State v. Faller
| Decision Date | 26 March 1975 |
| Docket Number | No. 11357,11357 |
| Citation | 88 S.D. 685,227 N.W.2d 433 |
| Parties | STATE of Sough Dakota, Plaintiff and Respondent, v. Larry Gene FALLER, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Harry W. Christianson, Asst. Atty. Gen., Pierre, for plaintiff and respondent; Kermit A. Sande, Atty. Gen., Pierre, Gerald E. Bollinger, State's Atty., Sanborn County, on the brief.
Le Roy S. Lassegard, Merle D. Lewis, Mitchell, for defendant and appellant.
This case involves the admissibility of a confession obtained after a polygraph examinatoin. The record reveals that defendant had been questioned twice previous to the examination--once three days prior to the polygraph test and again the day before the test. He was given his Miranda warnings on both previous occasions but was not in any way restrained or in custody.
On the day of the examination the defendant voluntarily went from Woonsocket to the Brown Audit Company, a polygraph company in Sioux Falls, with Carl Regynski, Sanborn County Sheriff, and Jerry Lindberg, Special Agent for the South Dakota Division of Criminal Investigation. Upon arriving defendant was asked to fill out certain forms including a waiver agreement protecting Brown Audit Company from liability. He was taken to the examination room by Leo Brown and given the polygraph examination while Sheriff Regynski and Agency lindberg waited in another room.
When the test was completed, Brown indicated that the defendant was having difficulty passing. Defendant admitted that he had lied to Regynski and Lindberg earlier about his whereabouts on the night of the crime but that he had not lied in denying guilt. Brown responded that another set of questions verifying defendant's claim could be compiled. Defendant then made several statements to Brown indicating that he was indeed guilty. 1 Brown left the room and told Regynski and Lindberg that defendant 'was having problems' with the test. Lindberg then went to defendant, gave him his rights and received both an oral and written confession of the basis of which the state eventually obtained a conviction.
Defendant maintains that his confession cannot be considered voluntary and admissible by this court unless he received his Miranda warnings before and in connection with the lie detector examination. We agree.
There is little doubt in our minds that Brown's questioning here constitutes state action. He is bound by the restrictions of the federal constitution just as fulltime federal and state law enforcement officers would be. State v. Cullison, 1974, Iowa, 215 N.W.2d 309. Nor do we doubt that the investigation had gone past preliminary stages to the point where the police had focused on defendant as a prime suspect. 2 Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974; Escobedo v. Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.
In Schneckloth v. Bustamonte, 1973, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854, the United States Supreme Court, after reviewing a number of previous decisions, said:
'The significant fact about all of these decisions is that none of them turned on the presence or absence of a single controlling criterion; each reflected a careful scrutiny of all the surrounding circumstances. * * * While the state of the accused's mind, and the failure of the police to advise the accused of his rights, were certainly factors to be evaluated in assessing the 'voluntariness' of an accused's responses, they were not in and of themselves determinative.'
The situation a lie detector test presents can best be described as a psychological rubber hose. A defendant, when suddenly faced with the impersonal accuracy of a machine, may believe it is safer to confess and place himself at the mercy of the law rather than lie to the examiner and sacrifice any possibility of leniency. Under circumstances such as this we find it difficult to believe that a confession is voluntary unless it can be shown the defendant knows his constitutional rights and knows that his interests cannot be harmed by exercising those rights. When asked the right questions a defendant may confess if he believes he can be convicted by his own silence.
State v. Cullison, supra, is remarkably close to the case at hand. The defendant there was advised of her rights during questioning the day before the examination. On the day of the test she was driven from Council Bluffs, Iowa, to the office of a private polygraph examiner in Omaha, Nebraska. She was given her rights again during this trip.
The defendant made inculpatory statements to the examiner without receiving her Miranda warnings. The assistant state's attorney was then called in and she made the same confessions to him. She was then returned to Council Bluffs where she was advised of her rights. The Iowa Supreme Court held that the defendant's statements were properly suppressed.
