State of Utah v. Rettenberger
Annotate this Casepublication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah,
Plaintiff and Appellee,
v.
Todd Jeremy Rettenberger,
Defendant and Appellant.
No. 970385
F I L E D
August 27, 1999
1999 UT 80
---
Second District Court, Davis
County
The Honorable Jon M. Memmott
Attorneys:
Jan Graham, Att'y Gen.,
J. Frederic Voros, Asst. Att'y Gen., Salt Lake City, for plaintiff
Scott L. Wiggins, Salt Lake
City, for defendant
---
DURHAM, Associate Chief Justice:
¶1
This is an appeal from an
interlocutory order denying defendant Todd Jeremy Rettenberger's motion
to suppress his confession. Rettenberger is charged with murder and aggravated
robbery. Rettenberger contends that the district court erred in concluding
that his confession was not the involuntary product of police coercion.
Rettenberger also argues that the district court erred in determining that
he failed to unequivocally re-invoke his right to counsel and his right
to remain silent. We reverse and remand.
BACKGROUND
¶2
On the morning of November
20, 1996, Rettenberger, then age eighteen, was taken into custody by the
Woods Cross Police for questioning concerning the murder of Matthew John
Wicker. Detective Jeff Corbin, a detective with the Bountiful Police Department
Metro Narcotic Strike Force, gave Rettenberger his
Miranda warnings.(1)
Rettenberger had never previously been arrested or interrogated by the
police. At approximately 11:30 a.m., Detective Corbin began to interrogate
Rettenberger. At the outset of the interrogation, Detective Corbin reminded
Rettenberger of his rights under Miranda --
DETECTIVE CORBIN:
Todd, at the Sheriff's Office I talked to you a little bit about your rights.
You know, we discussed, you know, the thing with the attorney and what
not. I just want to verify that you have those rights and that you can
exercise those rights any time you feel like it.
MR. RETTENBERGER: Okay. A few minutes later, after Detective Corbin had informed Rettenberger that he was a suspect in the murder case, the following exchange took place: DETECTIVE CORBIN: What I want you to do at this point is to be your own best friend. I want you to tell me what you know. I want you to help me to help you so that I can explain to the judge this wasn't pre-meditated, that it was a heat of the moment thing that happened. Things got out of hand, he struggled with you guys.
MR. RETTENBERGER: There's no way, there's no way that I even did this. I am getting, I'm getting an attorney. I am pleading innocent. I was not there, I did not murder this guy.
DETECTIVE CORBIN: That is your right to plead innocent.
MR. RETTENBERGER: And I do not know nothing about this.
DETECTIVE CORBIN: Let me go see if the rest of the information is ready.
MR. RETTENBERGER: Can I go now?
DETECTIVE CORBIN: Nope, hang on. Let me go see what else we've got. We've got stuff coming in right and left, so - Detective Corbin then exited the room. He returned shortly and resumed questioning of Rettenberger. Later in the interrogation, a similar exchange took place: MR. RETTENBERGER: Can, can I have a lawyer talk to you guys? Do I have that right?
DETECTIVE CORBIN: I told you your rights, remember, at the Sheriff's office?
MR. RETTENBERGER: Yeah, I just need to -
DETECTIVE CORBIN: And I told,
and I told you - let me finish. I told you your rights over here. I told
you what I expected and what you could expect from me, okay?
¶3
The first interrogation
lasted approximately one and one-half to two hours. Towards the end of
the first interrogation, Rettenberger began to admit his involvement in
the murder. At the conclusion of the first interrogation, Rettenberger
was placed in solitary confinement at the Davis County correctional facility.
At approximately 2:30 the following afternoon, Rettenberger was again interrogated.
At the beginning of the second interrogation, Rettenberger attempted to
recant his previous inculpatory remarks, but later in the interrogation
he again admitted that he had been involved in the crime. Both interrogations
were videotaped, and the tapes have been viewed by the district court and
this court.
¶4
During the interrogations,
the interrogating officers, Detective Corbin and Officer Timothy, made
several references to the potential penalties facing Rettenberger, including
the death penalty. They refused to allow him to speak with his mother and
refused to allow him to use the restroom. As we discuss below, the officers
lied to Rettenberger numerous times concerning the existence, nature, and
strength of evidence they had collected against him.
¶5
Before trial the defendant
moved to suppress his confession on the grounds that (1) his confession
was the involuntary result of police coercion and (2) he had invoked his
rights to counsel and to remain silent and that those invocations were
not honored by the police.
¶6
During the suppression hearing,
Vicki Gregory, Ph.D., J.D., testified that based upon her evaluation of
Rettenberger and a review of his medical and psychological records she
formed the expert opinion that he had Attention Deficit Disorder ("A.D.D."),
a below average I.Q., and the maturity level of a fifteen-year-old. She
also testified that he exhibited symptoms of depression, anxiety disorder,
thought disorder, schizophrenia, and Dependent Personality Disorder. Dr.
Gregory concluded that Rettenberger would be highly susceptible to psychological
manipulation by police interrogators, that he would be overly compliant
and dependent upon the police officers, and that he would tend to agree
with the officers' statements during an interrogation in order to relieve
his stress. Dr. Gregory also opined that Rettenberger would experience
greater anxiety in solitary confinement than would the average person.
