State v. Holland

• Decision Date: 14 March 1984
• Docket Number: No. 14195,14195
• Citation: 346 N.W.2d 302
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. David HOLLAND, Defendant and Appellee.
• Court: South Dakota Supreme Court

Page 302

346 N.W.2d 302

STATE of South Dakota, Plaintiff and Appellant, v. David HOLLAND, Defendant and Appellee.

No. 14195.

Supreme Court of South Dakota.

Argued Jan. 18, 1984.

Decided March 14, 1984.

Jon R. Erickson, Asst. Atty. Gen., Pierre, for plaintiff and appellant; Mark V. Meierhenry, Atty. Gen., Pierre, Barbara Jo Anderson, Legal Intern, Pierre, on brief.

Thomas M. Tobin of Maynes, Tonner, Maynes & Tobin, Aberdeen, for defendant and appellee.

DUNN, Justice.

This is an appeal by the State from an order of the trial court suppressing certain evidence in a prosecution for second-degree murder and manslaughter. We affirm in part and reverse in part.

During the early morning hours of July 23, 1981, twenty-three-month old Joseph Lange (Joseph) was taken to the emergency room of an Aberdeen, South Dakota, hospital by David Holland (defendant). After several resuscitation attempts by hospital staff, Joseph was declared dead. Death was attributed to anoxia, although bruises to Joseph's face, back, and chest were also present. At the time of this incident, defendant was living with Joseph and Joseph's mother in an Aberdeen apartment.

While at the hospital, defendant was questioned by Aberdeen Police Captain L.C. Thompson (Thompson). Defendant told Thompson this version of what had happened: Defendant was awakened in the night by the sounds of choking, so he took Joseph into the bathroom to help him; in doing so, he bumped Joseph's head on the bathroom door. Defendant forced open Joseph's mouth and removed a piece of foam rubber that was choking the child, but defendant could not resuscitate him.

Defendant twice went back to the apartment with Thompson in an attempt to find the item upon which Joseph had been choking. On the second trip, Thompson gave defendant his Miranda warning and informed him that the case was being treated as a homicide. After the warning, while they were at the apartment, defendant demonstrated to Thompson what had occurred that evening. Defendant then told Thompson that he would say nothing more unless an attorney was present. The Aberdeen police detective, Glenn Imberi, who later assumed responsibility for the case, was told of defendant's request to remain silent unless an attorney was present and he arranged to conduct all interviews with defendant through defendant's attorney.

Before any charges were brought against him in South Dakota, defendant moved to Oregon. While there, defendant was charged with child abuse and was incarcerated in the Clatsop County Jail. During his time in the Oregon jail, defendant Following these interviews, defendant was indicted by a Brown County, South Dakota, grand jury on two counts of second-degree murder, one count of first-degree manslaughter, and one count of second-degree manslaughter for the death of Joseph. A hearing was held before the trial court to determine the admissibility of certain evidence to be offered by the State. The trial court entered an order suppressing much of the evidence and State appeals that order.

was interviewed twice about the death of Joseph--once by Rick Lyle, a Clatsop County investigator, and once by Detective Imberi and South Dakota Assistant Attorney General Jon Erickson. Before both of these interviews, defendant was read the Miranda warning, but he did not speak with his South Dakota attorney.

State raises five issues on appeal: 1) Did the trial court err in suppressing statements made by defendant to investigators? 2) Did the trial court err in suppressing photographs of Joseph's body? 3) Did the trial court err by refusing to allow testimony concerning "battered child syndrome"? 4) Did the trial court err by suppressing evidence of prior acts by defendant? 5) Did the trial court err by failing to reopen the suppression hearing after making its ruling?

I

State's first contention is that defendant's statements to investigators should not have been suppressed by the trial court. State claims that before making the statements, defendant voluntarily waived his constitutional privilege against self-incrimination. U.S. Const. amend. V, XIV; S.D. Const. art. VI, Sec. 9. Statements made by defendant in three separate interviews are at issue here: 1) the interview with Rick Lyle, an investigator with the Clatsop County District Attorney, in the Clatsop County Jail on November 17, 1982; 2) the interview with Aberdeen Police Detective Glenn Imberi and Assistant Attorney General Jon Erickson at the Clatsop County Jail on November 21, 1982; and 3) the conversation with Thompson on the night of Joseph's death. State concedes that the two interviews in the Clatsop County Jail were custodial interrogations.

