State v. Abourezk, 13882

CourtSupreme Court of South Dakota
Citation359 N.W.2d 137
Docket NumberNo. 13882,13882
PartiesSTATE of South Dakota, Plaintiff and Appellant, v. Michael ABOUREZK, Defendant and Appellee. . Considered on Rehearing
Decision Date15 February 1984

Page 137

359 N.W.2d 137
STATE of South Dakota, Plaintiff and Appellant,
Michael ABOUREZK, Defendant and Appellee.
No. 13882.
Supreme Court of South Dakota.
Considered on Rehearing Feb. 15, 1984.
Decided Dec. 5, 1984.

Page 138

Arthur L. Rusch, Clay County State's Atty., Vermillion, for plaintiff and appellant; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Charles Rick Johnson of Johnson, Eklund & Davis, Gregory, for defendant and appellee.

MORGAN, Justice.

This case is before us on defendant's (Abourezk's) petition for rehearing. The parties are referred to herein as they were referred to in the original opinion. State v. Abourezk, 339 N.W.2d 780 (S.D.1983). The procedural and factual backgrounds are detailed therein and are capsulized as follows.

Abourezk was charged with possession of marijuana and conspiracy to possess marijuana. During a pretrial hearing, State sought to introduce at trial a custodial statement of an unavailable witness, Galen Holy Rock, Abourezk's purported accomplice or co-conspirator. The trial judge excluded the evidence and State appealed by leave of this court.

The statement at issue was taken from Holy Rock while he was in custody of a deputy sheriff in the Clay County, South Dakota, Sheriff's Office. Holy Rock had been stopped on the road and brought into the office for alleged driver's license and license plate violations. After ticketing Holy Rock for these offenses, the deputy, pursuant to radioed instructions from the Clay County Sheriff, read Holy Rock his Miranda rights and proceeded to interrogate him regarding a marijuana patch in the vicinity of Holy Rock's original stop. The statement was written in longhand by the deputy and signed by Holy Rock. In anticipation of his own trial, Holy Rock first sought to suppress that statement by pretrial motion. When that trial judge refused suppression, Holy Rock simply left the jurisdiction of the court and his trial is still pending as he is termed a fugitive from justice.

At the pretrial hearing in the Abourezk case, State introduced into evidence the questioned statement and a transcript of the Holy Rock suppression hearing. With respect to the statement, the trial court made two specific findings, among many: (1) That the written statement was an admission against Holy Rock's penal interest; and (2) that the statement was unreliable and thus could not be used as evidence against Abourezk.

In our previous opinion, the majority of the court held that the statement was reliable and was admissible under SDCL 19-16-32, Statements Against Penal Interest.

Abourezk's petition for rehearing suggests that the court misapplied Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), when it relied upon the criteria therein for its determination of the reliability of hearsay in a confrontation clause analysis. We now agree.

The four criteria as summarized in the first majority opinion were: (1) The declaration contains assertions of past fact; (2) the declarant had presumed knowledge of the identity and role of the participants in the crime; (3) the declarant's recollection was not faulty; and (4) the declarant was not misrepresenting appellant's involvement in the crime. As Abourezk points

Page 139

out, the first criteria is misstated. In Dutton, the first criteria is set out as follows: "First, the statement contained no express assertion about past fact ...." Id. at 88, 91 S.Ct. at 219, 27 L.Ed.2d at 227 (emphasis added). As the majority pointed out: "Holy Rock's declarations contained assertions of past facts. Indeed, they were facts which transpired that very day." Abourezk, 339 N.W.2d at 782. On its face, the statement would thus fail confrontation clause scrutiny.

Another aspect of this statement which makes Dutton an inappropriate vehicle to uphold admissibility in this case is the limitation the Dutton Court put on the statement involved in that case. The Dutton statement was not in any sense "crucial" or "devastating." It did not involve the use or misuse of a confession made in the coercive atmosphere of official interrogation, nor did it involve the wholesale denial of cross-examination.

At oral argument, the state's attorney termed the Holy Rock statement crucial. It was certainly the product of the coercive atmosphere of official interrogation. As Justice Dunn pointed out in his original dissent:

[T]he "accomplice" is a young Indian lad who has been scared half to death by the police officers in an effort to find some evidence against Abourezk. Holy Rock's fear is shown by his testimony that the deputy told him he was up to his neck in trouble and had better start digging his way out.

