State v. Johnson
| Decision Date | 02 June 1982 |
| Docket Number | No. 13513,13513 |
| Citation | 320 N.W.2d 142 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Clifford C. JOHNSON, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Richard Dale, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.
Thomas K. Wilka of Burns, Hagen & Wilka, Sioux Falls, for defendant and appellant.
A Minnehaha County jury found appellant Clifford C. Johnson guilty of first-degree burglary and aggravated assault. Prison sentences of fifteen and five years, respectively, were pronounced by the trial court. Appellant appeals from the judgments entered thereon. Five appellate issues are treated below. We affirm.
During the evening hours of January 5, 1981, appellant and his companion, Timothy Strother, were driving around Sioux Falls, South Dakota, drinking beer in appellant's van. Subsequent to procuring shotguns, purchasing ammunition and firing at some beer cans at the edge of town, the two individuals drove to a residence (with appellant driving the van) in south Sioux Falls, clad themselves in nylon masks, and entered the home armed with shotguns. The residence was the home of Rollie and Marlys Yates and their eleven-year-old son, David. Mrs. Yates' mother, Naomi M. Thorson, was living with the Yates family although she maintained a separate residence of her own. Mr. Yates was not in the home at this time.
After entering the Yates residence, Strother encountered Mrs. Thorson in the kitchen area and ordered her to lie down on the floor as he pointed a sawed-off shotgun at her. At this time, Mrs. Thorson saw an individual wearing a blue jacket walk through the hallway toward a rear bedroom and bathroom. At trial, appellant stated that he was wearing a blue jacket while in the Yates home. The drapes in this bedroom were later discovered to have been closed, the telephone off the hook and a wall plaque knocked down. When Mrs. Thorson saw Strother, she screamed which attracted Mrs. Yates and David, who were in the family room. Mrs. Yates immediately went to her mother. Strother then told Mrs. Yates to lie down which she did in the family room. David, however, after seeing Strother, ran out the side door of the home and entered the garage in an effort to hide.
Strother and appellant went looking for David and, as David was attempting to leave through the main garage door, both men, armed, stopped him. During this time, Mrs. Yates had escaped and ran to neighbors. Subsequently, she saw appellant and Strother leave her home and depart in the aforementioned van, which she described as white with a spare-tire rack on the rear.
The Sioux Falls police were immediately notified of the incident and given a description of the van. Officer Nick Boschee of the Sioux Falls Police Department heard this transmission and observed a van matching the description of appellant's van. Officer Boschee testified at the motion to suppress hearing that he also heard that the assailants were armed with shotguns. After following the van for a period of time, and requesting assistance, Officer Boschee stopped the van. Appellant, who was driving, and Strother stepped out of the van and were immediately given a pat-down search.
At the suppression hearing, Officer Conrad Smith of the Sioux Falls Police Department, who arrived at the scene at approximately the same time as Officer Boschee, testified that Officer Boschee read appellant his Miranda 1 rights, which appellant stated that he understood.
Subsequent to appellant and Strother leaving the van, Officer Boschee approached it on the passenger's side (the passenger door had been left open), looked inside, viewed numerous shotgun shells and "balled-up" nylon. While Officer Boschee was in the van, in the passenger's seat, he discovered a sawed-off shotgun that had a blue jacket partially covering it and what he believed to be two cased long-arm weapons. Upon opening the cases while he was still inside the van, Officer Boschee found two shotguns. Officer Boschee also observed a guitar case, several knives and a hatchet when he was in the van.
Officer Smith approached the van on the driver's side and, with the window at least partially rolled down, observed the stock of a long-arm weapon between the front seats. When Officer Smith reached into the van to retrieve this gun, he observed another shotgun, this one being sawed off. Another long-arm gun was also located on the front floor of the van. Two of the guns were cased but Officer Smith testified at the suppression hearing that he unzipped the cases to observe the guns.
Appellant and Strother were taken to the Sioux Falls Public Safety Building and separately interrogated regarding the incident at the Yates home. These interrogations began approximately forty-five minutes after the van was stopped. According to Officer Smith, he informed appellant of his Miranda rights at the interrogation room.
