                                                                                        December 8 2008


                                           05-443

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2008 MT 408



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

BRIAN ROBERT SCHNEIDER,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Eighteenth Judicial District,
                      In and For the County of Gallatin, Cause No. DC 04-103
                      Honorable Holly Brown, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Peter B. Ohman, Chief Deputy Public Defender; Bozeman, Montana

               For Appellee:

                      Hon. Mike McGrath, Montana Attorney General; Helena, Montana

                      Martin D. Lambert, Gallatin County Attorney; Bozeman, Montana




                                                    Submitted on Briefs: June 1, 2006

                                                               Decided: December 8, 2008


Filed:

                      __________________________________________
                                        Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Appellant Brian Robert Schneider (Schneider) appeals from the order of the

Eighteenth Judicial District Court, Gallatin County, denying his motion to suppress

incriminating statements he made during a custodial interrogation. We affirm.

¶2     We consider the following issues on appeal:

¶3     1. Does admission of Schneider’s statements concerning his involvement in a

murder, made to law enforcement officers during a custodial interrogation, conducted

outside the presence of counsel appointed for Schneider on a different charge, violate

Schneider’s state constitutional rights?

¶4     2. Does application of the Cobb “offense-specific” test violate Schneider’s right

to equal protection under state and federal constitutional law?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶5     On February 22, 2004, Schneider and his companion, Lee Cowan (Cowan), were

stopped and questioned by authorities in Pima County, Arizona, while trying to gain

entrance to Mexico. Thereafter, Cowan confessed to murdering his mother and her

boyfriend in Gallatin County, Montana. Authorities arrested both men.

¶6     At the time of the arrest, Schneider was on probation for felony theft in the Fifth

Judicial District Court, Madison County, Montana.         As a condition of Schneider’s

probation, he was prohibited from leaving Montana without his probation officer’s

permission. Schneider had not sought permission to leave Montana before departing for

Mexico with Cowan. As a result, the Madison County Attorney’s Office filed a petition

                                           2
to revoke Schneider’s deferred sentence on the ground that Schneider had “left his

assigned district without the written permission of his supervising officer.” An arrest

warrant was issued on February 23, 2004, and on that same day, in response to the

warrant, Arizona filed an “interim complaint” against Schneider in Pima County Superior

Court, charging him with the crime of being a fugitive from justice pursuant to Ariz. Rev.

Stat. § 13-3842. Schneider appeared in Pima County Superior Court and was appointed a

public defender, Verne Hill (Hill), to represent him. Schneider met with Hill two days

later on February 25, 2004.

¶7    The next day, while still in custody in Arizona, law enforcement officers from the

Gallatin County Sheriff’s Office, the Pima County Sheriff’s Office, and the Montana

Division of Criminal Investigation interrogated Schneider regarding the Cowan murders.

At the time of the interrogation, the officers were uncertain about Schneider’s

involvement with the murders. The officers initiated the interrogation and did not contact

or seek permission to do so from Hill. However, before questioning Schneider, the

officers advised Schneider of his Miranda rights. Schneider waived those rights both

orally and in writing, and did not indicate a desire for the assistance of counsel at any

time during the questioning, wherein he made incriminating statements regarding his

involvement with the Cowan murders.

¶8    On April 2, 2004, based on the incriminating statements made during the

interrogation and in conjunction with other evidence obtained by law enforcement, the

State charged Schneider with two counts of accountability for deliberate homicide. On

                                        3
October 6, 2004, Schneider moved to suppress the statements he made during the

Arizona interrogation. After briefing and a hearing, the District Court denied Schneider’s

motion, primarily in reliance on the United States Supreme Court decision of Texas v.

Cobb, 532 U.S. 162, 121 S. Ct. 1335 (2001).            Schneider then pled guilty to the

accountability charges, reserving the right to appeal the District Court’s order denying his

motion to suppress.     The court sentenced Schneider to two consecutive 100 year

sentences. Schneider appeals the District Court’s denial of his motion to suppress.

                               STANDARD OF REVIEW

¶9     We review the denial of a motion to suppress to determine if the district court’s

findings of fact are clearly erroneous, and whether its interpretation and application of the

law is correct. State v. Pierce, 2005 MT 182, ¶ 12, 328 Mont. 33, ¶ 12, 116 P.3d 817, ¶

12.   Findings of fact are clearly erroneous if they are unsupported by substantial

evidence, the court misapprehended the effect of the evidence, or review of the record

convinces us that a mistake has been made. Pierce, ¶ 12. We review a district court’s

conclusions of law and interpretations of the constitution de novo. State v. Mizenko, 2006

MT 11, ¶ 8, 330 Mont. 299, ¶ 8, 127 P.3d 458, ¶ 8.

