People ex rel. J.M.J.

• Decision Date: 03 January 2007
• Docket Number: No. 23753.,23753.
• Citation: 2007 SD 1,726 N.W.2d 621
• Parties: The PEOPLE of the State of South Dakota, In the Interest of J.M.J., Minor Child and Concerning, J.J. and D.J., Parents and Respondents.
• Court: South Dakota Supreme Court

726 N.W.2d 621

2007 SD 1

The PEOPLE of the State of South Dakota, In the Interest of J.M.J., Minor Child and Concerning, J.J. and D.J., Parents and Respondents.

No. 23753.

Supreme Court of South Dakota.

Considered on Briefs October 2, 2006.

Decided January 3, 2007.

COPYRIGHT MATERIAL OMITTED

Patrick M. Ginsbach, Heather M. Sudbeck of Farrell, Farrell & Ginsbach, Hot Springs, South Dakota, Attorneys for appellant child.

Lawrence E. Long, Attorney General, Steven R. Blair, Assistant Attorney General, Pierre, South Dakota, Attorneys for appellee state.

MEIERHENRY, Justice.

[¶ 1.] In a juvenile proceeding, the trial court adjudicated sixteen-year-old J.M.J. (J.J.) a delinquent child based upon a charge of rape in the first degree. J.J. claims that the adjudication should be reversed because his statements to law enforcement should have been suppressed and because there was insufficient evidence to support a finding of rape in the first degree. Specifically, J.J. claims that the deputy who questioned him about the alleged rape failed to inform him that he could be tried as an adult. Without this warning, he claims that he could not have made a knowing and voluntary waiver of his right against self-incrimination.

[¶ 2.] The circumstances leading up to J.J.'s interrogation began when Deputy Steve McMillin (McMillin) of the Fall River County Sheriff's Office was called to Rapid City Regional Hospital to investigate allegations that sixteen-year-old J.J. had raped his three-year-old niece. McMillin took a statement from the niece's mother and then retrieved the niece's clothing for purposes of investigation. McMillin drove to J.J.'s residence, arriving between 2 a.m. and 3 a.m. In J.J.'s Mother's presence, he questioned J.J. after advising him of his constitutional rights under Miranda. McMillin read the rights from a pre-printed card, which included an instruction for additional advisement when questioning a juvenile. The card instructed officers to "inform the juvenile that there is the possibility that he/she may be tried as an adult and that any statements made during questioning can be used against him/her in an adult proceeding." For reasons unknown, McMillin did not follow the card's direction to provide the additional advisement. Subsequently, J.J. waived his rights and answered questions for approximately twenty-five minutes, during which he denied the allegations. McMillin then took J.J. into custody and escorted J.J. to the patrol car. Alone with McMillin on the way to the patrol car, J.J. asked McMillin, "if I did tell what I did, do I have to still go in?" McMillin told J.J. that if he had done something, McMillin needed to know. J.J. then told McMillin that he did it and, thereafter, repeated his confession in the presence of his Mother.

[¶ 3.] Subsequently, the State filed a petition alleging that J.J. was a juvenile delinquent because he had committed the crime of first degree rape, or in the alternative, sexual contact with a child under sixteen years of age. Initially, the State gave notice of its intention to transfer the matter to adult court but decided not to because J.J.'s psychological evaluation indicated that he could potentially be rehabilitated in the juvenile justice system.

[¶ 4.] Prior to adjudication, J.J. filed a motion to suppress any statements made to law enforcement at the time of his arrest because McMillin had failed to advise him that he could be tried as an adult. The court denied the motion. The juvenile court ultimately adjudicated J.J. a delinquent child and remanded him to the custody of the Department of Corrections. J.J. appeals, claiming the trial court erred by failing to suppress his statements to law enforcement. He also claims that the evidence was insufficient to adjudicate him as a delinquent.

STANDARD OF REVIEW

[¶ 5.] Whether a statement is voluntarily given is a question of law which we review de novo. State v. Holman, 2006 SD 82, ¶ 13, 721 N.W.2d 452, 456. Our standard of review is set forth as follows:

"Although there are often subsidiary factual questions deserving deference, the voluntariness of a confession is ultimately a legal question." State v. Tuttle, 2002 SD 94, ¶ 20, 650 N.W.2d 20, 30 (citing Miller v. Fenton, 474 U.S. 104, 116, 106 S.Ct. 445, 452-53, 88 L.Ed.2d 405, 414-15 (1985) (additional citations omitted)). This Court reviews the entire record and makes an independent determination of voluntariness. Id. (citing Beckwith v. United States, 425 U.S. 341, 348, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1, 8 (1976) (additional citations omitted)). The State must establish the voluntariness of a confession by a preponderance of the evidence. Id. 21 (citing Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377, n. 5 (1984)).

