State v. Cody

• Decision Date: 11 June 1980
• Docket Number: No. 12572,12572
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. William R. CODY, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 440

293 N.W.2d 440

STATE of South Dakota, Plaintiff and Appellee, v. William R. CODY, Defendant and Appellant.

No. 12572.

Supreme Court of South Dakota.

Argued Nov. 9, 1979.

Decided June 11, 1980.

Brent A. Wilbur, Sp. Asst. to Atty. Gen., for plaintiff and appellee; Lori Wilbur, Asst. Atty. Gen., Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Lee A. Tappe of Tappe & Vavra, P. C., Platte, for defendant and appellant; Terry L. Pechota, Mission, on brief.

HENDERSON, Justice.

ACTION

Appellant William R. Cody, a/k/a William Weeks, was convicted in a trial by jury

of murder and sentenced to life imprisonment. We reverse and remand for a new trial.

FACTS

On February 28, 1978, Cody was arrested in Las Vegas, Nevada, on an unlawful flight warrant issued by a Pennington County Magistrate on a charge of embezzlement and grand larceny. On that same day, a preliminary information and arrest warrant were filed in Tripp County charging Cody with the murder of Edmund Brown, a Winner, South Dakota businessman. Cody was incarcerated in the Clark County jail in Las Vegas that afternoon; he was later taken into the interrogation room and interrogated first by Assistant District Attorney Steve Carson and Detective David Hanson, both of Las Vegas. From approximately 5:00 p. m. to 9:30 p. m., Cody was then interrogated by Marc Tobias, an attorney representing the Division of Criminal Investigation for the State of South Dakota.

During this four-hour interrogation by Tobias, which was tape recorded and later transcribed, Cody was never afforded counsel, although several requests for counsel were made by Cody. During the later stages of the interview, however, Tobias apparently contacted a Las Vegas attorney, Howard Miller, at Cody's request. Tobias informed Cody that Miller would not come to the jail that evening unless Cody paid Miller a $1,000 retainer. Cody was unable to retain Miller. Shortly after the interview was concluded, Tobias then telephoned John Hughes, an attorney in Sturgis, South Dakota, at Cody's request. According to Cody, he talked to Hughes for approximately three minutes. There is a conflict as to whether Tobias was privy to this conversation or what matters were discussed. Hughes signed an affidavit outlining his perception of the events that evening; the affidavit, however, was not made a part of the record. The record does reveal, however, that shortly after talking to Hughes, Detective Santongue obtained from Cody a signed consent to search his room at the Aladdin Hotel, which he had earlier refused. The search resulted in uncovering incriminating evidence against him.

On the morning of March 1, 1978, Cody was again interviewed by Tobias. This session, with the exception of the first forty-five minutes, was also tape recorded and later transcribed. Cody still persisted in being represented by counsel at this time, but again his request went unheeded.

On March 2, 1978, Tobias again briefly met with Cody for the purpose, according to Tobias, of informing him of the travel arrangements back to South Dakota the next morning. During this "meeting," as the state prefers to characterize it, Tobias commented on the evidence which had been found implicating Cody with the Brown murder. This fifteen minute conversation was not taped; however, Tobias claims that during such time Cody made approximately twenty-four incriminating statements, all of which were admitted at trial. There is a conflict in the testimony whether Tobias, at any time during the course of this exchange, ever re-advised Cody of his rights; however, the record does reflect that Tobias was aware that while Cody had not retained counsel, he had conferred with Attorney Pike of Las Vegas earlier that day.

Appellant raises 103 assignments of error which allegedly occurred at the pretrial and trial stages. Since we are reversing and remanding this case for new trial, we need address only those issues dispositive of this appeal and those issues which warrant consideration in a new trial.

ISSUES

I.

Did the trial court err in denying appellant's motion to suppress statements made by appellant to Marc Tobias during the course of three separate interrogations, having ruled that appellant effectively waived his rights under the Fifth and Sixth Amendments of the United States Constitution?

II.

Did the trial court err in denying appellant's motion to suppress evidence obtained from the search of appellant's hotel room pursuant to a consent to search form signed by appellant?

