Jenner v. Smith

• Decision Date: 05 January 1993
• Docket Number: No. 91-3554,91-3554
• Citation: 982 F.2d 329
• Parties: Debra Sue JENNER, Plaintiff-Appellant, v. James SMITH, Superintendent, Springfield Correctional Facility; Roger Tellinghuisen, Attorney General, State of South Dakota, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 329

982 F.2d 329

Debra Sue JENNER, Plaintiff-Appellant, v. James SMITH, Superintendent, Springfield Correctional

Facility; Roger Tellinghuisen, Attorney General,

State of South Dakota, Defendants-Appellees.

No. 91-3554.

United States Court of Appeals,

Eighth Circuit.

Submitted June 10, 1992.

Decided Jan. 5, 1993.

James Martin Davis, Omaha, NE, argued for plaintiff-appellant.

Patricia J. Cronin, Asst. Atty. Gen., Pierre, SD, argued for defendants-appellees.

Before BOWMAN, LOKEN, Circuit Judges, and LARSON, ^* Senior District Judge.

LOKEN, Circuit Judge.

Debra Sue Jenner is a South Dakota inmate serving a life sentence for the murder of her three-year-old daughter. She appeals the district court's ¹ denial of her petition for a writ of habeas corpus, arguing that her constitutional rights were violated by the admission of involuntary incriminating statements made during lengthy police interviews that were not preceded by Miranda warnings. We affirm.

I.

Prior to trial, Jenner moved to suppress the statements. After a thorough evidentiary hearing, the Beadle County Circuit Court denied the motion, filing both a lengthy Memorandum Opinion and detailed findings of fact and conclusions of law in which the court determined that the statements were voluntarily made during noncustodial questioning. Following Jenner's conviction, a divided Supreme Court of South Dakota affirmed, filing three opinions that discussed these issues in great detail. State v. Jenner, 451 N.W.2d 710 (S.D.1990). The dissenters sharply criticized the police officers for questioning Jenner at length without giving Miranda warnings, and for failing to tape record the interviews. ² Our only task as a federal habeas court, however, is to determine whether Jenner's constitutional rights were violated. ³

While we review the ultimate issue of voluntariness de novo, subsidiary factual determinations made by the state courts are entitled to a presumption of correctness under 28 U.S.C. § 2254(d). See Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 450, 88 L.Ed.2d 405 (1985); Hill v. Lockhart, 927 F.2d 340, 346 (8th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 344, 116 L.Ed.2d 283 (1991). We have carefully reviewed the record of the state court proceedings, most particularly the transcript of the evidentiary hearing on Jenner's motion to suppress. We conclude that the state court proceedings satisfied the criteria set forth in § 2254(d)(1)-(7), that its factual determinations are "fairly supported by the record," see § 2254(d)(8), and that Jenner has failed "to establish by convincing evidence that the factual determination[s] by the State court [were] erroneous." § 2254(d). Therefore, we must accept those findings and ignore the many fact assertions in Jenner's brief that are inconsistent with the explicit findings of the South Dakota trial court. See Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Woods v. Armontrout, 787 F.2d 310, 313 (8th Cir.1986), cert. denied, 479 U.S. 1036, 107 S.Ct. 890, 93 L.Ed.2d 842 (1987).

II.

Three-year-old Abby Jenner was found murdered in her bed on Sunday morning, April 5, 1987. Her body was mutilated by a frenzy of seventy stab wounds inflicted in a prolonged attack the previous night, when only Abby's mother, father, and five-year-old brother were in the Jenner house. Police discovered no signs of forced entry into the house, and found, in plain view atop the kitchen microwave, a Chicago Cutlery knife consistent with the slash wounds on Abby's body.

For the next two days, Jenner and her husband, Lynn Jenner, cooperated extensively with the investigating law enforcement officers. They consented to two interviews on April 5, first at the hospital with Beadle County Sheriff Tom Beerman, and later at their home with Agent Jerry Lindberg of the South Dakota Division of Criminal Investigation (DCI). The Jenners signed a written consent permitting the investigators to search their home and car. They provided hair samples and submitted the clothing and jewelry they had worn the night of the murder for forensic analysis.

