State v. Blackburn

• Decision Date: 13 May 2009
• Docket Number: No. 24897.,24897.
• Citation: 2009 SD 37,766 N.W.2d 177
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. Tad Aaron BLACKBURN, Defendant and Appellee.
• Court: South Dakota Supreme Court

766 N.W.2d 177

2009 SD 37

STATE of South Dakota, Plaintiff and Appellant, v. Tad Aaron BLACKBURN, Defendant and Appellee.

No. 24897.

Supreme Court of South Dakota.

Argued on March 25, 2009.

Decided May 13, 2009.

Lawrence E. Long, Attorney General, Andrew Knecht, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellant.

Paul R. Winter, Rapid City, South Dakota, Attorney for defendant and appellee.

MEIERHENRY, Justice.

[¶ 1.] Tad Blackburn is charged and awaiting trial for First Degree Murder, or in the alternative, Second Degree Murder in the death of his girlfriend, Tamara Magic. Prior to trial, Blackburn moved to suppress statements that he made to police during a police interrogation. The trial court granted his motion and suppressed portions of the interrogation. The trial court determined that Blackburn's statements to police were inadmissible because Blackburn's Fifth and Fourteenth Amendment rights to counsel had been violated. The State sought permission to appeal the trial court's suppression order.

Police Questioning of Blackburn

[¶ 2.] The incident that gave rise to the murder charge against Blackburn occurred on November 8, 2007, in Rapid City, South Dakota. Late in the evening, the police and an ambulance responded to an emergency call to the home of Magic. There they found Magic dead with multiple stab wounds and head trauma. The police sought Blackburn as a suspect.

[¶ 3.] Blackburn was stopped by law enforcement driving Magic's vehicle at approximately 1:00 a.m. on November 9. The police officer who stopped Blackburn determined that Blackburn had been drinking and that Blackburn was wanted for questioning in Magic's murder. The officer transported Blackburn to the police station for questioning.

[¶ 4.] The police interviewed Blackburn twice. The first interview occurred at approximately 2:00 a.m. on November 9, and a second interview occurred more than thirty hours later at approximately 10:00 a.m. on November 10. During the first interview, Blackburn repeated that he was drunk, that he would not answer any questions until he was sober, and that he wanted a lawyer. Blackburn did not waive his Miranda rights during the first interview and made no admissions. The trial court determined that any statements made by Blackburn during the first interview were inadmissible for any purpose at trial.

Second Interview

[¶ 5.] The morning of November 10, Blackburn requested to see Investigator Matt Sargent. At the beginning of the second interview, Investigator Sargent read Blackburn his Miranda rights as follows:

Sargent: Alright. Before I ask, ask you any questions you must understand your rights. You have the continuing right to remain silent. Do you understand that?

Blackburn: Yes sir.

Sargent: Anything you say can be used as ev, used against you in court. Do you understand that?

Blackburn: Yes sir.

Sargent: You have the right to a lawyer for advice before we ask you any questions and to have a lawyer with you during questioning. Do you understand that?

Blackburn: Yes sir.

Sargent: If you cannot ... afford a lawyer, one will be appointed for you before any questioning if you wish. You understand that?

Blackburn: Ok.

Sargent: You understand that?

Blackburn: I understand that.

Sargent: Ok. If you decide to answer questions now without a lawyer present, you will still have the right to stop quest, stop answering at any time until you talk to a lawyer. You understand that?

Blackburn: Yes.

Sargent: Yes?

Blackburn: Yep.

Sargent: Ok. Do you understand each of the rights I've just explained to you?

Blackburn: Yes.

The video taped interview continues with the following questions and answers that involve the crux of this appeal:

Sargent: Keeping these rights in mind, do you wish to talk to us now?

Blackburn: Yes.

Sargent: K.

Blackburn: I mean I'd like, I'd like there to be a lawyer present just so I don't fuckin' step myself over the deep end or nothing else, but I mean at this point I really don't see why there needs to be one because I, I, really I want to know what you guys know. I was drunker an' shit the other night when I was talking to you. I was high on fuckin' cocaine and I really don't remember a whole lot of what I told you the other night, but I need to know what's going on, what so we can, fuckin', damage control. So what, what do they know Matt?

Sargent: Tad come on.

Blackburn: I'm telling you. What do they know?

