State v. Corder

• Decision Date: 05 September 1990
• Docket Number: No. 16704,16704
• Citation: 460 N.W.2d 733
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Ronald Ray CORDER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 733

460 N.W.2d 733

STATE of South Dakota, Plaintiff and Appellee, v. Ronald Ray CORDER, Defendant and Appellant.

No. 16704.

Supreme Court of South Dakota.

Argued May 21, 1990.

Decided Sept. 5, 1990.

Frank E. Geaghan, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on brief.

James E. McCulloch, Minick, Nelson & McCulloch, Vermillion, for defendant and appellant.

HENDERSON, Justice.

PROCEDURAL HISTORY

Ronald Ray Corder (Corder) and Harvey Ernst (Ernst) were initially charged by complaint on December 5, 1988, with First Degree Murder. On December 13, 1988 before a preliminary hearing could be held, Corder and Ernst were indicted by a Clay County grand jury with one count each of Premeditated First Degree Murder, one count each of First Degree Felony Murder and one count each of Second Degree Murder.

On January 30, 1989, Corder filed a motion with the court asking that his trial be severed from that of Ernst. That motion, together with a motion to suppress, were heard by the court on February 9, 1989. On March 14, 1989, the trial court granted Corder's motion for severance but denied the motion to suppress.

A jury trial began April 24, 1989. At the conclusion of the trial on May 2, 1989, the jury returned a verdict of guilty against Corder for Premeditated First Degree Murder. On May 9, 1989, Corder was sentenced to life in prison. On appeal, Corder argues that:

(1) His motions to suppress evidence should have been granted;

(2) His proposed jury instruction number 10 should have been given to clarify aiding and abetting; and,

(3) His motion for judgment of acquittal should have been granted.

-Holding-

Deeming these contentions to be nonmeritorious, we affirm on all issues.

FACTS

On the morning of December 4, 1988, the bludgeoned and lifeless body of Clifford Hirocke (Hirocke) was found by two hunters, 3 miles south of Vermillion. Due to the injuries inflicted on the body, authorities began investigating the case as a homicide.

Law enforcement authorities received information that Corder and Ernst had been with the victim at approximately 2:15 a.m. on December 4, 1988, at a local bar and subsequently a pizza establishment in Vermillion. ¹ Since Corder and Ernst were apparently the last persons to have seen Hirocke alive, a determination was made by law enforcement officials to interview Corder and Ernst concerning their whereabouts on the evening of December 3rd and the early morning hours of December 4, 1988.

During the evening hours of December 4, 1988, an unmarked patrol car was dispatched to the home of Corder. Corder was spotted pulling his vehicle into his driveway at approximately 7:50 p.m. As Corder left his vehicle, he was confronted by DCI agent Neidringhaus, who identified himself and asked for Corder's driver's license, which was produced. Corder was advised that they were trying to ascertain what knowledge he might have concerning Hirocke's whereabouts after 2:30 a.m. the night before.

Corder was informed by Neidringhaus that "we need to ask you some questions." Corder was asked if he would be willing to drive his vehicle to the police station, which he did. His girlfriend and young son accompanied him.

At the police station, Corder was taken to an interview room where he was alone with agents Neidringhaus and DeVaney. These agents advised Corder that they were investigating the death of Hirocke. The initial interview started at 8:00 p.m. and lasted approximately 10-20 minutes. The conversation centered on his whereabouts during the early morning hours of December 4th. Corder made no incriminating statements during this interview.

While he was being interviewed, blood and hair were observed on the hood of Corder's vehicle. Immediately after the interviewers were informed of this fact, Corder was read Miranda warnings. Corder was then informed that blood was observed on his vehicle's hood. He waived his Miranda rights and gave an incriminating oral confession to the authorities. ²

After giving this oral confession, Corder was once again given his Miranda warnings. Asked if he understood those rights, Corder then signed the Miranda card. He thereafter furnished the police with a written statement consistent with his oral confession.

Corder's girlfriend, Misty Stice Porter (Porter) gave a statement to authorities implicating both Corder and Ernst in Hirocke's death. They were married five weeks after Porter gave the statements.

