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, Judge presiding. 

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, County Attorney, argued, 

Missoula, Montana 

Submitted: September 13, 1979 

Decided : I- i k 1979 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

~efendant-appellant was arrested on the charge of 

deliberate homicide on June 14, 1977, after police had 

obtained a confession, the product of several interrogations. Appellant thereafter moved to suppress the confession because it was involuntary. The District Court, however, found the confession voluntary, denied the motion, and 

set trial in the matter. Appellant was convicted of the 

charge and sentenced to forty years in the Montana state 

prison. From this conviction he appeals. 

At approximately 9:00 p.m. on Saturday, June 11, 1977, 

police found the body of Ann Thibodeau in the Clark Fork 

River near the downtown area of Missoula, Montana. Ms. 

Thibodeau had apparently been strangled and thrown into the 

river, her death resulting from strangulation aggravated by 

the ingestion of water into the lungs. On investigation 

police learned that Ms. Thibodeau spent the evening of June 

10, 1977, with appellant and several other young people. 

During the evening, they drove around Missoula in appellant's car, stopping at various times to pick up some 

hidden beer, to "park," and to check on some parties. 

As the night progressed, appellant took his passengers 

home, dropping off the last one except Ann Thibodeau shortly 

before midnight. At trial, as well as when first interviewed by the police, appellant testified he then took Ms. 

Thibodeau home. In a confession made to Missoula police, 

however, appellant stated he and Ms. Thibodeau parked by a 

bridge near the Clark Fork River after dropping off the last 

of their companions. Appellant said he became angry with 

Ms. Thibodeau for being unfaithful to his brother, whom she 
had been dating, and suddenly strangled her. Thinking she 

was dead, he dragged her from his car and slid her off the 

bridge into the river. 

Officers questioned appellant concerning Ms. Thibodeau's 

death on four occasions: Saturday, June 11, at 11:OO p.m. 

for approximately one and one-half hours; Sunday, June 12, 

at 9:30 a.m. for approximately two and one-half hours; 

Monday, June 13, at 10:OO p.m. for approximately two hours; 

and Tuesday, June 14, at 12:lO a.m. for approximately one 

and one-half hours. In addition to these interrogations, 

appellant consented to a search of his car and a polygraph 

examination. Officers conducted the car search after the 

first interrogation at approximately 1:00 a.m. on Sunday, 

June 12. The search revealed 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 essentially the same confession. 

Prior to each interview, appellant was advised of his 

rights and signed waivers respecting his rights. During the 

interviews, pictures of the nude body of the victim were 

exposed on the table of the interrogation room. The interviews were conducted with only appellant and the interviewing officers present in the room. Members of appellant's 

family were present in the hall outside the interview room* 

Appellant was not confined between interviews. 

Appellant was 18 years of age at the time of the interviews. At the suppression hearing, two expert witnesses 

testified appellant had a learning disability and probably 
could not understand his rights as presented on the waiver 

forms used by the police. There was additional testimony 

that appellant had 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. 

Discrepancies exist as to whether appellant made a 

request for counsel. It is agreed that appellant brought up 

the subject of counsel during at least one of the questioning sessions. The testimony conflicts, however, as to when 

appellant mentioned an attorney, what appellant said about 

wanting an attorney, and the conduct of the interviewers and 

appellant after the mentioning of counsel. 

Appellant states he requested counsel and one was not 

provided. One of the officers questioning appellant recalled 

that appellant asked him if he thought he should talk with a 

lawyer and the officer responded that it was up to appellant. 

Both questioning officers agree that appellant voluntarily 

resumed the interview after the mentioning of counsel. No 

counsel was provided for the appellant during the interrogation process. 

On Wednesday, June 15, 1977, appellant called police 

officers and family members 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 at her home about 

midnight. 

Appellant raises three issues on appeal: 
1. Did the District Court err in failing to grant the 

motion to suppress appellant's confession? 

2. Does section 46-13-301(4), MCA, requiring a defendant on a motion to suppress to prove that a confession was 

involuntary, constitute a denial of due process in violation 

of the United States and Montana Constitutions? 

3. Did the State present sufficient evidence during 

the trial to support a guilty verdict on the charge of 

deliberate homicide? 

To resolve the first issue presented here, we must 

decide if the District Court erred in finding appellant's 

confession voluntary and if appellant was unconstitutionally 

denied his right to counsel. To determine the first aspect 

of this issue, the voluntariness of the confession, we must 

consider the "totality of circumstances" surrounding the 

confession with no single fact being dispositive of the 

issue. State v. Grimestad (1979), Mon t . , 598 P. 2d 

198, 202, 36 St.Rep. 1245, 1251; State v. Lenon (1977), 

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

as here, a youthful defendant questions the voluntariness of 

a confession, the circumstances the Court must 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 his rights to 

consult with an attorney and remain silent; 4) 

whether the accused is held incommunicado or 

allowed to consult with relatives, friends or 

an attorney; 5) whether the accused was interrogated before or after formal charges had 

been filed; 6) methods used in interrogation; 

7) length of interrogations; 8) whether vel 

non the accused refused to voluntarily give 

statements on prior occasions; and 9) whether 

the accused has repudiated an extra judicial 

statement at a later date . . ." West v. 