¶7
The district court found
that Dr. Gregory's conclusions were consistent with the testimony of Detective
Corbin. Detective Corbin testified that, based on his experience with one
of his own children, he recognized that the defendant exhibited symptoms
of A.D.D., had the maturity level of a fifteen-year-old, was under extreme
stress and anxiety during the arrest and interrogations, and was afraid
of the death penalty.
¶8
The district court first
ruled that Rettenberger's requests for an attorney were equivocal and therefore
the officers had no obligation to stop the interrogation. The district
court also concluded that, although "a close call," the interrogation was
not "objectively coercive." On that basis, the district court concluded
it was unnecessary to examine whether Rettenberger's confession was voluntary.(2)
¶9
We now address Rettenberger's
contention that the district court erred in ruling that his confession
was not coerced and in declining to consider whether the confession was
involuntary. Because we reverse the district court's ruling and hold that
Rettenberger's confession was the involuntary product of police coercion,
we need not address the other issues raised on appeal.
STANDARD OF REVIEW
¶10
In "reviewing a trial court's
determination on the voluntariness of a confession, we apply a bifurcated
standard of review." State v. Mabe, 864 P.2d 890, 892 (Utah 1993).
The ultimate determination of voluntariness is a legal question; accordingly,
we review the district court's ruling for correctness. See id. (citing
Arizona v. Fulminante, 499 U.S. 279 (1991)). We set aside a district
court's factual findings only if they are clearly erroneous. Id.
ANALYSIS
¶11
"The Due Process Clause
of the Fourteenth Amendment provides that no State shall 'deprive any person
of life, liberty, or property, without due process of law.'" Colorado
v. Connelly, 479 U.S. 157, 163 (1986). The United States Supreme Court
has held that, under the Due Process Clause, "'certain interrogation techniques,
either in isolation or as applied to the unique characteristics of a particular
suspect, are so offensive to a civilized system of justice that they must
be condemned.'" Id. (quoting Miller v. Fenton, 474 U.S. 104,
109 (1985)). In addition, "[t]he Fifth Amendment [to the United States
Constitution] 'protects individuals from being compelled to give
evidence against themselves.'" State v. Piansiaksone, 954 P.2d 861,
865 (Utah 1998) (quoting State v. Troyer, 910 P.2d 1182, 1188 (Utah
1995)). Accordingly, analysis of whether admission of a confession into
evidence violates the Fifth or Fourteenth Amendment does not turn solely
on the "voluntariness" of the confession. "[C]oercive police activity is
a necessary predicate to the finding that a confession is not 'voluntary.'"
Connelly, 479 U.S. at 167 (analyzing voluntariness under Fourteenth
Amendment); see also Piansiaksone, 954 P.2d at 865 (holding
that, "[t]o violate the Fifth Amendment, an accused's admission must, by
definition, be coerced").
¶12
In making its ruling below,
the district court "adopted a two-step 'voluntariness' inquiry in which
coercion is first determined without regard to defendant's subjective characteristics."
Under the district court's approach, it first determined "whether the police
activity was objectively coercive and second, if necessary, whether the
defendant's will was actually overcome." The district court believed that
this approach was mandated by the United States Supreme Court's decision
in Connelly, which it interpreted to "change the scope of . . .
inquiry from the prior 'totality of circumstances' inquiry, including defendant's
subjective characteristics, to a two-step determination."
¶13
Under the first prong of
the test, the district court found that the interrogating officers misled
Rettenberger on "numerous occasions concerning the strength of the evidence
they had accumulated against him"; that the officers made "significant
references to defendant being charged with capital murder, the lethal consequences
of being charged with capital murder, and the possibility of lesser charges
ultimately being brought, depending on defendant's cooperation"; that the
officers did not allow Rettenberger to use the bathroom until the conclusion
of the first interrogation despite his requests; that the officers did
not allow Rettenberger to call his mother; and that Rettenberger was placed
in solitary confinement between the two interrogations. The district court
acknowledged that these findings "come close to justifying" a finding of
"objective coercion." Nonetheless, the court concluded that "the officers'
conduct was not objectively coercive." Accordingly, the district court
did not proceed to the second step to determine if Rettenberger's will
was overborne by the investigators' conduct.
¶14
Prior to Connelly,
the Supreme Court held that, in order to determine whether a challenged
confession was constitutional under the Fifth and Fourteenth Amendments,
a court must examine the "totality of circumstances to determine whether
a confession had been 'made freely, voluntarily and without compulsion
or inducement of any sort.'" Withrow v. Williams, 507 U.S. 680,
689 (1993) (quoting Haynes v. Washington, 373 U.S. 503, 513 (1963)(internal
citation and quotation marks omitted)); see also State v. Strain,
779 P.2d 221, 225 (Utah 1989). "'[T]he totality of circumstances [includes]
both the characteristics of the accused and the details of the interrogation.'"
