and Submitted: December 7, 2016
FROM: District Court of the Eighth Judicial District, In and
For the County of Cascade, Cause No. DDC-12-425 Honorable
Dirk M. Sandefur, Presiding Judge.
Appellant: Chad Wright, Chief Appellate Defender, Koan Mercer
(argued), Assistant Appellate Defender, Helena, Montana.
Appellee: Timothy C. Fox, Montana Attorney General, Mardell
Ployhar (argued), Assistant Attorney General, Helena,
Montana, John W. Parker, Cascade County Attorney, Susan L.
Weber, Deputy County Attorney, Great Falls, Montana
Amici The Innocence Project, Inc. and the Montana Innocence
Project: Paul M. Leisher, Paoli Law Firm, P.C., Missoula,
Montana, Larry D. Mansch, Toby Cook, Montana Innocence
Project, Missoula, Montana.
McGRATH CHIEF JUSTICE.
Jasmine Nicole Eskew appeals from her conviction of felony
Assault on a Minor in violation of § 45-5-212, MCA. We
reverse the conviction.
We restate the issue on appeal as follows:
the District Court properly admit evidence of Eskew's
admissions or confession made during police
AND PROCEDURAL BACKGROUND
On September 18, 2012, Eskew called 911 in Great Falls to
report that her six-month-old daughter Brooklyn was
unresponsive and not breathing. Paramedics arrived and found
Brooklyn as her mother described, and took her to the
hospital. As the paramedics arrived, Eskew's recent
boyfriend Greg Robey was seen leaving the residence. Brooklyn
had a severe head injury with subdural bleeding on her left
side. While a CT scan showed that her skull was fractured,
medical personnel did not identify that fact until later.
Medical personnel suspected child abuse and contacted law
enforcement, telling responding officers that Brooklyn's
injury resulted from shaking.
Shortly after Eskew arrived at the hospital in Great Falls,
law enforcement officers talked to her about Brooklyn's
condition. They took her to the police station, away
from the hospital and from Brooklyn. They placed her alone in
an interrogation room where she was upset and sobbing
repeatedly that "I want my baby."
After a considerable period of time, two Great Falls Police
officers entered the interrogation room. They read Eskew a
Miranda advisory and then gave her a printed copy.
Eskew read and signed the Miranda advisory. The two
officers assured Eskew that her daughter was being cared for
and that as soon as they finished talking to her she would be
reunited. They told her that they needed an accurate
description of what had happened so that it could be passed
on to the doctors. They told her that Brooklyn could not be
adequately treated unless she answered their questions and
that the sooner they finished the interview the sooner they
could get her back to her daughter. "We'll get this
over with and get you back up to your daughter, okay?"
Officers told Eskew that she was the only one who could help
Brooklyn, and that Eskew was "hurting" her daughter
by not giving them the responses they expected about the
injury to the baby.
Eskew often responded to repeated questions with only a few
words, and many of her responses were transcribed as
"inaudible." Eskew told the officers how she found
her daughter in distress and had tried to console her by
rocking her. Eskew denied the officers' allegations that
she shook Brooklyn, stating that she "didn't shake
her or anything." The officers told Eskew that they
already knew what had happened and demanded that Eskew admit
that her description of "rocking" Brooklyn to
console her was actually "shaking." Eskew
repeatedly denied shaking Brooklyn.
The officers gave Eskew a doll to demonstrate how she rocked
her daughter. Eskew did so, but the officers insisted that
she do it differently and that she "make the doll's
head rock!" The interrogation went on for about four
hours. Ultimately Eskew relented and shook the doll for the
officers and told them that she had shaken her daughter.
Brooklyn and her mother were never reunited. Brooklyn was
transferred to Spokane for treatment while Eskew was under
interrogation. When Brooklyn arrived in Spokane, medical
personnel detected her skull fracture on the CT scan, and she
showed other signs of non-accidental injury. She died several
days later while Eskew was in jail. A subsequent autopsy
revealed that Brooklyn had died from brain injuries caused by
a single blow to the head, and that there was no evidence
that she had any injury that resulted from having been
The State charged Eskew with deliberate homicide in the death
of her daughter. Prior to trial Eskew moved to suppress the
results of the interrogation, contending that her admissions
were not voluntary. On December 2, 2013, the District Court
held the hearing on the motion to suppress. The two Great
Falls Police officers who conducted the interrogation
testified, along with two experts proffered by the defense.
The District Court heard that testimony and watched the video
of the interrogation.
District Court found that the police officers deliberately
lied to Eskew by telling her that the interview was necessary
to get information to treat Brooklyn, by telling her that her
responses to their questions could determine whether her
daughter received the proper medical treatment, and by
telling her that she would be reunited with her daughter as
soon as the interrogation was over. The District Court found
that the real purpose of the interview was to obtain
admissions from Eskew that fit the officers'
pre-determination that she had caused her daughter's
injury by shaking her. The District Court found that Eskew
did not understand that the officers were questioning her in
order to charge her with a serious crime. The District Court
denied the motion to suppress.
At trial the State relied heavily upon the admissions that
Eskew made during the interrogation. The jury found Eskew not
guilty of deliberate homicide, but guilty of felony assault
on a minor pursuant to § 45-5-212, MCA. Eskew spent
almost two years in jail by the time of sentencing. The
District Court imposed a five-year term to the Montana
Department of Corrections. Eskew appeals her conviction.
This Court reviews a district court's decision on a
motion to suppress to determine whether the findings of fact
meet the clearly erroneous standard, and whether the findings
are correctly applied as a matter of law. A finding of fact
is clearly erroneous if it is not supported by substantial
evidence; if the district court misapprehended the effect of
the evidence, or if this Court is definitely and firmly
convinced that the district court made a mistake. Whether a
confession is voluntary is a factual issue and the district
court is in the best position to determine the credibility of
witnesses who testify. This Court will not re-weigh evidence
considered by the district court or substitute our own
evaluation of that evidence. State v. Old-Horn, 2014
MT 161, ¶¶ 13-14, 375 Mont. 310, 328 P.3d 638.
Issue: Did the District Court properly admit evidence of
Eskew's admissions orconfession ...