United States (5th Cir. 1968), 399 F.2d 467, 

469, cert. denied, 393 U.S. 1102. 
We should also consider 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, 143 N.W.2d 182, 185; the use of polygraph 

examinations, Keiper v. Cupp (9th Cir. 1975), 509 F.2d 238, 

241; a defendant's previous experience with the criminal 

justice system, United States v. Glasgow (9th Cir. 1971), 

451 F.2d 557, 558; and, a defendant's experience in the 

adult world, United States v. Hilliker (9th Cir. 1970), 436 

F.2d 101, 102-03, cert. denied, 401 U.S. 958 and West v. 

United States, supra. These are all factors courts have 

taken into account in deciding if a young person voluntarily 

confessed. 

One additional rule aids us in deciding this case. We 

stated in Grimestad: 

". . . 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." 598 P.2d at 202, 

quoted from State v. Lenon, 570 P.2d at 906. 

The trial court here 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. 

Appellant was 18, legally an adult. He had passed most 

of his high school equivalency examination and attended votech school. Appellant's IQ is 94, within the normal adult 
range. The trial judge found that appellant demonstrated an 

understanding of the English language during his courtroom 

testimony. Appellant had worked in his father's business. 

Appellant had prior experience with the criminal justice 

system, having previously been advised of his rights in 

connection with juvenile matters. The four interrogation 

sessions lasted only about two hours each and were spread 

out over several days. Between sessions, appellant went 

home, free to consult with family members and move about as 

he pleased. The District Court found that the polygraph 

procedure did not intimidate appellant. Appellant stated at 

the suppression hearing that he did not pay much attention 

to the pictures of the victim left exposed on a table during 

the questioning. Appellant repudiated his confession, 

placing blame for the murder on someone else, but later 

returned to his original story of dropping off the victim at 

her home. 

Although some evidence to the contrary exists, the 

above facts show the decision of the District Court does not 

clearly contravene the weight of the evidence. We must, 

therefore, affirm the District Court's ruling on the voluntariness of appellant's confession. 

Speaking to the second aspect of this issue, whether 

appellant was unconstitutionally denied his right to counsel 

during the interrogation process, the District Court concluded: 

"That the defendant never made an effective assertion of counsel and in any event thereafter 

knowingly and intelligently waived the presence 

of counsel by spontaneously stating he did not 

want a lawyer and resuming talking to the police.'' 

This conclusion raises two questions for consideration on 

appeal: (1) Did appellant effectively assert his right to 
an attorney? and, (2) if so, did appellant thereafter waive 

his right to counsel? 

In Miranda, the Court stated: 

"Prior to any questioning, the person must be 

warned that he has a right to remain silent, 

that statements he does make may be used as 

evidence against him, and that he has a right 

to the presence of an attorney, either retained 

or appointed. The defendant may waive effectuation of these rights, provided the waiver is 

made voluntarily, knowingly and intelligently. 

- If, however, he indicates in any manner and at 

any stage of the process that he wishes to consult with an attorney before speaking there can 

be no questioning." (Emphasis added.) 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 language used by appellant in allegedly asserting his right to counsel, the trial 

court found that appellant "brought up the subject of an 

attorney" twice, on the second occasion stating, "maybe I 

should have an attorney." This language brings appellant's 

assertion within the "indicates in any manner" language set 

out in Miranda as the requirement for an effective assertion 

of the right to counsel. Thus, the District Court erroneously concluded that appellant did not effectively assert 

his right to counsel. 

We must decide, therefore, if the District Court also 

erred in concluding that appellant waived 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), 430 U.S. 387, 405-06, 

97 S.Ct. 1232, 51 L.Ed.2d 427, several of the circuit courts 

have held a defendant can validly waive the right to counsel 

after making a request for counsel. United States v. Rodriguez-Gastelum (9th Cir. 1978), 569 F.2d 482, cert. denied, 
436 U.S. 919; United States v. Hodge (5th Cir. 1973), 487 

F.2d 945. We hold that this view correctly interprets the 

situation in Montana and adopt this rule. In so doing, we 

recognize that a waiver of the right to counsel cannot be 

presumed and that the State bears 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 in holding appellant 

waived his right to counsel. The District Court found that 

the first assertion of the right was made on Sunday morning. 

After being advised by the police that he could have counsel 

if he wished, appellant continued answering questions. 

