State v. Terrazas

WOMACK, J.,

filed a dissenting opinion in which JOHNSON, J., joined.

I respectfully suggest that the Court has overlooked the “totality of the circumstances” test that the Due Process Clause requires us to use. The Court considers only one issue of fact to be “essential”— whether Investigator Rodriguez told the appellee what had to be in her statement. Ante at 726. And in the next breath the Court says that the case does not turn on that “essential” fact. Ibid. This is because, the Court tells us, even if the investigator told the appellee what had to be in her statement, this “is not the type of practice that has been held to be inherently coercive [so] as to make a statement involuntary.” Id. at 727.

But this is only half of the due-process analysis, and the irrelevant half at that. While it is correct that due process is denied when a statement that has been obtained by inherently coercive methods is introduced, 1 it is also true that due process is denied when a statement that was involuntary for any reason is introduced. The extension of the due-process protection past the “inherently coercive” practices began in Fikes v. Alabama, 352 U.S. 191 , 77 S.Ct. 281 , 1 L.Ed.2d 246 (1957). From the perspective of twenty years of due-process cases, the Court found the introduction of Fikes’s statement denied due process even though it was not obtained by any inherently coercive practice. “There is no evidence of physical brutality, and particular elements that were present in other cases in which this Court ruled that a confession was coerced do not appear here. On the other hand, ...[t]he objective facts in the present case are very much like that in [another case], while the present petitioner was a weaker and more susceptible subject. ... The totality of the circumstances that preceded the confessions in this case goes beyond the allowable limits.” Id. at 197 , 77 S.Ct. 281 . Accord, e.g., Haynes, 373 U.S. at 513-14, 83 S.Ct. 1336 (“whether the confession was obtained by coercion *732 or improper inducement can be determined only by an examination of all of the attendant circumstances ... a totality of circumstances evidencing an involuntary written admission of guilt”). By limiting its due process analysis to the question of whether inherently coercive practices were used, the Court does what has been recognized as insufficient since Fikes was decided. 2

The Court of Appeals recognized that the totality of the circumstances must be considered, but the scope of its review was rather crabbed. It mentioned only a few, extreme circumstances that might make a statement involuntary, 3 none of which appear in this case. It then focused on the one issue that the Court today finds both essential and not essential: whether the investigator told the appellant what to put in her statement. 4

The circumstances that may be considered are not so limited. Those that the Supreme Court and other courts have addressed may be grouped under the headings “conduct of the police” and “characteristics of suspects.”

Conduct of police

In addition to the threats and physical brutality which this Court has discussed today under their usual label of “inherently coercive” misconduct, courts have considered:

• intent of officers to extract a confession, Spano v. New York, 360 U.S. 315 , 79 S.Ct. 1202 , 3 L.Ed.2d 1265 (1959) (questioning suspect after indictment showed officers’ intent was to extract confession rather than solve crime or absolve suspect);

• whether suspect was apprised of rights, Procunier v. Atchley, 400 U.S. 446 , 91 S.Ct. 485 , 27 L.Ed.2d 524 (1971); compare, e.g., Davis v. North Carolina, 384 U.S. 737 , 86 S.Ct. 1761 , 16 L.Ed.2d 895 (1966), with Moran v. Burbine, 475 U.S. 412 , 106 S.Ct. 1135 , 89 L.Ed.2d 410 (1986) (no due process violation when police lied to attorney to keep him away from suspect when suspect had been told of right to counsel and did not ask to see him);

• length of detention and interrogation, compare Ashcraft, 322 U.S. at 154, 64 S.Ct. 921 (prolonged interrogation), with Culombe v. Connecticut, 367 U.S. 568 , 81 S.Ct. 1860 , 6 L.Ed.2d 1037 (1961) (detained only a few days) and Haley v. Ohio, 332 U.S. 596 , 68 S.Ct. 302 , 92 L.Ed. 224 (1948) (questioned only a few hours);

• isolation of suspect from family or friends, see e.g., Fikes, 352 U.S. at 191 , 77 S.Ct. 281 .

• access to counsel, see Darwin v. Connecticut, 391 U.S. 346 , 88 S.Ct. 1488 , 20 L.Ed.2d 630 (1968);

• provision of food, drink, and other amenities, compare, e.g., Payne, 356 U.S. at 560, 78 S.Ct. 844 (two sandwiches in 40 hours), with Crooker v. California, 357 U.S. 433 , 78 S.Ct. 1287 , 2 L.Ed.2d 1448 (1958) (suspect fed shortly after arrest, questioned intermittently, and given coffee and permission to smoke);

• threats other than violence, compare Rogers v. Richmond, 365 U.S. 534 , 81 S.Ct. 735 , 5 L.Ed.2d 760 (1961) (confession involuntary when police told suspect they would take his wife into custody), and Lynumn v. Illinois, 372 U.S. 528 , 83 S.Ct. 917 , 9 L.Ed.2d 922 (1963) (confession involuntary *733 when police told suspect confession would produce help and recommendation of leniency, but denial would result in loss of welfare payments and custody of children), with United States v. Braxton, 112 F.3d 777 (4th Cir.1997) (en banc) (statement not involuntary because officer told suspect he was facing 5 years for not coming clean), and United States v. Mendoza, 85 F.3d 1347 (8th Cir.1996) (statement not involuntary when suspect was told she would be arrested immediately if she did not cooperate);

