Date: 04-24-2014

Case Style: State of Utah v. Ernest Rogers

Case Number: 2014 UT App 89

Judge: Orme

Court: The Utah Court of Appeals on appeal from the Fourth District Court, Provo Department (Utah County)

Plaintiff's Attorney: Sean D. Reyes and Kris C. Leonard, Attorneys for Appellee

Defendant's Attorney: Richard P. Gale, Attorney for Appellant

Description: ¶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
State v. Rogers
20110773-CA 2 2014 UT App 89
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
State v. Rogers
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
State v. Rogers
20110773-CA 5 2014 UT App 89
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
State v. Rogers
20110773-CA 6 2014 UT App 89
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.

Outcome: ¶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.

Plaintiff's Experts:

Defendant's Experts:

Comments: