                                                                                           June 24 2014


                                          DA 13-0089

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2014 MT 161



STATE OF MONTANA,

              Plaintiff and Appellant,

         v.

CLIFFORD OLD-HORN,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Twentieth Judicial District,
                        In and For the County of Lake, Cause No. DC 10-75
                        Honorable C.B. McNeil, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
                        Attorney General, Helena, Montana

                        Mitch Young, Lake County Attorney, Jessica Cole-Hodgkinson, Deputy
                        County Attorney, Polson, Montana

                For Appellee:

                        Wade Zolynski, Chief Appellate Defender, Lisa S. Korchinski, Assistant
                        Appellate Defender, Helena, Montana



                                                    Submitted on Briefs: May 28, 2014
                                                               Decided: June 24, 2014

Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1     The State appeals from the order of the Twentieth Judicial District Court, Lake

County, suppressing Defendant Clifford Old-Horn’s statements to police and granting him a

new trial. We affirm.

¶2     The issue presented on appeal is whether the District Court erred when it granted

Old-Horn’s motion to suppress on the grounds that his statements to police were made

involuntarily.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3     In 2007, Old-Horn was halfway through a five-year sentence for burglary in the Great

Falls Regional Prison. He had a close relationship with his cellmate, Robert Gardner, who

was serving a 50-year sentence for deliberate homicide. One night, Old-Horn disclosed to

Gardner that he had previously acted as a confidential informant, and said he had been

holding on to some information about a “murder rap.”          He offered to provide this

information through Gardner, in the hope that Gardner would receive a reduction in his

sentence. Gardner contacted a detective in Great Falls and asked to speak with two drug

investigators with whom Old-Horn had previously cooperated, saying he had friends who

had information about the unsolved murder of Harold Mitchell, Jr. Detective Jay Doyle, the

lead investigator on the Mitchell homicide, made arrangements to meet with Gardner.

Gardner requested a reduction in his sentence and immunity from prosecution for his friends,

whom he did not identify.

¶4     Doyle discussed Gardner’s request with Lake County Attorney Mitch Young. Young

wrote a letter on December 3, 2007, in which he stated:


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       After speaking with Detective Doyle, I would agree not to file charges against
       your sources for any collateral crimes committed by them in the course of this
       incident. I will not, however, offer immunity for any acts which would
       constitute accountability for the homicide of Mr. Mitchell. If either of the
       sources was involved in the homicide, their cooperation with the police would
       certainly be viewed favorably in any subsequent proceedings.

Doyle sent this letter to Gardner, enclosing a letter of his own in the same envelope. That

letter said, “Mitch [Young] did agree to give immunity to your friends.” Gardner shared

these letters with Old-Horn.

¶5     On April 2, 2008, Old-Horn wrote a letter to Doyle identifying himself as one of

Gardner’s witnesses. He said, “[I]f I testify you already promised me immunity and I still

have that in writing but would the prosecutor be willing to suspend the rest of my five year

sentence?” Old-Horn said he was outside the Mitchell house at the time of the homicide and

identified two other individuals responsible for Mitchell’s death.

¶6     Doyle arranged an interview with Old-Horn at the Great Falls Regional Prison on

April 14, 2008. Doyle, Young, and Detective Mike Sargeant met with Old-Horn outside the

interview room. Doyle and Sargeant then took Old-Horn into the interview room. Doyle

told Old-Horn he would need to read him his Miranda rights, and then asked whether Old-

Horn had seen the letters sent to Gardner. Old-Horn said he had. Doyle then continued

reading Old-Horn his Miranda rights, and Old-Horn signed a waiver. Old-Horn initially told

Doyle and Sargeant he was outside the house when the homicide occurred. As the interview

progressed, Sargeant told Old-Horn, “One of the things that you have to understand; even if

you . . . were in the house doesn’t make you a participant.” Old-Horn responded, “[S]o if I

seen it happen and I didn’t stop it, then I ain’t got nothing to do with this then, I mean.”



