Summary 2008 WY 83

Summary of Decision issued July 16, 2008

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Case Name: Hicks v. State

Citation: 2008 WY 83

Docket Number: S-07-0086

Appeal from the District Court of Campbell County, Honorable Michael N. Deegan, Judge

Representing Appellant (Defendant): Sylvia Lee Hackl of Cheyenne, Wyoming;* Michael H. Reese of Michael Henry Reese,** Cheyenne, Wyoming [*Order Granting Motion to Withdraw entered March 13, 2008. **Entry of Appearance entered March 13, 2008].

Representing Appellee (Plaintiff): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Assistant Attorney General.

Date of Decision: July 16, 2008

Appellant was tried on charges relating to two homicides that occurred in Gillette, Wyoming, in the fall of 2005. He was convicted on one count of first degree murder, and on two counts of conspiracy to commit murder. He was acquitted on another count of first degree murder. He was sentenced to three consecutive terms of life imprisonment without the possibility of parole.

Issues: Whether the district court erred in denying Appellant's motions to suppress his post-arrest statements made to law enforcement. Whether Appellant is entitled to a new trial because the State suppressed exculpatory evidence in violation of his right to due process.

Holdings: Under Article 1, §§ 6 and 11 of the Wyoming Constitution, as under the Fifth and Fourteenth Amendments to the United States Constitution, a defendant is deprived of the right to due process of law if an involuntary statement is admitted at his trial. The State has the burden of proving by a preponderance of the evidence, under the totality of the circumstances, that a confession, admission, or statement was given voluntarily. Appellant accurately points out that he did not sign any written acknowledgements or waivers of his Miranda rights. None of his statements to the investigator were recorded, although video and audio recording equipment was available at the time. After preparing written reports, the investigator destroyed any notes he had made during the meetings with Appellant. Thus, the State presented no documentary evidence that Appellant's statements were voluntary. Appellant asserts that the investigator's testimony, without documentary support, was insufficient to sustain the State's burden of proving by a preponderance of the evidence that the statements were voluntary.

It may well be that a written waiver of Miranda rights "constitutes 'better' evidence" than oral testimony alone. However, Appellant has cited no cases, and we have found none, holding that the State is required to present written evidence to prove that a defendant's statements to law enforcement officials were voluntary. To the contrary, the State may satisfy its burden with recording or witness evidence, and there is no requirement that interviews and interrogations must be electronically recorded. In Appellant's case, the investigator provided clear and unequivocal testimony, which was thoroughly tested through cross examination. This testimony, if believed by the district court, was sufficient evidence for the State to meet its burden of proving that Appellant's statements were voluntary.

The district court did believe the testimony, and found that Appellant had been advised of his Miranda rights at least three of the four times he talked to law enforcement officials on the first day after his arrest. The record of the investigator's testimony supports this finding, and it cannot be concluded that it is clearly erroneous. The district court also correctly concluded that satisfying Miranda does not resolve the question of voluntariness, because the State must further prove that the statements were voluntary, that is, that they resulted from free and deliberate choice rather than intimidation, coercion, or deception. On this question, the district court found that Appellant had initiated each of the conversations, and that there was a complete absence of evidence of threats or promises from any source surrounding the interrogation. Again, these factual findings are supported by the record and are not clearly erroneous. Based on these facts, the district court's legal conclusion that the statements were in all respects voluntary was correct.

Appellant's statements to the investigator on the second day after his arrest are subject to additional analysis, because they were made after he invoked his right to counsel. When a defendant asserts his right to counsel, any subsequent waiver of the right to counsel during police-initiated interrogation is invalid. This rule does not apply, however, when the accused himself initiates further communication. The burden is on the State to prove that the defendant initiated the contact, and that the waiver of his right to counsel was knowing and voluntary. In the present action, the investigator's testimony is clear that Appellant asked to see him soon after the initial appearance in the circuit court. The investigator again advised Appellant of his Miranda rights. The investigator reminded Appellant that he had asked for an attorney, and actually discouraged Appellant from talking to him again. Nevertheless, Appellant said that he still wanted to talk to the investigator. This evidence fully supports the district court's findings that these communications were initiated by Appellant, and while he had previously invoked his right to counsel, he knowingly and voluntarily waived that right. The district court's findings of fact are not clearly erroneous, and its conclusions of law are correct.

The denial of Appellant's motions to suppress evidence of his statements to the investigator are affirmed.

It is a violation of due process for the prosecution to suppress evidence that is favorable to a defendant, and material to the defendant's guilt or punishment. To establish a violation, Appellant has the burden of demonstrating that the evidence was favorable, that it was suppressed, and that it was material. The district court ruled that the evidence was favorable to Appellant, because it could have been used to impeach one of the main witnesses against Appellant. The State does not contest this ruling. However, the district court wrote that it was not entirely convinced that the evidence had been suppressed. It noted, on the one hand, that evidence is not suppressed if the defendant either knew or should have known of the essential facts permitting him to take advantage of any exculpatory evidence and that Appellant had enjoyed unfettered access to the witness whose testimony is in question and his counsel could have questioned him. On the other hand, the district court noted that the State has presented no authority to suggest that the content of a witness' interview with law enforcement officers is equally available to a defendant when the defendant is acquainted with that witness. Absent such an argument, this interview appears to be suppressed. To resolve this uncertainty, the district court in effect gave Appellant the benefit of the doubt, and assumed that the State had suppressed the statements. The district court concluded, however, that the evidence was not material. Reviewing the record as a whole, the court concludes there is not a reasonable probability the result of the proceeding (guilty verdicts on three of four counts; life without parole as punishment on the two capital counts) would have been different had the suppressed statement been disclosed to the Defendant in a timely manner. Nor did its non-disclosure to the Defendant undermine confidence in the outcome of the trial in either the guilt or penalty phases.

The district court's denial of Appellant's motion to suppress evidence of his statements to law enforcement officials following his arrest, and of his motion for a new trial on the grounds that exculpatory evidence was improperly suppressed is affirmed. Therefore the district court's conviction and sentencing of Appellant is affirmed in all respects.

J. Burke delivered the opinion for the court.