Strain, 779 P.2d at 225 (quoting Schneckloth v. Bustamonte,
412 U.S. 218, 226 (1973), and citing State v. Hegelman, 717 P.2d 1348 (Utah 1986);
State v. Moore, 697 P.2d 233 (Utah 1985)). As
the district court itself recognized, under the totality of circumstances
test, courts must consider such external factors as the duration of the
interrogation, the persistence of the officers, police trickery, absence
of family and counsel, and threats and promises made to the defendant by
the officers. See Davis v. North Carolina, 384 U.S. 737,
746-47, 752 (1966)(duration, treatment); Haynes v. Washington, 373 U.S. 503, 514-15 (1963) (threats, promises, absence of family and counsel);
Rogers v. Richmond, 365 U.S. 534, 535 (1961) (threats); Spano
v. New York, 360 U.S. 315, 323 (1959) (police trickery); Leyra v.
Denno, 347 U.S. 556, 559-61 (1954);
Harris v. South Carolina,
338 U.S. 68, 71 (1949) (duration and persistence); Piansiaksone,
954 P.2d at 866.
¶15
In addition, "as interrogators
have turned to more subtle forms of psychological persuasion, courts have
found the mental condition of the defendant a more significant factor in
the 'voluntariness' calculus." Connelly, 479 U.S. at 164. Thus,
under the totality of circumstances analysis, courts must also consider
such factors as the defendant's mental health, mental deficiency, emotional
instability, education, age, and familiarity with the judicial system.
See Clewis v. Texas, 386 U.S. 707, 712 (1967) (education);
Culombe v. Connecticut, 367 U.S. 568, 602-03 (1961) (mental deficiency);
Spano, 360 U.S. at 322 (emotional instability); Fikes v. Alabama,
352 U.S. 191, 193 (1957) (mental health); Piansiaksone, 954 P.2d
at 866 Strain, 779 P.2d at 227 (age and familiarity with judicial
system).
¶16
Consistent with examination
of these factors, the district court in the present case, found that at
the time of the interrogations, the eighteen-year-old Rettenberger "(a)
was suffering from A.D.D.; (b) had the maturity level of a fifteen-year-old;
(c) had a below average I.Q.; (d) had fear of the death penalty being imposed;
and (e) was more susceptible to stress and coercion than the average person."
Moreover, the court specifically found "that the interrogating officers
understood and were aware of those characteristics and susceptibilities
. . . at the time they were conducting the interrogation." However, the
district court interpreted Connelly to replace the "totality of
circumstances" examination with a two-step analysis requiring a threshold
finding that the officers' were "objectively coercive" in procuring the
confession, could considering whether the suspect's will was in fact overcome
by that coercion.
¶17
We do not share the district
court's view that Connelly constituted a wholesale departure from
previous voluntariness jurisprudence or that it established a two-part
test. Unlike the district court and other courts that have adopted such
a two-step analysis, we believe that Connelly stands for the limited
proposition that a defendant's mental condition is not in itself sufficient
to make a confession involuntary. See Connelly, 479 U.S.
at 165. Although Connelly states that a determination of involuntariness
cannot be predicated solely upon a defendant's mental state, "his mental
state is relevant 'to the extent it made him more susceptible to mentally
coercive police tactics.'" Smith v. Duckworth, 910 F.2d 1492, 1497
(7th Cir. 1990) (quoting
Anderson v. Thieret, 903 F.2d 526, 530
n.1 (7th Cir. 1990)).
¶18
Connelly involved
a defendant who believed (construing
Connelly) the "voice of God"
had directed him either to confess to a killing or to commit suicide. As
instructed by the "voice," the defendant approached a police officer in
downtown Denver, Colorado, and told the officer that he had murdered someone
and that he wanted to talk about it. After twice receiving his
Miranda
rights and twice insisting that he understood those rights but nonetheless
wished to talk, Connelly was asked by an officer "what he had on his mind."
Id. at 160. Connelly then confessed to the murder of a young woman.
Id. There was, in short, no police coercion of any kind in Connelly.
The issue was simply whether a defendant's mental state alone could be
sufficient to render a confession constitutionally involuntary. The Court
held that it could not, stating, "[a]bsent police conduct causally related
to the confession, there is simply no basis for concluding that any state
actor has deprived a criminal defendant of due process of law." Id.
at 164 (footnote omitted). Furthermore, the Court specifically reaffirmed
the principle that a confession may be suppressed in circumstances in which
a police officer knows of a suspect's mental illness or deficiencies at
the time of the interrogation and effectively exploits those weaknesses
to obtain a confession. See id. at 164-65 (citing
Blackburn
v. Alabama, 361 U.S. 199, 207-08 (1960); Townsend v. Sain, 372 U.S. 293, 298-99 (1963)). In sum, "[t]o be involuntary, there must be a
causal relationship between the coercion and the subsequent confession."
Mabe, 864 P.2d at 893.
¶19
We thus conclude that the
trial court erred in failing to conduct a "totality of the circumstances"
examination of Rettenberger's confession to determine whether the interrogators
exploited Rettenberger's disabilities and deficiencies in such a way that
his "will was overborne." Arizona v. Fulminante, 499 U.S. 279, 288
(1991). We now consider the factors set forth above which a court should
consider in conducting a "totality of the circumstances" examination.
