NO. 95-043 IN THE SUPREMECOURTOFTHE STATE OFMONTANA 1995

STATE OFMONTANA, Plaintiff and Respondent,

v. FRANKMICHAEL GREY, Defendant and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and for the County of Flathead, The Honorable Michael Keedy, Judge presiding.

COUNSELOFRECORD:

For Appellant: David M. Ortley, Kalispell, Montana For Respondent: Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena, Montana; Thomas J. Esch, Flathead County Attorney, Valerie D. Wilson, Deputy Flathead County Attorney, Kalispell, Montana



### DEC051995 Submitted on Briefs: August 31, 1995

FilJustice James C. Nelson delivered the Opinion of the Court.

Defendant Frank Michael Grey (Grey) appeals from the Eleventh Judicial District Court, Flathead County's order denying his motion to suppress his videotaped statement and judgment of conviction. Wereverse. Wefind the following issue dispositive: Whether the District Court erred in denying Grey's motion to suppress his videotaped statement onthe ground that the statement

was obtained involuntarily and thus in violation of Grey's Fifth Amendment right against self-incrimination? BACKGROUND John Zauner (Zauner) owns aWestern Auto store in Kalispell, Montana where Grey was employed as a salesclerk. After noting merchandise missing from his store, and after finding that Grey had

aprror conviction of theft from astore at which heworked, Zauner contacted the Kalispell Police Department. The police initiated an investigation focused on Grey. The thefts occurred after Zauner hired Grey and some could betraced to Grey's shift. Additionally, Zauner saw the same kind of radar detector mount that was missing from his store in Grey's pick-up truck and knew that Grey always carried a gym bag to and from work. The police placed a video

camera in the store to "make it look as if there was a hidden camera." The police contacted Grey at Western Auto, informed him that

an investigation was being conducted, and told him that all the employees would be interviewed, but he was the first. The police asked Grey to go to the Kalispell Police Department for the interview. Grey voluntarily drove himself to the station and was

2initially interviewed in the public area of the station. Officer

Holt told Grey that hewasinvestigating atheft totalling $22,000 andagain told Greythat hewould interview eachemployee. Officer Holt used the "Reed" technique of interviewing to interpret Grey's responses and body mannerisms to determine whether he was more likely guilty than not. At that point, Officer Halt contends that he gave Grey his Miranda warnings, asked him if hewanted to continue talking, and took him to the booking room for formal interrogation. Grey contends that Officer Holt did not give him his Miranda warnings. Thepolice did not obtain awritten waiver or record giving Grey his Miranda warnings, but did videotape the interview. Officer Holt began the interrogation by again telling Grey that approximately $20,000 wasmissing from Western Auto andasking Grey whether the lie detector would "go beep" when he answered questions. During the interrogation, Grey confessed to taking merchandise from Western Auto. Both parties agree that the interview constituted acustodial interrogation. Thepolice arrested andincarcerated Grey. Grey filed apretrial motion to suppress the statement andvideotape alleging that they were both obtained inviolation of his privilege against selfincrimination. OnSeptember 19, 1994, the District Court denied Grey's motion to suppress. Onthe date scheduled for trial, the District Court heard Grey's renewed motion to suppress, denied the motion, and granted Grey's oral motion to continue trial. Following abench trial, the District Court found Grey guilty of

3felony theft, commonscheme, andordered him to serve 90days in

the Flathead County jail anddeferred his sentence for 2years on certain conditions. DISCUSSION Whether the District Court erred in denying Grey's motion to suppress his videotaped statement onthe ground that the statement