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Doyle said, “If you didn’t actively have any active participation in planning that thing out,

you know that’s cool. We can work with that.” Old-Horn then admitted he was inside the

house and gave a full statement about the events leading to Mitchell’s death.

¶7     Two years later, on April 22, 2010, Young filed an information charging Old-Horn

with deliberate homicide under the felony murder rule, § 45-5-102(1)(b), MCA. The

information alleged that Old-Horn aided or abetted an attempted robbery, during the course

of which another individual caused Mitchell’s death. Young moved to have Old-Horn

transported to the Lake County Detention Center on or before April 28, 2010, for his initial

appearance on the deliberate homicide charge. Old-Horn was told he was being transported

for a court hearing, but was not told what the hearing was about.

¶8     Old-Horn, meanwhile, had written another letter to Doyle after learning that the

second witness referred to by Gardner had been arrested. On April 28, 2010, Doyle and

Sargeant met with Old-Horn at the Lake County Detention Center. Sargeant told Old-Horn,

“Well, Jay [Doyle] found out that you really needed to get back here, and like I said earlier,

he pulled some strings, and you over here [sic]. He listened to what you are saying. It is our

information that you want to visit with us about this.” Doyle asked Old-Horn if he was

surprised when he received the transport order. Sargeant asked Old-Horn if he had been told

why he was there, and Old-Horn said he had not. Sargeant then said, “It is our understanding

that you would like to revisit with some of the facts and circumstances on this case.”

Old-Horn said, “My main concern was, you know [the second witness] and I came forward

because, you know, Mitch Young said that we wouldn’t be, that we would have immunity

from all this.” Doyle and Sargeant did not immediately respond to Old-Horn’s concerns


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about the second witness’s arrest, and continued to question him about the Mitchell

homicide. Doyle told Old-Horn, “I know that Mitch [Young] has, as far as I know, he’s not

changed his mind. I think he talked to you in Great Falls. . . . Ever since then, it has been

the same thing.” Old-Horn was not informed that he had been charged with deliberate

homicide until after the interview.

¶9     On December 15, 2010, Old-Horn moved to exclude his statements to Doyle and

Sargeant on the grounds they were involuntary. He claimed he would not have come

forward as a witness, given statements to police, or waived his Miranda rights if he had not

been led to believe he had immunity. The District Court denied the motion without an

evidentiary hearing, reasoning, “The ‘immunity’ letter from the Lake County Attorney

expressly excluded any acts which would constitute accountability for the homicide. That is

exactly the charge against the Defendant for which he did not receive prosecution

immunity.”

¶10    A jury trial was held beginning on June 20, 2011. Old-Horn testified in his defense

and claimed the story he gave to Doyle and Sargeant was fabricated. He was convicted and

later sentenced to 100 years in the Montana State Prison. Old-Horn appealed his conviction

to this Court, claiming the District Court erred by denying his motion to exclude the

statements and failing to hold an evidentiary hearing. On November 7, 2012, this Court

remanded with instructions to hold an evidentiary hearing and enter written findings of fact

and conclusions of law. The remaining issues raised in the appeal were held in abeyance.

¶11    The evidentiary hearing was held January 4, 2013. Old-Horn testified that after

reading the letters from Young and Doyle, he thought he was promised immunity from


                                             5
prosecution. He said he waived his Miranda rights during the 2008 interview because Doyle

asked if he had seen the letters immediately before reading the Miranda warning. Old-Horn

said, “[T]he way he talked to me was like, ‘So you know, everything is all right. I’m going

to go ahead and read you your Miranda rights now.’ So I figured, you know, I don’t have

nothing to worry about if I’m given immunity.” Old-Horn testified that at the second

interview, he still believed he had immunity, in part because two years had passed and he

had not, to his knowledge, been charged. Old-Horn testified he would not have given either

interview unless he believed he was immune from prosecution. He also said he would not

have testified at his trial if the earlier statements had not been admitted as evidence. He

repeated his claim that the story was fabricated.

