Black v. State
Annotate this Case
Black v. State
1991 WY 142
820 P.2d 969
Case Number: 90-128
Decided: 11/18/1991
Supreme Court of Wyoming
JANE ELLEN BLACK, APPELLANT (DEFENDANT),
v.
STATE OF
WYOMING,
APPELLEE (PLAINTIFF).
Appeal from the District
Court, CampbellCounty, Terrence L.
O'Brien, J.
Walter A. Murray, Jr.,
Casper, for
appellant.
Joseph B. Meyer, Atty.
Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Sr. Asst. Atty.
Gen., Theodore E. Lauer, Director of the Prosecution Assistance Program, and
E. Daniel Farrar, Student Intern for the Prosecution Assistance Program, for
appellee.
Before URBIGKIT, C.J.,
and THOMAS, CARDINE, MACY, and GOLDEN, JJ.
OPINION
MACY, Justice.
[¶1.] Appellant Jane Black
appeals her conviction for delivery of a controlled substance
(methamphetamine).
[¶2.] We reverse and
remand.
[¶3.] Appellant raises the
following issues:
I.
Whether or not the
trial court erred by denying Appellant[']s Motion To Dismiss For Denial Of
Speedy Arrest And Due Process.
II.
Whether or not the
trial court erred in not granting the Appellant[']s Motion To Dismiss
Information on the grounds that Appellant was denied her right to a fair
preliminary hear[ing] and confrontation at the preliminary hearing stage of the
criminal process.
III.
Whether or not the
trial court erred in failing to suppress Defendant[']s statements and evidence
derived therefrom.
[¶4.] According to the
criminal complaint made on November 7, 1989, Appellant delivered a controlled
substance, methamphetamine, to Paula Pirman "on or about the 20th or 21st day of
January, 1989," in Gillette, Wyoming. The complainant, an agent with the
Northeast Wyoming Drug Enforcement Team, stated that Pirman told an officer of
the Gillette police department that she had purchased one-quarter gram of
methamphetamine from Appellant on January 20, 1989, for $25.1 The agent also detailed an
"interview" with Appellant, which he and another detective conducted at the
Gillette police department on March 16, 1989. During this interview, Appellant
admitted making the delivery. The relevant dates are January 20, 1989, Appellant
made delivery; March 16, 1989, Appellant was interviewed by officers and
confessed to delivery; and November 7, 1989, criminal complaint was made, and
criminal warrant was issued for Appellant's arrest.
[¶5.] Appellant claims she
has a right to a speedy arrest. She premises her speedy arrest claim upon the
accused's right to a speedy trial found in the sixth amendment to the United
States Constitution and in article 1, section 10 of the Wyoming Constitution.
Neither the United States Constitution nor the Wyoming Constitution, however,
uses the term "speedy arrest." Both provisions use the term "speedy trial"
instead. Appellant maintains that, shortly after the delivery on January 20th,
the police had all the evidence they needed to charge her with that crime and
that, therefore, the police should not have delayed her arrest until November
7th. We addressed a claim of speedy arrest in Hovee v. State, 596 P.2d 1127,
1130 (Wyo.
1979), and stated:
[A] claim, based solely
on pre-arrest and pre-indictment delay, does not raise any question under the
speedy trial provision of either the Sixth Amendment of the United States
Constitution or Art. 1, § 10, of the Wyoming Constitution. . . .
[¶6.] The United States
Supreme Court
considered the
significance, for constitutional purposes, of a lengthy preindictment delay
[and] held that as far as the Speedy Trial Clause of the Sixth Amendment is
concerned, such delay is wholly irrelevant, since our analysis of the language,
history, and purposes of the Clause persuaded us that only "a formal indictment
or information or else the actual restraints imposed by arrest and holding to
answer a criminal charge . . . engage the particular protections" of that
provision.
