State v. Grimes ( 2015 )

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Decisions of the Nebraska Court of A ppeals
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STATE v. GRIMES
Cite as 23 Neb. Ct. App. 304
State of Nebraska, appellee, v.
Troy E. Grimes, appellant.
___ N.W.2d ___
Filed September 29, 2015. No. A-14-181.
1. Motions to Suppress: Confessions: Constitutional Law: Appeal and
Error. In reviewing a motion to suppress a confession based on the
claimed involuntariness of the statement, an appellate court applies a
two-part standard of review. With regard to historical facts, an appellate
court reviews the trial court’s findings for clear error. Whether those
facts suffice to meet the constitutional standards, however, is a ques-
tion of law, which an appellate court reviews independently of the trial
court’s determination.
2. Confessions. To be admissible, a statement or confession of an accused
must have been freely and voluntarily made.
3. Confessions: Due Process. The Due Process Clause of U.S. Const.
amend. XIV and the due process clause of Neb. Const. art. I, § 3, pre-
clude admissibility of an involuntary confession.
4. Confessions. Whether a confession or statement was voluntary depends
on the totality of the circumstances.
5. Confessions: Police Officers and Sheriffs: Due Process. Coercive
police activity is a necessary predicate to the finding that a confession
is not voluntary within the meaning of the Due Process Clause of the
14th Amendment.
6. Confessions: Proof: Appeal and Error. The State has the burden to
prove that a defendant’s statement was voluntary and not coerced. In
making this determination, an appellate court applies a totality of the
circumstances test.
7. Confessions: Appeal and Error. Factors to consider in determining
whether a defendant’s statement was voluntary and not coerced include
the atmosphere in which the interrogation took place, the demeanor
of the interrogation, the interrogator’s tactics, the details of the inter-
rogation, the presence or absence of warnings, physical treatment, prior
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history with the police, age, intelligence, education, background, and
any characteristic of the accused that might cause his or her will to be
easily overborne.
8. Confessions. A confession must not be extracted by any sort of threats
or violence, nor obtained by any direct or implied promises, however
slight, nor by the exertion of any improper influence.
Appeal from the District Court for Douglas County: Gary B.
R andall, Judge. Affirmed.
W. Patrick Dunn for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
Irwin, Inbody, and Pirtle, Judges.
Inbody, Judge.
I. INTRODUCTION
Troy E. Grimes appeals his jury-based conviction of posses-
sion of a firearm by a prohibited person. He contends that the
district court erred in allowing the State to adduce evidence
of statements, made by him in his postarrest interrogation,
obtained in violation of his constitutional rights. Specifically,
he contends police threatened to arrest his mother in order to
obtain inculpatory statements from him.
II. STATEMENT OF FACTS
On January 17, 2013, at approximately 9 a.m., three Omaha
police officers went to contact Grimes, who was living at his
mother’s house, based on information obtained in a separate
and unrelated investigation. Present at the house at the time
officers arrived were Grimes; his mother, Barbara Grimes;
Grimes’ girlfriend; and a friend of Grimes’, who was allowed
to leave the home after it was determined that he did not have
any outstanding warrants. Barbara granted the officers’ request
to search the house. During the search, an unregistered gun
was found in the basement of the house, wrapped in a black
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bag and placed in an old, unused furnace. The gun had eight
live rounds inside the magazine and chamber. Grimes was
arrested and transported to the police station and taken to an
interview room where Steven Kult, an officer with the Omaha
Police Department’s child victim unit, conducted an interview
of Grimes. A video recording was made of this interview
which was received into evidence during the suppression hear-
ing, and a redacted copy of the interview was received into
evidence at trial.
A review of the video recording establishes that Kult began
interviewing Grimes at 10:47 a.m. The interview began with
Kult asking Grimes questions about his medical status, edu-
cation, alcohol and drug use, amount of sleep the previous
night, work, and hobbies. At 10:51, Kult advised Grimes of
his Miranda rights, which Grimes waived. At 10:53, Kult
explained to Grimes that the reason for the interview was an
allegation by Grimes’ two daughters of child sexual abuse and
Kult informed Grimes that the police were not proceeding with
that investigation; however, Kult informed Grimes that dur-
ing the children’s interviews regarding the abuse, the children
talked about marijuana use in the home and described seeing
Grimes with a gun in the home. Kult told Grimes that because
of these disclosures, the police had to follow up at Grimes’
home, and that these disclosures are what led to the finding
of the gun. At 10:56, the following colloquy occurred between
Kult and Grimes:
[Kult:] So, I guess that I’d like to talk to you a little bit
about the gun, ’cause what I don’t want to end up happen-
ing is anything going back on mom, ’cause the gun’s in
a common area of the house, so I’ll just ask you straight
up: Was it your gun?
