State v. Janis, 14070

• Decision Date: 29 November 1983
• Docket Number: No. 14070,14070
• Citation: 356 N.W.2d 916
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Dennis L. JANIS, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 916

356 N.W.2d 916

STATE of South Dakota, Plaintiff and Appellee, v. Dennis L. JANIS, Defendant and Appellant.

No. 14070.

Supreme Court of South Dakota.

Considered on Briefs Nov. 29, 1983.

Decided Oct. 24, 1984.

Jon R. Erickson, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Thomas Amodio, Legal Intern, Pierre, on brief.

Michael Strain, White River, for defendant and appellant.

FOSHEIM, Chief Justice (on reassignment).

This case reappears following our remand for the entry of findings of fact and conclusions of law regarding defendant's motion to suppress evidence. The factual background was set forth in our opinion issued in the first appeal. See State v. Janis, 321 N.W.2d 527 (S.D.1982). We supplement the facts as necessary to address the issues now presented.

Upon remand, the trial court conducted a suppression hearing. Defense counsel called Sheriff Brandis and Mildred Janis, defendant's mother, as witnesses. The parties stipulated that the trial testimony of the victim and one of her daughters, together with that of Dr. Page, Father William Stolzman, and Sister Eleanor Kimball could be considered as suppression evidence. Defendant did not testify either at the trial or at the suppression hearing.

Following this hearing, the trial court found that defendant's statements were knowingly and voluntarily given and that the pretrial photo identification procedure employed by the sheriff had not resulted in the substantial likelihood of misidentification by the victim. The trial court accordingly denied the motion to suppress. Defendant appeals this ruling and contends the court erred in permitting the state to elicit testimony regarding his statements made to the examining psychiatrist. We affirm.

VOLUNTARINESS OF STATEMENTS

The rape occurred shortly before midnight on Saturday, August 9, 1980. By Monday, August 11, defendant was a suspect. On that day, Mellette County Sheriff Cecil Brandis, Jr., took the defendant from his residence to the sheriff's office to take photographs.

On August 12, Sheriff Brandis returned to defendant's residence and asked defendant to accompany him to the sheriff's office to answer questions about the break-in.

They arrived at the sheriff's office at approximately 2:00 p.m. Sheriff Brandis read defendant his Miranda rights. The following communication then occurred:

Sheriff: Do you know [the victim]

Dennis: No

Sheriff: Do you know were [sic] [the victim] lives.

Dennis: No

Sheriff: I then told Dennis that I would like to help him if I could, but that if he lied to me I wouldn't be able to.

Sheriff: I then asked Dennis again if he knew [the victim]

Dennis: Yes

Sheriff: Were you at her house Sat nite

Dennis: Yes

Sheriff: Were you in her house.

Dennis: Yes

Sheriff: I then asked Dennis if he would write down what he remembered about that time around the [victim's] residence

Defendant wrote the following statement at 2:20 p.m.:

I was drunk that night and I don't rember [sic] but I went throw [sic] some ladys [sic] window and had sex with and left.

Sheriff Brandis and defendant then left the sheriff's office to find defendant's mother. The sheriff, with defendant and his mother, returned to the sheriff's office. At 2:45 p.m., with his mother present, the defendant wrote and signed this confession:

I was drunk that night and I don't rember [sic] to [sic] much, but I went through some ladys [sic] window and had sex with her and fled.

The defendant's mother signed this statement as a witness. The second interview lasted between five and ten minutes.

The defendant was seventeen years old when he was charged with this offense in August of 1980. At defense counsel's request, the trial court committed defendant to the Human Services Center in Yankton to determine if he was competent to stand trial. Dr. Merle C. Page, a child psychiatrist who treated defendant from his court-ordered commitment in August of 1980 until December of 1980, testified that defendant has a whole scale I.Q. of 81, which is in the low normal range of intelligence. Dr. Page testified that defendant tends to be intimidated by, and tries to please authority, and that he is a meek person susceptible to suggestion. The evidence shows he had successfully completed a written South Dakota driver's license test on his first attempt. The trial court determined that defendant had "willed to confess" and that his choice was "essentially free and unconstrained." The trial court concluded that Sheriff Brandis adequately advised defendant of his constitutional rights against self-incrimination as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and that he voluntarily waived these rights.

