I gave him the form and asked him to read it over and sign it if he wished to talk to me. Shaver signed the form.
Montana Highway Patrol - Montana Department of Justice
Approximately twenty-five minutes after the questioning began, Shaver admitted to having sexual contact with his sons. Gassett then spent approximately fifteen minutes taping the confession. Shaver later recanted his admission along with his waiver of constitutional rights. Shaver stated that he could neither read nor understand the Miranda form and had only "lied" to the officers so that he could maintain his family. A motion to suppress Shaver's admission was first mentioned at an omnibus hearing held September 14, The motion was filed October 22, , and stated as grounds that Shaver had been awake "continuously for over 20 hours, and that he had requested permission to call his wife to have her seek counsel for him, and that request was denied.
On November 4, , the court held a hearing on the motion to suppress and was presented with testimony of Craig Montagne Montagne , a psychologist for the local school district Montagne had tested Shaver and concluded Shaver had an I. Q between 71 and 75 which bordered on mental retardation and that his reading comprehension level was Grade 3. The District Court denied the motion stating in its findings of fact and conclusions of law filed November 25, , that although Shaver was "no mental giant.
Shaver claimed he worked that day. Shaver's counsel asserts on appeal that the Notice of Alibi encompassed the intention that Shaver would show that due to his work schedule and the family's routine, he never would have had the opportunity to commit the acts. A jury trial was held December 3, Shaver claimed that he had prepared an alibi for the dates of late-October, , which was consistent with F. Defense counsel attempted to have Della Shaver admitted as a witness in Shaver's case-in-chief.
The State objected to Della's testimony as she was not properly listed on the defense list of witnesses. Therefore, the District Court cited defense counsel for contempt of discovery deadline violations and imposed a fine. Nonetheless, Della was allowed to testify. Shaver moved for a mistrial when the jury returned a guilty verdict on both counts. The motion was denied.
Shaver was sentenced to two consecutive eight year sentences with all but sixty days suspended and was ordered to undergo counseling in a sex offender program. The District Court further took "notice of other proceedings" in regard to Shaver's duty of child support and ordered as "a form of restitution under Section , M. In his first issue, Shaver seeks a new trial claiming the District Court erred in denying his motion to suppress statements of confession made after his arrest.
Section , MCA, governs motions to suppress confessions or admissions:. The motion shall be in writing and state facts showing wherein the confession or admission was involuntary. The prosecution must prove by a preponderance of the evidence that the confession or admission was voluntary. If the confession or admission is determined to be admissible, the circumstances surrounding the making of the confession or admission may be submitted to the jury as bearing upon the credibility or the weight to be given to the confession or admission.
This Court has previously noted that "[t]he standard to be applied in our review of this issue is whether there is substantial credible evidence to support the District Court's finding. Gould Mont.
The District Court found that Shaver had voluntarily waived his rights, including his right to an attorney, and had confessed to deviate sexual contact with his two sons. We must view the "totality of the circumstances" in our determination of whether substantial credible evidence exists to support the District Court's findings that Shaver knowingly and intelligently waived his rights and confessed to the crimes charged.
Gould , P. Shaver claims that he was unable to knowingly and intelligently waive his rights because he is mentally incompetent. We addressed a similar issue in State v. Phelps Mont. Phelps , P. The circumstances of this case indicate that Shaver was capable of understanding the true meaning and consequences of his actions and that those actions were made knowingly and intelligently. Shaver conversed in a coherent and intelligent manner during his relatively short forty-minute interrogation by Officer Gassett on the night of his arrest.
Shaver verbalized during the taped portion of the interview that he had, in fact, been read his Miranda rights, that he understood those rights, and that his prior act of waiving those rights was done voluntarily without coercion, threat, or promises of leniency. Shaver proceeded to admit that he sexually molested his sons and gave a specific detailed description of each molestation.
At the conclusion of the interview, Shaver was again asked whether he had been coerced into his confession to which he replied, "No sir. You've been really nice. Coupled with Shaver's actions and demeanor the afternoon of his arrest, the District Court was also presented with the fact that Shaver, a thirty-five-year-old gainfully employed husband and father, was able to intelligently and coherently express himself at the suppression hearing and at trial.
The school psychologist testified that Shaver's reading comprehension level was at least a 3.follow url
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Shaver also claims that his confession was involuntary because he allegedly asked that he be allowed to stop at his home while en route to the Troy Police Department so he could have his wife call an attorney. Officer Gassett testified that Shaver did not ask for an attorney until after the interview. The District Court, as the trier of fact at the suppression hearing, was presented with the conflicting testimony of Shaver and Officer Gassett concerning the alleged request for an attorney.
As the trier of fact, the District Court had to resolve the conflicting testimony. Sections , and , MCA. The District Court found that Shaver had not requested an attorney and had voluntarily waived his rights. Using the standard of review set forth above, there is substantial credible evidence to support the District Court's conclusion that Shaver did not request an attorney.
Shaver's second issue for review is based on the argument that the District Court substantially prejudiced Shaver when it would not grant a continuance after F. Shaver bases this claim of prejudice on the fact that he had filed an alibi defense, that the State failed in its statutory duty to notify the defense that F.
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Generally, as Shaver appropriately points out, a filed information should state the "time and place of the offense as definitely as can be done. State v. Clark Mont. Riley , Mont.
Shaver contends that since he raised an alibi defense time is an essential element of the offense. Again, however, Clark is instructive. In Clark , this Court looked to the case of State v. Hall , Mont. Defendant should have realized the State would present evidence proving the crime took place sometime.
Beware: These 10 Counties In West Virginia Have The Most Sex Offenders
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The Lincoln County Sex Offender Registry Search Montana links below open in a new window and take you to third party websites that provide access to Lincoln County public records. Editors frequently monitor and verify these resources on a routine basis. Help others by sharing new links and reporting broken links. The Lincoln County Sex Offender Registry is a public database that contains information on people who have been convicted of sex crimes in Lincoln County, Montana. The registry allows the public to know where sex offenders currently live, work, and attend school.
It also provides personal information about Lincoln County sex offenders in order to protect the public. Lincoln County Sex Offender databases provide a number of ways for the public to monitor people convicted of sex crimes. They contain personal information about Lincoln County sex offenders, including their home addresses, mug shots, and vehicles registered to the offender.