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Show J THE PAGE FOUR DAILY TUESDAY, AUGUST 25, 1970 RECORD In The Supreme Court Of The State Of Utah The State of Utah, Plaintiff and Appellant, reason or common sense. These rules should never have been pronounced in the first place and except for the power behind them should nor. now be Certainly they should not be extended. No. 11832 fol-low- v. FILED Harrison Largo, Harry Tsosie, Clarence Peter, Chaves Whitehorse, Reid Barber and Mose Clark, August 20, 1970 L. M.- - Defendants and Respondents. Cummings, Clerk HENRIOD, Justice; Appeal by the State from an order in arrest of judgment after a jury verdict of guilty of assault with attempt to rape as to five of the defendants and simple assault as to the sixth. Reversed and remanded for a new trial. The defendants, young men attending the Intermountain Indian School at Brigham City, Utah, confessed to the charges, but attack the jury verdicts on the ground their confessions were inadmissible under the principles enunciated in Escobedo v. Illinois and Miranda v. Arizona. One evening, following a basketball game, the lights went out at the school, and during the blackout, defendants allegedly entered a girls' dormitory and committed the assault. Without detailing the voluminous record, it can be said that the counselors at the school investigated the incident, questioning dozens of students who, they believed, may have had knowledge thereof, and generally advising all of them to tell the truth. There appears to have been a genuine interest on the part of the school administrators to determine what happened and who may have participated on the occasion. There was no evidence as to any specific accusation directed specifically toward any one person, but during the course of the inquiry the defendants admitted participation in the event and signed a statement to that effect. At no time did the counselors advise them of their rights under the Miranda decision. There was no evidence of pressured coercion, inducement, undue influence or other circumstance indulged as an incentive to exact or force a false or any other kind of a confession from the students. After this rather general and widespread investigation, an experienced police officer was employed to question some of the students. Before questioning them, he advised each one of his rights under Miranda. He questioned 60 or more of the students after giving such warning. No one was placed under arrest or taken to jail or any other place off campus. There was a counselor of the school attendant at each questioning, the record reflecting, without contradiction, that he was there to insure that nothing occurred that the boys would not understand. There is nothing in the record indicating that the defendants were infantile, fearful, unintelligent, coerced, acted involuntarily, were victims of undue influence, "police brutality" or otherwise under any handicap or incapacity to know what was happening or what they were doing. After having been forewarned as stated above, none asked for counsel, but on the contrary, each waived the rights mentioned and signed a written admission of what part he had played during the power failure. The State says the trial court erred in arresting judgment on the assert- ed grounds that the written statements of the defendants were inadmissible under Escobedo and Miranda, since, as the State urges, the defendants were not in custody when questioned by the counselors, and were amply warned of their rights before talking. We agree. 1. 2. 378 U.S. 478, 84 S.Ct. 1758 (1964). 384 U.S. 436. 86 S.Ct. 1602 (1966). We find nothing showing that the interrogation by the school authorities was accusatory in the Escobedo connotation of that term. It appears to have been nothing dissimilar to that type of inquiry customarily indulged by any principal of any public- or private school, military academy, church or other public or private institution whose administrators as a matter of course delve into the cir cuinstanres surrounding an incident of moment to the morale, well-beior of its students or members. There was no svi dence of focusing the .inquiry on any particular suspect, in the Escobedo sense. Certainly the farts do not lend themselves to invocation of Miranda, where one might have been subjected to questioning in some sort of isolation, or in the shadow of the gaol, as it were, as suggested in the language of Miranda . ed. interrothese rules applied to gation by police officers. They were not intended to apply to private persons since private persons are not required to give any warning or furnish an attorney before asking questions. As originally pronounced in-cust- The Intermountain Indian School is a coeducational, boarding school for Indian students. There is nothing in the record to show that any person was compelled to remain in the school against his will. The X Escobedo v. Illinois, 378 U.S. 478; Miranda v. Arizona, 383 U.S. 436. 2. Commonwealth v. White, 232 N. E. 2d 335 (Mass. 1967); McElroy v. State, 204 So. 2d 463 (Miss. 1967); Nedrud: The Supreme Court and the Law of Criminal Investigation, p. 189. guidance counselors and other school officials were naturally disturbed by the crimes which had been perpetrated upon young girls attending their school, and they were interested in ascertaining the identity of the guilty parties. None of the school officials or guidance counselors were officers of the law nor were they affiliated in any manner whatsoever with .any such officers. They stood in the relationship of in loco parentis to the entire student body, and in that relationship they were not required even by the rules of Escobedo and Miranda to give any advisory warnings or to furnish an attorney before asking questions. In their investigation they had eliminated from possible guilt all but 60 or 80 of the male student body. They caused these 60 or more young men to be