                                      DISCUSSION

¶10 1. Does admission of Schneider’s statements concerning his involvement in a
murder, made to law enforcement officers during a custodial interrogation,
conducted outside the presence of counsel appointed for Schneider on a different
charge, violate Schneider’s state constitutional rights?

¶11    Schneider argues that law enforcement officers violated his Article II, Section 24

right to counsel under the Montana Constitution when they interrogated him about the
                                          4
Cowan murders during his Arizona confinement, without informing or seeking the

permission of the attorney appointed to represent him on the Arizona fugitive from

justice charge. Acknowledging that the United States Supreme Court rejected such a

claim in Cobb, Schneider “requests this Court . . . provide more protections to the citizens

of the State of Montana than that provided by the United States Constitution” by

interpreting Article II, Section 24 as more expansive than the corresponding Sixth

Amendment to the United States Constitution. Schneider contends that the “offense

specific” application of the Sixth Amendment by the United States Supreme Court in

Cobb to determine when the right to counsel attaches is “problematic” and “fraught with

problems,” and asks us to apply a “factually related test to issues concerning appointment

of counsel” under Article II, Section 24.

¶12    In Cobb, Cobb was arrested and charged with burglary. Over a year later, police

arrested Cobb based on a tip that he had murdered a woman and her daughter who had

been missing since the burglary. During a custodial interrogation, outside the presence of

Cobb’s counsel for the burglary charge, Cobb confessed to the murders. Cobb sought to

suppress his confession as a violation of the Sixth Amendment, arguing that the burglary

and the murders were closely factually related such that his Sixth Amendment right,

which had attached for the burglary charge, also attached for purposes of the murder

investigation, making the interrogation without his counsel unlawful. Cobb, 532 U.S. at

165-67, 121 S. Ct. at 1339-40.




                                            5
¶13    The United States Supreme Court, Chief Justice Rehnquist writing, reaffirmed its

earlier determination that the Sixth Amendment right to counsel is “offense specific,”

meaning that it only applies with respect to the charged offense and “it cannot be invoked

once for all future prosecutions . . . .” Cobb, 532 U.S. at 167, 121 S. Ct. at 1340 (citing

McNeil v. Wis., 501 U.S. 171, 175, 111 S. Ct. 2204, 2207 (1991)). Accordingly, the

Court held that statements, which result from a defendant’s un-counseled interrogation

regarding offenses for which the defendant has not been charged, are “admissible

notwithstanding the attachment of his Sixth Amendment right to counsel on other

charged offenses,” and despite the fact that the defendant’s counsel for the charged

offense may not have been present at, or informed of, the interrogation. Cobb, 532 U.S.

at 168, 121 S. Ct. at 1340. However, the Court also recognized that, while the Sixth

Amendment attaches only to charged offenses, “the definition of an ‘offense’ is not

necessarily limited to the four corners of a charging instrument.” Cobb, 501 U.S. at 173,

111 S. Ct. at 1343. Rather, after the Sixth Amendment has attached, it “encompass[es]

offenses that, even if not formally charged, would be considered the same offense under

the Blockburger test.” Cobb, 501 U.S. at 173, 111 S. Ct. at 1343. Thus, to define the

term “offense” for purposes of the Sixth Amendment, the Supreme Court applied the

definition of that term used in double jeopardy jurisprudence, noting that there was “no

constitutional difference between the meaning of the term ‘offense’ in the contexts of

double jeopardy and of the right to counsel.” Cobb, 532 U.S. at 173, 121 S. Ct. at 1343;

see also Blockburger v. U.S., 284 U.S. 299, 52 S. Ct. 180 (1932). Therefore, under the

                                         6
Sixth Amendment, “‘where the same act or transaction constitutes a violation of two

distinct statutory provisions, the test to be applied to determine whether there are two

offenses or only one, is whether each provision requires proof of a fact which the other

does not.’” Cobb, 532 U.S. at 173, 121 S. Ct. at 1343 (quoting Blockburger, 284 U.S. at

304, 52 S. Ct. at 182).1 Justice Breyer, joined by Justices Stevens, Souter, and Ginsburg,

dissented from the majority opinion. Lamenting the application of the Blockburger test,

the dissent supported adoption of a “closely factually related” test sought by Cobb.

Cobb, 532 U.S. at 186, 121 S. Ct. at 1350. The dissent asserted that the Cobb holding

would permit the State, by simply charging only one of many possible offenses, to

question nearly every person charged without first contacting counsel. Cobb, 532 U.S. at

182-83, 121 S. Ct. at 1348-49.