Sometime after being read his Miranda rights, appellant, according to Officer Smith, requested a lawyer after being asked if he would like to make a written statement. Officer Smith stated that besides himself and appellant, Detective James McKelvey (who conducted the bulk of the interrogation on appellant) was present. Detective McKelvey testified that, although he had not personally advised appellant of his Miranda rights, he did ask appellant if he had been so advised, to which appellant responded yes, Officer Smith had so advised him. Detective McKelvey also testified that appellant never told him that he wanted to see a lawyer. During the course of the interrogation, appellant signed a consent to search his van and made certain oral statements regarding his participation in the Yates incident.
Appellant testified, however, that he informed Detective McKelvey and Officer Smith that he had previously retained a lawyer and wanted to speak with him. 2 This request, says appellant, occurred prior to being read his Miranda rights at the Public Safety Building and before he signed the consent to search form with regard to
his van or making any inculpatory oral statements. Appellant further denied that anyone read him his Miranda rights at the scene where the van was stopped. Appellant also testified that he did not sign the consent to search form voluntarily as the authorities present threatened to arrest his wife on charges of withholding evidence concerning another crime if he did not sign. Detective McKelvey denied this. Appellant also stated at the suppression hearing that he was at the Public Safety Building about two hours before his Miranda rights were read to him.
Did the trial court err in finding that there was probable cause for Officer Boschee to stop appellant's van? We hold that it did not.
Did the trial court err in finding that the seizure of the weapons observed in appellant's van was not in violation of the Fourth Amendment? We hold that it did not.
Did the trial court err by finding that certain oral statements by appellant were voluntary and made subsequent to being advised of his Miranda rights? We hold that it did not.
Was the trial court erroneous in refusing to adopt appellant's proposed jury instruction concerning the defense of duress? We hold that it was not.
Was the trial court erroneous in not granting appellant's motion for acquittal relating to the aggravated assault charge? We hold that it was not.
Subsequent to a suppression hearing, 3 the trial court entered the following finding of fact: "There was probable cause for Officer Boschee to stop [appellant's] van on the evening of January 5, 1981." Appellant claims that this finding is clearly erroneous. SDCL 15-6-52(a); In re Estate of Hobelsberger, 85 S.D. 282, 181 N.W.2d 455 (1970).
As previously stated, Officer Boschee stopped appellant's van based upon the police radio report of a white van, with a spare-tire rack on the rear, being used by individuals suspected of burglary at the Yates home. Appellant's van matched this description. In State v. Burkman, 281 N.W.2d 436, 439-440 (S.D.1979), this Court stated (citations omitted):
The test for probable cause is simply: Were the actions of the suspect, viewed in the context of the attendant circumstances, such that they would lead a man of ordinary care and prudence to believe, or to entertain a strong suspicion, that the person was engaged in criminal activity?
The Yates residence is approximately three miles from where appellant's van was stopped. Officer Boschee heard the radio report describing the van and the individuals involved in the Yates incident at approximately 10 p. m.; he first observed appellant's van approximately 30 minutes later and proceeded to follow it for five minutes before pulling it over. Although Officer Boschee testified that while he was following the van it did not commit any moving violations, the van did go through several alleyways which appeared to be evasive actions and an escape maneuver.
Officers are not required to know facts sufficient to prove guilt, but only knowledge of facts sufficient to show probable cause for an arrest or search. These are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Probable cause exists when the facts and circumstances within the officer's knowledge and information warrant a man of reasonable caution in the belief an offense has been or is being committed.
State v. Hermandson, 84 S.D. 208, 213-214, 169 N.W.2d 255, 258-259 (1969) (citations omitted). We hold that the trial court was correct in finding that probable cause existed for Officer Boschee to stop the van in question.
Appellant secondly contends that the trial court was clearly erroneous by entering the following finding of fact at the conclusion of the suppression hearing: "That incident to [the] stop [of appella...
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