                       IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41902

STATE OF IDAHO,                                 ) 2015 Opinion No. 45
                                                )
       Plaintiff-Respondent,                    ) Filed: July 17, 2015
                                                )
v.                                              ) Stephen W. Kenyon, Clerk
                                                )
SHAYNE RAY BURGESS,                             )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Richard D. Greenwood, District Judge.

       Judgment of conviction for aggravated assault on certain law enforcement
       personnel; use of a deadly weapon in the commission of a crime; and resisting or
       obstructing officers, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Kimberly E. Smith, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GRATTON, Judge
       Shayne Ray Burgess appeals from the judgment of conviction entered after he was found
guilty by a jury of aggravated assault upon certain personnel, use of a deadly weapon in the
commission of a crime, and resisting and obstructing officers. We affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Burgess was the passenger in a vehicle being driven by his wife when a trooper attempted
to stop the vehicle for not having a license plate. Burgess’s wife did not pull over, but attempted
to flee from the trooper before finally stopping on the median side of the freeway. Burgess
exited the vehicle with a knife in his hand. Several additional officers arrived on scene, and
when Burgess failed to follow the officers’ commands to drop the knife, the officers resorted to

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non-lethal measures to neutralize the threat by using a beanbag gun and a Taser on him. One of
the officers testified that as he approached Burgess to use the Taser on him, Burgess lunged at
him with the knife. Burgess testified that he did not lunge at the officer, but fell forward when
he was hit by a beanbag. He further testified that he was suicidal and hoped that brandishing the
knife would lead the officers to shoot and kill him.
       The State charged Burgess with aggravated assault upon certain personnel, Idaho Code
§§ 18-915(1), 18-901(b); use of a deadly weapon in the commission of a crime, I.C. § 19-2520;
and resisting and obstructing officers, I.C. § 18-705.
       Burgess testified in his own defense at trial. During cross-examination of Burgess, the
State sought to admit statements that Burgess made to the trooper in the patrol car during his
transport to the hospital following his arrest. Defense counsel objected, arguing the statements
were made in violation of Burgess’s Miranda 1 rights and they were coerced. Additionally,
Burgess moved to exclude a statement he made to hospital staff that he had used
methamphetamine on the day of the offense. Burgess argued that the probative value of the
evidence was substantially outweighed by its unfairly prejudicial effect. The district court
overruled both objections and admitted the statements.
       The jury found Burgess guilty of the charged offenses. The district court imposed a
unified sentence of seven years with four years determinate for aggravated assault upon certain
personnel, a consecutive sentence of five years indeterminate for use of a deadly weapon in the
commission of a crime, and a concurrent sentence of one year determinate for resisting and
obstructing officers. Burgess timely appeals.
                                                 II.
                                           ANALYSIS
A.     Pre-Miranda Statements Made to Police
       Burgess argues that the district court erred when it allowed the State to introduce, on
cross-examination, Burgess’s non-Mirandized statements.       Statements obtained by police in
violation of an accused’s Miranda rights may not be used in the State’s case-in-chief, but are
admissible to impeach the accused if he testifies at trial. Harris v. New York, 401 U.S. 222, 224
(1971); Michigan v. Harvey, 494 U.S. 344, 350-51 (1990).          Even this limited use is not



1
       Miranda v. Arizona, 384 U.S. 436 (1996).
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permissible, however, for statements that an accused made involuntarily.          State v. Cherry,
139 Idaho 579, 581-82, 83 P.3d 123, 125-26 (Ct. App. 2003).
       As an initial matter, the State argues that Burgess waived his right to challenge the
admissibility of the statements made to the trooper, because he did not file a pretrial motion to
suppress. Idaho Criminal Rule 12(b)(3) and (c) provides that “[m]otions to suppress evidence on
the ground that it was illegally obtained” “must be raised prior to trial.” Failure to file a motion
to suppress constitutes a waiver, but the court may grant relief from the waiver for cause shown.
I.C.R. 12(f). The purpose of the rule is to avoid trial disruption. See State v. Collinsworth,
96 Idaho 910, 912-13, 539 P.2d 263, 265-66 (1975); State v. Gleason, 130 Idaho 586, 590,
944 P.2d 721, 725 (Ct. App. 1997). Here, Burgess did not file a pretrial motion to suppress the
statements that he claims were obtained illegally in violation of Miranda, and made no assertion
of good cause excusing such failure.       He contends, however, that the State admitted the
statements were obtained in violation of Miranda and therefore, he was excused from the
Rule 12(b) requirements. Burgess misconstrues the statements of the prosecutor made after the
State’s case-in-chief:
       [Prosecutor]: Judge, the last issue for me. Those comments Mr. Burgess makes
                     to [the trooper], I did not attempt to admit in my case-in-chief
                     because there is no Miranda. I didn’t want to get into that issue.
                     He’s in the back of the car on the way to the hospital. But there
                     has been no claim that those are involuntary. So I think it is
                     permissible for me to cross-examine Mr. Burgess on any
                     statements he made to [the trooper], but I don’t want to do that
                     without clarifying first.