[Grimes:] No, but I’m not gonna let my mom take the
rap for it.
[Kult:] OK.
[Grimes:] If it—you know—if it comes to that then,
fuck that, then I’ll take it.
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[Kult:] Well, they’re gonna—right now the crime lab’s
pulling the gun out and they’re gonna do DNA. You know
your DNA’s on file, and are we going to find your DNA
on the gun?
[Grimes:] You shouldn’t.
[Kult:] I mean it’s gotta be straight up yes or no, ’cause
they’re gonna know, you know.
[Grimes:] No, I’m sayin’ you shouldn’t.
[Kult:] I mean if you ever even touched the gun, it’s
gonna be on there for years.
[Grimes:] Oh. Um, I don’t know. Why, we’ll just
say yes.
[Kult:] Come on, I mean, your girls weren’t trying to
throw you under the bus or nothing. They, they weren’t
trying to fuck you and put you in this position. They were
just telling a story, man.
[Grimes:] Yeah, it’s cool, you know. Like I said, man.
Just, I don’t know, just leave my mom out of it, man.
[Kult:] I would, I want to leave your mom out of it.
[Grimes:] All right.
[Kult:] But we, you and I got to establish who’s the
gun belong to.
[Grimes:] It’s mine, it’s mine.
[Kult:] OK. I’m not trying to hem you up. But I am
trying to keep your mom out . . . of it.
[Grimes:] Well, we’re trying to do the same thing, you
know. Just leave my mom out of it . . . .
[Kult:] ’Cause your mom’s a sweetheart. I’m sorry she
had to go through all of this today.
[Grimes:] It’s cool, man.
....
[Grimes:] So what it is, is this, man like, my mother
took [undecipherable] ’cause you said this is a com-
mon area, my mom [undecipherable] I’ll say that it’s
mine. . . .
....
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[Grimes:] So, what I’m saying, is though like, . . . so,
say my DNA ain’t on it, man, and you know what I mean,
it’s just not, and then, so, you all would try to say it’s
my mom’s, then, right, ’cause it was found in her house.
That’s where I’m going with this. So somebody has to be
responsible for that gun.
[Kult:] Someone’s gotta be responsible for the gun
’cause it didn’t grow legs or just . . . walk into your house.
[Grimes:] That’s what I’m saying.
....
[Grimes:] But even let’s just say that even that, I’m
just saying though, if my DNA wasn’t on there, but it
was found in my mom’s house, so what, they would
try . . . .
[Kult:] We gotta . . . something’s gotta happen with
the gun.
[Grimes:] Right. So someone has to. That’s what I’m
saying, someone has to be responsible for the gun.
....
[Kult:] Is it fair to say that, I mean, that it’s . . . your
gun . . . for protection, or is it your gun that you, I
mean, you just, if you like guns, or are you holding it
for someone?
[Grimes:] I mean, that’s what I’m saying though,
you’re asking about at this point it don’t matter, and I’m
just saying that ’cause my mom’s not going down for that
gun and so I’m saying its mine. That’s what it is.
During the interview, Kult also explained that the gun may
be associated with another crime and Grimes told Kult that he
had been holding the gun for a friend named “Scooby” for a
little over a year. Kult and Grimes took a break from 11:09
through 11:20 a.m., after which time Grimes signed a waiver
for the collection of a DNA sample. Another break was taken
between 11:23 and 11:29, after which a DNA swab was col-
lected from Grimes. At 11:43, Grimes was transported to jail,
concluding the interview and the recording.
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Although Grimes was in the interview room for about an
hour, the actual interview lasted for about 20 minutes. During
the interview, Grimes did not ask Kult to stop the questioning
and did not ask for an attorney. On February 8, 2013, Grimes
was charged with possession of a deadly weapon by a prohib-
ited person, a Class ID felony, in violation of Neb. Rev. Stat.
§ 28-1206 (Cum. Supp. 2014).
In April 2013, Grimes filed a motion to suppress any state-
ments made by him to law enforcement personnel during the
January 17, 2013, custodial interrogation. He alleged (1) that
law enforcement personnel interrogated him with the intent
to elicit incriminating responses without first having advised
him of his Miranda rights; (2) that law enforcement personnel
employed tactics of coercion and duress to obtain incriminat-
ing information from him and offered improper inducements
and used threats of incarceration in order to obtain incrimi-
nating information from him and that thus, his statements
were not freely, voluntarily, and intelligently given; and (3)
that his statements were obtained in violation of the U.S. and
Nebraska Constitutions.