United
States v. Lovasco, 431 U.S. 783, 788-89, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977) (quoting United
States v. Marion, 404 U.S. 307, 320,
92 S. Ct. 455, 30 L. Ed. 2d 468 (1971)). The speedy trial clause has no application
to prearrest delay.
[¶7.] Appellant also claims
the delay violated her rights to due process and a fair trial.2 In Story v. State, 721 P.2d 1020,
1028, 65 A.L.R.4th 1011 (Wyo.), cert. denied, 479 U.S. 962, 107 S. Ct. 459, 93 L. Ed. 2d 405 (1986), we stated that a defendant is denied due process where "the
prosecutor delays filing charges to gain a tactical advantage, perhaps where the
prosecutor acts in bad faith in delaying the filing of charges, and where
substantial prejudice results from the delay." (Emphasis in original.) Appellant
admits, "Although there was no direct testimony that the State was intentionally
delaying the arrest and prosecution of the Appellant, the implication is there."
An "implication" that an intentional delay existed is not enough; some evidence
must be in the record to support the charge. Appellant also argues that she
"suffered greatly from this delay" because the individual who actually delivered
the drugs died before she was charged. Appellant has not demonstrated the
prejudice caused by the death of the witness; i.e., why her defense was
impaired. The record also does not disclose when this particular witness died.
Without these showings, it is impossible to determine whether she suffered
"substantial prejudice" from the delay. Id.
[¶8.] Appellant asserts that
the statements she made during the interrogation on March 16, 1989, were not
voluntary and that, therefore, they should have been suppressed. She also cites
Wyo. Stat. § 7-6-105(a) (1987) to support her argument that her statements
should have been suppressed. This particular statute is part of the "Public
Defender Act" and requires, "A needy person who is being interrogated by law
enforcement personnel for a serious crime . . . shall be informed of his right
to be represented by an attorney at public expense." Because Appellant's
interrogation was counter to the principles of due process, we do not address
her separate statutory claim. We have previously stated, "In determining whether
statements made by an accused are voluntary, the totality of the circumstances
surrounding the interrogation must be examined." Frias v. State, 722 P.2d 135,
141 (Wyo.
1986).
[¶9.] In Frias, the issue was
whether the defendant had voluntarily waived his Miranda rights. We ruled, inter
alia, that the defendant's statements were the product of police coercion and
were not made voluntarily. Id. at 142-43. We note that at no point during
the interrogation was Appellant ever advised of her rights under Miranda, and
that, even though fifth amendment and Miranda violations were not implicated
here because Appellant was not in custody at the time of the interrogation as
Appellant was told she was free to leave at any time, "the due process clause
still stands as [an] independent limitation on the use of a defendant's pretrial
statement." 2 D. Rudstein, C. Erlinder, & D. Thomas, Criminal Constitutional
Law § 4.01[1] at 4-5 (1990). We, therefore, review Appellant's claim under
article 1, section 6 of the Wyoming Constitution: "No person shall be deprived
of life, liberty or property without due process of law."
[¶10.] The agent testified that, at the time he
questioned Appellant on March 16, 1989, he knew Pirman had already identified
Appellant as being the one who had sold her the methamphetamine. The agent also
testified that he had questioned another witness who admitted she had sold
methamphetamine to Appellant and her husband. After Appellant arrived at the
police station, the two police officers interrogated her for two hours. During
this time, she was asked specific questions about her involvement in the
methamphetamine delivery of January 20, 1989. Appellant was told that "she could
be charged with delivery of methamphetamine and possibly conspiracy to deliver
methamphetamine." The agent testified that Appellant, who, he noted, was
"[e]xtremely pregnant," was "upset" and "crying" during the interrogation. The
police interrogated an individual whom they had already identified as being the
principal suspect, and, even though that individual was upset and crying because
she was concerned about being charged with a serious crime during her pregnancy,
the police continued to interrogate her for two hours.3
[¶11.] Other circumstances also reveal police
coercion: The previous night, March 15, 1989, the police went to Appellant's
house and asked her husband to come to the police station and discuss an
"ongoing investigation." After Appellant's husband arrived at the station, he
was interrogated for four and one-half hours. During the interrogation, the
police told Appellant's husband that they knew about his involvement in the
distribution of methamphetamine. He was also told that the police knew about
Appellant's January 20, 1989, delivery of methamphetamine. Appellant's husband
made a "substantial statement" that night and agreed to "cooperate" with the
police in their ongoing investigation. He also agreed to bring Appellant to the
police station the following morning, and the police agreed to "try and clear up
the - both of their involvement." At the time Appellant was interrogated, she
was aware that her husband had agreed to cooperate with the police, that the
police suspected her for the delivery of methamphetamine, and that the police
wanted to question her about both matters.