The prosecutor did not admit a Miranda violation, only that he did not want to get into that issue
during the State’s case-in-chief. Conversely, the prosecutor argued that the statements were
voluntary and thus, indeed, not obtained in violation of Miranda. On the other hand, Burgess
argued that the statements were coerced and thus, obtained in violation of Miranda, rendering
them inadmissible. This is precisely the argument that Rule 12(b)(3) requires be made in
advance of trial. Burgess waived his objection.
       Even if we were to entertain the issue, we can determine no error in the admission of the
evidence. The requirement for Miranda warnings is triggered by custodial interrogation. State
v. Medrano, 123 Idaho 114, 117, 844 P.2d 1364, 1367 (Ct. App. 1992). Because Burgess was
under formal arrest in the backseat of the patrol vehicle, he was in custody for Miranda purposes.

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See Berkemer v. McCarty, 468 U.S. 420, 440 (1984); State v. Myers, 118 Idaho 608, 610, 798
P.2d 453, 455 (Ct. App. 1990). However, there is nothing in our record to suggest that the
statements admitted at trial were the product of an interrogation.
       In Miranda, the United States Supreme Court very simply stated that “by custodial
interrogation, we mean questioning initiated by law enforcement after a person has been taken
into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v.
Arizona, 384 U.S. 436, 444 (1996). The term “interrogation” was later refined in Rhode Island v.
Innis, 446 U.S. 291, 300-02 (1980) to refer “not only to express questioning, but also to any
words or actions on the part of the police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to elicit an incriminating response
from the suspect.” Applying this test to the facts of Innis, the Court noted that the “first prong of
the definition of interrogation” was not satisfied because express questioning had not taken
place. Id. at 302. After having ruled out express questioning, the Court considered whether the
police officers’ dialogue was the functional equivalent of questioning by examining whether it
was “reasonably likely to elicit an incriminating response.” Id.
       In the present case, the following interaction occurred during the State’s cross-
examination of Burgess at trial:
       [Prosecutor]: Well, you talked about [the trooper]. He’s the one that took you to
                     the hospital?
       [Burgess]:    Yes sir.
       [Prosecutor]: All right. And you did have a conversation with him, correct?
       [Burgess]:    Yes, I did, sir.
       [Prosecutor]: All right. As I listened to the tape, one of the first things that
                     you’re worried about is a charge just like this, right?
       [Burgess]:    Uh-huh.
       [Prosecutor]: Is that a yes?
       [Burgess]:    Oh, no. I do not believe I said that actually.
       [Prosecutor]: Well, let me ask you, you asked him, “What jail am I going to?”
                     Do you remember that?
       [Burgess]:    Yes, I do, sir.
       [Prosecutor]: And he says, “I’m not taking you to jail. I’m taking you to the
                     hospital,” right?
       [Burgess]:    Yes, sir.
       [Prosecutor]: And then you say, “You guys aren’t going to try and charge me
                     with assault on an officer because I was trying to die, not hurt
                     anybody?”
       [Burgess]:    I do not recall saying that. I do recall saying the part I was just
                     trying to die, not hurt anybody though.

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       [Prosecutor]: Do you recall [ ] telling him, “That it’s still going to come out with
                     assault with a weapon or some shit like that?”
       [Burgess]:    I do not recall saying that. Most of my general statements was
                     apologizing and saying that I was trying--my intentions were to die
                     that day.

As to Burgess’s first two statements referenced by the prosecutor, Burgess posed questions to the
trooper, not the other way around. “[T]he definition of interrogation can extend only to words or
actions on the part of police officers that they should have known were reasonably likely to elicit
an incriminating response.” Innis, 466 U.S. at 302. Because these statements were not responses
to questions, words, or actions by the trooper, he was not subjected to interrogation when he
asked these questions. As to Burgess’s final statement referenced by the prosecutor, from our
record we cannot tell whether it was also volunteered or in response to questioning designed to
elicit an incriminating response. Accordingly, we cannot conclude that Burgess was subject to
interrogation, and therefore, his statements were not obtained in violation of Miranda. 2 The
district court did not err in admitting Burgess’s statements into evidence.
B.     Statement Made to Hospital Personnel
       Burgess asserts that the district court erred when it admitted the statement he made to
hospital staff that he had used methamphetamine earlier in the day, because its probative value is
outweighed by its prejudicial effect. Relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice. Idaho Rule of Evidence 403. A
lower court’s determination under I.R.E. 403 will not be disturbed on appeal unless it is shown to
be an abuse of discretion. State v. Enno, 119 Idaho 392, 405-06, 807 P.2d 610, 623-24 (1991);
State v. Clark, 115 Idaho 1056, 1059, 772 P.2d 263, 266 (Ct. App. 1989).
       In admitting the statement that Burgess injected methamphetamine on the same day he
was alleged to have committed the charged crimes, the district court found that the evidence was
relevant to Burgess’s state of mind, which is precisely what he put at issue. At trial, Burgess
asserted that he was suicidal and hoped that brandishing the knife would lead the officers to
shoot and kill him. Accordingly, his state of mind was relevant to his defense. In addition,




2
        It is difficult to discern the inculpatory nature of the statements, as they were made
contemporaneously with the events and are consistent with Burgess’s defense that he did not
intend an assault, but wanted to be killed.
                                                 5
because Burgess testified to the events in question, his drug use bore on the accuracy of his
testimony and his credibility. The district court did not err in admitting Burgess’s statement.
                                                III.
                                         CONCLUSION
       Burgess has failed to show that the district court erred in admitting his statements to the
police and to hospital personnel. Therefore, Burgess’s judgment of conviction and sentences are
affirmed.
       Chief Judge MELANSON and Judge GUTIERREZ CONCUR.




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