NO. 92-361 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993

STATE OF MONTANA, Plaintiff and Respondent,

-vsBRUCE A. FLACK, Defendant and Appellant.

APPEAL FROM: District Court of the Sixth Judicial District, In and for the County of Park, The Honorable Byron L. Robb, Judge presiding.

COUNSEL OF RECORD: For Appellant: Bruce 

### E. Becker, Attorney at Law, Livingston, Montana For Respondent: Hon. Marc Racicot, Attorney General; Barbara C. Harris,AssistantAttorney General,Helena,Montana Wm. Nels Swandal, Park CountyAttorney, Livingston, MontanaJustice Karla M. Gray delivered the Opinion of the Court.

Bruce Flack appeals from an order of the Sixth Judicial District Court, Park County, denying his motion to suppress statements made on January 5 and January 8, 1992. We affirm in part and reverse in part. On January 5, 1992, Bruce Flack (Flack) and Alan Gustafson (Gustafson) were taken to the Park County Sheriff's office as suspects in a robbery. The twowere suspected of breaking into the Bill Eyman residence near Livingston, Montana, and stealing approximately $265 in cash,credit cards,blank checks,and several firearms. Flackwas detained at the sheriff'sofficewhileGustafsonwas interrogated. After waiting approximately four hours, Flack was taken into an interrogationroom,where Charles Johnson (Johnson), Park County Sheriff, and Lynn Gillett (Gillett), Captain of the Livingston City Police,were present. Before the interrogation, Flack was advised of, and waived, his Miranda rights. During the taped interrogation, Flack denied any knowledge of the robbery. After fifty-five minutes of questioning,JohnsonarrestedFlack for the robbery pursuant to a valid arrest warrant. At that time, Flack stated, "I guess I'm going to have to get me a lawyer. You guys are going to have to prove it.' With thatremark,the interrogation formally concludedand the tape recorder was turned off. Johnson left the room. Gillett continuedto talk with Flack for five to ten minutes,detailing the information already obtained by the prosecution relating to the 2robbery. In response, Flack indicated that he had been at the Eyman residence at the time of the robbery but stated that he had remained on the road. Flack refused to have the statement recorded. On January 6,Flackwas brought before a justice of thepeace for his initial appearance. The justice of the peace informed Flack of the charge and advised him of his rights, including the right to be represented by an attorney. Bail was set. Flack was given, and completed, a form requesting court-appointed counsel. Public Defender Dan Yardley spoke with Flack on January 7, but determined that his representation of the youth might create a conflict in representingFlack. ~ifferent counselwas appointed to represent Flack on January 15. Flack remained in jail because he was unable to make bail. During the morning of January 8, Flack was again questioned by Gillett. The parties dispute who initiated the interrogation. Gillett did not readvise Flack of his Miranda rights at the beginning of the interrogation. Instead, Gillett asked if Flack remembered the Miranda warning previously read to him; Flack responded affirmatively. Gillett then asked if Flack was willing to waive his rights and answer questions; again Flack responded "Yes.

## " During the twenty-five minute interrogation, Flack confessed his involvement in the robbery. On February 19, Flack moved to suppress the January 5 and January 8 statements. Flack asserted that his constitutional rights were violated on January 5 when the State resumed theinterrogation after he requested legal representation, and on January 8 when he was interrogated again without legal counsel. Furthermore, Flack asserts that he was not properly advised of his Miranda rights at the January 8 interrogation and, on that basis, thathe did not knowingly, intelligently and voluntarily waive his right against self-incrimination. After a suppressionhearing,the District Court entered its findings of fact, conclusionsof lawand order denying the motion to suppress the statements. The Park County Attorney and Flack filed a "Stipulation of Factsffon March 25. The stipulation listed the facts that the prosecution could establish if a trial was held. The stipulation indicated the Flackwould neither resist the State's casenor plead guilty to the robbery charge. Flack expressly reserved his right to appeal the order denying his motion to suppress. Based on the agreed statement of facts, the District Court found Flackguilty of robbery. The court sentenced Flack to a term of eight years at the Montana State Prison, with five years suspended. Flack appeals the denial of hismotion to suppress the January 5 and January 8 statements. Did the District Court err in denying the motion to suppress Flack's January 5 statement? At the suppression hearing, the State maintained that the January 5 statementwas not a result of continued interrogationby Gillett. Gillett testified as follows: Q. Now, what happened after the interviewwas over? A. Sheriff Johnson left the room, to get the work started becausehehad placed Mr. Flackunder arrest,and 4Iwas just generally talking with Mr. Flack and advised him that we knewwhat went on. Q. Did you ask him any questions after the interview? A. No, 

