No. 14534 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979

STATE OF MONTANA, Plaintiff and Respondent,

LARRY BLAKNEY, Defendant and Appellant.

Appeal from: District Court of the Fourth Judicial District, Honorable Jack 

### L. Green, Judgepresiding. Counsel of Record: For Appellant: Smith,Connor & Van Valkenburg, Missoula, Montana John P. Connor argued,Missoula, Montana For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana Mary B. Troland argued,Assistant Attorney General,

Helena,Montana Robert L. Deschamps 111,CountyAttorney, argued,

Missoula, Montana

Submitted: September 13, 1979 Decided: I- 

### ik 

### 1979Mr. Justice John Conway Harrison delivered the Opinion of the Court. ~efendant-appellant was arrestedon the charge of deliberatehomicide on June 14, 1977, afterpolice had obtained a confession, theproduct of several interrogations. Appellant thereaftermoved to suppress the confessionbecause itwas involuntary. The DistrictCourt, however, found the confession voluntary, denied themotion, and set trial inthematter. Appellant was convicted of the charge and sentenced tofortyyears intheMontana state prison. From thisconviction he appeals. Atapproximately 9:00 p.m. on Saturday, June 11, 1977, police found thebody of Ann Thibodeau inthe Clark Fork River near the downtown area of Missoula, Montana. Ms. Thibodeau had apparentlybeen strangled and thrown into the river, her deathresulting from strangulationaggravated by the ingestionof water intothe lungs. On investigation police learned thatMs. Thibodeau spent the evening of June 10, 1977, with appellantand several other young people. During the evening, they drove around Missoula inappellant's car, stopping atvarious timestopick up some hidden beer, to "park," and tocheck on some parties. As the nightprogressed, appellant took hispassengers home, dropping off the lastone exceptAnn Thibodeau shortly beforemidnight. Attrial, aswellas when firstinterviewed by thepolice, appellanttestified he then took Ms. Thibodeau home. In a confessionmade toMissoula police, however, appellant statedhe and Ms. Thibodeau parked by a bridge near the Clark Fork River afterdropping off the last of their companions. Appellant saidhe became angrywith Ms. Thibodeau forbeing unfaithful tohisbrother, whom shehad been dating, and suddenly strangledher. Thinking she

was dead, he dragged her from hiscar and slidher off the bridge intothe river. Officers questioned appellant concerning Ms. Thibodeau's deathon four occasions: Saturday, June 11, at11:OO p.m. for approximately one and one-half hours; Sunday, June 12, at9:30 a.m. forapproximately two and one-half hours; Monday, June 13, at10:OO p.m. for approximately two hours; and Tuesday, June 14, at12:lO a.m. for approximately one and one-half hours. Inaddition tothese interrogations, appellantconsented toa searchof his car and a polygraph examination. Officers conducted the car search after the firstinterrogation atapproximately 1:00 a.m. on Sunday, June 12. The searchrevealed appellant's car had been recently cleaned. The polygraph examination was conducted

on Monday, June 13, between the second and third questioning sessions. The examination indicated some untruthfulness in appellant's prior statements. Appellant confessed during the third interview. The fourth interview consisted of a taping of essentiallythe sameconfession. Prior toeach interview, appellantwas advised of his rightsand signed waivers respecting hisrights. During the interviews, pictures of thenude body of the victimwere exposed on the tableof the interrogationroom. The interviews were conducted with only appellantand the interviewing officerspresent inthe room. Members of appellant's familywerepresent inthehalloutside the interviewroom* Appellant wasnot confined between interviews. Appellant was 18years of age atthe timeof the interviews. Atthe suppression hearing, two expertwitnesses testifiedappellant had a learning disabilityand probablycould not understand his rights as presented on the waiver forms used by the police. There was additional testimony that appellanthad an IQ of 94,had completed the eighth grade, had passed most of the high school equivalency exam, had taken vo-tech classes in Butte, and had worked in his father's business. Discrepanciesexist as to whether appellant made a request for counsel. It is agreed that appellantbrought up the subjectof counsel during at least one of the questioning sessions. The testimony conflicts, however, as to when appellantmentioned an attorney,what appellant said about wanting an attorney,and the conduct of the interviewers and appellant after thementioning of counsel. Appellant states he requested counsel and onewas not provided. One of the officersquestioning appellant recalled that appellantasked him if he thought he should talk with a lawyer and the officer responded that itwas up to appellant. Both questioning officers agree that appellantvoluntarily resumed the interviewafter the mentioning of counsel. No counselwas provided for the appellantduring the interrogation process. On Wednesday, June 15, 1977,appellant called police officers and familymembers to the Missoula County jail where he was being held and repudiated the statements he had made on the 13th and 14th, stating he saw someone else murder Ms. Thibodeau. At the suppression hearing and trial, appellant withdrew this repudiation and returned to his original story of dropping off the victim ather home about midnight. Appellant raises three issues on appeal:1. Did theDistrictCourt err infailing togrant the motion to suppress appellant's confession? 2. Does section 46-13-301(4), MCA, requiring a defendanton a motion to suppress toprove thata confession was involuntary, constitute a denial of due process inviolation of the United Statesand Montana Constitutions? 3. Did the Statepresent sufficientevidence during the trial to support a guilty verdict on the charge of deliberate homicide? To resolve the firstissuepresented here, wemust decide if theDistrictCourt erred in finding appellant's confession voluntary and if appellantwas unconstitutionally denied his right tocounsel. To determine the firstaspect of this issue, thevoluntariness of the confession, wemust consider the "totalityof circumstances" surrounding the confession with no single factbeing dispositive of the issue. Statev. Grimestad (1979), Mont