¶14   Schneider urges that we interpret Article II, Section 24 more expansively than the

United States Constitution’s Sixth Amendment. He premises his argument upon Justice

Breyer’s dissent in Cobb, urging that “[a]doption of the dissent’s test in Cobb would give

effect to the plain language of Montana’s Constitution and still preserve law

enforcement’s right to conduct interrogations in appropriate situations.” The State asks

that we reject Schneider’s argument that a different outcome should result from

application of the Montana Constitution. Unfortunately, the State offers little analysis



1
  This is generally known as the “Blockburger” test, but is also referred to as the “same-
elements” test. This is because the true inquiry is “whether each offense contains an
element not contained in the other[,]” as opposed to a proof of fact which the other does
not. U.S. v. Dixon, 509 U.S. 688, 696, 113 S. Ct. 2849, 2856 (1993) (emphasis added).
                                        7
regarding the possibility that the Montana constitutional right to counsel may not

perfectly align with the federal constitutional right.

¶15    Schneider notes correctly that “this Court has refused to march lock step with

decisions of the United States Supreme Court.” See Woirhaye v. Mont. Fourth Jud. Dist.

Ct., 1998 MT 320, ¶ 14, 292 Mont. 185, ¶ 14, 972 P.2d 800, ¶ 14 (“we have refused to

‘march lock-step’ with the United States Supreme Court’s interpretation of corresponding

provisions in the federal constitution”). Although we consider federal authority and have

concluded that the Montana Constitution provides equivalent protections or analytical

frameworks as the United States Constitution in some instances,2 we nonetheless conduct

an independent review to determine the separate and particular intent of the framers of

the Montana Constitution. That intent is first to be “determined from the plain meaning

of the words used.” Woirhaye, ¶ 15. Where the meaning cannot be determined entirely

from the plain wording, we consider the relevant legislative intent, which in the case of

constitutional interpretation is the 1972 Constitutional Convention. Kottel v. State, 2002

MT 278, ¶ 9, 312 Mont. 387, ¶ 9, 60 P.3d 403, ¶ 9. We look to relevant precedent that

2
  See e.g. State v. Ariegwe, 2007 MT 204, ¶ 34, 338 Mont. 442, ¶ 34, 167 P.3d 815, ¶ 34
(relying on Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972), as the “most complete
standard available to judge speedy trial questions” pursuant to Article II, Section 24 of
the Montana Constitution); State v. Jackson, 206 Mont. 338, 344, 672 P.2d 255, 258
(1983) (stating that “the Montana constitutional guarantee of the privilege against self-
incrimination affords no broader protection to an accused than does the Fifth Amendment
and that the opinion of the United States Supreme Court delineates the maximum breadth
of the privilege against self-incrimination in Montana”) (internal citation omitted);
overruled on other grounds, State v. Johnson, 221 Mont. 503, 512, 719 P.2d 1248, 1254
(1986)); see also Quigg v. Slaughter, 2007 MT 76, ¶ 18, 336 Mont. 474, ¶ 18, 154 P.3d
1217, ¶ 18 (explaining that we look “to federal law for guidance” when interpreting the
Montana Constitution).
                                           8
has already interpreted the provision at issue. Kottel, ¶ 9. We may also be guided by

federal precedent. Quigg, ¶ 18.

¶16    Article II, Section 24 of the Montana Constitution is Montana’s counterpart to the

United States Constitution’s Sixth Amendment right to counsel. This section states:

              Section 24. Rights of the accused. In all criminal prosecutions the
       accused shall have the right to appear and defend in person and by counsel;
       to demand the nature and cause of the accusation; to meet the witnesses
       against him face to face; to have process to compel the attendance of
       witnesses in his behalf, and a speedy public trial by an impartial jury of the
       county or district in which the offense is alleged to have been committed,
       subject to the right of the state to have a change of venue for any of the
       causes for which the defendant may obtain the same.

Schneider argues that the right to counsel under this provision should attach earlier in the

criminal process than the “offense specific” Sixth Amendment would attach. He urges

that this Court “should recognize the right to counsel attached at the time Mr. Schneider

was appointed an attorney on February 23, 2004, and from that point forward the State

should only have been permitted to interview Mr. Schneider concerning closely factually

related matters with his counsel present.”

¶17    The plain language of Section 24 does not expressly indicate at what point in time

the right to counsel attaches. However, the language does expressly provide, both in the

title and within the provision, that the rights to be protected are those belonging to “the

accused.”   Further, the provision enumerates the rights of the accused which are

protected, all of which apply within the context of formal “criminal prosecutions,” a term

used in the provision. See State v. Reavley, 2003 MT 298, ¶ 45, 318 Mont. 150, ¶ 45, 79

P.3d 270, ¶ 45 (right to counsel not violated because defendant “was not an ‘accused’ and
                                         9
there was no ‘criminal prosecution’”).      These provisions are consistent with the

characteristics of the Sixth Amendment right.

