Opinion
DA 16-0278
12-11-2018
STATE OF MONTANA, Plaintiff and Appellee, v. MACIO NORVEIL BROOKS, Defendant and Appellant.
COUNSEL OF RECORD: For Appellant: Chad Wright, Appellate Defender, Kristina L. Neal, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Michael L. Fanning, Assistant General, Helena, Montana Kirsten H. Pabst, Missoula County Attorney, Brian C. Lowney, Deputy County Attorney, Missoula, Montana
APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 15-126 Honorable John W. Larson, Presiding Judge COUNSEL OF RECORD: For Appellant: Chad Wright, Appellate Defender, Kristina L. Neal, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Michael L. Fanning, Assistant General, Helena, Montana Kirsten H. Pabst, Missoula County Attorney, Brian C. Lowney, Deputy County Attorney, Missoula, Montana Filed: /s/_________
Clerk Justice Jim Rice delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Appellant Macio Norveil Brooks (Brooks) appeals his conviction for failure to register as a violent or sexual offender following jury trial in the Fourth Judicial District Court, Missoula County. We affirm in part, reverse in part, and remand for entry of amended judgment. ¶3 Brooks was arrested for failure to register as a violent or sexual offender following a stop by Officer Volinkaty of the Missoula Police Department in 2015. Brooks was required to register pursuant to his 1998 adjudication in a Minnesota youth court of committing a sexual offense. Brooks registered in Montana as a sexual offender from 2007 to 2014. During that time, Brooks was convicted twice in Minnesota for failing to register as a predatory offender. ¶4 On February 15, 2015, Brooks and N.M., who Brooks claimed was his common law wife, were walking down Brooks Street in Missoula between 1 and 2 a.m. after leaving a restaurant. The Missoula Police Department received a call from someone at the restaurant who observed N.M. had bruises on her face and legs and was wearing only underwear, a bra, a coat, and shoes, but no pants. The caller had overheard Brooks say to N.M. that, had her outfit been more "on-point," they would have made more money. Concerned about sexual trafficking, Volinkaty located the couple to perform a welfare check. ¶5 Volinkaty pulled up behind the couple on Brooks Street in his patrol car with his lights flashing, but no siren. He asked Brooks for his name and inquired whether Brooks and his "lady" would talk to him "real quick." Volinkaty assured the couple that they were "not under arrest." Volinkaty explained that someone at the restaurant had called police to perform a welfare check on the couple, and Brooks responded that they were "homeless." N.M., still dressed in only underclothes and a coat, asked what the problem was. Brooks put his hand over her mouth and attempted to quiet her, saying "shhh, shhh." N.M. stated the couple had not been at the restaurant. Volinkaty asked whether they had family in town. Volinkaty then asked N.M. if he could speak with her while Brooks spoke to his partner, Officer O'Dell (O'Dell), who had just arrived at the scene. N.M. voluntarily walked a few steps away with Volinkaty while he reiterated that she was "not in any trouble." He asked whether N.M. was safe with Brooks, and N.M. replied she was "fine" and "more than safe" with Brooks. After a few more minutes of discussion, N.M. re-joined Brooks, who was speaking with O'Dell and another unidentified officer. ¶6 While Volinkaty returned to his patrol car to determine whether N.M. was listed on any prostitution websites, O'Dell asked Brooks what he and N.M. were doing, and stated that he was not accusing Brooks of doing "anything illegal, anything like that." The officers learned that Brooks was registered as a sex offender in Great Falls, and that he had been in Missoula about one month, without registering. One of the officers stated that Brooks had three days to register in a new county, not one month. Brooks stated that he did not know he had to register. ¶7 Volinkaty then again asked to speak with N.M. alone, inquiring how long she had been with Brooks and how they met. Volinkaty confirmed from N.M. that the couple had been in Missoula for one month. Volinkaty reiterated that he just wanted to help her. N.M. again terminated her interaction with Volinkaty and re-joined Brooks. Shortly thereafter, the officers arrested Brooks for failing to register as a sex offender. Brooks was handcuffed and placed in the back of a patrol car. ¶8 In the District Court, Brooks filed a motion to suppress the statements he made to the officers on the ground that a Miranda warning was required at the outset of their encounter. At the suppression hearing, the District Court reviewed videos of the parties' interactions recorded from the officers' dashboard and body cameras. The court found that the officers' questioning was not a custodial interrogation requiring a Miranda warning, and denied Brooks' motion. ¶9 Brooks moved the District Court to prohibit the State from offering evidence of his past convictions for failing to register, and sought to offer a defense of confusion. Ultimately, after preliminary rulings, the District Court permitted Brooks to offer the defense, but also ruled Brooks' past convictions would be admissible for the State to counter the defense. The court further ruled it would take judicial notice of the Minnesota law requiring Brooks to register, and instruct the jury that Brooks had a duty to register. The jury convicted Brooks. ¶10 We review "a trial court's determination that a defendant was not entitled to Miranda warnings for correctness," and review "a trial court's findings of fact on a motion to suppress an admission or a confession to determine whether the findings are clearly erroneous." State v. Maile, 2017 MT 154, ¶ 8, 388 Mont. 33, 396 P.3d 1270 (citations omitted). When reviewing jury instructions, we recognize that "[a] district court has broad discretion in formulating jury instructions"; accordingly, we review these for an abuse of discretion. State v. DaSilva, 2011 MT 183, ¶ 15, 361 Mont. 288, 258 P.3d 419, overruled in part by DaSilva v. Law, No. 13-25-GF-DWM-RKS, 2014 LEXIS 69188 (D. Mont., May 20, 2014) (internal quotations and citation omitted). "The issue of whether a defendant's due process rights were violated is a question of law, and we review the district court's conclusion for correctness." DaSilva, ¶ 15. Finally, "[w]e review a criminal sentence longer than one year for legality." State v. Greene, 2015 MT 1, ¶ 13, 378 Mont. 1, 340 P.3d 551. ¶11 Brooks first argues that police violated his right against self-incrimination under the Montana and United States Constitutions by questioning him without first issuing Miranda warnings. The District Court concluded that no constitutional violation occurred because Brooks was not in custody for purposes of Miranda. ¶12 Miranda warnings are required prior to law enforcement officers performing a "custodial interrogation." Maile, ¶ 11. Whether a "custodial interrogation" has occurred "involves a two-step inquiry: (1) whether the individual was in custody and (2) whether the individual was subjected to an interrogation." Maile, ¶ 12 (internal quotations and citation omitted). A person is in custody for purposes of Miranda when "formally arrested by police or when police otherwise restrict the person's freedom of action in a manner or degree similar to a formal arrest." City of Missoula v. Kroschel, 2018 MT 142, ¶ 24, 391 Mont. 457, 419 P.3d 1208 (citing Thompson v. Keohane, 516 U.S. 99, 112, 116 S. Ct. 457, 465 (1995)). Whether a person's freedom of action is restricted in a manner or degree similar to a formal arrest depends upon the totality of the circumstances of each case; focusing on "whether a reasonable person would feel free to leave under the circumstances and the coercive nature and degree of the detention and questioning relative to that typically incident to a formal arrest." Kroschel, ¶ 24. Factors that a court will consider include:
whether the person affirmatively consented or requested to speak with police; the time and place of the detention and questioning; the degree of force, restraint, or threat of force used to detain or question the person; whether police moved the person to another area for questioning; whether police informed the person that he or she was not under arrest, free to leave, or free to otherwise terminate the questioning; the extent to which the police presence, manner, or posture was threatening or otherwise coercive under the circumstances; the duration of questioning; and the extent to which police confronted the person with evidence of guilt.Kroschel, ¶ 24. This analysis is an objective one, and is not based on the subjective views of either the suspect or the police. Kroschel, ¶ 24. ¶13 Here, Brooks was not formally arrested, so the inquiry is whether the totality of the circumstances demonstrate Brooks' freedom of action was restricted similar to a formal arrest. The time and place of questioning was a little after 1 a.m. on a public sidewalk; the degree of force included up to 3 police officers who were standing 3-4 feet away from Brooks at all times, with no weapons drawn and no handcuffs used; the police did not move Brooks to another place for questioning but remained in public view on a sidewalk