# . , 598 P.2d 198, 202, 36 St.Rep. 1245, 1251; Statev. Lenon (1977), Mont. 

### , 570 P.2d 901, 906, 34 St.Rep. 1153, 1157. When,

ashere, a youthful defendant questions the voluntariness of

a confession, the circumstances the Courtmust consider include: 

# ".

.. 1)age of the accused; 2) education of the accused; 3) knowledge of the accused as to both the substance of the charge, if any has been filed, and the nature of hisrights to consult with an attorney and remain silent; 4) whether the accused isheld incommunicado or allowed toconsult with relatives, friendsor an attorney; 5) whether the accused was interrogated before or after formal charges had been filed; 6) methods used ininterrogation; 7) length of interrogations; 8) whether vel non the accused refused tovoluntarily give statements on prior occasions; and 9) whether the accused has repudiated an extrajudicial statement ata laterdate

# ..." West v. United States (5thCir. 1968), 399 F.2d 467, 469, cert. denied, 393 U.S. 1102.We should alsoconsider the mental capacity of the defendant, Smallwood v. WardehMaryland Penitentiary (4th Cir. 1966), 367 F.2d 945, cert. denied, 386 U.S. 1022; the visibility of nude pictures of a murder victim during the defendant's interrogation, People v. Roberts (1966), 3 Mich.App. 605, 143N.W.2d 182, 185; theuse of polygraph examinations, Keiper v. Cupp (9thCir. 1975), 509 F.2d 238, 241; a defendant's previous experience with the criminal justice system, United Statesv. Glasgow (9thCir. 1971), 451F.2d 557, 558; and, a defendant's experience in the adultworld, United Statesv. Hilliker (9thCir. 1970), 436 F.2d 101, 102-03, cert. denied, 401U.S. 958 and West v. United States, supra. These are allfactors courts have taken intoaccount indeciding if a young person voluntarily confessed. One additional rule aidsus indeciding thiscase. We stated inGrimestad: 

# ".



# ..The issueof voluntariness of a confession is largely a factual determination, addressed to the discretionof the trial court



# .

# .. The trial court's judgment as tovoluntariness of a confessionwillnot be reversed on appeal unless it isclearly against the weight of the evidence." 598 P.2d at202, quoted from Statev. Lenon, 570 P.2d at906. The trial court here reviewed the evidence and determined appellant voluntarily confessed. In considering almost every one of the factorslisted above asrelevant in determining the voluntariness of appellant's confession, evidence exists supporting the holding of the District Court. Appellant was 18, legallyan adult. Hehad passed most of his high school equivalency examination and attended votech school. Appellant's IQis 94, within the normal adultrange. The trial judge found thatappellant demonstrated an understanding of theEnglish language during his courtroom testimony. Appellant had worked inhis father's business. Appellant had prior experiencewith the criminal justice system, having previously been advised of his rights in connection with juvenile matters. The four interrogation sessions lasted onlyabout two hours each and were spread outover severaldays. Between sessions, appellantwent home, freetoconsultwith familymembers and move about as he pleased. The DistrictCourt found that thepolygraph procedure did not intimidate appellant. Appellant stated at the suppression hearing thathe did notpay much attention tothe pictures of thevictim leftexposed on a table during thequestioning. Appellant repudiated his confession, placing blame for themurder on someone else, but later returned tohisoriginal storyof dropping off the victim at her home. Although some evidence tothe contrary exists, the above facts show thedecisionof the DistrictCourt does not clearly contravene theweight of the evidence. Wemust, therefore, affirm the DistrictCourt's ruling on the voluntariness of appellant's confession. Speaking tothe second aspectof this issue, whether appellantwasunconstitutionally denied hisright tocounsel during the interrogationprocess, the DistrictCourt concluded: "That the defendant never made an effectiveassertionof counsel and inany event thereafter knowingly and intelligentlywaived the presence of counsel by spontaneously statinghe did not want a lawyer and resuming talking tothepolice.'' This conclusion raises two questions for consideration on appeal: (1)Did appellanteffectively assert his right toan attorney? and, (2) if so,did appellant thereafterwaive his right to counsel? InMiranda, the Court stated: "Prior to any questioning, the person must be warned that he has a right to remain silent, that statementshe doesmake may be used as evidence against him, and that he has a right to the presence of an attorney,either retained or appointed. The defendantmay waive effectuation of these rights,provided the waiver is made voluntarily,knowingly and intelligently. If,however, he indicates in

