State of Utah v. Ernest Rogers

¶1 Reserving the right to appeal the trial court's decisions, see

State v. Sery, 758 P.2d 935, 938–39 (Utah Ct. App. 1988), Defendant

conditionally pled guilty to five counts of sexual abuse of a child,

see Utah Code Ann. § 76-5-404.1(2)–(4) (LexisNexis 2012). Having

exercised his right to appeal, Defendant asks us to set aside his

guilty pleas on the grounds that the trial court erred in denying a

motion to suppress Defendant's confession to police and that the

trial court improperly granted the State's pretrial motion to admit

into evidence a separate confession made to another of Defendant's

victims. We affirm the trial court's decision to admit Defendant's

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confession, conclude that any error in connection with the court's

decision to admit evidence of other abuse perpetrated by

Defendant was harmless, and decline to set the guilty plea aside.

¶2 At the request of the police, Defendant voluntarily went to

the police station for an interview. A video recording of the

interview shows that Defendant sat casually in a chair without

being handcuffed or restrained. A police officer entered the room,

shut the door, and said, "Before we get started here, and too deep

into things, what I'd like to do is just to tell you what your rights

are. You've probably seen it on T.V. It's the same thing.” The police

officer then started filling out a form while Defendant sat quietly

with his hands in his lap. The police officer continued:

I'm just going to read these to you: Before we

ask you any questions, you must understand your

rights. You have the right to remain silent. Anything

you say can be used against you in court. You have

the right to talk to a lawyer for advice before we ask

you any questions, and to have him with you during

any of the questioning. If you cannot afford a lawyer,

one will be appointed to you before questioning if

you wish. And if you decide to answer questions

now without a lawyer present you will still have the

right to stop answering at any time. You also have

the right to stop answering at any time until you talk

to a lawyer.

And, as long as you understand those, if I

could get you to sign there.

Then the police officer slid the form to Defendant, and Defendant

signed it. This form was lost by the police, was not available as

evidence, and is not part of the record on appeal. After signing the

form, Defendant stated, "Now you're really getting me nervous.”

The officer then told Defendant that he had spoken with the victim

of the crimes charged in this case and asked Defendant to explain

what happened. Defendant made a full and detailed confession. At

State v. Rogers

1. Normally, evidence of similar crimes in child molestation cases

would be admitted under rule 404(c) of the Utah Rules of Evidence,

but the events in question occurred before Utah adopted rule

404(c), and the parties disputed whether the rule should apply

retroactively. The trial court determined that it did not need to

delve into that matter because the evidence was "plainly

admissible under 404(b).”

20110773-CA 3 2014 UT App 89

the conclusion of the interview, the police officer said, "Well that

helps me to clear up my case. I guess, like you know, there are

some ramifications.” Defendant responded, "I honestly don't

know. It sounds serious.” The police officer then explained that he

would need to take Defendant to the county jail. The interview

lasted less than ten minutes, during which Defendant never refused

to answer a question and never asked for a lawyer.

¶3 Before trial, the court denied Defendant's motion to

suppress his confession, rejecting his argument that he had not

properly waived his rights. Additionally, the trial court granted the

State's pretrial motion seeking leave to introduce at trial a separate

confession by Defendant, recorded by another of his victims, that

contained evidence of other sexual abuse not charged in this case.

After a brief analysis, the trial court ruled that the evidence would

be admissible under rule 404(b) of the Utah Rules of Evidence.1

¶4 Defendant now appeals the trial court's decision to deny his

motion to suppress the confession made to police and the decision

to grant the State's pretrial motion to authorize admission of the

confession made to the other victim under rule 404(b). "In an

appeal from a trial court's denial of a motion to suppress evidence,

'we review the trial court's factual findings for clear error[,] and we

review its conclusions of law for correctness.'” Salt Lake City v.

Bench, 2008 UT App 30, ¶ 5, 177 P.3d 655 (alteration in original)

(quoting State v. Tiedemann, 2007 UT 49, ¶ 11, 162 P.3d 1106).

Typically, "we review a trial court's decision to admit evidence

under rule 404(b) of the Utah Rules of Evidence under an abuse of

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20110773-CA 4 2014 UT App 89

discretion standard,” State v. Nelson-Waggoner, 2000 UT 59, ¶ 16, 6

P.3d 1120, but doing so is not necessary in this case, as hereafter

explained.

¶5 The United States Constitution and the Utah Constitution

protect a defendant from being compelled to be a witness against

himself in a criminal case. See U.S. Const. amend. V; Utah Const.

art. I, § 12. In Miranda v. Arizona, 384 U.S. 436 (1966), the United

States Supreme Court held that "the prosecution may not use

statements, whether exculpatory or inculpatory, stemming from

custodial interrogation of the defendant unless it demonstrates the

use of procedural safeguards effective to secure the privilege

against self-incrimination.” Id. at 444. These safeguards include a

warning to the person being interviewed "that he has a right to

remain silent, that any statement he does make may be used as

evidence against him, and that he has a right to the presence of an

attorney, either retained or appointed.” Id.

