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Show WEDNESDAY, AUGUST 26, 1970 PAGE THE DAILY RECORD THREE In The Supreme Court Of The State Of Utah CROCKETTChiefJki8tice: school. (Dissenting) Upon the basis of all of the evidence presented at the trial, the trial determined it was unfair and improper to use the confessions which had judge been obtained from the defendants. In reviewing that ruling there are certain basic propositions which should be applied. This court has heretofore indicated that the question as to whether the constitutional rights of an accused were respected is primarily for the trial court to determine; and that the same as with respect to other questions of fact, because of that prerogative, and his advantaged position, we indulge some deference to the determination he has made,, and will not upset it so long as there is a reasonable basis in the evidence giving it support. r-- - jj. Chavez Whitehorse was roused from his bed at 2:00 a. m. , Thursday, He was taken from one room to another, a total of four in all, and finally questioned by Officer Sneddon and Count lor Edward, Upon the commencement of the interrogation Sneddon told him, "Sit still and be silent I" He lying. Seme two hours Gatly denied the charges, but was constantly ai cosed April 11th. f See State v. Cnscola, 21 Utah 2d 272, 444 P. 2d 5i7; a::d see also Ker v. California, 374 U.S. 23; Miller v. United States, 364 F. ?d801. 2. Ibid. One wonders about the application of this rule it, in's case, particularly in the concurring opinion. 1. and forty-fiv- e minutes after he was roused he finally got back to bed at about 4:45 a. m. Harry Tsosie was reused from his bee at 10:30 p.m., April 9th, and questioned for three and one-ha- lf hours intermittently by Counselor who he Smith recorded what said. At 2:30 a. m. ho was taken into the next room where Officer Sneddon was waiting, bneddon indicated that it was of no use to tell anything other than what he had told Smith because he had just listened to the tape recording of his conversation with Smith, implying that he already had his testimony. Counselor Smith remained present during the questioning while Tsosie made his statement. Mose Clark was roused from his bed at 11:00 p. m. on Wednesday, He waited in a room alone for approximately twenty-fiv- e He was then questioned by Officer Sneddon and Counselors minutes. Quayle, Palmer and Speaks. After giving him the Miranda warning, Sneddon told him that he, Sneddon, got off duty at 5:00 a. m. and they would stay up until then if he didn't tell the truth. He then gave his April 10th. Harrison Largo was interrogated Thursday evening, April 11th, by Counselors Smith and Palmer. Smith told Largo that if he (Largo) didn't tell the truth he would keep going until he got it. After one hour he confessed to them and was then immediately ushered into the next room where In reference to the procedure mentioned and the information obtained, I assume that the correctness of the rule of Escobedo v. Illinois, under its particular circumstances: that when the investigation of a crime has passed from the general investigatory phase and becomes focused as an accusation of the crime upon the suspect, he is then entitled to be advised concerning his right of counsel and to have a request he makes in that regard complied with. It is not my desire, nor do I believe proper procedure in the investigation of crime requires, the extension of that ruling beyond fact situations similar to those of that case where there was an interrogation by officers who had him under their domination and control. I note my awareness and approval of authority to that eftect. "in-custod- v" air hy advi as ' ' v j .it - in. .t v in g o . un - .1 . . . i ' m'v.i-- 'f 'J . g i i ivspl'cri 1 t u . in n u n. Gentlemen . . . i n the proposition that the (M'e or the federal government Car., after first ex.tr ling .ii oral e confession from a defendant, in this rase by counselors . . . forget about the oral c or fession and t ike a man in the next room, where a police otfircr is seated, who for the first time reads from the card Itl Miranda warning) and advises the defendant of his rights. This court feels that it's within the purview of the decisions . . . that no statement, oral or written, ran ho taken from in.. , . d ir -anyone . . . wl r- the a e iisaicry phase s . i Mi rl out the Ii tarda warnings. .s ji. g guidance louiisolors did not.jjive the Mir aid. i ui ct- i. these boys when the first ioat statements ard ; nfi:ssn rs were obtain' d. In tins court's view . . . tl si Oi m : is obtained by the offic er were so tainted a'id muddled up ih,t they couldn't be said to be free, and voluntary. I Empl added. gu.-dor- r , . ti-- . There appears to be corsiderahle merit ir- the argument. tli.it approval of the procedure here followed would provide a method for circumventing the requirement of safeguarding the constitutional rights of an accused. It is my judgment that if proper deference were allowed to the prerogatives of the trial court, his exclusion of the confessions would be justified, and I am not persuaded that it should be overturned. - Notwithstanding the conclusion just stated, 1 am in accord with the position of the prosecution that the defendants would i.i-- in any event be entitled to an outright release under a permanent arrest of judgment. When an error of the character here under consideration has brer mniitt ed. what the defendIt cnmpoTts ants are entitled to is a new trial in the absence of that error. with neither law, justice nor common sense for one who is no used of committing a serious crime to go free merely because souk one made a mistake. In a situation such as this, even though the motion in aricsl of judgment was granted, the rule of double jeopardy does not bar further proc c dirgs. ' ft may be true that it would be difficult, ot the district attorney or the trial mint may think it impossible, for the State to make a case against the. defendants without confessions. But on the basis of the record before us we have no c ertain knowledge of that fact. Accordingly, the proper disposition of tlis can' would be to remand it for such further proceedings, if any, as may seem advisable in the premises : but honoiuig tl.u ruling the trial court, made as t :,a. t t- - J .irrJ & t. 6. Cf. State v. Lawrence, 120 Utah 323, 234 jp. 2d v. Texas, s:.p: . - . Si 7. See 21 Am. Jar. 2d 503, Grim. Law, Sm . 