Petition — Blakney v. Montana

Supreme Court brief1981

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APR 7 1980

ICE OF THE CLERK

OF PREME COURT, US.

SUPREME COURT a —

79-6366

———

OF THE UNITED STATES

LARRY LYNN BLAKNEY,

Peticioner,

STATE OF MONTANA,

Respondent.

| eT eT

ON PETITION FOR A WRIT OF

CERTIORARI, TO THE SUPREME COURT

OF THE STATE OF MONTANA

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

Petitioner, LARRY LYNN BLAKNEY, moves the Court

for an Order permitting him to proceed in this Court

in forma pauperis with his Petition for a Writ of

Certiorari to the Supreme Court of the State of Montana

from the judgment of said Supreme Court of the State of

Montana entered in this cause on December 13, 1979, with

rehearing denied on January 10, 1980.

Petitioner's motion is made pursuant to the provi-

sions of Title 28, United States Code, Section 1915, and

Rule 53 of the Rules of the United States Supreme Court

and in support of his Motion, the affidavit of Petitioner

is attached hereto.

SMITH, CONNOR & VAN VALKENBURG

Attorneys for Petitioner

Joyvin P. Connor

0 North Higgins

Missoula, Montana 59801

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RECEIVED

APR 7 1980

SUPREME COURT OFFICE OF THE CLERK’

SUPREME COURT, U.S.

OF THE UNITED STATES

€9-6366

No.

LARRY LYNN BLAKNEY,

Petitioner,

STATE OF MONTANA,

Respondent.

Pn) | ee) |

AFFIDAVIT OF LARRY LYNN BLAKNEY

United States of America )

District of Montana oe

LARRY LYNN BLAKNEY, being first duly sworn, deposes

and says: |

1. That he is a citizen of the United States and

the Petitioner in the above-entitled action;

2. That he desires to petition for a Writ of Certiorari

diredted to the Supreme Court of the State of Montana to

review the judgment of that Court entered on December 13,

1979 (with rehearing denied on January 10, 1980) pursuant to

28 U.S.C., £8 1257(3) but that due to his indigency, he is

unable to pay the costs of such proceeding or give security

therefor;

3. That since May 22, 1978 Petitioner has been

incarcerated in the Montana State Prison and has had no

employment or source of income since that time and further,

that Petitioner has no assets of any kind except nominal

funds provided for toilet and personal needs at the prison;

4. That Petitioner believes he is entitled to the

redress — by his Petition for Writ of Certiorari and

that such Petition presents substantial federal questions.

5. That the nature of the questions to be presented

by Petition for Writ of Certiorari are as follows:

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A. Whether the Supreme Court of Montana denied™y

Petitioner his right to due process of law as guaranteed him

by the Fourteenth Amendment to the Constitution of the

United States by ruling that the trial court committed

harmless error beyond a reasonable doubt in requiring

petitioner to prove his confession involuntary.

B. Whether the Supreme Court of Montana, by affirming

the trial court ruling that the State had met its heavy

burden of showing waiver of right to counsel, effectively

ignored Petitioner's right to counsel and right against self

incrimination as guaranteed him by the Fifth, Sixth and

Fourteenth Amendments to the United States Constitution

when the only evidence of waiver was the inconsistent testi-

mony of the interrogating officers.

Affiant contends that the Supreme Court of the State

of Montana erred in holding that none of affiant's federally

protected rights were violated in the above matters.

WHEREFORE, affiant prays that he be granted leave

to proceed in this Court on his Petition for Writ of

Certiorari in forma pauperis.

sas. yor K firhprnscy

anh Blakney LED Sty

SUBSCRIBED AND SWORN to before me this 974 day of

Wate L , 1980.

(NOTARIAL SEAL) Montana. Residing at Der Laake

Montana. My commission expires

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RECEIVED

APR 7 1980

OFFICE OF THE CLERK

= Tae SUPREME COURT, U.S.

SUPREME COURT OF THE UNITED STATES — :

NO. 80-

_479-6§366 —

LARRY LYNN BLAKNEY,

Petitioner,

-VS.-

STATE OF MONTANA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF MONTANA

JOHN P. CONNOR, JR.

SMITH, CONNOR, & VAN VALKENBURG

240 North Higgins

Missoula, Montana 59801]

ATTORNEYS FOR PETITIONER

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INDEX

Page No.

ee toe a a a a a ee a a eS

Citation to Opinion Below. . . «+. + «+ «© © © © © © © © © » 1

Se RS OS ee a er ee er a ee 1

Questions Presented for Review. . . . + + © «© © © © © © # « 1

Constitutional and Statutory Provisions Involved. .... . 2

Statement of the Case ...+++++e++see © © © © © @ © » 2

How the Federal Questions Were Raised and Decided Below. . 8

Reasons for Granting the Writ .....++e«¢+ee«#e-e«e-ee- Il

I. THIS COURT SHOULD GRANT CERTIORARI TO CONSIDER

WHETHER THE MONTANA SUPREME COURT DENIED

PETITIONER'S RIGHT TO DUE PROCESS OF LAW AS

GUARANTEED HIM BY THE FOURTEENTH AMENDMENT TO

THE CONSTITUTION OF THE UNITED STATES BY RULING

THAT THE TRIAL COURT COMMITTED HARMLESS ERROR

BEYOND A REASONABLE DOUBT IN REQUIRING PETITIONER

TO PROVE HIS CONFESSION INVOLUNTARY . .....-.- Ill

II. THIS COURT SHOULD GRANT CERTIORARI TO DETERMINE

WHETHER THE SUPREME COURT OF MONTANA, BY

AFFIRMING THE TRIAL COURT RULING THAT THE STATE

HAD MET ITS HEAVY BURDEN OF SHOWING WAIVER OR

RIGHT TO COUNSEL, EFFECTIVELY IGNORED PETITIONER'S

RIGHT TO COUNSEL AND RIGHT AGAINST SELF-

INCRIMINATION AS GUARANTEED HIM BY THE FIFTH,

SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION, WHEN THE ONLY EVIDENCE OF

WAIVER PRESENTED WAS THE CONFLICTING TESTIMONY

OF THE INTERROGATING OFFICERS . .-.+ +++ + + 16

CSR ><.) 4) 6 4 ee ane 6 * 6. eee. eo 6 8 ee 8 6 +) eee

Appendices:

Appendix A, Opinion of the Supreme Court of Montana,

December 13, 1979, and Order denying

Rehearing, January 10, 1980, State

of Montana v. Larry Lynn Blakney . .. . A-l

Appendix B, Findings of Fact; Conclusions of Law;

and Order Denying Motions to Suppress

Evidence and for Change of Venue,

November 21, 1977, Stat2 of Montana

v. Larry Lynn Blakney. .....+-.-+-+ - Bel

Appendix C Constitutional and Statutory Provisions . C-l

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AUTHORITIES CITED

SUPREME COURT CASES:

Brewer v. Williams, 430 U.S. 387 (1977). . . .16, 18,

Brookhart v. Janis, 384 U.S. 1 (1966). .......

Chapman v. California, 386 U.S. 18 (1967), .....

Fahy v. Connecticut, 375 U.S. 85 (1963). .-. .. .13,

Glasser v. United States, 315 U.S. 60 (1942).

Jackson v. Denno, 378 U.S. 368 (1964)... s£.

Lego v. Twomey, 404 U.S. 477 (1972). .... . 9, 12,

Miranda v. Arizona, 384 U.S. 436 (1966). ..... 8,

North Carolina v. Butler, 441 U.S. 369 (1979). . ei =

Payne v. Arkansas, 356 U.S. 560 (1958)

LOWER FEDERAL COURT CASES:

Rogers v. United States, 330 F.2d 535 (5th Cir.

1964), cert. denied, 379 U.S. 916 (1965).

United States v. Massey, 550 F.2d 300 (5th Cir.#

nee 6 656 0% ie @ & % ek eee

United States v. Nick, 604 F.2d 1199 (9th Cir. 1979)

United States v. Priest, 409 F.2d 491 (5th Cir.

1969) . «

United States v. Rodgriguez-Gastelum, 569 F.2d 482

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STATE COURT CASES:

Loomis v. State, 551 S.W.2d 546 (Ark. 1977).

People v. Cunningham, N.E.2d _—, 48 Law Week

weer URE. SOGR sc 3 0 ee ee ee 8 Be

State v. Blakney, Mont. _—_s_, 605 P.2d 1096 .

C2975). 2 2 we 0 2 ow 0 o whe OB IO, Bb, 19, 16;

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State v. Grimstead, Mont. , 598 P.2da 198

State v. Smith, 164 Mont. 334, 523 P.2d 1395 (1974).

ee eees 6% & 8 werk te: oS wa be

State v. Stone, 397 A.2d 989 (Me. 1979).

State v. White, 146 Mont. 21, 515 P.2d 76 (1973)

Witt v. State, 342 So.2d 497 (Fla. 1977)..

STATUTES:

Rev.

Codes of Montana, 1947 8 95-1805.

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i} APR 7 1980

IN THE THE CLERK

OF Ee COURT, US.|

2 SUPREME COURT OF THE UNITED sTaT ee

3] b NO. 80-

4 | LARRY LYNN BLAKNEY, v4 9 Pe 63 6 G

5 Petitioner,

6 -vs-

; STATE OF MONTANA,

8 Respondent.

11 PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF MONTANA

14 Petitioner prays that a writ of certiorari issue to review

15 the judgment of the Supreme Court of Montana entered December 13,

16 | 1979, rehearing denied January 10, 1980.

CITATION TO OPINION BELOW

19 The opinion of the Supreme Court of Montana, reported

20 at Mont. , 605 P.2d 1093 (1979) is set out in Appendix

21'| A, infra, together with the court's order denying rehearing.

22 JURISDICTION

24 The judgment of the Supreme Court of Montana was entered

25 | On December 13, 1979. On January 10. 1980 that court denied

26 | 3 timely rehearing petition. (See Appendix A-16). Jurisdiction

97 | Of this Court is invoked pursuant to 28 U.S.C. § 1257(3),

28 petitioner having asserted below and asserting here a deprivation

29 of rights secured by the Constitution of the United States.

30 QUESTIONS PRESENTED FOR REVIEW

32 1. Whether the Supreme Court of Montana denied petitioner's

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right to due process of law as guaranteed him by the Fourteenth

Amendment to the Constitution of the United States by ruling

that the trial court committed harmless error beyond a

reasonable doubt in requiring petitioner to prove his confession

involuntary.

2. Whether the Supreme Court of Montana, by affirming

the trial court ruling that the state had met its heavy burden

of showing waiver of right to counsel, effectively ignored

petitioner's right to counsel and right against self-incrimi-

nation as guaranteed him by the Fifth, Sixth, and Fourteenth

Amendements to the United States Constitution when the only

evidence of waiver presented was the conflicting testimony of

the interrogating officers.

CONSTITUTIONAL AND STATUTORY

* PROVISIONS INVOLVED

This case involves the Fifth, Sixth, and Fourteenth

Amendments to the Constitution of the United States and

various sections of the Montana Code Annotated as set forth in

Appendix C, infra.

STATEMENT OF THE CASE

The nude body of Ann Thibodeau was found in the Clark

Fork River near the downtown area of Missoula, Montana on the

evening of June ll, 1977. A pathological examination determined

that death resulted from strangulation aggravated by ingestion

of water into the lungs.

Petitioner Larry Lynn Blakney was at the scene where the

body was discovered and was requested to accompany officers to

the Missoula City Police Station at approximately 10:30 that

evening, June 1l, for the purpose of giving a statement. The

police interrogation of petitioner commenced at approximately

11:00 - 11:30 p.m. (Tr. Vol. I, p.18). The petitioner, then

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18 years of age, was formally interrogated for approximately

1 1/2 hours on that night and the early morning hours of June

12, 1977. Although several family members were present in the

police station during this time period, the interrogation was

conducted by two city policemen, Officers Ibsen and Weaver,

absent the presence of any relative or friend of the petitioner.

This isolated type of interview was apparently requested by

the police officers to permit a more uninhibited exchange.

(Tr. Vol. I, p. 72). A tape recording of the first interview

was made and subsequently transcribed. The explanaticn of

rights given by the officers took place before the reccrder was

turned on (Tr. Vol. I, p. 80) so that the transcription of the

statement reflects only that petitioner had signed a waiver of

rights. (State's Exhibit 25). During the course of this

first statement, petitioner admitted some confusion to the

police officers (State's Exhibit 25) and indicated that he was

unable to understand certain words contained in the waiver of

rights. (Tr. Vol. I, pgs. 25, 80). Following the recorded

interrogation, petitioner was taken to his home by the inter-

rogating officers where a search of his car was conducted

pursuant to a consent to search. The officers were then

shown the interior of his home and broke off contact with him

at approximately 2:00 a.m. on June 12, 1977. (Tr. Vol. IV, p.

356). Arrangements were made at that time for petitioner to

come into the police station later that morning, at approximately

9:00 or 9:30 a.m. for a second interview. (Tr. Vol. I, p. 84).