A suppression hearing was held on May 20, 2013. At the
start of the hearing, Grimes’ counsel made an oral motion
to suppress a second, subsequent statement made by Grimes
during a followup interview by Omaha police officer Scott
Beran. The State had prepared to address both statements by
Grimes, and the district court determined that the record was
clear the suppression hearing was addressing both statements
made by Grimes and that it was unnecessary for Grimes to
file an amended motion to suppress. Kult and Beran, who had
conducted the second interview of Grimes, testified at the sup-
pression hearing.
Kult testified that he became involved in an investigation
of Grimes when Grimes’ 8-year-old and 6-year-old daughters
were brought in by their maternal grandmother regarding
allegations of sexual abuse. During the forensic interviews of
the children, they disclosed that Grimes had a firearm in the
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house. As a result of this disclosure, Kult, along with parole
officers and two uniformed officers, contacted Grimes at his
house; the firearm was located; and thereafter, Grimes was
arrested and transported to the police station, where he was
interviewed by Kult. Kult admitted that he never had any
intention of arresting Grimes’ mother and that a statement
he had made concerning her was a line of questioning in the
interview. Kult stated that although his questioning was not
designed to be a threat, he let Grimes believe that his mother
was still a suspect and might be arrested. A video recording of
the interview was received into evidence.
Beran, a firearms task force officer, testified that on January
24, 2013, at approximately 9:46 a.m., he interviewed Grimes
regarding the firearm found in Grimes’ home. At the time
of this interview, Grimes was still in custody and was inter-
viewed in a room at a Douglas County correctional facility.
There was no audio or video recording equipment in the room,
so the 9-minute interview was not recorded. After Grimes
waived his Miranda rights, Beran questioned Grimes about
where he obtained the gun and attempted to obtain informa-
tion about “Scooby”; Beran testified that Grimes had told Kult
in the initial interview that he had obtained the firearm from
“Scooby” in 2011. Grimes admitted that he did not have a
friend named “Scooby” and that he gave a statement naming
such individual because he did not want his mother to get in
trouble. During the interview, Grimes did not ask for an attor-
ney, and when he asked to go back to his cell, Beran ended
the interview and no further questions were asked of Grimes
after that time.
On May 28, 2013, the district court denied Grimes’ motion
to suppress. The district court found that Kult testified that he
was assigned to investigate Grimes regarding a sexual assault
and that during this investigation, Grimes’ daughters testified
that their “‘father’” had a gun. The court noted that Grimes
was specifically advised of his Miranda rights prior to being
interviewed. The court then noted that at the opening of the
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video-recorded interview, Kult stated to Grimes, “‘What I
don’t want to end up happening is anything going back on
Mom, because the gun was found in a common area of the
house.’” Grimes denied the gun belonged to him but stated he
would “take the charge,” based on his not wanting to involve
his mother in the investigation or in charges resulting from the
unregistered gun’s being in the home. During the interview,
similar questions and answers were given. The district court
found, in reviewing all of the evidence, that Kult’s tactics in
interviewing Grimes were not coercive, that there was no evi-
dence Grimes’ will was overborne, and that Grimes’ action in
originally lying about where he obtained the gun further raised
credibility questions regarding the statements provided by
Grimes. Additionally, regarding Grimes’ statement to Beran on
January 24, the district court found that Beran provided Grimes
with his Miranda rights, rejected the proposition that Grimes’
statement during the followup interview should be suppressed
as fruit of the poisonous tree of the original statement given to
Kult, and denied Grimes’ oral motion to suppress this second
statement to law enforcement.
Trial was held in early November 2013. The State and
Grimes stipulated that Omaha police found a “Hi Point Model
CF380 semiautomatic .380 auto caliber” pistol at Grimes’
home on January 17; that an Omaha crime laboratory techni-
cian examined and test-fired the firearm, which resulted in a
finding that the firearm operates as designed and will “fire
live rounds of .380 Auto caliber ammunition in semiauto-
matic fashion.” The parties further stipulated that Grimes
had previously been convicted of a felony “on and before
January 17, 2013.” Kult’s trial testimony did not discuss the
sexual assault investigation or Grimes’ children’s statements.
