               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 44476

STATE OF IDAHO,                                 ) 2017 Opinion No. 51
                                                )
       Plaintiff-Respondent,                    ) Filed: October 10, 2017
                                                )
v.                                              ) Karel A. Lehrman, Clerk
                                                )
SAMUEL J. DAVIS,                                )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Cynthia K.C. Meyer, District Judge.

       Order denying motion to suppress, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Justin M. Curtis, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GRATTON, Chief Judge
       Samuel J. Davis appeals from his judgment of conviction entered upon his conditional
guilty plea to robbery, asserting the district court erred by denying his motion to suppress and
that his confession was not voluntary. We affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Davis traveled to Spokane, Washington, to attend a hearing regarding the custody of his
child. Driving back to his home in Vienna, Missouri, he realized he did not have enough money
to complete the trip and robbed a check-cashing business at gunpoint in Post Falls, Idaho. He
was identified as a suspect in the robbery pursuant to a review of video footage and a description
provided by the clerk on duty. An arrest warrant was issued and Davis was arrested after he
reached Vienna. Detectives from the Post Falls Police Department traveled to Vienna where


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Davis was in custody and conducted an interrogation in which Davis made incriminating
statements regarding the robbery.
         The State charged Davis with robbery, Idaho Code § 18-6501, burglary, I.C. § 18-1401,
in addition to a deadly weapon enhancement, I.C. § 19-2520. Davis filed a motion to suppress
statements made during the interrogation, which was denied. Davis entered into a conditional
guilty plea agreement in which he reserved his right to appeal the denial of his motion to
suppress. He pled guilty to robbery and the State dismissed the burglary charge and the deadly
weapon enhancement. Davis timely appeals.
                                                   II.
                                              ANALYSIS
         Davis asserts the district court erred in denying his motion to suppress because he
invoked his right to counsel and because his confession was not voluntary. The standard of
review of a suppression motion is bifurcated. When a decision on a motion to suppress is
challenged, we accept the trial court’s findings of fact that are supported by substantial evidence,
but we freely review the application of constitutional principles to the facts as found. State v.
Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct. App. 1996). At a suppression hearing,
the power to assess the credibility of witnesses, resolve factual conflicts, weigh evidence, and
draw factual inferences is vested in the trial court. State v. Valdez-Molina, 127 Idaho 102, 106,
897 P.2d 993, 997 (1995); State v. Schevers, 132 Idaho 786, 789, 979 P.2d 659, 662 (Ct. App.
1999).
          After an individual is advised of his right to the assistance of counsel, interrogating
officers are only required to cease questioning if the individual makes a clear and unequivocal
request for counsel. Davis v. United States, 512 U.S. 452, 461-62 (1994). If a reference
regarding a desire for an attorney’s assistance is ambiguous or equivocal so that a reasonable
officer, in light of the circumstances, would have understood only that the suspect might be
invoking the right to counsel, the officer is not required to stop questioning the suspect. Id. at
454-61; State v. Payne, 146 Idaho 548, 559, 199 P.3d 123, 134 (2008).
         In this case, the interrogation included in part:
         Detective 1:   Because I’ve got you stuck in this little room here, I’m going to tell
                        you what your rights are, okay?
                        You have the right to remain silent. Anything you say can and will
                        be used against you in a court of law. You have the right to talk to

