State v. Dubois, 12681

Decision Date24 December 1979
Docket NumberNo. 12681,12681
Citation286 N.W.2d 801
PartiesSTATE of South Dakota, Plaintiff and Appellant, v. Daniel J. DuBOIS, Defendant and Appellee.
CourtSouth Dakota Supreme Court

Rodney C. Lefholz, Pennington County Deputy State's Atty., Rapid City, for plaintiff and appellant; Lori Wilbur, Asst. Atty. Gen., and Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

Allen G. Nelson, of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for defendant and appellee; Ronald Clabaugh, of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, on the brief.

DOBBERPUHL, Circuit Judge.

Plaintiff, State of South Dakota, has appealed from an order of the Circuit Court, Seventh Judicial Circuit, that granted defendant's motion to suppress certain evidence. Defendant, Daniel DuBois, was charged with the crime of first-degree manslaughter. We reverse and remand.

Defendant is a Sergeant in the United States Air Force. He joined the Air Force on June 2, 1972, has been in the service since that time, and presently plans on making the service his career. His father was a member of the Air Force for twenty-one years. Defendant's superiors have testified that defendant's past military record is impeccable. He has received certain high honors in the past. Defendant has been stationed at Ellsworth Air Force Base near Rapid City since January 3, 1977.

Michele Earhart, a twelve-month-old baby girl, passed away on the night of September 30, 1977. An autopsy of the body revealed the cause of death to be a ruptured intestine complicated by a hemorrhage around the base of the brain. Expert medical testimony indicated that either injury by itself probably would have caused the death.

On October 1, 1977, Deputy Sheriff Phillips visited defendant and his wife at their residence because it had been discovered that they had been babysitting the child the day it died. Neither defendant nor his wife gave any indication that they were involved in any way with the child's death. The parents of the deceased child consequently became the primary suspects.

Defendant's wife voluntarily called the sheriff's office the next day, October 2, 1977, and indicated that she and defendant had not told the entire story to the deputy sheriff the day before. As a result of this conversation, defendant later informed Deputy Sheriff Holloway that he had accidentally stepped on the baby's stomach on the afternoon of the day it died. Defendant was advised that a criminal investigation was being conducted concerning the child's death and that he might be asked at a later date to take a polygraph examination. Defendant's wife contends that at this point she asked Deputy Sheriff Phillips if she and defendant were in any trouble and if they needed an attorney. She claims that Deputy Phillips told her "no." However, neither Deputy Sheriff Phillips nor Deputy Sheriff Holloway recalls any such conversation.

Because Deputy Phillips felt that it was not possible for the accident to have occurred in the manner in which defendant described it, he arranged, with the permission of defendant, for an interview with defendant and his wife at the DuBois' residence on October 14, 1977. Prior to attending this interview, Deputy Phillips purchased a doll of approximately the same size as the deceased child for the purpose of aiding in a demonstration of how the child had been injured.

Following this interview and demonstration on October 14, 1977, Deputy Phillips indicated to defendant that he still had some doubts as to whether or not defendant was telling the truth. Neither before, during, or after this demonstration was defendant informed of his Miranda rights. Deputy Phillips asked defendant if he would, of his own free will, come down to the sheriff's office and voluntarily submit to a polygraph examination so that the matter might be cleared up. Defendant indicated that he would voluntarily do so. Defendant claims that following this conversation his wife once again raised the question whether or not they were in trouble and whether or not they needed an attorney. Defendant then voluntarily drove his own car to the sheriff's office, accompanied only by his wife.

When defendant arrived at the sheriff's office he was not placed under arrest or any type of physical restraint. He voluntarily went into the polygraph room, accompanied only by the polygraph examiner. The examiner then explained to defendant how the polygraph worked and read him his Miranda rights from a prepared card. Defendant contends that when the examiner read the portion of the Miranda warning pertaining to an attorney, defendant then asked the question, "What about an attorney?" Defendant further contends that the only response he received to this question was that a lawyer would be appointed for him by the court if he could not afford one. The polygraph examiner testified that this conversation concerning an attorney could possibly have taken place, but that he did not recall such a conversation. The examiner did recall specifically informing defendant of each of his rights under the Miranda ruling and stopping after each one to inquire of him whether or not he understood it. The examiner testified that defendant indicated after each right that he understood it. Defendant was thus advised prior to the test of his right to remain silent, and there was evidence that defendant was informed not once but twice that he did not have to take the test if he chose not to, and that no one could force him to take the polygraph examination. The examiner testified that he felt very strongly that everyone who takes a polygraph examination should be informed in advance that they cannot be compelled to do so; that if they submit to such an examination, they do so of their own volition, and that he told defendant of this right.

