo re f inal pub lication in

th e permanent volum e.1 FOX

, Justice

.

[¶1] A jury convicted Max well Schwartz of second

- degree murder and aggravated

assault in the death of his b rother, Jo s e ph Sc hwar tz

. 1 On appeal, Max argues the district court erred when it denied his motion to suppress statements he made at the scene of the

crime and during a recorded interview . He asserts that admission of the statements
viola ted h is Fifth an d Fourteenth A men dment rights because law enforcement did n ot
inform him of his Miranda rights before questioning him at the scene , and that he was under the influence of methamphetamine at the time of the re corded interview , making

his statement s involunt ary

. We affir m.

ISSUES

[¶2] We address these iss ues:

I. Did the district court err when it fou nd Max’s statement s at
the scene fell under the public safety exce ption to Miranda

and denied h is motion to suppress?

II. Did the district court err when it found that Max voluntaril y

w aived his Miranda rights and denied his motion to suppress

his recorded statement ?

FACTS

[¶3] S ergean t Schmidt, and O fficers Jones and Zw ie bel responded to an undefined emergency call in Douglas, W yoming

. T hey soon learned it was a stabbing

. When the officers arrived, they approached the front door and looked into the home t hro ugh a

n ear by window

. S ergeant Schmidt saw a woman and t wo crying children who looked

scared and heard a man screa ming hysterical ly

. W hile the officer s were still outside,

d ispatch i nfor med th em that t he call was for a shooti ng

. Sergeant Schmidt announced

himself and knocked on the door several times. Max slid across the fl oor , unlocked the

door , and then scoo ted b ac k i nto the k itchen. All thre e officers entered the home with their guns drawn.

[¶4] Sergeant Schmidt testified that he entered the k itchen and saw a body on the floor

t o t h e l eft of the d oor (later identified as Joe Schwartz), Max sitting on the flo or to the rig ht of the door, and a woman named Kelsi Stotsky standing nearby. 2 Almost

1 We refer to the defendant and victim by their first names since they sh are th e same l ast name.

2 An autopsy revealed that Joe died fro m one of three stab wounds in his chest which severed the subclavian artery . The medical examiner thought Joe could have survived the gunshot woun d because it

did n ot hit any vital s tructure s

.2 immediately, Sergeant Schmid t asked Max if he shot Joe , a nd Max told hi m no

. When Sergeant Schmid t asked who shot Joe, Max responded that Joe had shot himself. The

other off icers then left t he kitchen to clear the rest of the house while Sergeant Sch mi dt

re mai ned in th e kitchen with Max and Ms. Stotsky. He asked Max where the gun was,

but Max co uld not respond. Ms. Stotsky answered and said

, “ I t’s right here

, ” referring to

the co un ter. Ser geant Schm idt asked if Max was on any drugs

, and Ms. Sto t sky

r esponded he was high on methamphetamine. This was later confirmed by a blood test.

[¶5] Sergeant Schm idt was concerned about Max’s well being and asked the paramedics

to examine him and to transpo rt him to the hospital. An offic er accompanied Max to the hospital and was later joined by a special agent of the Wyoming Division of C riminal

I nvestigation (DCI)

. Hospital staff sedated Max

, and he was later discharged and taken

to t he jail

. Max spent most of the follo wing day asleep. Lat er that evening, Agents Holder and Carpenter of DCI advised Max of his Miranda rights and asked if he would answer some questions. Max d eclined to speak w i th them

, so they left Douglas to return to Caspe r. While on t he road , Agent Holder received a phone call in dicating that Max had asked to speak w ith them. The agents r eturned to Douglas and again ad vised Max of

his Miranda rights. Max said he did not und erstand his rights and asked for an explanation

, and Agent Ho lder re

- advised Max of his rights

. Max then waiv ed his rights and spoke with the agen ts

. D uring the interrogation, Max was sometimes confused and

h i s answers included discussion of demons and a reference to “ possession ” of the house;

however

, at other po ints

, his answers we re clear and respo ns iv e

.

[¶6] Ma x moved to suppress both the statements he made to Sergeant Schmidt at the

scene and the statements he mad e to the DCI agents. He arg ued that Sergeant Schmidt

did not inform hi m of his Mir anda righ ts prior to questioning him

, and t herefore his Fifth Amendment rights would be violated if the statement s were admitted. He also argued the statements he made to the DCI agents were involunta ry because he was un de r the

i nfl uence of methamphetamine at the time.

[¶7] The district court denied the motion to suppress. It held the public safety

ex ception applied to the stateme nts Max made at the scene, citing New York v. Quarles

, 467 U.S. 649, 65 5, 104 S. Ct. 2626, 26 31, 81 L. Ed. 2d 550 (1984)

. The district court

reasone d that the questio ns were objec tively reasonable to secure the officers’ safety because the scene was chaotic, the officers did not know who w as in the house or w here

the y were, and Max was on the floor with a de ad body. The district court concluded tha t

“ [ a ] n officer w alking into a situation such as this would be expected to spontaneously inquire as to whether there was an ac tive shooter in t he househol d. ” The district court

also denied Max’s motion to suppress the statement given to D CI. It found no in dication that Max was under the influence of methamphetamine during the second interview , no coercion, and it conclu ded th at Max volu nt arily wai ved his rights and spoke with the

agents.3 [¶8] At trial

, the S tate elicit ed testimony about Max’s statement s at th e scene during its

case

- in

- chief. Max testif ied in his ow n defense and stated he did not remember the interrog ation by Agents Holder and Carpenter in re sponse to several questions by his attorney and the State. The State also questioned Max about his sta tem ent s to Ser ge ant
Schmi dt as impeachment evidence. The jury found Max guilty of second

- degree murder and aggravated assault

, and this appeal followed.

STANDARD OF REVIEW

[¶9] When we review the denia l of a mot ion t o supp re ss , we ad opt the district court’ s factual find ings unless they are clearly erroneous. Rodrigue z v. State

, 2018 WY 134, ¶ 15, 430 P.3d 766, 770 (Wyo. 2018). Because the district court had the opportunity to “assess the credibility o f th e witn ess es , we ig h the evide nce, and make the neces sary inference s, deductions, and conclusions,” we view the evid ence in the light most

favorable to its decision. Id. We review issues of law de novo. Jelle v. State

, 2005 WY 111, ¶ 13, 119 P.3d 403, 407 (Wyo. 200 5 ) ( ci ti ng Mackri ll v. State , 2004 WY 129 , ¶ 12

, 1 00 P.3d 361, 364 (Wyo. 2004)).

DISCUSSION

I. Th e public safety exception applies to Max’s statement s at the scene

[¶10] Max argues Sergeant Schmidt should have advised him of his rights prior to

a sking if he shot J o e , and the district court erred w hen it deni ed his motion to suppress

. Miranda requires statements made by a suspect during a custodial interrogation be excluded if the suspect is not given the requisite advisement s. Je l le

, 200 5 W Y 111, ¶ 14

, 119 P.3d at 407 (citing Gunn v. State , 2003 WY 24, ¶ 7 , 64 P.3d 716, 719 (Wyo. 2003)). We consider the totality of the circumstances to determine whether a suspect is s ubjected to a custodial interrogation. Jelle

, 200 5 WY 1 11, ¶ 14 , 1 19 P.3d at 408. The key question is whet her a reasonable m a n in the suspe ct’s position would consider himself in police custody. Barnes v. State , 2008 WY 6, ¶ 14, 174 P.3d 732, 737 (Wyo. 2008) ( citing Gompf v. State , 2005 WY 112, ¶ 31, 1 20 P.3 d 980, 9 88 (W yo. 2005) ). T he district court

determined that Max was subjected to a custodial interrogation

, and we agree

. Sergeant

Schmidt and O fficers Jones and Zw ie bel entered the kitchen with their weapons drawn

, and Ser geant S chmidt tes ti fied duri ng t he suppression hearing Max was not free to leave

and he informed Ms. Stotsky

, in Max’s presence

, that she could not leave the kitchen. A

re asonable person in Max’s situation would not f e el free to l eave.

[¶11] T he S tate argues that Max’s statements at the scene fall under the public safety exception to Miranda

. Quarles

, 467 U.S. at 656, 104 S.Ct. at 2631

- 32

. Max asserts the

district court’s reli ance on the public safety exc ep tion was misplaced because Se r geant Schmidt’s inquiry went directly to the ultimate question of guilt. The Quarles Court explained “ the doctrinal underpi nnings of Mi randa [do not] re qu ire that it be applied in4 all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety.” Id

. It described “a kalei doscopic situation . . . where

sponta neity rath er than adhe rence to a pol ice m anual is necessarily the order of the day. ”

Id. at 656, 104 S.Ct. at 2631.