### I just advised him. Q. And do you recall what you told him at: that time? A. No, 

### I don't. Q. What, if anything,did the Defendant say? A. He voluntarily said that he was there, but he only stood on the road.

Q. Did you ask him a question to elicit that response? A. NO. Flack testified that he believed he made the statement while under further interrogation: Q. What happened after they turned off the tape recorder? A. Gillettproceeded to talk to me. Q. Was Charlie Johnson there? A. No, he left the room at that point. Q. What did he talk to you about? A. Saying that Imight as well just go ahead and hang itup because they gotme,and that Icouldn'tget out of it, or whatever. Q. Did you feel like you were being interrogated further? A. Yes,Idid. Q. And this all happened after you said, 

### I guess 

### I should get an attorney? A. Yes. On the basis of the testimony presented at the suppression 5hearing, the District Court concluded that "any incriminating statement or admissionmade by Bruce Flack on January 5, 1992,was made spontaneously by him, and was not elicited by questions from law enforcement personnel." On that basis, the District Court denied the motion to suppress the statement. Our standard for reviewing a district court's conclusion of law is whether the court's interpretation of the law is correct. Steer, Inc. v. Dept. of Revenue (1990), 245Mont. 470, 474-75, 803 P.2d 601, 603. To determine whether the District Court correctly concluded that the January 5 statementwas not elicited by Gillett and, therefore, was not obtained in violation of Flack's constitutional rights, we examine whether the comments made by Gillett after Flack invoked the right to counsel constituted an interrogation. The United States Supreme Court addressed the meaning of interrogation in the context of an accused's right to counsel in Rhode Island 

### v. Innis (l98O), 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297. There, the defendant asked to speak with an attorney afterhewas arrested for thehomicide of a taxidriver and advised of his Miranda rights. While transporting the defendant to the police station, an officer expressed concern to another officer thathandicapped children,who frequented the area where the arrest occurred, might find the missing murder weapon. The defendant overheard the conversation and requested that they return to the

scene of the arrest where he would locate the weapon. The United States Supreme Court addressed whether theofficers' conversation relating to handicapped children was tantamount to interrogation in the context of Miranda v. Arizona

(l966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The Court indicated that language in Miranda suggestedthat theMiranda rules applied only to interrogationthat involved express questioning of

a defendantheld in custody. Thepolice practices that invoked the concerns addressed in Miranda, however, included techniques of persuasion in addition to express questioning. On that basis, the Court concluded that the Miranda safeguards were not limited to situations inwhich a defendant in custodywas subjectedto express questioning. Innis, 446 U.S. at 300-301. TheCourt determined in Innisthat interrogation under Miranda includes "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police shouldknoware reasonably likelytoelicit an incriminating response from the suspect." Innis, 446 U.S. at 300-301. Furthermore,theCourt stated that in order todetermine whether an incriminating response was reasonably likely to be elicited from the suspect, theprimary focus should be on theperceptions of the suspect rather than on the intent of the police. Innis, 446 U.S. at 301. Applying these principles to the facts before it in Innis,the Court concludedthat the officers couldnot reasonably foreseethat their conversation,which the Court characterized as a few offhand remarks, was likely to elicit an incriminating response from the defendant. On thatbasis, the Court determined that the defendanthad not been subjected to further interrogation after he invoked his right to counsel. Innis, 446 U.S. at 303. In the case before us, the District Court concluded that the January 5 statement was made spontaneously by Flack and was not elicited by questions from law enforcement personnel. Based on 

