State v. Graves

• Decision Date: 19 December 1968
• Docket Number: No. 10549,10549
• Citation: 83 S.D. 600,163 N.W.2d 542
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Jeremiah GRAVES, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 542

163 N.W.2d 542

83 S.D. 600

STATE of South Dakota, Plaintiff and Respondent, v. Jeremiah GRAVES, Defendant and Appellant.

No. 10549.

Supreme Court of South Dakota.

Dec. 19, 1968.

Rehearing Denied Feb. 24, 1969.

Frank L. Farrar, Atty. Gen., Michael Strain and Edward M. Blando, Asst. Attys. Gen., Pierre, R. James Brennan, State's Atty., Rapid City, for plaintiff and respondent.

Kelton S. Lynn, Rapid City, for defendant and appellant.

BIEGELMEIER, Judge.

Defendant was prosecuted for murder, convicted of first degree manslaughter and ha appealed from his sentence. To the information charging defendant with causing the death of one Perry Stevens by strangulation, defendant entered his plea of not guilty and not guilty by reason of insanity.

The facts are summarized generally from those set out in appellant's brief. Defendant, a Negro, was an airman stationed at Ellsworth Air Force Base near Rapid City, South Dakota, and had been a member of the Air Force for about six years. During this time he had been assigned to Air Police duty guarding airplanes in Puerto Rico. During that time he had some difficulties because his present wife had become pregnant prior to their marriage and he had married her over objections of his mother. He consulted an Air Force psychiatrist upon whose recommendation he was relieved of his Air Police duties and placed in a nonsensitive duty in the Commissary in which he was engaged at the time of the alleged crime. He had two daughters who were living with him and his wife in Rapid City. Upon learning through a mutual acquaintance that Perry Stevens, also a Negro age 87 and a long-time respected resident of Rapid City, was desirous of meeting colored people, he visited Stevens in July 1966. Stevens owned a house next door to the home in which he resided and after some discussion Graves and his family moved into that house. At first a friendship developed in which Mrs. Graves did some favors for Stevens and defendant did some repair work on the rented house. Stevens paid defendant for that work. Stevens stated that he was going to leave the house to one of defendant's children. Defendant testified that he tried to talk him out of that as they did not plan to make Rapid City their home. However, sometime later Stevens apparently changed his mind and said he was not going to leave the property as indicated and thereafter the relationship between them worsened. The agreed rental was $79.50 a month and on the afternoon of January 2, 1967 Graves went to Stevens' house to pay the rent and discussed reducing it. Defendant testified Stevens became upset, stated he could not do it and that as defendant had four $20 bills with him he told Stevens he would come back later on when he had change. He would then like to know Stevens' decision on the rent reduction request.

After returning from a movie about 10:30 p.m. with the $79.50 in change, Graves testified he went to the Stevens house to pay it and again brought up the rent reduction and an argument ensued. Graves further testified Stevens got belligerent saying that the family had done nothing for him, and the next thing he remembered was that they were on the floor in the living room and he had his belt around Stevens' neck. Graves then got up and went home. Without then telling his wife what he had done he asked if she heard some screaming which she said she did not. He told her Stevens wanted him to go to a drug store on an errand. She objected to this. He sat and watched television for a time, but he finally told her that he would put his car in the garage. This was after midnight. He then went back to the Stevens house and put Stevens in the trunk of his car, drove out west of Rapid City to an area he had visited before called Thunderhead Falls. On the way out he thought he heard noises or voices calling him. He stopped the car, opened up the trunk and dragged Stevens on the snowy road by pulling his belt which was around Stevens' neck and then threw him off the side of the road down the cliff. He arrived back home about 1 a.m. and went to bed alone.