[¶12.] There is a line which the police may not
cross in pursuing their investigation of a crime. That line is drawn by the due
process clause of the Wyoming Constitution. We are free to grant more rights to
our citizens under the Wyoming Constitution than they are entitled to have under
the United States Constitution. See Washakie County School District Number One
v. Herschler, 606 P.2d 310 (Wyo.), cert.
denied, 449 U.S. 824, 101 S. Ct. 86, 66 L. Ed. 2d 28
(1980). Due process does not prohibit the police from questioning Appellant
about her possible involvement in a crime. Coercive interrogation of Appellant,
however, does not comport with this state's notions of due process. The
circumstances reveal that the police had made the case against Appellant at the
time of the interrogation and that they were simply fishing for a confession.
Due process does not permit the police to coerce an individual into knotting her
own noose.
[¶13.] Our review of the totality of the
circumstances surrounding Appellant's interrogation reveals police coercion. We
hold that Appellant's statements were not made voluntarily and that, therefore,
those statements were not admissible evidence. See Frias, 722 P.2d 135. We note
that suppression of Appellant's statements will also deter future police
coercion of individuals.
[¶14.] The finding of probable cause at the
preliminary hearing was determined, in large part, upon Appellant's confession.
If the State chooses to pursue this case, Appellant is entitled to another
preliminary hearing. Accordingly, we do not address the claims raised by
Appellant in her second issue. If there is a second preliminary hearing, the
State may not, in any manner, make use of Appellant's coerced
confession.
[¶15.] Reversed and remanded for proceedings in
accord with this opinion.
[¶16.] CARDINE, J.,
concurring.
[¶17.] THOMAS, J.,
dissenting.
[¶18.] GOLDEN, J., dissenting, with
THOMAS, J., joining.
FOOTNOTES
1 Pirman also gave the
officer the substance she purchased from Appellant. A test of the substance
revealed it was methamphetamine.
2 See the fifth and
fourteenth amendments to the United States Constitution and article 1, section 6
of the Wyoming Constitution.
3 In Frias, we also
considered the circumstances personal to the defendant, an illegal alien from
Mexico, when we analyzed whether the
police interrogation was coercive.
CARDINE, Justice,
concurring.
[¶19.] I concur in the opinion of this court and
write separately to say some things about this case that need
saying.
[¶20.] After a "disinterested, objective
examination of the totality of the circumstances," the dissent arrives at the
rather remarkable conclusion that the "policemen genuinely comforted Mrs.
Black." It is difficult to picture how a two-hour interrogation of a crying,
pregnant lady in the police interrogation room - during which she is told she
may face two felony charges - could even remotely be considered comforting.
[¶21.] The role of the courts is to ensure that
an individual's right to remain silent offers true protection to that
individual. It is therefore dangerous for courts to end their inquiry into
whether an individual's statements are truly voluntary once they have located
the magic phrase "you do not have to answer any question and you are free to
leave." Coercion does not always come in such easy to spot packages as racks and
whips. All too often it comes in the more subtle forms of an individual placed
in jeopardy and told to make a crucial decision without the benefit of an
attorney.
