No. 94-211

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

STATE OF MONTANA,

Plaintiff and Appellant,

APPEAL FROM: District Court of the Nineteenth Judicial District,

In and for the County of Lincoln,

The Honorabie Robert S. Kelier, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Hon. Joseph P. Mazurek, Attorney General; Jennifer

Anders, Ass't Attorney General, Helena, Montana

Charles Sprinkle, Lincoln County Attorney; Bernard

G. Cassidy, Deputy County Attorney, Libby, Montana

For Respondent:

Amy N. Guth, Public Defender's Office, Libby

Montana

Filed:

Submitted on Briefs: July 27, 1995

Decided: October 19, 1995
Justice Karla M. Gray delivered the Opinion of the Court.

The State of Montana (State) appeals from the order of the

Nineteenth Judicial District Court, Lincoln County, suppressing a

statement of Benedict Hermes (Hermes). We affirm.

We address the following issues on appeal:

1 . Did the District Court err in suppressing Hermes'

statement after finding that the statement was involuntary?

2 . Did the District Court err in determining that the State

could not use Hermes' statement for impeachment purposes?

In September of 1993, Detective Craig Martin (Martin) of the

Lincoln County Sheriff's Office received information from Jeff

Wedel (Wedel) , a social worker with the Montana Department of

Family Services, that Hermes had sexually assaulted S.S., a minor

child. Martin interviewed S.S. and her father about the incident

on September 23, 1993. Later the same day, Martin and Wedel went

to Hermes' residence in an isolated part of Lincoln County, where

Martin interviewed Hermes in Wedel's pickup truck. Martin recorded

the statement.

On October 12, 1993, the State charged Hermes by information

with the offense of sexual intercourse without consent. Hermes

pled not guilty.

Hermes subsequently moved to suppress the statement taken by

Martin on the grounds that the statement was involuntary. The

District Court held a hearing on the motion at which Martin, Hermes

and Hermes' father testified. Thereafter, the court entered

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findings with regard to the circumstances under which Martin

obtained Hermes' statement and ultimately found that the statement

was involuntary. On that basis, the District Court entered its

order and memorandum suppressing the statement from use at trial

for all purposes. The State appeals.

1 . Did the District Court err in suppressing Hermes'

statement after finding that the statement was

involuntary?

Psychological pressure exerted upon a defendant to procure a

confession renders the confession involuntary. State v. Allies

(1979), 186 Mont. 99, 112, 606 P.2d 1043, 1050 (citations omitted).

An involuntary confession violates a criminal defendant's Fifth and

Fourteenth Amendment privileges against self-incrimination and may

not be used as evidence at trial without violating the defendant's

Fourteenth Amendment right to due process of law. State v. Lenon

(19771, 174 Mont. 264, 271, 570 P.2d 901, 906 (citations omitted).

Moreover, § 46-13-301(l), MCA, specifically authorizes a motion to

suppress any confession or admission given by a defendant on the

basis that the statement was involuntary. The State has the burden

of proving by a preponderance of the evidence that the confession

or admission was voluntary. Section 46-13-301(2), MCA.

By placing the "preponderance of evidence" burden of proof on

the State, § 46-13-301, MCA, clarifies that the question of

voluntariness is primarily one of fact. We consistently have

emphasized that point by stating, for example, that 0 [aln analysis

of the voluntariness of a confession is a factual question which

must take into account the totality of the circumstances." State

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v. Mayes (1992), 251 Mont. 358, 376, 825 P.2d 1196, 1208 (citation

omitted).

The District Court listened to the taped interview at issue

and held a hearing on the admissibility of Hermes' statement. The

court found that, after Hermes agreed to talk with Martin, Martin's

tone of voice and questions changed as he I’ [went] on the

offensive." The court noted that the interview took place in a

"small enclosure" with a third person sitting behind Hermes and

found that this was a coercive setting. The court also noted that

Martin did not advise Hermes of his rights pursuant to Miranda v.

Arizona (19661, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

The District Court set forth some of the questions Martin

asked Hermes. Each such question was phrased in a way that assumed

Martin sexually assaulted S.S. The court noted that Martin never

asked Hermes what happened and found that Martin asked Hermes

exclusively accusatory questions. The District Court found that

Martin's accusatory questions compounded the coercion already

present in the interview setting.

In an order and supporting memorandum dated February 10, 1995,

the District Court made findings regarding the coercive nature of

Martin's interrogation of Hermes and ultimately found that the

State did not prove by a preponderance of the evidence that Hermes'

confession was voluntary. Additionally, the court found that

Martin used psychological pressure to induce Hermes' confession

and, as a result, that Hermes' confession was involuntary.