Instead, Kult testified that he began the current investigation
after receiving information in an unrelated investigation that
criminal activity was occurring at Grimes’ home and then
provided generally the same testimony as he provided at the
suppression hearing. Likewise, Beran testified generally as
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to the same facts as he did at the suppression hearing, but he
also testified that during the second interview, Grimes did not
provide names of any other individuals who may have placed
the firearm in the furnace. Grimes preserved his objections to
his two statements as previously raised and considered at the
suppression hearing.
Barbara, Grimes’ mother, testified in his defense. Barbara
testified that on January 17, 2013, Grimes was living at her
home. Also living at the house at that time were Grimes’
girlfriend, who is the mother of two of Barbara’s grandchil-
dren, and both of those grandchildren. According to Barbara,
several people had access to her home, including her brother;
Grimes’ male friend whom the officers allowed to leave; and
her 24-year-old grandson. Barbara testified that she had never
seen the gun that was recovered before it was shown to her at
trial, had never seen Grimes with a gun, did not know the gun
was in her home, and did not put the gun there.
The jury found Grimes guilty of the offense of being a felon
in possession of a firearm, and thereafter, the court sentenced
Grimes to 5 to 14 years’ imprisonment with credit for 260
days served.
III. ASSIGNMENT OF ERROR
Grimes’ sole assignment of error is that the trial court
erred in allowing the State to adduce evidence of statements,
obtained in violation of his constitutional rights, which were
made in his postarrest interrogation. In his brief, he assigned as
error that police employed tactics of coercion, duress, threats,
offers of inducements, and improper influence to obtain said
inculpatory statements; however, he argued only that Kult’s
threats to arrest his mother were coercive, threatening, and
improper influence.
IV. STANDARD OF REVIEW
[1] In reviewing a motion to suppress a confession based
on the claimed involuntariness of the statement, an appellate
court applies a two-part standard of review. With regard to
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historical facts, an appellate court reviews the trial court’s
findings for clear error. Whether those facts suffice to meet the
constitutional standards, however, is a question of law, which
an appellate court reviews independently of the trial court’s
determination. State v. Turner, 288 Neb. 249, 847 N.W.2d
69 (2014); State v. Seberger, 279 Neb. 576, 779 N.W.2d
362 (2010).
V. ANALYSIS
Grimes contends that the trial court erred in allowing the
State to adduce evidence of statements made by Grimes in
his postarrest interrogation, because police employed tac-
tics of coercion, threats, and improper influence to obtain
those statements, in violation of his constitutional rights. He
argues that under the totality of the circumstances, the tac-
tics employed by the police, especially the repeated threat
from Kult to arrest Grimes’ mother if Grimes did not accept
responsibility for possession of the gun, constituted coercive
conduct, threats, or improper influence, rendering his confes-
sion involuntary.
1. Nebraska Law
[2-7] To be admissible, a statement or confession of an
accused must have been freely and voluntarily made. State
v. Seberger, supra. The Due Process Clause of U.S. Const.
amend. XIV and the due process clause of Neb. Const. art. I,
§ 3, preclude admissibility of an involuntary confession. State
v. Turner, supra. Whether a confession or statement was vol-
untary depends on the totality of the circumstances. Id.; State
v. Seberger, supra. Coercive police activity is a necessary
predicate to the finding that a confession is not voluntary
within the meaning of the Due Process Clause of the 14th
Amendment. State v. Turner, supra; State v. Seberger, supra.
The State has the burden to prove that a defendant’s statement
was voluntary and not coerced. State v. Turner, supra; State
v. Seberger, supra. In making this determination, we apply a
totality of the circumstances test. State v. McClain, 285 Neb.
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537, 827 N.W.2d 814 (2013). Factors to consider in determin-
ing whether a defendant’s statement was voluntary and not
coerced include the atmosphere in which the interrogation took
place, the demeanor of the interrogation, the interrogator’s
tactics, the details of the interrogation, the presence or absence
of warnings, physical treatment, prior history with the police,
age, intelligence, education, background, and any characteris-
tic of the accused that might cause his or her will to be easily
overborne. See, id.; State v. Erks, 214 Neb. 302, 333 N.W.2d
776 (1983).