wasobtained involuntarily andthus in violation of Grey's Fifth Amendmentright against self-incrimination? On appeal, Grey raises five issues for our consideration. Since wereverse the District Court onthe second issue, wewill only discuss that issue. Wereview adistrict court's findings of fact regarding suppression hearing evidence to determine whether those findings are clearly erroneous. State v. Kaluza (1993), 262 Mont. 360, 361, 865 P.Zd 263, 264 (citing State v. Bower (19921, 254Mont. 1, 7, 833P.2d 1106, 1110andState v. Cope (1991), 250 Mont. 387, 396, 819P.2d 1280, 1286). Theissue of voluntariness is largely afactual determination that is within the discretion of the district court. State v. Lenon (19771, 174Mont. 264, 271, 570 P.2d 901, 906. Grey argues that the police used impermissible procedures to obtain his confession, rendering it involuntary andviolative of both his Fifth Amendmentprivilege against self-incrimination and his Fourteenth Amendment right to dueprocess of the law. Grey also contends that the police did not administer adequate Miranda warnings and should have recorded the warnings and obtained a written waiver. Grey claims that he did not voluntarily,

4intelligently, and knowingly waive his rights. Therefore, he

contends that the District Court erred in admitting his statement into evidence. Confessions are generally admissible. To be admissible, however, aconfession must bemadefreely, voluntarily, andwithout compulsion of any sort. State v. Allies (1979), 186 Mont. 99, 109, 606 P.2d 1043, 1049. The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves. Allies, 606 P.2d at 1047 (quoting Spano v. NewYork (1959), 360 U.S. 315, 320, 79 S.Ct. 1202, 1205, 3L.Ed.2d 1265, 1270). The procurement of a confession must comport with the guarantee that an individual will not be compelled to incriminate himself or herself, and that the individual may not be convicted of

acrime without due process of law. Allies, 606 P.2d at 1047. It follows that I'[ilf a defendant's confession is involuntary, it violates [the1 Fifth Amendment privilege against self-incrimination and may not be used as evidence at [the] criminal trial without violating [the] Fourteenth Amendment right to due process of the law." Lenon, 570 P.2d at 906 (citing Brown v. Mississippi (1936), 297 U.S. 278, 56 S.Ct. 461, 80L.Ed. 682). Adefendant may waive the Fifth and Fourteenth Amendment rights only if the waiver of those rights is made voluntarily, knowingly, and intelligently. Miranda v. Arizona (19661, 384 U.S. 436, 444, 86 S.Ct. 1602, 1613, 516L.Ed.2d 694, 707; State v. Blakney (1982), 197Mont. 131, 134,

641P.Zd 1045, 1049. Voluntariness is the underlying test of admissibility of confessions. Lenon, 570 P.2d at 906 (citing Brown v. Illinois (1975), 422 U.S. 590, 604, 95S.Ct. 2254, 2262, 45 L.Ed.2d 416, 427).Voluntariness has reflected an accommodation of the complex values implicated in police questioning of a suspect

. . At one end of the spectrum is the acknowledged need for police questioning as atool for the effective enforcement of criminal laws

. .At the other endof the spectrum is the set ofvalues reflecting society's deeply felt belief that the criminal lawcannot beused asaninstrument of unfairness

. . . [Citations omitted.] Schnekloth v. Bustamonte (1973), 412 U.S. 218, 225-26, 93S.Ct. 2041, 2046, 36 L.Ed.2d 654, 861. In determining whether a defendant's confession wasvoluntary, the United States Supreme court has assessed the totality of all the surrounding circumstances, including the characteristics of the accused andthe details of the interrogation. Schnekloth, 412 U.S. at 226. Significantly, noneofthe decisions regarding the admissibility of

a confession turns on the presence or absence of a single controlling criterion, eachreflects acareful scrutiny of all the surrounding circumstances. Schnekloth, 412 U.S. at 226. Accordingly, this Court has held that an analysis of the voluntariness of aconfession is afactual question that must take into account the totality of the circumstances. State v. Mayes (1992), 251Mont. 358, 376, 825P.2d 1196, 1208 (citing Allies, 606 P.2d at 1050).Pursuant to § 46-13-301(l), MCA, a defendant may move to