I. OBJECTIVE FACTORS
A. Police Misrepresentations
¶20
We have recognized that
"'[a] defendant's will is not overborne simply because he is led to believe
that the government's knowledge of his guilt is greater than it actually
is.'" State v. Galli, 967 P.2d 930, 936 (Utah 1998) (quoting
Ledbetter
v. Edwards, 35 F.3d 1062, 1070 (6th Cir. 1994)). However, in certain
cases, police misrepresentations may be sufficiently egregious to overcome
a defendant's will so as to render a confession involuntary. See
id. (stating "[w]hile the detectives' half-truths . . . should not
be condoned, we are not convinced that this was sufficient to overcome
his free will and spirit"). We believe the number and nature of the misrepresentations
in this case come close to or exceeds that threshold.
¶21
The district court cataloged
some 36 false statements made to Rettenberger by the police during his
interrogation. The overwhelming majority of these misrepresentations were
not merely "half-truths" but were complete fabrications about testimonial
and physical evidence of Rettenberger's guilt. The officers repeatedly
misrepresented to Rettenberger that they had testimony of numerous eye-witnesses
and co-defendants implicating him. They falsely informed Rettenberger that
he had been the subject of an extenstive "three-week" undercover investigation.
Finally, although they had no physical evidence linking Rettenberger
to the crime, they told or suggested to him that they found fingerprints
at the crime scene that the crime lab had confirmed were a "positive match"
to his; they had ballistic test results implicating him; they had blood
samples implicating him; they had a bloody shoe-print from the crime scene
that matched his; they had found blood on his shoe; they had unspecified
"physical evidence" that linked him to the crime; they had evidence that
his car was at the crime scene; they had "blood splatter" evidence connecting
him to the crime; they had found fingerprints of "everyone involved" at
the crime scene; they had records of phone conversations incriminating
him; they had knowledge of the gun used, implicating him; they had incriminating
hand prints, palm prints, fingerprints, and shoe prints at the scene of
the crime; they had found blood in his car; and they had more evidence
implicating Rettenberger than the police had in the O.J. Simpson case.
In sum, although the State, in fact, had no physical evidence implicating
Rettenberger, the officers sought to convince Rettenberger that the State
had an air-tight case against him. As Detective Corbin told Rettenberger,
"We know the answer to every question we're asking. We want to hear your
version."
¶22
Chief among the many problems
with such duplicity is that it may lead wrongly accused suspects "to see
themselves as either being set up or railroaded." Richard J. Ofshe &
Richard A. Leo, The Decision to Confess Falsely: Rational Choice and
Irrational Action, 74 Denv. U. L. Rev. 979, 1044 (1997). Such a suspect
may well determine that "continued resistance is futile (because the police
have evidence that will convict him despite his innocence)." Welsh S. White,
What is an Involuntary Confession Now? 50 Rutgers L. Rev. 2001,
2053 (1998). Such a suspect may also conclude that, given the futility
of resistance, it is most prudent to cooperate and even confess falsely
in order to get leniency.
¶23
A suspect may also be more
likely to confess when faced with assertions, as here, that the State has
evidence of fingerprints, palm prints, ballistic evidence and the like,
implicating him because "[b]oth the guilty and the innocent have a harder
time explaining away evidence that is allegedly derived from scientific
technologies." Ofshe & Leo, The Decision to Confess Falsely,
at 1023. In this case, it is clear that Rettenberger became convinced that
the police had sufficient scientific evidence to prove his guilt, as is
evidenced by the following exchange that took place late in the interrogations:
DETECTIVE CORBIN:
We're going to tell you what we think happened, and it's up to us to prove
it.
MR. RETTENBERGER: You guys are going to prove it.
DETECTIVE CORBIN: Do you think we are?
MR. RETTENBERGER: Fingerprints -
OFFICER TIMOTHY: Of course we are.
MR. RETTENBERGER: - all this stuff, of course you are. Extreme duplicity as was used here may render a confession involuntary and, as here, raise serious doubt about its reliability.
B. False Friend Technique
¶24
Rettenberger's interrogation
took place in yet a larger context of deception. The interrogating officers
made extensive use of the so-called "false friend" technique, whereby they
represented to Rettenberger that they were his friends and that they were
acting in his best interest. See Wayne R. LaFave & Jerold H.
Israel, Criminal Procedure § 6.2 (2d ed. 1992). This technique
is commonly used in police interrogations because "resistence to the disclosure
of information is considerably increased . . . if something is not done
to establish a friendly and trusting attitude on the part of the subject."
Welsh S. White, Police Trickery in Inducing Confessions, 127 U.
Pa. L. Rev. 581, 614 (1979) (quoting Robert F. Royal & Stephen R. Schutt,
The Gentle Art of Interviewing and Interrogation: A Professional Manual
and Guide (1976)).
In this atmosphere
. . . the suspect is fooled into trusting that the interrogator's behavior
will conform to the norms of friendship: the interrogator will loyally
help the suspect out of the jam, advise the suspect to confess only if
confession will be beneficial [to the suspect], and so on.