This second interview with petitioner commenced at

approximately 9:30 a.m. and lasted for a period of 2 - 2 1/2

hours. (Tr. Vol. I, p. 91). The interrogation was also

conducted by Officers Ibsen and Weaver in the police interrogation

room. Only petitioner and the two officers were present. This

interrogation was not transcribed or taped, and a waiver of rights

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form was signed by petitioner prior to its commencement.

Arrangements were also made during this second interrogation

for petitioner to contact police officers the following day,

June 13th, to arrange for the taking of a polygraph examination.

Although there is inconsistency throughout relative to a

request by petitioner for counsel, it is conceded by Officers

Ibsen and Weaver and found by the court, that some type of

request was made during the interrogation of June 12th,

Sunday morning. (Tr. Vol. IV, p. 380; Vol. II, Pp. 327;

Vol. V, p. 613).

Petitioner reported to the police interrogation room on

the evening of Monday, June 13th, to undergo a polygraph

examination conducted by Cascade County Deputy Sheriff Sand.

The examination commenced at approximately 9:00 p.m. and

was conducted in the presence of four police officers, including

the examiner. (Tr. Vol. IV, p. 442). Petitioner's uncle had

accompanied him to the police station but was not permitted to

be present during the examination. The entire examination

procedure took approximately one hour. (Tr. Vol. I, p. 151).

Following this, results of the examination were discussed with

petitioner and he was advised that the test disclosed untruth-

fulness. (Tr. Vol. I, p. 154). Ibsen and Weaver then

immediately began another interrogation of petitioner (Tr. Vol. i,

p. 104-5) and during the course of this third interrogation,

occurring from approximately 10:00 p.m. until midnight (Tr. Vol.

I, p. 151; Vol. V, p. 546) in the police interrogation room,

he admitted having killed Ann Thibodeau. The petitioner had

no family members present and was not represented by counsel.

(Tr. Vol. I, p. 110). Although the record is again unclear on

this aspect, it is conceded by both Officers Ibsen and Weaver,

as well as by petitioner, that some type of request for counsel,

(Tr. Vol. II, p. 285), was made by petitioner during some point

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in the Monday night interrogation. The district court also

found in its Findings of Fact and Conclusions of Law that

petitioner brought up the matter of counsel on Monday night

before confessing. There are substantial discrepancies in the

testimony relative to this matter which will be noted later.

In any event, the third interrogation was not taped or

transcribed. (Tr. Vol. II, p. 276).

That interrogation was followed by a fourth, conducted

in the same room. Present for this interrogation were

petitioner, Officer Ibsen and Officer Scott Graham who had

replaced Weaver at Weaver's request because he felt emotionally

drained. (Tr. Vol. I, p. 106). There was no appreciable break

taken between the third and fourth interrogations. A “rights

form" was read to petitioner by Officer Graham and the interview

was tape recorded and later transcribed. Petitioner was then

formally placed under arrest for deliberate homicide at

approximately 1:30 a.m. on the morning of June 14, 1977. (Tr.

Vol. V, p. 632).

A further statement was given by petitioner on the night

of June 15, 1977. This statement, which was also recorded and

transcribed, was delivered in the Missoula County Jail in

the presence of three police officers and petitioner's mother.

(See State's Exhibit 28). It essentially repudiates the earlier

confession.

An information was filed by leave of court on August 1,

1977 charging petitioner with the offense of deliberate homicide.

Following several procedural delays not germane to the instant

consideration, a motion to suppress the confessions or admissions

of petitioner was filed.

During the suppression hearing, the interrogating officers

were called by both petitioner and the state. Their testimony

relative to petitioner's request for counsel and alleged waiver

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of that request varied considerably. During direct examination

by petitioner, Officer Ibsen testified that after petitioner

had given a statement on Monday night, June 13th, admitting

having killed the victim, but before his taped confession to

that effect, he said that “he thought he wanted an attorney.”

At that point according to Ibsen, questioning stopped and did

not begin again until petitioner began offering information.

(Tr. Vol. I, pgs. 59-62). No recording was made of this

statement. Later, during direct examination by the state,

Officer Ibsen testified that the statement was a definite

request for an attorney (Vol. II, p. 286) but that petitioner

verbally repudiated that request after being examined about

it by Officer Weaver, and that no further request for counsel

was made. (Tr. Vol. II, p. 289).

Officer Weaver, on the other hand, testified during

the suppression hearing when called by petitioner that petition-

er stated "maybe I should see a lawyer" which triggered in his

mind the possibility that he may have wanted "to exercise

his rights", but that the interrogation was unilaterally contin-

ued by petitioner when he began talking again. (Tr. Vol. I, pgs.

107-10). Contrary to Ibsen's testimony, Weaver stated at this

point in the suppression hearing that the assertion was made

before any admission or confession was given by petitioner on

Monday night. (Tr. Vol. I, p. 1027). Then, however, during

direct examination by the state some nine days later, Officer

Weaver remembers two assertions of right to counsel being made

by petitioner, the first during the Sunday morning interrogation

and the second on Monday night. (Tr. Vol. II, pgs. 327-28).

By now though, he remembers only the particulars of the Sunday

morning assertion and, contrary to his earlier testimony, not

the one made Monday night. (Tr. Vol. I, p. 328). Officer

Weaver recollects that on both occasions, petitioner made the”

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assertion, paused, and then simply began offering information

again. In cross-examination, Weaver claimed that in describing

the incident relative to counsel on direct some days earlier,

he had been referring to the Sunday morning episode, (Tr. Vol.

II, p. 337), despite the fact that during that earlier

examination counsel had prefaced his inquiry by stating, "At

any time subsequent to completing the polygraph examination... ."

(Tr. Vol. I, p. 107), the polygraph occuring only on Monday

night. (emphasis added).

The petitioner testified during the suppression hearing

that he requested an attorney before making his admission on

Monday night. (Tr. Vol. I, p. 193).

The court thereafter denied petitioner's motion to

suppress and entered findings of fact and conclusions of law

to that effect on November 21, 1977. See Appendix B.

Trial commenced April 3, 1978. During trial, held

some five months after the suppression hearing, substantial

changes occurred in the officers' testimony relative to how and

when assertion of the right to counsel was made. Now Officer

Ibsen recollects that a request for counsel was made on Sunday

morning, and even remembers the point during the interview when

the request was made. (Tr. Vol. V, p. 613). No mention is made

of a Monday night request. Officer Weaver recollects now that

an assertion (less direct than that remembered by Ibsen) was

made Sunday morning, during the second interrogation, but that

no assertion whatever was made Monday night, totally contrary

to his earlier testimony. Both officers do, however, remember

that no matter how the request was phrased, it was, in effect,

repudiated by petitioner when he began talking with no prompting

from the officers.

A verdict of guilty to the charge of deliberate homicide

was returned on April 11, 1978 and judgment was entered on

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May 22, 1978 sentencing petitioner to forty years in the

Montana State’ Prison.

The case was submitted on appeal September 13, 1979

with a decision issuing December 13, 1979. Petitioner's

request for rehearing was denied January 10, 1980.

HOW THE FEDERAL QUESTIONS

WERE RAISED AND DECIDED BELOW

ISSUE NO. l.

Petitioner's motion to suppress the confessions or

admissions filed with the trial court provided, in part:

"The State has the burden of proving the

Defendant waived his constitutional rights

knowingly, intelligently and voluntarily.

The State. . .cannot constitutionally shift

the burden of proof to the Defendant to show

how his rights were violated, rather the

State must affirmatively show the Defendant's

rights were not violated. Further, the facts

stated in this motion shift the burden to the

State."

Motion to Suppress, p. 5.

At the outset of the suppression hearing, petitioner

argued thatthe state had the burden of proving the confessions

were voluntarily given, despite the provisions of Section

95-1805, Revised Codes of Montana, 1947 (now 46-13-301 MCA)

which provided in pertinent part:

"(a) A defendant may move to suppress as

evidence any confession given by him on the

ground that it was not voluntary.

x* * &

"(f) The burden of proving that a confession

or admission was involuntary shall be on the

defendant."

Petitioner cited to the court Miranda v. Arizona, 384

U.S. 436 (1966). The state maintained that the above-quoted

statute placed the burden on petitioner to show involuntariness.

The record demonstrates the following scenario prior to the

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trial court ruling for the state:

(1) Defense counsel objects to proceeding

~ with the burden of showing the confessions

involuntary, citing authority. (Tr. Vol. I, p. 1).

(2) The state rebuts the argument by stating

that under "the Montana Code the burden is upon

the defense" to show the confessions were involun-

tary. (Tr. Vol. I, p. 2).

(3) Defense counsel then again argues its same

position to which the state responds by encourag-

ing an interpretation on the court that the

defense bears the burden in the suppression

hearing, while the state may bear the burden in

trial. (Tr. Vol. I, pgs. 4-5).

(4) The court agrees with the interpretation

just articulated by the state. (Tr. Vol. I, p.5).

On appeal petitioner challenged the ruling of the trial

court as being violative of petitioner's constitutional right

to due process of law as guaranteed him by the Fourteenth

Amendment to the United States Constitution. State v. Blakney,

605 P.2d 1098 (1979). The Montana Supreme Court held that

the statute requiring a defendant to carry the burden of proof

in a suppression hearing was indeed unconstitutional, as had

been alleged by petitioner, on the basis of Lego v. Twomey,

404 U.S. 477 (1972). The court also held that the trial court

erred in relying on this statute and requiring petitioner

to prove the confessions involuntary but that such error

constituted harmless error beyond a reasonable doubt. In so

holding, the court stated:

"However, we find here that even though the

trial court's ruling did shift the burden,

the ruling can be sustained as harmless error.

The error here is federal constitutional error.

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"In determining the existence of harmless

constitutional error, the appellate court

considering the question has the task of

applying the harmless beyond a reasonable

doubt test. (citing authority).

“Applying this standard to the instant case,

we find the error was harmless beyond a

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reasonable doubt."

Blakney, 605 P.2d at 1099, 1100.

ISSUE NO. II.

In his motion to suppress, petitioner also argued that

the confessions of petitioner were

"not voluntarily made and. . .obtained in

violation of the Defeneant's Constitutional

rights as guaranteed »y the Fourth, Fifth,

Sixth and Fourteenth Amendments to the

United States Constitution and Article II,

§ 17, 8 23, 8 24 and § 25 of the 1972 Montana

Constitwutsoni... ss."

Motion to Suppress, p. l.

Petitioner further argued that

"(The Defendant requested an attorney during

the interrogation session of Monday evening,

June 13, 1977, prior to giving any statements].

The police either ignored or refused to grant

the Defendant's request and proceeded with the

interrogation process. The Defendant's right

to counsel as guaranteed by the Sixth and

Fourteenth Amendments to the United States

Constitution and Article II, 8 17 and 6 24 of

the 1972 Montana Constitution was thereby

denied, as the police knew or should have known

that upon the Defendant's request all question-

ing and interrogation must stop."

Motion to Suppress, pgs. 4-5.

In denying petitioner's motion to suppress, the trial

court, in its findings of fact and conclusions of law, held

the confessions to have been voluntarily made, that in fact

no effective assertion of right to counsel was ever made by

petitioner and that, in any event, he knowingly and intelligent-

ly waived his right to counsel. The court did find, however,

that petitioner had requested an attorney on two occasions

during the various interrogations. Appendix B, infra.

The confessions were introduced during the trial over

the objections of counsel for petitioner. (Tr. Vol. V. p. 594).

On appeal petitioner argued that the ruling relative to

assertion and waiver of right to counsel amounted to a denial

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of petitioner's right to counsel and against self-incrimination

in derogation of the guarantees afforded him by the Fifth,

Sixth and Fourteenth Amendments to the United States

Constitution. State v. Blakney, 605 P.2d 1096 (1979).

In ruling on the question of whether the state had met

what the Montana Supreme Court recognized as its heavy burden

of showing waiver of right to counsel once such right is

asserted, the court held first of all that the petitioner had

made an effective assertion of right to counsel and that the

trial court erred in ruling otherwise, but that petitioner

waived this right and the trial court had found correctly on

that matter. In this regard the court stated:

"Given this standard and the District Court's

findings of fact, the District Court did not

err in holding appellant waived his right to

counsel,"

x * *

"These facts. . .and the express statement by

appellant that he did not want a lawyer -

represent a waiver of the right to counsel '

on the part of appellant."

Blakney, 605 P.2d at 1098.

Thus the Montana Supreme Court accepted without question

and indeed without discussion, the substantially conflicting

testimony of the interrogating officers, the only testimony

offered by the state in support of its constitutionally

required heavy burden of proof regarding waiver.

THIS COURT SHOULD GRANT CERTIORARI TO CONSIDER

WHETHER THE MONTANA SUPREME COURT DENIED PETITION-

ER'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED

HIM BY THE FOURTEENTH AMENDMENT TO THE CONSTITUTION

OF THE UNITED STATES BY RULING THAT THE TRIAL

COURT COMMITTED HARMLESS ERROR BEYOND A REASONABLE

DOUBT IN REQUIRING PETITIONER TO PROVE HIS

CONFESSION INVOLUNTARY.

