D. S., In Interest of, 9383

• Decision Date: 16 February 1978
• Docket Number: No. 9383,9383
• Parties: In the Interest of D. S., a child. Jonathan T. GARAAS, Petitioner and Appellee, v. D. S., T. S., and D. S., Respondents and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 114

263 N.W.2d 114

In the Interest of D. S., a child.

Jonathan T. GARAAS, Petitioner and Appellee, v. D. S., T. S., and D. S., Respondents and Appellants.

Civ. No. 9383.

Supreme Court of North Dakota.

Feb. 16, 1978.

As Corrected March 2, 1978.

Rehearing Denied March 15, 1978.

Marvin D. Nordeng, State's Atty., and Jonathan T. Garaas, Asst. State's Atty., Fargo, for State of North Dakota; argued by Jonathan T. Garaas.

Frederick D. Kraemer, Fargo, for respondent and appellant, D.S., a minor.

PAULSON, Judge.

This is an appeal by a juvenile (hereinafter D.S.) from the order of adjudication entered on June 3, 1977, by the Cass County Juvenile Court, finding D.S. guilty of the delinquent act of murder. ¹ The juvenile court committed D.S. to the State Industrial School for a period of two years. Prior to the hearing on the delinquency charge, D.S. filed a motion to suppress the use of his confession, and the fruits obtained thereby, as evidence at the delinquency hearing. The motion to suppress was denied. D.S. asserts, on this appeal, that the juvenile court committed error when it denied the motion to suppress this evidence which resulted in prejudice to D.S. upon its admission at the delinquency hearing.

This Court's scope of review under the Uniform Juvenile Court Act, pursuant to § 27-20-56 of the North Dakota Century Code, is equivalent to the former procedure of trial de novo. McGurren v. S. T., 241 N.W.2d 690 (N.D.1976). This Court will independently review the evidence presented to the juvenile court at the hearing on the motion to suppress. In re K. B., 244 N.W.2d 297 (N.D.1976). Although the juvenile court's findings of fact are entitled to appreciable weight, this Court is not bound by those findings. In re R. W. B., 241 N.W.2d 546 (N.D.1976).

On May 4, 1977, D.S. was taken into custody by the Fargo police, at the request of his parents, and placed in the Cass County Juvenile Detention Center. A petition was filed charging D.S. with the delinquent act of criminal mischief for causing damage to the walls of his home. An informal detention hearing was held on May 5, 1977, and the hearing referee, Arthur H. Lieb, for the Cass County Juvenile Court, ordered that D.S. continue to be detained at the Juvenile Detention Center pending a final determination on the criminal mischief charge. On the morning of May 6, 1977, between 10 a. m. and 11 a. m., Frank A. Boardman, a counselor at the detention center for Cass County, approached D.S. and asked him whether he had an attorney. D.S. responded with a question as to how he could get an attorney. Boardman immediately placed a phone call to Julie Ann Korst, the juvenile court receptionist who is in charge of making arrangements to obtain attorneys for juveniles. Boardman informed Korst that D.S. wanted an attorney, and Korst then explained to Boardman the procedure for obtaining one. Boardman testified as follows:

"Q. Did you then go back and explain all this to (D.S.)?

"A. There wasn't much to explain since I am not too familiar with the process. I did tell (D.S.) that if his parents are financially well off that the Court would probably not pay for the attorney. His statement was his statement was something like see if you can get me a Court appointed attorney. I don't want my parents to pay for my attorney.

"Q. He did tell you to get an attorney?

"A. A Court appointed attorney."

At this point it is necessary to digress, in our statement of the facts, to the investigation of the disappearance, on December 10, 1976, of Debra Dahl. During the morning of May 5, 1977, a body was found, floating in a culvert in South Fargo, which was identified later that day as the body of Debra Dahl. On that same date, May 5, Michael Lyman, Cass County Deputy Sheriff, was placed in charge of investigating Debra Dahl's death and Dale Remus, Special Agent for the North Dakota Bureau of Criminal Investigation, was requested to aid in the investigation. Deputy Lyman testified, in part, as follows:

"Q. Had someone mentioned to you that (D.S.) was a possible suspect that you should talk with?

"A. I had read all the Fargo Police Reports and they were current from the time Debra Dahl disappeared, and those Police reports mentioned (D.S.'s) name several times.

"Q. So, you felt he was a likely suspect?

"A. From reading the reports, he was the number one suspect, yes."

Lyman and Remus decided to interrogate D.S. on May 6, 1977. Prior to speaking with D.S., Lyman and Remus attempted unsuccessfully to contact his parents. At the time of the interrogation, Lyman and Remus were unaware of D.S.'s request to Boardman earlier that morning for an appointed attorney.

