Opinion
Case No. 2: 02-CR-502W.
June 12, 2003.
MEMORANDUM DECISION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS
This matter is before the court on Defendant's Motion to Suppress. On March 17, 2003, the court conducted an evidentiary hearing on the motion. Defendant Surman ("Miller") was present with his counsel, Rebecca C. Hyde. The government was represented by Felice John Viti. Following the hearing, the court ordered a transcript as well as supplemental briefing from the parties. After thorough review and consideration of the pleadings submitted by the parties and the testimony presented at the evidentiary hearing on the motion to suppress, the court enters the following memorandum decision and order.
BACKGROUND
The court finds the relevant facts as follows. Greg Roberts has been a Special Agent for the Federal Bureau of Investigation (FBI) for approximately ten years. (Tr. at 12.) Rogers also worked as an Assistant United States Attorney for the Western District of Texas for approximately four years. (Tr. at 12-13.) During his tenure with the FBI, Rogers has investigated "reactive crimes, violent crimes, bank robberies, kidnapings" as well as "narcotics cases." (Tr. at 13.) He served as Chief Division Counsel — an in-house counsel position — for the Oklahoma City field office until 2001 when he was transferred to Monticello, Utah. (Tr. at 14.) Agent Rogers is currently assigned to the Monticello Resident Agency, where he investigates violent crimes which occur on the Navajo Reservation. (Tr. at 13-14.)
Reference to the transcript of the evidentiary hearing conducted on March 17, 2003, will be cited as "Tr. at ___."
On November 20, 2001, Rogers assisted Special Agent Todd Argyle in arresting Miller for a supervised release violation. (Tr. at 14-15, 20.) Following the arrest, Rogers accompanied Miller as he was transported to the San Juan County Jail. The ride lasted approximately 45 minutes to one hour. (Tr. at 17.) During that time, Rogers and Miller engaged in "small talk." (Tr. at 17-18.) Miller was fluent in English. (Tr. at 21.) Miller informed Rogers that he intended to take some classes at the College of Eastern Utah and wished to become a youth counselor on the Navajo Reservation. Miller told Agent Rogers that he believed his experiences could be a benefit to kids who were having trouble on the reservation. (Tr. at 18.) Miller also told Agent Rogers he was married, although separated, and had several children. (Tr. at 18.) Rogers did not observe or perceive any psychiatric or psychological problems concerning Miller during their ride to the Jail. (Tr. at 22.) When asked specifically about the conversation, Rogers testified that Miller did not lose his train of thought while relating an event, he was coherent, did not ramble, and did not have trouble relating events in logical order. (Tr. at 98.)
On November 20, 2001, Agent Rogers was not aware of the allegations giving rise to the instant case. (Tr. at 22.).
Agent Rogers testified that Agent Argyle informed him that Miller had been assaulted in 1989, and that Miller received a head injury as a result of the assault. (Tr. at 39.) However, it is unclear when Agent Argyle provided this information. (Tr. at 39.)
On February 28, 2002, Agent Rogers and San Juan County Sheriff's officer Hank Lee traveled to the Davis County Jail to interview Miller regarding the allegations made against him in this case. (Tr. at 24.) Miller was in custody as a result of his supervised release violation. (Tr. at 25.) When Miller arrived in the "attorney visiting room," Agent Rogers introduced himself and mentioned to Miller that he had met him once before during Miller's arrest in November. (Tr. at 26.) Agent Rogers then told Miller in general terms that they were there to "discuss some allegations that had been made against him." (Tr. at 27.) Rogers read Miller his Miranda rights from a card. (Tr. at 27.) Agent Rogers asked Miller if he would like to have his rights read to him in Navajo and Miller indicated that he would. (Tr. at 29.) Officer Lee, who is fluent in Navajo, read Miller his rights in Navajo and they had a brief conversation. (Tr. at 29.) Officer Lee told Agent Rogers that Miller wanted an attorney. (Tr. at 29.) Rogers immediately ended the meeting and he and officer Lee departed. The encounter lasted approximately five minutes. (Tr. at 29.)