¶18   This consistency is reflected in the deliberations on Article II, Section 24 during

the 1972 Constitutional Convention, which indicated an intention on the part of the

delegates to align Section 24 with the Sixth Amendment. The Bill of Rights Committee

unanimously adopted Section 24, explaining that the Committee “felt [that Section 24]

was an admirable statement of the fundamental procedural rights of an accused.”

Montana Constitutional Convention, Committee Proposals, Feb. 23, 1972, p. 641.

Delegate James informed the Convention that “this section is basically the same as

Article VI in the Bill of Rights in the federal Constitution adopted in 1791.” Montana

Constitutional Convention, Verbatim Transcript, March 9, 1972, p. 1776. He further

explained that Section 24 was the identical provision to Section 16 of the 1889

Constitution and that the Bill of Rights Committee had offered no changes because it

“has stood the test of time . . . [and] should be adopted as is.” Montana Constitutional

Convention, Verbatim Transcript, March 9, 1972, p. 1776. The convention transcripts

reveal no dissatisfaction with the Sixth Amendment nor demonstrate any intention on the

part of the convention delegates to expand Section 24 beyond the scope and purpose of

the Sixth Amendment. Rather, specific comparison to the Sixth Amendment was made

in adopting Section 24. Thus, it is particularly appropriate that we look to federal

authority interpreting the Sixth Amendment for guidance. Quigg, ¶ 18.




                                       10
¶19    The Sixth Amendment provides that “in all criminal prosecutions, the accused

shall enjoy the right . . . to have the assistance of counsel for his defense.” U.S. Const.

amend. VI. The Sixth Amendment right to counsel has been held not to attach until

adversarial judicial proceedings are commenced by the state and, as it applies only to the

charged offense, it is “offense specific.” McNeil, 501 U.S. at 175, 111 S. Ct. at 2207; see

also U.S. v. Percy, 250 F.3d 720, 725 (9th Cir. 2001). After the right attaches and has

been invoked, police may not question an accused about the crime for which he has been

charged without first seeking permission from his appointed counsel. McNeil, 501 U.S.

at 175, 111 S. Ct. at 2207.

¶20    The United States Supreme Court has noted that the “core purpose” of the right to

counsel contained in the Sixth Amendment is to “assure aid at trial . . . .” U.S. v.

Gouveia, 467 U.S. 180, 188-89, 104 S. Ct. 2292, 2298 (1984). It has explained that the

Sixth Amendment right to counsel secures a trial-based right, intended to ensure fairness

in the adversarial process by minimizing any inherent advantages which might exist on

the side of the state when it prosecutes an average non-law educated defendant. See

Strickland v. Wash., 466 U.S. 668, 686, 104 S. Ct. 2052, 2063-64 (1984); Johnson v.

Zerbst, 304 U.S. 458, 462-63, 58 S. Ct. 1019, 1022 (1938); Powell v. Ala., 287 U.S. 45,

68-69, 53 S. Ct. 55, 64 (1932). The Supreme Court has extended the Sixth Amendment

to what it calls “critical pretrial proceedings,” including post-charge interrogations, and

the Court’s rationale for doing so demonstrates that the Sixth Amendment right remains

grounded in formal adversarial proceedings. The Court has explained that extension of

                                        11
the Sixth Amendment is necessary where “‘the accused [is] confronted, just as at trial, by

the procedural system, or by his expert adversary, or by both,’ in a situation where the

results of the confrontation ‘might well settle the accused’s fate and reduce the trial itself

to a mere formality.’” Gouveia, 467 U.S. at 189, 104 S. Ct. at 2298 (alteration in

original) (internal citations omitted).

¶21    We have been guided by federal authority in our right to counsel cases. Noting, in

Reavley, that Montana law regarding when the right to counsel attaches “has not always

been consistent,” we explained “[h]owever, the standard in Montana is now clear and

consistent with federal law as enunciated in Hayes.” Reavley, ¶ 40 (emphasis added).

Reavley explained the Hayes analysis of the Sixth Amendment right as follows:

       “The Sixth Amendment right to counsel does not attach until after the
       initiation of formal charges.” Hayes, 231 F.3d at 667; Moran v. Burbine
       (1986), 475 U.S. 412, 431, 106 S. Ct. 1135, 1146, 89 L. Ed. 2d 410, 427;
       Kirby v. Illinois (1972), 406 U.S. 682, 688, 92 S. Ct. 1877, 1881, 32 L. Ed.
       2d 411, 417; United States v. Gouveia (1984), 467 U.S. 180, 185, 104 S. Ct.
       2292, 2296, 81 L. Ed. 2d 146, 152. There must be both a “criminal
       prosecution” and an “accused” in order for the Sixth Amendment right to
       attach. Hayes, 231 F.3d at 669. Adversarial judicial proceedings must be
       formally initiated. Hayes, 231 F.3d at 672 (citations omitted). Being the
       target of an investigation is not the equivalent to being formally charged
       with an offense and is insufficient to trigger the right to counsel. Hayes,
       231 F.3d at 674 (citations omitted). The existence of an attorney-client
       relationship itself is insufficient to trigger the Sixth Amendment
       protections. Hayes, 231 F.3d at 671 (citation omitted).