The trial court found that Blackburn's answer was ambiguous and equivocal and as such, required Sargent to clarify whether Blackburn wanted a lawyer or wanted to proceed without a lawyer before continuing with the interrogation. Sargent did not clarify at that point and continued the interrogation. Blackburn eventually admitted (1) that he had been drunk and high on cocaine; (2) that he had been at Magic's house; (3) that as he attempted to leave, Magic grabbed him and he punched and then stabbed her several times with a knife; and (4) that after the knife handle broke, he hit her in the head with a rock. Only after these admissions did Sargent attempt to clarify Blackburn's earlier statement about wanting a lawyer.

Sargent: I gotta ask you a question about a comment you made. You said you wanted to get a hold of your mom so you can get a lawyer.

Blackburn: Yes sir.

Sargent: Also, in, in the very first start to our interview you said you'd like something to the extent about having a lawyer present but you don't think it's necessary right now.

Blackburn: Not, I don't, I don't feel like it's necessary right now because you know, you're sitting here.

* * *

Sargent: Right. I just want to make sure that you're not telling me that you want to stop this.

Blackburn: No, no.

Sargent: Ok.

Blackburn: That, I'm, I'm, I'm not telling you that Matt. I just know that somewhere along the time and the proceedings.

Sargent: Oh definitely.

Blackburn: You know, I'm, I'm gonna need a lawyer. And I don't want, I don't want a PD man.

Sargent: K. So that's the basis of that comment, is you don't want a PD though?

Blackburn: Yeah, yeah it's, it's, it's, I'm not trying to stop the conversation.

Sargent: Ok.

Blackburn: You know what I'm saying. I'm will, I'll willingly answer your questions without a lawyer.

Sargent: Ok.

Blackburn: But some times during the proceedings you know I'd like to, I'd like to have contact with a lawyer.

Sargent: Ok. Alright.

Blackburn: You know. And I, I'm, I don't need one to speak through or nothing like that.

The trial court suppressed all of Blackburn's statements prior to this clarification that he did not want an attorney immediately. The State appeals raising one issue: Whether the trial court erred in suppressing certain statements that Blackburn made during his second interview with the police.

ANALYSIS

[¶ 6.] "We review a trial court's grant or denial of a motion to suppress alleged constitutional violations de novo." State v. Cottier, 2008 SD 79, ¶ 18, 755 N.W.2d 120, 128 (citing State v. Johnson, 2007 SD 86, ¶ 21, 739 N.W.2d 1, 8-9).

[¶ 7.] The trial court determined that during the second interview: (1) Blackburn initiated the further discussion; (2) although he initiated further discussion, he made an equivocal reference to counsel, and because he had not already waived his right to counsel, the officers should have limited their further questioning to clarifying Blackburn's reference to counsel; (3) because the officers failed to get that clarification, his admissions or confession are inadmissible as substantive evidence up to the point toward the end of the interview when he eventually did clarify that he did not want an attorney; (4) the second interview was voluntarily given and, thus, usable for impeachment; (5) because the second interview was voluntary, Blackburn's statements at that second interview subsequent to the time when he ultimately did clarify that he did not need an attorney are admissible.

[¶ 8.] Blackburn asserts that the trial court should have suppressed all, not only a portion, of the statements he made during the second interview. Blackburn did not, however, file a petition for discretionary appeal or file a notice of review regarding this issue. See SDCL 15-26A-22; see also State v. Koerner, 1999 SD 161, ¶ 4, 603 N.W.2d 718, 720 (notice of review filed in intermediate appeal); State v. Tapio, 432 N.W.2d 268, 269 (S.D.1988) (notice of review filed in intermediate appeal). "This Court has consistently held that failure to comply with the notice of review requirements results in a waiver." A.L.S. Props., Silver Glen v. Graen, 465 N.W.2d 783, 787 (S.D.1991) (citing Gratzfeld v. Bomgaars Supply, 391 N.W.2d 200 (S.D. 1986); Rowett v. McFarland, 394 N.W.2d 298 (S.D.1986); Application of Northwestern Bell Tel. Co., 326 N.W.2d 100 (S.D. 1982)). Therefore, we do not reach the issue of whether all statements in the second interview must be suppressed.

[¶ 9.] In a custodial interrogation, the government must prove that the accused knowingly and intelligently waived the right to counsel and the privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (citing Escobedo v. State of Illinois, 378 U.S. 478, 490, n. 14, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964)). The accused must be informed "that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Id. at 444, 86 S.Ct. 1602. The United States Supreme Court established a bright-line rule in Edwards v. Arizona that if the accused clearly asks for a lawyer during a custodial interrogation, the questioning must stop until a lawyer is present. 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). The Court said, "an accused ... having expressed his desire to deal with the police only through counsel, is not subject to further...