In early July, 2002, Agent Rogers and Officer Lee went to Miller's home. (Tr. at 40.) Officer Lee spoke with Miller's mother in both English and Navajo. (Tr. at 41, 66.) Mrs. Miller told Agent Rogers and Officer Lee about her son's head injury. (Tr. at 66.) She expressed frustration over the fact that her son's attackers had never been apprehended. (Tr. at 67.) Agent Rogers gave her his business card and asked her to have Miller call him. Agent Rogers did not tell Mrs. Miller the reason he wanted to speak with her son. (Tr. at 41, 67.)
Also occurring in early July, 2002, when Miller was no longer incarcerated, Agent Rogers attempted to contact Miller at his place of employment, the MM Truck Stop in Cortez, Colorado. (Tr. at 31-32.) Rogers spoke with Miller's supervisor. Not wanting to cause problems at work, Agent Rogers identified himself as "Greg," and said he was "just trying to get ahold of [Miller.]" Agent Rogers left his office and cell phone numbers. The supervisor indicated he would give the message to Miller and ask Miller to call him back. (Tr. at 32.)
A few days later, Miller telephoned Agent Rogers. (Tr. at 32-33.) Agent Rogers reintroduced himself to Miller as the agent who had seen him in the Davis County Jail. Rogers told Miller that he wanted to talk with him about allegations or an incident involving a young woman he had met at a casino. (Tr. at 33, 65, 70.) Miller said he would be willing to talk to Rogers, and they arranged to meet at Miller's place of employment on July 19, 2002. (Tr. at 35, 81.) The telephone conversation was brief, lasting only a few minutes. (Tr. at 34.) During the conversation, Agent Rogers never suggested that the interview would be for a purpose other than the allegations "made by a young woman," and Miller never indicated that he wished to speak to Agent Rogers for any other reason or purpose. (Tr. at 35.) Miller did not express any reluctance about meeting with Rogers and he did not give Rogers any indication that he did not understand him. (Tr. at 36.)
As of July 19, 2002, Agent Rogers had familiarized himself with Miller's criminal history and background. Rogers was aware that Miller had been convicted in 1991 for sexual abuse of a minor, convicted in 1996 for aggravated sexual abuse, and had arrests or convictions in Colorado and tribal court for a driving offense and disorderly conduct. (Tr. at 39, 79.) Rogers also knew that Miller had been assaulted in 1989 whereby he received a head injury, resulting in headaches. (Tr. at 39, 65-67.)
On July 19, 2002, while en route to the scheduled meeting, Agent Rogers telephoned Miller to confirm the appointment. (Tr. at 36-37.) During this conversation, the meeting place was changed from Miller's place of employment to the hospital parking lot in Cortez. (Tr. at 37, 80, 81.) At approximately 4:30 p.m., Agent Rogers, accompanied by SA Jim Lyman, arrived at the hospital parking lot in an unmarked Ford Excursion sport utility vehicle. (Tr. at 41, 42.) The hospital is located in a "high traffic area." The lot was on the side of the emergency room entrance and it was "pretty full." (Tr. at 41.) Miller had already arrived, and Rogers saw Miller's truck parked in the lot. (Tr. at 41.) Rogers pulled up and parked on the driver's side of Miller's truck. (Tr. at 41-42.) Agent Lyman, who was seated in the passenger seat, greeted Miller. Miller exited his truck, walked over to Agent Rogers' vehicle, and "grabbed the rear passenger side door." (Tr. at 42.) Neither Rogers nor Lyman told Miller to get into their unmarked car. (Tr. at 42.) Rogers testified: "He seemed to know who we were and didn't have any problems jumping into our vehicle." (Tr. at 44.) Miller sat in the backseat of the vehicle while Rogers and Lyman both remained in front. Rogers testified that this is unusual because "[w]e almost always — if we're at all concerned of a safety issue, we have someone in the backseat with the person." (Tr. at 51.)
Once inside the vehicle, greetings were exchanged, and Miller immediately began talking about the incident in which he was assaulted in 1989. (Tr. at 43, 45.) Agent Rogers, who did not know much about the case, informed Miller that he had never read that file, and asked Miller the names of the assigned agents. (Tr. at 45.) Miller identified by name Notah Tahy and Trace Kirk as the agents who handled his case and worked in the area at that time. (Tr. at 45-46.) Miller told Agent Rogers about some of the prior investigation and said that over the years, after speaking to a number of people, including friends, he had come to believe that the person who assaulted him was Steve Marios, and possibly another person with the last name of Begay. (Tr. at 46.)