It is well settled, and has been for the past several

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years, that the state has the burden of proving a confession

voluntary. Lego v. Twomey, 404 U.S. 477 (1972). Although

the Montana statute, Section 95-1805, R.C.M., 1947,

required the defendant to prove involuntariness, the Montana

Supreme Court had effectively ignored the directives of this

statute by holding, in earlier cases, that the burden rested

with the State to show voluntariness. See State v. Smith,

164 Mont. 334, 523 P.2d 1395 (1974); State v. White, 146 Mont.

21, 515 P.2d 76 (1973). The question of whether 8 95-1805,

R.C.M., 1947, was constitutionally acceptable was never directly

addressed by the earlier decisions, however, and apparently

did not become an issue until raised in the instant case. As

noted earlier, the question of the application of this statute

became an issue early on when petitioner argued during the

suppression hearing that the state had the burden of proving

that the confessions were in fact voluntarily made, citing

authority to support such position. The state argued that the

statute in question placed the burden instead upon petitioner

to show that the confessions were involuntarily given. (Tr.

Vol. I, pgs. 2-5). In ruling consistent with the state's

argument the trial court stated:

"Well it appears to me that what you

(county attorney) say is true, Mr.

Volinkaty, at the trial, if they wish

to introduce this at the trial, the

burden is on the state to prove voluntar-

iness; however, this is a Motion to Suppress

and I think that, since it is your Motion,

you should proceed at this time."

Tr. Vol. I, p. 5.

The Montana Supreme Court in holding that the trial

court erred in requiring petitioner to carry the burden of

proof, also determined that the error was "federal constitution-

al error" citing Lego v. Twomey, 404 U.S. 477 (1972) and

Jackson v. Denno, 378 U.S. 368 (1964). The court, however,

~12@

then proceeded to a determination that such error constituted

2 | harmless error beyond a reasonable doubt, citing Chapman v.

3 ] California, 386 U.S. 18 (1967).

4 In relying on Chapman, the Montana court glosses over

5 | the real significance of the case since Chapman actually

6 | provides rather narrow strictures in allowing a determination

7 | of harmless error beyond a reasonable doubt. In quoting

8 | favorably from the earlier decision of Fahy v. Connecticut,

9 | 375 U.S. 85 (1963), the Court in Chapman states:

10 "We prefer the approach of this Court in

deciding what was harmless error in our

11 recent case of Fahy v. Connecticut, ...

There we said 'the question is whether there

12 is a reasonable possibility that evidence

complained of might have contributed to

13 the conviction.'"

14 | 386 U.S. at 25.

15 In utilizing the Fahy star lard, this Court further

16 | stated, addressing its consideration to the evidentiary

17 | particulars of Chapman:

18 "And though the case in which this occurred

presented a reasonably strong 'circumstatial

19 web of evidence’ against petitioner, ...

it was also a case in which, absent constit-

20 utionally forbidden comments, honest fair-

minded jurors might very well have brought in

21 not-guilty verdicts.”

22 | 386 U.S. at 26.

23 The Court in Chapman also recognizes that certain

24 | constitutional rights are "so basic to a fair trial that

25 | their infraction can never be treated as harmless error."

26 | 386 U.S. at 23. Examples of such rights noted by the Court

27 | are right to counsel and right against the use of a coerced

28 | confession. In this regard the Court cites Payne v. Arkansas,

29 | 356 U.S. 560 (1958). In Payne, the Court found that petitioner's

30 | confession had been coerced and in response to the state's

31 | argument that despite the confession, there existed sufficient

32 | evidence to convict, the Court stated:

-~13-

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"And in these circumstances this Court has

uniformally held that even though there may

have been sufficient evidence, apart from the

coerced confession, to support a judgment of

conviction, the admission in evidence, over

objection of the coerced confession vitiates

the judgment because it violates the Due

Process Clause of the Fourteenth Amendment."

356 U.S. at 568.

The rationale for this holding, and for the narrow

construction given to the application of harmless error beyond

a reasonable doubt in Chapman was apparently overlooked by

the Montana courts. If an appellate court is permitted to

speculate as to the probable outcome of a case where a

constitutional right has been ignored, and decide the case

on the basis of such speculation, the result is to render the

constitutional guarantee meaningless and to vitiate the

substance of such guarantee.

In Montana the rule has long been that the question of

voluntariness of a confession is a matter within the sound

discretion of the trial court and its decision will not be

reversed on appeal unless clearly against the weight of the

evidence. The Montana court cited this rule in deciding

petitioner's case when it quotes approvingly from the case

of State v. Grimstead, Mont. , 598 P.2d 198 (1979) &

However, the court then proceeded to speculate as to what the

trial court might have done were it to have utilized a correct

constitutional standard. To simply conclude, as does the

Montana Supreme Court, that the federal constitutional error

was harmless because the evidence was so substantial that the

trial court would have ruled the same way utilizing a proper

standard, can only be styled cavalier in its disregard of the

essence of constitutional protections. The type of speculation

indulged by the Montana Supreme Court should be purely

academic. The point, of course, is that the trial court's

-14-

—s

discretion was moved by adherence to an unconstitutional

2] standard and, as such, it should have been reversed.

3 In support of the tack it took, the Montana Supreme

4 Court places heavy reliance on Rogers v. United States, 330

5 | F.2d 535 (5th Cir. 1964), cert. denied, 379 U.S. 916. The

6 | Montana court quotes the following from Rogers:

7 ". . «(T]he burden of producing evidence

is never crucial unless certain necessary

8 facts in a case are not aired. Here all

of the salient facts were aired. ...

9 330 F.2d at 543."

10 | Blakney, 605 P.2d at 1100.

11 In relying on the reasoning of this case, the Montana

12 | Supreme Court overlooked two salient factual distinctions

13 | between Rogers and the instant case. The first is that

14 | although the trial judge ruled in Rogers that the defendant

15 | had the burden of proof in the suppression hearing, he

16 | withdrew that ruling following the hearing and ruled that,

17 | even giving the defendant the benefit of the doubt, he would

18 | not have suppressed the evidence. More importantly, the second

19 | distinction is that Rogers was decided prior to this Court's

20 | decision in Lego v. Twomey, 404 U.S. 477 (1972).

21 Petitioner submits that the Montana Supreme Court's

22 | decision on this issue constitutes acquiesence in a trial

23 | court ruling the effect of which was to place an involuntary

24 | confession before the jury. The confession was presumptively

25 involuntary when the suppression proceeding began and it emerged

26 | involuntary since petitioner was required to prove it so. In

27 | utilizing the standard of Fahy v. Connecticut, 375 U.S. 85

28 (1963), there is certainly little doubt that the admission of

29 the confessions, the essence of the state's evidence against

30 | petitioner, resulted in a “reasonable possibility [the confessions)

31 | might have contributed to the conviction." 375 U.S. at 172.

-15-

lens

Il.

THIS COURT SHOULD GRANT CERTIORARI TO DETERMINE

WHETHER THE SUPREME COURT OF MONTANA, BY AFFIRM-

ING THE TRIAL COURT RULING THAT THE STATE HAD MET

ITS HEAVY BURDEN OF SHOWING WAIVER OF RIGHT TO

COUNSEL, EFFECTIVELY, IGNORED PETITIONER'S RIGHT

TO COUNSEL AND RIGHT AGAINST SELF-INCRIMINATION

AS GUARANTEED HIM BY THE FIFTH, SIXTH AND FOUR-

TEENTH AMENDMENTS TO THE UNITED STATES CONSITUTION,

WHEN THE ONLY EVIDENCE OF WAIVER PRESENTED WAS THE

CONFLICTING TESTIMONY OF THE INTERROGATING “OFFICERS.

It is well settled that courts indulge in every reasonable

o on OO GD F&F O@ WDB —

presumption against waiver of the right to counsel. Brookhart

10 | v. Janis, 384 U.S. 1 (1966); Glasser v. United States, 315 U.S.

11 | 60 (1942). It is equally well settled that when the state

12 | asserts waiver of the right to counsel, it bears a heavy burden

13 | of showing such waiver. North Carolina v. Butler, 441 U.S.

14 | 369 (1979); Brewer v. Williams, 430 U.S. 387 (1977); Miranda v.

15 | Arizona, 384 U.S. 436 (1966). Indeed, the Montana Supreme

16 | Court recognizes the requirement that the state bears a heavy

17 | burden with the following explicit language from State v.

18 | Blakney:

19 "In so doing, we recognize that a waiver

of the right to counsel cannot be presumed

20 and that the State bears a heavy burden to

show waiver. . .." (citations omitted)

605 P.2d at 1097,

23 The Montana court, in reaching its conclusion that the

24 | trial cote did not err in ruling that petitioner waived his

25 | right to counsel, directed brief attention to the question

26 | of utilizing a per se rule relative to whether one can waive

27 | the right to counsel after making the assertion. In a definite,

28 | albeit cursory holding, the court rejected the per se concept.

29 | Blakney, 605 P.2d at 1097. The issue is worthy of discussion

30 | here, however, since the instant case involves a recognition by

31 | the Montana Supreme Court that petitioner made two effective

32 | assertions of right to counsel during the interrogation process.

-16-

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There is a divergence of authority among various states

and judicial circuits relative to the question of whether a

defendant who has invoked a right to counsel may subsequently

waive such right without having consulted counsel. This Court

has never squarely addressed the issue although the concept of

a per se rule was rejected by the Court in a case questioning

the admissibility of inculpatory statements made in the absence

of explicit waiver of the right to counsel. North Carolina v.

Butler, 441 U.S. 369 (1979). However, this case neither in-

volved an issue of assertion of the right to counsel nor

waiver once assertion has been made.

The per se position as it applies to the facts of the

instant case, has been supported in the fifth circuit as

evidenced by the court's decisions in United States v. Massey,

550 F.2d 300 (5th Cir. 1977) and United States v. Priest,

409 F.2d 491 (Sth Cir. 1969). The essence of these decisions

is clearly demonstrated in the following language from United

States v. Priest:

"Once warnings have been given the subsequent

procedure is clear. If the individual indicates

in any manner, at any time prior to or during

questions, that he wishes to remain silent, the

interrogation must cease."

409 F.2d at 493.

This view is construed as too narrow by the ninth

circuit, sitting en banc, in United States v. Rodriguez-

Gastelum, 569 F.2d 482 (9th Cir. 1978), saying.a

". +» «per se rule, however disguised, would

serve only to handcuff our law enforcement

officers in the performance of their duties

and to imprison the suspect in his alleged

constitutional privileges."

569 F.2d at 488.

It is interesting to note, however, that even after this

decision, the ninth circuit doesn't appear completely comfort-

able with the Rodriguez-Gastelum rule, as it would seem from

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the following language in the subsequent case of United States

v. Nick, 604 F.2d 1199 (9th Cir. 1979);

"But for United States v. Rodriquez-

Gastelum, 569 F.2d 482 (Sth Cir. en

banc 1978), we may have decided that

the Government fell short of sustain-

ing its heavy burden, But fidelity to

Rodgriguez-Gastelum requires us to

Support the district court on the waiver

point."

604 F.2d at 1201.

See also: People v. Cunningham, N.E.2d , 48 Law

Week 2537 (N.Y. 1980); State v. Stone, 397 A.2d 989 (Me. 1979);

Witt v. State, 342 So.2d 497 (Fla. 1977); Loomis v. State,

551 S.W.2d 546 (Ark. 1977).

The Montana Supreme Court's flat rejection of the per

se concept ignores the fact that the instant case presents

the most cogent set of circumstances that might be advanced

in support of such rule. Here the only evidence offered by

the state in support of its heavy burden of showing waiver

was the testimony of the interrogating officers. The Montana

Supreme Court placed repeated emphasis on the recollections

of those officers in concluding that petitioner effectively

waived his rights. Blakney, 605 P,2d at 1098. The court's

decision refers to the specific recollections of the very

same officers who couldn't even recall the days on which the

assertions of right to counsel were made but ironically could

recollect with detailed clarity the scenario on one or both

occasions (depending on which version one reads of their

testimony) regarding how and when waiver supposedly occurred.

If any plausible argument can be advanced in support of the

so-called per se rule it is that its adoption would eliminate

the type of situation which occurred in the instant case; the

substantial difficulty and prejudicial effects of assessing

the credibility of contradictory, conflicting and impeachable

-18-

1 | testimony relating to waiver.

2 Favorable determination of this issue need not rest on

3 | adoption of the per se rule, however, since the record contains

4 | ample evidence of the fact that the interrogation process

5 | resulted in anything but an intelligent, understanding re-

6 | jection of petitioner's right to counsel. It is also clear

7 | that the only evidence offered by the state in support of its

8 | heavy burden is fraught with inconsistencies and riddled with

9 | multiple contradictory explanations of when the assertion was

10 | made. Such evidence woul’ hardly seem acceptable to this

11 | Court on the basis of the standard established in Brewer v.