[¶22.] Now let us look at what really happened
in this case. Mrs. Black's husband was interrogated over a substantial period of
time the night before her own interrogation. Mr. Black agreed to help with an
ongoing investigation in Billings, Montana, and, as the interrogating officer
stated:
"A. He cooperated to a
great extent. He traveled with myself and Special Agent [] to Billings, Montana. Made some contacts with people in the
Billings area,
including the dispatcher up there, and also cooperated later in court
proceedings against her.
"Q. And when was that
finished, the Billings' incident?
"A. The
trial?
"Q. Yes.
* * * * * *
"A. I can't be sure of
that.
"Q. But it was just
before these charges were filed against Mrs. Black; is that correct?
"A. I'm not sure of
the exact date, but I believe the complaint against Mrs. Black was signed after
the completion of the court case in Billings."
At this point, it is
apparent that Mr. Black's cooperation was ensured by bringing his wife in,
threatening her with criminal charges, but holding out the carrot of maybe no
charges being filed if he cooperated. He did help the officers. They made the
Billings case,
and as soon as it was concluded, felony criminal charges were filed and
prosecuted against Mrs. Black. Keep in mind Mrs. Black was a working mother
waitress with three small children who was given $25 by a friend and used the
$25 to purchase a small quantity of methamphetamine which was given to the
friend. She had no prior criminal record of any kind. Now she has a felony
record resulting, among other things, in loss of her rights of
citizenship.
[¶23.] What she did, to be sure, was a crime.
What she received for her cooperation was nothing. It is true the State must
prosecute crime. But it is also true that in carrying out the many, varied and
very great duties of the office, the prosecutor is vested with prosecutorial
discretion in filing charges, recommending nolle prosequi, immunity, and some
prosecutors make use of administrative probation within their office. All would
avoid a felony record for this lady. That again is a matter for the discretion
of the prosecutor - not exercised here - and one must wonder if she was fairly
treated by the system.
[¶24.] Ultimately, the issue of whether there
was coercion turns on the individual jurist's notions of what is fair and what
is permissible police conduct. Here, I am satisfied that there were sufficient
circumstances to find coercion and, therefore, concur in the opinion of the
court.
THOMAS, Justice,
dissenting.
[¶25.] I, too, dissent from the disposition of
this case, and I join in the able, logical, and clear dissent of Justice Golden.
One must grudgingly admire the creative effort of the majority and concurring
opinions to justify and excuse the conduct of Jane Ellen Black and to castigate
the law enforcement officers who were responsible for pursuing the investigation
which led to her conviction. In my opinion, anyone who sells controlled
substances of any nature is marketing death! It is remarkable to suggest that
someone who has been convicted of a felony because she sold drugs has not been
treated fairly by the system. There can't be any question about Black having
been treated fairly by the system.
[¶26.] A more accurate perspective would
certainly include the fact that the husband of Black's customer collapsed after
using the methamphetamine that Black supplied. That is a slightly different
scenario from the claim in the concurring opinion that Black "was a working
mother waitress with three small children who was given $25 by a friend and used
the $25 to purchase a small quantity of methamphetamine which was given to the
friend." at 970. Assuredly, it would be naive to assume that this was the only
instance in which Black had participated as a purveyor of controlled substances.
The customer's husband could have died, as others have after using illegal
drugs. I would assume that then the friend would have been "upset and
crying."
[¶27.] For me, the clear fallacy in the
disposition of this case is that the pertinent constitutional provisions are
ignored. The issue of voluntariness with respect to admissions or confessions
until today has been addressed under the provisions of Article 1, Section 11, of
the Constitution of the State of Wyoming and the Fifth Amendment to the
Constitution of the United States that protect the individual from being
compelled to testify or be a witness against himself in any criminal proceeding.
I perceive it to be a confession on the part of the majority that the
traditional authority in the area cannot be invoked to justify the result that
is reached. That is why the shift is made to the due process clause found in
Article 1, Section 6, of the Constitution of the State of Wyoming, and the thrust of that provision is applied to
grant Black more rights under the Wyoming Constitution than she would enjoy
under the Constitution of the United States. Indeed, she has been
granted broader rights than she would enjoy anywhere else in the world. That is
demonstrated by the failure to invoke any authority from any jurisdiction other
than the citation to Frias v. State, 722 P.2d 135 (Wyo. 1986), which clearly
is distinguishable from this case.
