Black v. State

OPINION

MACY, Justice.

Appellant Jane Black appeals her conviction for delivery of a controlled substance (methamphetamine).

We reverse and remand.

Appellant raises the following issues:

I.

Whether or not the trial court erred by denying Appellant[’]s [M]otion To Dismiss For Denial Of Speedy Arrest And Due Process.

II.

Whether or not the trial court erred in not granting the Appellant[’]s Motion To Dismiss Information on the grounds that Appellant was denied her right to a fair preliminary hearpng] and confrontation at the preliminary hearing stage of the criminal process.

III.

Whether or not the trial court erred in failing to suppress Defendant[’]s statements and evidence derived therefrom.

According to the criminal complaint made on November 7, 1989, Appellant delivered a controlled substance, methamphetamine, to Paula Pirman “on or about the 20th or 21st day of January, 1989,” in Gillette, Wyoming. The complainant, an agent with the Northeast Wyoming Drug Enforcement Team, stated that Pirman told an officer of the Gillette police department that she had purchased one-quarter gram of methamphetamine from Appellant on January 20, 1989, for $25.¹ The agent also detailed an “interview” with Appellant, which he and another detective conducted at the Gillette police department on March 16, 1989. During this interview, Appellant admitted making the delivery. The relevant dates are January 20, 1989, Appellant made delivery; March 16, 1989, Appellant was interviewed by officers and confessed to delivery; and November 7, 1989, criminal complaint was made, and criminal warrant was issued for Appellant’s arrest.

Appellant claims she has a right to a speedy arrest. She premises her speedy arrest claim upon the accused’s right to a speedy trial found in the sixth amendment to the United States Constitution and in article 1, section 10 of the Wyoming Constitution. Neither the United States Constitution nor the Wyoming Constitution, however, uses the term “speedy arrest.” Both provisions use the term “speedy trial” instead. Appellant maintains that, shortly after the delivery on January 20th, the police had all the evidence they needed to charge her with that crime and that, therefore, the police should not have delayed her arrest until November 7th. We addressed a claim of speedy arrest in Hovee v. State, 596 P.2d 1127, 1130 (Wyo.1979), and stated:

[A] claim, based solely on pre-arrest and pre-indictment delay, does not raise any question under the speedy trial provision of either the Sixth Amendment of the United States Constitution or Art. 1, § 10, of the Wyoming Constitution....

The United States Supreme Court

considered the significance, for constitutional purposes, of a lengthy preindictment delay [and] held that as far as the Speedy Trial Clause of the Sixth Amendment is concerned, such delay is wholly irrelevant, since our analysis of the language, history, and purposes of the Clause persuaded us that only “a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge ... engage the particular protections” of that provision.

United States v. Lovasco, 431 U.S. 783, 788-89, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977) (quoting United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)). The speedy trial clause has no application to prearrest delay.

Appellant also claims the delay-violated her rights to due process and a fair trial.² In Story v. State, 721 P.2d 1020, 1028, 65 A.L.R.4th 1011 (Wyo.), cert. denied, 479 U.S. 962, 107 S.Ct. 459, 93 L.Ed.2d 405 (1986), we stated that a defendant is denied due process where “the prosecutor delays filing charges to gain a tactical advantage, perhaps where the prosecutor acts in bad faith in delaying the filing of charges, and where substantial prejudice results from the delay.” (Emphasis in original.) Appellant admits, “Although there was no direct testimony that the State was intentionally delaying the arrest and prosecution of the Appellant, the implication is there.” An “implication” that an intentional delay existed is not enough; some evidence must be in the record to support the charge. Appellant also argues that she “suffered greatly from this delay” because the individual who actually delivered the drugs died before she was charged. Appellant has not demonstrated the prejudice caused by the death of the witness; i.e., why her defense was impaired. The record also does not disclose when this particular witness died. Without these showings, it is impossible to determine whether she suffered “substantial prejudice” from the delay. Id.

Appellant asserts that the statements she made during the interrogation on March 16, 1989, were not voluntary and that, therefore, they should have been suppressed. She also cites Wyo.Stat. § 7-6-105(a) (1987) to support her argument that her statements should have been suppressed. This particular statute is part of the “Public Defender Act” and requires, “A needy person who is being interrogated by law enforcement personnel for a serious crime ... shall be informed of his right to be represented by an attorney at public expense.” Because Appellant’s interrogation was counter to the principles of due process, we do not address her separate statutory claim. We have previously stated, “In determining whether statements made by an accused are voluntary, the totality of the circumstances surrounding the interrogation must be examined.” Frias v. State, 722 P.2d 135, 141 (Wyo.1986).