12 | Williams, 430 U.S. 387 (1977):

13 "The District Court and the Court of Appeals

were also correct in the understanding of the

14 proper standard to be applied in determining

the question of waiver as a matter of Federal

15 Constitutional Law - that it was incumbent upon

the State to prove ‘an intentional relinquish-

16 ment or abandonment of a known right or privi-

lege.'" (citations omitted).

430 U.S. at 403.

19 Petitioner submits that the Montana Supreme Court gave

20 | short shrift to the essence of petitioner's constitutional

21 guarantees against self-incrimination and right to counsel

22 | in reaching its decision on this matter. The court paid

23 | little heed to the weight and nature of the evidence and

24 | simply issued a conclusion. This type of decision seems to

25 | be what this Court was contemplating when it stated:

26 "The Court of Appeals did not hold, nor do we,

that under the circumstances of this case

27 Williams could not, without notice to counsel,

have waived his rights under the Sixth and

28 Fourteenth Amendments. It only held, as do

we, that he did not. The crime of which

29 Williams was convicted was senseless and

brutal, calling for swift and energetic action

30 by the police. ... No mission of law

enforcement officials is more important.

31 Yet, ‘'[(djisinterested zeal for the public

good does not assure either wisdom or right

32 in the method it pursues.' Although we do

-19-

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not lightly affirm the issuance of a writ of

habeas corpus in this case, so clear a violation

of the Sixth and Fourteenth Amendments as here

occurred cannot be condoned. The pressures on

state executive and judicial officers charged

with the administration of the criminal law

are great, especially when the crime is murder

and the victim a small child. But it is pre-

cisely the predictability of those pressures

that makes imperative a resolute loyality to

the guarantees that the Constitution extends

to us all."

Brewer, 430 U.S. at 405-6.

CONCLUSION

For the foregoing reasons, it is submitted that the

Montana Supreme Court has, in State v. Blakney, supra,

decided significant federal questions contrary to applicable

decisions of this Court and petitioner therefore requests

that a petition for a writ of certiorari be granted.

Respectfully submitted,

n P. Connor, Jr.

ITH, CONNOR & VAN VALKEN

240 N. Higgins

Missoula, Montana 59801

Attorneys for Petitioner

-20-

STATE vy. BLAKNEY

Mont. 1093

Cite as, Moat, 605 P26 1003

STATE of Montana, Plaintiff

and Respondent,

Larry L. BLAKNEY, Defendant

and Appellant.

No. 14534,

Supreme Court of Montana.

Submitted Sept. 13, 1979.

Decided Dee. 13, 1979.

Rehearing Denied Jan. 10, 1920,

Defendant was convicted in the Fourth

District Court, Missoula County, Jack L.

Green, J., of deliberate homicide, and he

appealed. The Supreme Court, Harrison,

J., held that: (1) trial court's finding that

defendant's confession was voluntary did

not clearly contravene the weight of the

evidence; (2) defendant waived his right to

counsel during interrogation by police offi-

cers; (3) trial court did not err in requiring

defendant to present his evidence first at

suppression hearing; (4) trial court erred in

requiring defendant to prove that his con-

fession was involuntary at suppression

hearing; however, such error was harmless;

and (5) evidence, including defendant's con-

feasion, when viewed in a light most favor-

able to the State, sustained defendant's con-

viction.

Judgment affirmed.

Sheehy, J., dissented and filed opinion.

Shea, J., dissented and filed Opinion.

1. Criminal Law @=519(1)

In determining the voluntariness of a

confession, the totality of circumstances

surrounding the confession is considered

with no single fact being dispositive of the

issue.

2. Criminal Law @=532

When youthful defendant questioned

voluntariness of confession tw deliberate

homicide, court was required tw consider

following circumstances: accused's age; his

education; his knowledge as to both sub-

Se ee ce ee eee

stance of the charge, if any had been filed,

and nature of his rights to consult with

attorney and remain silent; whether he

was held incommunicado or allowed to con-

sult with relatives, friends or an attorney;

whether he was interrogated before or af-

ler formal charges had been filed; methods

used in interrogation; length of interroga-

tions; whether accused refused to voluntar-

ily give statements on prior occasions;

whether he repudiated an extrajudicial

statement at later date; his mental capaci-

ty; visibility of nude pictures of murder

victim during interrogation; use of poly-

graph examinations; accused's previous e<-

perience with criminal justice system; and

his experience in the adult world.

3. Criminal Law @>531(3)

In prosecution for deliberate homicide,

trial court's finding at suppression hearing

that defendant voluntarily confessed to the

crime did not clearly contravene the weight

of the evidence,

4. Criminal Law > 412.2(5) .

Defendant, who while being interroga-

ted by police in regard to a murder stated

“maybe I should have an attorney” effec-

tively asserted his right to counsel, U.S.C.

A.Const. Amend. 6.

5. Criminal Law @412.2(5)

Defendant may waive his right to

counsel after making an effective assertion

of the right; however, waiver of such right

to counsel cannot be presumed and state

bears the heavy burden to show waiver on

the part of defendant. U.S.C.A.Const.

Amend. 6.

6. Criminal Law > 412.2(5)

Defendant, who while being interrogs-

ted by police effectively asserted his right

* to counsel and, after being advised by police

that he could have counsel if he wished,

continued answering questions, voluntarily

abandoned his right to counsel and unilater-

ally resumed the interrogation without

prompting by interviewing officers. U.S.C.

A.Const. Amend. 6.

Appendix A - l

1094 Mont.

7. Criminal Law @=412.2(5)

Defendant, who asserted his right to .

counsel during interrogation hy pulice and,

when police stopped questioning him and

began to leave the room, resumed talking to

police and, when reminded of his request

for counsel, stated that he did not want a

lawyer, waived his right to counsel, particu-

larly in view of fact that he had asserted

and voluntarily abandoned his right to

counsel in an interview 30-hours curlier,

following which he was not detained and

was free to consult with family members or

an attorney if he wished, and that prior to

the later interrogation he again received his

Miranda warnings and signed a waiver.

U.S.C.A.Const. Amend. 6.

8. Criminal Law’ @531(3)

State must prove voluntariness of a

confession at a suppression hearing by a

preponderance of the evidence. MCA 46-

13-301(4).

9. Criminal Law @1141(1)

Error by the trial court cannot be pre-

sumed but must be shown by the record.

10. Criminal Law e532

At hearing to suppress confession on

ground that it was involuntary, trial court

did not err in requiring defendant to

present his evidence first; however, such

procedure could not be recommended as

standard practice at suppression hearings;

such procedures should be employed only

when necessary to establish prima facie

case of constitutional infringement by state.

11. Criminal Law @=394.6(1)

If a prima facie case of constitutional

infringement by state is presented by party

requesting suppression of evidence to trial

court's satisfaction in prehearing ducumen-

tation, state should be required to initiate

suppression hearing proceedings.

12. Criminal Law @=531(1), 1168(1)

At hearings to suppress confession on

ground that it was involuntary, trial court

erred in requiring defendant to prove his

confession involuntary; however, such error

was harmless, even though trial court's rul-

ing improperly shifted the burden of proof

605 PACIFIC REPORTER, 2d SERIES

to defendant, inasmuch as Supreme Court

was convinced beyond a reasonable doubt

that trial court would have reached the

same result regardless of the improper plac-

ing of the burden of proof on defendant.

13. Criminal Law @ 1162

While not all errors of constitutional

magnitude call for reversal, before a feder-

al constitutional error can be held harmless,

the court must be ab’c to declare a belief

that it was harmless beyond a reasonable

doubt. °

14. Criminal Law ¢ 1162

In determining the existence of harm-

less constitutional error, appellate Gort

considering the question has task of apply-

ing the harmless beyond a reasonable doubt

lest.

15. Homicide e250

In prosecution for deliberate homicide,

evidence, including defendant's confession,

when viewed in the light most favorable to

the state, sustained defendant's conviction.

Smith, Connor & Van Valkenburg, Mis-

soula, John P. Connor, Jr., argued, Missoula,

for defendant and appcilant.

Mike Greely, Atty. Gen., Helena, Mary B.

Troland, Asst. Atty. Gen., Helena, Robert L.

Deschamps III, County Atty., argued, Mis-

soula, for plaintiff and respondent.

HARRISON, Justice.

Defendant-appellant was arrested on the

charge of deliberate homicide on June 14,

1977, after police had obtained a confession,

the product of several interrogations. Ap-

pellant thereafter moved to suppress the

confession because it was involuntary. The

District Court, however, found the confes-

sion voluntary, denied the motion and set

trial in the matter. Appellant was convict-

ed of the charge and sentenced to forty

years in the Montana state prison. From

this conviction he appeals.

Al approximately 9:00 p. m. on Saturday,

June 11, 1977, police found the body of Ann

Thitxxleau in the Clark Fork River near the

STATE v. BLAKNEY

Mont.

1095

Cite as, Mont, 605 P24 1083

downtown area of Missoula, Montana. Ms.

Thibodeau had apparently been strangled

and thrown into the river, her death result-

ing from strangulation aggravated by the

ingestion of water into the lungs. On in-

vestigation police learned that Ms. Thibo-

deau spent the evening of June 10, 1977,

with appellant and several other young peo-

ple. During the evening, they drove around

Missoula in appellant's car, stopping at vari-

ous times to pick up some hidden beer, to

“park,” and to check on some parties.

As the night progressed, appellant took

his passengers home, dropping off the last

one except Ann Thibodeau shortly before

midnight. At trial, as well as when first

interviewed by the police, appellant testi-

fied he then took Ms. Thibodeau home. In

a confession made to Missoula police, how-

ever, appellant stated he and Ms. Thibodeau

parked by a bridge near the Clark Fork

River after dropping off the last of their

companions. Appellant suid he became an-

gry with Ms. Thibodeau for being unfaith-

ful to,his brother, whom she had been dat-

ing, and suddenly strangled her. Thinking

she was dead, he dragged her from his car

and slid her off the bridge into. the river,

Officers questioned appellant concerning

Ms. Thibodeau'’s death on four occasions:

Saturday, June 11, at 11:00 p. in. for ap

proximately one and one-half hours; Sun-

day, June 12, at 9:30 a. m. for approximate-

ly two and one-half hours; Monday, June

13, at 10:00 p. m. for approximately two

hours; and Tuesday, June 14, at 12:10 a. m.

for approximately one and one-half hours,

In addition to these interrogations, appel-

lant consented to a search of his car and a

polygraph examination. Officers conducted

the car search after the first interrogation

at approximately 1:00 a m. on Sunday,

June 12. The search revealed ap liant's

car had been recently cleaned. The poly-

graph examination was conducted on Mon-

day, June 13, between the secon! and third

questioning sessions. The examination in-

dicated some untruthfulness in ajjpellant’s

prior statements. Appellant confessed dur-

ing the third interview. The fourth inter-

view consisted of a taping of essentially the

same confession.

A -

Prior to cach interview, appellant was

advised of his rights and signed waivers

respecting his rights. During the inter-

views, pictures of the nude body of the

victim were exposed on the table of the

interrogation room. The interviews were

conducted with only appellant and the in-

terviewing officers present in the room.

Members of appellant's family were present

in the hall outside the interview room. Ap-

pellant was not confined between inter-

views.

Appellant was 18 years of age at the time

of the interviews, At the suppression hear-

ing, two expert witnesses testified appel-

lant had a learning disability and probably

could not understand his rights as presented

on the waiver forms used by the police.

There was additional testimony that appel-

lant had an IQ of 94, had completed the

eighth grade, had passed most of the high

school equivalency exam, had taken vo-tech

classes in Butte, and had worked in his

father's business.

Discrepancies exist as to whether appel-

lant made a request for counsel. It is

agreed that appellant brought up the sub-

ject of counsel during at least one of the

questioning sessions, The testimony con-

flicts, however, as to when appellant men-

tioned an attorney, what appellant said

about wanting an attorney, and the conduct

of the interviewers and appellant after the

mentioning of counsel.

Appellant states he requested counsel and

one was not provided. One of the « fficers

questioning appellant recalled that appel-

lant asked him if he thought he should talk

with a lawyer and the officer responded

that it was up to appellant. Both question-

ing officers agree that appellant voluntarily

resumed the interview after the mentioning

of counsel. No counsel was provided for

the appellant during the interrogation proc-

ess.

On Weilnesday, June 15, 1977, appellant

called police officers and family members to

the Missoula County jail where he was be-

ing held and repudiated the statements he

had made on the 13th and 14th, stating he

1096 Mont.

saw someone else murder Ms. Thibodeau,

At the suppression hearing and trial, appel-

lant withdrew this repudiation and re-

turned to his original story of dropping off

the victim at her home about midnight.

Appellant raises three issucs on appeal:

1. Did the District Court err in failing

to grant the motion to suppress appellant's

confession?

2. Does ‘section 46-13-301(4), MCA, re-

quiring a defendant on a motion to suppress

to prove that a confession was involuntary,

constitute a denial of due process in viola-

tion of the United States and Montana Con-

stitutions?

3. Did the State present sufficient evi-

dence during the trial to support a guilty

verdict on the charge of deliberate homi-

cide?