Miller explained the details of the case, including the fact that he believed he was assaulted with a golf club and suffered a fractured skull which necessitated hospitalization and a plate being put in his head. Miller "knocked on his forehead" to indicate the location of the plate, and Agent Rogers observed the outline of the plate and a scar that ran across the top of Miller's forehead. (Tr. at 47, 70-71.) Miller told Rogers that as a result of the assault he suffered from headaches, blackouts and memory loss. (Tr. at 48-49.) Agent Rogers took notes as Miller spoke. (Tr. at 72.)
Miller asked Rogers if he was going to arrest the people who committed the assault. (Tr. at 46-47.) Agent Rogers responded that they could not help him as the statute of limitations had run. (Tr. at 48.) Rogers testified that Miller took this news "very well" and indicated that he could not remember who had assaulted him "until just recently." (Tr. at 48.) Neither Agent Rogers nor Agent Lyman told Miller that they would "look into" the assault or that they had any intention of doing anything about the assault case. (Tr. at 71.)
After explaining to Miller that nothing could be done about his assault case, Rogers changed the subject to the sexual abuse allegation. (Tr. at 49, 72, 73.) Agent Rogers informed Miller that a young girl had made an allegation that Miller met her at a casino and subsequently had sex with her. (Tr. at 73.) Agent Rogers stated that he did not ask Miller many questions, but simply asked Miller "why don't you tell me what happened that night if you remember it." (Tr. at 49.) Rogers testified that once the subject was changed from his assault to the sexual abuse allegations, Miller was "right on task, and went with us and talked about the casino." (Tr. at 99.) Agent Rogers did not read Miller his Miranda rights. (Tr. at 81.)
Miller then began to detail the events of the evening in question. (Tr. at 49.) Agent Rogers testified that Miller told him that he had met a girl at the casino who asked him for a cigarette. (Tr. at 50.) She accompanied Miller to his car where they got in his vehicle and started talking and smoking. (Tr. at 50.) Miller asked if she wanted to go to his place in Aneth, and she agreed. (Tr. at 50.) Miller said that they fell asleep in his trailer, in separate beds, and the following morning he took her back to Monument Valley. (Tr. at 50.) Miller denied ever having sex with the victim. (Tr. at 50-51, 97.) According to Agent Rogers, Miller stated: "I know you can get in trouble for having sexual contact or sex with young girls nowadays." (Tr. at 52.) Agent Rogers stated that Miller provided the story in narrative form, with only a few brief questions interjected by Rogers. (Tr. at 51.)
After Miller's description of events, Agent Rogers told Miller, "come on, Surman, you and I both know that you all had sex that evening. The real issue is was that sex consensual . . . or did you force yourself on her, and that's what I'm here to talk to you about. Why don't you tell me what really happened." (Tr. at 52, 72-74, 77.) Agent Rogers communicated to Miller that forcible sex and/or "rape" is more serious than consensual sex. (Tr. at 75, 76.) Agent Rogers described the victim as a "young girl," but he did not identify her by name and did not indicate that she was 15 years old. (Tr. at 74.) Rogers did not communicate to Miller that consensual sex with a 15 year old would be illegal and a serious offense. (Tr. at 76.) Rogers did not tell Miller he could be charged with kidnaping. (Tr. at 74.)
According to Agent Rogers, Miller then provided a second narrative in which he admitted that they had sexual contact and that it was consensual. (Tr. at 52-53.) Miller said that this version was the truth. (Tr. at 53.) Miller then told Rogers that he was a member of the Native American Church, and that he was attempting to reconcile with his wife who was residing in Phoenix with the children. Miller said he was "trying to get his life in order," and was placing his life in God's hands. (Tr. at 53-54, 78-79.)
Agent Rogers did not confront Miller about the force allegations that had been made, and he described the interview as "absolutely nonconfrontational." (Tr. at 55.) Agent Rogers testified that at that point "we pretty much concluded the interview." Miller inquired as to what would happen next. (Tr. at 55-56, 77.) Agent Rogers told Miller "[w]e'll be in touch," and to "go home . . . go to work do whatever you want, we'll be in touch" but no specific details as to what would occur were provided. (Tr. at 56, 76-77, 82.) Agent Rogers thanked Miller for meeting with him, and then Miller exited the vehicle, got into his truck, and drove away. (Tr. at 55.)
