State v. Blue Thunder, s. 16920

• Citation: 466 N.W.2d 613
• Decision Date: 03 April 1991
• Docket Number: Nos. 16920,16929,s. 16920
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Leonard L. BLUE THUNDER a/k/a Leo Blue Thunder, Defendant and Appellant.
• Court: Supreme Court of South Dakota

Page 613

466 N.W.2d 613

STATE of South Dakota, Plaintiff and Appellee, v. Leonard L. BLUE THUNDER a/k/a Leo Blue Thunder, Defendant

and Appellant.

Nos. 16920, 16929.

Supreme Court of South Dakota.

Argued Sept. 18, 1990.

Filed Feb. 20, 1991.

Rehearing Denied April 3, 1991.

Diane Best, Asst. Atty. Gen. (Roger A. Tellinghuisen, Atty. Gen., on brief), Pierre, for plaintiff and appellee.

Lee C. 'Kit' McCahren, Pierre, and Lee M. McCahren, Vermillion, for defendant and appellant.

MORGAN, Retired Justice.

Leonard L. Blue Thunder (Blue Thunder) appeals a judgment entered pursuant to a jury verdict convicting him of first-degree murder, first-degree burglary, and aggravated assault. Blue Thunder challenges the refusal of the trial court to excuse certain jurors for cause, to suppress certain evidence, and to instruct the jury on self-defense. By notice of review, the State of South Dakota challenges two jury instructions regarding the charge of aggravated assault. We affirm.

The facts that gave rise to this action are found in the triangle relationship involving Donna Leader Charge (Donna), her first lover Blue Thunder, and Verle Janis (Verle), her second lover and the victim of the murder. When Blue Thunder sought to regain the affections of Donna, Verle severely beat him, and Blue Thunder retaliated by going to the motel where Verle and Donna were residing and stabbing Verle with a butcher knife.

More particularly, the record reflects that on the night of June 2, 1989, Donna went to the West Wind Bar in Pierre. Blue Thunder was at the bar when Donna arrived. Later, when Verle arrived at the West Wind, the two men began to argue. The argument escalated into a fist fight, which took place outside of the bar. Donna was able to intervene and break up the fight. Donna and Verle then left and began walking back to their room at the Terrace Motel. When they arrived at the motel, Donna and Verle found Blue Thunder waiting for them. Again, the two men began to fight and again, Donna broke up the fight. Blue Thunder then fled.

Later, in the early morning hours of June 3, 1989, Blue Thunder returned to the motel armed with a butcher knife. Donna and Verle were about to retire for the night when Blue Thunder opened the unlocked door and charged at Verle with the knife. Verle was stabbed six times before he staggered to a nearby chair and collapsed. Blue Thunder then grabbed Donna by the arm and swung at her with the knife. In the ensuing struggle, Donna sustained a cut on her neck and on one of her hands.

In the meantime, the disturbance had awakened the manager of the motel and prompted him to call the police. At approximately 3:40 a.m., Officer David Trautman (Officer Trautman) of the Pierre Police Department arrived in response to the call. As he walked toward Verle's room he saw Blue Thunder standing in the doorway with blood on his chest and the knife in his hand. When Donna saw the officer, she yelled "He stabbed him!" Blue Thunder then tried to close the door but Officer Trautman kicked it open. The officer then knocked Blue Thunder to the floor, causing him to drop the knife, and handcuffed him.

Shortly after Blue Thunder was handcuffed, he was taken outside and was read his Miranda rights by Officer Michael Bucholz. In response, Blue Thunder replied "I'd like to take the fifth amendment." At the direction of Detective Lieutenant Greg Swanson, the officer in charge, Blue Thunder was then placed in the back of a patrol car under Officer Trautman's surveillance, where they remained for the next forty-five minutes and their conversation was recorded. The details of the conversations in the patrol car will be related in more detail in the discussion of the suppression issue. Suffice it to say for now, that after being placed in the patrol car, Blue Thunder asked to speak to his attorney, to which Officer Trautman responded "Leo I can't do that." While in the patrol car, Blue Thunder stated that he wanted to "take the Fifth Amendment" five separate times. Officer Trautman advised him to "not say anything" four times, and warned Blue Thunder that anything he said could be used against him five different times. Interspersed between the several times that Blue Thunder invoked his Fifth Amendment rights, and the warnings by Officer Trautman, Blue Thunder made several incriminating statements.