The next morning his wife asked him what was wrong. He told her. About 11 a.m. he took the family to the airport to fly to their home in Louisiana. He then drove to the police station as he wanted to give himself up and tell them everything that happened. He waited for about 10 minutes as the lady receptionist was talking to people in line ahead of him and told her he wanted to report a murder. She referred him to a detective Zakinski who was standing nearby to whom he said he would like to talk to someone about murdering a man last night. Zakinski said, 'what did you say' and Graves said, 'I killed my landlord.' Zakinski spoke to Detective Boze who replied he heard the statement and the three of them walked into Boze's office. Boze asked defendant his name, where he lived, where he was employed and the landlord's name, whereupon Boze testified defendant said:

"I don't know for sure if he is dead. But, he probably is by now. I strangled him' and, I said, how and he said with a belt and I said, where and he said, at his home at 615 Chicago Street and I said, when and he said about midnight and I said, where is he now and he said he is out on the Thunderhead Falls Road and I said, about where and he said, about two hundred yards from the bridge on the left side.'

Boze called the sheriff's office on the phone and advised them of the circumstances and asked them if they would send a unit to check Thunderhead Falls Drive because it was outside the police department's jurisdiction. Boze then asked a secretary to come into his office where Graves was advised of his rights and further questioned. Defendant was placed in a cell of the city jail while it was typed, after which he was returned to the office; he then read it over and after making several changes signed it. He asked whether Stevens had been found and was advised he had been; he then asked if he was dead and was told he was. Defendant said he was not mistreated or abused nor did he claim anyone of the police department or sheriff's office ever mistreated or abused him.

After some conferences, the trial judge, out of the presence of the jury, heard evidence relative to the voluntariness of Exhibit 1, headed Statement of Jeremiah Graves, much of it being directed to the claimed inability of Graves to understand or waive his rights because of his claimed emotional state. Over objection the judge concluded to admit it and permit defendant's counsel to go into all the circumstances in front of the jury. Upon resumption of the trial before the jury, the Statement was offered and received in evidence without objection. Defendant

'makes no contention that his statements at the police station that he wanted to report a murder or that he had killed his landlord or as to where his landlord's body had been disposed of are in any way inadmissible. He does, however, urge that the statement he gave during his interrogation while in the custody of Detective Sergeant Boze'

was inadmissible under Miranda v. Arizona for the reason he was not properly advised of nor did he affirmatively waive his constitutional rights to have counsel, and he could not have intelligently waived his constitutional rights under the condition of mental stress when he went to the police station to turn himself in and 'get it off my chest' as he testified.

Appellant's brief presents this issue sharply by stating:

'While it is true that Detective Sergeant Boze did advise the Defendant of his constitutional rights and that when asked if he understood them, the Defendant replied that he did (State's Exhibit 1, page 1), nevertheless there was no showing that the Defendant, nor in fact the police officer, was aware of the fact that under the holding in Miranda, a Defendant, prior to being interrogated, must affirmatively waive his right to counsel.'

We believe the trial court did not err in admitting the Statement. There was compliance with Miranda for Graves was sufficiently warned and advised at that time he could remain silent--that is, he did not have to answer if he did not wish to do so; he could consult an attorney, that one would be appointed by the court to represent him if he could not afford it and that anything said could be used against him in court and that he knowingly and affirmatively waived those rights. He was specifically asked if he understood this and answered yes, and also was asked, after being advised of these rights, if he was willing to answer the questions. He said, 'I will answer what I can.' This was not silence but an affirmative indication of his decision. He was again asked if he understood that he could refuse to answer any of the questions and he answered yes. Those answers with knowledge of his rights showed a continuing willingness to tell his story. He was a high school graduate, a former member of the Air Police and shown to be a satisfactory employee in the stocking and marking goods section of the Air Force Commissary. All the evidence of the prosecution and defense was that defendant of his own free will went to the police station to give himself up and tell the officials what he had done. Both the oral statements he made and the oral statements thereafter reduced to writing were of his own volition and the purpose of his visit.

Further, the opinions of the United States Supreme Court in Miranda v. State of Arizona; Vignera v. State of New York; Westover v. United States; and State of California v. Stewart, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, showed each defendant was in custody and had been deprived of his liberty during the time the confessions were obtained. Vignera had been 'picked up' by the police and taken to one police headquarters and then transferred to another where he was questioned as to a robbery. It was not shown he was advised of his right to counsel before making...