Reavley, ¶ 39. The Hayes Court re-emphasized that there must be both a “criminal

prosecution” and an “accused” in order for the Sixth Amendment to attach, and that the

existence of an attorney-client relationship is insufficient by itself to trigger the

protections of the Sixth Amendment.
                                          12
¶22   In Reavley, which Schneider attempts to distinguish, we likewise found the

Supreme Court’s holding in Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135 (1986),

instructive. Reavley was interviewed by the police regarding two homicides. On the

same day as the interview police were notified that Reavley had consulted counsel after

leaving the station. The following day, Reavley’s former girlfriend, in cooperation with

the police, met with Reavley at a local hotel and recorded their conversation, during

which Reavley made potentially incriminating statements. Shortly thereafter, Reavley

was charged with two counts of murder in the first degree and the State sought to use the

statements at trial. In reversing the district court’s suppression of this evidence, we

quoted with approval the consequences of the offense specific Sixth Amendment right:

      If proceedings have begun, “the government may not deliberately elicit
      incriminating statements from an accused out of the presence of counsel”
      and any evidence so elicited will be inadmissible. Moran, 475 U.S. at 431,
      106 S. Ct. at 1146 . . . . However, if proceedings have not been initiated,
      evidence obtained in exactly the same manner from the identical suspect
      would be admissible at trial.

Reavley, ¶ 44. Applying Moran, we concluded that Reavley’s right to counsel was not

violated because, despite the fact that Reavley obtained counsel for the potential charges

for which he was under investigation, proceedings had not yet been initiated and

therefore the right to counsel had not attached at the time he made the incriminating

statements. Reavley, ¶ 45.

¶23   Consequently, the wording of the text of Section 24, the Convention delegates’

expressed intent, and our case law all demonstrate that the right to counsel under the

Montana Constitution is a trial-based right which is consistent with the right provided by
                                        13
Sixth Amendment of the United States Constitution. As such, the Montana right applies

with respect to an offense when prosecution has been commenced for that offense,

“cannot be invoked once for all future prosecutions,” and is “offense specific.” McNeil,

501 U.S. at 175, 111 S. Ct. at 2207.          The right also attaches for other “offenses”

connected to the original offense under the Sixth Amendment analysis provided by the

United States Supreme Court in Cobb.

¶24    Schneider argues that we should reject the United States Supreme Court’s

analysis, specifically its application of the Blockburger test, and expand the definition of

“offense” by implementing a “factually related” test mirroring Justice Breyer’s dissent in

Cobb, and thus grant him relief. Schneider argues:

       The majority’s decision in Cobb really ignores the present day realities of
       the criminal justice system.         It allows the prosecutor to sidestep
       fundamental rights of the poor and incarcerated persons, and almost renders
       meaningless representation by counsel at one of the critical stages of the
       proceeding . . . [T]he only workable rule for the question being raised in
       this case is the factually related test. The reason being because Appellant
       was questioned about a charge that could not be separated from the crime
       for which he had already been appointed counsel.

Schneider asserts that Arizona prosecutors charged him with being a fugitive from justice

for the sole purpose of securing his detention so that he could be interrogated regarding

his role in the Cowan murders. He argues that this technique was used in bad faith and is

the primary evil which results from the United States Supreme Court’s definition of

“offense.” Accordingly, Schneider asserts that we should not follow the Supreme Court’s

lead in defining “offense” for the purposes of Section 24 because law enforcement will


                                         14
engage in “dubious conduct” and “pick and choose when and how to charge a Defendant

simply to avoid the protections afforded by Montana’s Constitution.”

¶25    We note that Schneider’s arguments against application of the Blockburger test, as

just summarized, are policy-grounded. He asks this Court to adopt the factually related

test because of the opportunities for abuse by law enforcement which he sees within the

Blockburger test, and the corresponding deprivation of constitutional rights which could

be occasioned by such abuse. Policy arguments surrounding this issue were made in

Cobb and both sides offer such arguments here.

