State of Utah v. Neil

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Dennis K. Neil,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990142-CA

F I L E D
February 7, 2002 2002 UT App 32 -----

Fourth District, Provo Department
The Honorable Ray M. Harding, Sr.

Attorneys:
Margaret P. Lindsay, Provo, for Appellant
Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Thorne.
THORNE, Judge:

Appellant Dennis K. Neil appeals from his convictions of two counts of forcible sexual abuse, each a second degree felony, and one count of attempted forcible sexual abuse, a third degree felony.(1) We affirm.

On appeal, Neil argues that the trial court erred in denying his motion to suppress statements made during an interview with a police detective. "Whether one is 'in custody' for Miranda purposes depends on an objective assessment of the circumstances of the interrogation with respect to the compulsory nature of the interrogation rather than on the subjective intent or suspicions of the officers conducting the examination." State v. Mirquet, 914 P.2d 1144, 1147 (Utah 1996) (emphasis added) (citations omitted). Additionally, where there is no formal arrest or restraint on the defendant's movement, a noncustodial interview is not converted into a custodial interrogation simply because the questioning took place in a police station. See Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714 (1977) (per curiam).

In Utah, five factors have been articulated to assist courts in determining whether a suspect is in custody during an interview, thereby triggering the required Miranda warnings. These factors include: "'(1) the site of interrogation; (2) whether the investigation focused on the accused; (3) whether the objective indicia of arrest were present; [] (4) the length and form of interrogation;'" Mirquet, 914 P.2d at 1147 (footnote omitted), and "'(5) whether the defendant came to the place of interrogation freely and willingly.'" State v. Gray, 851 P.2d 1217, 1224 (Utah Ct. App. 1993) (citation omitted). Finally, "[e]ven a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest." Stansbury v. California, 511 U.S. 318, 325, 114 S. Ct. 1526, 1530 (1994).

In the instant case, we have reviewed the record and find nothing to support Neil's argument. While it is clear that the interview took place in an interview room within the Lehi Police Department, and that Neil was the sole suspect concerning the alleged crimes, it is equally clear that Neil was not in custody.(2) See, e.g., Mathiason, 429 U.S. at 493-95, 97 S. Ct. at 713-14.

First, Neil voluntarily appeared at the police station two days after a detective asked to speak with him concerning the allegations of sexual abuse. Next, the detective made clear to Neil that he was free to leave at any time. In fact, the detective told Neil, "[y]ou're not under arrest, you're free to leave at any time. You don't have to answer any of the questions that I ask [and] I appreciate the fact that you came here willingly on your own." Third, throughout the interview, the door to the room was unlocked and the detective displayed none of the indicia of arrest. See State v. Brandley, 972 P.2d 78, 82 (Utah Ct. App. 1998) (outlining the objective indicia of arrest to include the showing of a badge or a uniform, an officer's raised voice, and the display of a handgun or handcuffs). Fourth, while the record indicates that the interview lasted over one hour, the nature of the interview, the questions asked, and the interaction between the detective and Neil all suggest that the interview was conversational and pleasant. Moreover, Neil was clearly advised of his right to leave the room, as well as his right to refuse to answer any of the detective's questions. Finally, following the interview, Neil left the police station "without hindrance." Mathiason, 429 U.S. at 495, 97 S. Ct. at 714. Therefore, we conclude that Neil's contention that he was in custody during the interview is without merit.

Accordingly, we conclude that the trial court properly denied Neil's motion to suppress, and affirm Neil's convictions.
 
 
 

______________________________
William A. Thorne, Jr., Judge -----

WE CONCUR:
 
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 
 

______________________________
Russell W. Bench, Judge

1. Neil's argument on appeal focuses not on the trial conducted by Judge Donald J. Eyre, rather, Neil concentrates his argument on the findings and conclusions found within the order signed by Judge Ray M. Harding Sr. denying Neil's motion to suppress.

2. We find Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct. 711 (1977) (per curiam) to be instructive. In Mathiason, the Supreme Court concluded that there is no indication that the questioning took place in a context where respondent's freedom to depart was restricted in any way. He came voluntarily to the police station, where he was immediately informed that he was not under arrest. At the close of the ½-hour interview respondent did in fact leave the police station without hindrance. It is clear from these facts that Mathiason was not in custody or otherwise deprived of his freedom of action in any significant way. Id. at 495, 97 S. Ct. at 714 (citation and quotations omitted).