### anymanner and at 

### - any stage of the process thathe wishes to consultwith an attorney before speaking there can be no questioning." (Emphasisadded.) Miranda v. Arizona (1966), 384 U.S. 436, 444-45, 16 L.Ed.2d 694, 86 S.Ct. 1602. Although the witnesses at the suppression hearing gave conflicting testimony concerning the languageused by appellant in allegedly asserting his right to counsel, the trial court found that appellant "broughtup the subjectof an attorney" twice, on the second occasion stating, "maybe I should have an attorney." This language brings appellant's assertion within the "indicatesin any manner" language set out inMiranda as the requirement for an effective assertion of the right to counsel. Thus, the District Court erroneously concluded that appellantdid not effectively assert his right to counsel. We must decide, therefore, if the DistrictCourt also erred in concluding that appellantwaived his right to counsel after an effective assertion of the right. Although the United States Supreme Court has not yet ruled on the issue, see Brewer v. Williams (1977), 430U.S. 387, 405-06, 97 S.Ct. 1232, 51 L.Ed.2d 427, several of the circuit courts have held a defendant canvalidly waive the right to counsel aftermaking a request for counsel. United Statesv. Rodriguez-Gastelum (9thCir. 1978), 569 F.2d 482, cert. denied,436 U.S. 919; United Statesv. Hodge (5thCir. 1973), 487 F.2d 945. Wehold that thisview correctly interprets the situation inMontana and adopt thisrule. In so doing, we recognize thata waiver of the right tocounsel cannot be presumed and that the Statebears a heavy burden to show waiver. North Carolina v. Butler (1979)

### , -U.S. 

### , 99 S.Ct. 1755, 60 L.Ed.2d 286, 292. Given this standard and the District Court's findings of fact, the District Court did not err inholding appellant waived his right tocounsel. The DistrictCourt found that the firstassertionof the rightwasmade on Sunday morning. After being advised by the police thathe could have counsel if he wished, appellantcontinued answering questions. Thus, appellant voluntarily abandoned hisright tocounsel atthispoint and unilaterallyresumed the interviewwithout prompting by the interviewing officers. The Sunday interview terminated around noon with no incriminating statements being made by appellant. The next interrogation session did not begin until Monday evening. Between the interviewsmore than 30 hours elapsed, including a fullbusiness day inwhich appellant

was not detained and was free toconsultwith familymembers

oran attorney if he wished. Prior tothe Monday interrogation, appellant again received hisMiranda warnings and signed a waiver. During the questioning session, appellant again assertedhisright tocounsel. With this, the officers stopped questioning appellant and began toleave the

room. Appellant resumed talking tothe police and they reminded him he had just saidhe wanted an attorney. Appellantthen statedhe didnot want a lawyer and the interrogation continued.These facts--particularly the more than 30-hour time span between the firstassertion of the right to counsel and any inculpatory statement, the rereading of his Miranda warnings and the signing of a waiver before any incriminating statement,and the express statementby appellant that he did notwant a lawyer--represent a waiver of the right to counsel on the part of appellant. The law on the second issue raised by appellant is clear. RecentMontana and United States Supreme Court decisions invalidate section 46-13-301(4), MCA. Lego v. Twomey (1972), 404U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618; State v. Smith (1974), 164Mont. 334, 338, 523 P.2d 1395, 1397. The Statemust prove the voluntariness of a confession at a suppression hearing by a preponderance of the evidence. If the trial court applied section 46-13-301(4) and required appellant to prove the confession involuntary, it erred. Error by the trial court cannotbe presumed but must be shown by the record. State v. Straight (1959), 136 Mont. 255, 264-65, 347 P.2d 482. Reviewing the record of the suppression hearing, the trial judge heard arguments by the prosecuting attorney that,while at the trial the Statemust prove voluntariness, the burden to show the police violated appellant's rights rested on appellant at the suppression hearing. Responding to this argument, the judge stated, "Well, it appears to me that what you say is true. Mr. Volinkaty [appellant'sattorney], at the trial, if they wish to introduce this at trial, the burden is on the State to prove voluntariness; however, this is a motion to suppress and I think that, since it isyour motion, you should proceed at this time."This record presents the possibility of two errors by the District Court. First, the trial judge could have erred in requiring the appellant to go forward with the evidence. The federal courtshave considered this question on several occasions. Speaking to this issue in a case involving the suppressionof wiretap evidence, the Fifth Circuit Court stated: "(b) Burdens of proof in suppressionhearings. It iswell establishedthat the burdens of production and persuasion generally rest upon themovant in a suppressionhearing. [Citations omitted.] Concededly, in some welldefined situations the ultimate burden of persuasion may shift to the governmentupon an initial showing of certain factsby the defendant. For example, if a defendantproduces evidence that he was arrested or subjected to a searchwithout a warrant, the burden shifts to the government to justify the warrantless arrest or search. [Citation omitted.] Or if a defendant shows that a confessionwas obtained while he was under custodial interrogation, the government then has the burden of proving that the defendantvoluntarilywaived his privilege against self-incrimination 