¶26    The Cobb Court rejected the policy arguments offered in support of the factually

related test. “Respondent predicts that the offense-specific rule will prove ‘disastrous’ to

suspects’ constitutional rights and will ‘permit law enforcement officers almost complete

and total license to conduct unwanted and uncounseled interrogations.’” Cobb, 532 U.S.

at 171, 121 S. Ct. at 1342. The Court noted that there was “no evidence that such a

parade of horribles has occurred” since the Court’s earlier decision on this issue in

McNeil, and that Cobb had failed to appreciate two considerations:                 that Fifth

Amendment protections “against compulsory self-incrimination and to consult with an

attorney” continued to protect the rights of individuals during custodial investigations,

and that “the Constitution does not negate society’s interest in the ability of police to talk

to witnesses and suspects, even those who have been charged with other offenses.”

Cobb, 532 U.S. at 171-72, 121 S. Ct. at 1342-43. The Court explained that police are

often unaware of the “sequence and scope of events they are investigating[,]” making a

                                          15
factually related test impracticable because i t would deter police from questioning

suspects for fear that they would violate the Sixth Amendment guarantees. Cobb, 532

U.S. at 173-74, 121 S. Ct. at 1343-44.

¶27    We are not persuaded that Schneider’s policy arguments have undermined the

responses provided by the United States Supreme Court in rejecting the similar

arguments in Cobb, or that the potential that law enforcement may act in bad faith

necessitates adoption of his factually related test defining “offense” for purposes of

Section 24. Like Cobb, Schneider has offered no evidence to support his contentions.

Further, similar to Cobb’s arguments, Schneider’s arguments fail to acknowledge that

officers cannot validly interrogate a defendant in a custodial setting without first warning

him or her of the right to counsel contained in the Fifth Amendment and Section 25.

Whether counsel is present or not, a defendant must waive his Fifth Amendment and

Section 25 rights before his statements may be validly obtained. This is exactly what

happened here. Schneider waived, both orally and in writing, his Fifth Amendment and

Section 25 rights prior to the interrogation, and at no later time did he assert his right to

remain silent or have an attorney present. Neither has Schneider challenged the validity

of his waiver of his Miranda rights. “We ought to question the wisdom of a judge-made

preventative rule to protect a suspect’s desire not to speak when it cannot be shown that

he had that intent.” Cobb, 532 U.S. at 176, 121 S. Ct. at 1345 (Kennedy, J., concurring).

Schneider clearly intended and voluntarily chose to talk to law enforcement.




                                         16
¶28    Having disposed of Schneider’s above-referenced arguments, we decline to

analyze his proposed factually related test further. Schneider offers additional argument

which relies upon our application of Section 24 in State v. Johnson, 221 Mont. 503, 719

P.2d 1248 (1986). However, we overruled Johnson on this point in State v. Buck, 2006

MT 81, ¶ 47, 331 Mont. 517, ¶ 47, 134 P.3d 53, ¶ 47, wherein we explained that Johnson

incorrectly relied upon Section 24 as a basis for its holding, and should have relied upon

Section 25. Buck, ¶ 47. Thus, Johnson cannot support Schneider’s Section 24 arguments

in favor of adoption of a factually related test.         Whether there are additional legal

arguments which would require adoption of an alternative definition of “offense” for

purposes of Section 24 must therefore wait for another day.

¶29    As a secondary matter Schneider asserts that, regardless of our resolution of the

above issues, certain statements he made during the murder interrogation concerned the

Arizona fugitive from justice charge, and should be suppressed under either the Sixth

Amendment or “same transaction” test as defined by statute and applied in our double

jeopardy cases. Schneider argues that these answers “must be suppressed because they

contained proof to support the charge for which he had been appointed counsel.”

However, this argument is not relevant to this proceeding. While Schneider may seek to

suppress statements related to the Arizona criminal proceeding, that case is not before us

and his Sixth Amendment and “same transaction” arguments regarding those statements

have no effect on our disposition of the issues herein.

¶30 2. Does application of the Cobb “offense-specific” test violate Schneider’s
right to equal protection under state and federal constitutional law?
                                         17
¶31     Schneider argues that the offense specific nature of the Sixth Amendment and

Article II, Section 24 right to counsel violates his right to equal protection guaranteed by

the Fourteenth Amendment of the United States Constitution and Article II, Section 4 of

the Montana Constitution. In other words, he argues that the way in which the United

States Supreme Court and this Court have interpreted the Sixth Amendment and Article

II, Section 24, respectively, violates his right to equal protection.