In State v. McClain, supra, the Nebraska Supreme Court
considered the defendant’s claim that his confession was
inadmissible because it was involuntary. In applying a totality
of the circumstances test, the court noted that the defendant
was interviewed in what appeared to be a standard interro-
gation room, the interrogator’s questioning techniques were
not improper even though he used the phrase “‘cold blooded
killer,’” the confession was just 11⁄2 hours long, and the video
showed that the defendant was “intelligent and thoughtful,
that he was aware of why he was in the room, and that he
too was trying to get information, specifically the extent of
the interrogator’s knowledge about the crimes.” Id. at 548,
827 N.W.2d at 825-26. The court stated, “After viewing the
interrogation . . . we conclude that McClain’s will was not
overborne and that his confession was voluntary.” Id. at 547,
827 N.W.2d at 825.
[8] Moreover, “a confession must not be extracted by any
sort of threats or violence, nor obtained by any direct or
implied promises, however slight, nor by the exertion of any
improper influence.” State v. Erks, 214 Neb. at 305-06, 333
N.W.2d at 779. One such threat or promise is one against a
third party, generally a defendant’s close relative or family
member. For example, in State v. Erks, supra, the Nebraska
Supreme Court affirmed the district court’s suppression of a
portion of the statements made by the defendant, who was
accused of a crime of a sexual nature, which statements were
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made after indications that the police who sought to get help
for him would also protect him and his family from embar-
rassment. The Supreme Court found that the defendant could
easily have been influenced to confess by those indications by
police and that the district court was not clearly wrong in find-
ing that the statements made subsequently to the inducements
were not made voluntarily.
Another case in which the Nebraska Supreme Court con-
sidered threats against a third party, albeit in the context of
a Fourth Amendment consent to search, is State v. Walmsley,
216 Neb. 336, 344 N.W.2d 450 (1984). In Walmsley, a sheriff
was investigating a report of “‘strange looking weeds’” grow-
ing behind the defendant’s house and, upon arriving at that
house, threatened to arrest the defendant’s wife. 216 Neb. at
336, 344 N.W.2d at 451. The trial court found that the sheriff’s
comments constituted duress or coercion of a psychological
nature and to such an extent that the defendant’s consent to the
search was impossible under the circumstances. In upholding
the trial court’s grant of the defendant’s motion to suppress,
the Nebraska Supreme Court stated that the threat of “[i]ncar-
ceration of a wife and concern at separation from children
while their parents are in custody has to produce a mental state
gravely and adversely affecting one’s ability to make deci-
sions.” Id. at 341, 344 N.W.2d at 454.
2. Case Law From Other
Jurisdictions
Although the case law in Nebraska is limited on the issue of
the impact of threats or promises against a close relative of a
defendant on a confession, many more federal and state cases
have considered the issue. We include some of those cases. For
an extensive list, see Annot., 51 A.L.R. 4th 495 (2011).
In Lynumn v. Illinois, 372 U.S. 528, 534, 83 S. Ct. 917, 9 L.
Ed. 2d 922 (1963), the U.S. Supreme Court found that it was
“abundantly clear” that the defendant’s oral confession was not
voluntary where it “was made only after the police had told her
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that state financial aid for her infant children would be cut off,
and her children taken from her, if she did not ‘cooperate’”
with officers. Similarly, in United States v. Tingle, 658 F.2d
1332, 1334 (9th Cir. 1981), the defendant’s confession was
involuntary where it was made after law enforcement told her
that a lengthy prison term could be imposed, that she had a lot
at stake, and that she would not see, or might not see, her child
“for a while” if she refused to cooperate. See, also, Rogers v.
Richmond, 365 U.S. 534, 81 S. Ct. 735, 5 L. Ed. 2d 760 (1961)
(defendant’s confession made after interrogating officer threat-
ened to bring defendant’s wife in for questioning was reversed
because lower court had applied wrong standard in analyzing
admissibility of confession).
More specific to the facts involved in the instant case are
those cases which analyze threats to arrest an accused’s family
member or close relative. These cases can generally be classi-
fied into three groups: (a) those where the threats are not found
to be coercive, (b) those where the threats are found to be
coercive, and (c) those where the law enforcement officer has
offered the defendant a “good deal.”