¶6 Once these procedural safeguards are in place, however, the

person being questioned is free to waive his rights, as long as he

does so "voluntarily, knowingly and intelligently.” Id. Absent an

express waiver of these rights, an implicit waiver is valid if a

person, "with a full understanding of his or her rights, acts in a

manner inconsistent with their exercise.” Berghuis v. Thompkins, 560

U.S. 370, 385 (2010). See also State v. Barrett, 2006 UT App 417, ¶ 11,

147 P.3d 491 ("Waiver may be either express or 'inferred from a

defendant's acknowledgment of the understanding of his or her

rights and defendant's subsequent course of conduct.'”) (quoting

State v. Streeter, 900 P.2d 1097, 1101 (Utah Ct. App. 1995)). But

whether the waiver is explicit or implicit, "a heavy burden rests on

the government to demonstrate that the defendant knowingly and

intelligently waived his privilege against self-incrimination and his

right to retained or appointed counsel.” Miranda, 384 U.S. at 475.

This entails a two-part inquiry:

First, the relinquishment of the right must have been

voluntary in the sense that it was the product of a

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free and deliberate choice rather than intimidation,

coercion, or deception. Second, the waiver must have

been made with a full awareness of both the nature

of the right being abandoned and the consequences

of the decision to abandon it. Only if the "totality of

the circumstances surrounding the interrogation”

reveals both an uncoerced choice and the requisite

level of comprehension may a court properly

conclude that the Miranda rights have been waived.

Moran v. Burbine, 475 U.S. 412, 421 (1986) (quoting Fare v. Michael

C., 442 U.S. 707, 725 (1979)).

¶7 In this case, the State has met its burden. Disregarding what

the missing form might or might not have revealed with respect to

an explicit waiver, Defendant's conduct shows an implicit waiver

of his rights. To begin, we examine whether the confession was

voluntary. The police officer did nothing to intimidate, coerce, or

deceive Defendant. To be sure, many aspects of a typical custodial

interview—being at a police station and having an armed police

officer enter a small room and shut the door—are inherently

intimidating. But the police officer in this case made no attempt to

exploit these circumstances and instead took great pains to be

polite, professional, and respectful at all times. Based on the totality

of the circumstances memorialized in the video of the confession,

we must readily conclude that Defendant's confession was

voluntary, i.e., the "product of a free and deliberate choice” and not

the result of "intimidation, coercion, or deception.” See Moran, 475

U.S. at 421.

¶8 Next, we examine whether Defendant was fully aware of his

rights and the consequences of waiving those rights. Based solely

on the video record of Defendant's confession, we readily conclude

that Defendant received a by-the-book recitation of his Miranda

rights. Defendant is a highly educated person who was clearly able

to understand the important information conveyed to him. When

signing the form presented to him, Defendant stated, "Now you're

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really getting me nervous.” This statement serves to confirm that

he appropriately understood the consequences. While the lost form

cannot be used to establish an explicit waiver of rights, the act of

signing the form—clearly depicted in the video—was done in

acknowledgment that Defendant at least understood his rights as

they had been orally conveyed to him.

¶9 Defendant argues that he was inexperienced with the legal

system and did not understand the full implications of his

confession. It is true that Defendant seemed genuinely surprised

that there would be such swift consequences for his actions, stating

that he thought he had "outlived” his past. We are not concerned,

however, with whether Defendant understood the legal

ramifications of his confessed crimes, including that he would be

immediately incarcerated, but with whether he understood the

consequences of waiving his Miranda rights. We conclude that he

was fully aware of his rights and the consequences of waiving

them. We therefore conclude that he voluntarily, knowingly, and

intelligently waived his Miranda rights, and we affirm the trial

court's decision to deny Defendant's motion to suppress.

¶10 Because Defendant's full confession to police was

admissible, the prosecution would have had no need to introduce,

under rule 404(b), the confession recorded by another of

Defendant's victims. Defendant might be correct that the trial

court's analysis of the relevant factors was perhaps less thorough

than it should have been. See State v. Nelson-Waggoner, 2000 UT 59,

¶¶ 18–20, 6 P.3d 1120 (explaining that a court must determine if the

rule 404(b) evidence is (1) offered for a "proper, noncharacter

purpose,” (2) relevant, and (3) not substantially outweighed by the

danger of unfair prejudice); State v. Decorso, 1999 UT 57, ¶ 18, 993

P.2d 837 (stating that other acts evidence under rule 404(b) "must

be scrupulously examined by trial judges”). But any error in this

regard was ultimately harmless considering the detailed nature of

Defendant's admissible and highly inculpatory police confession,

which would have obviated the need for evidence of the confession

he made to another victim.

¶11 We affirm the trial court’s decision on the waiver of

Defendant’s Miranda rights and the admissibility of his police

confession. It follows that any error in the trial court’s handling of

the potential admissibility of his other confession was

inconsequential. Accordingly, there is no basis on which to disturb

Defendant’s guilty plea.