No. 14601 

IN THE SUPREME COURT OF THE STATE OF lQXCNW 

1979 

STATE OF rnrnANA, 

Plaintiff and Appllant, 

-VSMYNE LEE GRIMESTAD, 

Defendant and kspondent . 

Appeal fm: District Court of the Eleventh Judicial District, 

Honorable James M. Salansky, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Mtana 

Ted 0. Lympus argued, County Attorney, Kalispell , Mntana 

For Respondent: 

Christian, P.13cCurdyf Ingraham & Wid, Wnan, Montana 

Fkank L. Ingraham argued, Wnan, Mntana 

Submitted: April 27, 1979 

Decided: NL 9 1979 

Filed: JUL ;. jyi? 
Mr. Chief Justice Frank I. Haswell delivered the opinion of 

the Court. 

The State of Montana appeals from an order of the h istrict Court, Flathead County, granting defendant's motion to . 

suppress evidence on the grounds that certain incrimination 

statements and admissions made by defendant were not voluntary. 

On October 3, 1977, around 7:00 in the evening, officers 

of the Flathead County sheriff's department were summoned to the 

scene of a shooting near the Isaac Walton Inn outside of Essex, 

Montana, on Highway 2 East. Upon arrival, they encountered defendant Wayne Lee Grimestad waiting with a highway patrolman near 

defendant's pickup truck. In the cab of the pickup, curled on 

the floor face down and lying on the passenger's side with head 

pointing toward the driver's side, was the body of Gary Jewett, 

dead of a single bullet wound through the head. A .357 Magnum 

pistol belonging to the deceased was on the floor of the pickup 

under his body. One spent shell was found in the seat on the 

driver's side. 

According to an investigative report filed by the officer 

in charge, defendant related the following circumstances when 

interviewed at the scene: 

Defendant and Jewett had left Kalispell at noon that day 

on a fishing trip. They had stopped at several taverns during 

the course of the day and had also tarried once along the way to 

shoot Jewett's new pistol. They stopped at the Isaac Walton Inn, 

intending to have a drink, but found the bar closed. As they 

were returning to the pickup after finding they could not get 

into the bar, Jewett stopped in the lobby to talk to a young 

woman. Defendant waited in his pickup for three or four minutes 

and then returned to get Jewett to leave. Jewett continued his 

conversation. Defendant went back outside, sat waiting in the 

pickup another three or four minutes, and then fired the pistol 
out the driver's side window into the tree tops, hoping to 

attract Jewett's attention. When Jewett still did not come, 

defendant returned once more to the lobby and demanded "Come 

on, let's go." This time Jewett accompanied defendant back to 

the pickup. 

They had driven down the road and were approaching a 

stop sign at the highway when defendant heard a shot go off. 

Defendant turned to Jewett to admonish him about firing from a 

moving vehicle and saw him slumped over in his seat. Defendant stopped the pickup, flagged down a passing vehicle, and 

told the driver his partner had just shot himself. (Again, this 

scenario is as reported by the investigating officer from statements taken from defendant on the evening of the incident. The 

report is dated October 11, 1977, which means it was filed subsequent to an interview and a later polygraph exam administered 

to defendant which are the central events in this appeal.) 

On October 4, 1977, the day following the shooting, defendant was at his parents' house where he was called on the telephone by the Flathead County sheriff's office. Defendant's 

mother answered the phone and relayed to him the message that the 

sheriff's office would like him to come down for more questioning. She contends that the caller assured her that the authorities were convinced the shooting incident was an accident and 

only wanted to clear up a few details. In fact, however, because 

of certain physical evidence (body position, gun position, and 

trajectory of the bullet), the sheriff's office felt that Jewett 

could not have been holding the pistol himself when the fatal 

shot was fired. 

Defendant voluntarily went to the sheriff's office that 

afternoon and submitted to an interview. He was not accompanied 

by counsel. He was shown, read, and signed a Miranda rights form 

and waiver, which procedure was prefaced by one of the officers 
saying: " . . . I don't want to freak you out with the thing, 

but just by our procedures and the way the courts go and everything, before we talk to anybody about virtually anything we 

have to advise them of their rights, and I don't want you to 

get all excited thinking we're accusing you of anything or we 

suspect you of anything or anything else, but that's part of the 

procedure." 

The transcript of the interview on October 4 is of the 

same tenor as the statements from the investigative report concerning the evening of the incident. Defendant said the gun was 

sitting on the seat between him and the decedent when they left 

the Isaac Walton Inn. Both men had reached a point of intoxication where they were "pretty well along the road," but neither 

was incapacitated to any extreme. Defendant's truck had rounded 

a curve, was slowing for a stop sign, and the shot went off. Defendant said he did not see what happened. 

The officers repeatedly suggested that the physical evidence indicated that the decedent could not have been holding 

the gun when it went off. They emphasized again and again that 

they were convinced that the shooting was no more than an unfortunate accident. They theorized that what occurred was that 

Jewett, who had a reputation as a hothead when drinking, was 

"messing with" the gun and defendant grabbed for it, causing it 

to fire. Defendant repeatedly stated that he did not recall any 

such occurrence. The officers insisted that the physical evidence 

did not match defendant's story. Defendant steadfastly maintained 

he was telling all he knew, that he was not really sure what happened, and that he had come to the interview hoping the sheriff's 

office could clarify it for him. The officers suggested a polygraph at a later date and defendant closed the interview by saying: "Well, if you need any help, like you said, take the test 

or whatever, I mean, I've got to find out for myself what happened." 
Several days after this first interview, a sheriff's 

deputy again telephoned defendant at his parents' home. His 

mother again took the call. He was requested to come back to 

the sheriff's office for a polygraph examination. His mother 

said she asked the caller "Well, then maybe we should get a 

lawyer for Wayne," to which she stated the caller responded 

"What do you want a lawyer for unless you need one." 

On October 8, 1977, pursuant to arrangements made by 

phone calls, defendant again voluntarily presented himself, 

again unrepresented by counsel, at the Flathead County sheriff's 

office. He was accompanied by his parents, who waited for him 

while he was privately subjected to a polygraph test by two 

officers. Apparently no tape or transcript was made of this second stationhouse interrogation; none appears in the record. The 

officers who administered the test maintained that the polygraph 

registered a negative response when defendant replied to the 

question "Did you deliberately shoot Gary Jewett?" They also maintained that during the course of the conversations on that day, 

defendant repudiated his earlier statements and recalled specific 

incriminating details of the shooting incident. 

At the conclusion of the polygraph interview, the officers 

asked defendant to make a written statement embodying the substance of what he had told them. The original of that statement 

is not part of the record, and the copy is difficult to decipher. 

It appears to read as follows: 

"We stopped at the Isaac Walton to have a beer. 

the Bar was closed I was going to leave and Gary 

was talking to a girl. I said lets go. I went 

out in the pickup and waited. Look at his gun 

check to see if it was loaded it had only 1 

shell in it I looked around (undecipherable) shot 

it into a tree a woman was looking out a window 

then I went in to get gary. I went out to the 

pickup then gary came out he was saying something 

about Jim & Gordie then he said I'll show them I 

grab for the gun and it went off. Then I really 

don't remember much. 

After firing at the tree I reloaded the gun W.L.G." 
Several matters by way of explanation and background of this 

written statement require comment. The reference to "~im and 

Gordie" is to the deceased's two children. The last sentence 

appended to the end of the statement was added at the specific 

request of one of the interrogating officers. It is also noteworthy that defendant's parents maintained that after the polygraph interview, but while defendant was still isolated and 

apparently before he executed the written statement, one of the 

interrogating officers came out and told them: "I believe Wayne 

did it, but without a doubt it was an accident." 