brought before a police officer for further questioning. In each instance a guidance counselor accompanied the boys as they were interrogated to make certain that no advantages were taken of them. As the boys were taken before the officer they were told by the guidance counselor to tell the truth. Now this advice may sound harsh to the ear of a defense oriented judge who has lost sight of obtaining a just verdict, however, it should be observed that Indian people are noted for telling the truth and for encouraging others to do likewise. All of the students questioned by the police officer were properly advised of any rights pursuant to the Escobedo and Miranda cases,, and there is no claim made by any of the defendants to the contrary. They do complain that the school officials did not advise them of their Miranda and Escobedo rights. As was shown above, these defendants were not entitled to such warnings, but no statements made by any of the boys to the school officials or guidance counselors were offered in evidence at the trial. Under questioning of the police officer each of the defendants in this case confessed to his participation in the crimes which had been committed and these confessions were admitted in evidence. so-call- so-call- ed ed Even if the school officials had been required to give the warnings, such would not be required during the investigatory stage of the proceeding. The fact that more than 60 boys were brought before the police officer shows that the school officials had not at that time begun any accusatory proceedings against the six defendants in this case. The dissent seems more interested in the sleep of the boys than the rape of the girls. It does not mention the fact that two girls were dragged from under the Jed wjiere they were hiding, down a hallway and out onto the grounds, where one of them was raped eight times and the other five times. 3 Nor does it express any concern for the fact that while the .girls were being dragged like hogs down the hallway and along the ground, some of the boys were running along beside them poking their fingers inside their private parts until the fingers were bloody. - law-abidan- ng ce itself, where "compulsion to speak in the isolated setting of the police station may be greater than in courts or other ofticial investigations where there are often impartial observers to guard against intimidation or trickery." The counselors in this case certainly were cast in no other role than that of such guardians against oppression or chicanery. It would seem that the recent case of U. S. v. Mangola is quite simito the instant case, and consonant with our contentions and conclusions here, lar - to which the reader is referred. Mr. Justice Ellett has reported some facts not recited in this opinion, One should not criticize the school officials for working around the clock to try to find the culprits who committed such dastardly acts. From a student body of 2, 000 they eliminated from guilt all but 60 or 80 of the boys, whom they later directed to appear before the officer of the law. No conference with the officer exceeded 40 minutes at most, and most conferences were no more than five minutes in duration of time. Under the direction of their lawyer each defendant at trial denied that he knew the meaning of the word "rape" and apparently the jury believed them, for despite the fact that each had written in his own handwriting that he had raped one of the girls, not one defendant was found guilty of rape. One was convicted of simple assault, and the others of assault with intent to commit rape. Thus the admission of the confessions into evidence, even if erroneous, would seem to be harmless, since none of the defendants was convicted of the crime to.which he had confessed. By the verdicts the jury found that these defendants did not commit the rapes, but there is no question but that someone did. 3. to most of which we subscribe. After the verdicts were returned, the trial judge, said: We think the trial court was in error in arresting judgment, that the the matter should be question of double jeopardy is not an issue here, and-tha- t new and for a remanded trial or other appropriate procedure not inconreversed This court ieels that it's within the. purview of the Earl Warren Court that nr statedecisions of the ran be taken from aryn-- within these or oral written, ment, the when states accusatory phase is c.omimr-.er- i without fifty the giving of Miranda warnings. . . . sistent with this decision, - and it is so ordered. (Emphasis added.) WE CONCUR: . . . so-call- . ... fessions E. R. Callister, Jr., Justice ed As long as I sit here, I will not rereive any conby any school officer, any peace officer if such be based on a secret, private confession theretofore obtained, without giving the Miranda warning. It seems to me that the trial judge did not fully understand the Miranda rule, and so I concur in reversing the order made arresting the judgment. . However, I dissent fr om the main opinion insoiar as it remands the case for a new trial. These defendants have had their day in court and have been found guilty by a jury of their peers on evidence which was pToperly received. Another trial is not necessary. The case should be remanded with directions for the trial court to proceed with the imposition of such punishment for each defendant as to him may seem proper and just. so-call- K. L. T. Tuckrtt, Justice 414 F.'2T64iT(9th Cir. 1969). ELLETT, Justice: The so-call- ed (Cone 'it ring and dissenting) Miranda and Escobedo rules opened Pandora's box and question of guilt or shields for guilty by putting undue embased upon logic, on a course which completely ignores the innocence rn iimin.il trial and serves as unwarranted criminals. They tend to cause a miscarriage of justice phasis on newly devised prorcduial rules whii h are not started courts t Because of length I sill be ed continued tomorrow t |