SHERIFF, WASHOE COUNTY, Appellant, v. KEVIN BESSEY, Respondent
Sheriff v. Bessey
Steffen, C. J., concurs. Springer, J., concurs in result only.
SHERIFF, WASHOE COUNTY, Appellant, v. KEVIN BESSEY, Respondent.
SHERIFF, WASHOE COUNTY, Appellant, v. KEVIN BESSEY, Respondent.
No. 26362
April 3, 1996
914 P.2d 618
Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Appellant.
Michael Specchio, Public Defender, and John Reese Petty, Deputy Public Defender, Washoe County, for Respondent.
OPINION
By the Court, Shearing, J.:
The State charged respondent Kevin Bessey with two counts of sexual assault, one count of attempted sexual assault, two counts of statutory sexual seduction, one count of attempted statutory sexual seduction, and one count of open or gross lewdness. After a preliminary hearing, the justice of the peace bound Bessey over for trial on a number of the charges. Bessey filed a petition for a writ of habeas corpus in the district court. The district court found that a detective had improperly fabricated evidence, concluded that Bessey's inculpatory statements should have been suppressed, and dismissed the information. The State filed a sheriff's appeal, arguing that use of the fabricated evidence in the interrogation did not render the inculpatory statements involuntary. We agree.
Preliminarily, we point out that Bessey employed the wrong procedure to challenge the admissibility of his inculpatory statements. "Pretrial habeas corpus may not be used to challenge admissibility of evidence on constitutional grounds. Cook v. State, 85 Nev. 692, 462 P.2d 523 (1969). Such a challenge should be made in a motion to suppress evidence, and review of the district court's ruling may be sought following trial and conviction." Hardin v. Griffin, 98 Nev. 302, 304, 646 P.2d 1216, 1217 (1982). The district court erred in granting pretrial habeas relief because habeas may not be used to challenge admissibility of evidence on constitutional grounds.
Even if Bessey had filed a proper motion to suppress, his inculpatory statements should not have been suppressed. Bessey contended that his inculpatory statements were made after the police officer showed Bessey a fabricated document implicating him as the perpetrator of a sexual assault on a minor. Bessey wás asked to come to the police department for an interview after a fourteen-year-old girl gave a statement to the police alleging that Bessey had performed numerous sexual acts on her without her consent. At the interview, Bessey denied engaging in any sexual acts with the minor until the police officer asked him if he could explain why analysis of the couch at the apartment where these acts allegedly occurred showed his semen present. The actual analysis was negative, but the officer presented Bessey with a false crime lab report, which the officer had prepared. Bessey then made a number of inculpatory statements.
"To determine the voluntariness of a confession, the court must consider the effect of the totality of the circumstances on the will of the defendant. The question in each case is whether the defendant's will was overborne when he confessed." Passama v. State, 103 Nev. 212, 214, 735 P.2d 321, 323 (1987). Police deception is a relevant factor in determining whether or not a confession is voluntary. See Frazier v. Cupp, 394 U.S. 731, 739 (1969). However, an officer's lie about the strength of the evidence against the defendant is, in itself, insufficient to make the confession involuntary. Holland v. McGinnis, 963 F.2d 1044, 1051 (7th Cir. 1992), cert. denied, 506 U.S. 1082, 113 S. Ct. 1053 (1993).
Cases throughout the country support the general rule that confessions obtained through the use of subterfuge are not vitiated so long as the methods used are not of a type reasonably likely to procure an untrue statement. C.T. Drechsler, Annotation, Admissibility of Confession as Affected by Its Inducement through Artifice, Deception, Trickery, or Fraud, 99 A.L.R.2d 772, 783 (1965 & Supp. 1993).
In Frazier, the police falsely told a defendant that his codefend-ant had already confessed. The court concluded that "[t]he fact that the police misrepresented the statements [the codefendant] had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible." 394 U.S. at 739. The Holland court stated that "[o]f the numerous varieties of police trickery . a lie that relates to a suspect's connection to the crime is the least likely to render a confession involuntary." 963 F.2d at 1051. The court went on to say the following:
Such misrepresentations, of course, may cause a suspect to confess, but causation alone does not constitute coercion; if it did, all confessions following interrogations would be involuntary because "it can almost always be said that the interrogation caused the confession." Miller v. Fenton, 796 F.2d 598, 605 (3d Cir.), cert. denied, 479 U.S. 989, 107 S. Ct. 585, 93 L. Ed. 2d 587 (1986). Thus, the issue is not causation, but the degree of improper coercion, and in this instance the degree was slight. Inflating evidence of Holland's guilt interfered little, if at all, with his "free and deliberate choice" of whether to confess, Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141, 89 L. Ed. 2d 410 (1986), for it did not lead him to consider anything beyond his own beliefs regarding his actual guilt or innocence, his moral sense of right and wrong, and his judgment regarding the likelihood that the police had garnered enough valid evidence linking him to the crime. In other words, the deception did not interject the type of extrinsic considerations that would overcome Holland's will by distorting an otherwise rational choice of whether to confess or remain silent.
Id. at 73.
In State v. Kelekolio, 849 P.2d 58, 71-74 (Haw. 1993), the Hawaii Supreme Court considered the relevant case law and scholarly authority and formulated a rule by which to measure the legitimacy of the use of deception by the police in eliciting confessions or inculpatory statements from suspects and arrest-ees. The Kelekolio court adopted the following rule:
[E]mployment by the police of deliberate falsehoods intrinsic to the facts of the alleged offense in question will be treated as one of the totality of circumstances surrounding the confession or statement to be considered in assessing its voluntariness; on the other hand, deliberate falsehoods extrinsic to the facts of the alleged offense, which are of a type reasonably likely to procure an untrue statement or to influence the accused to make a confession regardless of guilt, will be regarded as coercive per se, thus obviating the need for a "totality of circumstances" analysis of voluntariness.