adjacent to a busy street, where patrol lights were necessary for safety; the police informed Brooks he was not under arrest or accused of anything illegal, and that they were responding to a call about the need for a welfare check; the police manner was not coercive or threatening, as they spoke to Brooks in a calm and polite tone, did not draw their weapons, shine flashlights on Brooks, handcuff Brooks, touch Brooks, surround him to prevent him from leaving, or park their cars in such a way as to keep Brooks from leaving; and the entire encounter, including questioning and Brooks' subsequent arrest, lasted for approximately 30 minutes. Considering the totality of the circumstances, including the purpose for which the encounter was initiated, we conclude Brooks' freedom of action was not restricted in a manner similar to a formal arrest, and thus he was not in "custody" for purposes of Miranda. Having so concluded, we do not also need to address whether Brooks was subject to an "interrogation" by police. ¶14 Next, Brooks argues his right to due process was violated when the District Court instructed the jury that Brooks was required to register as a sexual offender, thus relieving the State from its burden to prove one element of the charged offense. See § 46-23-507, MCA. Brooks argues this instruction deprived him of the right to have the jury decide all the elements of the offense and prevented him from presenting his defense of confusion over his duty to register. ¶15 A criminal defendant is entitled to "a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." DaSilva v. Law, *4 (quoting United States v. Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310, 2313 (1995)). However, generally, "all questions of law, including . . . the construction of statutes and other writings . . . must be decided by the court." Section 26-1-201, MCA. Here, the District Court considered the legal question of whether Brooks had to register as a sex offender by consulting several different statutes, including Minn. Stat. § 609.345 (1998); Minn. Stat. § 243.166(1b)(1)(iii) (1998); §§ 46-23-502(10), MCA, 46-23-502(9)(a), (b), MCA, and 46-23-504, MCA. ¶16 Brooks relies on the similar case of DaSilva. There, the U.S. District Court for the State of Montana concluded that the definition of "sexual offense" is a legal—not a factual—determination, but that the instructions "did not give [the defendant] a fair chance to present evidence" because the defendant's defense theory was that the statute defining "sexual offense" was ambiguous and the District Court did not allow him to present evidence about the ambiguity. DaSilva v. Law, *5. ¶17 The facts here are distinguishable from what occurred in Dasilva. Brooks' defense theory, about which he planned to testify at trial, was confusion over whether he had a duty to register as a sex offender. The District Court permitted Brooks to present this defense, but ruled that because Brooks had previously been twice convicted of failing to register, those convictions would be admissible to counter his defense. In his pretrial motions, Brooks acknowledged these convictions would be admissible if he testified in support of his defense, and the District Court reiterated this ruling after Brooks was sworn in, but before he offered any testimony. At that point, Brooks stated, "Hold on," consulted privately with his attorney, then chose not to testify. Consequently, while the District Court granted Brooks leave to present evidence about his confusion over the duty to register, Brooks made the tactical decision not to do so. As such, we conclude the District Court correctly instructed the jury while also giving Brooks a chance to present evidence on that instruction. Thus, Brooks' due process rights were not violated. ¶18 Finally, Brooks argues the District Court erred when it designated him as a Tier I sexual offender. Section 46-18-207, MCA, allows a court to attach a tier level designation only upon sentencing for a "sexual offense" as defined in § 46-23-502(9), MCA, but failure to register is not a "sexual offense" under that statute. Greene, ¶ 30. The State concedes this issue. ¶19 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. ¶20 We reverse the District Court's designation of Brooks as a Tier 1 sexual offender and remand for entry of an amended judgment. We affirm the remainder of the judgment.
Brooks asserts his confusion defense pursuant to Lambert v. California, 355 U.S. 225, 78 S. Ct. 240 (1957) and Bartlett v. Alameida, 366 F.3d 1020 (9th Cir. 2004).
/S/ JIM RICE We concur: /S/ MIKE McGRATH
/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR
/S/ LAURIE McKINNON