# m,it is clear that the District Court erred in limiting its inquiry to whether the January 5 statementwas elicited by direct interrogation. We determine that Gillett's comments constituted a practice that law enforcement should know is reasonably likely to evoke an incriminating response from a suspect; therefore, those comments constituteinterrogation. Unlike theofficer's statement in Innis, Gillett's commentscannotbe characterized as a fewoverheard, offhand remarks. According to Gillett's own testimony, his comments lasted five to ten minutes and were directed at Flack. Furthermore, Gillett testified thathis comments informed Flack of the information in the prosecution's possession relating to the robbery. Under these facts, Gillett should have reasonably foreseen that his commentswould evoke a response from Flack. Our determination that Gillett's comments constituted interrogation is furthersupportedby considering them fromFlack's perspective. Gillett's comments immediately followed a fifty-five minute interrogation and were made while Flack remained in the interrogation room. As a result, there was no break between the preceding direct questions and Gillett's comments that would have dissipated the air of interrogation. Indeed,Flack testified that

### he felt he was subjected to further interrogation following his request to speak to an attorney. Furthermore, Flack's testimony indicateshisperceptionthatGillett's commentspresumedhisguilt and suggested that he concede an inevitable conviction: Q. 

### What did he talk to you about? A. 

### Saying that 

### Imight as well just go ahead and hang itupbecause theygot me, and that I

### couldn't get out of it whatsoever. Under thesecircumstances,FlacklsJanuary 5

### statement canproperly be considered a response to interrogation. We conclude that the District Court erred in concluding that theJanuary 5 

### statementwas not elicited by Gillett. Furthermore, based on our determination that the statement was a product of interrogation after Flack asserted his right to counsel, we conclude that the District Court's denial of Flack's motion to suppressviolated Flack's constitutional rightto theassistance of counsel under Miranda, 384 

### U.S. at 474. 

### We hold that the District Court erred in denying Flack's motion to suppress the January 5 

### statement. Did the District Court err in denying the motion to suppress Flack's January 8 

### statement? At the suppression hearing, the State maintained that Flack had initiated the January 8 

### interview with Gillett, that he waived his Miranda rights and that Flack's statementwas given freelyand voluntarily. Gillett testified that he was notified by a jailer that Flack wanted to talk tohim. Detention officer DennisMcBride testified that on themorning of January 8,

### Flack asked to talk to

### Gillett, that he passed the request along to Gillett and 

### that he subsequently took Flack upstairs for the meeting with Gillett. According to 

### the transcript, the January 8 

### interview began 

### as follows: Q: 

### Bruce I

### will advise you that 

### I have a recorder running here, is that alrightwith you? A: Yes. Q: You 

### remember the other day 

### you were read yourmiranda [sic] rights, do you remember those? A: Yes I do. Q: 

### And at 

### this time are you still able, willing to waive your rights 

### and answer questions? A: 

### Yes. Flack, on the other hand, testified that 

### on the morning of 

### January 8,

### the jailer came to his cell and told him that he 

### had a visitor; he 

### was taken to a room where Gillett was waiting with a 

### tape 

### recorder. Flack 

### denied having 

### asked to see Gillett and 

### testified that he did 

### not intend to 

### give up his constitutional rights. The ~istrict Court found the testimony of 

### the law enforcement witnesses more credible than Flackfswith regard to who 

### had initiated the 

### January 8 

### interview. It also found,on thebasis of 

### the officers1testimony and the interview transcript, that Flack



### was aware of his 

### rights, knowingly and intelligently waived those rights, andvoluntarily confessed to 

### the robbery. As a 

### result,the court concluded that the State had established by clear and convincing evidence that Flacklsconfession was made voluntarily. Our standard in reviewing 

### a district court's findings of 

### fact 10is whether the findings are clearly erroneous. Rule 52(a), M.R.Civ.P; Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603. The firstprong of the clearly erroneous standard is whether the finding is supported by substantial evidence. Interstate Prod. Credit Ass'n v. DeSaye (lggl), 250 Mont. 320, 323, 820 P.2d 1285, 1287. Here, there is no question that the court's findings are supported by substantial evidence consisting of the officers1 testimony and the January 8 interview transcript. Flack asserts--

as though it were a matter of fact--that law enforcement initiated theJanuary 8meeting: the DistrictCourt found otherwise, however, based on substantial evidence of record. It is elementarythat the direct evidence of one witness who is entitled to full credit is sufficientproof of any fact. Smithv. Fladstol (1991), 248 Mont. 18, 20, 807 P.2d 1361, 1363; 5 26-1-301, MCA. Here, the court relied on testimony from two law enforcement officers. Similarly, Flack asserts that the record of the January 8 interview 