# .

# . . -- even in those situations, the 

### - defendantmust firstdischarge 

## - his initialbur- den of producing some evidence on specific 

### -- factualallegations sufficient

## to --- make a prima facie showing of illegality." United States v. DeLa ~uente(5th Cir. 1977), 548 F.2d 528, 533-534, cert. denied, 431U.S. 932and 434 U.S. 954. InUnited Statesv. Crocker (10thCir. 1975), 510 F.2d 1129, the trial courtdenied appellant's motion to suppress

a confession. On appeal, the appellant contended the trial court at the suppressionhearing improperly required her to

assume the burden of proof and of going forward with the evidence. The Circuit Court responded to this argument, saying: "It is fundamentalon a motion to suppress there must be 'a foundation in fact for the legal result.' Rogers v. Richmond, 365 U.S. 534, 546, 81 S.Ct. 735, 742, 5 L.Ed.2d 760 (1961). Logic dictates that a pre-trial Motion to Suppressfiledby an accused does in factcast the burden upon themovant topresent factsnecessary to sustainhisposition. [Citationomitted.]" Crocker, 570 F.2d at 1135. The court goes on to state: "While the defendantmust firstpresent evidence in support of hismotion to suppress which satisfies hisburden of challenging the legality of the confession, we have recognized that the Government must 

### -- then carry the countervailing burden of proving a waiver of the constitutional privilege against self-incrimination." 510 F.2d at1135. See alsoUnited Statesv. Polizzi (9thCir. 1974), 500 F.2d 856, 910, cert. denied, 419 U.S. 1120. These cases indicate a trialjudge can properly require

a partymoving for the suppression of evidence toinitiate suppression hearing proceedings. The rationale for such a procedure is the requirement that the movant establisha prima faciecase that a constitutional infringement has occurred. Once thishas been accomplished, the ultimate burden of proving the propriety of the state's action shifts tothe state. Thus the District Court here did not err in requiring appellant topresent his evidence firstatthe suppression hearing. Although allowable, we do not recommend thisprocedure

as standard practice atsuppression hearings. The District Courts should employ thisprocedure only when necessary to establish a prima facie case of infringement by the State. If a prima facie case ispresented by the party requesting the suppression of evidence tothe trialcourt's satisfaction through prehearing documentation, the State should be required toinitiate the suppression hearing proceedings. This procedure willclearlyplace the burden of proof on the State asrequired by Lego and Smith.The second possible error presented here is whether there was an improper burden of proof put on appellant at the suppression hearing. The above excerpt from the hearing transcript clearly shows the trial judge applied the incorrect standard at the suppression hearing. After hearing the State's argument that appellantwas required to prove the confession involuntary, the judge stated he thought that what the prosecuting attorney said was true and required appellant to proceed. As noted above,we find that this required appellant to assume the obligation of going forward with the evidence. Italso shifted the burden of proof to appellant. However, we find here that even though the trial court's ruling did shift the burden, the ruling can be sustained as harmless error. The error here is federal constitutional

error. Lego v. Twomey, supra;Jackson v. Denno (1964), 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. While not all

errors of constitutional magnitude call for reversal,

# ".

.

# . before a federal constitutional error can be held harmless, the court must be able to declare a belief that itwas harmless beyond a reasonabledoubt." Chapman 

### v. California

(1967), 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705. In determining the existence of harmless constitutional error, the appellate court considering the question has the task of applying the harmlessbeyond a reasonable doubt test. Chapman, 386 U.S. at 24; see also Harrington v. California (1969),395U.S. 250, 89 S.Ct. 1726, 23 ~.~d.2d 284; Schneblev. Florida (1972),405U.S. 427, 92 S.Ct, 1056, 31 L.Ed.2d 340. Applying this standard to the instant case,we find the

error was harmless beyond a reasonabledoubt. We are aidedin our decision by the rationale expressed in Rogers v. United States (5thCir. 1964), 330 F.2d 535, cert. denied, 379 U.S. 916. Rogers is another case holding no error exists in requiring a defendant to initiate suppression hearing proceedings. 330 F.2d at 542. In so holding, the court stated: 

# ".

..The burden of producing evidence is never crucial unless certainnecessary facts in a case are not aired. Here all the salient facts were 

### --- aired. Fewwere even in dispute. The defendant, therefore,was notprejudiced by the order in which the evidence iia~-~resented. And the district judge allowed defendant's counsel to examine all of the witnesses as hostile. There is no prejudicial error in the record." 330 F.2d at 543. (Emphasisadded.) As in Rogers, the trial judge heard all the salient facts at the suppressionhearing. The trial courtheard testimony from eleven witnesses including appellant, appellant's father, the officerswho interviewed appellant, the polygraph examiner,a clinical psychologist, and a learning disabilities specialist. The trial judge allowed appellant's attorney to examine witnesses as adverse in appellant's initial presentation. At the conclusion of the appellant's initial presentation, the State introduced evidence of voluntariness through its ownwitnesses. When the State rested, the trial courtgave appellant the opportunity to present rebuttal testimony. Throughout the proceedings, both sides conducted extensive direct, cross, redirect,and

