State v. Dornbusch

• Decision Date: 16 January 1986
• Docket Number: No. 14944,14944
• Citation: 384 N.W.2d 682
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Arnold C. DORNBUSCH, Jr., Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 682

384 N.W.2d 682

STATE of South Dakota, Plaintiff and Appellee, v. Arnold C. DORNBUSCH, Jr., Defendant and Appellant.

No. 14944.

Supreme Court of South Dakota.

Considered on Briefs Jan. 16, 1986.

Decided April 2, 1986.

Clair B. Ledbetter, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Richard J. Neill, of Foley & Neill, Watertown, for defendant and appellant.

WUEST, Justice.

This is an appeal from a judgment of conviction following a guilty verdict of second-degree burglary, under SDCL 22-32-3. We reverse and remand for a new trial.

Roger Heathcote (Heathcote) owns and operates Powell's Gas and Grocery (Powell's) in Watertown, South Dakota. Heathcote has employed Pat Good (Good) for ten years and Steve Olson (Olson) for four years, both on a part-time basis. He considers them trustworthy. On Sunday, October 14, 1984, Good ran the station from 11:00 a.m. until 7:00 p.m. when Heathcote returned from visiting family members, at which time Good went home. Sometime shortly thereafter, Olson stopped by to purchase some groceries. Heathcote asked Olson to remain and wait on customers while he did some bookkeeping in the back room. During this time, Orien Egersett (Egersett), a regular customer, stopped to buy a gallon of milk. Egersett testified that he watched Heathcote place a stack of twenty-dollar bills in the till before his purchase was rung up by Olson. At approximately 7:30 p.m., two cars stopped at the station's gas pumps. While Olson and Egersett left for their respective homes, Heathcote went out to wait on the customers. Arnold C. Dornbusch, Jr. (appellant) got out of one of the vehicles and told Heathcote that he was only there to buy a bottle of soda pop. Appellant entered the station while Heathcote attended to the other customer. Heathcote testified that between one and three minutes after appellant entered the station, Good returned with an air tank. Heathcote made a mental note of appellant's license number. Appellant purchased a bottle of pop from Good and left the station just as Heathcote entered and said to Good, "I think we've been ripped off."

Heathcote opened the till to deposit money received from the other customer and found that all but two of the twenty-dollar bills he placed there earlier were missing, at which time he called the Watertown Police Department and gave them appellant's license number. It was later determined that the till was short by $168.75. An examination of the cash register tape revealed that a "no sale" was recorded between the sale of milk to Egersett and appellant's purchase of the soda pop, indicating that the till had been opened between those transactions. The next morning, appellant was arrested pursuant to a warrant and charged with second-degree burglary when he appeared at the Codington County Detention Center for an appointment with his parole officer.

Appellant was questioned by Watertown Police Detective Dennis Koch. He was given the standard Miranda warnings and stated that he understood his rights therein. He admitted being at Powell's on the previous evening but denied taking any money. Detective Koch asked appellant to take a polygraph exam and he refused. In the course of the interview, appellant said he would agree to pay the amount allegedly taken from Powell's even though he denied taking it, if he would be exonerated. Detective Koch testified he told appellant he did not want him to pay the amount unless he had taken the money, and any arrangement was a decision for the Codington County State's Attorney. When informed of appellant's offer, the state's attorney rejected it.

On November 6, 1984, a preliminary hearing was held in the matter and appellant was bound over for trial. On February 7, 1985, a Codington County jury found appellant guilty of second-degree burglary. On April 1, 1985, he was sentenced to ten years in the South Dakota State Penitentiary. Appellant appeals, contending: (1) the trial court erred in admitting his offer to pay the amount taken from Powell's in exchange for exoneration of the charge, and holding that SDCL 19-12-12 did not apply to the offer; (2) he is entitled to a reversal of his conviction because the State elicited testimony that he refused to take a lie detector test; and (3) he was denied his right to effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and Article VI, Sec. 7 of the South Dakota Constitution.

Prior to trial, appellant made a motion in limine to prohibit the State, under SDCL 19-12-12, from introducing evidence of his offer to pay the amount stolen from Powell's in exchange for exoneration. A two-page report prepared by Detective Koch was received in evidence for the court's consideration in ruling on the motion. ¹ After considering the report, the trial court held SDCL 19-12-12 inapplicable to appellant's offer. We agree.