(1,2) To resolve the first issue present-

ed here, we must decide if the District

Court erred in finding appellant's confes-

sion voluntary and if appellant was uncon-

stitutionally denied his right to counsel. To

determine the first aspect of this issue, the

voluntariness of the confession, we must

consider the “totality of circumstances” sur-

rounding the confession with no single fact

being dispositive of the issue. State v. Gri-

mestad (1979), Mont., 598 P.2d 198, 202, 36

St.Rep. 1245, 1251; State v. Lenon (1977),

Mont., 570 P.2d 901, 906, 34 St.Rep. 1153,

1157. When, as here, a youthful defendant

questions the voluntarincss of « confession,

the circumstances the Court must consider

include:

ee 1) age of the accused: 2) edu-

cation of the accused; 3) knowledge of

the accused as to both the substance of

the charge, if any has been filed, and the

nature of his rights to consult with an

attorney and remain silent; 4) whether

the accused is held incommunicado or al-

lowed to consult with relatives, friends or

an attorney; 5) whether the accused was

interrogated before or after formal

charges had been filed; 6) methods used

in interrogation; 7) length of interroga-

tions; 8) whether vel non the accused

refused to voluntarily give statements on

A -

605 PACIFIC REPORTER, 2d SERIES

prior occasions; and 9) whether the ac-

cused has repudiated an extra judicial

statement at a later date. ine

West v. United States (5th Cir, 1968), 399

F.2d 467, 469, cert. denied, 393 U.S. 1102,

89 S.Ct. 903, 21 L.Ed.2d 795.

We should also consider the mental ca-

pacity of the defendant, Smallwood y,

Warden, Maryland Penitentiary (4th Cir,

1966), 367 F.2d 945, cert. denied, 386 U.S.

1022, 87 S.Ct. 1374, 18 L.Ed.2d 460; the

visibility of nude pictures of a murder vic.

tim during the defendant's interrogation,

People v. Roberts (1966), 3 Mich.App. 605,

143 N.W.2d 182, 185; the use of polygraph

examinations, Keiper v. Cupp (9th Cir,

1975), 509 F.2d 238, 241: a» defendant's pre-

vious experience with the criminal justice

system, United States vy, Glasgow (9th Cir.

1971), 451 F.2d 557, 558; and, a defendant's

experience in the adult world, United

States v. Hilliker (9th Cir. 1970), 436 F.2d

101, 102-03, cert. denied, 401 U.S. 958, 91

S.Ct. 987, 28 L.Ed.2d 242 and West v. Unit-

ed States, supra. These are all factors

courts have taken into account in deciding

if a young person voluntarily confessed.

One additional rule aids us in deciding

this case. We stated in Grimestad :

“. . . The issue of voluntariness of

@ confession is largely a factual determi-

nation, addressed to the discretion of the

trial court The trial court's

judgment as to voluntariness of a confes-

sion will not be reversed on appeal unless

it is clearly against the weight of the

evidence.” 598 P.2d at 202, quoted from

State v. Lenon, 570 P.2d at 906.

[3] The trial court here reviewed the

evidence and determined appellant volun-

tarily confessed. In considering almost ev-

ery one of the factors listed above as rele.

vant in determining the voluntariness of

appellant's confession, evidence exists sup-

porting the holding of the District Court.

Ayyellant was 18, legally an adult. He

had passed most of his high school equiva-

leney examination and attended vo-tech

school. Appellant's IQ is 94, within the

normal adult range. The trial judge found

that appellant demonstrated an under-

STATE v, BLAKNEY

Mont. 1097

Cite as, Moat, 605 F.2d 1003

standing of the English language during his

courtroom testimony. Appellant had

worked in his father's business. Appellant

had prior experience with the criminal jus-

tice system, having previously been advised

of his rights in connection with juvenile

matters. The four interrogation sessions

lasted only about two hours each and were

spread out over several days. Between ses-

sions, appellant went home, free to consult

with family members and move about as he

pleased. The District Court found that the

polygraph procedure did not intimidate ap-

pellant. Appellant stated at the suppres-

sion hearing that he did not pay much at-

tention to the pictures of the victim left

exposed on a table during the questioning.

Appellant repudiated his confession, placing

blame for the murder on someone else, but

later returned to his original story of drop-

ping off the victim at her home.

Although some evidence to the contrary

exists, the above facts show the decision of

the District Court does not clearly contra-

vene the weight of the evidence. We must,

therefore, affirm the District Court's ruling

on the voluntariness of appellant's confes-

sion.

[4] Speaking to the second aspect of this

issue, whether appellant was unconastitu-

tionally denied his right to counsel during

the interrogation process, the District Court

concluded:

“That the defendant never made an ef-

fective assertion of counsel and in any

event thereafter knowingly and intelli-

gently waived the presence of counsel by

spontaneously stating he did not want a

lawyer and resuming talking to the po

lice.”

This conclusion raises two questions fur con-

sideration on appeal: (1) Did appellant ef-

fectively assert his right to an attorney?

and, (2) if s0, did appellant thereafter waive

his right to counsel?

In Miranda, the Court stated:

“Prior to any questioning, the person

must be warned that he has a right to

remain silent, that any slatement{s) he

does make may be used as evidence

against him, and that he hus « right to

the presence of an attorney, either re-

tained or appointed. The defendant may

waive effectuation of these rights, pro-

vided the waiver is made voluntarily,

knowingly and intelligently. Jf, however,

he indicates in any manner and at any

stage of the process that he wishes to

consult with an attorney before speaking

there can be no questioning.” (Emphasis

added.) Miranda v. Arizona (1966), 384

U.S. 436, 444-45, 86 S.Ct. 1602, 1612, 16

L.Ed.2d 694.

Although the witnesses at the suppression

hearing gave conflicting testimony concern-

ing the language used by appellant in al-

legedly asserting his right to counsel, the

trial court found that uppellant “brought

up the subject of an attorney” twice, on the

second occasion stating, “maybe I should

have an attorney.” This language brings

appellant's assertion within the “indicates

in any manner” language set out in Miran-

da as the requirement for an effective as-

sertion of the right to counsel, Thus, the

District Court erroncously concluded that

appellant did not effectively assert his right

to counsel.

[5] We must decide, therefore, if the

District Court also erred in concluding that

appellant waived his right to counsel after

an effective assertion of the right. Al-

though the United States Supreme Court

has not yet ruled on the issuc, see Brewer v.

Williams (1977), 430 U.S. 387, 405-06, 97

S.Ct. 1232, 51 L.Ed.2d 424, several of the

circuit courts have held a defendant can

validly waive the right to counsel after

making a request for counsel. United

States v. Rodriguez-Gastelum (9th Cir.

1978), 569 F.2d 482, cert. denied, 436 U.S.

919, 98 S.Ct. 2266, 56 L.Ed.2d 760; United

States v. Hodge (5th Cir. 1973), 487 F.2d

945. We hold that this view correctly inter-

prets the situation in Montana and adopt

this rule. In so doing, we recognize that a

waiver of the right to counsel cannot be

presumed and that the State bears a heavy

burden to show waiver. North Carolina v.

Butler (1979), —-— U.S. ——, 9% S.Ct. 1756,

60 L.Ed.2d 286, 292.

1098 Mont. 605 PACIFIC REPORTER, 2d SERIES

[6,7] Given this standard and the Dis-

trict Court's findings of fact, the District

Court did not err in holding appellant

waived his right to counsel. The District

Court found that the first assertion of the

right was made on Sunday morning. After

being. advised by the police that he could

have counsel if he wished, appellant contin-

ued answering questions. Thus, appellant

voluntarily abandoned his right to counsel

at this point and unilaterally resumed the

interview without prompting by the inter-

viewing officers. The Sunday interview

terminated around noon with no incrimina-

ting statements being made by appellant.

The next interrogation session did not

begin until Monday evening. Between the

interviews more than 30 hours elapsed, in-

cluding a full business day in which appel-

lant was not detained and was free to con-

sult with family members or an attorney if

he wished. Prior to the Monday interroga-

tion, appellant again received his Miranda

warnings and signed a waiver. During the

questioning session, appellant again assert-

ed his right to counsel. With this, the

officers stopped questioning appellant and

began to leave the room. Appellant re-

sumed talking to the police and they re-

minded him he had just said he wanted an

attorney. Appellant then stated he did not

want a lawyer and the interrogation contin-

ued.

These facts—particularly the more than

30-hour time span between the first aaser-

tion of the right to counsel and any inculpa-

tory statement, the rereading of his Miran-

da warnings and the signing of a waiver

before any incriminating statement, and

the express statement by appellant that he

did not want a lawyer—represent a waiver

of the right to counsel on the part of appel-

lant. .

[8] The law on the second issue raised

by appellant is clear. Recent Montana and

United States Supreme Court decisions in-

validate section 46-13-301(4), MCA. Lego

v. Twomey (1972), 404 U.S. 477, 92 S.CL

619, 30 L.Ed.2d 618; State v. Smith (1974),

164 Mont. 334, 338, 523 P.2d 1395, 1397.

The State must prove the voluntarinvas of a

A -

confession at a suppression hearing by a

preponderance of the evidence. If the trial

court applied section 46—-13-—301(4) and re-

quired appellant to prove the confession

involuntary, it erred.

(®11) Error by the trial court cannot be

presumed but must be shown by the record.

State v, Struight (1959), 136 Mont. 255, 264-

65, 347 P.2d 482. Reviewing the record of

the suppression hearing, the trial judge

heard arguments by the prosecuting attor-

ney that, while at the trial the State must

prove voluntariness, the burden to show the

police violated appellant's rights rested on

appellant at the suppression hearing. Re-

sponding to this argument, the judge stat-

ed, “Well, it appears to me that what you

say is true. Mr. Volinkaty [appellant's at-

torney], at the trial, if they wish to intro-

duce this at trial, the burden is on the State

to prove voluntariness; howcver, this is a

motion to suppress and I think that, since it

is your motion, you should proceed at this

time.”

This record presents the possibility of two

errors by the District Court. First, the trial

judge could have erred in requiring the

appellant to go forward with the evidence.

The federal courts have considered this

question on several occasions. Speaking to

this issue in a case involving the suppres-

sion of wiretap evidence, the Fifth Circuit

Court stated:

“(b) Burdens of proof in suppression

hearings. \t is well established that the

burdens of production and persvasion

generally rest upon the movant in a sup-

pression hearing. (Citations omitted.)

Concededly, in some well-defined situa-

tions the ultimate burden of persuasion

may shift to the government upon an

initial showing of certain facts by the

defendant. For example, if a defendant

produces evidence that he was arrested or

subjected to a search without a warrant,

the burden shifts to the government to

justify the warrantless arrest or search.

[Citation omitted.) Or if a defendant

* shows that a confession was obtained

while he was under custodial interroga-

tion, the government then has the burden

A a te

STATE v. BLAKNEY

Mont.

1099

Cite as, Moat, 605 F.2d 1083

of proving that the defendant voluntarily

waived his privilege against self-incrimi-

nation even in those situations,

the defendant must first discharge his

initial burden of producing some evidence

on specific factual allegations sufficient

to make a prima facie showing of illegali-

ty.” United States v. Dela Fuente (5th

Cir. 1977), 548 F.2d 528, 533-534, cert.

denied, 431 U.S. 932, 97 S.Ct. 2640, 53

L.Ed.2d 249 and 434 U.S. 954, 98 S.Ct.

479, 54 L.Ed.2d 312.

In United States v. Crocker (10th Cir.

1975), 510 F.2d 1129, the trial court denied

appellant's motion to suppress a confession.

On appeal, the appellant contended the trial

court at the suppression hearing improperly

required her to assume the burden of proof

and of going forward with the evidence.

The Circuit Court responded to this argu-

ment, saying:

“It is fundamental on a motion to sup-

press there must be ‘a foundation in fact

for the legal result." Rogers v. Rich-

mond, 365 U.S. 534, 546, 81 S.Ct. 735, 742,

5 L.Ed.2d 760 (1961). Logic dictates that

4 pre-trial Motion to Suppress filed by an

accused docs in fact cast the burden upon

the movant to present facts necessary to

sustain his position. [Citation omitted.]”

Crocker, 510 F.2d at 1135.

The court gocs on to state:

“While the defendant must first present

* evidence in support of his motion to sup-

press which satisfies his burden of chal-

lenging the legality of the confession, we

have recognized that the Government

must then carry the countervailing bur-

den of proving a waiver of the constitu-

tional privilege against self-incrimina-

tion.” 510 F.2d at 1135.

See also United States v. Polizzi (9th Cir.

1974), 500 F.2d 856, 910, cert. denied, 419

U.S. 1120, 95 S.Ct. 802, 42 L.Bu.2d 820.

These cases indicate a trial judge can

properly require a party moving for the

suppression of evidence to initiate suppres-

sion hearing proceedings. The rationale for

such @ procedure is the requirement that

the movant establish a prima facie case that

& constitutional infringement has occurred.

A -

Once this has been accomplished, the ulti-

mate burden of proving the propriety of the

state's action shifts to the state. Thus the

Distriet Court here did not err in requiring

appellant to present his evidence first at the

suppression hearing.

