State v. Lohnes

• Decision Date: 26 October 1982
• Docket Number: No. 13572,13572
• Citation: 324 N.W.2d 409
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Burton LOHNES, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 409

324 N.W.2d 409

STATE of South Dakota, Plaintiff and Appellee, v. Burton LOHNES, Defendant and Appellant.

No. 13572.

Supreme Court of South Dakota.

Argued April 28, 1982.

Decided Sept. 15, 1982.

Rehearing Denied Oct. 26, 1982.

Douglas E. Kludt, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

John J. Burnett, Public Defender's Office, Rapid City, for defendant and appellant.

MORGAN, Justice.

Burton Lohnes (appellant), was sixteen years old when Harry Mantzoros (Mantzoros) was shot and killed with a rifle, which was later found in a vehicle stolen by appellant. Appellant was first arrested for theft and burglary. Later, after further interrogation, he was also arrested for first-degree murder in the shooting death of Mantzoros. Appellant was tried as an adult on the charges of third-degree burglary, grand theft and first-degree murder. A jury convicted appellant of the burglary and grand theft charges and second-degree murder. Appellant appeals the murder conviction and we reverse and remand.

On November 13, 1980, the First Stop Gun Shop in Rapid City, South Dakota, was burglarized and several guns stolen. That same night, a 1979 Dodge pickup was reported stolen. At 10:45 p. m., the Highway Patrol informed the Rapid City Police Department that they were following a 1979 Dodge pickup. Rapid City Police Officer Jones (Officer Jones), upon hearing the report, proceeded to the vicinity to aid in identifying the pickup. While enroute, he received a radio transmission that the driver had abandoned the vehicle and was on foot. On his way to the scene, Officer Jones spotted appellant running and ordered him to stop. Appellant immediately stopped, and threw a rifle and athletic bag to the ground. Officer Jones, with the aid of another officer, handcuffed appellant and transported him to the Rapid City Police Station.

At the station, Officer Jones turned appellant over to Detective Hedenskog who began interrogation at 11:25 p. m. and continued into the early morning hours of November 14, 1980. Appellant appeared nervous and scared but coherent and not intoxicated. Shortly after the questioning began, Detective Hedenskog discovered that appellant was a juvenile. Without attempting to contact a parent or guardian, the questioning continued. Detective Hedenskog read appellant his Miranda rights but did not ask him if he wished to waive these rights. During this initial interrogation, appellant admitted burglarizing the First Stop Gun Shop and stealing the 1979 Dodge pickup. Appellant further admitted that he was an escapee from the State Training School in Plankinton and that he had been drinking all that day.

After Detective Hedenskog completed his questioning, appellant was taken to the hospital by Officer Jones to receive medical attention for a cut on his knee. Between 5:15 and 5:30 a. m., Jones transported appellant to the juvenile detention center. Approximately three hours later, appellant was again taken to the Rapid City Police Station. By this time, the police had begun investigating the shooting death of Mantzoros. Rapid City Detective Scherr, assigned to this investigation, considered appellant a suspect as early as 9 a. m. on November 14th.

Mantzoros operated the Ranch House Motel in Rapid City. Donald Lane, an uncle of appellant, stayed at the motel on November 13. Appellant went to the Ranch House Motel where a fight erupted between himself and Lane. Lane ran into the motel manager's office then occupied by Mantzoros. According to Mantzoros' son, his father called him about the altercation. Sometime later appellant again encountered Mantzoros in the motel office. This time, according to appellant, Mantzoros appeared to have a pistol. Appellant became enraged, chasing Mantzoros to a back room with a .243 rifle where he shot him. At 7:30 a. m., the son returned to the motel to find his father's corpse in the motel office. The investigation indicated that Mantzoros had been shot with a .243 Remington rifle, stolen earlier in November. The rifle was found on the floorboards of the 1979 Dodge pickup admittedly stolen by appellant. Mantzoros' driver's license was also found in the pickup.