849 P.2d at 73.
Examples of intrinsic falsehoods would include misrepresentations regarding the existence of incriminating evidence such as placement of the defendant's vehicle at the crime scene, physical evidence linked to the victim in the defendant's car, presence of defendant's fingerprints at the crime scene or in the getaway car, positive identification by reliable eyewitnesses, and identification of the defendant's semen in the victim or at the crime scene. See id. Examples of extrinsic falsehoods of a type reasonably likely to procure an untrue statement or to influence an accused to make a confession regardless of guilt would include the following: assurances of divine salvation upon confession, promises of mental health treatment in exchange for confession, assurances of more favorable treatment rather than incarceration in exchange for confession, misrepresenting the consequences of a particular conviction, representation that welfare benefits would be withdrawn or children taken away unless there is a confession or suggestion of harm or benefit to someone. See Lynumn v. Illinois, 372 U.S. 528 (1963); Kelekolio, 849 P.2d at 73-74.
In this case, the detective's lie and the falsified lab report went to the strength of the evidence against Bessey, a consideration intrinsic to the facts of the alleged offense. Therefore, the court must consider the totality of the circumstances which produced Bessey's statements to determine whether they were voluntary. We conclude that there was nothing in the treatment of Bessey or the setting of the interrogation that was coercive. Bessey went to the police station voluntarily and the length of the interview was relatively short. The only factor that was out of the ordinary was the production of the falsified lab report. Based on the law in this area and the facts of this case, there is no reason to believe that Bessey's inculpatory statements were not voluntary. The false report would not have implicated any concerns on Bessey's part other than consideration of his own guilt or innocence and the evidence against him. There is nothing about the fabricated document presented to Bessey in this case which would have produced a false confession.
The one case Bessey relies upon in support of the suppression of his admissions is State v. Cayward, 552 So. 2d 971 (Fla. Dist. Ct. App. 1989), review denied, 562 So. 2d 347 (Fla. 1990). In Cayward, the police fabricated two scientific reports that indicated that the semen stains on the victim's underwear came from Cayward. The police showed the false reports to Cayward because they suspected him of sexually assaulting and smothering his five-year-old niece. Some time later in the interview, Cayward confessed. The Florida court held that the manufacture of false documents by police officials offends the traditional notions of due process under both the state and federal constitutions. Id. at 974. We disagree with the Florida court's standard and rationale.
The Cayward court placed great emphasis on the fact that the false statement to the suspect was written rather than verbal and decided to draw a bright-line rule on that basis. Under the Cayward decision, the police could have verbally lied to the defendant by telling him that his semen had been found; but, the fact that the lie was embodied in a piece of paper made it a violation of due process. This is a distinction without a real difference. Moreover, it ignores the basic test for the voluntariness of confessions which the United States Supreme Court has set out. Schneckloth v. Bustamonte, 412 U.S. 218, 226-27 (1973); Passama, 103 Nev. at 214, 735 P.2d at 323. Under prevailing law, the appropriate question is whether the deception, whatever its nature, would have induced a false confession under the circumstances. Holland, 963 F.2d at 1051. If it would not, then the defendant's rights were not violated, and suppression of the defendant's subsequent statements is unwarranted. Id.
It has been argued that fabricated documents used in interrogation may find their way into court as evidence. The case of United States v. Khoury, 901 F.2d 948 (11th Cir. 1990), modified on other grounds, 910 F.2d 713 (11th Cir. 1990), is used as an example. Khoury actually demonstrates that the system works to differentiate authentic from fabricated documents. False documents may "go astray," but our evidentiary rules are designed to prevent their use in our legal forums. Moreover, the Khoury court recognized that "such falsifications, in certain circumstances, may be a necessary investigatory method. . . 901 F.2d at 970.
The Cayward court also raises the bogeyman that allowing police to use false documents in interrogation would open the door to fabrication of court documents, such as warrants or judgments, thus eroding the public's respect for the authority of court orders. 552 So. 2d at 974-75. We strongly disagree. One can postulate all types of scenarios which would not pass constitutional muster and would erode the public's confidence, but that does not mean that the rather innocuous document used in the interrogation in the instant case is such a document.
Some would argue that the police should not lie at all. However, that is not the current policy. Otherwise, many common police tactics would be barred. Several techniques which involve deception include undercover police officers, sting operations, and interrogation techniques such as offering false sympathy, blaming the victim, minimizing the seriousness of the charge, using a good-cop/bad-cop routine, or suggesting that there is sufficient evidence when there is not. As long as the techniques do not tend to produce inherently unreliable statements or revolt our sense of justice, they should not be declared violative of the United States or Nevada constitutions.
The position that permitting police to fabricate documents leads us down a slippery slope displays little confidence in our courts and is out-of-step with what we are trying to accomplish— namely, to achieve justice. It may be a comfort to judges to have a bright-line test dictating that verbal lying in interrogation is allowed, but fabrication of documents is forbidden. However, this ignores the basic question at issue — would the police action have induced a false confession? If the deception, whatever its nature, would not, the confession should be admissible. In the instant case, there is no evidence or credible argument that the fabricated document did produce or was likely to produce a false confession.
Accordingly, we reverse the judgment of the district court and remand this case to the district court for further proceedings.
Steffen, C. J., concurs. Springer, J., concurs in result only.