On November 21, 1977, a complaint was filed in Flathead 

County justice court charging defendant with deliberate homicide 

in the shooting death of Gary Jewett. A preliminary hearing was 

held before the Justice of the Peace. At the preliminary hearing, 

one of the officers who was present at the polygraph interview 

testified that defendant had stated during that conversation 

that, contrary to his previous statements, in actuality "the shooting had occurred directly in front of the Isaac Walton Hotel, that 

(defendant) remembered having the gun in his possession when it 

went off and he then backed away from the building, drove on down 

the road. " 

In all, five officers testified at the preliminary hearing, relating various facts set forth above and explaining from 

the results of their investigations why they concluded the dead 

man could not have been holding the gun himself when the fatal 

shot was fired. Based on that testimony, the justice of the peace 

concluded there was probable cause to bind the case over to District Court. Thereafter, defendant was formally charged by Information with deliberate homicide. 

The motion to suppress evidence which has resulted in this 

appeal was filed on August 17, 1978. ~t requests suppression of 

all admissions or statements made by defendant on October 8, 1977, 
the day of the polygraph examination and alleged repudiation of 

defendant's original version of the incident, on the grounds 

that those statements and admissions were not voluntary. An a£- 

fidavit of defendant accompanying the motion states that he was 

informed by the Flathead County sheriff's department on that 

day that he did not need counsel; that the officers told him 

if he could not remember the circumstances of the shooting "he 

would have to be institutionalized because the State cannot have 

people running around loose who could not remember things"; that 

the officers suggested to defendant that certain events had probably transpired at the time of Jewett's death; and that the statements and admissions defendant made to the officers were the product of coercion and intimidation in that he was in fear of incarceration in a mental institution. 

A hearing on defendant's motion to suppress was held in 

Flathead County District Court, commencing on September 15, 1978. 

Defendant testified, in summary, that he did not remember what 

had happened during the shooting incident and that any oral admissions he had made on the day of the polygraph examination were 

in the context of statements to the effect that "If you say it 

happened this way, you must be right because I really don't remember." As to the written statement executed subsequent to the 

polygraph interview, defendant testified that the officers had 

requested him to write down what they had gone over, to "make a 

written statement and it will help you to remember." He also 

testified that at the time he made the written statement, he was 

in fear he would be institutionalized because the polygraph operator had allegedly told him "we can't have you walking around 

society being able to do something like this and not remember." 

The testimony of the officers who had participated in 

the polygraph exam and surrounding conversations indicated that 

defendant had indeed qualified many of his statements with the 
explanation that "if you say it had to happen that way, that 

is probably the way it happened." The officers also recalled 

that a remark had been made to defendant about possibly sending him to Warm Springs for an evaluation. They maintained, 

however, that defendant was never told he would be institutionalized if he did not cooperate. Their testimony was unclear as 

to whether the remark was made to defendant before or after he 

executed the written statement. 

Concerning the contents of the written statement, the 

polygraph examiner testified at one point that he was satisfied 

it contained the same statements defendant had made orally in 

the conversations surrounding and involved in the polygraph interview. He later contradicted that testimony, saying that the 

written statement contained only some, but not all, of the oral 

admissions. 

On the issue of whether the officers suggested to defendant how the events must have transpired, the testimony indicates 

that some such suggestion occurred. It was also admitted that 

the final sentence in defendant's written statement was added at 

the specific request of one of the officers. The officer who 

made the request testified that he did so because "it had been 

one of the statements" defendant made during the conversation 

and "I just wanted him to put it on the statement." 

On October 11, 1978, the District Court entered findings 

of fact and conclusions of law and an order granting defendant's 

motion to suppress on the grounds that the State, under the totality of the circumstances present here, had failed to prove that 

defendant's statements were voluntary. The State moved for reconsideration or rehearing. The State's motion was denied and 

this appeal followed. 

