State v. Dickey

• Decision Date: 23 April 1990
• Docket Number: No. 16819,16819
• Citation: 459 N.W.2d 445
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Robert Allen DICKEY, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 445

459 N.W.2d 445

STATE of South Dakota, Plaintiff and Appellee, v. Robert Allen DICKEY, Defendant and Appellant.

No. 16819.

Supreme Court of South Dakota.

Considered on Briefs April 23, 1990.

Decided July 25, 1990.

David D. Wiest, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on brief.

Drake A. Titze, Minnehaha County Public Defender, Sioux Falls, for defendant and appellant.

MILLER, Justice.

In this opinion we affirm convictions of first-degree rape and first-degree burglary holding that (1) defendant's admissions to police were voluntary, (2) evidence of other bad acts was admissible, and (3) there was sufficient evidence to support the convictions.

FACTS

C.S. and five other young women were living in a house off campus while attending Augustana College in Sioux Falls, South Dakota. C.S. testified that on August 18, 1988, she had gone to bed about 1:00 a.m. Sometime after 3:00 a.m., she remembers "feeling that someone was watching [her] or feeling that someone was in [her] bedroom[.]" She sat up and observed an individual standing at the foot of her bed. She could only make out a shadow or silhouette. She screamed and the intruder came over and covered her mouth. She tried to push him away, not sure what was happening. He told her, "shut up or I'll cut your throat, bitch. Shut up or I'll kill you. Close your eyes. You shouldn't leave your doors unlocked, bitch." Additionally, the intruder, told her to quit fighting and cover her face. She began to cry and he placed a pillow over her face.

Anal and vaginal penetration were achieved against C.S.'s will. Subsequent thereto, the intruder masturbated himself on her feet, ejaculating on her legs and the bed sheets. He asked C.S. where the washer and dryer were, to which she replied there weren't any. He then stated that he would have to take the sheets. She testified that he used the sheets to wipe off every item he had touched. He made C.S. take a shower. Before he left, he told her that she was not to contact the police and if she did he would come back and kill her. After he left, C.S. checked the house to see if all the doors were locked. She discovered that the sliding glass door at the rear of the house was open. C.S. woke up one of her roommates and informed her of what had happened and then reported the incident to the police.

During the course of the investigation, S.K., roommate of C.S., reported that approximately one week before the rape a man, who she later identified as Dickey, walked through the hedge into their backyard where she was sunbathing. S.K. testified that he was wearing only tennis shoes and running shorts. Immediately prior to this incident, two other roommates (P.G. and J.S.) observed this individual walk by the front of their house.

Sometime in September, S.K. (while in company with another roommate, D.N.) again observed Dickey at a local dance bar in Sioux Falls. Conducting their own investigation, they visited and danced with Dickey in order to get a better look at him.

Two days later, C.S., S.H., S.K., D.N., and J.S. observed Dickey in the Augustana library (he was not a student). C.S. testified that when he saw her he looked "very surprised. Shocked."

Dickey was later indicted and convicted of first-degree burglary and first-degree rape. He appeals the convictions.

DECISION

ISSUE I

WHETHER DICKEY'S ADMISSIONS DURING POLICE INTERROGATION WERE

COERCED AND INVOLUNTARY.

Dickey primarily focuses on an interrogation conducted by police on September 16, 1988. It is undisputed that Dickey was not "in custody" during the interrogation and that he was not given the Miranda warnings. The focus of our discussion addresses whether the admissions and statements of Dickey were the product of police coercion, i.e., were they voluntary? See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Dickey asserts that promises were made to him and used to coerce him during the September 16, 1988, interrogation. Dickey refers us to the following statements during the interrogation by Detective Thompson which he claims are incidents of coercion:

1. "I thought we could handle it this way."

2. "I'm trying to get you help."

3. "This is not a big deal, but we want to get you some help...."

4. "What I'm interested in is getting you counseling, getting you help with this one problem."

5. "... I'm not interested in throwing you in jail, ..."

6. "I can lead and guide you and get you help through counseling or whatever you need or whatever the experts think you need."

7. "... before I can go to somebody and get you some help, I have to know exactly what happened...."

8. "I've gone out on a limb, I've tried to help you with this."

9. "... tell me what happened in the house and get on with life."

10. "... giving you a second chance, sticking my neck out with my superiors to give you a second chance."