The entire interview, which Rogers described as "very cordial," lasted approximately one hour, and it was still daylight when the interview terminated. (Tr. at 56, 58.)
Agent Rogers testified that during the course of the interview their vehicle remained in the same location, and there were "a lot" of people in the area, and "cars coming and going into the parking lot." (Tr. at 56.) Neither Rogers nor Lyman threatened Miller with physical harm or in any other manner. Miller was not handcuffed, Rogers never raised his voice or directed profanity at Miller, no promises were made, Miller was not told he was under arrest, in custody or not free to leave, and Rogers never displayed his weapon. (Tr. at 57-58.)
During the course of the interview, Miller never asked for an attorney and never asked that the interview be terminated. (Tr. at 58.) According to Agent Rogers, Miller did not show signs of distress and did not request a break in the interview. (Tr. at 58-59.) Rogers testified that Miller was responsive, lucid and oriented. (Tr. at 59.) Miller did not appear to have trouble understanding the questions, did not exhibit any trouble answering simple questions, and Rogers did not recall having to repeat questions. (Tr. at 99.) When asked specifically if Miller did anything during the interview that would suggest he was suffering from any mental problems or deficiencies, Agent Rogers testified: "To the contrary. He gave us a very detailed account of an old event, was good on dates, names, so no, not at all." (Tr. at 59-60.)
On July 19, 2002, the date of the interview, Agent Rogers was not aware that Miller had undergone competency evaluations as a result of his two prior federal matters, and he was not aware that Miller suffered any psychological or psychiatric problems. (Tr. at 60, 107.)
Miller dropped out of school in either ninth or tenth grade. (Tr. at 60-61.) At the time of the interview, Miller was in his "early thirties," and employed at the MM Truck Stop. (Tr. at 61.) His duties included recharging propane tanks, and making sure the diesel area for commercial vehicles was functioning properly. According to Miller's supervisor, Miller also had general maintenance duties in the building and around the truck stop. (Tr. at 61, 100, 101.)
Agent Rogers testified that he attempted to build a rapport with Miller. When asked about specific interrogation techniques, Rogers testified that he was familiar with many but as a matter of practice he does not in any way script his interviews or prepare them in advance. (Tr. at 95.) When asked to review his interview of Miller, Rogers acknowledged that some of his questions or comments could be characterized as the "alternative question technique" and the "minimization of the crime technique." (Tr. at 103-104.) In addition, Rogers acknowledged "ignoring or overcoming the suspect's denial," by telling Miller that he did not believe Miller's initial version of events. (Tr. at 89-94, 103-104.)
Agent Rogers acknowledged that he believed a confession was "pivotal" in this case. (Tr. at 80, 82.) Rogers explained that his reasons for this belief were the same as they are in any case where there are "only two people there, no witnesses, where there may not be a good amount of physical evidence." (Tr. at 82, 105-106.) However, despite the importance of a confession in this case, Rogers stated that he "wouldn't ever consider doing something unlawful. I am not risking my career for any case, not risking my credibility or integrity for any case, and didn't even think about it." (Tr. at 106.)
On August 21, 2002, a one count Indictment was filed in this case charging Miller with violation of 18 U.S.C. § 2243(a) and 1153(a), Sexual Abuse of a Minor While Within Indian Country. On August 27, 2002, Agent Rogers arrested Miller at his home. (Tr. at 61-62, 79.) Following the arrest, Rogers sought to interview Miller. After advising Miller of his Miranda rights, Miller requested an attorney. (Tr. at 63.) The interview was immediately terminated. (Tr. at 63.)
Dr. Vickie Gregory is a forensic neuropsychologist. She possesses a Ph.D. in psychology and a law degree. (Tr. at 112.) Dr. Gregory conducted a neuropsychological assessment of Miller and spent approximately 13 to 14 hours with him. (Tr. at 112.) Dr. Gregory reviewed Miller's medical records which indicated that he had experienced "two very severe head injuries, one on September 19th of 1989 and one on August 17th of 1990." (Tr. at 113.) Miller suffered "depressed bilateral frontal skull fractures." (Tr. at 113.) The injuries were described as "severe," and because the two injuries were close in time, the brain damage was "more extensive." (Tr. at 113-14.) Miller has undergone three surgeries which involved placing a plate in his head. (Tr. at 113.) A CT scan conducted in 1993 showed that Miller had lost part of his frontal lobe, and that he also had softening of the left frontal lobe. (Tr. at 113.)