Although allowable, we do not recom-

mend this procedure as standard practice at

suppression hearings. The District Courts

should employ this procedure only when

necessary to establish a prima facie case of

infringement by the State. If a prima facie

case is presente! by the party requesting

the suppression of evidence to the trial

court's satisfaction through prehearing doc-

umentation, the State should be required to

initiate the suppression hearing proceed-

ings. This procedure will clearly place the

burden of proof on the State as required by

Lego and Smith.

(12-14) The second possible error

presented here is whether there wus an

improper burden of proof put on appellant

at the suppression hearing. The above ex-

cerpt from the hearing transcript c'carly

shows the trial judge applied the incorrect

standard at the suppression hearing. After

hearing the State's argument that appellant

was required to prove the confession invol-

untary, the judge stated he thought that

what the prosecuting attorney said was

true and required appellant to proceed. As

noted above, we find that this required

appellant to assume the obligation of going

forward with the evidence. It also shifted

the burden of proof to appellant.

However, we find here that even though

the trial court's ruling did shift the burden,

the ruling can be sustained as harmless

error. The error here is federal constitu-

tional errur. Lego v. Twomey, supra;

Jackson v. Denno (1964), 378 U.S. 368, 84

S.Ct. 1774, 12 L.Ed.2d 908. While not all

errors of constitutional magnitude cai! for

reversal, “. before a federal con-

stitutional error can be held harmless, the

court must be able to declare a belicf that it

was harmicss beyond a reasonable doubt.”

Chapman v. Culifornia (1967), 386 U.S. 18,

24, 87 S.Ct. R24, RAR, 17 L.Edd.2d 705.

1100 Mont.

In determining the existence of harmless

constitutional error, the appellate court con-

sidering the question has the task of apply-

ing the harmless beyond a reasonable doubt

test. Chapman, 386 U.S, at 24, 87 S.Ct. 824;

. se also Harrington v. California (1969), 395

U.S, 250, 89 S.Ct. 1726, 23 L.Bul.2d 284:

Schneble v, Florida (1972), 405 U.S, 427, 92

S.Ct. 1056, 31 L.Ed.2d 340,

Applying this standard to the instant

case, we find the error was harmless beyond

& reasonable doubt. We are aided in our

decision by the rationale expressed in Rog-

ers v, United States (Sth Cir. 1964), 330 F.2d

535, cert. denied, 379 U.S. 916, 85 S.Ct. 265,

13 L.Ed.2d 186. Rogers is another case

holding no error exists in requiring a de-

Gy/endant to initiate suppression hearing pro-

ceedings. 330 F.2d at 542 In so holding,

the court stated:

aF The burden of producing evi-

dence is never crucial unless certain nec-

essary facts in a case are not aired. Here

all the salient facts were aired. Few

were even in dispute, The defendant,

therefore, "was not prejudiced by the or-

der in which the evidence was presented,

And the district judge allowed defend-

ant's counsel to examine all of the wit-

nesses as hostile. There is no prejudicial

errer in the record.” 330 F.2d at 543.

(Emphasis added.)

As in Rogers, the trial judge heard all the

salient facts at the suppression hearing.

The trial court heard leatimony from eleven

witnesses including appellant, appellant's

father, the officers who interviewed appel-

lant, the polygraph examiner, a clinical pay-

chologist, and a learning disabilities special.

ist, The trial judge allowed appellant's at-

torney to examine witneuses as adverse in

appellant's initial presentation, At the con-

clusion of the appellant's initial presenta-

tion, the State introduced evidence of vol-

untariness through its own witnesses.

When the State rested, the trial court gave

appellant the opportunity to present rebut

tal testimony. Throughout the proceedings,

both sides conducted extensive direet, cross,

redirect, and recroas examination of the

witnesses. In addition to the witnens Wwati-

605 PACIFIC REPORTER, 2d SERIES

mony, the trial judge had the benefit of

briefs from appellant and the State on the

voluntariness question’

After considering all this testimony and

the briefs of counsel, the trial judge found

the confession voluntary. Given the exten-

sive nature of the proceedings and the full

right of appellant to present his case on this

issue, we are convinced beyond a reasonable

doubt the trial judge would have reached

the sarne result regardless of the improper

placing of the burden of proof on Appellant

Any error thus constitutes harmless error

and does not warrant returning the case to

the trial court,

{15} Appellant's arguments concerning

the third issue lack merit, Regarding the

sufficiency of evidence to support a guilty

verdict, this Court has said:

“On appeal we examine the evidence to

determine whether the verdict is sup-

ported by substantial evidence. In doing

so, we view the evidence in the light most

favorable to the State.” State v. Mersea!

(1975), 167 Mont. 412, 415, 588 P.2d 1366,

1368,

Beyond the confession, the State present.

ed evidence that placed appellant with the

victim about three blocks from the scene of

the murder near the probable time of the

murder, Appellant could not explain his

whereabouts at the time the murder proba-

bly occurred. Appellant had told his broth-

er, “I think they're going to get me for the

murder” before the police even questioned

him about the homicide. And, appellant

had borrowed his brother's shoes the morn-

ing after the murder because his own were

wet, even though every witness who was

with appellant and the victim on the night

of the murder agreed that appellant had

not walked near any water, This evidence,

when viewed in the light most favorable to

the State, as we must do when the State

prevails at the trial level, sufficiently sup

porta appellant's conviction on the charge of

deliberate homicide.

For the foregoing reasons, we affirm the

judgment of the District Court.

HASWELL, C. J, and DALY, J., concur,

STATE v. BLAKNEY

Mont. 1101

Clie as, Mont, 605 P24 1093

SHEEHY, Justice, dissenting:

This is the kind of case that is guarantiod

to add gray hairs to an alrewly graying

judge's head, The record discloses a strong

possibility that defendant Larry Lynn Blak-

ney is guilty of deliberate homicide in the

murder of Ann Thibodeau, But the record

also discloses a strong possibility that the

confession uttered by Larry Lynn Blakney

was involuntary, was obtained with indicia

of coercion, and the District Court put the

burden of proof with respect to voluntari-

ness upon the wrong party at the suppres-

sion hearing. Reversal means further ex-

pense to the county and a possible loss of a

conviction. Affirmance means that Blak.

ney's constitutional rights must be ex-

plained away, and places our approval on

the procedure that led to the confession,

Therefore, | come down on the side of re-

versal,

The circumstances surrounding the von-

feasion need some further elaboration, The

body of Ann Thibodeau was found at ap

proximately 9:00 p, m. on Saturday, June

11, 1977 in the Clark Fork River, near

downtown Missoula. Blukney, ut the offi-

cer's request, went to the Missoula police

station at 10:30 p, m. that evening, He was

interrogated beginning at approximately

11:30 p. m. for one and one-half hours,

Following the interrogation, which was reo

cordgd, Blakney was taken to hiy home by

interrogating officers, where his car was

searched pursuant to his consent They

also were shown the interior of Blakney's

home, They broke off contact with him at

2:00 a. m. on the morning of June 12, 1977,

Arrangements were made at that time for

Blakney to come into the police station that

morning at approximately 9:45 a. m. for a

second interview,

This second interview on June 12, 1977,

lasted approximately two to two and one.

half hours, Again the interrogation was

conducted in the police interrogation room

in the presence of two police officurs, At

this interrogation arrangements were made

for Blakney to take a polygraph oxamina-

tion on the following day ata time to be

agreed upon. Although the testimony of

_——

A -

the officers is inconsistent about the mat-

Ler, it is conceded by the two officers and it

was found by the trial court that some type

of request for an attorney was made by

Blakney during the interrogation of June

12,

On Monday, June 13, 1977, Blakney went

to the police interrogation room to undergo

the polygraph examination. It was con-

ducted by a Cascade County deputy, The

examination commenced at approximately

9:15 p. m. and was conducted in the pres-

ence of four police officers, including the

polygraph examiner, Since Blakney's fa-

ther had gone on vacation the previous day,

his uncle came to the police station with

him. When the polygraph examination be-

gan, the uncle was seated at an open door

outside the interrogation room and was able

to hear the first few questions of the poly-

kraph examination, The examiner shook

his head in the negative, said something to

another police officer, who then suggested

to the uncle that he remove himself, or go

upstairs to got a soft drink or something,

The uncle did this, and when he attempted

to return to the interrogation room, found

the door to the basement, through which he

had come, lovked. He waited there until

the polygraph interrogation was completed

at which time an officer came out to the

uncle to tell him that the hoy “was confens-

ing.” During the polygraph examination,

the young defendant was seated facing the

wall, and on the table near him were spread

out parts of the police file, but particularly

a doven or wo pictures of the nude hody of

Ann Thiboxleau. When the polygraph ex-

aminer had finished his examination, he

removed the chart from the machine, and

placed the defendant behind him, showed to

the defendant, the polygraph chart record.

ing of a “known lie", The examiner then

went on to state hy showing other “highs”

in the chart, that Hlakney was lying. Blak.

ney testified that the polygraph examiner

said “well, I've got some daughters of my

own, T woukln't want the same thing to

happen to them as what happened to Ann.”

Hlukney also testified that the examiner

told him that the examiner would take the

polygraph text and flash it up on a big

1102 | Mont.

screen in front of the jury and would show

the jury the places where the examiner

maintained that Blakney lied.

The testimony of the polygraph examiner

in this regard is as follows:

"Q. After Larry came over and you re-

viewed the results, did you make any

statements to Larry at that time? A.

Yes, I did. I told him I thought it would

probably be best if he leveled with the

authorities and told them what happened,

“Q. Are you married? A. Yes,

“Q. Do you have any children? A. Yes.

“Q. And are they boys or girls? A. |

have two boys, one 19 and one 16,

“Q. No girls? A. No.

“Q. Did you make a statement to Larry

at that time that you had a couple of

daughters and you didn’t want this hap-

pening to them? A. Okay, To clarify

what I am talking about—and talking

about marriage—on my first marriage, |

have two sons by my first marriage, On

my secbnd marriage, | have two daugh-

ters, stepdaughters, and that's true.

"Q. Did you make a statement to that

effect, that you knew he was lying and

that you didn't want this to happen to

your daughters? A, I'm not going to

say that I made that statement, I hon-

estly don't remember,

“Q. Can you honestly say that you did

not make the statement? A. No. I

wouldn't honestly say that,

“Q. Did you make any other statements

to him? A. Yes, I did. Before we first

started the exam, when we went over the

advisement of rights, and also the waiver

of rights on the bottom, made it very

plain to Larry, and asked him if he knew

that this was being done voluntarily on

his part, and that the polygraph results

cannot be used against him in the State

of Montana.

“Q. Did you make a statement to Larry

after the teat was concluded of something

to the effect that you were going to put

the results of the test on a screen and

have it shown to a jury and he would be

found guilty of deliberate homicide? A.

No.

A -

605 PACIFIC REPORTER, 2d SERIES

“Q. Did you make any statement that

was similar to that? A. To the best of

my knowledge, no.

“Q. Did you make any other statement,

other than possibly one about the daugh-

ters, concerning either the use of the

results or Larry's involvement in the

crime? A. Yes, I probably did, because

in most cases, I'll tell you them that, if it

is stipulated that the results can be used,

but only if his attorney and the prosecut-

ing attorneys will stipulate it, that the

results can be used,”

Immediately following this, the two offi-

cers who originally interrogated Blukney

came buck into the room, Blakney testified

that they told him they knew that he did it

and that he ought to tell everything, At

this point, Blakney testified that he again

requested an attorney, The officers testi-

fied that he made such a request but that

then he went on talking and 80 nothing

further was done about it, Blakney testi-

fied that he assumed that because they

continued interrogating him that he was

not going to get an attorney at that Lime,

At this point, according to the testimony

of the officers, Blakney, who was concerned

about what a confession would mean to

members of his family, was assured that it

was a good thing for him to do and that the

family would understand, With that, Blak-

ney confessed to the murder, Later he

gave a further confession Uhat was taped or

recorded,

The evidence concerning the actual con-

feasion reveals a very emotional scene, It

is this evidence and testimony that leads me

to conclude that Blakney probably coinmit-

ted the murder, But the testimony in evi-

dence leading up to the confession also

forces me to conclude that his constitutional

rights against sclf-incrimination and his

right to counsel were overridden,

Of course, if the first real confession was

unconstitutionally brought about, then the

second confession is likewise inadmissible.

In any event, in consiklering the voluntart

neas of a confession, its truth or falsity le

not to be considered. State v. White (1965),

STATE v. BLAKNEY Mont. 1103

te a8, Mont, 605 P24 1083

146 Mont. 226, 405 P.2d 761; cert. den. 384

U.S. 1023, 86 S.Ct. 1955, 16 L.Ed.2d 1026.

Where a confession is given in the absence

of counsel, the underlying test of admissi-

bility of confession is whether it is given

voluntarily, and with the defendant's free

will, State v. Lucero (1968), 151 Mont. 531,

445 P.2d 731; State v. Noble (1963), 142

Mont. 284, 394 P.2d 504.

