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NO.

95-043

IN THE SUPREME COURT OF THE STATE OF MONTANA 1995

STATE OF MONTANA, Plaintiff v. FRANK MICHAEL Defendant GREY, and Appellant. and Respondent,

APPEAL

FROM:

District Court of the In and for the County The Honorable Michael

Eleventh Judicial District, of Flathead, Keedy, Judge presiding.

COUNSEL OF RECORD: For Appellant: David For M. Ortley, Kalispell, Montana

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

DEC 05 1995
Fil

Submitted

on Briefs:

August

31,

1995

Justice

James Defendant

C. Nelson Frank

delivered Grey

the

Opinion appeals order

of

the from denying of

Court. the Eleventh his motion

Michael

(Grey) County's and

Judicial to

District his

Court, videotaped

Flathead

suppress

statement

judgment

conviction.

We reverse. We find Whether suppress his the the following District issue Court statement dispositive: erred in denying ground violation Grey's that of the motion statement Fifth to

videotaped involuntarily

on the in

was obtained Amendment right

and thus self-incrimination?

Grey's

against

BACKGROUND John Montana Zauner where (Zauner) was from of theft owns a Western employed his store, from as Auto store in Kalispell, noting Grey had Zauner an Zauner

Grey

a salesclerk. finding

After that

merchandise a prror contacted investigation hired Zauner from carried camera camera." his Grey

missing

and after a store

conviction the

at which

he worked, initiated after

Kalispell focused

Police on Grey.

Department. The thefts

The police occurred shift. mount and knew The as police if there that that

and some could same kind in Grey's to and to

be traced of radar

to Grey's detector truck

Additionally, was missing Grey always a video a hidden

saw the store

pick-up from "make

a gym bag in the store

work. it look

placed was

The police an investigation employees asked interview. Grey would to Grey

contacted was being

Grey

at

Western and

Auto, told

informed him first. Department that

him all

that the

conducted, but Kalispell drove 2

be interviewed, go to the

he was the Police himself to

The police for the

voluntarily

the

station

and was

initially Holt told

interviewed Grey that told

in the public he was investigating

area of the station. a theft totalling

Officer $22,000 Officer Grey's

and again Holt

Grey that

he would interview of interviewing to determine

each employee. to interpret whether

used the "Reed" technique and body mannerisms than not. point, Officer

responses likely At Miranda took

he was more

guilty that

Halt

contends

that

he gave Grey his talking, and Grey warnings. Grey

warnings, to that did the

asked him if booking Holt obtain but room

he wanted to continue for formal

him

interrogation. Miranda

contends The police his Holt

Officer not

did not give a written did

him his

waiver the again

or record interview. telling

giving

Miranda began

warnings, the

videotape by

Officer Grey that Grey

interrogation

approximately whether questions. merchandise interview the

$20,000 was missing lie During from detector the Western would

from Western Auto and asking "go beep" Grey Both when confessed agree he

answered to taking the

interrogation, Auto.

parties

that

constituted arrested

a custodial

interrogation. Grey. Grey filed alleging against Court for trial, denied a prethat selfdenied the the

The police trial motion

and incarcerated the statement in violation

to suppress

and videotape of his privilege the District scheduled

they were both obtained incrimination. Grey's District motion, Following motion Court and

On September to suppress. heard Grey's granted

19, 1994, On the date

renewed motion oral motion

to suppress, to found

Grey's

continue

trial. of

a bench trial,

the District 3

Court

Grey guilty

felony

theft,

common scheme, County jail

and ordered his

him to serve sentence for

90 days in 2 years on

the Flathead certain

and deferred

conditions. DISCUSSION Whether the District Court statement erred in denying Grey's motion to

suppress

his videotaped involuntarily against Grey

on the ground that in violation of

the statement Grey's Fifth

was obtained Amendment right

and thus

self-incrimination? raises five Court issues for our consideration. issue, we will of

On appeal, Since only fact those Mont. we reverse discuss regarding findings 360, 361, that

the District issue.