On the morning of April 7, the investigators decided to ask the Jenners to submit to polygraph examinations. Sheriff Beerman called Lynn Jenner and asked if they would come to the Beadle County Public Safety Building to answer additional questions, at a time convenient to them. At 1:55 that afternoon, the Jenners arrived in their own vehicle, accompanied by their pastor and by Lynn's parents. Agent Lindberg asked if they would consent to polygraph examinations and advised that they did not have to take a polygraph test or talk further with the investigators; that the test was an investigative tool that could implicate or eliminate them as suspects; that the test results could not be used in court; and that they would be questioned further if they did not pass the test. After signing consent forms, the Jenners went to separate rooms to take the polygraph tests.

Jenner's polygraph testing ended about 3:30 p.m. Her test results indicated deception. After reviewing the results, the DCI Agent who administered the test, Fred DeVaney, returned to the room and told Jenner that she had lied and that she was responsible for Abby's death. Agent Lindberg then interviewed Jenner for about twenty minutes, following which Agent DeVaney spoke with her for about one hour. Around 5:00 p.m., Jenner agreed to talk to DeVaney's partner, DCI agent Ken Giegling, who interviewed her until about 9:30 p.m.

All the interviews took place in the small room where Jenner had taken the polygraph test. Only one interviewer was in the room with Jenner, and the door was kept slightly ajar. DeVaney left the room on one occasion and upon returning found that Jenner had left to use the bathroom and returned on her own initiative. DeVaney also left the room to get Jenner a Diet Coke at her request. Lindberg described Jenner's mood during his interview as "chang[ing] within seconds from angry to crying to very calm." DeVaney said Jenner was in tears sometimes, and was at other moments calm and inexpressive. Giegling described her demeanor as wildly varied, from vacant calm to extreme distress.

Throughout these interviews, Jenner continually expressed a desire to cooperate in the investigation by getting to the bottom of her adverse polygraph test results. She told Lindberg, "I'm not lying and know I didn't do this, but maybe I psyched out in the night and don't remember it." She asked each interviewer whether she could have "psyched out" and repeatedly offered to undergo hypnosis, psychological interviews, or any other method that might reveal whether she had killed Abby. She told Agent Giegling she wanted him to be "the vehicle to jar her memory."

Each of the three interviewers told Jenner that she was responsible for Abby's death. They used a variety of questioning techniques aimed at drawing more information from her, such as prefacing questions with the assurance that Jenner was at bottom a good mother and a good Christian, and telling Jenner that there was a "bad Debbie" who was responsible for Abby's death. Giegling raised his voice on several occasions, and accused Jenner of not being truthful. At one point, Giegling asked, hypothetically, what Jenner would think if her husband was at that moment "putting all the blame on her."

Jenner never formally confessed to killing Abby, but she did make at least three damaging admissions during the course of the interviews. First, she frequently qualified her denials by suggesting the possibility that she had "psyched out." More significantly, during Giegling's interview Jenner volunteered a description of the murder as seen through Abby's eyes. "Abby knew the person and was not afraid. Abby saw a knife," Jenner said with a different, higher pitched voice, and then described a Chicago Cutlery knife identical to the one found atop the microwave. "Abby saw a black object," Jenner said, and then described a black model airplane, later found in the Jenner house, that matched a unique wound on Abby's body. She also said the assailant's hair hung down over Abby's crib; hair matching either Jenner's or Abby's was found in Abby's hands. Giegling interrupted this narrative to ask, "Is that person leaning over your daughter you?" Jenner said, "I think so." The final admission occurred at the end of the interviews, when Jenner was briefly reunited with her husband. The officers present testified that, when she saw her husband, Jenner cried out, "I did it, I did it. Did you help me?" Lynn said he had not helped.

Sometime after 9:00 p.m., Giegling terminated the interview, being concerned that Jenner might be nearing a nervous breakdown. A police psychologist was summoned. After advising Jenner that their conversation would not be privileged, he talked with her and concluded that she was alert and aware, was not suffering from any psychological dysfunction, and was not a threat to herself. The police then drove Jenner to the pastor's house, where the family was waiting to take her home. She was not arrested until four months later, when a grand jury indicted her on charges of second degree murder and first degree manslaughter.

Before trial, Jenner moved to suppress her April 7 incriminating statements. Jenner, her husband, the three interviewing officers, and the psychologist testified at the suppression hearing. The state court found that Jenner was aware that she did not have to take the polygraph or answer any questions, was never threatened or restrained in any way, never asked that the questioning stop or an attorney be present, and never expressed a desire to leave. Although Jenner testified that she believed she was not free to leave, the trial judge expressly discredited that testimony. The court concluded that the statements "were freely and voluntarily given and were not the result of compulsion or inducement of any sort." In addition, the court concluded...