State v. Adkins, 11380

• Decision Date: 07 February 1975
• Docket Number: No. 11380,11380
• Citation: 225 N.W.2d 598,88 S.D. 571
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Manford Gene ADKINS, also known as Tim Adkins, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 598

225 N.W.2d 598

88 S.D. 571

STATE of South Dakota, Plaintiff and Respondent, v. Manford Gene ADKINS, also known as Tim Adkins, Defendant and Appellant.

No. 11380.

Supreme Court of South Dakota.

Feb. 7, 1975.

David E. Morrill and Dale R. Hansen, Morrill & Hansen, Sturgis, for defendant and appellant.

Kermit Sande, Atty. Gen., and David O. Carter, Asst. Atty. Gen., Pierre, for plaintiff and respondent.

DUNN, Chief Justice.

The defendant, Manford Gene Adkins, was convicted by a Meade County jury of two counts of kidnaping and two counts of murder on July s4, 1973. The defendant appeals contending (1) that the trial court erred in failing to suppress defendant's statements of March 10, 1973, and (2) that the trial court erred in not allowing the statement of Richard Elam (Exhibit J) to be read into evidence when Elam was not available to testify at the trial. We affirm.

On March 4, 1973, the Pennington County Sheriff's office determined that Billie Sue Allen and Valerie Janis were missing. On the following day the defendant, who had once been employed as a part-time police officer in Box Elder, South Dakota, reported the theft of his pistol and rifle to the sheriff's office. On that same day the sheriff's office found the abandoned Volkswagon automobile belonging to Valerie Janis. On March 6, 1973, the defendant again appeared at the sheriff's office and subsequently reported that his pistol had been found and that there was blood and hair on the barrel. He also told the sheriff that he was 'in trouble' because he had been the last person to see the girls. On March 7, 1973, the bodies of the two girls were found in a shed approximately seven miles north of New Underwood in Meade County, South Dakota. The Meade County Sheriff, who was now conducting the investigation, talked to defendant about taking a lie detector test in Sioux Falls. The defendant indicated a willingness to take the test, but upon his retaining Mr. William Rensch as his attorney, Mr. Rensch advised defendant not to take the test. On March 9, 1973, the sheriff, a deputy, defendant and Mr. Rensch viewed the bodies of the two dead girls at a Rapid City mortuary. In a telephone conversation later that evening Rensch advised the sheriff that the defendant would take the lie detector test but that he, Rensch, wished to know the time and place of the test. The sheriff testified that Rensch had advised that he did not wish to accompany the defendant to Sioux Falls, but he did confirm that Rensch wished to know the time and place of the test. The sheriff testified that he instructed his office to provide this information to Rensch, but this, through some mixup in communications, was never done. On the following morning (March 10th) the defendant voluntarily accompanied Deputy Sheriff Gray on the trip to Sioux Falls. It should be noted that the defendant was never in custody during any of this period; that he had complete access to his retained attorney at all times; that he had seen him the night before and could have contacted him at any time before 11 a.m. on March 10th when they left for Sioux Falls. Upon arriving in Sioux Falls and before the test was taken before Leo Brown, the polygraph examiner, the defendant was given the warnings set out in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, he was asked if he understood those rights and he replied that as a former law enforcement officer he knew his rights. He also signed a written consent form before taking the test. During the course of the test, defendant made a complete confession of the crimes to Mr. Brown, the examiner. At that point Deputy Sheriff Gray was called in and again the defendant was given the Miranda warnings. Following this, the defendant also gave a tape recorded statement to Deputy Sheriff Gray. It is this oral statement to Brown and the tape recorded statement made to Gray that the defendant sought to suppress.

While defendant was not placed under arrest until after the statements were given, the circumstances surrounding the interrogation by a skilled polygraph examiner would not warrant an affirmance based on 'volunteered statements,' as outlined in Miranda, supra. Although this defendant seemed to be under a compulsion to divulge evidence about this case from the time the girls were found to be missing, he did not come to the sheriff's office in Rapid City or the interrogating room in Sioux Falls and announce that he wished to confess to the crime. This came only during the lie detector test and after being interrogated by the examiner.

We conclude that the defendant made these statements after a knowing, intelligent and voluntary waiver of his privilege against self-incrimination and right to counsel. Miranda established this standard for constitutionally valid waiver:

'If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant Knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.' (emphasis supplied) 384 U.S. at 475, 86 S.Ct. at 1628, 16 L.Ed.2d at 724.

Thus, the state must show that the waiver was voluntary, knowing and intelligent. Defendant concedes that he had been given the Miranda warnings in connection with this case prior to March 10th, immediately prior to the polygraph examination and again before giving his statement to Deputy Sheriff Gray. Defendant principally argues that he could not have validly waived these rights because he was not Specifically informed that he was entitled to the presence and advice of his retained counsel, Rensch, at the questioning in Sioux Falls. Defendant claims that the Miranda warnings, given in their usual form, did little more than confuse him absent a specific mention of Mr. Rensch.

The record strongly supports the trial We find no case authority for the proposition that waiver is not effective absent a specific mention of known counsel. Rather, Miranda requires warning to the accused that he has the right to remain silent; that anything he does say may be used against him; that he has the right to counsel; and that, if indigent, counsel will be appointed for him. In our opinion, defendant urges an unwarranted expansion of Miranda. The record does not show that defendant was unaware of who his counsel was or that he was under the impression that he was not entitled to the presence of Mr. Rensch prior to making any statement. On the contrary, the record affirmatively supports the conclusion that defendant was fully aware of his rights and consciously waived them. It is also notable that defendant himself phoned Rensch at his home prior to leaving for Sioux Falls. It appears that defendant knew at that time that he was entitled to Rensch's presence if he so desired.

Keeping in mind that the court may look to the background, experience and conduct of the defendant in determining the validity of a waiver of constitutional rights, Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, we would hold that 'a review of all the evidence in the record shows there was ample evidence to sustain the trial judge's finding that the confession was voluntary beyond a reasonable doubt.' State v. Aschmeller, 1973, S.D., 209 N.W.2d 369.

Defendant also apparently argues for the adoption of a per se rule requiring the court to hold that the absence of known counsel at an interrogation vitiates an otherwise valid waiver of constitutional rights by the accused. United States v. Durham, 1973, 7 Cir., 475 F.2d 208, dealt thusly with an almost identical question:

'(T)his case is governed by a plethora of decisions which have admitted confessions made under similar circumstances. These decisions have concentrated on the issue of whether the defendant's waiver was voluntary and knowing, and all have admitted confessions made without notice to counsel because the defendant was notified of his rights and deliberately waived them. These cases plainly indicate that it makes no difference whether the police or the defendant initiate the interviews, or how often or long the defendant is questioned, for the main concern is the validity of his waiver.'

While Durham is authority for the proposition that known counsel need not be notified of the questioning in order to uphold a valid waiver, the present case may be further supported by the fact that retained counsel here had previously approved of the suggested polygraph examination. In Durham counsel was not aware that the challenged questioning would take place. In contrast, Rensch only lacked knowledge of the details.

An accused may voluntarily, knowingly and intelligently waive his right to counsel altogether. Logical extension of the principle permits that same accused to voluntarily, knowingly and intelligently waive his right to the presence and assistance of previously retained or appointed counsel at an interrogation, Moore v. Wolff, 1974, 8 Cir., 495 F.2d 35; Dillon v. United States, 1968, 10 Cir., 391 F.2d 433. The question of surreptitious police tactics aside, we see no reason why an innocent failure to satisfy counsel's request for time and place information should invalidate deliberate and understanding waiver.

We do not decide whether deliberate failure to comply...