In Frias, the issue was whether the defendant had voluntarily waived his Miranda rights; We ruled, inter alia, that the defendant’s statements were the product of police coercion and were not made voluntarily. Id. at 142-43. We note that at no point during the interrogation was Appellant ever advised of her rights under Miranda, and that, even though fifth amendment and Miranda violations were not implicated here because Appellant was not in custody at the time of the interrogation as Appellant was told she was free to leave at any time, “the due process clause still stands as [an] independent limitation on the use of a defendant’s pretrial statement.” 2 D. Rudstein, C. Erlinder, & D. Thomas, Criminal Constitutional Law § 4.01[1] at 4-5 (1990). We, therefore, review Appellant’s claim under article 1, section 6 of the Wyoming Constitution: “No person shall be deprived of life, liberty or property without due process of law.”

The agent testified that, at the time he questioned Appellant on March 16, 1989, he knew Pirman had already identified Appellant as being the one who had sold her the methamphetamine. The agent also testified that he had questioned another witness who admitted she had sold methamphetamine to Appellant and her husband. After Appellant arrived at the police station, the two police officers interrogated her for two hours. During this time, she was asked specific questions about her involvement in the methamphetamine delivery of January 20, 1989. Appellant was told that “she could be charged with delivery of methamphetamine and possibly conspiracy to deliver methamphetamine.” The agent testified that Appellant, who, he noted, was “[ejxtremely pregnant,” was “upset” and “crying” during the interrogation. The police interrogated an individual whom they had already identified as being the principal suspect, and, even though that individual was upset and crying because she was concerned about being charged with a serious crime during her pregnancy, the police continued to interrogate her for two hours.³

Other circumstances also reveal police coercion: The previous night, March 15, 1989, the police went to Appellant’s house and asked her husband to come to the police station and discuss an “ongoing investigation.” After Appellant’s husband arrived at the station, he was interrogated for four and one-half hours. During the interrogation, the police told Appellant’s husband that they knew about his involvement in the distribution of methamphetamine. He was also told that the police knew about Appellant’s January 20, 1989, delivery of methamphetamine. Appellant’s husband made a “substantial statement” that night and agreed to “cooperate” with the police in their ongoing investigation. He also agreed to bring Appellant to the police station the following morning, and the police agreed to “try and clear up the— both of their involvement.” At the time Appellant was interrogated, she was aware that her husband had agreed to cooperate with the police, that the police suspected her for the delivery of methamphetamine, and that the police wanted to question her about both matters.

There is a line which the police may not cross in pursuing their investigation of a crime. That line is drawn by the due process clause of the Wyoming Constitution. We are free to grant more rights to our citizens under the Wyoming Constitution than they are entitled to have under the United States Constitution. See Washakie County School District Number One v. Herschler, 606 P.2d 310 (Wyo.), cert. denied, 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 28 (1980). Due process does not prohibit the police from questioning Appellant about her possible involvement in a crime. Coercive interrogation of Appellant, however, does not comport with this state’s notions of due process. The circumstances reveal that the police had made the case against Appellant at the time of the interrogation and that they were simply fishing for a confession. Due process does not permit the police to coerce an individual into knotting her own noose.

Our review of the totality of the circumstances surrounding Appellant’s interrogation reveals police coercion. We hold that Appellant’s statements were not made voluntarily and that, therefore, those statements were not admissible evidence. See Frias, 722 P.2d 135. We note that suppression of Appellant’s statements will also deter future police coercion of individuals.

The finding of probable cause at the preliminary hearing was determined, in large part, upon Appellant’s confession. If the State chooses to pursue this case, Appellant is entitled to another preliminary hearing. Accordingly, we do not address the claims raised by Appellant in her second issue. If there is a second preliminary hearing, the State may not, in any manner, make use of Appellant’s coerced confession.

Reversed and remanded for proceedings in accord with this opinion.

CARDINE, J., concurring.

THOMAS, J., dissenting.

GOLDEN, J., dissenting, with THOMAS, J., joining.

1 . Pirman also gave the officer the substance she purchased from Appellant. A test of the substance revealed it was methamphetamine.

2 . See the fifth and fourteenth amendments to the United States Constitution and article 1, section 6 of the Wyoming Constitution.

3 . In Frias, we also considered the circumstances personal to the defendant, an illegal alien from Mexico, when we analyzed whether the police interrogation was coercive.