suppress a confession that the defendant feels was involuntary. This section places the burden on the State to prove by a preponderance of the evidence that the confession wasvoluntary. The central question is whether the State has established by a preponderance of the evidence that the defendant wasadvised of his constitutional rights andwhether that defendant knowingly waived them andvoluntarily gave astatement. State v. Blakney (19821, 197Mont. 131, 143, 641P.2d 1045, 1051. Several factors can culminate in atotality of circumstances that render aconfession involuntary. Aconfession extracted by anysort of threat orviolence, byanydirect or implied promises, however slight, or bythe exertion of any improper influence has the potential to beinvoluntary. State v. Phelps (1985), 215Mont. 217, 224, 696 P.2d 447, 451. Physical coercion, psychological coercion, inadequate Miranda warnings, and impermissible police practices are each factors weighed in acourt's consideration of undue influence. Brownv. Mississippi, 297U.S. 270 (holding that physical brutality led to an involuntary confession); Payne v. Arkansas (1958), 356U.S. 560, 78S.Ct. 844, 2L.Ed.2d 975 (holding that mental coercion led to an involuntary confession); Miranda, 384 U.S. 436 (holding that failure to warn defendant of rights rendered confession inadmissible); Allies, 606P.2d 1043 (holding that impermissible police procedures rendered confession involuntary). In the instant case, the police followed impermissible practices andfailed to administer adequate Miranda

### warnings.

Whenadefendant movesto suppress astatement, the district court 's analysis should focus on whether the law enforcement authorities followed impermissible procedures. Allies, 606P.2d at 1049; State v. Grimestad (1979), 183Mont. 29, 36, 598 P.2d 198, 202. For example, in Allies, the defendant voluntarily presented himself at the police station three times, underwent apolygraph test, andeventually confessed to four murders. Thepolice used two impermissible procedures inAllies; they lied to the defendant and used subtle psychological pressure. Even though the police advised the defendant of his Miranda rights, we held that in considering the totality of the circumstances, the State did not, by a preponderance of the evidence, show that the defendant voluntarily andknowingly waived his constitutional right against self-incrimination or that hevoluntarily confessed. In Maves, adefendant found guilty of incest confessed after taking a polygraph test. Maves, 825 P.2d 1196. This Court suppressed the confession because the combination of the circumstances surrounding his confession mandated suppression. At the time the defendant confessed, hehadbeen awakefor morethan 30hours, questioned continually, separated from his children, and lied to about evidence against him. w, 825P.2d at 1208. The polygraph test indicated that the defendant was not telling the truth, and the examiner used that information to obtain a confession. In State v. Craig (1993), 262Mont. 240, 864P.2d 1240, the

8defendant hadslept prior to the examandthe officers did not lie

about evidence, however westill held that the district court did not err in suppressing astatement madebythe defendant following

apolygraph examination where police officers used the results of the polygraph to elicit astatement or confession. Wereached that result even though at no time did the police make any false statements to the defendant in order to induce a confession. Craiq, 864P.2d at 1243 (Nelson, J., dissenting). Inthe instant case, the police madefalse statements in order to induce Grey's confession and thus clearly used impermissible procedures. The Kalispell Police Department's investigation singled out Greyandfocused onobtaining enoughevidence to charge him. They lied to him and told him that they were going to interview eachemployee. Theylied to himabout the extent of the theft problem. Theylied to himthat $22,000 worth of merchandise hadbeen stolen, whenin fact, only several hundred dollars worth of property wasmissing. Theyset upavideo camera in the store purely to create afalse impression that the store wasmonitored. Lastly, they told Grey that the lie detector test would go "beep" if Grey did not tell the truth, whenin fact Grey did not have to take a lie detector test. In summary, Officer Halt's use of deception to obtain Grey's confession wasnot apermissible police procedure. Thepolice committed anadditional transgression of procedure in this case by not giving Grey adequate Miranda warnings. In State v. Johnson (19781, 177Mont. 182, 580P.2d 1387, weheld that

9the requirements of Miranda were not met whena county attorney

testified that the defendant wasgiven his rights but there wasno proof regarding what the defendant wastold about his rights. We concluded that without knowing what the defendant was told, we could not possibly determine if the defendant wasproperly advised of his rights prior to making astatement to the county attorney. This Court has said that where the police investigation hasfocused onaparticular suspect whois held in police custody, law enforcement officers must adopt effective safeguards securing the suspect's constitutional right against self-incrimination prior to questioning him.