Dr. Gregory examined Miller's educational background and learned that he repeated several grades, and, according to Miller, dropped out in the ninth or tenth grade at age 19. (Tr. at 113-14, 140.)
Dr. Gregory administered two IQ tests, the Weschler Adult Intelligence Test (WAIT) and the Test of Nonverbal Intelligence (TONI), third edition. (Tr. at 114.) On the WAIT, Miller's verbal IQ was 74, placing him in the fourth percentile, his performance IQ was 81, placing him in the tenth percentile, and his full-scale IQ was 76, placing him in the fifth percentile. (Tr. at 115.) The TONI resulted in a "non-verbal" IQ score of 82, placing Miller in the twelfth percentile, and indicating that his "visual reasoning skills" are on the level of a nine year old child. (Tr. at 117.) Miller's scores placed him in the "borderline range of intellectual functioning," meaning he "falls between the classifications of mental retardation and normal intellectual functioning." (Tr. at 116.)
Dr. Gregory administered the Halstead-Reitan battery of tests to determine the extent of Miller's brain damage. (Tr. at 117.) Miller's "global impairment rating" of 52 indicates that he suffers from a "moderate category of brain damage. . . . a significant impairment in terms of his cognitive functioning." (Tr. at 117-18.)
Dr. Gregory administered a number of other tests in the Weschler battery. (Tr. at 118-19.) Miller's score on the vocabulary functioning test placed him in the fifth percentile. He was unable to define words such as "terminate, confide, and ponder." (Tr. at 119.) Miller's score on the similarity subtest, which measures a person's ability to reason through a verbal task, establishing similarities between a variety of items, placed him in the fifth percentile. (Tr. at 118-19, 121.)
Dr. Gregory explained that Miller's language impairments manifest themselves in the difficulties he has in answering simple questions. (Tr. at 121.) When Dr. Gregory would ask Miller a question, he would provide a non-responsive answer, require that the question be repeated, or his answers would be contradictory. (Tr. at 121-22.)
Dr. Gregory administered a prose recall passage and memory assessment scale, designed to test the ability to process auditory information. (Tr. at 124.) Dr. Gregory administered these tests because the location of Miller's brain injury, the left frontal lobe, has to do with language, processing language, reasoning and abstraction, among other things. (Tr. at 122.) The results placed Miller in the second percentile, indicating that Miller would have trouble carrying on conversations. (Tr. at 122, 124.) Dr. Gregory indicated that Miller's memory deficits prevent him from responding to more than one question at a time. (Tr. at 124.)
Dr. Gregory tested Miller's cognitive flexibility, which is the "ability to shift between different concepts" and return to a "previous concept." (Tr. at 124.) Miller's score placed him in the first percentile "in terms of his ability to shift between simple concepts." (Tr. at 126.) Dr. Gregory indicated that this would make it difficult for Miller to shift topics of conversation. (Tr. at 126.)
Dr. Gregory tested Miller's verbal comprehension skills via a standardized test requiring him to explain common social situations or things done commonly in everyday life. (Tr. at 127.) Miller placed in the ninth percentile. (Tr. at 127-28.) She administered a matrix reasoning test to measure "visual problem solving and reasoning abilities," and Miller scored in the fifth percentile. (Tr. at 128-29.) Miller's score on a picture arrangement test, which "evaluates his ability to logically, sequentially plan and to understand what happens next . . . an understanding of consequences," placed him in the ninth percentile. (Tr. at 130-31.) Dr. Gregory stated that Miller was not able to present information to her in a logical, sequential fashion. (Tr. at 132.)
Miller's score on the categories test, "another visual reasoning and problem solving task," placed him in the sixth percentile, indicating an inability to put two concepts together and understand the reasoning behind them. (Tr. at 133-34.) Dr. Gregory observed this reasoning deficit in Miller's "inability to understand the connection between understanding you can't do something, telling a law enforcement officer that you did it, and later saying I didn't confess." (Tr. at 135.)
