State v. Horse

• Decision Date: 24 April 2002
• Docket Number: No. 21558.,21558.
• Citation: 644 N.W.2d 211,2002 SD 47
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Robert Angelo HORSE, Defendant and Appellant.
• Court: South Dakota Supreme Court

644 N.W.2d 211

2002 SD 47

STATE of South Dakota, Plaintiff and Appellee, v. Robert Angelo HORSE, Defendant and Appellant.

No. 21558.

Supreme Court of South Dakota.

Argued November 15, 2001.

Decided April 24, 2002.

Mark Barnett, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellant.

Timothy J. Rensch, Rapid City, South Dakota, Attorney for defendant and appellee.

KONENKAMP, Justice.

[¶ 1.] This case presents the question whether law enforcement officers can obtain a juvenile's waiver of Miranda rights while in custody and proceed with interrogation without notice to the juvenile's parents or guardian. Here, in an investigation for kidnapping and murder, police interrogated a fifteen-year-old without any effort to notify his parents. South Dakota law mandates that law enforcement officers immediately notify a juvenile's parents, guardian, or custodian when a child is taken into custody, and we determine that a child's waiver of Fifth Amendment rights obtained in custody without prior notice to the parents, guardian, or custodian is a significant factor in weighing the admissibility and voluntariness of the child's confession. Under the specific circumstances of this case, we reverse and remand.

A. Background

[¶ 2.] Defendant Robert Angelo Horse was fifteen years old at the time of the incidents recounted here. In May, 1999, defendant left his aunt's home in Evergreen, South Dakota, on the Pine Ridge Reservation, and traveled to Rapid City, where he took up residence with his half-brother, Jerry Horse, then twenty-seven years old. Defendant apparently hoped to find work, but was unsuccessful. Instead, he began consorting with one Chaske White, age twenty-five, leader of a gang called the "Real Thug Family," of which Jerry, too, was a member. In this company, defendant began drinking alcohol and smoking marijuana. Eventually, he became a member of the gang by having the letters RTF branded on his chest with a hot knife.

[¶ 3.] In the early evening of June 15, 1999, a small group including Jerry, Chaske White, and Dawn Frazier (White's girlfriend) picked up defendant at Jerry's home, drove to Kelton Feichert's house and drank beer into the night. Then, Jerry, Chaske, Dawn, and defendant drove to DD's Bar in Rapid City, arriving there about 2:00 a.m. Jerry and Dawn entered the bar, where Jerry met Morning Star Standing Bear (who was an alcoholic and had already been drinking heavily that night), and he invited her to join his group to drive around and drink more beer. Morning Star needed a ride and agreed to go.

[¶ 4.] Meanwhile, in the bar's parking lot, Chaske met Marty, another acquaintance, and all six drove back to Kelton's home, Chaske riding with Marty, and the others riding with Dawn. At Kelton's, Chaske and Marty began fighting. Chaske beat Marty with a fireplace poker; defendant joined in on Chaske's side, but Jerry, Dawn, and Kelton broke up the fight. Thereafter, Dawn drove Jerry back to his house, with Chaske, defendant, and Morning Star as passengers. Upon reaching his home, Jerry asked defendant to come in with him, but defendant decided to stay with the group and continue drinking for another hour, when he said he would return. As Dawn drove around the city, defendant and Morning Star engaged in apparently consensual foreplay in the back seat. Throughout the drive, Chaske asked defendant repeatedly whether defendant was "down," meaning, roughly, whether defendant was ready to undertake a planned, concerted action of the gang. Whatever was about to happen was apparently an initiation for defendant.

[¶ 5.] Eventually, Dawn drove the car out into the country. By then, Morning Star had fallen asleep. Dawn stopped the car in a deserted spot, she and Chaske got out, and Chaske ordered defendant to help him pull Morning Star out of the car and then to hit her. By then, all three were in agreement that Morning Star was to be beaten up. Defendant obeyed Chaske's directive, helped him pull her out of the car, and then knocked her to the ground. Defendant then began kicking her and did not stop until he hurt his foot. Meanwhile, Chaske was bending over her, pummeling her with his fists, and Dawn joined in as well, while Morning Star cried out for mercy. At some point, Chaske picked up Morning Star and threw her onto the car and invited defendant to assault her sexually. Defendant refused. Then, Dawn opened the trunk of the car and removed a scissor jack. Defendant took the jack and threw it at Morning Star; Dawn picked it up and did likewise. Then Chaske took over and began beating Morning Star with the jack. One blow pierced Morning Star's skull, entering her brain and inflicting a potentially fatal injury. She was also beaten with a lug wrench and tire iron that Dawn removed from the trunk.

