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, Assistant Attorney General, Helena, Montana 

Wm. Nels Swandal, Park County Attorney, Livingston, 

Montana 
Justice 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 two were suspected of breaking into the 

Bill Eyman residence near Livingston, Montana, and stealing 

approximately $265 in cash, credit cards, blank checks, and several 

firearms. 

Flack was detained at the sheriff's office while Gustafson was 

interrogated. After waiting approximately four hours, Flack was 

taken into an interrogation room, 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, Johnson arrested Flack 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 that remark, the interrogation formally concluded and the 

tape recorder was turned off. Johnson left the room. Gillett 

continued to talk with Flack for five to ten minutes, detailing the 

information already obtained by the prosecution relating to the 

2 
robbery. 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, Flack was brought before a justice of the peace 

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 representing Flack. ~ifferent counsel was 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 the 
interrogation 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, 

that he did not knowingly, intelligently and voluntarily waive his 

right against self-incrimination. After a suppression hearing, the 

District Court entered its findings of fact, conclusions of law and 

order denying the motion to suppress the statements. 

The Park County Attorney and Flack filed a "Stipulation of 

Factsff on March 25. The stipulation listed the facts that the 

prosecution could establish if a trial was held. The stipulation 

indicated the Flack would neither resist the State's case nor 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 Flack guilty 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 his motion 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 statement was not a result of continued interrogation by 

Gillett. Gillett testified as follows: 

Q. Now, what happened after the interview was over? 

A. Sheriff Johnson left the room, to get the work 

started because he had placed Mr. Flack under arrest, and 

4 
I was just generally talking with Mr. Flack and advised 

him that we knew what 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. Gillett proceeded 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 I might as well just go ahead and hang 

it up because they got me, and that I couldn't get 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 

5 
hearing, the District Court concluded that "any incriminating 

statement or admission made 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), 245 Mont. 470, 474-75, 803 

P.2d 601, 603. To determine whether the District Court correctly 

concluded that the January 5 statement was 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 

after he was arrested for the homicide of a taxi driver and advised 

of his Miranda rights. While transporting the defendant to the 

police station, an officer expressed concern to another officer 

that handicapped 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 the 
officers' 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 suggested that the Miranda rules 

applied only to interrogation that involved express questioning of 

a defendant held in custody. The police 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 in which a defendant in custody was subjected to express 

questioning. Innis, 446 U.S. at 300-301. 

The Court determined in Innis that 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 should know are reasonably likelyto elicit an incriminating 

response from the suspect." Innis, 446 U.S. at 300-301. 

Furthermore, the Court stated that in order to determine whether an 

incriminating response was reasonably likely to be elicited from 

the suspect, the primary focus should be on the perceptions 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 concluded that the officers could not reasonably foresee that 

their conversation, which the Court characterized as a few offhand 

remarks, was likely to elicit an incriminating response from the 

defendant. On that basis, the Court determined that the defendant 
had 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 statement was 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 

constitute interrogation. Unlike the officer's statement in Innis, 

Gillett's comments cannot be characterized as a few overheard, offhand remarks. According to Gillett's own testimony, his comments 

lasted five to ten minutes and were directed at Flack. 

Furthermore, Gillett testified that his 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 comments would evoke a response from Flack. 

Our determination that Gillett's comments constituted 

interrogation is further supported by considering them from Flack'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 

indicates his perception that Gillett's comments presumed his guilt 

and suggested that he concede an inevitable conviction: 

Q. What did he talk to you about? 

A. Saying that I might as well just go ahead and hang 

it up because they got me, and that I couldn't get out of 

it whatsoever. 

Under these circumstances, Flackls January 5 statement can properly 

be considered a response to interrogation. 

We conclude that the District Court erred in concluding that 

the January 5 statement was 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 

suppress violated Flack's constitutional right to the assistance 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 statement was given freely and 

voluntarily. Gillett testified that he was notified by a jailer 

that Flack wanted to talk to him. Detention officer Dennis McBride 

testified that on the morning 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 alright with you? 

A: Yes. 

Q: You remember the other day you were read your miranda 

[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 Flackfs with regard to who had 

initiated the January 8 interview. It also found, on the basis of 

the officers1 testimony and the interview transcript, that Flack 

was aware of his rights, knowingly and intelligently waived those 

rights, and voluntarily confessed to the robbery. As a result, the 

court concluded that the State had established by clear and 

convincing evidence that Flackls confession was made voluntarily. 

Our standard in reviewing a district court's findings of fact 

10 
is 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 first prong 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 

the January 8 meeting: the District Court found otherwise, however, 

based on substantial evidence of record. It is elementary that the 

direct evidence of one witness who is entitled to full credit is 

sufficient proof of any fact. Smith v. 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. 

The crux of the District Court's findings is its determination 

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 the 
province 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 is the court's conclusion that Flack waived his rights and 

made his confession voluntarily erroneous. The conclusion is based 

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, Flackts legal 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, 451 U.S. at 484-85 (emphasis added). 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, subsequent to 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 

beginning his fourth day in jail without any meaningful advice from 

counsel. 

I concur in the result of the majority opinion because the 

delay in appointment of counsel is not the basis of Flack's appeal. 

That issue has not been briefed and is not bef 7 re the Court. 
August 27, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Bruce E. Becker 

Attorney at Law 

P.O. Box 1113, 116 W. Callender 

Livingston, MT 59047 

Hon. Joseph P. Mazurek, Attorney General 

Barbara C. Harris, Assistant Atty. General 

215 N. Sanders, Justice Bldg. 

Helena, MT 59620 

Wm. Nels Swandal 

Park County Attorney 

414 E. Callendar St. 

Livingston, MT 59047 

ED SMITH 

CLERK OF THE SUPREME COURT 

STAR OF,MONTANA