Lastly, Dr. Gregory testified that Miller was not malingering. As evidence of this, Dr. Gregory relied upon Miller's medically well documented brain injuries in the frontal lobe region. Dr. Gregory also reviewed prior psychological testing, the results of which were consistent over time. (Tr. at 137.) In addition, one of the measures Dr. Gregory used to test Miller had a built in malingering test. (Tr. at 138.) Also, on a few isolated tasks, Miller's scores were in the 66th percentile, indicating that when he could perform a test well, he did so. (Tr. at 138.)
Dr. Gregory testified that, due to his difficulties with comprehension, Miller was one of the "more difficult defendants I have had to evaluate." (Tr. at 136.) Dr. Gregory concluded that Miller suffers from dementia, secondary to head trauma, which includes the diagnostic criteria of memory impairment, a language "disturbance," and "difficulty with reasoning, planning, judgment and organizing." (Tr. at 138-39.) Dr. Gregory said that she was able to ascertain "within the first five or ten minutes of talking to him, he had very significant problems" with respect to memory, verbal skills and the ability to answer questions. (Tr. at 139.)
DISCUSSION
On January 31, 2003, Miller filed a motion to suppress the statements he made to law enforcement officers. Miller claims his statements were involuntary and obtained in violation of the Due Process Clause of the Fifth and Fourteenth Amendments. More specifically, although the interrogation techniques used by Agent Rogers "are not inherently coercive," Miller claims that Agent Rogers used them to exploit known mental deficiencies in order to obtain a confession. (Defs Mem. in Support at 11.)
In evaluating the voluntariness of a confession, the court considers "whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution." United States v. Erving L., 147 F.3d 1240, 1248 (10th Cir. 1998) (quoting Miller v. Fenton, 474 U.S. 104, 112 (1985)). A court will consider a number of factors in assessing the totality of the circumstances surrounding the questioning, including "both the characteristics of the accused and the details of the interrogation."Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973); see also United States v. Roman-Zarate, 115 F.3d 778, 783 (10th Cir. 1997). Relevant to this issue are, among other things, the age, education and intelligence of the accused, and the conduct of law enforcement officials, such as the length and location of the questioning and the use of punishment. United States v. Muniz, 1 F.3d 1018 (10th Cir.), cert. denied, 510 U.S. 1002 (1993).
While the mental condition of a confessant is relevant, it is not determinative. In Colorado v. Connelly, 479 U.S. 157 (1986), the Supreme Court held that "coercive police activity is a necessary predicate to the finding that a confession is not `voluntary.'" Id. at 167. In reaching its decision, the Court recognized that in the confession cases it had decided over the past 50 years, the "crucial element" had been the presence of "police overreaching." Id. at 163. "Absent 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.
Relying on the principle enunciated in Connelly, the Tenth Circuit has consistently declined to hold a confession involuntary, regardless of the unique physical or mental characteristics of a particular defendant, absent police conduct amounting to coercion, improper inducement or the exploitation of a known mental condition or defect.
For example, in United States v. Erving L., 147 F.3d 1240 (10th Cir. 1998), the government appealed the district court's order suppressing a 13 year old's statement to law enforcement. In concluding that the statement was involuntary, the district court relied upon the following factual findings: defendant was 13 years old; possessed a borderline IQ; was distraught throughout the interview; did not fully understand the nature of his constitutional rights; and was particularly susceptible to police coercion. On appeal, the Tenth Circuit stated that although the district court's findings with regard to defendant's personal characteristics and vulnerabilities are "troubling," they are not determinative. Id. at 1249. Relying on Connelly, the court stated: "[defendant's] age, mental capacity, and personal idiosyncrasies are relevant only if this court first concludes that the officers' conduct was coercive."Id. After reviewing the officers' "well-mannered and courteous" behavior, and noting the absence of any show of physical force, the Tenth Circuit concluded that the defendant's confession was not the product of police coercion and reversed the district court's suppression order. Id. at 1249-51.
