State v. Frazier

• Decision Date: 21 February 2001
• Docket Number: No. 21375.,21375.
• Citation: 622 N.W.2d 246,2001 SD 19
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Dawn Marie FRAZIER, Defendant and Appellant.
• Court: South Dakota Supreme Court

622 N.W.2d 246
2001 SD 19

STATE of South Dakota, Plaintiff and Appellee,
v.
Dawn Marie FRAZIER, Defendant and Appellant

No. 21375.

Supreme Court of South Dakota.

Argued October 25, 2000.

Decided February 21, 2001.

622 N.W.2d 251

Mark Barnett, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, South Dakota, for plaintiff and appellee

Bruce A. Hubbard, Hansen, Hubbard & Swanson, Sturgis, South Dakota, for defendant and appellant.

GILBERTSON, J.

[¶ 1.] Dawn Frazier (Frazier) was convicted by a jury for the kidnapping and felony murder of Morning Star Standing Bear and sentenced to life imprisonment. She appeals her conviction and sentence. We affirm in part and reverse in part.

FACTS AND PROCEDURE

[¶ 2.] On June 15, 1999, Frazier, Chaske White, Robert Horse, and Jerry Horse were partying at another friend's home in Rapid City. During the course of the evening, they left the house and went to a bar. While at the bar, Jerry Horse picked up a young woman with whom he was acquainted, Morning Star Standing Bear. When the bar closed, Standing Bear accompanied the group back to the friend's home for additional partying. Standing Bear was visibly intoxicated at this point and passed out for a short time at the friend's home. Eventually, Frazier, White, Robert Horse, Jerry Horse and Standing Bear left the house in Frazier's vehicle.

[¶ 3.] After dropping Jerry Horse off at his home, the remaining four continued to drive around the area of north Rapid City. By this time, Standing Bear was nearly unconscious.¹ Ultimately, the group stopped on a gravel road outside Rapid City. At this point, Standing Bear was removed from the car by White and Robert Horse where she was kicked, beaten and stabbed numerous times. Her injuries were caused, in part, by a car jack and a broken beer bottle. As a result of these injuries, Standing Bear died. Her naked

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body was dragged into a ditch where it was discovered the next morning

[¶ 4.] The next day, law enforcement interviewed Jerry Horse regarding his involvement with Standing Bear. Through this interview, law enforcement was lead to Frazier. In the evening hours of June 17, 1999, Department of Criminal Investigation (DCI) agent Jones located Frazier at the home of White's mother. He requested that Frazier accompany him to the DCI office. Frazier agreed and drove her own car there.

[¶ 5] Upon her arrival, she was taken to a conference room where she was interviewed by Jones, beginning at 7:55 p.m. At the commencement of the interview, Jones read Frazier her Miranda rights. Frazier waived those rights; the interview lasted approximately 50 minutes. The first interview, the Miranda warning and Frazier's waiver were not recorded.² A second interview began at 9:30 p.m. No Miranda warnings were given at the commencement of this second interview, which lasted until 11:10 p.m. Jones questioned Frazier a third time, beginning at 1:45 a.m. At this time, Jones reminded Frazier of her Miranda rights, which had previously been read to her. Frazier stated that she understood her rights and would continue speaking with Jones. The third interview lasted 28 minutes. At 2:20 a.m., Jones again questioned Frazier, this time for approximately 15 minutes.

[¶ 6.] A final interview between Frazier and Jones commenced at 2:40 a.m. Prior to the final interview, Frazier told Jones that she was afraid of White and possible retaliation by him against her. To ease her fears and support Jones' assertion that White would be incarcerated for his participation, Jones arranged for White to be escorted in handcuffs past the open door of the room where Frazier was being questioned.

[¶ 7.] Thereafter, Frazier gave a detailed description of what had happened during the early morning hours of June 17, 1999. She claimed that White directed her as to where she should drive. Frazier claimed that she repeatedly requested to go home because she was tired, but White refused. She believed that Robert Horse and possibly White were going to have sex with Standing Bear. White instructed Frazier to stop the car on the gravel road where Standing Bear was killed. Frazier claimed that White ordered her to stay in the car and not watch what White and Robert Horse were doing. She stated that while looking in the rear view mirror, she witnessed White and Robert Horse beating Standing Bear. Frazier got out of the car on a number of occasions, once to open the trunk of her car, several times to urge White and Robert Horse to "hurry up," each time returning to the car upon threats from White. Each time she left the confines of the car, she witnessed further beating, but according to her statement, she did not actually participate. Finally, after Standing Bear's lifeless body was dragged across the road into a ditch, Frazier drove White and Robert Horse back into Rapid City.

