State v. Erickson

• Decision Date: 21 December 1994
• Docket Number: No. 18540,18540
• Citation: 525 N.W.2d 703
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Terry Merle ERICKSON, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 703

525 N.W.2d 703

STATE of South Dakota, Plaintiff and Appellee, v. Terry Merle ERICKSON, Defendant and Appellant.

No. 18540.

Supreme Court of South Dakota.

Argued Sept. 13, 1994.

Decided Dec. 21, 1994.

Mark Barnett, Atty. Gen., Todd A. Love, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Vance S. Myrabo, Canton, for defendant and appellant.

WUEST, Justice.

Terry Merle Erickson (Erickson) was convicted of having sexual contact with a child, a violation of SDCL 22-22-7. He was sentenced to eight years in the South Dakota State Penitentiary and ordered to pay all counseling costs for the victim. He appeals raising multiple issues. We reverse and remand for a new trial.

FACTS

The alleged sexual contact in this case occurred on May 10, 1992. Victim was ten years old at the time. Erickson was forty-five years old. On that date, according to the victim, victim, her mother, mother's live-in boyfriend (Erickson's brother), a friend of the family, and Erickson gathered together for a Mother's Day barbecue in mother's backyard. According to victim's testimony, Erickson, who was an overnight guest in the home, laid down on victim's bed to watch television with her and her younger sister. After the younger sister fell asleep, Erickson allegedly began to hug and kiss victim and reached under her nightgown penetrating her vagina with his fingers. Victim, claiming she had to use the bathroom, left her bed and told her mother, who was sleeping in a downstairs bedroom, what had happened. Victim's mother later admitted only to have heard about the kissing and hugging. Victim's mother told victim to return to her bed which she did. A short while later, victim's mother heard Erickson cross the hall to her daughters' bedroom. Victim's mother then went upstairs and told Erickson to leave the room and go sleep on the couch. Victim's mother cautioned victim not to tell anyone, allegedly for the purpose of saving victim from embarrassment. In December 1992, some seven months after the alleged incident, victim did tell someone. She told her father, who was divorced from her mother and who saw the children every other weekend according to a visitation schedule. Father immediately reported the incident to the authorities who began an investigation into the matter.

Upon questioning by the investigating police officer, Erickson admitted to having been at the victim's residence at a barbecue and watching television with the victim and her sister in their bedroom. However, he stated he believed this took place in June or July of 1992 rather than in May as the victim reported. Members of Erickson's family who testified at his trial maintained that Erickson had been with them on May 10, assisting with a Mother's Day cub scout banquet. When interrogated about the incident Erickson admitted having consumed twelve beers throughout the day before arriving at the police station shortly after 5:00 p.m. A breathalyzer test given to him immediately following the interrogation showed his alcohol level to be .20.

Erickson was charged with violation of SDCL 22-22-1(5), rape in the third degree, and, in the alternative, SDCL 22-22-7, sexual contact with a child. Prior to trial, Erickson moved to suppress three specific statements he made to the police on grounds they were not voluntarily made and were not relevant evidence. Erickson concluded this motion with a request to suppress any statements made by him to the police. At the pre-trial motions hearing, the prosecuting attorney indicated to the court the State intended to offer at trial statements Erickson made to the police officer.

The trial court questioned whether the three statements specifically requested to be excluded were statements or admissions. The trial judge called this the "first hurdle," indicating he would address the voluntariness issue depending upon whether Erickson's comments to the police were statements or admissions. In an attempt to address this "first hurdle," the trial judge requested both parties to submit briefs on the issue, stating that if he found in favor of the State, he would ask both parties, along with the police officer who questioned Erickson, back for another hearing to determine the voluntariness of these statements. Following submission of briefs, the trial court issued its memorandum opinion holding the statements were neither admissions nor a confession, but that the three statements would be excluded from use by the State in its case-in-chief. The court noted that these statements could become relevant and, therefore, admissible depending upon questioning at trial at which time a hearing would first be conducted outside of the jury's presence. The trial court issued its order specifically holding that the State could not use the three statements for its case-in-chief and could not use the statements for rebuttal evidence without first requesting a hearing outside the jury's presence to determine voluntariness. The focus of both the memorandum opinion and subsequent order of the trial court were the three specifically identified statements made by Erickson to the police officer. No testimony was ever taken during the pretrial process regarding the voluntariness of any of Erickson's statements made to the police officer.