Margaret L. Paris, Faults,
Fallacies, and the Future of Our Criminal Justice System: Trust, Lies,
and Interrogation, 3 Va. J. Soc. Pol'y & L. 3, 21-22 (1995).
¶25
The State suggests that
the false friend approach cannot be coercive because it does not utilize
actual or threatened physical or emotional abuse such as that found in
some of the earlier landmark coerced-confessions cases. However, we have
never held that physical or overt emotional abuse is a pre-requisite for
a finding of coercion. "Evidence sufficient to support a finding that a
confession is involuntary must reveal some physical or psychological force
or manipulation that is designed to induce the accused to talk when
he otherwise would not have done so." State v. Hegelman, 717 P.2d 1348, 1350 (Utah 1986) (emphasis added).
¶26
Obviously, the false friend
strategy bears no resemblance to abusive coercion of the "third-degree"
variety. This does not mean that the false friend technique cannot, in
some circumstances, be coercive. Indeed, the false friend technique may
be ideally suited to extract an involuntary confession from certain types
of suspects who, like Rettenberger, have below-average cognitive abilities,
A.D.D., and Dependent Personality Disorder, making them overly compliant,
submissive, and anxious to receive reassurance and approval from other
people.
¶27
The extent to which the
interrogating officers were able to convince Rettenberger that they were
not his adversaries but were looking out for his best interests is illustrated
by a colloquy that occurred towards the end of the second day's interrogation:
DETECTIVE CORBIN:
I'm going to try and come up tomorrow, okay. Now, you may talk to your
attorney tomorrow and he may tell you not to talk to me, but if I come
and I, you know, I just -
OFFICER TIMOTHY: If you're just kicking it, there's no big deal.
DETECTIVE CORBIN: Yeah, okay?
MR. RETTENBERGER: I'm going
to go over it inside and out right when I get there. I am going to tell
my attorney, "It's like this. These guys have already helped me and they're
trying to help me, and I know they're trying to help me, so I'm going to
talk to these guys."
¶28
We do not hold that the
use of the false friend technique in police interrogations is, standing
alone, sufficiently coercive to produce an involuntary confession. The
significance of the stratagem comes in relation to other tactics and factors.
The false friend stratagem provides an environment in which other interrogation
tactics may become coercive. To the extent that Rettenberger suffers from
mental disabilities and deficiencies, and to the extent that he believed
the officers were protecting his best interests, he was less likely to
question the false claims about the evidence against him; was less likely
to clearly invoke his right to counsel or to remain silent; was more likely
to "parrot" back the details the officers suggested, whether or not they
were true; was more likely to place stock in any promises or threats that
the officers made, however ambiguous they might be; and was more likely
to confess, whether guilty or innocent.
C. Threats and Promises
¶29
The district court found
that the officers made "significant references to defendant being charged
with capital murder, the lethal consequences of being charged with capital
murder, and the possibility of lesser charges being brought, depending
on defendant's cooperation." We have recognized that an interrogation can
be "impermissibly coercive because [it] carried a threat of greater punishment
or a promise for lesser punishment depending on whether [a defendant] confessed."
Strain, 779 P.2d at 226. The district court, relying on Strain,
found that the officers did not "promise or guarantee a lesser charge if
[the defendant] confessed." In reaching this conclusion, the district court
focused on the fact that on several occasions the officers stated that
they could not guarantee the sentence Rettenberger would receive if he
confessed. In so finding, however, the district court glossed over the
several occasions in which the officers strongly suggested that Rettenberger
would not face the death penalty as long as he confessed to the crime.
DETECTIVE CORBIN:
Stay with me, okay. Stay with me. He - It shouldn't have happened, it was
a mistake. A lot of things have taken place in the last three weeks since
then. The man wants to turn things around, the man does not want to die.
He does not want to face life in prison. He's got his entire life ahead
of him. And we're going to make that life happen.
. . . .
DETECTIVE CORBIN: Now, I'm
not going to blow smoke up your ass. I'm not going to tell you that nothing's
going to happen here. Stay with me. I'm not going to tell you that, oh
hey, we're going to get you back home tomorrow. But you know what? We
might get you back home at the end of the week, we might get you back home
at the end of next week.
. . . .
DETECTIVE CORBIN: And I mean,
it's like you said earlier, I could die, I could die. You don't have
to die, okay? You don't have to spend the rest of your life in prison.
We can get to the bottom of this thing, hear your version, we can sort
it out from here.
. . . .
DETECTIVE CORBIN: Okay, explain
to me everything that's happening, go through the whole thing. You won't
have any questions, you won't have any fears. You already know what's
the worst, and you won't have that. You'll know exactly what's happening.
. . . .
OFFICER TIMOTHY: You know, you made a mistake, yeah. You know, you did, you made a big screw up. But like we said, you didn't mean to do that. Yeah, you should do some time for the robbery, you know, you shouldn't have done that. You know better than that, you're smarter than that. (Emphasis added.)
¶30
Promises of leniency necessarily
imply the threat of harsher punishment. On some occasions in the interrogations,
that connection was made explicit:
DETECTIVE CORBIN:
Right now you're booked on a capital offense. Right now capital offenses
are punishable by death, period. You're looking at lethal injection, okay?