[¶28.] I do have a sincere concern about the
omniscience that the majority manifests by its decision. The trial court ruled
as a matter of fact that Black's confession was voluntary. That judge saw the
witnesses and heard the testimony. Our rule for appellate review is that we view
the evidence in a light most favorable to the prevailing party when reviewing an
issue of fact such as this. Wilde v. State, 706 P.2d 251 (Wyo. 1985). We do not
redecide factual issues so long as they are supported by evidence in the record.
In fact, we depart from our proper role as a reviewing court when we substitute
our views on a question of fact for those of the trial court.
[¶29.] In this instance, the trial judge's
ruling was supported by substantial evidence. Yet, this court feels free, having
heard no testimony and without ever having seen the witnesses who testified on
the issue, to conclude that the questioning of Black was coercive. A speculation
that the fact that Black was "upset and crying" because her misdeeds had been
discovered and she would have to face the consequences is equally valid. Or,
perhaps Black was trying to con the law enforcement officers as she has this
court. The conclusion of the majority can only be reached by reweighing the
evidence that the trial judge received. When we invoke subjective factors to
reach our own conclusion as to the question of duress or coercion,
superarrogation again becomes manifest. I submit that the majority is wrong.
This decision not only is bad law, but it is bad jurisprudence.
[¶30.] Because I disagree with the majority
about the voluntariness of the confession, it is appropriate to address Black's
claim that she was entitled to have her statement suppressed because of the
provisions of Section 7-6-105(a), W.S. 1977 (June 1987 Repl.), providing
that:
"A needy person who is
being interrogated by law enforcement personnel for a serious crime, . . . shall
be informed of his right to be represented by an attorney at public expense. If
the person being interrogated does not have an attorney and wishes to have the
services of an attorney, he shall be provided the opportunity to contact the
nearest public defender."
The State correctly
points out that, read in context of the other statutes that were in effect when
Black committed the crime, the context was that of being formally charged or
being detained by a law enforcement officer for a serious crime. Those factors
were not operative in this situation and, therefore, Black's statement did not
come within the provisions of this statute so as to justify its
suppression.
[¶31.] It appears that the rule of law to be
derived from this case is that law enforcement officers should not question a
pregnant subject, particularly if she cries or becomes upset, because the
statement will be suppressed as a matter of law. When so summarized, it hardly
seems to possess either reason or logic. Instead, it becomes clear that the case
has been used by the court only for the purpose of criticizing the work of law
enforcement officers. Probably, those officers won't work so diligently in the
future to interfere with unlawful trafficking in drugs. At least they will let
pregnant women sell those drugs as much as they want.
GOLDEN, Justice, dissenting,
with whom THOMAS, Justice, joins.
[¶32.] I disagree with this court's holding. A
two-hour police interrogation in her husband's presence of a seven-months
pregnant woman, whom the police had already identified as the principal suspect
and who was at times upset and crying because of concern for being charged with
a serious crime during her pregnancy, did not constitute coercion, rendering
involuntary her inculpatory statements to police. Therefore, I respectfully
dissent.
[¶33.] Several aspects of the majority's opinion
trouble me. One is the majority's unexplained and total disregard for the trial
court's findings of historical fact which frame the voluntariness issue. The
trial court conducted a Jackson-Denno hearing1 before trial at which four
witnesses testified, the three police officers who were present during the
interrogation and Mrs. Black's husband who was present with her at all times
during the questioning. Mrs. Black chose not to testify. After hearing the
testimony about the facts and circumstances surrounding the interrogation and
the personal characteristics of Mrs. Black, the trial court had no difficulty
determining that Mrs. Black's inculpatory statements to police were not the
product of coercion. Those facts and circumstances and personal characteristics
are laid on the record. Under our appellate standards of review, we are bound to
view them in the light most favorable to the state as the prevailing party.2 The majority has violated that
appellate standard.