¶12    The District Court vacated the judgment, ordered a new trial, and ordered Old-Horn’s

letter to Doyle, the 2008 and 2010 statements, and Old-Horn’s trial testimony excluded from

evidence. This Court dismissed the remainder of Old-Horn’s appeal, previously held in

abeyance, as moot. Pursuant to § 46-20-103(2), MCA, the State appealed from the District

Court’s order suppressing Old-Horn’s confessions and granting a new trial.

                                 STANDARD OF REVIEW

¶13    This Court reviews a district court’s decision on a motion to suppress to determine

whether its findings of fact are clearly erroneous and whether they are correctly applied as a

matter of law. State v. Scarborough, 2000 MT 301, ¶ 29, 302 Mont. 350, 14 P.3d 1202. A

finding of fact is clearly erroneous if it is not supported by substantial evidence, if the district

court misapprehended the effect of the evidence, or if this Court is definitely and firmly

convinced that the district court made a mistake. Scarborough, ¶ 30. Substantial evidence


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must be “‘more than a mere scintilla of evidence, but may be less than a preponderance of

the evidence.’” Scarborough, ¶ 30 (quoting Gypsy Highview Gathering Sys., Inc. v. Stokes,

221 Mont. 11, 15, 716 P.2d 620, 623 (1986)).

¶14     The question of whether a defendant has given a confession voluntarily is a factual

determination within the province of the district court. State v. Hayworth, 1998 MT 158,

¶ 20, 289 Mont. 433, 964 P.2d 1. The district court has the opportunity to observe the

demeanor of witnesses and is in the best position to determine their credibility. State v.

Gittens, 2008 MT 55, ¶ 27, 341 Mont. 450, 178 P.3d 91. We will not, on appeal, reweigh the

evidence or substitute our evaluation of the evidence for that of the district court. Gittens,

¶ 27.

                                       DISCUSSION

¶15 Whether the District Court erred when it granted Old-Horn’s motion to suppress on
the grounds that his statements to police were made involuntarily.

¶16     The true test of admissibility of a confession is whether it was given “‘freely,

voluntarily, and without compulsion of any sort.’” State v. Allies, 186 Mont. 99, 109, 606

P.2d 1043, 1049 (1979) (quoting Wilson v. United States, 162 U.S. 613, 623, 16 S. Ct. 895,

899 (1896)). A defendant may move to suppress a confession or admission that was given

involuntarily. Section 46-13-301, MCA. The burden then lies with the prosecution to prove

by a preponderance of the evidence that the confession was voluntary. Section 46-13-301,

MCA.

¶17     When determining the voluntariness of a confession, the district court must take into

account the totality of the circumstances, including the interrogation techniques used by



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police; the defendant’s age and level of education; the defendant’s prior experience with the

criminal justice system; the defendant’s demeanor, coherence, articulation, and capacity to

make use of his or her faculties; and whether the defendant was advised of his or her

Miranda rights. State v. Hoffman, 2003 MT 26, ¶¶ 18-19, 314 Mont. 155, 64 P.3d 1013;

State v. Loh, 275 Mont. 460, 475-76, 914 P.2d 592, 601-02 (1996). A confession induced by

any threat of violence, improper influence, or by any direct or implied promise, however

slight, may be involuntary. Hoffman, ¶ 19; Loh, 275 Mont. at 476, 914 P.2d at 602.

¶18    The District Court found Old-Horn wrote the letter to Doyle, waived his Miranda

rights, and gave his 2008 and 2010 statements under the belief he had been granted immunity

from prosecution.     The District Court also found Old-Horn’s belief was reasonable.

Although the District Court denominated these findings conclusions of law, they address

factual matters. Therefore, we treat them as findings of fact, reviewable for clear error. See

Wray v. State Compen. Ins. Fund, 266 Mont. 219, 222, 879 P.2d 725, 727 (1994); Wheeler v.