(a) Threats Were Not Coercive
It is widely accepted that a threat by law enforcement to
arrest an accused’s family member is not coercive if there
is probable cause to arrest the family member. U.S. v. Ortiz,
943 F. Supp. 2d 447 (S.D.N.Y. 2013); U.S. v. Johnson, 351
F.3d 254 (6th Cir. 2003) (threat to arrest suspect’s sister was
not coercive where police had probable cause to arrest sister);
Thompson v. Haley, 255 F.3d 1292 (11th Cir. 2001) (threat
to arrest suspect’s girlfriend did not render suspect’s confes-
sion involuntary where police had probable cause to do so);
Allen v. McCotter, 804 F.2d 1362 (5th Cir. 1986) (threat to
arrest defend­ant’s wife did not render defendant’s confes-
sion involuntary where police had probable cause to arrest
her). See, also, U.S. v. Ortiz, 499 F. Supp. 2d 224, 232-33
(E.D.N.Y. 2007) (“[i]t is not coercive to threaten a suspect’s
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family member with arrest to secure a Miranda waiver from
the suspect if, [sic] there is probable cause to arrest the family
member”); People v. LaDuke, 206 A.D.2d 859, 614 N.Y.S.2d
851 (1994) (it is not necessarily improper tactic for police to
capitalize on defendant’s reluctance to involve his family in
pending investigation especially where police have valid legal
basis to carry out their threats to arrest defendant’s wife and
father); State v. Garcia, 143 Idaho 774, 152 P.3d 645 (2006)
(defendant’s consent to search was not coerced even after offi-
cer told him that if defendant handed over marijuana, he and
his coworkers would be cited and released, but that if he did
not, they would be arrested, where there was probable cause
to do so).
In U.S. v. Jackson, 918 F.2d 236 (1st Cir. 1990), the First
Circuit Court of Appeals held that the defendant’s confes-
sion was voluntary where police informed him that his sister
had been arrested for a gun violation. The court noted that
there was no evidence the defendant was subjected to direct
threats or promises and that even if police did use an implied
“‘threat’” or “‘promise’” that his sister might be caused or
spared harm, depending on whether or not the defendant made
admissions, the court still could not conclude the defendant’s
will had been overborne. Id. at 242. The court noted that “any
psychological pressure exerted on [the defendant] related to an
adult sibling, not a child,” and that there was no evidence that
the defendant and his sister had an especially close relationship
or that the defendant was “unusually susceptible to psycho-
logical coercion on that account or any other, particularly in
light of [the defendant’s] very substantial previous experience
with the criminal justice system.” Id. Considering the totality
of these circumstances, the First Circuit Court of Appeals held
that the defendant “did not lose volitional control, nor was his
will overborne.” Id.
(b) Threats Were Coercive
However, where a threat by law enforcement to arrest an
accused’s close relative or family member is made without
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probable cause to do so, the threat is coercive. U.S. v. Finch,
998 F.2d 349 (6th Cir. 1993) (information defendant provided
to police concerning location of drugs was involuntary where
it was provided after police threatened to arrest his mother
and girlfriend unless he confessed, where no probable cause
to carry out threat existed); U.S. v. Munoz, 987 F. Supp.
2d 438 (S.D.N.Y. 2013) (defendant’s consent to search was
involuntary where police told defendant that other occupants
of his apartment, including his father and brother, would be
arrested if firearm was located in apartment he shared with
them unless defendant consented to search, where police had
no probable cause to arrest other occupants); U.S. v. Ortiz,
943 F. Supp. 2d 447 (S.D.N.Y. 2013) (defendant’s statements
were involuntary where police threatened to arrest defend­
ant’s mother and elderly aunt but lacked probable cause to do
so); U.S. v. Andrews, 847 F. Supp. 2d 236 (D. Mass. 2012)
(threat to arrest suspect’s elderly, ill mother rendered sus-
pect’s confession involuntary where there was no probable
cause to arrest her); U.S. v. Guzman, 724 F. Supp. 2d 434
(S.D.N.Y. 2010) (threat that defendant’s girlfriend would be
arrested until he consented to search rendered consent and
subsequent statements by defendant involuntary); State v.
Schumacher, 136 Idaho 509, 517, 37 P.3d 6, 14 (Idaho App.
2001) (“threats to prosecute a defendant’s loved one when
there is no legitimate basis to do so may be coercive and can
render a confession involuntary”); State v. Corns, 310 S.C.
546, 552, 426 S.E.2d 324, 327 (S.C. App. 1992) (defendant’s
confession was involuntary due to “veiled threats” made by
officers against defendant’s family, i.e., that his wife could
be arrested and that their children could be taken from them);
State v. Davis, 115 Idaho 462, 767 P.2d 837 (Idaho App. 1989)
(confession was involuntary where prosecutor told defend­
ant that defendant’s mother was being held due to defend­
ant’s refusal to confess and where charges against mother
were later dismissed for lack of evidence); People v. Rand,
202 Cal. App. 2d 668, 21 Cal. Rptr. 89 (1962) (defendant’s
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confession was involuntary where it was obtained after offi-
cer threatened to arrest defend­ant’s wife and put his children
in juvenile hall); People v. Matlock, 51 Cal. 2d 682, 697, 336
P.2d 505, 512 (1959) (recognizing that confession coerced
by threat to “‘bring the rest of the [defend­ant’s] family in’”
was involuntary).