on the second a district evidence State

We review hearing erroneous.

court's

findings

suppression are clearly

to determine v. Kaluza State v. v.

whether 262

(1993),

865 P.Zd 263,

264 (citing

Bower

(19921, 250

254 Mont. Mont. 387,

1, 7, 833 P.2d 1106, 396, 819 P.2d 1280, determination State

1110 and State 1286). that

Cope (1991), of voluntariness the discretion

The issue is within

is largely the district P.2d 901,

a factual court. 906. that

of

v. Lenon (19771,

174 Mont.

264, 271, 570

Grey argues obtain both his also his his

the police rendering

used impermissible it involuntary against

procedures and violative

to of and Grey

confession,

Fifth

Amendment privilege Amendment right that the police have Grey

self-incrimination of the law.

Fourteenth contends

to due process did not administer the that 4

adequate

Miranda a

warnings written

and should waiver.

recorded claims

warnings he did

and obtained not voluntarily,

intelligently, contends into that

and the

knowingly District

waive Court erred

his in

rights. admitting

Therefore, his statement

he

evidence. Confessions are generally must admissible. To voluntarily, (1979), be admissible, and without 99, 109,

however, compulsion 606 P.2d

a confession of any sort. 1043, 1049.

be made freely, v. Allies

State

186 Mont.

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, U.S. 315, The guarantee himself a crime follows violates and 606 P.2d at 1047 (quoting 1205, Spano v. New York 1265, (1959), 1270). with incriminate of It it the 360

320,

79 S.Ct. of

1202, a

3 L.Ed.2d must

procurement that

confession will the of not

comport to

an individual and that due process I' [ilf Fifth be used

be compelled may not

or herself, without that
[the1

individual law. Allies, confession

be convicted at 1047.

606 P.2d is

a defendant's Amendment as

involuntary,

privilege at

against [the] right Brown 682). rights knowingly, 436, 444,

self-incrimination trial process without of the

may not

evidence

criminal to v. due

violating law." 297 U.S. the those Miranda Fifth rights v.

[the] Lenon, 278, and

Fourteenth 570 P.2d 56 S.Ct. Fourteenth is at

Amendment 906 (citing 80 L.Ed.

Mississippi

(1936), may waive waiver of

461,

A defendant only if and the

Amendment

made voluntarily, (19661, 384 U.S. 5

intelligently. 1602, 1613,

Arizona

86 S.Ct.

16 L.Ed.2d

694,

707; 1049. is

State

v. Blakney

(1982),

197 Mont.

131,

134,

641 P.Zd 1045, Voluntariness confessions. (1975), 427).

the

underlying at 906

test (citing

of

admissibility Brown v. Illinois

of

Lenon, 590,

570 P.2d 604,

422 U.S.

95 S.Ct.

2254,

2262,

45 L.Ed.2d

416,

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 a tool for the effective enforcement of criminal laws . . At the other end of the spectrum is the set of values reflecting society's deeply felt belief that the criminal law cannot be used as an instrument of unfairness . . . [Citations omitted.] Schnekloth 2041, 2046, v. Bustamonte 36 L.Ed.2d (1973), 654, 412 U.S. 861. In the of 218, 225-26, 93 S.Ct. whether a

determining United all

defendant's court has

confession assessed including the

was voluntary, the totality

States the

Supreme

surrounding

circumstances, details of

the characteristics Schnekloth, regarding or

of the accused and the 412 U.S. at 226. of single the 226. the

interrogation. none of the decisions turns on the

Significantly, a confession

the admissibility absence scrutiny 412 an U.S. analysis that State of a

presence

controlling surrounding Accordingly, voluntariness into account

criterion,

each reflects

a careful

of all at of

circumstances. this Court has

Schnekloth, held that

of a confession the totality

is a factual of the

question

must take v. Mayes 606

circumstances.

(1992),

251 Mont.

358, 376, 825 P.2d 1196, 1208 (citing

Allies,

P.2d at 1050).

Pursuant suppress This

to

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