¶32     The Fourteenth Amendment and Article II, Section 4 of the Montana Constitution

“embody a fundamental principle of fairness: that the law must treat similarly-situated

individuals in a similar manner.” McDermott v. Mont. Dep’t of Corr., 2001 MT 134, ¶

30, 305 Mont. 462, ¶ 30, 29 P.3d 992 ¶ 30. When bringing a claim under the Equal

Protection Clause, one must show “intentional discrimination against him because of

membership in a particular class, not merely that he was treated unfairly as an

individual.” Losleben v. Oppedahl, 2004 MT 5, ¶ 17, 319 Mont. 269, ¶ 17, 83 P.3d 1271,

¶ 17.

¶33     Here, Schneider fails to establish the threshold requirements of an equal protection

claim. He neither defines a protected class to which he belongs nor demonstrates that

two similarly situated classes are being treated differently. The “scenarios” offered to

show potential disparate treatment are not supported by authority demonstrating

application of equal protection principles in these contexts. True, some people may enjoy

the right to counsel under the Sixth Amendment and Article II, Section 24, while others

may not. However, neither this Court nor the United States Supreme Court violates equal
                                           18
protection when defining the contours of the right to counsel. Application of the Sixth

Amendment and Article II, Section 24 to certain persons does not create classifications

subject to the equal protection clause of the Fourteenth Amendment or Article II, Section

4 of the Montana Constitution.

¶34    The District Court did not err in denying Schneider’s motion to suppress his

statements. Affirmed.

                                                 /S/ JIM RICE


We concur:


/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS




Justice James C. Nelson, specially concurring.

¶35    I concur in the Court’s conclusion under Issue 2 that Schneider has not established

a plausible equal protection claim.        As to Issue 1, however, I would dispose of

Schneider’s right to counsel claim based on an application of Texas v. Cobb, 532 U.S.

162, 121 S. Ct. 1335 (2001), to facts of this case. I would affirm on that basis and go no

further into the right to counsel issue.


                                           19
¶36    Specifically, I would not address the applicability of Article II, Section 24. For

one thing, even if we were to accept Schneider’s proposed “closely factually related” test

for purposes of analysis under Article II, Section 24, it is quite a stretch to conclude, as

Schneider asserts, that the charge of fugitive from justice filed by Arizona authorities is

“closely factually related” to the investigation by Montana authorities into Schneider’s

role in the deaths of Cowan’s mother and boyfriend in Montana. It is unnecessary for us

to consider whether or not to adopt a test proposed by the appellant for use under the

Montana Constitution when the appellant has not even demonstrated that he is entitled to

relief under that test if we were to adopt it—as is the case here. Accordingly, “based on

the long-standing principle . . . that courts should avoid constitutional issues wherever

possible,” State v. Carlson, 2000 MT 320, ¶ 17, 302 Mont. 508, ¶ 17, 15 P.3d 893, ¶ 17;

accord Wolfe v. Dept. of Labor and Industry, 255 Mont. 336, 339, 843 P.2d 338, 340

(1992); State v. Still, 273 Mont. 261, 263, 902 P.2d 546, 548 (1995), I would not reach

Schneider’s Article II, Section 24 theory.

¶37    Aside from the fact that it is unnecessary for us to interpret and apply Article II,

Section 24 in this case—given Schneider’s inability to prevail under his proposed

“closely factually related” test—Schneider’s argument in this connection is too

undeveloped to undertake a distinctive application of state constitutional principles. He

refers to Article II, Section 24 and Montana’s Constitution several times in his brief;

however, he does not offer a cogent analysis of the right to counsel issue on independent

state constitutional grounds.    Likewise, as the Court correctly observes, the State

                                         20
“[u]nfortunately . . . offers little analysis regarding the possibility that the Montana

constitutional right to counsel may not perfectly align with the federal constitutional

right.” Opinion, ¶ 14. Indeed, the Gallatin County Attorney’s brief on appeal mentions

Article II, Section 24 only twice, and in passing. There is not even a hint in the State’s

brief of the analysis that the Court includes at ¶¶ 15-28 of the Opinion.

¶38    Our caselaw in this regard is well-settled. It is not this Court’s job to conduct

legal research on a party’s behalf or to develop legal analysis that may lend support to the

party’s position. See Johansen v. Dept. of Natural Resources and Conservation, 1998

MT 51, ¶ 24, 288 Mont. 39, ¶ 24, 955 P.2d 653, ¶ 24; In re Marriage of McMahon, 2002

MT 198, ¶ 6, 311 Mont. 175, ¶ 6, 53 P.3d 1266, ¶ 6; State v. Zakovi, 2005 MT 91, ¶ 28,

326 Mont. 475, ¶ 28, 110 P.3d 469, ¶ 28; State v. Gomez, 2007 MT 111, ¶ 33, 337 Mont.

219, ¶ 33, 158 P.3d 442, ¶ 33; State v. Miller, 2008 MT 106, ¶ 15, 342 Mont. 355, ¶ 15,

181 P.3d 625, ¶ 15. Thus, in State v. Johnson, 2005 MT 48, 326 Mont. 161, 108 P.3d

485, we declined to address the defendant’s constitutional challenge because we could

not “make such a determination on the basis of the abbreviated arguments before us.”