2 i . phenrori, 69 2 3. V. N. W. 412 Kan. 405, 76 P. V. 5 (1?04): Pmpl- v. Al.' ;i Mo-reI'M. v. I' . Stall Fiuik pr, 93N.H. (1930); j7A.21 It). Sta'. 241 N.C. 609, S6S.E. dnl. Ur-'-zc- i- 1 - TRUST DEEDS 846 Dale P Bond etux In Mtge to McGhie Land $16,000. Western Title; 893 4257 West Midway Drive 2342 848 Waylan A dell Smallwood Herbert 0 Trayner etal to Western Mtge In McGhie Land Title; $12,600. 2510 South State Street 894 Ditto 896 James etux to Valley Bk; $21,400. 3464 West 3910 South R Pappas etux to Valley Tr; $19,400. 4758 Palmer Drive Bk A 850 etux to Nat Abstract; Clifford T Curtis Co Backman Mtge $13,100. 4769 South 4420 West, Reams 859 861 Research Homes line to American Sav & In; $25,600. 3535 South 3?00 West Research Homes Inc etal to Amer Sav A In; $27,700. 3535 South 3200 West 897 899 900 901 864 Ditto; $24,400. 902 866 Alan 869 874 Bk A slo 892 B Ditto Ditto 4887 South 6580 West 903 etux to PFS; CL to 1st to Ditto 3922 South 6580 West rclA, Sandy Casto etux Verl $17,450. Jos Cabinet McGhie Lend 6540 West 3910 South 904 Ditto 3900 South 658O West Ffed 905 Ditto 3907 South 6515 West PFS A In; 906 Haskins etux to Valley Tr; $12,000. James E Savin gt on etux to Western Mtge In MoQile Land Ditto 3878 South 6580 West slo 889 A 3888 South 6515 West Chas B Keller etux Sav A In; $23,200. 1242 Sandra Circle L Valley Center Hldg to Western Mtge In Title; $12,000. Ditto; $21,600. Lynn In McGhie Land Title; 6411 West 3860 South 863 I32 East & $16,000. Ditto; $24,400. Maynes W Richard L Silva etux to United Sav 862 D Heuser etux to Home A In; $17,500. 4267 Midway Drive Robert Benefit Sav $16,000. The critical question here as to the propriety and fairness of the not be answered solely upon procedure in obtaining the confessions should counselors or of the police school the of either the basis of the questioning would the within coine considered together officers, but whether the two above there recited facts to the umbit of the Escobedo rule. In addition are certain aspects of the evidence which give support to the trial court's determination. These teenage Indian youths were away lrom their home environment. They were in effect confined in an institution. The school officials had supervisory and disciplinary control over them. There was school counselors were "tne police" of the testimony to the effect that the 3. 378 U. S. 478 (1964). Court talked 4. See Orozco v. Texas, 394 U.S. 324, in which the Supreme was "in a when questioned being person about the Miranda requirement of m any of freedom his action custody at the station or otherwise deprived Minor v. State, 6 Md.App. 82, V.USvManglona, 414 F. 2d 64249 (1969); Cal. Rptr. 285. 250 A. 2d 113; People v. Crabtree, .iii v.i T tions, that lu thought the quest toruig 1j! tr to the accusator y stage the m nri irgs ot the motion in arrest judgment. jiti i ha the case, he made these ubseTv;,''T s: Officer Sneddon was waiting. Clarence Peter was summoned from a movie on Saturday at 2:00 He took his girl back to her dorm, made a date with her for later p. m. that evening and went to the interrogation building. He waited alone for over four hours. Shortly after 6:00 p. m. he was questioned by Officer Sneddon and Counselors Speaks and Peter. He flatly denied any participation in the affair, but Sneddon kept going on and told him that they already knew about his role in the affair, and that they would stay until he told the truth. He decided to answer questions affirmatively in an effort to be released so that he would not fail to keep his date with his girl friend. q. i f turning that the court cov.M wll regard the trial judge'smi:i'Tit s The questioning of the students was handled in the first phase by the school guidance counselors. The pattern of procedure followed was that when the questioning implicated a student, the suspect was taken before the police officer,, and while in the presence of the counselor, for what amounted to a repetitipn and confirmation of information already obtained. Because of my belief that the trial court's deter miration should be sustained, I feel that it is only fair and proper that I state a brief summary of the facts relating to obtaining the confessions, as I. see them upon a view of the record in the light supporting that conclusion. Reid Barber was roused from his bed at 11:00 p.m. , Tuesday, April 9th. H was taken re a room in. the main building where he waited for one hour. He talked to someone he did not know and was then allowed to return to his bed. On Wednesday right, April 10th, he was summoned to speak with Counsel Smith ard Officer Sneddon. He. was read the Miranda warning, and was tcld by Oftirer SneOdm, "We'll take you down to jail right now if you don't tell the truth," H- savs hu then gave a statement hoping that if he told the truth he wrtij.d not go to Tl c 909 Verl Seo A Hufftaan Bk MoGhie $16,000. 4183 910 Jr etiu to 1st Titlll Land Flnalr Drive Valley Center Hldg A Clblnut Inc to Western Mtge In Mufti Land 6528 Title; West. $12,000. 3910 South |