. . Johnson, 580 P.Zd at 1389. Moreover, avalid waiver will not bepresumed simply from the silence of the accused after awarning is given or simply from the fact that a confession was in fact eventually obtained. The evidence must showthe defendant intelligently understood his or her rights and rejected them. Miranda, 384 U.S. at 475. In Allies, we noted that the defendant was advised of his Miranda rights before he confessed. However, we proceeded with the understanding that "[mlore than merelip service must begiven to Miranda andthe principles it embodies." Allies, 606P.Zd at 1050. Similarly, in Grimestad, the State appealed the district court's order granting defendant's motion to suppress evidence on the grounds that certain admissions werenot voluntary. Thepolice downplayed defendant's Miranda rights andpersisted in assuring the defendant that hewasnot asuspect. In Grimestad, weagreed with the district court that "mere lip service wasgiven to the Miranda requirements

. . .rather than ameaningful warning." Grimestad,

10598 P.Zd at 203.

Similarly, in the instant case, the police gave mere lip service to the Miranda requirements. Theofficer whointerrogated Grey testified that hegave Grey his Miranda rights before taking Grey to the interrogation room. However, hedid not recall exactly what he told Grey, merely that he had recited the Miranda requirements from memory. Theofficer did, however, remember that he chose not to use awaiver form because he did not want to jeopardize the interrogation. Hefurther testified that although Grey did not specifically say so, byagreeing to continue to talk with the police officers, Grey agreed to waive his rights. The State simply did not prove by a preponderance of the evidence that Greyvoluntarily confessed. It is immeasurably more difficult for the State to sustain its burden to prove the voluntariness of a confession when there is no record of the Miranda warnings other than the officer's testimony that he gave them.Wedonot hold that the police must tape record or create an audio-visual record of Miranda warnings andthe detainee's waiver,

asGrey urges weshould andassomejurisdictions have. See, for example, Stephan v. State (Alaska 19851, 711P.2d 1156andState v. Scales (Minn. 1994), 518 N.W.2d 587. Although that maybe the better practice andwould help assure that the accused receives a constitutionally adequate Miranda warning while, at the sametime, enhancing the prosecution's ability to meet its burden to prove voluntariness, we leave the imposition of any such procedural

11requirement to the legislature andto individual law enforcement

agencies. Similarly, wedonot hold that in every instance the failure to secure awritten Miranda waiver will be fatal. We recognize, asoneexample, that anofficer Mirandizing asuspect in the field at the time of arrest, maynot be able to preserve a tangible record of his or her giving of the warning or of the accused's waiver. Nevertheless, the situation in the instant case does not involve the arresting officer's administration of the Miranda warning in the field. Wedo hold, that, in the context of a custodial interrogation conducted at the station house or under other similarly controlled circumstances, the failure of the police officer to preserve sometangible record of his or her giving of the Miranda warning and the knowing, intelligent waiver by the detainee will beviewed with distrust inthe judicial assessment of voluntariness under the totality of circumstances surrounding the confession or admission. That is all the more so where the evidence demonstrates that, as here, the police officer madea conscious decision not to secure awritten waiver or otherwise preserve his giving of the Miranda warning and the detainee's waiver on the premise that to do sowould alert the accused to exercise his rights and, thus, jeopardize the interrogation. In the instant case, assuming, arguendo, that the warning was given, the mere perfunctory reading of Grey's Miranda rights was not sufficient; the police, here, madeapretense of advising Grey of his rights while simultaneously making sure hedid not assert

12them. Suchaprocedure renders the giving of the Miranda warnings

ahollow and meaningless exercise, indeed, and does not comport with dueprocess. Basedonthe totality ofthe circumstances of police deception andfailure to give Grey anadequate Miranda warning, wehold that the District Court's findings wereclearly erroneous. TheDistrict Court misapprehended the evidence infinding that Grey's confession

wasvoluntary. Accordingly, Grey's conviction is reversed.

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