Carlson Transp., 217 Mont. 254, 263, 704 P.2d 49, 54-55 (1985). We hold the District

Court’s findings are supported by substantial evidence.

¶19    Old-Horn testified that after reading the letters from Young and Doyle, he believed he

had been promised immunity. The State argues Old-Horn could not reasonably have

interpreted the letters to grant him unqualified immunity. Instead, the State claims the letters

clearly proposed two alternatives: if Old-Horn was not involved in the homicide, he would

not be prosecuted for “collateral crimes”; or, if he was involved, his cooperation would be

“viewed favorably in any subsequent proceedings.” The State’s interpretation of the letters

would have required Old-Horn, who was 21 years old and had an eighth-grade education, to


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discern between “collateral crimes” and “acts which would constitute accountability.” In the

context of a felony murder case, where Old-Horn’s participation in an attempted robbery

formed the basis for a deliberate homicide charge, this distinction is not readily apparent

even to those trained in the law. It is reasonable that Old-Horn would instead have relied on

the explanation given in Doyle’s letter, which stated simply, “Mitch [Young] did agree to

give immunity to your friends.” This is exactly what Old-Horn testified, saying, “After

reading the first one, I was a little conflicted but the second one made me believe that I’m

okay, that I was good. As long as I came up with the information, that I wouldn’t be

prosecuted for this.”

¶20       Old-Horn also testified that when he waived his Miranda rights at the beginning of

the 2008 interview, he believed he had nothing to worry about because he had been granted

immunity. The transcript of the interview supports this testimony. Doyle told Old-Horn he

needed to read him his Miranda rights, then stopped and instead asked Old-Horn whether he

had received the letters sent to Gardner. After explaining Gardner’s friends would be “taken

care of” as long as they were not involved in the homicide, Doyle resumed the Miranda

warning. In this context, it was reasonable for Old-Horn to believe he had been granted

immunity, and therefore had no need to ask for an attorney or exercise his right to remain

silent.

¶21       The State claims Old-Horn’s initial statements, in which he attempted to distance

himself from the homicide, show he understood the immunity offer was limited, and

therefore did not believe he was immune from prosecution when he gave his full confession.

This assertion is undermined by evidence of verbal assurances given to Old-Horn during the


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2008 interview. Sargeant explicitly told Old-Horn being in the house would not make him a

participant. Old-Horn’s response shows he understood this to mean he would not be

prosecuted even if he witnessed the homicide. Doyle echoed Sargeant’s statements, telling

Old-Horn that as long as he did not participate in planning the murder, he could “work with

that.” It was only after these assurances were given that Old-Horn gave a full confession.

There is substantial evidence showing Old-Horn reasonably believed he would not be

prosecuted for his involvement in the homicide.

¶22    Old-Horn testified he still believed he had immunity when he waived his rights at the

beginning of the 2010 interview. At the beginning of the interview, Old-Horn stated he did

not understand why the second witness had been arrested, because “Mitch Young said that

we wouldn’t be, that we would have immunity from all this.” Old-Horn was not informed he

had already been charged with deliberate homicide, and his belief he had been granted

immunity was never contradicted by Doyle and Sargeant. Doyle continued to assure

Old-Horn that Young had “not changed his mind.” Substantial evidence supports the finding

that Old-Horn reasonably believed he had been given immunity at the time he gave the 2010

interview.

¶23    The State argues Old-Horn’s testimony is not credible, because at his trial and in

subsequent proceedings, he claimed his confession was fabricated. As we have observed,

Old-Horn’s testimony is not the only evidence supporting the District Court’s findings. The

letters and interview transcripts are consistent with his testimony and also support the

District Court’s findings that Old-Horn reasonably believed he had been granted immunity.




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Furthermore, the credibility of witnesses is within the province of the District Court, and we

will not attempt to reweigh the evidence on appeal. Gittens, ¶ 27.

¶24    The State also argues the District Court incorrectly applied its findings of fact when it

concluded that Old-Horn did not voluntarily waive his Miranda rights and that the State

failed to meet its burden of proving that Old-Horn’s statements were voluntary. A

confession induced by “any direct or implied promises, however slight,” may be involuntary.