Prior to submitting to the polygraph examination, defendant voluntarily signed an agreement, State's Exhibit No. 9, which reads as follows:

I, Daniel J. DuBois do hereby voluntarily, without duress, coercion, promise of reward or immunity, submit to a Polygraph (Lie Detector) examination, having had said technique explained to my satisfaction; and hereby release Mel Larson, Sheriff and the Examiner administering this examination from all claims resulting from, or arising out of this examination.


/s/ Dave Bintliff


3:51 p. m.

/s/ Daniel J. DuBois


Defendant contends that prior to signing State's Exhibit No. 9 above, he asked Deputy Bintliff, the polygraph examiner, about calling his uncle, a sheriff in North Dakota. Deputy Bintliff testified that he does recall defendant saying something to the effect that he should call his uncle to see what he should do or words to that effect. When asked at the suppression hearing how he responded, Deputy Bintliff testified that he did not respond at all, that "there was no request or anything." No one at any time told defendant that he could not seek an attorney or other advice, and no one attempted to restrain him or otherwise prevent him from doing so.

The only persons in the examination room during the testing were defendant and the polygraph examiner. They were in the testing room about one and one-half to two hours, but this includes the preliminary explanation of how the exam works, the reading of defendant's rights, and the preliminary "pre-test" interview consisting of gathering medical and historical information about defendant, as well as the actual testing itself.

At some point during the examination, defendant asked if he could have a glass of water. The examiner asked if he would wait until the test was over, because defendant had already been hooked up to the polygraph machine.

After the polygraph examination, the examiner left the room to analyze the results, leaving defendant alone in the examination room. When the examiner returned, he told defendant that he had failed the test miserably and asked him if there was something about which he had not told the truth. The examiner indicated that it was necessary for defendant to tell him the truth in order for them to clarify the test results. Defendant then became emotional and made certain inculpatory statements indicating that his stepping on the child may not have been accidental. The examiner left defendant alone in the room once again in order to get an officer who could take defendant's statement. Defendant was asked prior to the taping of his statement if it would be all right with him if it was taped. He was also asked, prior to giving his statement, if he had been advised of his constitutional rights and if he was giving the statement of his own free will. Defendant answered "yes" to all three questions.

Defendant then gave an incriminating verbal statement that was tape-recorded and later transcribed. Defendant was placed under arrest at the conclusion of his statement.

By an order dated December 7, 1978, the trial court suppressed any inculpatory statements made by defendant at his residence on October 14, 1977, in the presence of Officers Holloway and Phillips; any inculpatory...

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12 cases
  • State v. Iron Necklace
    • United States
    • South Dakota Supreme Court
    • September 21, 1988
    ...this court must consider the evidence in the light most favorable to support the trial court's decision. Moves Camp, supra; State v. DuBois, 286 N.W.2d 801 (S.D.1979); State v. Kiehn, 86 S.D. 549, 199 N.W.2d 594 (1972). Once the trial court has entered a finding, that finding is binding on ......
  • State v. Jenner
    • United States
    • South Dakota Supreme Court
    • March 26, 1990
    ...opinion authored by Justice Fosheim, joined by then Chief Justice Wollman and Justices Dunn, Morgan and Henderson). State v. DuBois, 286 N.W.2d 801 (S.D.1979) (a unanimous opinion authored by Circuit Judge Dobberpuhl, sitting for Henderson, J., disqualified, joined by then Chief Justice Wol......
  • Coon v. Weber, No. 22060
    • United States
    • South Dakota Supreme Court
    • May 1, 2002
    ...of voluntariness of a confession is a factual matter for the trial court. State v. Phipps, 318 N.W.2d 128, 131 (S.D.1982); State v. DuBois, 286 N.W.2d 801 (S.D.1979); State v. Lyons, 269 N.W.2d 124 (S.D.1978). "The test for determining voluntariness of incriminating statements or confession......
  • State v. Caffrey
    • United States
    • South Dakota Supreme Court
    • April 6, 1983
    ...the defendant knows his constitutional rights and knows that his interests cannot be harmed by exercising those rights. In State v. DuBois, 286 N.W.2d 801 (S.D.1979), we held voluntary certain inculpatory statements made after a polygraph examination. In doing so, however, we pointed out th......
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