[¶34.] Another aspect of the majority's opinion
that troubles me is the majority's failure to examine in fact the
totality of the circumstances attending the interrogation. Indeed,
without citation to any supporting legal authority, the majority identifies as a
major factor in its ratio decidendi the police officers' pre-interrogation focus
on Mrs. Black as a prime suspect. That the police focused on her or "had the
case made" against her before they initiated questioning is of no significance
under the voluntariness jurisprudence I have studied.3
[¶35.] Equally troubling for me is the
majority's abject failure to link Mrs. Black's emotional state (periodically
upset and crying)4 to anything the police said or did
during the questioning. As explained in Colorado v. Connelly, 479 U.S. 157, 165,
107 S. Ct. 515, 520-21, 93 L. Ed. 2d 473, 483 (1986), a court looks for "the
essential link between coercive activity of the State, on the one hand, and a
resulting confession by a defendant, on the other." Justice Frankfurter
expressed the concept in this way:
Is the confession the
product of an essentially free and unconstrained choice by its maker? If it is,
if he has willed to confess, it may be used against him. If it is not, if his
will has been overborne and his capacity for self-determination critically
impaired, the use of his confession offends due process.
Culombe v. Connecticut, 367 U.S. 568, 602, 81 S. Ct. 1860, 1879, 6 L. Ed. 2d 1037, 1057-58 (1961).
[¶36.] A disinterested, objective examination of
the totality of the circumstances, including Mrs. Black's personal
characteristics, readily and with unmistakable clarity shows that the police did
not by word or deed coerce Mrs. Black to answer their questions and make her
statements. At the outset of this examination, let us state that which is not
involved here. The police used no lash, no rack on Mrs. Black. She makes no
allegations of physical coercion. Unlike what the police did to Martin Frias, as
reported in Frias v. State, 722 P.2d 135, 143 (Wyo. 1986),5 the police here did not confront
Mrs. Black with "a barrage of accusations and threats"; they did not repeatedly
accuse her of lying; and they did not threaten her with the loss of her children
and incarceration in the women's prison unless she changed her story. Unlike
Frias, the police here did not tell appellant they had evidence which they
really did not have. Mrs. Black makes no allegation that any policeman ever even
raised his voice against her. To the contrary, the undisputed evidence is that
the policemen genuinely comforted Mrs. Black and told her that charges against
her would likely be filed only after she had delivered her child. And, that was
truly what happened.
[¶37.] Tellingly, the majority ignores examining
the only allegation made by Mrs. Black in support of her effort to suppress her
inculpatory statements, namely, that the police told both Mr. and Mrs. Black
that it would probably go easier for them to cooperate because the police would
report that cooperation to the prosecuting attorney. The trial court made
appropriate short-shrift of that allegation, as would I, since under the
withering fire of nearly every case, state or federal, on the point such a
statement by police has been universally declared innocuous and constitutionally
acceptable.6
[¶38.] My examination of the record, including
the transcript of the Jackson-Denno hearing, reveals the following undisputed
historical facts that we, as an appellate court, must accept as
true:
1. When questioning Mr.
Black the night before the day on which Mrs. Black was questioned, the police
asked, and did not order, him if he would return the next morning and bring his
wife.
2. Mr. and Mrs. Black
voluntarily came to the police station around 9:00 a.m. the next
day.
3. Mrs. Black was about
seven months pregnant; was the mother of two young children; helped her husband
run a tree and lawn care business in which she was the bookkeeper; had graduated
from high school; was in her early thirties; and had no known physical or mental
impairments.
4. Mr. Black remained
with Mrs. Black at all times.
5. The police told them
they did not have to answer any questions if they did not want to.
6. The police told them
they were not under arrest and could leave at any time.