[¶12] Contrary to Ma x’s argument, many cases apply the public safety exception to questions by law enforc ement officers that ad dress the ulti mate question of guilt. For example, in U .S. v. La ckey , the defendant was charged with possession of a fire arm by a restricted person. 33 4 F.3d 1224, 1225 (10th Cir. 2003). The reporting witness identified Mr. Lackey as the person w ho fired shots at her house

, and officer s went to arre st hi m. Id. They encountered him in the parking lot of an apartment bui lding where he was believed to be living and asked him if he had anything on his person that would hurt

them. Id

. Mr. Lackey asked why he was being arrested

, and the o fficer respond ed he

would ex pl ain in a minute

. H e handcuffed Mr. Lackey and then asked

, “ D o you have any guns or sharp objects on you?” Mr. Lackey responded he did not, but there was a gun in

the ca r

. Id. at 122 5

- 26 . The court determined this inquiry f ell sq uarely u nde r the publi c safety exception because if Mr. Lackey had a gun, it could have been used against the officers, or someone could have bee n injured when he was frisked subject to arres t. Id. at 1227. It reached this conclusion even though th e admi ssion we nt di rectly to the ulti mate question of guilt under the crime charged.

[¶13] Rather than analyzing the wording of the unwarned questions, we look at the totality of the circumstances to det e rmine whether the public safety exception applies

, incl uding : the nat ure o f the cri me, the k nowledge of the officer at the scene, whether the defendant is restrained, whether the defendant is alone, and the nature of the scene

. See

, e.g. , Quarles

, 467 U.S

. 649, 104 S.Ct. 2626 ( question about location of gun f ell un der publ ic sa fety exce ption because it was somewhere in a grocery store where the public might access it); Barnes , 2008 WY 6, 174 P.3d 732 ( public safety exception applied to

q uestion about the a mount of drug s Mr. Barnes used because he complained of dizzi ness and sh or tness of breath and it was possible he was suffering from a drug ove rdo se) ; U.S.

v. Mikolon , 719 F.3d 1184 (10th Cir. 2013 ) (question about presence of drugs or weapons

in defenda nt’ s truck did not fall under the public safety exception becaus e defend ant w as

secure d and away from the truck at the time) ; Perez v. People , 4 79 P.3d 430 (Colo. 2021) ( After a traffic stop and foot chase, officers discovered shot gun ro unds in def endant’s pocket and asked where the gun was

. The cou rt deter min ed the pub lic safety exception applied because the officer could hav e reasonably believed the defendant was armed at

some point during the chase and that could pose a threat to pu blic sa fety

. ) ; State v. Campbell

, - -- So. 3d

--- , 2020 WL 6580 522 (La . 2020) (pe r curiam) (public safety exception applied to question “wh at happened ? ” after officers responded t o a 911 call in

which a child reported that her father had shot her mother bec au se offic ers did not know the location of the child or weapon , or wh o was in vol ve d); Stat e v. Forshee , 455 P.3d 1025 (Or. App. 2019) (th e public safety exception app lied when officer responded to a workplace shooting and asked the first person he saw “ w ha t’s your i nvolvement here ? ”5 because he arrived on a scene wher e an un known sh oot er was at large and did not know

if the defendant was the perpetrator, witness, or victim); see also U.S. v. Fautz , 812 F. Supp. 2d 570, 624

- 29 (D.N.J. 2011) (including exten sive overvie w of cases involving the public safety exception).

[¶14] The s ituation he re develop ed very rapidly. In the three minut es it took Sergeant Schmidt to get from the station to the door of the house , the call evolved from an unspecified medical emer genc y, to a s tabbing, to a shooting. He coul d hear Max and the

children screamin g b efore he entered the house. Max could not stand up and continued yelling after the offic ers entered the house. The offi cer s saw Joe, dead on the floor, and

did not imme dia tely see the gun. When Sergeant Schmidt arrived , the sc ene was cha otic

and he did not know what had happened , who was there, w her e the weapon was, or if there was continuing danger to th e publi c or people in the home (including the officers). Sergeant Schmidt’s ques tions wer e spontaneous and in response to the ty pe of

kale idoscopic situation described by the Qu arles cour t. The dis tr ict court did not err in concluding the public safety exce ption applie d

.

II. The district court did not err when it determined Max vol untarily waived his

Miranda rights during his D CI interro gation

[¶15] Max argues the district court e rred when it faile d t o suppress the statement he gave to Agent s Holder and Carpenter the day a fter Joe died because his statement was involuntary

. Voluntarine ss is a quest ion of law that we review de novo. Gunn

, 2003 WY

24

, ¶ 5 , 64 P.3d at 7 19

. “In de te rmining voluntariness, [w e] examine[] the totality of the

circumstances that existed when the statements were made.” Id . at ¶ 18, 64 P.3d at 722.