recross examination of the witnesses. In addition to the witness testimony, the trial judge had the benefit of briefs from appellantand the State on the voluntariness question. After considering all this testimony and the briefs of counsel, the trial judge found the confession voluntary. Given the extensive nature of the proceedings and the fullright of appellant to present his case on this issue,we are convinced beyond a reasonable doubt the trial judge would have reached the same resultregardless of the improper placing of the burden of proof on appellant. Any error thus constitutesharmless error and does notwarrant returning the case to the trial court. Appellant's arguments concerning the third issue lack merit. Regarding the sufficiency of evidence to support a guilty verdict, this Court has said: "On appeal we examine the evidence to determine whether the verdict is supported by substantial evidence. In doing so,we view the evidence in the light most favorable to the state." State v. Merseal (1975), 167Mont. 412, 415, 538 P.2d 1366, 1368. Beyond the confession, the State presented evidence thatplaced appellantwith the victim about three blocks from the scene of the murder near the probable time of the murder. Appellant could not explain his whereabouts at the time the murder probably occurred. Appellant had told his brother, "Ithink they're going to getme for the murder" before the police even questioned him about the homicide. And, appellanthad borrowed his brother's shoes the morning after the murder because his ownwere wet, even though every witness who was with appellantand the victim on the night of the murder agreed that appellanthad notwalked near any water. This evidence,when viewed in the light most favorable to the State, aswe must do when the State prevails at the trial level, sufficiently supports appellant's conviction on the charge of deliberate homicide. For the foregoing reasons,we affirm the judgment of the District Court.We concur: 

# Z&$ Chief Justi

JusticesMr. Justice John C. Sheehy dissents:

This is the kind of case that is guarantied to add gray hairs to an already graying judge's head. The record discloses a strong possibility that defendant Larry Lynn Blakney is guilty of deliberate homicide in the murder of Ann Thibodeau. But the record also discloses a strong possibility that the confession uttered by Larry Lynn Blakney was involuntary,was obtained with indicia of coercion,and the District Court put the burden of proof with respect to voluntariness upon the wrong party at the suppressionhearing. Reversal means further expense to the county and a possible loss of a conviction. Affirmance means that Blakney's constitutional rights must be explained away, and places our approval on the procedure that led to the confession. Therefore, I come down on the side of reversal. The circumstances surrounding the confession need some further elaboration. The body of Ann Thibodeau was found at approximately 9:00 p.m. on Saturday, June 11, 1977 in the Clark Fork River, near downtown Missoula. Blakney, at the officer's request, went to the Missoula police station at 10:30 p.m. that evening. He was interrogated beginning at approximately 11:30 p.m. for one and one-half hours. Following the interrogation, which was recorded,Blakney was taken to his home by interrogating officers,where his car was searched pursuant to his consent. They also were shown the interior of Blakney's home. They broke off contact with him at 2:00 a.m. on the morning of June 12, 1977. Arrangements were made at that time for Blakney to come into the police station thatmorning at approximately 9:45 a.m. for a second interview.This second interview on June 12, 1977, lasted approximately two to two and one-half hours. Again the interrogationwas conducted in the police interrogation room in the presence of two police officers. At this interrogation arrangements

were made for Blakney to take a polygraph examination on the following day at a time to be agreed upon. Although the testimony of the officers is inconsistent about the matter, it is conceded by the two officers and it was found by the trial court that some type of request for an attorneywas made by Blakney during the interrogation of June 12. On Monday, June 13, 1977,Blakney went to the police interrogation room to undergo the polygraph examination. It

was conducted by a Cascade County deputy. The examination commenced at approximately 9:15 p.m. and was conducted in the presence of fourpolice officers, including the polygraph examiner. Since Blakney's fatherhad gone on vacation the previous day, his uncle came to the police station with him. When the polygraph examination began, the uncle was seated at an open door outside the interrogation room and was able to hear the first fewquestions of the polygraph examination. The examiner shook his head in the negative, said something to another police officer, who then suggested to the uncle that he remove himself, or go upstairs to get a soft drink

or something. The uncle did this, and when he attempted to return to the interrogation room, found the door to the basement, through which he had come, locked. He waited there until the polygraph interrogation was completed at which time an officer came out to the uncle to tell him that the boy "was confessing." During the polygraph examination, the young defendant was seated facing the wall, and on the table near -18-him were spread out parts of the police file,but particularly

a dozen or so pictures of the nude body of Ann Thibodeau. When the polygraph examiner had finished his examination, he removed the chart from themachine, and placed the defendant behind him, showed to the defendant, the polygraph chart recording of a "known lie". The examiner then went on to state by showing other "highs" in the chart, that Blakney

was lying. Blakney testified that the polygraph examiner said "well, I've got some daughters of my own, I wouldn't want the same thing to happen to them as what happened to Ann." Blakney also testified that the examiner told him that the examiner would take the polygraph test and flash it up on a big screen in front of the jury and would show the jury the places where the examiner maintained that Blakney lied.The testimony of the polygraph examiner in this regard is as follows: "Q. After Larry came over and you reviewed the results,did youmake any statements to Larry at that time? A. Yes, I did. I told him I thought it would probably be best if he leveled with the authorities and told themwhat happened. 

### "Q. Are youmarried? A. Yes. "Q. Do you have any children? A. Yes. "Q. And are they boys or girls? A. Ihave two boys, one 19 and one 16. "Q. No girls? A. No. "Q. Did youmake a statement to Larry at that time thatyou had a couple of daughters and you didn't want this happening to them? A. Okay. To clarify what I am talking about 

### -- and talking about marriage

## -- on my first marriage, I have two sonsby my firstmarriage. On my secondmarriage, Ihave two daughters, stepdaughters, and that's true.