You're looking at a firing squad, what are the other choices, is that it?
OFFICER TIMOTHY: Hanging.
DETECTIVE CORBIN: Hanging, okay? So basically what you're talking about unless you're a macho guy, you're probably looking at lethal injection, okay? I don't think we even need to go there. You see what I'm saying? Let's just put that behind us, let's look at what really happened that night, and let's get this death row bullshit out of the way, and let's get you to a point where you're able to say, "Hey look, okay, I'm cutting the bullshit. I know what happened, this is what happened." (Emphasis added.)
¶31
At points in the interrogations,
the officers suggested to Rettenberger that the murder could be recast
as a crime far less serious in nature than capital homicide.
This tactic is effective
at eliciting admissions for the same reason that more explicit promises
of prosecutorial leniency work: because the interrogator communicates that
the suspect will receive a reduced level of punishment . . . if he admits
to a description of the offense the interrogator finds acceptable.
Ofshe & Leo, The Decision
to Confess Falsely, at 999. In one form or another, the officers suggested
that the murder was unintentional at least 39 times during the interrogations.
Among other things, they told Rettenberger that the killing "wasn't intentional";
it "started out as one thing," but "things got out of hand"; they knew
he was "not a murderer"; the wounds from the gunshot "shouldn't have been
fatal"; he "didn't mean to" kill anyone; he was "not a bad person"; "you
guys didn't mean for this to happen"; the officers could "explain to the
judge that this thing wasn't premeditated"; "things got out of hand, he
struggled with you guys"; they knew Rettenberger "didn't go in there with
the intention of killing him." In short, they told him they believed "the
whole thing was a mistake." The legal significance of Rettenberger's intent
was made explicit:
DETECTIVE CORBIN:
This - no one meant for this to happen. This was not a capital offense.
This was not a situation where you guys planned on doing this. This was
not pre-meditated. Yeah, the robbery was. So it's robbery. The time you
get on robbery, bare minimum. First offense, you're hardly looking at anything.
(Emphasis added.)
¶32
These and similar statements
by the officers, standing alone, may not have overcome Rettenberger's will
such that his confession was involuntary. At a minimum, however, they constitute
evidence that, when considered in light of the totality of circumstances,
strongly weighs against the conclusion that the confession was voluntary.
D. Other Factors
¶33
Another important consideration
is whether the defendant was subjected to extended periods of incommunicado
interrogation. Cf. Mabe, 864 P.2d at 894. In the present case, Rettenberger's
interrogations took place over a two-day period. The first interrogation
lasted between one and a half to two hours. Rettenberger was then placed
in solitary confinement where he spent approximately 22 hours with neither
pillow nor blanket. The next day he was interrogated a second time.
¶34
Although the State concedes
some "troubling conduct" occurred in the first interview, it argues that
the two interrogations should be viewed as separate events and that any
illegality in the first interview was cured by the subsequent period of
isolation. We cannot agree. It is true that the passage of time can, in
some circumstances, "dissipate any lingering effects of police coercion."
Mabe, 864 P.2d at 894. In this case, however, it is not appropriate
to view Rettenberger's time in solitary confinement as curative. In this
case, however, the evidence indicates that the isolation exacerbated Rettenberger's
disposition. At the suppresion hearing, Dr. Gregory testified that the
period of solitary confinement would have caused Rettenberger to have "increased
vulnerability" and "anxiety," compromising "his ability to make decisions."
Furthermore, the character and content of the second interrogation related
directly to the first. Where there exists a "causal relationship" between
two interviews, it is not appropriate to view them in isolation. See
id. In this case, we conclude that the two interrogations and the
period of isolation "[a]ll were simply parts of one continuous process."
Leyra v. Denno, 347 U.S. 556, 561 (1954).
¶35
Other factors also weigh
against the State's claim that the confession was voluntary. During the
first interrogation, Rettenberger made several requests to call his mother
or to use the telephone. Although the officers suggested that he would
be allowed to call his mother, he was not. Furthermore, Rettenberger's
parents contacted the police to request that they be allowed to supply
a lawyer for him. Their request was denied. In addition, despite request,
Rettenberger was not allowed to use the bathroom. The officers seldom denied
any of Rettenberger's requests outright; they brushed them aside with vague
references and changes of subject. The interview videotapes demonstrate
that Rettenberger was easily distracted from his requests by this technique.
¶36
Finally, although this court
is not prepared to take judicial notice of hypnotic techniques, and the
parties did not brief this issue, we express concern that a suggestive
hypnotic interrogation technique may have been utilized in the first interrogation.
See Appendix. We take this opportunity to note that we have held
hypnotically enhanced witness testimony to be inherently unreliable and
inadmissible. We further note that the reliability of such testimony will
not improve merely because the hypnotically enhanced testimony comes from
a defendant in the form of a confession. See State v. Tuttle,
780 P.2d 1203, 1207-11 (Utah 1989).
II. SUBJECTIVE FACTORS
¶37
We now consider Rettenberger's
subjective characteristics, especially as known to the interrogating officers,
to determine the extent to which those characteristics made him more susceptible
to manipulation. All of the factors discussed above become more significant
when Rettenberger's personal characteristics are taken into account. Rettenberger
was eighteen years old at the time of the interrogation, had the maturity
level of a fifteen-year-old, and had a below-average I.Q. "The concern
in a case involving a defendant of subnormal intelligence is one of suggestibility."