Thus, appellant voluntarily abandoned his right to counsel 

at this point and unilaterally resumed the interview without 

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 interviews more than 30 hours 

elapsed, including a full business day in which appellant 

was not detained and was free to consult with family members 

or an attorney if he wished. Prior to the Monday interrogation, appellant again received his Miranda warnings and 

signed a waiver. During the questioning session, appellant 

again asserted his right to counsel. With this, the officers stopped questioning appellant and began to leave the 

room. Appellant resumed talking to the police and they 

reminded him he had just said he wanted an attorney. Appellant then stated he did not want a lawyer and the interrogation continued. 
These facts--particularly the more than 30-hour time 

span between the first assertion 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 statement by appellant that he 

did not want 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. Recent Montana and United States Supreme Court 

decisions invalidate section 46-13-301(4), MCA. Lego v. 

Twomey (1972), 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618; 

State v. Smith (1974), 164 Mont. 334, 338, 523 P.2d 1395, 

1397. The State must 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 cannot be 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 State must 

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's attorney], 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 is your 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 courts have considered this question on several 

occasions. Speaking to this issue in a case involving the 

suppression of wiretap evidence, the Fifth Circuit Court 

stated: 

"(b) Burdens of proof in suppression hearings. 

It is well establishedthat the burdens of 

production and persuasion generally rest upon 

the movant in a suppression hearing. [Citations omitted.] Concededly, in some welldefined situations the ultimate burden of 

persuasion may shift to the government upon 

an initial showing of certain facts by the 

defendant. For example, if a defendant produces evidence that he was arrested or subjected to a search without a warrant, the 

burden shifts to the government to justify 

the warrantless arrest or search. [Citation 

omitted.] Or if a defendant shows that a confession was obtained while he was under custodial interrogation, the government then has 

the burden of proving that the defendant voluntarily waived his privilege against self-incrimination . . . -- even in those situations, - the 

defendant must first discharge - his initial bur- 

-- den of producing some evidence on specific 

factual allegations 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, 431 U.S. 932 and 434 

U.S. 954. 

In United States v. Crocker (10th Cir. 1975), 510 F.2d 

1129, the trial court denied appellant's motion to suppress 

a confession. On appeal, the appellant contended the trial 

court at the suppression hearing 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 fundamental on 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 Suppress 
filed by an accused does in fact cast the burden upon the movant to present facts necessary 

to sustain his position. [Citation omitted.]" 

Crocker, 570 F.2d at 1135. 

The court goes on to state: 

"While the defendant must first present evidence 

in support of his motion to suppress which satisfies his burden 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 

at 1135. 

See also United States v. Polizzi (9th Cir. 1974), 500 F.2d 

856, 910, cert. denied, 419 U.S. 1120. 

These cases indicate a trial judge can properly require 

a party moving for the suppression of evidence to initiate 

suppression hearing proceedings. The rationale for such a 

procedure is the requirement that the movant establish a 

prima facie case that a constitutional infringement has occurred. Once this has been accomplished, the ultimate 

burden of proving the propriety of the state's action shifts 

to the state. Thus the District Court here did not err in 

requiring appellant to present his evidence first at the 

suppression hearing. 

Although allowable, we do not recommend this procedure 

as standard practice at suppression hearings. The District 

Courts should employ this procedure only when necessary to 

establish a prima facie case of infringement by the State. 

If a prima facie case is presented by the party requesting 

the suppression of evidence to the trial court's satisfaction through prehearing documentation, the State should be 

required to initiate the suppression hearing proceedings. 

This procedure will clearly place the burden of proof on the 

State as required 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 appellant was 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. It also 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 it was 

harmless beyond a reasonable doubt." 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 harmless beyond a reasonable doubt 

test. Chapman, 386 U.S. at 24; see also Harrington v. 

California (1969), 395 U.S. 250, 89 S.Ct. 1726, 23 ~.~d.2d 

284; Schneble v. Florida (1972), 405 U.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 reasonable doubt. We are aided 
in our decision by the rationale expressed in Rogers v. 

United States (5th Cir. 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 certain necessary facts in a case 

are not aired. Here --- all the salient facts were 

aired. Few were even in dispute. The defendant, 

therefore, was not prejudiced 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. (Emphasis added.) 

As in Rogers, the trial judge heard all the salient 

facts at the suppression hearing. The trial court heard 

testimony from eleven witnesses including appellant, appellant's father, the officers who 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 own witnesses. When the State 

rested, the trial court gave 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 appellant and 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 full 
right of appellant to present his case on this issue, we are 

convinced beyond a reasonable doubt the trial judge would 

have reached the same result regardless of the improper 

placing of the burden of proof on appellant. Any error thus 

constitutes harmless error and does not warrant 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), 167 Mont. 412, 415, 538 P.2d 

1366, 1368. 

Beyond the confession, the State presented evidence 

that placed appellant with 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, "I think they're going to get me for the murder" 

before the police even questioned him about the homicide. 