• promises, Arizona v. Fulminante, 499 U.S. 279, 285 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991) (promise is merely a factor in totality of circumstances), disclaiming Bram v. United States, 168 U.S. 532 , 18 S.Ct. 183 , 42 L.Ed. 568 (1897) (confessions obtained by direct or implied promises, however slight, were inadmissible); Williams v. United States, 328 F.2d 669 (5th Cir.1964) (promise to try to get state charges dropped made confession involuntary); Ex parte Price, 725 So.2d 1063 (Ala.1998) (promise to tell prosecutor of cooperation did not make statement involuntary);

• deception, compare Frazier v. Cupp, 394 U.S. 731 , 89 S.Ct. 1420 , 22 L.Ed.2d 684 (1969) (falsely telling suspect that accomplice had confessed was relevant but not sufficient to make otherwise voluntary confession inadmissible), with Leyra v. Denno, 347 U.S. 556 , 74 S.Ct. 716 , 98 L.Ed. 948 (1954) (when suspect asked for doctor to treat sinus condition, police provided psychiatrist who obtained admissions), and Spano v. New York, 360 U.S. 315 , 79 S.Ct. 1202 , 3 L.Ed.2d 1265 (1959) (officer, who was close friend of suspect, said his failure to get confession would cause loss of his job and disaster for his family). When an officer asked a fondling suspect to come to the police station to file a runaway child report, told the suspect that he only wanted to help whoever needed help, told the suspect that he could get a court order for a polygraph test, asked mock-polygraph questions, and falsely told the suspect that activities in his house had been recorded under an electronic surveillance warrant, the resulting confession was involuntary. Cole v. State, 923 P.2d 820 (Alaska Ct.App.1996); and

• failure to tape-record interrogation, Commonwealth v. Diaz, 422 Mass. 269 , 661 N.E.2d 1326 (1996) (noting that two states’ courts require recording).

Characteristics of suspects

The law “does not justify a conclusion that a defendant’s mental condition, by itself and apart from its relation to official coercion, should ever dispose of the inquiry into constitutional ‘voluntariness.’ ...[WJhile mental condition is surely relevant to an individual’s susceptibility to police coercion, mere examination of the con-fessant’s state of mind can never conclude the due process inquiry.” Colorado v. Connelly, 479 U.S. 157, 164-65 , 107 S.Ct. 515 , 93 L.Ed.2d 473 (1986) (suspect whose mental illness impaired his ability to make free and rational choices, did not thereby make involuntary confession in absence of official misconduct).

In cases in which the police misconduct is not unmistakably coercive, the suspect’s characteristics are relevant to show an ability to resist pressure.

The Supreme Court has considered whether the suspect had a less than average ability to resist pressure because of:

• physical fatigue, Ashcraft, 322 U.S.at 143, 64 S.Ct. 921 ;

• youth, Gallegos v. Nebraska, 341 U.S. 947 , 71 S.Ct. 1003 , 95 L.Ed. 1371 (1951);

• lack of experience with police, compare Stein, 346 U.S. at 156, 73 S.Ct. 1077 (experience), with Haynes, 373 U.S. at 503 , 83 S.Ct. 1336 (no experience);

• mental illness, Blackburn v. Alabama, 361 U.S. 199 , 80 S.Ct. 274 , 4 L.Ed.2d 242 (1960); Fikes, 352 U.S. at 191 , 77 S.Ct. 281 ;

• lack of education, compare Crooker, 357 U.S at 433, 78 S.Ct. 1287 (one year of law school), with Clewis v. Texas, 386 U.S. *734 707 , 87 S.Ct. 1338 , 18 L.Ed.2d 423 (1967) (fifth grade);

• mental retardation, Culombe, 367 U.S.at 568, 81 S.Ct. 1860 ;

• state-administered drugs, Townsend v. Sain, 372 U.S. 293 , 83 S.Ct. 745 , 9 L.Ed.2d 770 (1963);

• sex, Lynumn, 372 U.S.at 528, 83 S.Ct. 917 ;

• race, see e.g., Davis, 384 U.S. at 737 , 86 S.Ct. 1761 ;

• physical injury, Mincey v. Arizona, 437 U.S. 385 , 98 S.Ct. 2408 , 57 L.Ed.2d 290 (1978); Beecher, 389 U.S. at 35 , 88 S.Ct. 189 ; and

• physical illness, Greenwald v. Wisconsin, 390 U.S. 519 , 88 S.Ct. 1152 , 20 L.Ed.2d 77 (1968).