We review a district court's findings of fact regarding

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suppression hearing evidence to determine whether they are clearly

erroneous. State v. Kaluza (19931, 262 Mont. 360, 361, 865 P.2d

263, 264; State v. Cope (1991), 250 Mont. 387, 396, 819 P.2d 1280,

1286. A finding of fact is clearly erroneous if it is not

supported by substantial evidence or, if it is so supported, the

trial court misapprehended the effect of the evidence or if this

Court is left with a definite and firm conviction that a mistake

has been committed. State v. Bower (1992), 254 Mont. 1, 7, 833

P.2d 1106, 1110 (citation omitted).

In this regard, we note that our recent decisions in State v.

Stubbs (Mont. 1995), 892 P.2d 547, 52 St.Rep. 232, and in State v.

Rushton (1994), 264 Mont. 248, 870 P.2d 1355, inadvertently

reverted to a "substantial credible evidence" standard of review

for a court's findings relating to suppression evidence. We take

this opportunity to reaffirm our holding in Cope, with regard to

the standard of review, that "we will not overturn a District

Court's findings of fact regarding suppression hearing evidence

unless those findings are clearly erroneous." Cope, 819 P.2d at

1286.

Voluntariness depends on the facts of each case, with no fact

being dispositive. Allies, 606 P.2d at 1050 (citation omitted).

In determining whether a confession is voluntary under the totality

of circumstances test, courts consider the characteristics of the

defendant and what transpired during the interview. Schneckloth v.

Bustamonte (1973), 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36

L.Ed.2d 854, 862. We have reviewed district court findings of fact

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under the totality of circumstances test many times and, in doing

SO, we have determined that the following factors, among others,

are relevant: the defendant's age and level of education (State v.

Davison (1980), 188 Mont. 432, 442, 614 P.2d 489, 495); the

interrogation technique and whether the defendant was advised of

his Miranda rights (Allies, 606 P.2d at 1050); the defendant's

prior experience with the criminal justice system and police

interrogation (State v. Craig (1993), 262 Mont. 240, 242, 864 P.2d

1240, 1242); and the defendant's background and experience (Matter

of J.W.K. (19861, 223 Mont. 1, 6, 724 P.Zd 164, 167).

The record before us is replete with evidence supporting the

District Court's findings regarding the circumstances surrounding

Hermes' confession and its ultimate finding that Hermes' confession

was involuntary. At the time of the interview, Hermes resided in

an isolated area of Lincoln County in a house without electricity.

He received formal education through approximately the seventh

grade level. He testified that, at the time Martin took his

statement, he was unaware of his Miranda rights. Additionally,

Hermes had neither been charged with a crime nor interrogated by

the police prior to this occasion.

Upon arriving at Hermes' residence, Martin informed Hermes

that he would like to ask him some questions, but failed to

disclose the subject he sought to discuss with Hermes. Martin

interviewed Hermes in the club cab of Wedel's pickup truck with

Martin in the driver's seat, Hermes in the passenger seat, and

Wedel in the back seat. The pickup truck's doors were closed

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"suppressed from use at trial in this matter for all purposes."

The State argues that it is entitled to use Hermes' statement for

impeachment purposes in the event Hermes testifies at trial and, as

a result, that the District Court erred as matter of law. We

review a district court's conclusions of law to determine whether

they are correct. Stubbs, 892 P.2d at 550 (citations omitted).

Relying on Miranda and Mincey v. Arizona (1978), 437 U.S. 385,

98 S.Ct. 2408, 57 L.Ed.2d 290, the State argues that a defendant's

prior incriminating statements properly may b e used for

impeachment, despite the lack of Miranda warnings, if the defendant

testifies in a manner inconsistent with his earlier statements.

The State concedes, however, that the question of whether the

statement is admissible for impeachment purposes turns on the

question of voluntariness.

We concluded above that the District Court's findings of fact

regarding the involuntary nature of Hermes' statement were not

clearly erroneous. Thus, in addressing the first issue, we

essentially determined this issue as well. Even under the

authorities relied on by the State, "any criminal trial use against

a defendant of his involuntary statement is a denial of due process

of law . . .'I See, e.q., Mincey, 437 U.S. at 398. We hold,

therefore, that the District Court did not err in concluding that

the State could not use Hermes' statement for impeachment purposes.

Affirmed
We concur:

-1.