### No. 80-75 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

IN THE MATTER OF R.P.S.

Appeal from: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone. Honorable Diane 

### G. Barz, Judge presiding. Counsel of Record: For Appellant: Harold Hanser, County Attorney, Billings,Montana Robert 5. 

### Waller argued, Deputy County Attorney,

Billings, Montana For Respondent: Olsen, Christensen and Gannett, Billings, Montana Damon 

### L. Gannett argued, Billings,Montana

Submitted: May 29, 1980 Decided: 

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## 4 19QDMr. Justice John Conway Harrison delivered the Opinion of the Court. The State initiated this action on November 15, 1979, by filing 

### a petition inYouth Court, Yellowstone County, alleging R.P.S. was 

### a delinquent by having committed the crimes of deliberatehomicide and sexual intercourse without consent. On November 26, 1979, counsel for R.P.S. filed a motion to suppress a confession made by R.P.S. and all physical evidence related to the confession. A hearing on themotion 

### washeld the next day. R.P.S. presented evidence insupport of themotion including a psychological evaluation. The Statewas given time topresent rebuttal testimony and 

### was granted permission to have an independent examination of R.P.S. The Statepresented itsrebuttal testimony on December 17, 1979. The testimony included a psychiatric evaluation of R.P.S. The Youth Court, the Honorable Diane G. Barz presiding, subsequently entered an order granting the motion to suppress the confession and allphysical evidence derived as a result of the confession. The court found the evidence should be suppressed because R.P.S. was incapable of making

a knowing and intelligentwaiver of his constitutional rights atthe 

### timeof the confession and because law enforcement personnel had failed tocomply with Montana's Youth Court Actby obtaining a waiver of rights from R.P.S.'s parents prior tothe confession. The Statebrings this appeal from the order of the Youth Court. On November 14, 1979, R.P.S. went to the Yellowstone County sheriff's officeatthe request of a sheriff's officer. R.P.S. was 18years old on that date, having turned 18on October 19, 1979. The alleged offenses contained in

### the petition filed in this case occurred on October 9, 

### 1979, before R.P.S. was 18. R.P.S. arrived at the sheriff's office at about 7:OO p.m. Between 7:00 p.m. and approximately 11:30 p.m. that evening, R.P.S. was interviewed several times by sheriff's officers. He also took a polygraph examination. R.P.S. signed several waiver of rights forms and a consent form for the polygraph testduring the evening. R.P.S. confessed to the crimes charged during the interview sessions. The following day he accompanied officers to the scene of the crimes and assisted them in locating several pieces of physical evidence connectedwith the crimes. At the direction of Yellowstone County attorney Harold Hanser, the sheriff's officers interviewing R.P.S. treated him as an adult. They did not, therefore, gain a waiver of rights form from his parents as required by the Montana Youth CourtAct. See section 41-5-303,MCA. In fact, R.P.S.'s mother called the sheriff's office several times during the interview sessions. Each time officers told her she could not talk to R.P.S. Two expertwitnesses testified at the suppression hearing concerning psychological evaluations they had performed of R.P.S. Dr. Ned Tranel testified that R.P.S. was schizophrenic. Dr. Tranel stated thatbecause of his mental condition, therewas a 

### high probability that R.P.S. could not understand the abstract terms contained in the Miranda warnings or understand the consequences of making statements to the officers after being advised of his rights. Dr. Tranelwas of the opinion thatR.P.S. was incapable of making a knowing and intelligent waiver of his ~0n~tit~tioIlal rights at the time he allegedly did so.Dr. Bryce Hughett also testified as to the mental condition of R.P.S. Dr. Hughett found no evidence of thought disorder present. He stated thatR.P.S. was capable of understanding theMiranda warnings and of making 

### a knowing and intelligentwaiver of his rights atthe time the officers interviewed him. The Stateraises the following issues on appeal: 1. Did the Youth Court 

### err infinding that R.P.S. was incapable of voluntarily waiving his constitutional rights? 2. Did theYouthCourt 

### err in suppressing the confession and allevidence obtained asa result of the confession because 

### lawenforcementpersonnel did not treat R.P.S. as 

### a youth and obtain a waiver of rights from his parents? Addressing the firstissue, we note that the rules governing the review of a lower court's determination of the voluntariness of a confession are