When Blue Thunder was taken to the police station, his conversations were again recorded. At the police station, Blue Thunder again asked for his attorney two separate times. Blue Thunder also asked for phone access (to call his mother and/or a clergyman) nine times at the police station; these requests were all denied. Again, Blue Thunder made several incriminating statements. Also at the police station, at 5:50 a.m., a blood sample was taken from defendant. The results indicated a BAC in excess of 0.24 at that late hour. After the taking of the blood sample, Blue Thunder was allowed to call his attorney.

Blue Thunder was subsequently indicted by a grand jury on charges of first-degree murder, first-degree burglary, and aggravated assault. At a pretrial suppression hearing, the trial court ruled that the bulk of Blue Thunder's statements on the morning of June 3, 1989, were voluntary and admissible at trial. ¹ The recordings of the balance of the conversations in the patrol car and at the police station, along with transcripts of those conversations, were admitted into evidence at trial. Defense counsel also challenged at pretrial the admissibility of some photographs. At trial, the trial court admitted most of the pictures and excluded others.

The panel of prospective jurors included four persons whom the defense counsel challenged on the basis of bias or prejudice. The specific grounds will be detailed in the discussion of the issue. The trial court denied the motions to excuse the jurors and defense counsel had to exercise four of their twenty peremptory challenges to exclude them. The trial court also denied defense counsel's motion for additional peremptories. The defense counsel used nineteen of their allotted twenty peremptory challenges.

In the course of settling instructions, defense counsel proposed an instruction on self-defense which the trial court denied. State also objected to two instructions involving the question of intent necessary for the aggravated assault charge and the defense of intoxication on that charge.

On November 3, 1989, a jury convicted Blue Thunder of all three charges. He was sentenced to life imprisonment without parole for the murder conviction, and two concurrent ten-year sentences for the first-degree burglary and aggravated assault convictions. This appeal followed.

On appeal Blue Thunder urges the following issues:

1. Did the trial court err by admitting statements that Blue Thunder made on June 3, 1989?

2. Did the trial court err by refusing to disallow for cause certain potential jurors?

3. Did the trial court err by refusing to instruct the jury on self-defense?

4. Did the trial court err by admitting certain photographs?

By notice of review State raised two issues, which we view as one, as follows:

5. Did the trial court err by instructing the jury that aggravated assault under SDCL 22-18-1.1(5) is a specific intent crime, and that, as such, voluntary intoxication is an available defense?

In his first issue, Blue Thunder argues that the inculpatory statements that he made on June 3, 1989, immediately after he was taken into custody, should not have been admitted into evidence at trial because they were obtained in violation of his Fifth Amendment right to an attorney, and as a result of police misconduct. State, on the other hand, argues that the statements that were admitted were voluntary statements, not made in response to interrogation, or, alternatively, that the statements were made after waiver of Blue Thunder's previously exercised Fifth Amendment rights.

Our review of this issue is controlled by the following precedent. State has the burden of proving beyond a reasonable doubt that Blue Thunder's statements were given voluntarily. State v. Volk, 331 N.W.2d 67, 70 (S.D.1983). On review, the trial court's ruling will be upheld unless it is clearly erroneous. Id. at 70-71. In addition, we must consider the evidence in the light most favorable to the trial court's decision. State v. Kiehn, 86 S.D. 549, 556, 199 N.W.2d 594, 598 (1972).

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), established that the accused has a Fifth and Fourteenth Amendment right to have counsel present during a custodial interrogation. "[A]n accused, ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378, 386 (1981).

On the issue of voluntary waiver, this court has held:

The standard to be used by a court in determining whether or not an accused has effectively waived his right to counsel is found in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), wherein the United States Supreme Court stated:

It has been pointed out that 'courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and that we 'do not presume acquiescence in the loss of fundamental rights.' A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. (Emphasis added.) 304 U.S. at 464, 58 S.Ct. at 1023.

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