And, appellant had borrowed his brother's shoes the morning 

after the murder because his own were wet, even though every 

witness who was with appellant and the victim on the night 

of the murder agreed that appellant had not walked near any 

water. This evidence, when viewed in the light most favorable to the State, as we 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 

Justices 
Mr. 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 suppression hearing. 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 that morning 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 interrogation was 

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 attorney was 

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 four police officers, including the polygraph 

examiner. Since Blakney's father had 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 few questions 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 the machine, 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 you make 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 

them what happened. 

"Q. Are you married? A. Yes. 

"Q. Do you have any children? A. Yes. 

"Q. And are they boys or girls? A. I have 

two boys, one 19 and one 16. 

"Q. No girls? A. No. 

"Q. Did you make a statement to Larry at 

that time that you 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 sons by my first marriage. 

On my second marriage, I have two daughters, 

stepdaughters, and that's true. 
"Q. Did you make a statement to that effect, 

that you knew he 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 that you did not 

make the statement? A. No. I wouldn't 

honestly say that. 

"Q. Did you make 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 cannot be used against 

him in the State of Montana. 

"Q. Did you make a statement to Larry after 

the test was concluded of something to the 

effect that you were 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 you make any statement that was 

similar to that? A. To the best of my 

knowledge, no. 

"Q. Did you make 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, I probably 

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 

interrogating him 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 leads me to conclude that Blakney probably committed 

the murder. 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 

is whether it is given voluntarily, and with the defendant's 

free will. State v. Lucero (1968), 151 Mont. 531, 445 P.2d 

731; State v. Noble (1963), 142 Mont. 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 State v. Smith (1974), 164 Mont. 334, 338, 523 

P.2d 1395, stated that the rule in Montana was that the 

state must 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, I must dissociate myself from the majority. 

I cannot agree with the majority that the evidence of 

voluntariness was harmless beyond a reasonable doubt. I am 

not mentally 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 clarify my position, I find no particular significance 

or error in the fact that Blakney was required to put his 

evidence on first at the suppression hearing. 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 

State v. 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 that proof beyond a reasonable doubt of the voluntariness 

of a confession was 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 "the purpose 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 demonstrably wrong; 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. In Montana, 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 (section 26-1-403(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 court was 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 offends my 

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 is my 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 "heavy burden" 

to show waiver of right to counsel. North Carolina v. Butler (1979), 

- U.S. , 99 S.Ct. 1755, 60 L.Ed.2d 286, 292. I am 

-24- 
frank to state that I don't know what a "heavy burden" 

is but I think it should be nothing less than beyond a 

reasonable doubt. Here again that standard has not been 

met in this case. 

I would reverse and remand, at least for a proper hearing 

as to the voluntariness of the confession. 

\ 

___-____--_-------------- . ;-- k. -> ,A / Justice "7---

4' 
Mr. Justice Daniel J. Shea dissenting: 

I would 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 State must 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, I believe 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 

fundamental as a constitutional right. 

Justice Sheehy does not agree, furthermore, that it was 

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 are made it is the duty of the State 

to proceed first with 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. That was 

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 confession was involuntary 

and to prove that he was denied his right to counsel. The 

record demonstrates that the trial court was under the mistaken assumption it was 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 time worn 

rule which applies to virtually all factual determinations 

by a trial court. The majority then proceeds to apply Grimestad 

to this case by stating: 

"The trial court here 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 court would 

have been required to find that the State did not prove the 

confession voluntary and a waiver of counsel by clear and 

convincing evidence. 

The majority 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 (let us say 

if he had philosophical leanings different. than those of 

-27- 
the trial judge concerning the right to counsel and obtaining 

confessions), could have taken the opposite position, and 

concluded, with adequate support in the record, that the State 

did not prove that the confession was voluntary and that the 

State did not prove that defendant waived his right to counsel. 

This decision of the trial court would have looked just as 

good in print, although not nearly as well accepted by the 

public. 

Viewed in the abstract, this deference given to trial 

court decisions on the facts is nice-sounding; it gives the 

distinct impression that the appellate court is not meddling 

in the factual determinations of the trial court. I would 

also like to believe that we could, with full assurance, give 

this kind of deference to the trial court and its fact-finding 

functions. We refer to this rule constantly when we uphold 

a decision of the trial court as to its factual determinations. 

Aside from the improper standard applied in this case 

(it should 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 suppress was 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 consideration would 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, it would 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 is making a factual 

determination, and how it applied the law to the facts. It 

is most 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. 

-2 9- 
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 court had 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. It was then that the 

law student suggested to the prosecutor that it would be a 

good idea if the prosecutor presented the trial court with 

findings and 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 

document presented 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. 

The majority, 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 this manner. 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 findings were 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 findings and conclusions were 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.