In no case do all of these circumstances appear, but in the case before us now a number of them obviously do. The evidence would support findings that the appellant is a poor woman of limited education who has a tenuous grasp of the English language. She was summoned to a government office, accused of wrongdoing, and required to make a written confession. We are not advised whether she was told she could leave, and it could be reasonable for the trial court to find that she did not feel free to leave. We are told that a Miranda warning was printed on the form, but we are not told if she read it or could read it. We do not know if the trial court found that she felt free to do anything other than complete the statement in the form that the investigator required. The question of the voluntariness of this statement cannot be resolved until the totality of the circumstances is considered to determine if the State met its burden to prove that the statement was voluntary.

This case illustrates the extreme difficulty that appellate courts have in resolving such issues when there are no findings of fact. If the trial court had found that the statement was voluntary, it would have been required to make written findings. 5 They are no less important when the opposite ruling was made. The statute that requires such findings was enacted at a time when the State had.no right to appeal. Now that the State has such a right, it is time for us to require trial courts to make such findings. By indulging the presumption that the judge’s one-word ruling can be construed as an implied finding on every factual issue, we have trapped ourselves and the courts of appeals in a process of deciding cases on fictional “facts.” This can only result in unjust decisions, today against one party, tomorrow against the other.

My preference would be to vacate the judgement of the Court of Appeals and remand the case to that court with directions that the Court of Appeals (1) order the trial court to make findings of fact and (2) reconsider the case with those findings. But since the Court persists in this presumption that the trial court’s ruling implies a finding on factual issues, I would hold that it applies when the trial court excludes evidence as well as when it admits evidence. Considering the trial court’s ruling as implied findings on all these issues, I would uphold it and reverse the judgment of the Court of Appeals.

. The "inherently coercive” due process cases are some earlier opinions that contain language that suggests that the nature of official misconduct may alone require exclusion of resulting statements. For example, in Ashcraft v. Tennessee, 322 U.S. 143, 154 , 64 S.Ct. 921 , 88 L.Ed. 1192 (1944), the Court said that the prolonged interrogation was "so inherently coercive that its very existence is irreconcilable with the possession of mental freedom by a lone suspect against whom its full coercive force is brought to bear.” Such cases involve "physical violence or threat of it by the custodian of a prisoner during detention.” Stein v. New York, 346 U.S. 156, 182 , 73 S.Ct. 1077 , 97 L.Ed. 1522 (1953). When such misconduct is present, "there is no need to weigh or measure its effects on the will of the individual victim.” Ibid. See e.g., Brooks v. Florida, 389 U.S. 413 , 88 S.Ct. 541 , 19 L.Ed.2d 643 (1967) (keeping suspect naked in small cell without food and water); Beecher v. Alabama, 389 U.S. 35 , 88 S.Ct. 189 , 19 L.Ed.2d 35 (1967) (holding gun to suspect’s head); Haynes v. Washington, 373 U.S. 503 , 83 S.Ct. 1336 , 10 L.Ed.2d 513 (1963) (slapping suspect); Reck v. Pate, 367 U.S. 433 , 81 S.Ct. 1541 , 6 L.Ed.2d 948 (1961) (depriving suspect of food and sleep, moving suspect from place to place for interrogation by different people during extended, incommunicado detention); Payne v. Arkansas, 356 U.S. 560 , 78 S.Ct. 844 , 2 L.Ed.2d 975 (1958) (depriving suspect of food, threatening suspect with mob violence); Malinski v. New York, 324 U.S. 401 , 65 S.Ct. 781 , 89 L.Ed. 1029 (1945) (depriving suspect of clothing); Ashcraft, 322 U.S. at 143 , 64 S.Ct. 921 (interrogating suspect for 36 continuous hours); White v. Texas, 310 U.S. 530 , 60 S.Ct. 1032 , 84 L.Ed. 1342 (1940) (questioning suspect in isolated place); Chambers v. Florida, 309 U.S. 227 , 60 S.Ct. 472 , 84 L.Ed. 716 (1940) (interrogating incommunicado suspect for 5 days, culminating in all-night interrogation, and threatening suspect with mob violence); Brown v. Mississippi, 297 U.S. 278 , 56 S.Ct. 461 , 80 L.Ed. 682 (1936) (whipping suspect).

.By relying on a student note that was published in 1951, see ante at 727 the Court may have overlooked Fikes and the subsequent decisions on the voluntariness of statements. This Court has recognized the "totality of circumstances” test for at least 28 years. See Encina v. State, 471 S.W.2d 384 (Tex.Cr.App.1971).

."Some factors in determining if an accused’s will has been overborne are: length of detention; incommunicado or prolonged interrogation; denying access of a family member; refusing a defendant’s request to telephone a lawyer or family member; and physical brutality.” State v. Terrazas, 970 S.W.2d 157, 162 (Tex.App. — El Paso, 1998).

.Ibid.

. "In all cases where a question is raised as to the voluntariness of a statement of an accused, the court must make an independent finding in the absence of the jury as to whether the statement was made under voluntary conditions. If the statement has been found to have been voluntarily made and held admissible as a matter of law and fact by the court in a hearing in the absence of the jury, the court must enter an order stating its conclusion as to whether or not the statement was voluntarily made, along with the specific finding of facts upon which the conclusion was based, which order shall be filed among the papers of the cause.” Tex.Code Crim. Proc. art. 38.22, § 6.