Hoffman, ¶ 19; Loh, 275 Mont. at 476, 914 P.2d at 602. The District Court found that Old-

Horn’s waiver of his Miranda rights and his 2008 and 2010 statements were induced by the

promise of immunity. The District Court correctly applied this finding when it concluded

Old-Horn’s waiver of his Miranda rights was involuntary.

¶25    The District Court also found Old-Horn was not told until the end of the 2010

interview that he had already been charged with deliberate homicide. The transcript of the

interview shows Doyle and Sargeant carefully and deliberately avoided contradicting

Old-Horn’s belief he had been granted immunity by ignoring his questions and affirmatively

telling him Young had “not changed his mind.” We will not condone the use of deception to

obtain a confession. See State v. Reavley, 2003 MT 298, ¶ 16, 318 Mont. 150, 79 P.3d 270;

State v. Phelps, 215 Mont. 217, 225, 696 P.2d 447, 452 (1985); Allies, 186 Mont. at 113, 606

P.2d at 1051.

¶26    Though not specifically addressed by the District Court’s findings, we are also

concerned by the manner in which Doyle administered the Miranda warning at the beginning

of the 2008 interview. This warning must be meaningful, rather than “mere lip service.”

State v. Grimestad, 183 Mont. 29, 37, 598 P.2d 198, 203 (1979). When a defendant’s


                                              11
Miranda rights are downplayed and he is assured that he is not a suspect, the waiver of those

rights may be considered involuntary. Grimestad, 183 Mont. at 37, 598 P.2d at 203. The

Miranda warning given by Doyle was interwoven with explanations and assurances about

the immunity offer. Old-Horn testified that Doyle’s reading of the Miranda warning made

him feel that everything was all right, and the waiver was simply a formality. Doyle

emphasized the immunity offer in a way that downplayed Old-Horn’s rights to remain silent

and to be represented by counsel. The District Court correctly concluded that the State failed

to meet its burden of proving that Old-Horn’s statements were voluntary.

¶27    The State claims the District Court failed to conduct a fact-intensive inquiry into the

totality of the circumstances. A district court’s findings and conclusions need not be

exhaustive so long as they dispose of the material issues and provide a sufficiently clear

rationale. Williams v. State, 2002 MT 189, ¶ 27, 311 Mont. 108, 53 P.3d 864; In re Mental

Health of S.C., 2000 MT 370, ¶ 14, 303 Mont. 444, 15 P.3d 861. The District Court stated in

its order that it considered exhibits including the transcripts and recordings of the 2008 and

2010 interviews, as well as the testimony of Doyle and Old-Horn at the evidentiary hearing.

The District Court’s order makes specific findings of fact regarding the content of the letters

written by Young, Doyle, and Old-Horn; the fact that Old-Horn waived his Miranda rights;

the fact that Doyle and Sargeant failed to inform Old-Horn of charges against him during the

2010 interview; and Old-Horn’s testimony that he believed he had been promised immunity.

The District Court clearly reasoned that the letters led Old-Horn to believe he had been

granted immunity; Old-Horn waived his Miranda rights believing he had been granted

immunity; this belief was furthered by the failure to inform Old-Horn of charges against him;


                                              12
and his confessions were, as a result, involuntary. The District Court considered the totality

of the circumstances and provided a sufficiently clear rationale.

¶28    Finally, the State asks this Court to address the remaining issues raised by Old-Horn

in his direct appeal, previously held in abeyance and then dismissed as moot after the District

Court ordered a new trial. Because we affirm the order of the District Court, we decline the

State’s request.

¶29    For the reasons stated above, the order of the District Court granting Old-Horn a new

trial and suppressing his letter to Doyle, his 2008 and 2010 statements, and his trial

testimony is affirmed.

                                                   /S/ MIKE McGRATH

We Concur:

/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JIM RICE




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