Courts cons i der many factors in determining whether a statement was made vol untarily

, including :

“ [T ] he at mosphere and events su rro unding the elicitation of the statement, such as the use of violence, threats, promises, improper influence or official m isconduct, th e conduct of the defendant before and during the interrogation an d the

defendant ’ s m ental c o ndi ti on at the time the sta tem ent is

made [,]

. . . whether the defendant was in custody or was free to leave and was aware of the situation; whether Mi randa warning s were given prior to any interrogation and whether

the defendant understood and wai ved Mira nda r ights;

whether the def end ant had the opportunity to confer with counsel or anyone else prior to the interrogation; whether the challenged statemen t was made du r ing the course of an interrogation or instead was volunteered; w hether any overt

or implied th re at or promise was dire cte d to the defendant; the method and style employed by the interrogator in6 questioning the defendant and the length and pla ce of the

int e rrogation; and the defendant ’ s mental and physical

condition imm ediately prior to a n d durin g t he interrogation,

as wel l a s educational background, employment status, and prior experience with law enforcement and the criminal justice system.”

Id. at ¶ 12

, 64 P.3d at 721 (alterations in original) (quoting Simmers v. Sta te , 943 P.2d 1189, 1195

- 96 (Wy o. 1997))

. Agent Holder testified that no one threatened Max or offered him anything in exchange for his testimony. And

, while Max was under arr est
and at the police station, he aske d to speak to the D CI agent s, an d they read him his

Mi r anda rights prior to questioning and did not ask any substantive questions until Max

confirmed tha t he understood

.

[¶16] Max ar gues h is statements to Agen ts Ho lder and Carpenter wer e involuntary because he was under the influence of methamphetamine at the time. Howeve r, i ntoxicatio n, without more, does not ren der a statement involuntary. Siler v. State

, 2005 WY 73, ¶ 25, 115 P.3d 14

, 26 (Wyo. 2 005) ( citin g Stone v. State , 745 P.2d 1344, 1348 (Wyo. 1 987)). When an appellant alleges his statement was involuntary due to intoxication, we look to whet her the appe llant “was so intoxicated . . . he was unable to appreciate the n ature an d c on sequences of hi s state ment s .” Siler

, 2005 WY 73

, ¶ 25, 115

P.3d at 26 (quoting Lonquest v. State , 495 P.2d 575

, 582 (Wyo . 1972)). The district court

found that Max ’s positive methamphetamine test occurred fourteen and a ha lf hours

before th e interro gat io n. 3 It f ound h is answe rs during the interrogati on were sometimes nonsensical, but at other points were responsive and cle ar. And finally, it found tha t Agent Holder was qualified to recognize whether a person is un der the i nfluence of drugs

a nd alcoh ol

, a nd he te stified he did not believe Max was unde r the influence at the time of the interrogation.

[¶17] F urther, even if Max was under the influence o f methamphetamine d u ring the interrogation, “ [ i ] nvo luntari ness requires coerc ive stat e a ct ion , suc h as trickery, psychological pressure, or mistreatment.” S tate v. Evans , 944 P.2d 1120, 112 5 (Wyo. 1997) ( citing Colorado v. Connelly , 479 U.S. 157, 167 , 107 S.Ct. 515, 521, 93 L.Ed.2d 473 (1986)); see also C arter v . State

, 2010 WY 13 6, ¶ 15

, 24 1 P.3d 476

, 485 (Wyo.

20 10). Max originally declined to speak with D CI

, and he asserts the fact he was interrogated later in the evening indicates he was coerced into waiving his rights . The record, however, does not s upport this assertion.

[¶18] Instead, th e record s hows Agent s Ho lder and Carp enter first saw Max late in the morning on the day after Joe died , about four hours af ter he was released from the

3 The parties stipulated that the positive me t hamphet a mine te st occurred at 2:37 a.m. The interview with the DCI agents was conducted at 7:00 p.m.

— sixteen and a half hours after the p ositive test res ult

.7 hospital

, but Max was asleep

, so t he y left

. Agents Holde r and Ca rpe nte r return ed around

five o’clock in the evening

, read Max his Miranda rights

, Max said he did not want t o speak with them, and they left. On the drive back to Casper, the agents recei ved a call

from a staff member a t t he jail who said Max want ed to speak with them. Agents Holder and Carpenter returned to Douglas and spoke with Max at the jail around seven o’clock that evening. The agent s record ed the interro gation. They informed Max of his Miranda rights

, and Max initiall y stated he did not understand and asked the agents to explain

them . After the agent s went through his Miranda ri ght s a seco nd time, Ma x a ffirmatively

declared he understood his r ights and then willingly spoke with the agents and answere d their questions. Nothing in the record demonstra tes th e type of coercive state a cti on

necessar y to render a statement involuntary.

CONCLUSION

[¶19] The p ublic safety exception appli es to Max’s statement s at th e scene of the crime. Furthermore, Max was advised of his Miranda rights at the police station, he stated he

understood the m, and he w aiv ed his righ ts. His state ments at the station were voluntary

a nd not the result of coercion. The district court did not err when it denied Max’s motion to suppress. We affirm.