Holman, 2006 SD 82, ¶ 13, 721 N.W.2d at 456. Even if the juvenile's confession is involuntary, it may "not constitute reversible error if the State can prove the error was harmless beyond a reasonable doubt." Id. ¶ 25 (citing Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 1257, 113 L.Ed.2d 302 (1991)).

[¶ 6.] Our review of the sufficiency of the evidence is de novo. State v. Tofani, 2006 SD 63, ¶ 35, 719 N.W.2d 391, 400. "We will not reverse the trial court's denial of a motion for judgment of acquittal or reverse the guilt determination of the trier of fact if we conclude that `the State presented sufficient evidence on which the [court] could reasonably find the defendant guilty of the crime charged.'" Id. (quoting State v. Guthrie, 2001 SD 61, ¶ 47, 627 N.W.2d 401, 420).

DECISION

1. Whether the trial court erred in finding that J.J.'s admissions were voluntary even though he was not advised of the possibility that his statements could be used against him in adult court.

Per se Rule vs. Totality of Circumstances Analysis

[¶ 7.] J.J. claims that McMillin's failure to advise him of the possibility that he could be tried as an adult when advising him of his right to remain silent violated his constitutional rights. He claims that without this advisement, the State could not establish that he made a clear and intelligent waiver of his right to counsel and right against self-incrimination. He relies on State v. Lohnes, 324 N.W.2d 409 (S.D.1982). J.J. claims that Lohnes established a per se rule that a juvenile's confession cannot be found to be voluntary without the juvenile first being advised that he could be tried as an adult. The State argues that the absence of this warning should only be a factor considered in the totality of circumstances analysis when evaluating the voluntariness of a child's confession.

[¶ 8.] We take this opportunity to re-examine our holding in Lohnes. Id. In Lohnes, this Court said:

We now hold that a juvenile is afforded additional, not less, protection of his constitutional rights and before a trial court can conclude that a juvenile has made a clear and intelligent waiver of his rights to counsel and against self-incrimination, the state shall have to establish that he was advised that there was a possibility that he may be tried as an adult.

Id. at 414-15.

[¶ 9.] Lohnes involved a sixteen-year-old juvenile who was tried as an adult for third degree burglary, grand theft and first degree murder. Id. at 411. The police initially took Lohnes into custody for questioning about a stolen pickup. Id. at 410. Soon after beginning to question Lohnes, the police realized he was a juvenile. Id. Nevertheless, the police continued questioning him for several hours without contacting a parent or guardian. Id. Miranda warnings were given; however, the juvenile was not asked if he wished to waive the rights when he admitted to committing burglary and theft and that he was an escapee from the state training school. Id. The next day, after learning that the driver of the pickup was murdered, the police again questioned Lohnes. Id. at 411. Lohnes's court services officer became aware that the juvenile was a murder suspect and attempted to schedule a court hearing for that same day. Id. The police manipulated a delay in the hearing so that they could continue to question the juvenile without an attorney or parent, arranging instead to have another police officer serve as the child's guardian during the questioning. Id. The interrogating officer again read the Miranda rights to the juvenile. Id. Without asking if he wished to waive the rights, the officer continued to question the juvenile until he confessed. Id.

[¶ 10.] The juvenile moved to suppress his confession based on grounds that the deliberate delay in bringing him to court deprived him of an attorney and on the grounds that his confession was not voluntary based upon the totality of the circumstances. Id. Although the deliberate delay issue had not been preserved for appeal, the Lohnes Court, nevertheless, considered it under the plain error rule since evidence of the deliberate delay was presented at the suppression hearing. Id. at 413. Based on the deliberate delay and the failure to inform the juvenile that he could be tried as an adult, the Court determined that the confession should have been suppressed. Id. at 414.

[¶ 11.] The Lohnes pronouncement that a juvenile must be told of the possibility of being tried as an adult before a confession can be considered voluntary cited to the following three cases from other jurisdictions: State v. Cano, 103 Ariz. 37, 436 P.2d 586 (1968); State v. Loyd, 297 Minn. 442, 212 N.W.2d 671 (1973); and Theriault v. State, 66 Wis.2d 33, 223 N.W.2d 850 (1974). An analysis of the three cases, however, reveals that they do not support the per se rule and all three jurisdictions embrace the totality of the circumstances analysis. See In re Andre M., 207 Ariz. 482, 88 P.3d 552 (2004); State v. Ouk, 516 N.W.2d 180 (Minn.1994); In re Jerrell C.J., 283 Wis.2d 145, 699 N.W.2d 110 (2005). We are aware of only two other jurisdictions that have adopted the per se rule: Missouri and New Hampshire....