While the confession actually used against defendant in this case was obtained after Agent Lindberg gave him the proper warnings, we conclude that it is tainted by the previous statements and cannot be considered voluntary. Westover v. United States, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974. Once a confession is made, we do not believe belated warnings can erase a defendant's belief that the damage done is irreversible and that further statements will help his chances for leniency.
We are, however, not yet prepared to suppress the defendant's confession in that the record before us is inconclusive on whether the defendant received his Miranda warnings before taking the polygraph test. At the suppression hearing when Mr. Brown was asked what defendant said after the test, defense counsel objected on the grounds that any statements were inadmissible since there was no showing that defendant had been given his warnings. The objection was overruled, and the tone was set for the rest of the proceedings that any warnings in connection with the examination were irrelevant. Thus, upon this record in which there are no facts to determine whether the defendant received his Miranda warnings before the examination, we remand this case to the trial court to determine whether defendant was given his warnings before submitting to the polygraph examination and, if so, whether he understood such warnings. SDCL 15--26--26 3 and 15--30--2, 4 we believe, give this court the authority to make such an order. Furthermore, since this court has the authority under SDCL 23--51--20 to reverse and remand for a new trial where the clarification we seek would certainly take place, we see no prejudice to either party in making this order. The other assignments of error are without merit, and clarification of this one issue may save the state and defendant the considerable task of a new trial.
We remand to the trial court for an evidentiary hearing to determine if the defendant was properly advised of his Miranda rights before being examined by Mr. Brown, and upon a finding by the trial court that the defendant was properly so advised the conviction of the defendant is affirmed.
Upon a finding by the trial court that the defendant was not properly advised of his Miranda rights the defendant's conviction is reversed and a new trial granted.
I agree that Mr. Brown was acting as an agent for the law enforcement officers and that he, or one of the officers, was bound to warn defendant of his Miranda rights before the polygraph examination was conducted. Although the state had ample opportunity to establish that the warnings were given, the record does not reveal that they were in fact given. I would reverse the conviction outright.
Granting the issue presented is not the same, the facts which were presented describing the procedure followed by the same polygraph examiner and also resulting in a confession which followed earlier Miranda warnings, it is impossible for me to discern a clear difference between this case and that of State v. Adkins, 1975, S.D., 225 N.W.2d 599. The trial court fully complied with the requirements of Jackson v. Denno, 1964, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205; State v. Thundershield, 83, S.D. 414, 160 N.W.2d 408; State v. Seal, 1968, 83 S.D. 455, 160 N.W.2d 643.
In addition to a full evidentiary hearing, the trial court had the benefit of the transcript of the preliminary hearing covering the same subject matter of compliance with the Miranda decision and determination of whether the statements made by the defendant were voluntary. On that record the trial court properly entered Findings of Fact clearly supported by that record.*
The majority opinion adds a new dimension to the Miranda warning citing as authority State v. Cullison, 1974, Iowa, 215 N.W.2d 309. The Iowa court, in that decision affirming the trial court's suppression of a confession, appears to establish a requirement that the forms used by polygraph examiners must restate the Miranda warnings. This ignores the general rule that the questions of whether a confession is voluntary and whether there has been a knowledgeable waiver of constitutional rights should be determined from the totality of the circumstances. To place such emphasis on repetitive statements of constitutional rights borders on...
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...that defendant was not in custody for polygraph was "attempt to have [court] submerge [its] intelligence"); State v. Faller, 88 S.D. 685, 227 N.W.2d 433, 435 (1975) ("situation a lie detector test presents can best be described as a psychological rubber hose"); Creeks v. State, 542 S.W.2d 8......
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...representations were equivalent to the—per State v. Faller—"psychological rubber hose" that a polygraphed person faces.8 88 S.D. 685, 688, 227 N.W.2d 433, 435 (1975). However, Tuttle cites no authority for this theory; therefore, the issue of voluntariness, insofar as his claim depends on t......
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