### is devoid of any determination as to his waiver of rights; again, the court found otherwise based on the record evidence set forth above. Thecrux of theDistrictCourt's findings is itsdetermination that the testimony of the law enforcement officers was more credible than Flack's. A trial court acting as a finder of fact is in the best position to observe the witnesses, including their demeanor and credibility. Nave v. State Comp. Mut. Ins. Fund

(l992), 254 Mont. 54, 58, 835 P.2d 706, 709. The weight of the evidence and the credibility of the witnesses are exclusively theprovince of the trier of fact and, in the event of conflicting evidence, it is within the province of the trier of fact to determine which will prevail. State v. Palmer (1991), 247 Mont. 210, 214, 805 P.2d 580, 582. Here, the District Court determined the credibility of the witnesses before it and entered findings based on substantial evidence. We conclude that the findings are not clearly erroneous. Nor isthe court's conclusionthat Flack waived his rightsand made his confession voluntarily erroneous. The conclusion isbased

on the court's determinations that Flack initiated the January 8 interview and that he waived his rights at the beginning of that interview. As such,Flacktslegal argument in this regard,relying on Edwards v. ~rizona(l98l), 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378, is misplaced. In Edwards, the United States Supreme Court specifically stated that an accused,having expressed a desire for counsel, is not subject to further interrogation until counsel has been made available to him, ttunless the accused himself initiates further communication. exchanses or conversations with the ~olice." Edwards, 451U.S. at 484-85 (emphasisadded). As discussed above in addressing the first issue in this case, Flack expressed a desire for counsel on January 5 and further interrogation at that time violated his constitutional rights. The District Court determined that,subsequentto that time,Flack initiated a further interview with law enforcement. This is precisely the situation contemplated by the Edwards exception to the "no further

### interrogation" rule. The District Court's findings are not clearly erroneous. Its related conclusions are not erroneous as a matter of law. As a 

### result, we hold that the District Court did not err in denying the motion to suppress Flack's January 8 

### statement. Affirmed in part and reversed in part.

We concur: 

# ,' /

### Justice Terry N. 

### Trieweiler specially concurring. I 

### concur with the majority's conclusion that the statement made by Bruce Flack on January 5 

### should be suppressed. 

### I also agree with the reasons given for that conclusion. 

### I concur with the majority's conclusion that there was substantial evidence to support the District Court's finding that Flack waived his Fifth Amendment rights prior to the statement given to authorities on January 8, 

### 1992. By concurring in the majority opinion, 

### I do not mean to conclude that the defendant's situation does not present serious concerns about his Sixth Amendment right to counsel. Flack was arrested on January 5. 

### He made his initial appearance and requested court-appointed counsel on January 6. 

### However, he received no effective advice until January 15, 

### ten days after his arrest. By the time he waived his right to remain silent, he was beginninghis fourthday in jail without anymeaningful advice from counsel. I 

### concur in the result of the majority opinion because the delay inappointment of counsel isnot thebasis of Flack'sappeal. That issue has not been briefed and is not bef re the Court. 

# 7August

### 27,1993 CERTIFICATEOFSERVICE Iherebycertifythat thefollowingorderwassentbyUnitedStates mail,prepaid,to thefollowing named:

BruceE.Becker AttorneyatLaw P.O.Box

### 1113, 116W. Callender Livingston,MT 

### 59047 Hon.JosephP. Mazurek,AttorneyGeneral BarbaraC. Harris,AssistantAtty. General 

### 215N. Sanders, JusticeBldg. Helena,MT 

### 59620 Wm. NelsSwandal 

### ParkCounty Attorney 414E. CallendarSt. Livingston,MT 

### 59047

EDSMITH 

### CLERKOFTHESUPREME COURT STAROF,MONTANA