At trial, the police officer who interrogated Erickson testified for the State and was asked several questions in the jury's presence regarding Erickson's interrogation, including whether Erickson was given a Miranda warning and whether or not he understood that warning. The officer testified that Erickson was given Miranda warnings and that Erickson had stated he understood them. The officer then testified, "I asked him if he wished to waive his rights and answer the questions." The State did not delve further into whether Erickson had, in fact, waived his rights but continued with direct examination of the officer. When the State began questioning the police officer regarding statements Erickson may have made during the interrogation, Erickson's attorney made a standing objection, without stating grounds, ¹ to the admission of any further statements made by the defendant to the officer. The trial court overruled this objection. The State then elicited testimony from the police officer derived from statements Erickson made to the police which placed Erickson in the victim's bedroom following a barbecue at the victim's residence. The State concluded its direct examination of the police officer with the following testimony:

Q: During your investigation and your interviews, whose statements that you took best supported [victim's] statement to you?

A: I would say the Defendant's in that he was there in the bedroom with her, as she has described to me, along with the other circumstances that [victim] has described to me.

Q: Did Mr. Erickson deny it?

A: No, he didn't.

ISSUE I: DID THE TRIAL COURT ERR IN FAILING TO REQUIRE A VOLUNTARINESS HEARING OUTSIDE OF THE JURY'S PRESENCE?

"Our standard of review regarding voluntariness of confessions or incriminating statements is well established. The State has the burden of proving beyond a reasonable doubt that such confessions or incriminating statements were freely and voluntarily made." 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)). If the trial court finds beyond a reasonable doubt that the incriminating statements were voluntarily made, that finding is binding upon this Court unless we find, from our review of the record, that the trial court's finding is clearly erroneous. Jenner, 451 N.W.2d at 716; State v. Albright, 418 N.W.2d 292, 297 (S.D.1988). "A finding is 'clearly erroneous' when after reviewing all of the evidence, we are left with a definite and firm conviction that a mistake was made." State v. Almond, 511 N.W.2d 572, 574 (S.D.1994) (quoting Selle v. Pierce, 494 N.W.2d 634, 636 (S.D.1993). In reviewing the trial court's finding on voluntariness, we consider the evidence in the light most favorable to the finding. State v. Headrick, 357 N.W.2d 268, 270 (S.D.1984); State v. Cowell, 288 N.W.2d 322, 325 (S.D.1980).

The trial court, over defense counsel's objection, allowed statements made by Erickson to the police to be admitted into evidence during the State's direct examination of the police officer. These statements were admitted in the presence of the jury. We believe that the trial court did find in favor of the State at this point and was required, under previous holdings of this court, to hold a hearing outside of the jury's presence to determine whether those statements were voluntarily made. Defendant argues he was so intoxicated the statements were not voluntary.

In State v. Thundershield, 83 S.D. 414, 422, 160 N.W.2d 408, 412 (1968), this court first adopted procedures by which the trial court must determine the voluntariness of confessions and incriminating statements before their admissibility into evidence. When a confession or an incriminating statement allegedly made by the accused is offered by the prosecution and objected to, the state has the burden of proving beyond a reasonable doubt the same was freely and voluntarily made. This proof must be made in an independent hearing of all relevant facts outside the presence of the jury. At this hearing the defendant may testify and be cross-examined as to the issue of voluntariness without jeopardy to or waiver of his right to remain silent at the trial. After hearing the facts the trial judge must finally and solely determine, as a matter of law, whether or not the confession or incriminating statement is, or is not, voluntary. This determination and the evidence upon which it is based should be made part of the record. If found to be involuntary the confession or statements may not be admitted at the trial as evidence. If found to be voluntary they may be admitted in evidence for...