The United States Supreme Court, in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), set forth the rule that the prosecution may not use statements stemming from a custodial interrogation of a defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. One of these safeguards is the right to have an attorney present. A defendant can waive his privilege against self-incrimination and the rights that go along with it, provided that the waiver is made voluntarily, knowingly, and intelligently. Miranda, supra. To determine whether the waiver was made voluntarily, knowingly, and intelligently, we must look to the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); State v. Hartley, 326 N.W.2d 226 (S.D.1982); State v. Cody, 293 N.W.2d 440 (S.D.1980). We must also consider whether the defendant knew of the nature of the offense for which he was charged or suspected. Cody, supra. State has a heavy burden of demonstrating beyond a reasonable doubt that defendant voluntarily and knowingly waived his rights, and the courts must indulge in every reasonable presumption against waiver. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Cody, supra.

We deal first with defendant's interview with Rick Lyle in the Clatsop County Jail, where defendant was being held on Oregon child abuse charges. Lyle began the interview by reading the Miranda warning to defendant, followed by a short discussion of the Oregon charges. At the time of the warning, defendant stated he did not want an attorney present because he thought the Oregon charges were ridiculous and no attorney was needed. However, not long into the interview, Lyle abruptly Under the circumstances of the abrupt change in focus of the interview, we find no voluntary or intelligent waiver by defendant of his rights. The record is clear that defendant waived his right to an attorney only for purposes of discussing the Oregon charges. When he waived his rights at that time, he never knew that the South Dakota incident would be raised. It is difficult to conceive how one can intelligently waive his right to counsel when he does not know the nature of the offense with which the major part of the interview will be concerned. Cody, supra. This finding is further buttressed by the fact that defendant had at all prior times chosen to speak about the South Dakota incident only in the presence of his attorney. State has failed to meet the heavy burden of showing an intelligent and knowing waiver of rights by defendant in the interview with Lyle concerning the death of Joseph.

and without warning changed the focus of the questioning from the Oregon child abuse charges to the South Dakota incident involving the death of Joseph. Lyle never restated the Miranda warning or asked defendant if he had an attorney in the South Dakota matter.

We next consider defendant's interview with Imberi and Erickson, who were in Oregon ostensibly to interview defendant's wife. While there, they stopped at the Clatsop County Jail to speak with defendant. They advised defendant of his rights under Miranda, and defendant said he wanted to speak with his attorney. Erickson then proceeded to call the Oregon attorney who represented defendant on the Oregon child abuse charges. Defendant was allowed to speak with the attorney, but the attorney did not come to the jail to take part in the conversation. The South Dakota officers proceeded to question defendant.

We find that under the facts and circumstances of this second conversation, defendant did not knowingly or intelligently waive his rights. It is true that the officers afforded defendant an opportunity to speak with the Oregon attorney before they proceeded with the questioning, but this attorney later stated that he knew nothing of the South Dakota charges or that defendant had a South Dakota attorney. Thus it would have been impossible for the Oregon attorney to properly advise defendant concerning the death of Joseph. In addition, Imberi and Erickson knew that defendant had a South Dakota attorney, they knew there was a prior agreement that defendant would not speak unless his South Dakota attorney was present, they knew defendant had maintained silence before a South Dakota grand jury, and they knew that defendant is a man of "less than average intelligence." Still, they made no attempt to contact his South Dakota attorney, the one person who could adequately advise defendant with respect to the South Dakota proceedings. In light of these facts, State has failed to meet its heavy burden of showing a waiver of rights.

The third conversation at issue, which involved defendant and Thompson, occurred in Aberdeen on the night of Joseph's death. After receiving the Miranda warning, defendant demonstrated to Thompson what he had done to Joseph during the events of the evening. Unlike its findings as to the other two interviews, the trial court ruled, in its findings of fact and conclusions of law, that the conversation was admissible, since defendant had knowingly, intelligently, and voluntarily...