### "Q. Did you make a statement to that effect, that you knewhe was lying and that you didn't want this to happen to your daughters? A. I'm not going to say that I made that statement. I honestly don't remember. "Q. Can you honestly say thatyou did not make the statement? A. No. I wouldn't honestly say that. "Q. Did youmake any other statements to him? A. Yes, I did. Before we first started the exam,when we went over the advisement of rights, and also the waiver of rights on the bottom, made it very plain to Larry, and asked him if he knew that this was being done voluntarily on his part, and that the polygraph results cannotbe used against him in the State of Montana. "Q. Did youmake a statement to Larry after the testwas concluded of something to the effect thatyouwere going to put the results of the test on a screen and have it shown to a jury and he would be found guilty of deliberate homicide? A. No. "Q. Did youmake any statement that was similar to that? A. To the best of my knowledge,no. "Q. Did youmake any other statement,other than possibly one about the daughters, concerning either the use of the results or Larry's involvement in the crime? A. Yes, Iprobably did, because in most cases, I'll tell them that, if it is stipulated that the results can be used, but only if his attorney and the prosecuting attorneys will stipulate it, that the results can be used." Immediately following this, the two officers who originally interrogated Blakney came back into the room. Blakney testified that they told him they knew that he did it and that he ought to tell everything. At this point, Blakney testified that he again requested an attorney. The officers testified that he made such a request but that then he went on talking and so nothing further was done about it. Blakney testified that he assumed that because they continued interrogatinghim that he was not going to get an attorney at that time.At this point, according to the testimony of the officers,Blakney, who was concerned about what a confession would mean to members of his family, was assured that it

was a good thing for him to do and that the family would understand. With that, Blakney confessed to the murder. Later he gave a further confession that was taped or recorded. The evidence concerning the actual confession reveals

a very emotional scene. It is this evidence and testimony that leadsme to conclude that Blakney probably committed themurder. But the testimony in evidence leading up to the confession also forces me to conclude that his constitutional rights against self-incrimination and his right to counsel

were overridden. Of course, if the first oral confession was unconstitutionally brought about, then the second confession is likewise inadmissible. In any event, in considering the voluntariness of a confession, its truth or falsity is not to be considered. State v. White (1965), 146 Mont. 226, 405 P.2d 761; cert-den.384 U.S. 1023, 86 S.Ct. 1955, 16 L.Ed.2d 1026. Where a confession is given in the absence of counsel, the underlying test of admissibility of confession iswhether it is given voluntarily, and with the defendant's freewill. Statev. Lucero (1968), 151Mont. 531, 445 P.2d 731; State v. Noble (1963),142Mont. 284, 394 P.2d 504. The majority opinion tacitly concedes that the evidence respecting voluntariness is close, and that there is evidence which would support either side of the issue. It is further clear from the record, that the District Court assumed that it was bound by the provisions of section 43-13-302(4), MCA, that the "burden of proving that a confession or admission

was involuntary shall be on the defendant." This is the first -21-case where the Montana Supreme Court directly invalidates that portion of section 46-13-301(4), MCA. This Court had, however, in Statev. Smith (1974),164 Mont. 334, 338, 523 P.2d 1395, stated that the rule in Montana was that the statemust prove the voluntariness of a confession by a preponderance of the evidence. This rule was also enunciated in State v. LaFreniere (19731,163 Mont. 21, 27, 515 P.2d 76. The majority opinion concludes that the District Court did in fact apply an incorrect standard by placing the burden of proof upon Blakney to prove the involuntariness of his confession. Having so concluded, the majority goes further and determines that the mistake of the District Court constituted harmless error beyond a reasonable doubt. On that point, Imust dissociate myself from the majority. I cannot agree with the majority that the evidence of voluntariness was harmless beyond a reasonable doubt. I am notmentally agile enough to make that syllogistic leap. In my opinion,when the District Court concluded that Blakney did not carry his burden of proof, a burden he did not have under a correct version of the law, the District Court committed error beyond a reasonable doubt. To clarifymy position, I find no particular significance

or error in the fact that Blakney was required to put his evidence on first at the suppressionhearing. The correct procedure at suppression hearings calls for the defendant to put his case on first, at least to establish a prima facie case of involuntariness, because otherwise his motion would be defeated if no evidence were given on either side. Once the prima facie case has been established the burden of persuasion shifts to the State to prove the voluntary character of the confession. -22-I also want to make clear that I have stated the rule in Montana that voluntariness must be proved by the State by a preponderance of the evidence, only because the rule is stare decisis.1: - disagree with the holding of this Court in Statev. LaFreniere, supra,which refused to adopt the standard of proof respecting voluntariness as beyond a reasonable doubt. Our court was following a decision in Lego

v. Twomey (1972), 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618, 626, 627. There, the United States Supreme Court decided thatproof beyond a reasonable doubt of the voluntariness of a confessionwas not constitutionally required. When the logic of the nine men in Washington in reaching a decision does not hold water, and we are not bound by the decision,

we should not follow it blindly. The United States Supreme Court reached the preponderance rule in such cases upon the reasoning that "thepurpose that a voluntariness hearing is designed to serve has nothing whatever to do with improving the reliability of jury verdicts 

# . .." 404 U.S. at 486. That reasoning is demonstrablywrong; it is precisely to assure the reliability of the jury verdict that suppression hearings are permitted. In fact,before the jury is permitted to hear a confession,the trial court is first required to determine that the confession is in fact voluntary. Jackson

v. Denno (1964), 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. InMontana, by statute, the issue of the admissibility of the confession is not to be submitted to the jury. Section 46-13-301(5), MCA. When one considers that every element of the crime must be proved beyond a reasonable doubt (section26-1-403(2), MCA) the catastrophic effect of permitting a jury to hear a confession of the defendant, -23-the admissibility of which is determined on a basis less than beyond a reasonable doubt, cannot be debated. California has moved away from the United States Supreme Court in this regard, and has held that the privilege against self-incrimination is so fundamental, and so highly regarded judicially, that the reasonable doubt standard presents the greatest chance of excluding involuntary confessions. People v. Jimenez

(1978), 147 Cal.Rptr. 172, 580 P.2d 672. Persuasive to the California courtwas the fact that

once a confession is determined by the trial court to be voluntary and therefore admissible, the jury does not redetermine the voluntariness issue, and the appellate court is bound to accept the trial court's resolution of conflicting evidence, unless it is so improbable as to be entirely unworthy of belief. Jimenez, supra, 580 P.2d at 678. The same situation exists in Montana. Under our code section above cited, the jury does not determine the issue of admissibility. On appeal this Court has held invariably that the District Court's decision as to admissibility is practically inviolate. State

v. Smith (1974), 164 Mont. 334, 523 P.2d 1395; State v. Chappell (1967),149 Mont. 114, 423 P.2d 47; State v. White

(1965), 146 Mont. 226, 405 P.2d 761. Again, it offendsmy syllogistic power to find consistency in a rule which requires proof of elements of a crime beyond a reasonable doubt but which allows a confession,against the defendant's constitutional right of no self-incrimination, to be proved by a lesser standard. Finally, it ismy conclusion that Blakney was denied his Miranda rights with respect to counsel. The majority opinion finds that he effectively asserted his right but that he waived the same. It is true that the United States Supreme Court has held that the State bears a "heavyburden" to showwaiver of right to counsel. North Carolina v. Butler (1979), U.S. 

## , 99 S.Ct. 1755, 60L.Ed.2d 286, 292. I am - -24-frank tostatethat I don't know what a "heavy burden" isbut I think it should be nothing lessthan beyond a reasonable doubt. Here again that standard has not been metinthiscase. I would reverse and remand, at least for a proper hearing

astothe voluntariness of the confession.

\ . ;-- k.

# -> 

# ,A ___-____--_-------------- / Justice 

# "7----

4'Mr. JusticeDaniel J. Shea dissenting:

Iwould reverse the conviction. I cannot in good conscience abide by the bald conclusion of the trial court after a hearing on a motion to suppress, that the confession

was voluntary and that defendant was not denied his right to counsel. I agree with the factual recitation and conclusions reached by Justice Sheehy in his dissent, although I am not convinced at this time that we should adopt the California standard that the Statemust prove beyond a reasonable doubt that a confession is voluntary before it can be introduced against him at trial. People v. Jiminez (1978), 147 Cal.Rptr. 172, 580 P.2d 672. I am not convinced,on the other hand, that the present preponderance of the evidence should be the proper standard. Rather, Ibelieve that the State should be required to prove by clear and convincing evidence that the defendant's confession was voluntary. The standard of beyond a reasonable doubt is too stern, and the standard of preponderance of the evidence is too elusive or vaporous. It is too flexible a standard by which to judge something so fundamentalas a constitutional right. Justice Sheehy does not agree, furthermore, that itwas harmless error beyond a reasonable doubt to require the defendant to prove the involuntariness of the confession. Nor do I. Should a defendant challenge the voluntariness of his

## confession^ it is his duty to raise the issue by an appropriate motion to suppress with specific contentions;but once those allegations aremade it is the duty of the State to proceed firstwith its case to prove that the confession

was voluntary. Only if the State establishes a prima facie case of voluntariness by the standard of clear and convincing evidence should the defendant be required to come forward with -26-his own evidence disputing the State's claim. Thatwas not done here, and regardless of the standard used, it is clear that the trial court in effect placed the burden on the defendant to prove that the confessionwas involuntary and to prove that he was denied his right to counsel. The record demonstrates that the trial court was under the mistaken assumption itwas the defendant's duty to prove involuntariness of the confession and nonwaiver of counsel rather than the duty of the State to prove a voluntary confession and waiver of counsel. In setting forth the wide latitude to be given a trial court in assessing and weighing the evidence, the majority refers to Grimestad where we simply repeated the timeworn rule which applies to virtually all factualdeterminations by a trial court. Themajority then proceeds to apply Grimestad to this case by stating: "The trial courthere reviewed the evidence and determined appellant voluntarily confessed. In considering almost every one of the factors listed above as relevant in determining the voluntariness of appellant's confession, evidence exists supporting the holding of the District Court.