The burden is upon the State to prove beyond a reasonable doubt that a confession or incriminating statement was freely and voluntarily made by the defendant before the same may be introduced into evidence. State v. Thundershield, 83 S.D. 414, 160 N.W.2d 408 (1968).

In making the determination whether a statement was voluntarily made, the trial court must review the totality of the circumstances surrounding the interrogation. See, e.g., State v. Caffrey, 332 N.W.2d 269 (S.D.1983); State v. Cowell, 288 N.W.2d 322 (S.D.1980). A statement is voluntary if it is the product of a defendant's free and rational choice. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Greenwald v. Wisconsin, 390 U.S. 519, 88 S.Ct. 1152, 20 L.Ed.2d 77 (1968).

The determination of the voluntariness of a confession is to be made without regard to the truthfulness of the confession. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Rogers v. Richmond, 365 U.S. 534, 81 S.ct. 735, 5 L.Ed.2d 760 (1961); State v. Thundershield, supra; State v. Volk, 331 N.W.2d 67 (S.D.1983).

A finding by the trial court that a confession or incriminating statement was beyond a reasonable doubt voluntarily made is binding upon this court unless we conclude from our review of the record that the finding is clearly erroneous. See, e.g., State v. Hall, 353 N.W.2d 37 (S.D.1984); State v. Caffrey, supra; State v. Cowell, supra. In reviewing a trial court's finding on voluntariness we consider the evidence in the light most favorable to the finding. State v. Kiehn, 86 S.D. 549, 199 N.W.2d 594 (1972).

In applying these principles of law we must be mindful that defendant was a juvenile at the time the incriminating statements were made. In this vein, the United States Supreme Court has spoken:

[t]he totality approach permits--indeed, it mandates--inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.

Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197, 212 (1979). See also State v. Caffrey, supra.

However, the issue here remains not whether we agree or disagree with the trial court's finding but whether that finding is clearly erroneous. State v. Hall, supra; State v. Caffrey, supra. The trial court concluded that Sheriff Brandis did not make any direct or implied promises of leniency nor exert any improper influences over defendant. This is not a case where the juvenile was interrogated for several hours late at night, see State v. Lohnes, ¹ 324 N.W.2d 409 (S.D.1982), or where the police intentionally delayed contacting the juvenile's parent or guardian, Id., or where, in addition to these factors, the police misled the juvenile and employed the threat of a lie detector test, see State v. Caffrey, supra. Here, Sheriff Brandis sought the presence of the defendant's mother before the confession used in evidence was written and signed. About the only further safeguard the Sheriff could have exercised would be to refuse to allow the defendant to confess. While the law properly insulates a juvenile of low intelligence with greater safeguards, it does not forbid him to voluntarily confess to a crime. The trial court found the confession was voluntary. We cannot conclude that finding was clearly erroneous.

PHOTOGRAPHIC IDENTIFICATION PROCEDURE

Defendant next contends the identification procedure employed was so impermissibly suggestive that it produced a substantial likelihood of irreparable misidentification, thus denying defendant due process of law.

The victim, age seventy-six, had undergone surgery to correct glaucoma two years earlier. She was required to put drops in her eyes twice a day and preceding the attack, she had treated her eyes, and she was about to retire. A young male entered her bedroom, pushed her backwards onto the bed and started beating her on the side of the head with his hands. The attacker then pulled off the victim's underclothes and raped her. The attacker then complied with the victim's request for a glass of water, exchanged some words with the victim and departed.

Throughout the assault, the lights were on in the bedroom. The victim was wearing her glasses and could make out the attacker's features. In her words, "It branded in my mind...." The attacker's face was inches away from her during the assault.

Shortly after the attack, the victim described her assailant to one of her daughters and to law enforcement officers as a young Indian male with a short haircut, dressed in white cut-offs or shorts and a white t-shirt. Defendant had been seen in this rural town by one of the investigating officers about 11:00 on the night of the attack dressed in white cut-offs and a t-shirt.

The victim was sedated and taken to a hospital in Valentine, Nebraska, where she remained for four days. On Monday evening, August 11, Sheriff Brandis went to the victim's hospital room where he showed her two pictures that he had taken of defendant earlier that...