Jurek v. Estelle, 623 F.2d 929, 938 (5th Cir. 1980). That concern
is heightened here, where the defendant had had little prior experience
with the judicial system, suffered from A.D.D., and exhibited symptoms
of depression, anxiety disorder, thought disorder, schizophrenia, and dependent
personality disorder, making him overly compliant and particularly vulnerable
to psychological manipulation.
¶38
In addition, as the district
court found, Detective Corbin, based on personal experience, recognized
that Rettenberger exhibited symptoms of A.D.D., had the maturity level
of a fifteen-year-old, was under extreme stress and anxiety during the
interrogation, and was afraid of the capital charges being brought against
him. Furthermore, the district court specifically found that the officers
also knew that the defendant had a below-average I.Q. and that he "was
more susceptible to stress and coercion than the average person."
¶39
These factors raise serious
questions regarding both the voluntariness and reliability of the confession.
As Detective Corbin wrote in his report, during the interrogation Rettenberger
"seemed to look to me for answers to what was going on." He further noted
that "during both interviews I observed one characteristic portrayed by
Rettenberger and that was that he wanted to confess what ever [sic] it
would take in order not to go to prison for an extended period of time
or face the death penalty." The videotapes of the interviews support this
assessment at numerous points. After Rettenberger had confessed his involvement
in the crime at the conclusion of the first interrogation, the following
colloquy took place:
OFFICER TIMOTHY:
The worst is over, right? You told us. Now we just have to do -
MR. RETTENBERGER: Was I right?
I was right, right? What I told you guys was not -- wasn't, no you don't
think I'm bullshitting you, right?
¶40
In fact, Rettenberger's
confession contains little information that was not first provided or suggested
by the interrogating officers. During the interrogations, the officers
told or suggested to Rettenberger that he had been involved in the murder/robbery
that had taken place at Motel 6; the murder had been an accident; more
than one person had been involved in the crime; the crime took place in
the Motel 6 office; the crime took place on October 29, 1996; the crime
took place at approximately 9 p.m.; there were two cars involved in the
crime; one of those cars was his; Rettenberger and his accomplices had
driven by the Motel 6 before stopping to rob it; he had parked in the front
driveway of the Motel 6; two of his friends and his uncle were also involved
in the crime; one of his accomplices probably served as a lookout and one
stayed in the car as the driver; not much money was involved in the robbery;
he was the only one who entered the Motel 6; the victim was sitting or
eating at a table when Rettenberger entered; Rettenberger had carried the
gun in his waistband; he had showed the gun to the victim; he had gone
over the counter; he had hit the victim on the head a couple of times with
the gun; the victim had tried to take the gun from him; he had talked to
the victim; the victim had tried to run; Rettenberger fired three shots,
aiming at the victim's shoulder; the first shot was fired and after approximately
ten seconds two others were fired; he had not meant to kill the victim;
two of those shots struck the victim; the two shots struck the victim in
the shoulder; the victim was not shot in the head; the killing had not
been "execution-style"; the bullet wounds should not have been fatal except
that the bullet fragmented and struck the heart; the victim went down;
Rettenberger ran out. Rettenberger was not the original source of any of
these details.
¶41
At times, the information
that the officers gave Rettenberger took the form of outright instructions
or demands.
DETECTIVE CORBIN:
Who showed him the gun? Did you show him the gun?
MR. RETTENBERGER: Did I?
DETECTIVE CORBIN: Yeah. Now I'm telling you, you showed him the gun.
MR. RETTENBERGER: Okay.
¶42
On many other occasions,
Rettenberger simply incorporated the officers' suggestions into his confession.
For instance, once the officers gave Rettenberger the names of his friends
whom they were investigating, he then implicated those friends--and no
others--in the crime. At several points in the interrogation, Rettenberger
asked the officers for information about the crime, as when he asked (after
he had already confessed to shooting the victim but before he was told
that the victim was shot twice),
MR. RETTENBERGER:
Where did, where did the bullet hit at?
MR. TIMOTHY: Well -
MR. RETTENBERGER: Do you mind if I ask that?
OFFICER TIMOTHY: Well, we'll tell you, but we kind of want to get an idea of where you was aiming at. A similar exchange occurred (again after Rettenberger had confessed) when Detective Corbin asked him to draw them a picture of the gun used in the shooting: DETECTIVE CORBIN: Can you draw me kind of - you know, I don't care if it looks really good. Just so I have an idea.
MR. RETTENBERGER: What was the caliber, anyways, of that gun?
DETECTIVE CORBIN: You don't know?
MR. RETTENBERGER: No, I really
don't know.