### '' I do not dispute that evidence exists supporting the holding of the trial court,but if a standard other than the virtually meaningless one of preponderance of the evidence (in the context of this case) were applied, the trial courtwould have been required to find that the State did not prove the confessionvoluntary and a waiver of counselby clear and convincing evidence. Themajority then proceeds to discuss the evidence as to each of the factors. The essential problem is,however, that another trial judge, if he was so inclined (letus say if he had philosophical leaningsdifferent.than those of -27-the trial judge concerning the right to counsel and obtaining confessions), could have taken the oppositeposition, and concluded, with adequate support in the record, that the State did not prove that the confessionwas voluntary and that the State did not prove that defendant waived his right to counsel. This decision of the trial courtwould have looked just as good in print, although not nearly aswell accepted by the public. Viewed in the abstract, this deference given to trial court decisions on the facts isnice-sounding; it gives the distinct impression that the appellate court is notmeddling in the factualdeterminations of the trial court. Iwould also like to believe thatwe could,with full assurance,give this kind of deference to the trial court and its fact-finding functions. We refer to this rule constantlywhen we uphold

a decision of the trial court as to its factualdeterminations. Aside from the improper standard applied in this case (itshould be at least by clear and convincing evidence), the problem in this case is in applying this rule of deference to

a situation where there is no indication that the trial court listened carefully to the evidence, carefully evaluated the evidence, and then came to the proper conclusions by a careful application of the law to the facts as it perceived them to be. We are giving only lip service to one's constitutional rights if we do not require this of trial courts in reviewing their rulings on factual questions relating to alleged constitutional violations. How do we know, for example, that in this case after the motion to suppresswas taken under advisement, if the trial court took five minutes in considering the case before reaching its decision,or whether it took fifteen hours in considering -28-the case before it reached its decision? This is not necessarily to say that a five minute consideration would automatically be inadequate or that a fifteen hour considerationwould be adequate. But, it can be safely stated that, regardless of the decision, if one knew the trial court considered the case for fifteen hours before reaching its decision, itwould at least indicate that it had carefully considered the case. It goes without saying that when this Court reviews decisions of a trial court, it is helpful that we know how the trial court perceived the facts if it ismaking a factual determination,and how it applied the law to the facts. It ismost important when the issue involves a claimed violation of a fundamental right such as is involved here. Unfortunately, it is more often the case than not, that this Court does not receive any meaningful insight as to how and why a trial court reached a decision. The general rule seemingly applied by the trial courts is that the less it says about the facts, and how it applied the law to the facts, the better its chance will be that its decision will be upheld on appeal. That situation exists in this case, but it is much more serious. Here, the only findings of fact and conclusions of law involved,

are those prepared by the County Attorney after the trial court had reached its decision, and which were then given to the trial court to sign. We perhaps get some insight as to what the prosecutor perceived the facts to be and the appropriate conclusions to draw from those facts,but it adds absolutely nothing to the legitimacy of the trial court's decision. Had it not been for the after-the-decision suggestion of a law school intern then working for the Missoula County Attorney, there would not have been any findings and conclusions entered in this case. This important revelation

was first unearthed during the oral arguments before this Court. The prosecutor explained the circumstances. -29-This Court was questioning the prosecutor as to whether the trial court had entered a memorandum in support of its decision or had entered findings of fact and conclusions of law. In reply, the prosecutor revealed that after the trial courthad taken the suppression motion under advisement, it later notified the County Attorney's office that it had entered an order denying the defendant's motion to suppress,

or was about to enter such an order. Itwas then that the law student suggested to the prosecutor that it would be a good idea if the prosecutor presented the trial court with findingsand conclusions in support of its order. The prosecutor agreed that this was a wise suggestion and, accordingly, prepared findings and conclusions and presented them to the trial court for signature. The trial court adopted verbatim the findings and conclusions; indeed, the order in which the findings and conclusions appear is exactly the same documentpresented by the prosecutor. Thus, the only findings and conclusions before this Court for review are those prepared by and tailored by the prosecutor. The trial court had not requested proposed findings and conclusions from either side. Presumably, therefore, if the trial court did so at all, it was going to prepare and enter its own. At least the defendant would naturally believe this being that the trial court requested no findings or conclusions from either side. Counsel for defendant at the hearing on the motion to suppress is not the same counsel as argued this appeal, and I imagine it will come as quite a revelation to him as to the background leading up to the tailored findings and conclusions signed by the trial court. Themajority, of course, has carried the day,but I would not give one ounce of weight to findings and conclusions -30-prepared,presented, and signed in thismanner. To conclude,

as the majority has, that all this deference should be given to the decision of the trial court in listening to,weighing and evaluation of the evidence, is an exhaltation of form over substance in the highest degree. Defendant did not have his fair day in court on the motion to suppress because of the trial court's erroneous ruling placing the burden on the defendant. This error was compounded by the strange decision-making process used.in this case. Where the findingswere tailored by the prosecutor after the decision was made, and with no opportunity for the defendant to participate, how can anyone in good conscience believe that the trial court fairly received and evaluated the evidence and applied the law in a fair and even-handed manner? Assuming that the revelations of the prosecutor did not come to light during oral arguments,and that this Court believed that the findingsand conclusionswere those of the trial court alone, if we had a standard of review of questions of this nature requiring the State to prove by clear and convincing evidence rather than by the preponderance of the evidence, the evidence would have required this Court to reverse the District Court. By not adopting a more stringent standard,

we are only encouraging trial courts to be as vague as possible in reaching their decisions on questions involving fundamental constitutional rights.