### wellestablished inMontana. The issue of voluntariness 

### is largely a factual determination for the trial court. The trial court's judgment 

### willnot be Cisturbed on appeal unless it is clearly against the weight of the evidence. Statev. Blakney (1979), 

### -Mont. 

## , 605 P.2d 1093, 1096, 36 St.Rep. 2193, 2196; Statev. Grimestad (1979)

## , -Mont. 

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## , 598 P.2d 198, 202, 36 St.Rep. 1245, 1251. As

### we stated inGrimestad: 

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# . the standard tobe applied by the trial judge on a suppression question is 'preponderance of the evidence', butwhen the same question comes tous on appeal the credibility of the witnesses and the weight tobe given their testimony is for the trial court's determination and our review is limited todetermining whether there is substantial credible evidence supporting the District Court's findings." 598 P.2d at 203, 36 St.Rep. at1251. Under this standard, 

### wemust examine the record for substantial credible evidence to support the trial court'sdecision. The evidence that supports the decision is found mainly inthe testimony of Dr. Tranel. Dr. Tranel testified thatR.P.S. suffered from a severe emotional disturbance technically diagnosed as schizophrenic reaction, acute undifferentiated type. Dr. Tranel stated one consequence of R.P.S.'s emotional disturbance was a severely impaired ability to form logical conclusions, understand cause-effect relationships and concentrate. Dr. Tranel said thisresulted inR.P.S.'s normal functioning being similar to thatof a person ina dream. A second feature of R.P.S.'s emotional disturbance, according to Dr. Tranel, 

### was a disconnection between his emotion and the idea associated with it. As an example of thisfeatureof R.P.S.'s disorder, Dr. Tranel saidR.P.S. may not have the unpleasant feeling normally associatedwith experiencing an unpleasant event. Beyond the schizophrenic condition, Dr. Tranel testified that R.P.S. had 

### a low level of ego strength. The doctor said thismeant thatR.P.S. would "come apartquiteeasily" under stress. Based on thisdiagnosis, Dr. Tranel stated he did not think R.P.S. could have understood the Miranda warnings given tohim, especially atthe end of over four hours of interrogation. There 

### isconflicting evidence on the record. Dr. Hughett testified thatR.P.S. showed no signs of schizophrenia when he interviewed him. Dr. Hughett also stated that the results of one of the tests administered by Dr. Tranel indicated R.P.S. was consciously or unconsciously attempting tomake hismental condition appear worse than it

was. Inresolving thisconflictinthe testimony, the 

### trial court assessed the testimony of Dr. Hughett 

### as follows:"~r. Hughett, through his testimony, failed to convince the Court that the youth inquestion was not suffering from any mental defect, which would have impaired his ability tomake an intelligent, voluntary waiver of his rights." As pointed outabove, the determination of the credibility of the witnesses isfor the 

### trial court. Thus, the fsllowing situationexistshere. Two experts testified as to themental condition of R.P.S. Their testimony conflicted. The trialcourt found the testimony of the expert who found R.P.S. capable of voluntarily waiving his rights unconvincing and based itsdecision on the testimony of Dr. Tranel 

### set out above. We have reviewed Dr. Tranel's testimony. It i.s very thorough and definitely supports the conclusion thatR.P.S. was incapable of voluntarily waiving his constitutional rights. Further, according to the trial court, Dr. Tranel's testimony ismore credible than Dr. Hughett's testimony. Dr. Tranel's testimony, therefore, represents substantial credible evidence on the record to support the decision of the trial court. As such, 

### we affirm the order of the trial court suppressing R.P.S.'s confession and allphysical evidence obtained 

### as a resultof the confession because R.P.S. did notmake a voluntary waiver of hisrights. Having determined the evidence inquestionmust be suppressed because R.P.S. did not voluntarily waive his constitutionalrights, it isunnecessary to consider the second issueraised by the State. A£firmed.We concur:

Justices