The majority opinion tacitly concedes

that the evidence respecting voluntariness

is close, and that there is evidence which

would support either side of the issue. It is

further clear from the record, that the Dis-

trict Court assumed that it was bound by

the provisions of section 46-15-301(4),

MCA, that the “burden of proving that a

confession or admission was involuntary

shall be on the defendant.” This is the first

case where the Montana Supreme Court

directly invalidates that portion of section

46-13-301(4), MCA. This Court had, how-

ever, in State v. Smith (1974), 164 Mont.

334, 338, 523 P.2d 1395, stated that the rule

in Montana was that the state must prove

the voluntariness of a confession by a pre-

ponderance of the evidence. This rule was

also enunciated in State v. LaFreniere

(1973), 163 Mont. 21, 27, 515 P.2d 76,

The majority opinion conchutes that the

District Court did in fact apply an incorrect

standard by placing the burden of proof

upon Blakney to prove the involuntariness

of his confession. Having s0 concluded, the

majority goes further and determines that

the mistake of the District Court constitut-

ed harmless error beyond a reasonable

doubt. On that point, | must disassociate

myself from the majority.

I cannot agree with the majority that the

evidence of voluntariness was harmless he-

yond a reasonable doubt. | am not mental-

ly agile enough to make that aylloyistic

leap. In my opinion, when the District

Court concluded that Hiakney did not curry

his burden of proof, a burden he did not

have under @ correct version of the law, the

Distriet Court committed. error beyond! a

reasonable doubt.

To clarify my position, I find no particu-

lar significance or error in the fact that

Blakney was required to put his evidence on

first at the suppression hearing. The cor-

rect procedure at suppression hearings calls

for the defendant to put his case on first, at

least to establish a prima facie case of in-

voluntariness, because otherwise his motion

would be defeated if no evidence were jriv-

en on cither side, Once the prima facie

case has been established the burden of

persuasion shifts to the State to prove the

voluntary character of the confession.

I also want to make clear that I have

stated the rule in Montana that voluntari-

ness must be proved by the State by a

preponderance of the evidence, only because

the rule is starc decisis. | disagree with the

holding of this Court in State v. LaFreni-

ere, supra, which refused to adopt the stan-

dard of proof respecting voluntariness as

beyond a reasonable doubt. Our court was

following a decision in Lego v. Twomey

(1972), 404 U.S. 477, 92 S.Ct. 619, 30 L.Bd.2d

618, 626, 627. There, the United States

Supreme Court decided that proof beyond a

reasonable doubt of the voluntariness of a

confession was not constitutionally re-

quired. When the logic of the nine men in

Washington in reaching a decision docs not

hold water, and we are not bound by the

lecision, we should not follow it blindly.

The United States Supreme Court reached

the preponderance rule in such cases upon

the reasoning that “the purpose that a vol-

untariness hearing is designed to serve has

nothing whatever to do with improving the

reliability of jury verdicts " 404

U.S, at 486, 92 S.Ct. at 625. That reasoning

is demonstrably wrong; it is preciscly to

assure the reliability of the jury verdict

that suppression hearings are permitted

In fact, before the jury is permit'ed to hear

a confession, the trial court is first required

to determine that the confession is in fact

voluntary. Jackson v. Denno (1964), 378

US, 368, 84 S.C 1774, 12 LB Qt 908. In

Montana, hy statute, the issue of the adinis-

sibility of the confession is not to be sub-

mitted to the jury. Section 46-13-301(5),

MCA. When one considers that every ck-

ment of the crime must be proved beyond a

reasonable doubt (section 26-1-403(2),

1104 Mont.

MCA) the catastrophic effect of permitting

& jury to hear a confession of the defend-

ant, the admissibility of which is deter-

mined on a basis less than beyond a reason-

able doubt, cannot be debated. California

has moved away from the United States

Supreme Court in this regard, and has held

that the privilege against self-incrimination

is 80 fundamental, and so highly regarded

judicially, that the reasonable doubt stan-

dard presents the greatest chance of ex-

cluding involuntary confessions. People vy.

Jimenes (1978), 21 Cal.3d 595, 147 Cal. Rptr.

172, 580 P.2d 672.

Persuasive to the California court was

the fact that once a confession is deter-

mined by the trial court to be voluntary and

therefore adminsible, the jury does not re-

determine the voluntariness issue, and the

appellate court is bound to accept the trial

court's resolution of conflicting evidence,

unless it is so improbable as to be entirely

unworthy of belief. Jimenez, supra, 147

Cal.Rptr, at 178, 580 P.2d at 678. The same

situation exists in Montana. Under our

code section above cited, the jury does not

determine the issue of adminsibility. On

appeal this Court has held invariably that

the District Court's decision as to admissi-

bility is practically inviolate. State y,

Smith (1974), 164 Mont. 334, 523 P.2d 1395;

State v. Chappell (1967), 149 Mont. 114, 423

,P.2d 47; State v, White (1965), 146 Mont.

226, 405 P.2d 761. Again, it offends my

syllogistic power to find consistency in a

rule which requires proof of clements of a

crime beyond a reasonable doubt but which

allows a confeasion, against the defendant's

constitutional right of no self-incrimination,

to be proved by a lesser standard,

Finally, it is my conclusion that Blakney

was denied his Miranda rights with respect

to counsel, The majority opinion finds that

he effectively asserted his right but that he

waived the same. It is true that the United

States Supreme Court has held that the

State bears a “heavy burden” to show waiv-

er of rigat to counsel. North Carvlina vy,

Butler (1979), 441 U.S. 369, 99 S.Ct. 1755,

GO L.Ed.2d 286,292 I am frank to stale

that I don't know what a “heavy burden” is

but I think it should be nothing less than

A -

605 PACIFIC REPORTER, 24 SERIES

beyond a reasonable doubt. Here again

that standard has not been met in this case.

I would reverse and remand, at least for

& proper hearing as to the voluntariness of

the confession.

SHEA, Justice, dissenting:

I would reverse the conviction. I cannot

in good conscience abide by the bald conclu-

sion of the trial court after a hearing on a

motion to suppress, that the confession was

voluntary and that defendant was not de-

nied his right to counsel.

I agree with the factual recitation and

conclusions reached by Justice Sheehy in his

dissent, although I am not convinced at this

time that we should adopt the California

standard that the State must prove beyond

& reasonable doubt that a confession is vol-

untury before it can be introduced against

him at trial. People v. Jimenez (1978), 2)

Cal.3d 595, 147 Cal.Rptr. 172, 580 P.2d 672.

I am not convinced, on the other hand, that

the present preponderance of the evidence

should be the proper standard. Rather, I

believe that the State should be required to

prove by clear and convincing evidence that

the defendant's confession was voluntary.

The standard of beyond a reasonable doubt

is Loo stern, and the standard of preponder-

ance of the evidence is too elusive or vapo-

rous. It is too flexible a standard by which

to judge something so fundamental as a

constitutional right.

Justice Sheehy dovs not agree, further-

more, that it was harmless error beyond a

reasonable doubt to require the defendant

to prove the involuntariness of the confes-

sion. Nor do I. Should a defendant chal-

lenge the voluntariness of his confession, it

is his duty to raise the issue by an appropri-

ale motion to suppress with specific oonten-

tions; but once those allegations are made

it is the duty of the State to proceet first

with its case to prove that the confession

was voluntary, Only if the State establish-

¢s & prima facie case of voluntariness by the

standard of clear and convincing evidence

should the defendant be required to come

forwant with his own evidence disputing

STATE

Cie aa, Mos.

the State's claim. That was not done here,

and regardless of the standard used, it is

clear that the trial court in effect placed

the burden on the defendant to prove that

the confession, was involuntary and to prove

that he was denied his right to counsel,

The record demonstrates that the trial

court was under the mistaken assumption it

was the defendant's duty to prove involun-

tariness of the confession and nonwaiver of

counsel rather than the duty of the State to

prove a voluntary confession and waiver of

counsel,

In setting forth the wide latitude to be

given a trial court in assessing and weigh-

ing the evidence, the majority refers to

Grimestad where we simply repeuted the

time worn rule which applies to Virtually all

factual determinations by a trial court.

The majority then proceeds to apply Gri-

mestad to this case by stating:

“The trial court here reviewed the evi-

dence and determined appellant voluntar-

ily confessed. In considering almost ev-

ery one of the factors listed above as

relevant in determining the voluntariness

of appellant's confession, evidence exists

Aupporting the holding of the District

Court.”

I do not dispute that evidence exists sup

porting the holding of the trial court, but if

* standard other than the virtually mean-

ingless one of preponderance of the evi-

dence (in the context of this casc) were

®pplied, the trial court would have been

required to find that the State did not

prove the confession voluntary and a waiver

of counsel by clear and convincing evidence.

The majority then proceeds to discuss the

evidence as to cach of the factors. The

essential problem is, however, that another

rial judge, if he was s0 inclined (let us say

if he had philosophical leaningy different

then those of the trial judge concerning the

Fight to counsel and obtaining confessions),

eould have taken the opposite position, and

soncluded, with adequate support in the

record, that the State did not prove that the

confession was voluntary and that the State

did not prove that defendant waived. his

Fight to counsel. This decision of the trial

008 P d—24

A -

BLAKNEY

Mont 1105

005 F.2d 1083

court would have looked just as good in

print, although not nearly as well accepted

by the public,

Viewed in the abstract, this deference

given to trial court decisions on the facts is

nice-sounding; it gives the distinct impres-

sion that the appellate court is not med-

dling in the factual determinations of the

trial court. I would also like to believe that

we could, with full assurance, give this kind

of deference to the trial court and its fact-

finding functions. “We refer to this rul:

constantly when we uphold a decision of the

trial court as to its factual determinations.

Aside from the improper stan:lard applied

in this case (it should be at least by clear

and convincing evidence), the problem in

this case is in applying this rule of defer-

ence to a situation where there is no indica-

tion that the trial court listened carefully to

the evidence, carefully evaluated the evi-

dence, and then came to the proper convlu-

sions by a cureful application of the law to

the facts as it perceived them to be. We

are giving only lip service to one's constitu-

_ tional rights if we do not require this of

trial courts in reviewing their rulings on

factual questions relating to alleged consti-

tutional violations.

How do we know, for example, that in

this case after the motion to suppress was

taken under advisement, if the trial court

took five minutes in considering the case

before reaching its decision, or whether it

took fifteen hours in considering the case

before it reached its decision? This is not

necessurily to say that a five minute consid-

eration would automatically be inadequate

or that a fifteen hour consideration would

be adequate, But, it can be safely stated

that, reguriless of the decision, if one knew

the trial court considered the case for fif-

wen hours before reaching its decision, it

would at least indicate that it had carefully

considered the case,

It goes without saying that when this

Court reviews decisions of a trial court, it is

helpful that we know how the trial court

perceived the facts if it is making a factual

determination, and how it applied the law

to the facts. It is most important when the

1106 Mont.

issue involves a claimed violation of a fun-

damental right such as is involved here.

Unfortunately, it is more often the case

than not, that this Court does not réceive

any meaningful insight as to how and why

a trial court reached a decision. The gener-

al rule seemingly applied by the trial courts

is that the less it says about the facts, and

how it applied the law to the facts, the

better its chance will be that its decision

will be upheld on appeal. That situation

exista in this case, but it is much more

serious. Here, the only findings of fact and

conclusions of law involved, are those pre-

pared by the County Attorney after the

trial court had reached its decision, and

which were then given to the trial court, to

sign. We perhaps get some insight as to

what the prosecutor perceived the facts to

be and the appropriate conclusions to draw

from those facts, but it adds absolutely

nothing to the legitimacy of the trial court's

decision.

Had it not been for the after-the-decision

suggestion of a law school intern then

working for the Missoula County Attorney,

there would not have been any findings and

conclusions entered in this case. This im-

portant revelation was first unearthed dur-

ing thé oral arguments before this Court.

The prosecutor explained the circumstances.

This Court was questioning the prosecu-

tor as to whether the trial court had en-

tered a memorandum in support of its deci-

sion or had entered findings of fact and

‘conclusions of law. In reply, the prosecutor

revealed that after the trial court had taken

the suppression motion under advisement, it

later notified the County Attorney's office

that it had entered an order denying the

defendant's motion to suppress, or was

about to enter such an order. It was then

that the law student suggested to the prose-

cutor that it would be a good idea if the

prosecutor presented the trial court with

findings and conclusions in support of its

order, The prosecutor agreed that this was

& wise suggestion and, accordingly, prepar-

ed findings and conclusions and presented

them to the trial court for signature. The

trial court adopted verbatim the findings

and conclusions; indeed, the order in which

605 PACIFIC REPORTER, 2d SERIES

the findings and conclusions appear is ex-

actly the same document presented by the

prosecutor, Thus, the only findings and

conclusions before this Court for review are

those prepared by and tailored by the prose-

culor,

The trial court had not requested pro-

posed findings and conclusions from either

side. ‘Presumably, therefore, if the trial

court did so at all, it was going to prepare

and enter its own. At least the defendant

would naturally believe this being that the

trial court requested no findings or conclu-

sions from either side. Counsel for defend-

ant at the hearing on the motion to sup-

press is not the same counsel as argued this

appeal, and | imagine it will come as quite a

revelation to him as to the background lead-

ing up to the tailored findings and conclu-

sions signed by the trial court.