Johnson, ¶ 11. Likewise, in State v. Garrymore, 2006 MT 245, 334 Mont. 1, 145 P.3d

946, the defendant asserted—similarly to Schneider’s assertion here—that Article II,

Sections 24 and 26 of the Montana Constitution afford a greater jury trial right than does

the Sixth Amendment to the United States Constitution; yet, critically, he “fail[ed] to

offer a compelling reason why the greater jury trial right in Montana dictate[d] a different

result in his case.”    Garrymore, ¶ 39.      As a result, we found his argument “too

                                         21
undeveloped to undertake a distinctive application of state constitutional principles,” and

we accordingly did not consider the argument further. Garrymore, ¶¶ 38, 39. The

identical situation exists here. Schneider’s observation that this Court has refused to

march lockstep with decisions of the Supreme Court when interpreting Article II, Section

24, is only the first step in an analysis that he and the State both fail to articulate in their

briefs. It is injudicious for this Court to render a decision concerning the meaning and

substance of a constitutional right based on such plainly inadequate briefing.

¶39    Lastly, as noted, the specific argument underlying the Court’s decision in favor of

the State was not argued by the State in this appeal. For that matter, it was not addressed

by the District Court. Although the District Court referred twice to Article II, Section 24,

the court did not analyze this provision. Rather, the court grounded its decision in the

Sixth Amendment and Cobb. We have stated the principle so often it has become

mantra: This Court will not address an issue raised for the first time on appeal. See e.g.

State v. Schaff, 1998 MT 104, ¶ 26, 288 Mont. 421, ¶ 26, 958 P.2d 682, ¶ 26; State v.

Brown, 1999 MT 133, ¶ 19, 294 Mont. 509, ¶ 19, 982 P.2d 468, ¶ 19; State v. Adgerson,

2003 MT 284, ¶ 12, 318 Mont. 22, ¶ 12, 78 P.3d 850, ¶ 12; State v. Vaughn, 2007 MT

164, ¶ 44, 338 Mont. 97, ¶ 44, 164 P.3d 873, ¶ 44; State v. LaFreniere, 2008 MT 99,

¶ 11, 342 Mont. 309, ¶ 11, 180 P.3d 1161, ¶ 11.

¶40    Despite these well-settled rules, the Court constructs a far-reaching Opinion which

effectively limits the reach of Article II, Section 24’s Right to Counsel Clause to the

“offense specific” interpretation placed on the Sixth Amendment by the Supreme Court

                                           22
in Cobb. However well-reasoned the Court’s approach may appear to be, we simply do

not need to reach this issue. We ought not to render, sua sponte, a decision which

severely cabins a fundamental right under the Montana Constitution where the appellant

has not demonstrated he is entitled to relief under the test he proffers and where the

parties have not adequately briefed the issue in the trial court and this Court.      Cf.

Garrymore, ¶ 15 n. 3 (“We have decided a number of cases addressing or touching on the

meaning of an ‘illegal’ sentence for purposes of the Lenihan rule . . . but have not fully

addressed the contours of the term. Further development of this issue, and reconciliation

of inconsistencies in these and other cases, may be necessary. However, neither of the

parties has cited to any of these cases or offered such argument, and we thus deem it

inappropriate to undertake such issues until they have been properly raised and briefed.”

(emphasis added)).

¶41   Whether viewed from the perspective of the defendant or the prosecution, we

have, with no necessary purpose, constructed an interpretation of Article II, Section 24

from whole cloth. We are doing the work that counsel should have done. In sum, we

should not address Schneider’s Article II, Section 24 theory. Doing so is contrary to

M. R. App. P. 12(1)f. and (2) and our well-settled jurisprudence discussed above.

¶42   In closing, I add the following observation concerning the Court’s equating of the

right to counsel under Article II, Section 24 with the right to counsel under the Sixth

Amendment. See Opinion, ¶ 23. I see no continued utility to the Blockburger test.

Montana has adopted its own definitions of “included offense,” see § 46-1-202(9), MCA,

                                        23
and “same transaction,” see § 46-1-202(23), MCA, and its own blackletter law governing

prosecutions based on the same transaction, see § 46-11-503, MCA. Unless one or more

of these statutes is held to be in violation of the federal constitution, we should be

applying Montana’s law in Montana cases to the exclusion of federal precedents that do

not align with the statutes our Legislature has adopted.

¶43    For these reasons, I specially concur.



                                                 /S/ JAMES C. NELSON




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