Abourezk, 339 N.W.2d at 783.

Finally, the Dutton statement did not involve the wholesale denial of cross-examination. The evidence at issue in Dutton was the testimony of a witness, Shaw, who had been a cellmate of Williams, an alleged accomplice of Evans, the appellant. While both were incarcerated, Shaw, on one occasion asked Williams: "How did you make out in court?" Williams responded: "If it hadn't been for that dirty son-of-a-bitch Alex Evans, we wouldn't be in this now." 400 U.S. at 77, 91 S.Ct. at 214, 27 L.Ed.2d at 220. Shaw was only one of twenty prosecution witnesses, including a co-conspirator who testified at length about the actual event. While Williams was not present to testify, Shaw did, only as to the statement, and was thoroughly cross-examined. The Dutton Court described Shaw's testimony as being of peripheral significance. It was at this juncture that the Court pointed out the four indicia referred to above. It is obvious that Holy Rock's unsworn statement in this case cannot be compared to the testimony of Williams' spontaneous remarks to Shaw.

As the Dutton Court said: "[T]he mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that 'the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement.' " Id. at 89, 91 S.Ct. at 220, 27 L.Ed.2d at 227. California v. Green, 399 U.S. 149, 161, 90 S.Ct. 1930, 1936, 26 L.Ed.2d 489, 499 (1970).

The theme of "indicia of reliability" has been a critical factor in most of the confrontation clause cases. As the United States Supreme Court summarized in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980):

The Court has emphasized that the Confrontation Clause reflects a preference for face-to-face confrontation at trial, and that "a primary interest secured by [the provision] is the right of cross-examination." In short, the Clause envisions

"a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief."

These means of testing accuracy are so important that the absence of proper confrontation at trial "calls into question the ultimate 'integrity of the factfinding process.' " (citations omitted)

Page 140

Id. at 63-64, 100 S.Ct. at 2537-8, 65 L.Ed.2d at 606. The Roberts Court went on to say:

Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that "there is no material departure from the reason of the general rule."

Id. at 65, 100 S.Ct. at 2539, 65 L.Ed.2d at 607. "The Court has applied this 'indicia of reliability' requirement principally and concluded that certain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the 'substance of the constitutional protection.' " Id. at 66, 100 S.Ct. at 2539, 65 L.Ed.2d at 608 (citations omitted).

The State argues that SDCL 19-16-32 (statement against declarant's penal interest) is a firmly rooted exception and that Holy Rock's statement was clearly against his own penal interest; ergo it bears adequate indicia of reliability.

Roberts, supra, did not involve custodial statements of accomplices but rather preliminary hearing testimony where the hearsay exception exists for prior testimony where a defendant had opportunity for cross-examination. See SDCL 19-16-30. 1 Even here, the Roberts Court expressed some disagreement whether the test was mere opportunity, deminimus exercise of opportunity, or full-blown cross-examination. In any event, the Roberts Court held that the testimony of the unavailable witness called at the preliminary hearing as a defense witness, was admissible because counsel's questioning had been extensive cross-examination as a matter of form and "replete with leading questions, the principal tool and hallmark of cross-examination." Id. at 70, 100 S.Ct. at 2541, 65 L.Ed.2d at 610-11 (footnote omitted). Roberts is thus distinguishable in that regard from the case before us.

The dissent in this case, by relying on United States v. Ammar, 714 F.2d 238 (3d Cir.1983) and the cases cited therein, has taken a giant illogical leap. In Abourezk, we are dealing with custodial admissions. In Ammar, and Nelson and Perez cited therein, the courts were dealing with testimony of co-conspirators' statements. 2 We have no quarrel with the rules expounded in those cases in their proper perspective. They are so readily distinguished from the Holy Rock statement that further discussion is hardly necessary. Holy Rock's statement would not meet the first test of a co-conspirator's statement because it certainly was not made in the furtherance of the conspiracy.

A recent Eighth Circuit Court of Appeals case, Olson v. Green, 668 F.2d 421 (8th Cir.1982), goes to the heart of the issue before us, the...

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