A search warrant was subsequently obtained to search Corder's vehicle and house. Four days later, a search warrant was obtained for blood and hair samples from Corder.

DECISION

I. The trial court did not err in denying Corder's motion to suppress evidence.

Corder moved the trial court for an order to suppress all oral, verbal, written and physical evidence obtained during the course of the interview conducted by law enforcement on December 4, 1988, claiming his Fourth Amendment rights were contravened. The trial court denied Corder's motion.

We review the trial court's findings in connection with the motion to suppress under the clearly erroneous standard. United States v. Lewis, 738 F.2d 916, 920 (8th Cir.1984). Under this standard, the decision of the lower court must be affirmed unless it lacks the support of substantial evidence, it evolves from an erroneous view of the applicable law, or upon considering the entire record, we are left with the definite and firm conviction that a mistake has been made. United States v. Lewis, 738 F.2d at 920. We must consider the evidence in a light most favorable to support the trial court's denial of Corder's suppression motion. State v. Hall, 353 N.W.2d 37, 40 (S.D.1984).

Initially, Corder argues that he was "in custody" for purposes of receiving Miranda protection during his initial encounter with the DCI agents. The test of custody or non-custody is whether, under the totality of the circumstances, a reasonable person would not believe himself free to go. Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The United States Supreme Court has further stated that the ultimate inquiry, based on the circumstances of each case, is whether there is a restraint on the suspect's freedom of movement "of the degree associated with a formal arrest". California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983).

In State v. McQuillen, 345 N.W.2d 867, 870 (S.D.1984), we stated:

It is fundamental that before the Miranda warning needs to be given, there must be a 'custodial interrogation' of the individual. The court in Miranda defined 'custodial interrogation' as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of freedom in any significant way. The Supreme Court has also stated that police officers are not required to give the Miranda warning simply because the questioning takes place in the station house or because the questioned person is a suspect; the warning is only required when there has been such a restriction on the person's freedom as to render him in custody. Oregon v. Mathiason, 429 U.S. 492, 50 L.Ed.2d 714 (1977). The court found no 'custodial interrogation' where the defendant went to the station house voluntarily, the questioning took place for one half hour behind closed doors, and defendant was told that he was a suspect.

This Court, in McQuillen, set out a number of factors to be examined in determining whether an interrogation is custodial or non-custodial, which includes: probable cause of arrest, subjective intent of the defendant, focus of the investigation, nature of the interrogator, nature of the suspect, time and place of the interrogation, nature of the interrogation, and purpose of the investigation.

Here, we conclude that Corder was not in custody at the time of the initial interview. He voluntarily drove his own vehicle to the police station. He was advised by the DCI agents that he was not under arrest at the time of the interview at the police station. There was no restraints of any kind placed upon Corder. The initial interview at the station concerned only the whereabouts of Corder during the early morning hours of December 4, 1988. The interviews were short, lasting from 10 to 20 minutes. It is further noted that at the time of the initial interview, the police did not have any probable cause to arrest Corder for the death of Hirocke. The police were simply using the only information they had, which was that Corder and Ernst were with the victim in the early morning hours of December 4th and apparently were the last persons that saw Hirocke alive. We are satisfied from the totality of the circumstances that Corder was not in custody, either at his residence or at the initial interview at the police station. Terry, supra. Furthermore, it must be noted that during the initial interview, none of Corder's statements contained inculpatory remarks. It is well established that before any claimed admission can be ruled involuntary, the accused must have said something inculpatory. State v. Gregg, 405 N.W.2d 49, 53 (S.D.1987). Having decided the custody issue against Corder, it follows that the blood on the hood of his car was properly allowed in as evidence by the trial court.

Corder also argues that the police officers did not discover the blood and hair on his car inadvertently. However, the inspection of Corder's vehicle was authorized under the plain view doctrine. Plain view requires that the evidence be discovered inadvertently, in other words, that the officers did not know in advance the location of the evidence. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). Here, no evidence whatsoever has been offered by Corder that the officers were expecting to find the incriminating (hair and blood) evidence on the vehicle. Agent Woehl testified that he had gone out to Corder's car for purposes of taking...