¶43
When the officers changed
the facts they had provided Rettenberger, his story also changed. For instance,
on the first day when he was told that three people were involved in the
crime, he told the officers that all three entered the Motel 6 lobby. When,
in the following interrogation, the officers told him that they knew he
entered the lobby alone, he stated that he went into the lobby alone.
¶44
Early in the first interrogation,
Rettenberger had told the officers,
Okay, let - I'm
going to tell you, I'm going to tell you just like this. I'll tell you,
I'll say whatever you want me to say. I'll say I did this, I'll say I did
that, I'll say whatever. I cannot tell you something that I don't know
about.
By the close of the second
day, the officers had directly or indirectly given Rettenberger virtually
all the facts that he used in his confession.
¶45
Full consideration of all
the factors discussed above compels a determination that Rettenberger's
confession was involuntary to the extent the record indicates that his
will, already vulnerable due to certain known mental disabilities and deficiencies,
was overborne by the suggestive and coercive techniques used by the interrogators,
which exploited those very vulnerabilities. "In the face of a challenge
to the voluntariness of a statement or confession, it is incumbent upon
the prosecution to demonstrate by a preponderance of the evidence that
the statement was made voluntarily based upon the totality of the circumstances."
State v. Allen, 839 P.2d 291, 300 (Utah 1992) In this case, the
prosecution has failed to carry its burden. Reviewing the interrogation
in light of the totality of circumstances, we conclude that Rettenberger's
confession was induced by police coercion and was involuntary. Accordingly,
we reverse the district court's denial of Rettenberger's motion to suppress
and we remand this case to the district court for proceedings consistent
with this opinion.
---
¶46 Chief Justice Howe, Justice Stewart, Justice Zimmerman, and Justice Russon concur in Associate Chief Justice Durham's opinion.
Appendix Detective Corbin: Do me a favor. Think about the house you [were] born in. Do you remember?
Mr. Rettenberger: In (inaudible)?
Detective Corbin: Yeah.
Mr. Rettenberger: I remember it.
Detective Corbin: Okay, how about the house in California that you last lived in (inaudible).
Mr. Rettenberger: Yeah?
Detective Corbin: Picture the front door, looking in. Let me see your eyes. Picture the front door. Do you see the front door?
Mr. Rettenberger: Yeah.
Detective Corbin: Okay. Now, you're standing in front of the door and you're going to go into the house. Is there a doorbell?
Mr. Rettenberger: Is there a doorbell?
Detective Corbin: Is there a doorbell to ring?
Mr. Rettenberger: At my house?
Detective Corbin: Uh-huh -
Mr. Rettenberger: Yeah.
Detective Corbin: - the house in California. Which side of the door it's on, is it on?
Mr. Rettenberger: Right.
Detective Corbin: Okay. As you go in the door what's the first thing that you see?
Mr. Rettenberger: I can't remember all that. That was four years ago. Probably a couch and a T.V.
Detective Corbin: Why don't you think about your bedroom for a minute? Do you remember your bedroom?
Mr. Rettenberger: Shared it with my little brother.
Detective Corbin: Okay.
Mr. Rettenberger: They're bunk beds.
Detective Corbin: As you walk through the door of your bedroom, which way does the door swing? Does it swing from right to left? Okay? Or from left to right?
Mr. Rettenberger: Four years ago, I can't remember which way my door opened. I don't know.
Detective Corbin: Which wall were your beds on?
Mr. Rettenberger: (inaudible) on this side.
Detective Corbin: Okay. Do me a favor for a minute here. I want you to think of an animal in your mind that has an elephant's body. Okay? An elephant that's got a different head on it. I want you to picture this for a minute. Okay? Okay, and you've got an elephant's body, and what I want you to do is put a giraffes neck on it. Okay? Can you picture that, and elephant's body, a giraffe's neck?
Mr. Rettenberger: Okay.
Detective Corbin: Bear with me. I know this is crazy, but bear with me. Okay. Now you've got the neck on this body, right?
Mr. Rettenberger: Okay.
Detective Corbin: Okay, look at me, let me see you. Okay? Now, on top of that giraffe's neck I want you to put an eagle's head.
Mr. Rettenberger: Okay.
Detective Corbin: Okay? You got it now?
Mr. Rettenberger: Yeah.
Detective Corbin: Picture what I'm looking at? Now what I want you to do is I want you to put some ostrich wings, you know those really short ones that they can't really fly on?
Mr. Rettenberger: Yeah.
Detective Corbin: Put some ostrich wings on the elephant.
Mr. Rettenberger: Okay.
Detective Corbin: Can you picture it? Okay. Now I want you to picture that thing walking through a great big pond of water. Can you picture it? What does the pond look like?
Mr. Rettenberger: It's just a pond, just water.
(At this point there is a break in the video tape. Testimony resumed as follows:)
Detective Corbin: We know what time you left this morning. ---
1. See Miranda v. Arizona, 384 U.S. 436 (1966).
2. Although we reverse based on our interpretation of the relevant case law, we take this opportunity to commend the district judge for his painstaking review in this case. Among other things, he watched the videotaped interrogations in their entirety at least four times, catalogued the occasions in which the interrogating officers gave the defendant misleading information, and created numerous appendices to aid in our analysis.
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