At approximately 1:30 p. m., Lyman and Remus took D.S. from his room at the juvenile detention center to a Cass County sheriff's office conference room located on a lower level in the same building as the juvenile detention center. D.S. was informed by Lyman and Remus that they wanted to talk with him concerning their investigation of Debra Dahl's death. D.S. was then advised of his Miranda rights and was told that he could have his parents present. Lyman testified:

"A. He was advised of his rights verbally. He signed a waiver of his rights in my presence and that of Special Agent Dale Remus, and he was advised that his parents could be present. I believe I did that. And (D.S.) told us that he didn't wish to have an attorney at that time. Made no mention of having an attorney and he didn't wish his parents to be present."

D.S. confessed, after approximately fifteen or twenty minutes of interrogation, that he had shot and killed Debra Dahl with a .22 caliber rifle. Upon termination of the interrogation, a state's attorney's inquiry was immediately held, wherein D.S. again repeated his confession, which was recorded by a court reporter. At the close of the state's attorney's inquiry, D.S. offered to go to the home of his parents with Lyman and Remus to get the .22 caliber rifle which had been used in the commission of the crime.

At 4:37 p. m., Lyman and Remus obtained a search warrant to seize a .22 caliber rifle and ammunition from D.S.'s home. With regard to securing this evidence, Lyman testified as follows:

"Q. What were you seeking to get from (D.S.'s parents') home when you went over there with a search warrant?

"A. The the Affidavit was made out for, I believe a .22 Browning lever action rifle and .22 ammunition.

"Q. Where did you find out about this rifle and ammunition?

"A. From (D.S.).

"Q. At what time?

"A. During the during the interview. I could refer to the report. I think I have it logged pretty close.

"Q. Well, just generally, you found, you didn't know anything about that gun?

"A. Around 2:00 p. m.

"Q. And prior to that time you didn't know anything about that gun?

"A. No.

"Q. And you didn't know anything about the ammunition?

"A. No.

"Q. Your knowledge of where those items were and their possible use in the Debra Dahl death came out of the statement to you, or statements given to you, by (D.S.)?

"A. That's correct."

At approximately 6:15 p. m., on the evening of May 6, 1977, D.S.'s father called the juvenile detention center and spoke with Stephen Dawson, a counselor for the juvenile detention center. Dawson informed D.S.'s father that it would be permissible for him to visit D.S. that evening. After this phone conversation, Dawson spoke with D.S. Dawson testified at the hearing, as follows:

"A. I went into the room to talk with him. I told him that I had read testimony in the log earlier that he had asked about a lawyer. And I reminded him that he had a right to legal counsel and asked him if he wanted a lawyer.

"Q. What did (D.S.) tell you at that time?

"A. He said he did not need an attorney. The only reason he was there was because he had a fight at home.

"Q. What did you say to (D.S.) upon hearing that?

"A. Well, I was a little surprised. I again reminded him that he could have a lawyer if he wanted one. And that I had spoken with his dad briefly about this. (D.S.) then expressed concern about he did not want his parents to pay for a lawyer and he commented that he did, finally, took some money from my dad. I have informed him that if his parents could not afford a lawyer the State would provide one. He should not be concerned with the cost of a lawyer or who ended up paying for it. That his only concern would be whether or not he wants a lawyer.

"Q. What happened after that, Mr. Dawson?

"A. I told him that I encouraged him to speak with his parents about it and said they would be in soon. The conversation was over. His closing comment, okay, I suppose I will take one if I don't have to pay for it."

At approximately 6:45 p. m., D.S.'s parents visited him at the detention center. Upon the completion of their visit, D.S.'s parents left the detention center, and within four or five minutes D.S. requested Dawson to obtain an attorney for him.

D.S. was fifteen years of age at the time of Debra Dahl's death and he was sixteen years of age at the time of his interrogation by Lyman and Remus.

A petition was filed in juvenile court charging D.S. with the delinquent act of murder. Prior to the hearing on this charge, D.S. moved to suppress the use of his confession, and the fruits thereof, as evidence at the delinquency hearing. The motion was denied and the confession, as well as the .22 caliber rifle and ammunition which had been seized from D.S.'s home, were subsequently admitted into evidence at the delinquency hearing. The juvenile court entered judgment finding D.S. guilty of the delinquent act of murder, and D.S. now appeals from that judgment.

D.S. asserted on his motion to suppress and again asserts on this appeal that his confession, and the fruits thereof, were obtained in violation of his right to counsel pursuant to § 27-20-26, N.D.C.C., and also in violation of his constitutional rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution.

D.S. asserts that...