[¶ 6.] Not satisfied with this, Chaske took a bottle that Dawn had broken and stabbed Morning Star repeatedly. Then Chaske ordered defendant to cut Morning Star, and defendant stabbed her twice in the buttocks. Finally, Chaske took the broken bottle and slashed Morning Star's throat, and he and defendant together dragged her body into a nearby ditch. She was still alive at the time, for defendant heard her making gurgling noises and saw her moving her hand. From beginning to end, the assault lasted some twenty minutes. Thereafter, the three cleaned up the crime scene, put the tools back in the trunk, drove back to Chaske's home, cleaned themselves up, and then stayed at Chaske's for the next day and a half.

[¶ 7.] As the investigation closed in on the gang members, law enforcement officers asked defendant to come in for questioning. He voluntarily appeared at the Department of Criminal Investigation [DCI] office in Rapid City. Questioning of defendant began at 8:00 p.m. on June 17. The first session lasted more than four hours. Agent Pat West asked defendant's brother, Jerry, for the telephone number of defendant's parents. Jerry replied that they resided on the Pine Ridge Indian Reservation and did not have a telephone. Accordingly, Agent West sought and received Jerry's permission to question defendant. Jerry was still a possible suspect himself at that point. No officer attempted to reach either of defendant's parents or his aunt, at whose home he had most recently been staying before coming to Rapid City. No effort was made to contact tribal authorities on the reservation for help in contacting defendant's parents. During the first session, defendant asked to speak to his half-brother Jerry, but an officer responded, "You're not going to talk to him right now." The first session ended about 12:30 a.m. on June 18.

[¶ 8.] The second questioning session began after a half-hour break. At about 1:00 a.m., Agent West and Investigator Bramblee took defendant, handcuffed, to the crime scene in Agent West's car. During the trip to and from the scene and at the scene itself, the questioning continued. At some point after return to the station at about 3:00 a.m., Agent West placed defendant under arrest and took him to the Juvenile Services Center [JSC]. The third session began on the next day, Saturday, June 19, at 8:30 a.m., at the JSC. Agent West questioned defendant primarily with a view to clearing up discrepancies among the accounts of Chaske, Dawn, and defendant. It is not necessary here to recount the unfolding of defendant's gradual admissions. After initially denying any involvement in the crime, defendant eventually told investigators of his participation.

[¶ 9.] In the course of the interrogations, officers represented that they could not make any promises, but they also said that they were providing defendant with a "lifeline," that they would "go to bat for" him, and that it was unlikely that he could pass a lie detector test. Among the statements with which defendant was barraged was the following:

We can't promise you anything, Bob, but we can promise you, if you're honest with us, we can do everything we possibl[y] can to help you out. We can't promise you anything.

It is difficult to see how a juvenile with an IQ of 81 could fully appreciate the emptiness of such remarks.

[¶ 10.] The State charged defendant with Count I, kidnapping under SDCL 22-19-1(2), a class 1 felony; Count IA, aggravated kidnapping under SDCL 22-19-1(2), a class A felony; Count II, first-degree murder under SDCL 22-16-4, a class A felony; and Count IIA, first-degree felony murder under SDCL 22-16-4, a class A felony. At trial, the jury found defendant guilty of Counts IA and IIA. The trial court imposed a sentence of life imprisonment for each conviction.

B. Custodial Interrogation Without Parental Notice

[¶ 11.] On defendant's motion to suppress the statements he gave to the officers, the trial court conducted a hearing and later entered its findings of fact and conclusions of law. We quote from pertinent selections of those findings:

Findings of Fact

III. Robert Horse, DOB: 04/18/1984, traveled to the DCI office at the request of law enforcement officers. His adult [half-] brother Jerry Horse, Jr., with whom Robert was living, was also present at the DCI office in Rapid City. Robert's parents were living in the Pine Ridge area and did not have a telephone. Agent West asked for, and received, permission from Jerry Horse to speak to Robert, in Robert's presence.

IV. In the first conversation, between approximately 8:00 p.m. on June 17, 1999, and approximately 12:30 a.m. on June 18, 1999, Agent Pat West and Investigator David Bramblee questioned Robert. West advised Robert of his Miranda rights, including the advisement that what Robert said could be used against him in adult court, and twice received an indication from Robert that he understood those rights and wished to waive them. Although Robert described prior involvement and, in his opinion, mistreatment by, law enforcement, this is the first time Robert had ever been advised of Miranda.

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