For example, in Harris v. South Carolina, 338 U.S. 68,
69 S. Ct. 1354, 93 L. Ed. 1815 (1949), the defendant’s
statement was involuntary based on a totality of the circum-
stances including the threat by a sheriff to arrest the defend­
ant’s mother. In response to the threat, the defendant replied,
“‘Don’t get my mother mixed up in it and I will tell you the
truth.’” Id., 338 U.S. at 70. In finding the defendant’s state-
ment to be involuntary, the U.S. Supreme Court relied upon
the “systematic persistence of interrogation, the length of the
periods of questioning, the failure to advise the [defendant] of
his rights, the absence of friends or disinterested persons, and
the character of the defendant,” who was illiterate and was not
informed of his Miranda rights. Harris v. South Carolina, 338
U.S. at 71.
Further, even if the threat is phrased in the language of
promise, it remains an implied threat and renders the defend­
ant’s statement involuntary. United States v. Bolin, 514 F.2d
554 (7th Cir. 1975). In Bolin, the Seventh Circuit Court of
Appeals found that the defendant’s consent to search his home
made after his arrest and during custodial interrogation was
involuntary where the defendant signed a consent form only
after officers told him that “‘if he signed the search waiver,’”
they would not arrest his girlfriend. 514 F.2d at 559. The court
recognized that although the officers’ statement concerning the
potential arrest of the defendant’s girlfriend, whom officers
did not have probable cause to arrest, was “phrased in the
language of promise, there is no question that it was in fact an
implied threat that if the consent were not signed the woman
would be arrested,” and that the defendant understood the
statement as a threat. Id. at 560.
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Similarly, in People v. Trout, 54 Cal. 2d 576, 354 P.2d 231,
6 Cal. Rptr. 759 (1960), overruled on other grounds, People
v. Cahill, 5 Cal. 4th 478, 853 P.2d 1037, 20 Cal. Rptr. 2d 582
(1993), the defendant’s confession was involuntary where it
was obtained after the police made either express or implied
threats or promises that if he confessed, his wife, whom they
had no grounds to hold, would be released from custody to care
for their children.
Before a confession may be used against a defendant
the prosecution has the burden of showing that it was
voluntary and was not the result of any form of compul-
sion or promise of reward, and it is immaterial whether
the pressure or inducement was physical or mental and
whether it was express or implied.
Id. at 583, 354 P.2d at 235, 6 Cal. Rptr. at 763.
(c) “Good Deal”
However, offering a “‘good deal,’” such as a loved one’s
freedom from arrest, does not automatically render a state-
ment involuntary. U.S. v. Munoz, 987 F. Supp. 2d 438, 445
(S.D.N.Y. 2013). Courts have considered a defendant’s state-
ment to be voluntary where it is given in exchange for a
promise that police will not arrest or pursue charges against
a family member or close relative whom they have probable
cause to arrest or where the defendant’s statement is motivated
by a desire to protect or by concern for another. See, U.S. v.
Memoli, 333 F. Supp. 2d 233 (S.D.N.Y. 2004) (upheld defend­
ant’s consent to search given in exchange for promise that
police would not arrest or pursue charges against defendant’s
girlfriend, whom they had probable cause to arrest); Allen v.
McCotter, 804 F.2d 1362 (5th Cir. 1986) (defendant’s confes-
sion was voluntary where defendant was told that charges
could be filed against his wife and defendant was motivated
by his desire to prevent good faith arrest of his wife); United
States v. Jordan, 570 F.2d 635 (6th Cir. 1978) (statements
made by defendant which were motivated by desire to protect
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pregnant common-law wife whose name was on arrest war-
rant were held to be voluntary); United States v. Culp, 472
F.2d 459 (8th Cir. 1973) (defendant’s consent to search was
voluntary where defendant refused to cooperate in search until
promised that his wife, who had been arrested with him, would
be treated leniently); United States v. McShane, 462 F.2d 5
(9th Cir. 1972) (defendant’s confession was voluntary where
it was motivated by his desire to spare his girlfriend ordeal of
questioning and confinement); Vogt v. United States, 156 F.2d
308 (5th Cir. 1946) (defendant’s confession was not rendered
involuntary by officers’ telling defendant they were going to
bring his wife to jail for questioning); State v. Schumacher,
136 Idaho 509, 517, 37 P.3d 6, 14 (2001) (“a suspect’s confes-
sion is not involuntary merely because it was motivated by the
desire to prevent a good faith arrest of a loved one”); People
v. Steger, 16 Cal. 3d 539, 546 P.2d 665, 128 Cal. Rptr. 161
(1976) (defendant’s confession was voluntary where defend­
ant’s speaking to police was motivated by her desire to free
her husband); People v. Montano, 184 Cal. App. 2d 199, 7 Cal.