[¶ 8.] Frazier was charged with the kidnapping and felony murder of Standing Bear. Prior to trial, Frazier made a motion to suppress the statements made to law enforcement, including her consent to the search of her residences.³ This motion was based on the fact that Frazier was not read her Miranda rights by law enforcement at the commencement of each interview. It was also based on alleged deception by law enforcement, and Frazier's lack of food and sleep.

[¶ 9.] In its findings of fact, the circuit court found that Frazier had been read her Miranda warnings, that she understood her rights, and that she agreed to

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waive those rights and answer Jones' questions. The circuit court also found that Frazier was cordial and polite and was not under the influence of alcohol or drugs, but she was "likely tired" after working during that day. According to the circuit court's findings of fact, Frazier was reminded of her Miranda rights at the beginning of the third interview. Frazier indicated a willingness to continue talking with Jones. Based on these facts, the court found that Frazier knowingly, freely and voluntarily waived her right to remain silent and her right to have an attorney present. The court also found that Frazier's statements to law enforcement personnel and consent to search were, beyond a reasonable doubt, given freely and voluntarily

[¶ 10.] Frazier also challenged the admission of two taped interviews between Jerry Horse and law enforcement personnel. Because Jerry Horse was unavailable to testify at trial,⁴ the State sought to admit the interviews under SDCL 19-16-35, the residual exception to the hearsay rule. Frazier claimed these statements did not exhibit "circumstantial guarantees of trustworthiness" as required under the evidentiary rule. Frazier argued that the two statements often contradicted each other, the statements were not made under oath, and the statements pertained to a period during which Jerry Horse was highly intoxicated. In addition, Frazier claimed that the admission of the statements violated her rights under the Confrontation Clause of the United States Constitution. The circuit court found that Jerry Horse's statements were the best evidence of how Standing Bear came to be in Frazier's car. In addition, the court found that the statements were not particularly incriminating as to Frazier, merely reiterating much of her own statement. For those reasons, the court allowed the State to introduce those statements.

[¶ 11.] On January 14, 2000, the jury convicted Frazier on both counts. The circuit court sentenced her to life imprisonment on both counts with sentences to run concurrently.⁵ She now appeals, raising the following issues:

1. Whether the circuit court erred in denying Frazier's motions to suppress her statements and the subsequent searches of her car and residences.

2. Whether the circuit court erred by admitting out of court statements of Jerry Horse into evidence.

3. Whether the circuit court erred in giving a jury instruction on flight or concealment.

4. Whether the trial court erred in denying Frazier's motion for judgment of acquittal.

5. Whether South Dakota's felony murder statute is unconstitutional as cruel and unusual punishment.

ANALYSIS AND DECISION

[¶ 12.] 1. Whether the circuit court erred in denying Frazier's motions to suppress her statements and the subsequent searches of her car and residences.

[¶ 13.] We review a trial court's decision on a motion to suppress under a de novo standard. State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488. "Although the underlying circumstances surrounding an interrogation are factual determinations, ultimately voluntariness is a legal question, requiring independent judicial review." Id. (citing Miller v. Fenton,

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474 U.S. 104, 116, 106 S.Ct. 445, 452-53, 88 L.Ed.2d 405, 414-15 (1985)).

[¶ 14.] This issue can be further divided into two sub-issues: (a) whether the Miranda rights given to Frazier had become stale by the time of her confession; and (b) whether Frazier's waiver of those rights was given in a free and voluntary manner.

[¶ 15.] A. Whether the Miranda rights read to Frazier had become stale by the time of her confession.

[¶ 16.] Miranda warnings are required whenever a suspect is in police custody. State v. Gesinger, 1997 SD 6, ¶ 17, 559 N.W.2d 549, 552. The circuit court concluded that from the time of her arrival at the DCI office, Frazier could reasonably have believed that she was not free to leave. There is no dispute that Frazier was read her Miranda warnings upon arrival at the DCI office, and reminded of those rights before commencement of the third interview at approximately 1:45 a.m. Frazier argues that by the early hours of the morning of June 18th, the prior warnings had grown "stale," which would require law enforcement to repeat the warnings. We do not agree.

[¶ 17.] Initially, "once the mandate of Miranda is complied with at the threshold of the interrogation by law enforcement officers, the warnings need not be repeated at the beginning of each...