In United States v. Robertson, 19 F.3d 1318 (10th Cir.),cert. denied, 513 U.S. 906 (1994), the defendant argued on appeal that the statements he made to the FBI were involuntary because he made them while in the hospital recuperating from a serious head injury which resulted in his being in a coma for 31 days. The FBI agent who interviewed the defendant conceded that the defendant believed he had been in the hospital for five years, when he had actually been there less than one and one-half months, and that defendant gave his age as 27, when he was 38 years old. The FBI agent also conceded that an evaluation of the defendant 12 days following the interview reported that "defendant became easily confused when answering questions."Id. at 1321. However, the FBI agent also testified, and the district court found credible, that the defendant seemed lucid when answering his questions, except with relation to those matters of time (length of time in hospital, age, etc.). Id. at 1321-22. The Tenth Circuit determined there was "no evidence in the record of government overreaching or coercion," and affirmed the district court's decision not to exclude the evidence under Connelly. Id. In so doing, the court reiterated: "coercive police activity is a necessary predicate to the finding that a confession is not voluntary. In other words, the police must somehow overreach by exploiting a weakness or condition known to exist." Id. at 1321 (citations omitted); see also Nickel v. Hannigan, 97 F.3d 403, 410 (10th Cir. 1996) (holding that even in cases where a defendant is mentally impaired and the officer is aware of the impairment, a confession will be suppressed as involuntary only if the officer uses coercive measures to take advantage of the impairment), cert. denied, 520 U.S. 1106 (1997); United States v. Guerro, 983 F.2d 1001 (10th Cir. 1993) (concluding that inculpatory statement made by defendant after an invalid waiver of her Miranda rights was voluntary, and thus could be used for impeachment purposes, where there was no evidence of police overreaching through exploitation of defendant's weakness or other condition, even though defendant was unusually susceptible to suggestion and intimidation).
A Although the Robertson court declined to exclude the evidence, it noted that the defense was free to present to the jury evidence of the defendant's mental condition at the time of the interview, which under the facts would go to the weight and reliability, rather than the admissibility, of the defendant's statements. Robertson, 19 F.3d at 1322.
With these principles in mind, the court considers the July 19, 2002, meeting between Agent Rogers and Miller. Miller was not in custody at the time and did not express reluctance about meeting with Agent Rogers. Without prompting or hesitation Miller approached Agent Rogers and Agent Lyman and got into the backseat of Roger's vehicle. The interview lasted approximately one hour, was conducted in a public parking lot, with significant traffic, during daylight hours. During the course of the interview, neither agent threatened Miller with physical harm or in any other manner and no promises were made. Agent Rogers never raised his voice or directed profanity at Miller. No weapons were displayed and neither agent adopted a threatening posture or made a show of force. Miller never indicated that he did not want to talk with Agent Rogers and he did not show signs of distress. Miller never requested a break in the interview or requested that the interview be terminated. Agent Rogers testified, and the court finds credible, that Rogers was "well mannered and courteous," and that the interview was "absolutely nonconfrontational" and "very cordial."
Agent Rogers acknowledged that he attempted to build a rapport with Miller and acknowledged that after Miller relayed his initial version of events Rogers told Miller he didn't believe him. While Rogers' questions and comments may be classified as "interrogation techniques," under the circumstances his use of these "techniques" was neither improper nor was it overreaching. Although Agent Rogers was aware that Miller had suffered a serious head injury, Rogers testified, and the court finds credible, that he was not aware of any mental or psychological defects resulting from that injury.
Agent Rogers had at least four different opportunities to interact with or speak with Miller prior to the July 19, 2002, interview. Rogers did not, during any of those encounters, perceive any psychological, mental, or other communication problems on behalf of Miller. Rogers testified that on July 19, 2002, Miller relayed the information to him in a narrative fashion, with limited questioning by Rogers. During the interview Miller was responsive, lucid, and oriented. Miller did not appear to have trouble understanding the questions, did not exhibit any trouble answering simple questions, and Rogers did not recall having to repeat questions. When asked specifically if Miller did anything during the interview that would suggest he was suffering from any mental problems or deficiencies, Agent Rogers testified: "To the contrary. He gave us a very detailed account of an old event, was good on dates, names, so no, not at all." (Tr. at 59-60.)
Given these facts, and after carefully considering the totality of the circumstances in this case, the court does not find any coercion, overreaching, or exploitation of a known defect by Agent Rogers or other law enforcement officials. Because "coercive police activity is a necessary predicate to the finding that a confession is not `voluntary,'" Connelly, 479 U.S. at 167, the court concludes that Miller's statements to law enforcement on July 19, 2002, were voluntary.
Therefore, based on the foregoing and good cause appearing, IT IS HEREBY ORDERED that defendant's motion to suppress is DENIED.