7. The police and the
Blacks were seated in a meeting or debriefing room with windows, carpet on the
floor, a table and a telephone.
8. The questioning was of
about two hours duration.
9. The Blacks were
cooperative and spoke freely, never indicating they did not want to answer a
question asked.
10. At times during the
questioning, Mrs. Black cried, but she was not crying the entire
time.
11. When the questioning
was concluded, the Blacks left the police station the way they had arrived, in
their own car without police involvement.
[¶39.] There is no evidence here that Mrs.
Black's free will was overborne by the police questioning. In sum, I agree with
the trial court that Mrs. Black's answers and statements were freely given. In
this regard, I recall the words of Justice Guthrie writing for the court in
Lonquest v. State, 495 P.2d 575, 580 (Wyo. 1972): "This may have been the result
of compulsions but ones that originated within this defendant and not from any
outside source."
[¶40.] Finally, I am troubled by the total
absence of state constitutional analysis in a majority opinion expressly driven
by the due process clause of the Wyoming Constitution.7 The majority boldly declares that
the police in their questioning of Mrs. Black crossed the line drawn by that due
process clause. Declaring it is one thing, demonstrating it, quite another. The
majority fails to demonstrate coercive interrogation of Mrs. Black by the
police.
[¶41.] The majority declares8 the cherished principle of
federalism that a state constitutional provision may be more protective of
citizens' rights than its counterpart in the Federal charter. Declaring that our
state's due process clause is more protective of Mrs. Black's rights against
police questioning than the due process clause of the United States Constitution
is one thing. Demonstrating it, quite another. The majority fails to demonstrate
why the state's due process clause is more protective than its federal
counterpart. Saying it is so, does not make it so. It must be proved by
appropriate jurisprudential technique, both principled and analytic in nature.
In most instances, if not all, state constitutional analysis is an arduous
undertaking. Here, regrettably, the majority has not even broken a sweat. The
majority employs the "it-is-so-because-I-say-it-is-so" analytical technique.
That is not appropriately principled analytic jurisprudence; that is only the
unattractive exercise of raw power.
FOOTNOTES
1 Ramos v. State, 806 P.2d 822, 829 (Wyo.
1991).
2 This court has said "the
prosecution must convince the trial court at least by a preponderance of
evidence that the confession was voluntary." Dodge v. State, 562 P.2d 303, 308
(Wyo. 1977).
See also United
States v. Chalan, 812 F.2d 1302, 1307-08 (10th
Cir. 1987).
3 See, e.g.,
United
States v. Leach, 749 F.2d 592, 599-600 (10th
Cir. 1984).
4 Mere emotionalism and
confusion do not necessarily invalidate a statement or confession. Corn v. Zant,
708 F.2d 549, 567 (11th Cir. 1983) (citing Sullivan v. Alabama, 666 F.2d 478,
483 (11th Cir. 1982)).
5 Contrary to the
majority's statement in footnote 5, this court in Frias did not rule that
Frias' statements were the product of police coercion and, thus, were not made
voluntarily. Rather, this court held that his statements were inadmissible
because the trial court failed to expressly find that his statements were
voluntary. Frias, 722 P.2d at 143.
6 See, e.g., United States
v. Leon Guerrero, 847 F.2d 1363, 1366-67 (9th Cir. 1988) and cases cited
therein; Hawkins v. Lynaugh, 844 F.2d 1132, 1139-41 (5th Cir. 1988); United
States v. Pelton, 835 F.2d 1067, 1072-73 (4th Cir. 1987) and cases cited
therein; United States v. Guarno, 819 F.2d 28, 31 (2nd Cir. 1987); Beasley v.
United States, 512 A.2d 1007, 1015-16 (D.C.App. 1986); State v. Robertson, 219
Neb. 782, 366 N.W.2d 429, 433 (1985) and cases cited therein.
7 "No person shall be
deprived of life, liberty or property without due process." Wyo. Const. art. 1, §
6.
8 See majority at
___.
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