SDCL 19-12-12 states, in pertinent part:

Except as otherwise provided in this section, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with, and relevant to, any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer....

The statute is taken verbatim from the December 1975 version of Rule 410 of the Federal Rules of Evidence, entitled "Inadmissibility of Pleas, Plea Discussions, and Related Statements." Under this rule, "[o]ffers to plead guilty and nolo contendere, and statements connected with and relevant to such pleas and offers ... are excludable in the interest of protecting the plea bargaining process, which is deemed essential, given the severe limits upon the resources now expended in the administration of criminal justice." Louisell & Mueller, Federal Evidence (1985 ed.) Sec. 184 p. 505.

Appellant argues that his offer to pay the amount stolen from Powell's constituted an offer to plead guilty. In United States v. Robertson, 582 F.2d 1356, 1366 (5th Cir.1978), the court developed a two-tiered analysis to determine the merits of such contentions. "[F]irst, whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion, and, second, whether the accused's expectation was reasonably given the totality of the objective circumstances." See also United States v. O'Brien, 618 F.2d 1234 (7th Cir.), cert. denied, 449 U.S. 858, 101 S.Ct. 157, 66 L.Ed.2d 73 (1980); United States v. Pantohan, 602 F.2d 855 (9th Cir.1979).

In Robertson, supra, the defendant claimed that admissions he and his confederate made to DEA agents who arrested them and their women friends in a parking lot were plea negotiations within the meaning of Federal Rule 410. Applying the test to the record, the court found that neither the defendant nor his confederate expressly offered to plead guilty in exchange for a government concession. Rather, the court found they were concerned only with the release of the women. They did not offer to plead guilty or even contemplate pleading guilty. Consequently, the court held:

Statements such as these, made in the absence of plea negotiations, are reliable, probative and constitutionally admissible for the jury's consideration. That their cooperation was prompted by a desire to exculpate the women does not transform their admissions into plea negotiations.

....

There is simply no indication in this record that Robertson and Butigan were negotiating a plea agreement....

582 F.2d at 1370.

In the present case, appellant's subjective intent is clear from the record. While steadfastly maintaining his innocence, he offered to pay the amount stolen in exchange for exoneration of the burglary charge. He neither offered to plead guilty nor did the State offer him any concessions in exchange for a guilty plea. "Before a discussion can be characterized as plea related, it must contain the rudiments of the negotiation process, i.e., a willingness by defendant to enter a plea of guilty in return for concessions by the State." People v. Friedman, 79 Ill.2d 341, 353, 38 Ill.Dec. 141, 148, 403 N.E.2d 229, 236 (1980); see also United States v. Jimenez-Diaz, 659 F.2d 562, 563 (5th Cir.1981); State v. Taylor, 336 N.W.2d 721 (Iowa 1983). Although appellant contends that his offer should be held to fall within the parameters of SDCL 19-12-12, we do not believe such a holding would further the ends of justice or protect the plea bargaining process. Accordingly, we affirm the trial court's decision on this issue.

At trial, during cross-examination of Detective Koch, appellant's trial counsel elicited testimony from Koch that he tried to persuade appellant to take a polygraph exam. ² Upon redirect examination of Koch, the State elicited testimony that appellant refused the test. ³ Appellant's trial counsel did not object to this testimony at trial. Appellant contends that notwithstanding the fact that the matter was raised initially by appellant's trial counsel, who failed to object when it was further delved into by the State, the admission of his refusal to take the polygraph test constituted plain error. We disagree.

Recently, in Sabag v. Continental South Dakota, 374 N.W.2d 349 (S.D.1985), we reaffirmed our position that the results of polygraph tests are not admissible in South Dakota criminal cases. See also State v. Muetze, 368 N.W.2d 575 (S.D.1985); State v. Watson, 248 N.W.2d 398 (S.D.1976); State v. O'Connor, 86 S.D. 294, 194 N.W.2d 246 (1972). It has also generally been held improper to admit evidence that an accused was unwilling to take a polygraph test. See, e.g., State v. Madsen, 125 Ariz. 346, 609 P.2d 1046 (1980); People v. Hogan, 183 Cal.Rptr. 817, 31 Cal.3rd 815, 647 P.2d 93 (1982); People v. Carter, 48 Cal.2d 737, 312 P.2d 665 (1957); State v. Zaehringer,...