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                       a lawyer and have him present with you while you’re being
                       questioned. If you can’t afford to hire a lawyer, one will be
                       appointed to represent you before questioning, if you wish one.
                       Do you understand what I just told you?
       Davis:          Yes.
       Then later in the interrogation, the following took place:
       Detective 1:    Was it a one-time thing or more than one?
       Davis:          I think I need to talk to a lawyer before I say anything else. I
                       mean, I want to help you guys out, but I’m not--I got so much on
                       the line. I’m in the Air Force reserves, I got my job at FedEx, I got
                       my kid.
(emphasis added).
       In Payne, the Idaho Supreme Court has held that phrases such as “I think,” and “maybe I
should” are equivocal. Payne, 146 Idaho at 559, 199 P.3d at 134. In Payne, the petitioner made
the statement, “I don’t think I should answer that.” Id. The Court held it was not sufficiently
clear such that a reasonable officer would understand it as an invocation of the right to remain
silent, and found the petitioner did not clearly invoke his right to remain silent and the officer did
not have a duty to discontinue his questioning of the petitioner. Id. Likewise, in this case,
Davis’s statement that, “I think I need to talk to a lawyer before I say anything else,” is
equivocal. Because Davis did not unequivocally invoke his right to counsel, the officer was not
required to stop questioning. Therefore, the district court did not err in denying his motion to
suppress based on invocation of the right to counsel.
       Davis also asserts his confession was involuntary. Use of an involuntary statement
against a criminal defendant violates the Due Process Clause. State v. Hays, 159 Idaho 476, 485-
86, 362 P.3d 551, 560-61 (Ct. App. 2015). Whether a statement was involuntary turns on
whether the defendant’s will was overborne by police coercion.             Id.   In determining the
voluntariness of a confession, a court must look to the characteristics of the accused and the
details of the interrogation, including: (1) whether Miranda 1 warnings were given; (2) the youth
of the accused; (3) the level of education or low intelligence of the accused; (4) the length of the
detention; (5) the repeated and prolonged nature of the questioning; and (6) deprivation of food
or sleep. State v. Stone, 154 Idaho 949, 953, 303 P.3d 636, 640 (Ct. App. 2013). Further, if the
defendant’s free will is undermined by threats or through direct or implied promises, then the
statement is involuntary and not admissible. Id.
1
       See Miranda v. Arizona, 384 U.S. 436 (1966).
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In this case, the officers and Davis conversed as follows:
Detective 2:   I mean, you’re caught. Bottom line is you’re caught, and it just
               depends on whether you want to be responsible and fess up to what
               you did, and I’m guessing what [Detective 1] said is that you just
               didn’t have enough money to get home. And that’s under-
               standable. It really is.
Davis:         What kind of a deal can you give me?
Detective 2:   I can’t make any deals. That’s up to the prosecutor.
Davis:         Because I can’t afford to be expedited (sic) back. I mean--
Detective 1:   Well, here’s what I can tell you. As this case stands right now, if I
               don’t have your side to include in it, it’s just going to look like
               some guy going in at gunpoint and scaring the bejesus out of this
               lady, stealing the money, and taking off across the country.
               So my goal today is to find out what the real story is here and find
               out--I believe it’s a one-time thing, but I have to hear that from
               you.
               So, certainly, you know, if you want an attorney, you could go that
               route, but I would really like to be able to document this, because
               all I’ve got is what I know, and it’s enough to charge you and it’s
               enough to prove it, but if this was just a one-time thing where you
               were screwed and you were stuck in Post Falls or you were stuck
               in Spokane and you didn’t have a way to get home, I get it. But I
               need to hear that from you.
Detective 2:   The problem here is we also have a couple more that happened just
               previous to that in Spokane, so they’re asking us to determine
               whether or not you are also involved with that or whether you just
               were involved with ours.
Detective 1:   So, Sam, what’s it going to be?
Detective 2:   You need to do the right thing, Sam. You do.
Davis:         I know, but if I give you my side of the story, can you get with the
               prosecutor to work out a deal where I don’t get expedited (sic)
               back?
Detective 1:   What I can promise you is that I will tell the prosecutor your side
               of the story. I’m not authorized to make any sort of deal. I can’t --
Davis:         But is there any way you can call from here and talk to them?
Detective 1:   I can certainly share the information, but I can’t make any deals.
Detective 2:   The warrant’s there. The warrant’s been put in the system. That’s--
Davis:         I seen that. That’s what they told me. It’s a $100,000 bond.
               I mean, as long as you can guarantee to call the prosecutor tonight.
Detective 1:   Yeah, we’ll call the prosecutor.
Detective 2:   We’ll call the prosecutor.
Detective 1:   For sure.
Davis:         When I left the courthouse--
Detective 2:   Wait. Before you do this, you want to talk to us; right?
Davis:         Yeah.
Detective 2:   Okay.

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       Davis:         I mean, that’s the only way I got. I mean, I can’t afford a lawyer.
                      If I get expedited (sic), I’m losing everything and then some. I’ll
                      never be able to recover, but--
       Detective 2:   So start . . . from the beginning.
       Davis acknowledges he was read his Miranda rights, that there is no evidence he was
subject to an inordinately long interrogation, or that he was deprived of food, water, or sleep. At
the time of the interrogation, Davis was twenty-eight years old, had served in the United States
Air Force, and he does not dispute the district court’s finding that he had “at least average
intelligence.” Davis focuses on the nature of the questioning, asserting the detectives took
advantage of the fact he did not want to be extradited back to Idaho and that the detectives
“clearly suggested that the only way he could avoid extradition to Idaho was by doing the right
thing and confessing to the robbery.” Further, Davis argues that his statement that he could not
afford a lawyer suggests he did not fully understand the Miranda warnings since he did not
realize an attorney could be appointed free of charge. Davis submits that he only spoke to the
officers after they promised to talk with the prosecutor, with whom Davis wanted them to discuss
avoiding extradition. He asserts the totality of circumstances shows that he only confessed to
avoid extradition.
       Davis was concerned about extradition, but his concern does not suggest police coercion.
Nothing said by the officers took improper advantage of his concern or amount to a threat to
coerce a confession. The officers repeatedly stated they were not in a position where they could
offer him a deal guaranteeing he would not be extradited. They did not directly or indirectly
promise Davis that he would be able to stay in Missouri. While the officers did promise to talk
with the prosecutor, it was only an assurance of telling Davis’s side of the story. The agreement
to call the prosecutor did not rise to the level of his free will being undermined by direct or
implied promises. Additionally, Davis’s lone comment that he could not afford a lawyer does
not negate that he verbally acknowledged he understood his Miranda rights. Thus, the district
court correctly determined Davis’s statements were voluntary and denied his motion to suppress.
                                               III.
                                        CONCLUSION
       Davis did not unequivocally invoke his right to counsel and his confession was voluntary
and admissible. Therefore, the district court’s order denying his motion to suppress is affirmed.
       Judge GUTIERREZ and Judge HUSKEY CONCUR.


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