The only issue we are asked to resolve is whether the District Court abused its discretion in granting the motion to suppress; 
that is, whether there was insufficient evidence to support the 

findings and conclusions that defendant's admissions (if, indeed, 

the statements he made can even be characterized as such) were 

not voluntary. 

There are two recent Montana cases containing extended 

discussion of the principles that control here: State v. Smith 

(1974), 164 Mont. 334, 523 P.2d 1395, and State v. Lenon (1977), 

Mont . I 

"When a motion to suppress [statements and admissions] is presented to a trial court, its 

analysis of the evidence presented at the pretrial hearing must focus on whether impermissible 

procedures were followed by law enforcement 

authorities. The burden of proof of voluntariness is upon the State, and it is required to 

prove voluntariness by a preponderance of the 

evidence but not beyond a reasonable doubt. 

[Citations omitted.]" Smith, 164 Mont. at 338, 

523 P.2d at 1397. 

" . . . The issue of voluntariness of a confession 

is largely a factual determination, addressed to 

the discretion of the trial court . . . The trial 

court's judgment as to voluntariness of a confession will not be reversed on appeal unless it 

is clearly against the weight of the evidence. 

[Citations omitted.]" Lenon, 570 P.2d at 906, 34 

St.Rep. at 1157-1158. 

" . . . The question of voluntariness largely depends 

upon the facts of each case, no single fact being 

dispositive . . . The determination of voluntariness, rather, depends upon the 'totality of the circumstances.' [Citations omitted.]" Lenon, 570 P.2d 

at 906, 34 St-Rep. at 1157. 

If there is substantial credible evidence to support a 

District Court's findings and conclusions that a confession or 

admission was involuntary, an order suppressing the evidence must 

be affirmed. Smith, supra. 

There are numerous other Montana decisions cited in the 

parties' briefs which address either specifically or peripherally 

the issues involved here. See State v. Chappel (1967), 149 Mont. 

114, 423 P.2d 47; State v. White (1965), 146 Mont. 226, 405 P.2d 

761; State v. Zachrneier (1968), 151 Mont. 256, 441 P.2d 737. 

These cases, however, are incorporated either implicitly or by 
specific citation in Smith, supra, or Lenon, supra, so any 

extended discussion of them would add nothing to the controlling 

principles set forth above. Smith and Lenon make it clear that 

the standard to be applied by the trial judge on a suppression 

question is "preponderance of the evidence," but when the same 

question comes to us on appeal the credibility of the witnesses 

and the weight to be given their testimony is for the trial court's 

determination and our review is limited to determining whether 

there is substantial credible evidence supporting the District 

Court's findings. 

The focus of the findings and conclusions entered in 

support of the suppression order here was on the downplaying of 

defendant's Miranda rights and the continued assurances by the 

investigating officers that he was not a suspect of a crime. Those 

were the primary elements supporting the District Court's conclusion that the State had not sustained its burden of proving 

that defendant had waived his constitutional right to counsel, 

his right against self-incrimination, and that his statements 

were voluntary. We agree with the District Court that mere lip 

service was given to the Miranda requirements here, rather than 

a meaningful warning. 

The inadequate Miranda warning, however, was not the 

only incident of improper procedure by the law enforcement authorities recognized by the District Court. In addition, numerous 

other questionable tactics are implicitly criticized in the 

findings and conclusions. The repeated suggestions by the officers that the shooting had to have happened in a particular way; 

the addition of a sentence to defendant's written statement at 

the specific request of one of the officers; the variation between defendant's alleged oral admissions and the written statement supposedly embodying the oral discussion, and the threat 

of incarceration in a mental institution (regardless of whether 

actually implied by the officer or only inferred by defendant from 
the officer's remark) all were part of the totality of the 

circumstances weighed by the District Court. When taken together they provide substantial credible evidence supporting the 

findings and conclusions of the District Court. 

A£ f irmed. 

............................... - 

Chief Justice 

We concur: r