State v. Cody

• Citation: 323 N.W.2d 863
• Decision Date: 25 August 1982
• Docket Number: No. 13257,13257
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. William R. CODY, Defendant and Appellant.
• Court: Supreme Court of South Dakota

Page 863

323 N.W.2d 863

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

No. 13257.

Supreme Court of South Dakota.

Argued Sept. 30, 1981.

Decided Aug. 25, 1982.

Jon R. Erickson, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Lee A. Tappe of Tappe & Vavra, P. C., Platte, for defendant and appellant.

HENDERSON, Justice.

ACTION

This case originally stems from a jury verdict which found William R. Cody, a/k/a William Weeks, guilty of premeditated murder. Judgment was accordingly entered and a life sentence imposed. Cody thereafter appealed to this Court which reversed the conviction and remanded the case for a new trial due to a violation of Cody's right to counsel. State v. Cody, 293 N.W.2d 440 (S.D.1980). Cody subsequently

filed a motion to suppress certain evidence and statements allegedly collected in violation of his constitutional rights; said motion was denied. A second jury trial thereupon resulted in a guilty verdict of premeditated murder. This appeal ensued.

FACTS

The facts pertinent to this appeal, as set forth in State v. Cody (hereinafter referred to as Cody I ), 293 N.W.2d at 442, are as follows:

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. ^{[ 1} Thereisaconflict as to whether Tobias was privy to this conversation or what matters were discussed. * * * [S]hortly 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.

Cody was given his Miranda warnings at the outset of the aforementioned February 28th interview.

ISSUES

I.

Did the trial court err in ruling that Cody's constitutional rights were not violated when he consented to a search of his room? We hold that it did not.

II.

Was Cody denied due process due to the State's failure to produce certain alleged exculpatory evidentiary items? We hold that he was not.

III.

Is SDCL 16-13-42 unconstitutional as violative of due process? We hold that it is not.

IV.

Was Cody denied due process by the fact that his illegally obtained statements could have been admitted into evidence by the State for impeachment purposes if Cody had testified contrary to these statements? We hold that he was not.

V.

Was there sufficient evidence presented at trial to support the verdict of guilty? We hold that there was.

DECISION

I.

Cody contends that the trial court erred when it denied his motion to suppress certain incriminating articles which were found in his Las Vegas hotel room. Authorities entered the room pursuant to Cody's written consent. Cody was apprised of his constitutional rights and the consent form was read to him several times before he consented to the search. Prior to relinquishing his consent, however, Cody mentioned that there was something in his room which he felt would incriminate him. When asked what it was, he responded, "narcotics." After he was assured that no criminal charges would be brought against him with respect to any narcotics taken from his room pursuant to the search, Cody signed the consent form.

This Court held in Cody I that Cody's consent to search had been given freely and voluntarily. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Kissner, 252 N.W.2d 330 (S.D.1977). Here, however, Cody contends that his Fifth Amendment rights were violated when, subsequent to Miranda warnings and the advice of counsel, authorities requested his consent to search. The marrow of Cody's position is that a request for consent to search is the legal equivalent of an interrogation since both procedures are designed to obtain evidence from a defendant and, accordingly, such a request cannot constitutionally occur without first affording the accused access to counsel.

In Rhode Island v. Innis, 446 U.S. 291, 300-301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297, 307-308 (1980), the United States Supreme Court held:

... Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response ⁵ from the suspect.

Footnote five in Innis stated (emphasis in original): "By 'incriminating response' we refer to any response--whether inculpatory or exculpatory--that the prosecution may seek to introduce at trial. * * * " Id. The Court in Innis elaborated further: "But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." Id. at 301-302, 100 S.Ct. at 1690, 64 L.Ed.2d at 308 (emphasis in original). See also United States v. Hinckley, 30 Crim.L.Rep. (BNA) 2425 (March 10, 1982).

It is not necessary to address the question of whether a request to consent falls under the purview of Innis ² for, under the facts of this case, we believe that Cody had been provided with counsel prior to consenting to the search.

The United States Supreme Court has recently expounded upon the principles of Innis in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Edwards involved a defendant who, after being arrested, incarcerated, and given his Miranda warnings, was immediately questioned by police until he requested an attorney. The interrogation then ceased and the defendant was given the telephone number of a county attorney. The defendant made the call to this county attorney, a prosecutor, but hung up after a few moments. Id. at 1882. On the following day, the defendant was again questioned by police after being re-advised of his Miranda rights but without access to counsel. Id. at 1886. This time the defendant confessed to the crimes charged. The Court held that the defendant was subjected to custodial interrogation within the meaning of Innis and that this occurred at the instance of authorities. Thus, the Court concluded that since the defendant's confession was made without having had access to counsel and there was no valid waiver of his right to counsel, the confession was unconstitutionally obtained.

Our primary consideration, then, must be whether Cody had access to counsel at the time he consented to the search. As previously mentioned, we believe that he had. As stated under FACTS, Cody telephonically spoke with Attorney John Hughes for, according to Hughes, twenty to twenty-five minutes. ³ During this conversation, Hughes advised Cody to remain silent. Thereafter, the attending authorities requested Cody's consent to search which, after being assured that narcotic-oriented charges would not be brought against him, he relinquished. When his consent was requested, Cody did not indicate to the authorities in any manner that he wished to consult further with counsel.

In Edwards v. Arizona, supra, it appears that the Court did not believe that the police had allowed the defendant any access to counsel. Here, however, Cody opted to consult with out-of-state counsel by telephone and had access to counsel's advice for twenty to twenty-five minutes. Even though Attorney Hughes was not personally present when the consent was requested, Cody had, in fact, availed himself of competent legal advice and counsel prior to the consent being given. Furthermore, as we held in Cody I, nothing prevented Cody from refusing to acquiesce to the request; that is, his consent was given freely and voluntarily as per the dictates of Schneckloth v. Bustamonte, supra, and State v. Kissner, supra. Attorney Hughes had impliedly directed Cody to refuse consent by advising him to remain silent. It is clear that by consenting to the search, "Cody took a calculated risk." Cody I at 451. See Gautreaux v. State, 52 Wis.2d 489, 190 N.W.2d 542 (1971). Cody obviously thought that the money belonging to the victim, which he had ingeniously hidden in a wall, could not be found by the authorities. His risk was foiled by its discovery.

A careful reading of Edwards indicates that once a defendant has invoked his right to counsel, any subsequent waiver of that right must be made knowingly, intelligently...