The State must prove beyond a reasonable doubt that such statements or confessions were freely and voluntarily made. See State v. Jenner, 451 N.W.2d 710, 716 (S.D.1990) (citing State v. Faehnrich, 359 N.W.2d 895, 898 (S.D.1984); State v. Janis, 356 N.W.2d 916, 918 (S.D.1984)). At the suppression hearing, the trial court found that the statements made by Dickey were voluntary. That finding is binding on us and will not be overturned unless we determine it to be clearly erroneous. Jenner, supra; Faehnrich, supra.

The test for determining voluntariness of incriminating statements or confessions requires a review of the totality of the circumstances. Jenner, supra; State v. Hartley, 326 N.W.2d 226 (S.D.1982); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (confession is voluntary if it is made freely and unconstrainedly).

As the United States Supreme Court has noted, "[t]he line between proper and permissible police conduct and techniques and methods offensive to due process is, at best, a difficult one to draw, particularly in cases ... where it is necessary to make fine judgments as to the effect of psychologically coercive pressures and inducements on the mind and will of an accused." Haynes v. Washington, 373 U.S. 503, 515, 83 S.Ct. 1336, 1344, 10 L.Ed.2d 513, 521 (1963); Miller v. Fenton, 796 F.2d 598 (3rd Cir.1986).

As stated earlier, to determine the voluntariness of a confession, the court must consider the effect the totality of the circumstances had upon the will of the defendant. Miller, supra. The question in each case is whether the defendant's will was overborne. Id. The factors to be considered include: The youth of the accused; his lack of education or his low intelligence; lack of any advice to the accused of his constitutional rights; the length of detention; the repeated and prolonged nature of questioning; and, the use of physical punishment such as the deprivation of food or sleep. Hartley, supra; Schneckloth, supra.

It is generally recognized that the police may use some psychological tactics in eliciting a statement from a suspect. Miller, supra at 605. For example, an interrogator may play on the suspect's sympathies or explain that honesty might be the best policy for a criminal who hopes for leniency from the state. Rachlin v. United States, 723 F.2d 1373 (8th Cir.1983); Miller, supra. These ploys may play a part in the suspect's decision to confess, but, so long as that decision is a product of the suspect's own balancing of competing considerations, the confession is voluntary. Miller, supra; Hartley, supra. Therefore, the question we must answer is not whether the interrogators' statements were the cause of Dickey's confession, but whether those statements were so manipulative or coercive that they deprived Dickey of his ability to make an unconstrained, autonomous decision to confess. Id.

We fail to see how the remarks of the detective could be construed to be coercive. His obvious intent was to seek professional help for Dickey assuming it was needed. In fact, Dickey did receive such help at a later date. Additional evidence of voluntariness is found in the testimony of Detective Thompson. He testified that at one point during the interrogation he became frustrated with the interview and told Dickey it was over. He indicates that Dickey said, "no, no" and went over to the door and blocked Detective Thompson's exit, stating that he did not want the interview to end. Dickey admitted this on cross-examination.

Finally, we find most interesting and compelling the following colloquy which took place between Dickey and the prosecutor during cross-examination at trial.

Q Now, when you spoke to Detective Thompson on September 16th, you did so voluntarily, didn't you?

A First meeting?

Q Second meeting, I guess is what I'm talking about.

A Yes.

Q When had you first--you talked to Agent DeVaney, then you talked to Detective Thompson?

A Okay. Yeah. Second time.

Q That was all voluntary on your part?

A Yes, sir.

Q Nobody forced you to do it?

A No.

Obviously, Dickey did not feel coerced!

The trial court found Dickey to be reasonably intelligent, to have the substantial capacity to resist pressure, that the conduct of the police was not coercive but meant to suggest that telling the truth would be in his best interest, and that in addition under the totality of the circumstances his will had not been overcome and his statements during the September 16 interview were voluntary. "In reviewing the trial court's findings on voluntariness, we consider the evidence in the light most favorable to the finding." Jenner, supra at 716. We hold that this finding by the trial court is not clearly erroneous. Jenner, supra. The proper factors were considered and a determination made in accordance therewith. The trial court did not err in holding that the statements were voluntary and admissible.

ISSUE II

WHETHER EVIDENCE OF PRIOR ACTS SHOULD HAVE BEEN EXCLUDED

FROM EVIDENCE AS IRRELEVANT AND PREJUDICIAL.

Dickey had...