III.

Whether the jury instruction on premeditated design to effect death given at trial, and SDCL 22-16-4 and SDCL 22-16-5 under which appellant was convicted of murder, are unconstitutional in that the burden is allegedly shifted to a defendant to raise reasonable doubt as to the nonexistence of a premeditated design?

I. MIRANDA WAIVER

We first turn to a consideration of appellant's claim that his Fifth and Sixth Amendment rights were violated by the admission at his trial of certain incriminating statements made by him after repeated requests for an attorney. A suppression hearing was held on May 15, 1978, at which time the trial court heard the testimony of Tobias, Detective Santongue of Las Vegas and Cody, in addition to receiving the transcript of the Cody/Tobias February 28 and March 1 interviews. The court found, based on the evidence introduced and the totality of the circumstances, that Cody's several requests for the presence of an attorney did not constitute a present request; rather, Cody's requests merely reflected a desire to speak to an attorney at some undetermined later time before answering certain questions and issuing a formal, complete, and signed statement. The court concluded that Cody, by continuing to discuss the murder of Ed Brown in generalities without the presence of counsel, did knowingly, voluntarily, and intelligently waive and abandon any rights afforded to him under the Constitution. In reading the same transcript and considering the totality of the circumstances, we conclude otherwise.

The record indicates that Cody was advised of his rights as required by the Miranda ruling at the outset of both the February 28 and March 1 interviews. The Cody/Tobias transcript also reflects that during the initial stages of the February 28 interview, Cody was apparently willing to discuss with Tobias his general whereabouts and activities over the previous three week period. Later during the interview, however, once he realized that there was a murder charge pending against him, the record reflects that Cody made numerous requests to see an attorney. Whether Cody had effectively waived his right to retained or appointed counsel at the time these incriminating statements were made is a question of federal constitutional law. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1978); State v. Arpan, 277 N.W.2d 597 (S.D.1979). We are not constrained by the usual strictures of the "clearly erroneous" standard; the question of waiver requires an "application of constitutional principles to the facts as found." Brewer v. Williams, supra, 430 U.S. 403, 97 S.Ct. at 1242, 51 L.Ed.2d at 439, citing Brown v. Allen, 344 U.S. 443, 507, 73 S.Ct. 397, 446, 97 L.Ed. 469 (1953) (separate opinion).

The rule established in the seminal case of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), sets forth:

If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent. (footnote omitted).

Id. at 474, 86 S.Ct. at 1628, 16 L.Ed.2d at 723. If the interrogation continues, any uncounselled confession or incriminating statements may not be introduced into evidence against the accused unless the state Recent United States Supreme Court decisions have held that the question of waiver must be determined on "the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused," as set forth in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938). See North Carolina v. Butler, supra; Brewer v. Williams, supra; and Fare v. Michael, 439 U.S. 1310, 99 S.Ct. 3, 58 L.Ed.2d 19 (1978). At the same time, however, the Court has been quick to reiterate that the courts must indulge in every reasonable presumption against waiver. North Carolina v. Butler, supra; Brewer v. Williams, supra.

can sustain its "heavy burden" of demonstrating beyond a reasonable doubt that the accused voluntarily, knowingly and intelligently waived his right against self-incrimination and his concomitant right to the presence of counsel. Miranda, supra. In North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979), the United States Supreme Court noted that the question of whether the accused waived his rights "is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in Miranda." 441 U.S. at 373, 99 S.Ct. at 1757, 60 L.Ed.2d at 292.

The scope of our review mandates inquiry into all the circumstances surrounding the interrogation in determining whether waiver can be clearly inferred from Cody's actions. Cody was initially booked for embezzlement and grand larceny. The arrest report reveals that on the afternoon of February 28, 1978, Cody had also been charged with murder; however, at that time he had not been formally booked on that charge. Tobias admitted at the suppression hearing that his sole purpose in flying to Las Vegas was to question Cody concerning the Brown murder. Tobias was aware that an arrest warrant was being filed in Tripp County that afternoon charging Cody...