Kortz v. State ( 1987 )

MACY, Justice.

Appellant Scott Kortz was indicted by a Campbell County grand jury for delivery of, or possession with the intent to deliver, a controlled substance. Following a trial to the jury, appellant was found guilty of delivery of methamphetamine.

We affirm.

Appellant sets forth the following issues for our determination:

“I. WHETHER CERTAIN STATEMENTS MADE BY APPELLANT FOLLOWING A PROMISE OF IMMUNITY DURING CUSTODIAL INTERROGATION WERE INVOLUNTARY AND THEIR INTRODUCTION INTO EVIDENCE CONSTITUTED A DENIAL OF DUE PROCESS.

“II. WHETHER THE GRAND JURY, IN SITTING BEYOND THE TERM FOR WHICH IT WAS CALLED, LACKED JURISDICTION TO RETURN AN INDICTMENT AGAINST APPELLANT.”

Appellee State of Wyoming states the issues as follows:

“I. WERE CERTAIN SELF-INCRIMINATING STATEMENTS MADE BY APPELLANT, FOLLOWING THE GIVING OF MIRANDA WARNINGS, WHICH APPELLANT ACKNOWLEDGED THAT HE UNDERSTOOD AND SUBSEQUENTLY WAIVED, VOLUNTARY AND THUS ADMISSIBLE INTO EVIDENCE AT TRIAL?

“II. WAS AN INDICTMENT RETURNED BY THE GRAND JURY, DULY IMPANELED PURSUANT TO WYOMING STATUTORY LAW, VALID AS AGAINST APPELLANT FOR THE CRIME OF WHICH HE WAS SUBSEQUENTLY CONVICTED?”

I

On November 8, 1985, following his arrest, appellant was interrogated by Deputy John Bruner of the Campbell County sheriff’s office. Prior to trial, counsel for appellant filed a motion in limine in which he requested an order prohibiting any testimony concerning the interrogation. Counsel renewed his motion in chambers prior to trial on February 4, 1986. At that time, the prosecutor indicated, out of the presence of the jury, that he intended to offer only selected parts of the interrogation. On that basis, the district court took appellant’s motion under advisement until such time as the prosecution made its offer of proof. During Deputy Bruner’s testimony at trial, the prosecution made an offer of proof concerning the statements made by appellant during the interrogation. Out of the hearing of the jury, Deputy Bruner testified that, prior to interrogating appellant, he advised him of his rights in accordance with Miranda. He then testified that, during the interrogation, appellant admitted he had been dealing methamphetamine.

At the conclusion of the prosecution’s offer of proof, counsel for appellant objected to Deputy Bruner’s testimony in part on the ground that “all of the damning testimony, the testimony involving dealing occurred only after he made this statement to [appellant] that we’re not going to use this against you if you’ll just talk to us.” Following argument on the objection, the court held

“that the statements given by [appellant] were given voluntarily, he had been advised of his constitutional rights, stated that he understood them, and as has been pointed out to the court, he refused to answer some questions even after the statement * * * by Deputy Bruner. Obviously, [appellant] did not take that as an offer of immunity of any kind.”

On that basis, the court denied appellant’s motion. Counsel for appellant then asked that the transcript of the interrogation be considered part of the record for purposes of appeal. The trial continued, and the prosecutor presented to the jury Deputy Bruner’s testimony concerning the interrogation.

On February 13, 1986, following appellant’s conviction, counsel for appellant filed a motion for a new trial based in part on the admission into evidence of inculpatory statements made by appellant during the interrogation. Following a hearing, the court denied the motion. Appellant now claims before this Court that the statements were improperly admitted in that they were involuntary. More specifically, appellant contends that the statements he made during the interrogation concerning his involvement with drugs were induced by Deputy Bruner’s implied promise that the statements would not later be used against him.

We have previously said that, in determining whether statements made by an accused are voluntary, the totality of the circumstances surrounding the interrogation must be examined:

“ ‘Only if the “totality of the circumstances surrounding the interrogation” revealfs] both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.’ ” Frias v. State, Wyo., 722 P.2d 135, 142 (1986), quoting Moran v. Burbine, 475 U.S. 412,106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986) (emphasis omitted).

In the present case, it is clear that appellant was fully and fairly advised of his rights prior to questioning. He clearly indicated that he understood his rights and agreed to talk to Deputy Bruner. Prior to any statement by Deputy Bruner which may be construed as an offer of immunity, appellant admitted that he had “used dope.” Thereafter, in the course of the interrogation, Deputy Bruner stated that:

1. “Uh, I’m sure that you heard our standard, uh, deal. You know, we don’t care what kind of a narcotics relationship you’ve got with anybody, but we need to know to sew these people together with other people, and, uh, we let quite a few people around it .. no questions asked ... provided they tell us some information that can help us.”

2. “I need to fill in some blanks. That’s the only way I can help you and that’s the only way you can help me * *

3. “What I’m doing is throwing a lifeline out to you so you can grab ahold * * *. This is your way out.”

4. “I’m not going to tell you I could * * * make an Indictment disappear * * * a

5. “And * * * you know I can’t promise you anything * *

6. “I’ll help you if I can, but, you know, it has gotta be a two way street.”

Even after Deputy Bruner made the statement about which appellant complains, appellant remained uncooperative in responding to the questions asked. It was only after Deputy Bruner suggested that appellant was being exploited by his friends that appellant began to talk about his involvement with drugs. Having carefully considered the totality of these circumstances, we are unable to conclude that appellant was induced or coerced to talk by the conduct of Deputy Bruner.

II

The grand jury which indicted appellant was impaneled during the 1985 spring term of the district court. The indictment against appellant was filed November 7, 1985, during the fall term of the district court. Appellant argues that the grand jury lacked jurisdiction to issue the indictment after the expiration of the term in which it was impaneled.

“At common law the term of service and of power of a grand jury ended at the expiration of the term of court in which it was called. Under some statutes it is held that the grand jury’s jurisdiction or power also comes to an end on expiration of the term. Under others it is held that the grand jury is empowered to continue its activities after expiration of the term of court for which it was organized.” 38 Am.Jur.2d, Grand Jury § 31 at 977-78 (1968).

There is no statute in Wyoming governing the terms of county grand juries. We, therefore, adopt the position that a county grand jury may continue the activities for which it was convened after expiration of the term of court in which it was impaneled. In support of our holding, we note the following statement by the Oregon Supreme Court:

“To * * * hold that a grand jury must be discharged at the end of each term [of the court for which it was impaneled] in the midst of an uncompleted investigation, thereby compelling the successor grand jury to again enter the same investigation ab initio would disrupt the judicial process [and] contribute to the law’s delays * * State v. McReynolds, 212 Ore. 325, 319 P.2d 904, 906 (1957).

Affirmed.

URBIGKIT, J., filed a dissenting opinion.