The majority, of course, has carried the

day, but I would not give one ounce of

weight to findings and conclusions prepar-

ed, presented, and signed in this manner.

To conclude, as the majority has, that all

this deference should be given to the deci-

sion of the trial court in listening to, weigh-

ing and evaluation of the evidence, is an

exhultation of form over substance in the

highest degree.

Defendant did not have his fair day in

court on the motion to suppress because of

the trial court's erroncous ruling placing

the burden on the defendant. This error

was compounded by the strange devision-

making process used in this case. Where

the findings were tailored by the prosecutor

after the decision was made, and with no

opportunity for the defendant w partici-

pate, how can anyone in good conscience

believe that the trial court fairly received

and evaluated the evidence and applied the

law in a fair and even-handed manner’

Assuming that the revelations of the

prosceutor did not come to light during oral

arguments, and that this Court believet

that the findings and conclusions were

those of the trial court alone, if we had a

standard of review of questions of this na-

ture requiring the State to prove by clear

1107 mont. 605 PACIFIC REPORTER, 2d SERIES

and convincing evidence rather than by the

preponderance of the evidence, the evidence

would have required this Court to reverse

the District Court. By not adopting a more

stringent standard, we are only encourag-

ing trial courts to be as vague as possible in

reaching their decisions on questions involv-

ing fundamental constitutional rights.

A- 15

IN THE SUPREME COURT OF THE STATE OF MONTANA

No. 14534

STATE OF MONTANA,

Plaintiff and Respondent,

vs.

LARRY LYNN BLAKNEY,

Defendant and Appellant.

ORDER

PER CURIAM:

The petition for rehearing of defendant and appellant

is denied.

DATED this loth aay of January, 1980.

Chief Justice

Gg A SRE OR =.

Pil Justices

Mr. Justice Sheehy concurs in the denial of rehearing

although he does not agree with the decision itself as expressed

in the opinion herein.

Mr. Justice Daniel J. Shea would grant a rehearing.

FILED

VI 9550

A - 16 Sem a Kearneg

CLEA OF SUPREME COURT

STAY OF TAUWTANA

oo oN oO ao ®t &@ wD Be

ee ee ee ee ee eee ee

"-— 2 OO Ss £2 ae 6 8 & Ss

IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT or

THE STATE OF MONTANA, IN AND FOR THE COUNTY OF -MISSOULA.

Cause No. 5067 /4 4

STATE, OF MONTANA, FILED NOV211977

Plaintife, LEA P. LaFRINIERE, Clerk

! ay Lriner (). Pe

vs. a

LARRY LYNN BLAKNEY,

Defendant, |

FINDINGS OF FACT; CONCLUSIONS OF LAW ;

AND ORDER DENYING MOTIONS TO SUPPRESS

EVIDENCE AND FOR CHANGE OF VENUE.

The defendant has filed a Motion to Suppress certain

evidence and for a Change of Venue. A hearing on the Motion

to Suppress was commenced on November 1, 1977 and continued

thereafter from time to time until November 15, 1977. at all

times the defendant was personally present and represented

by his counsel, Richard Volinkaty and Arthur B. Harr, with

the State being represented by Missoula County Attorney Robert

L. Deschamps III. The Court now being fully informed, makes

the following:

FINDINGS OF FACT

: de That. the defendant was interviewed by the police

three times with the last interview being preceeded by a poly-

graph examination. The first interview began at 11:23 p.m,

on June 11, 1977 and finished about 12:56 a.m. on June 12;

the second interview began at 9:51 a.m. on June 12 and ended

sometime between noon and 1:00 P-m.; the third and final in-

terview began at 9:20 P-m. on June 13 and finished around 10:45

P-m. on the same date.

2. That the defendant always had a close relative either |

with him or nearby during each of his interviews with the police,

APPENDIX B - 1

@ 7-02

and on several occasions during breaks in the interviews, the

de fendant Privately consulted with these relatives.

3. That between each interview the defendant was allowed

to return home, with the time for the next interview session

being mutually agreed upon by the defendant and the interviewing

officers,

4. That the defendant was thoroughly instructed on his

"Miranda" rights prior to each interview and on each occasion,

after having any questions answered, he acknowledged he under-

stood his rights and Signed a written waiver of his rights.

5. That the defendant has an I.Q. of 94; has attended

high school and a vocational technical center; has passed four-

fifths of the grade equivalency diploma (G.E.D.) examination;

and has demonstrated an adequate adult command of the English

language during police interviews and in his courtroom testimony.

6. That a tape recording of the defendant's polygraph

examination clearly indicates that the defendant was not threat-

ened or intimidated by the procedures used,

7. That on two occasions the defendant brought up the

Subject of an attorney. The first occasion was during the

June 12 interview when the defendant asked the police if they

thought he should get an attorney, to which the police responded

that this decision was up to him. After receiving this advice

the defendant voluntarily resumed talking to the police.

The second occasion was after the POlygraph examination

on June 13 when the defendant stated "Maybe I should have an

attorney". With this, the Police stopped talking to the de-

fendant and began to leave the room, but before they were able

to leave the defendant resumed talking to them. at this point,

the defendant was reminded that he had Just indicated he wanted

3] 2" attorney, to which the defendant responded that he did not

# a + rt: a a sammy +. —

gant a lawyer. With this the interview continued,

8. That the defendant was not in police custody for

a day and one-half between his first mention of an attorney

and his next interview, but during this time made no effort

to secure or consult with an attorney,

9. That no facts have been offered showing actual prej-

udice in the community against the defendant. .

From the foregoing findings of fact, the Cours now makes

its;

CONCLUSIONS OF LAW

1. That the defendant was competent to understand his

constitutional rights and intelligently and knowingly waived

them,

2. That the statements made by the defenant were vol-

untary and were therefore not gained in violation of his con-

stitutional rights.

3. That the defendant never made an effective assertion

of counsel and in any event thereafter knowingly and intelligently

waived the presence of counsel by Spontaneously Stating he

did not want a lawyer and resuming talking to the police,

4. That the court cannot determine that there is ep

actual prejudice in the community against the defendant thereby

recluding him from having a fair trial.

From the foregoing findings of fact and conclusions of :

law, the court now orders as follows:

l. The defendant's Motion to Suppress is denied.

2. The defendant's Motion for Change of Venue is denied,

subject to being renewed at the time of trial should the jury

election process reveal actual Prejudice against the defendant

_——_—< —— —- —_- — <a ee

co ont O@ oO fF BS WD KS

Se eesgeseeet ee &e ee we ee ee ee ee

_—— = eee PSS ECS ESTEE SES Be Ss

Precluding him from

having a fair trial in Missoula County.

Done this 2/ — aay of November, 1977,

21-1/87

Lf!

Disxgfict Judge

REVISED CODES OF MONTANA, 1947

95-1805. Motion to suppress confession or admission. (a) A defend-

ant may move to suppress as evidence any confession or admission given

by him on the ground that it was not voluntary.

(b) The motion shall be made before the trial unless for good cause

shown the court shall otherwise direct.

(c¢) The defendant shall give at least ten (10) days’ notice of such

motion to the attorney prosecuting or such other time as the court may

direct. The defendant shall serve a copy of the notice and motion upon

the attorney prosecuting.

(d) The motion shall be in writing and state facts showing wherein

the confession or admission was involuntary.

(e) If the allegations of the motion state facts which if true, show

that the confession or admission was not voluntarily made the court shall

conduct a hearing into the merits of the motion.

(f) The burden of proving that a confession or admission was in-

voluntary shall be on the defendant.

(g) The issue of the admissibility of the confession or admission shall

not be submitted to the jury. If the confession or admission is determined

to be admissible the circumstances surrounding the making of the con-

fession or admission may be submitted to the jury as bearing upon the

credibility or the weight to be given to the confession or admission.

(h) If the motion is granted the confession or admission shall not be

admissible in evidence against the movant at the trial of the case.

History: Ba. 06-1806 by See. 1, Oh. 196,

x. 1967.

APPENDIX C - 1

MONTANA CODE ANNOTATED

46-13-301. Motion to suppress confession or admission. (1) A

defendant may move to suppress as evidence any confession or admission

given by him on the ground that it was not voluntary. The motion shall be

in writing and state facts showing wherein the confession or admission was

involuntary.

(2) The motion shall be made before the trial unless for good cause

shown the court shall otherwise direct.

(3) The defendant shall give at least 10 days’ notice of such motion to the

attorney prosecuting or such other time as the court may direct. The defen-

dant shall serve a copy of the notice and motion upon the attorney prosecut-

ing.

(4) If the allegations of the motion state facts which, if true, show that

the confession or admission was not voluntarily made, the court shall conduct

a hearing into the merits of the motion. The burden of proving that a confes-

sion or admission was involuntary shall be on the defendant.

(5) The issue of the admissibility of the confession or admission shall not

be submitted to the jury. If the confession or admission is determined to be

admissible, the circumstances surrounding the making of the confession or

admission may be submitted to the jury as bearing upon the credibility or

the weight to be given to the confession or admission.

(6) If the motion is granted, the confession or admission shall not be

admissible in evidence against the movant at the trial of the case.

History: En. 95-1805 by Sec. 1, Ch. 196, L. 1967; R.C.M. 1947, 95-1805.

AMENDMENTS

TO THE

CONSTITUTION OF THE UNITED STATES

AMENDMENT 5

No person shall be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a grand jury, except in

cases arising in the land or naval forces, or in the militia, when in actual

service in time of war or public danger, nor shall any person be subject for

the same offense to be twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process of law ; nor shall

private property be taken for public use without just compensation.

AMENDMENT 6

In all criminal prosecutions the accused shall enjoy the right toa speedy

and public trial, by an impartial jury of the state and district wherein the

crime shal] have been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and cause of the ac.

cusation; to be confronted with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his favor, and to have the

assistance of counsel for his defense.

AMENDMENT 14

1. All persons born or naturalized in the United States, and subject to

the jurisdiction thereof, are citizens of the United States and of the state

wherein they reside. No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor

shall any state deprive any person of life, liberty, or property, without due

process of law, nor deny to any person within its jurisdiction the equal

protection of the laws.

2. Representatives shall be apportioned among the several states accord-

ing to their respective numbers, counting the whole number of persons in

each state, including Indians not taxed. But when the right to vote at any

election for the choice of electors for president and vice-president of the

United States, representatives in congress, the executive and judicial officers

of a state, or the members of the legislature thereof, is denied to any of

the male inhabitants of such state, being twenty-one years of age, and

citizens of the United States, or in any way abridged, except for participa.

, tion in rebellion or other crime, the basis of representation therein shall be

“ reduced in the proportion which the number of such male citizens sball

“bear to the whole number of male citizens twenty-one years of age in such

state.

3. No person sball be a senator or representative in congress, or elector

of president and vice-president, or hold any office, civil or military, under

the United States, or under any state, who, having previously taken an oath

as a member of congress, or as an officer of the United States, or as a

member of any state legislature, or as an executive or judicial officer of any

state, to support the Constitution of the United States, shall have engaged

in insurrection or rebellion against the same, or given aid or comfort to the

enemies thereof. But congress may, by a vote of two-thirds of each house,

remove such disability.

4. The validity of the public debt of the United States, authorized by

law, including debts incurred for payment of pensions and bounties for

services in suppressing insurrection or rebellion, shall not be questioned.

But neither the United States nor any state shall assume or pay any debt

or obligation incurred in aid of insurrection or rebellion against the United

States, or any claim for the loss or emancipation of any slave, but all such

debts, obligations, and claims sball be held illegal and void.

5. The congress shall have power to enforce, by appropriate legislation,

the provisions of this article.

CONSTITUTION OF MONTANA

ARTICLE II

Section 17. Due process of law. No person shall be deprived of life,

liberty, or property without due process of law.

Section 23. Detention. No person shall be imprisoned for the purpose

of securing his testimony in any criminal proceeding longer than may be

necessary in order to take his deposition. If he can give security for his

appearance at the time of trial, he shall be discharged upon giving the same;

if he cannot give security, his deposition shall be taken in the manner pro-

vided by law, and in the presence of the accused and his counsel, or without

their presence, if they shall fail to attend the examination after reasonable

notice of the time and place thereof.

Section 24. Rights of the accused. In all criminal prosecutions the

accused shall have the right to appear and defend in person and by counsel;

to demand the nature and cause of the accusation; to meet the witnesses

against him face to face; to have process to compel the attendance of wit-

nesses in his behalf, and a speedy public trial by an impartial jury of the

county or district in which the offense is alleged to have been committed,

subject to the right of the state to have a change of venue for any of the

causes for which the defendant may obtain the same.

Section 25. Self-incrimination and double jeopardy. No person

shall be compelled to testify against himself in a criminal proceeding. No

person shall be again put in jeopardy for the same offense previously tried

in any jurisdiction.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.