Rptr. 307 (1960) (defendant’s confession was voluntary where
motivated by concern for his girlfriend and pregnant sister-in-
law); People v. Mellus, 134 Cal. App. 219, 25 P.2d 237 (1933)
(defendant, who was charged with stealing chickens, made
involuntary confession after officers told him that if he refused
to make statement, they would lock up his mother and accuse
her of being implicated in thefts).
For example, in United States v. Charlton, 565 F.2d 86
(6th Cir. 1977), the Sixth Circuit Court of Appeals held that
a father’s confession motivated by anger at the arrest of his
20-year-old son and desire to protect his son was not coerced.
The court stated, “Obviously anyone who knows his rights and
determines to confess does so for a reason. That the defend­
ant’s reason was to protect his son does not, in our judgment,
render his confession involuntary or necessitate a finding that
he was coerced or that his will was overborne.” Id. at 89.
Additionally, in People v. Barker, 182 Cal. App. 3d 921, 227
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Cal. Rptr. 578 (1986), a defendant’s confession was volun-
tary where a detective agreed not to charge the defendant’s
girlfriend in exchange for the defendant’s truthful testimony,
after the defendant initiated the subject of leniency and where
the detective never told the defendant that he would arrest the
defendant’s girlfriend if the defendant did not cooperate. The
court rejected the defendant’s argument that the detective’s
failure to expressly tell the defendant that he did not intend to
charge the defendant’s girlfriend constituted an implied threat
to charge her.
More factually similar to the instant case is People v.
Abbott, 156 Cal. App. 2d 601, 319 P.2d 664 (1958), wherein
the Second District Court of Appeal held that even if the
defend­ant, who was charged with theft, had a choice between
making a statement that might result in the release of a woman
with whom he had been living and remaining silent and leav-
ing her under suspicion as an accomplice, the defendant’s con-
fession was voluntary where the defendant’s principal motive
for the confession had been that it would probably result in
her exoneration and where officers offered the defendant no
bargain and had not threatened to prosecute the woman if he
refused to make a statement.
3. A pplication to Instant Case
In the instant case, Kult did not tell Grimes that if he
did not confess, his mother would be arrested; nor did he
tell Grimes that if he did confess, his mother would not be
arrested. When Kult told Grimes that he was “trying to keep
[Grimes’] mom out . . . of it,” Grimes responded, “[W]e’re
trying to do the same thing . . . .” Where there was no threat
by Kult to arrest Grimes’ mother if Grimes did not confess,
nor a statement that Grimes’ mother would not be arrested if
he did confess, Grimes’ confession was clearly motivated by
his desire to protect his mother. Thus, the factual situation
presented in the instant case is most similar to those cases
where the defend­ant’s primary motive was to protect a third
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party. See People v. Abbott, supra (defendant’s confession was
voluntary where defendant’s principal motive was exoneration
of another person suspected of complicity in offense and offi-
cers offered defendant no bargain and had not threatened to
prosecute third party if defendant refused to make statement).
“The fact that an accused undertakes to shoulder the entire
burden in order to exculpate someone else does not, of itself,
render his confession involuntary and invalid.” Vogt v. United
States, 156 F.2d 308, 312 (5th Cir. 1946).
Further, under a totality of the circumstances analysis, we
consider that Grimes had a previous history with the police,
he has a diploma through the GED program, and he agreed to
talk with Kult after being advised of his Miranda rights. He
was interviewed in a standard interrogation room, the interview
lasted about 20 minutes, and Grimes was in the interview room
for a total of about 1 hour. Grimes was allowed to use the
restroom during the interview and was given water. The video
of the interrogation showed that Grimes was aware of why
he was in the room and that he was trying to get information
from Kult. The atmosphere of the interrogation was conver-
sational, not confrontational. All of these factors indicate that
the interrogation techniques used by Kult were not so coercive
as to overbear Grimes’ will, see State v. McClain, 285 Neb.
537, 827 N.W.2d 814 (2013), and that Grimes’ confession was
made voluntarily.
VI. CONCLUSION
After considering the totality of the circumstances, we con-
clude that Grimes’ statements were voluntary and, thus, were
properly admissible at trial. Consequently, we affirm his con-
viction and sentence.
A ffirmed.