Between 8:30 a. m. and 11:30 a. m. on November 14th, the police attempted to locate a guardian for appellant so that they could again interrogate him, this time concerning the murder. They contacted Willard Foley (Foley), Chief Court Services Officer for the Seventh Judicial Circuit. Subsequently, via a news report, Foley learned that appellant was a suspect in Mantzoros' death and might be tried as an adult. Foley immediately arranged for a juvenile detention hearing before Judge Grosshans for 12:15 p. m. As soon as the police department became aware of this scheduled hearing, Rapid City Police Captain Hennies called Foley and requested a delay because they wanted to interrogate appellant. Foley refused because he felt it was improper. Captain Hennies, however, said he would get a continuance by other means. Captain Hennies also informed Foley that they contemplated using a parole officer, Scott Schuft, as appellant's guardian. Foley again objected to this as improper.

Captain Hennies called the state's attorney's office. A meeting was subsequently held in Captain Hennies' office with William Tschetter, acting state's attorney, John Seehan, assistant state's attorney, Captain Hennies, Deputy John Moore, the sheriff's representative in the investigation, Detective Scherr, and Scott Schuft. Each of the police officers felt that they had enough evidence at this time to arrest appellant for the murder of Mantzoros. Additionally, each and every person at this meeting knew that unless the 12:15 p. m. detention hearing was continued, appellant would have counsel appointed and would refuse to admit to the murder. With the aid and advice of the state's attorney's office, Scott Schuft became appellant's acting guardian and the continuance was obtained from Judge Grosshans until 4:00 p. m. that day. At no time prior to 4:00 p. m. was Judge Grosshans told that the delay was sought because the police intended to seek an admission from appellant on the murder charge. Foley was not informed of the delay but discovered it when he appeared at the court chambers at 12:15 p. m. Foley immediately sought the advice of several other judges, but, despite their advice, did not contact Judge Grosshans.

Without informing appellant that he was the prime suspect in a murder, Detective Scherr, in the presence of Scott Schuft, began interrogating him at approximately noon. Detective Scherr meticulously informed appellant of his rights, but again did not ask appellant if he wished to waive those rights. By his own admission, Schuft had satisfied his duty as guardian after the rights were read and he believed appellant understood them. Although he remained throughout the interrogation and knew that an attorney was better suited to advise appellant, Schuft never said a word. Indeed, Schuft recognized no distinction between the roles of the police officers and his own role as guardian. Sometime after 12:15 p. m., the time originally scheduled for appellant's detention hearing, Detective Scherr obtained the sought-after admissions.

Later that afternoon, November 14, 1980, the rescheduled detention hearing was held and an attorney was appointed to represent appellant. In January, 1981, Judge Grosshans of the Seventh Judicial Circuit held a transfer hearing in which he ordered that appellant would be tried as an adult. Appellant, then, was arraigned in circuit court. That same month appellant moved to suppress the statements which he had made during the interrogation on November 14th. At a suppression hearing held in February, 1981, the various officers candidly admitted their participation in delaying appellant's detention hearing and their motive to obtain a confession before counsel was appointed for appellant. Appellant received a psychiatric examination in Rapid City during February, 1981, and again in Sioux Falls during July, 1981. In August, 1981, appellant's motion to suppress statements made during interrogation was denied and appellant was tried for third-degree burglary, grand theft, and first-degree murder. A jury found appellant guilty of third-degree burglary, grand theft and second-degree murder. Appellant appeals from the murder conviction, alleging that the trial court erred in instructing the jury that second-degree murder was a lesser included offense. Further, appellant alleges that the trial court should have suppressed the November 14th confession since the State deliberately acted to delay the detention hearing in order to deprive him of an attorney.

We first consider the propriety of the trial court's instruction on second-degree murder. Count 3 of the information charged appellant with first-degree murder in the following manner That on or about the 13th day of November, 1980, in the County of Pennington, State of South Dakota, Bert Lohnes did commit the public offense of First Degree Murder in that he did then and there, feloniously, without authority of law and with premeditated design to effect the death of Harry Mantzoros, a human being, did kill and murder said Harry Mantzoros by gunshot, in violation of SDCL 22-16-4, and contrary to statute in such case made and provided against the peace and dignity of the State of South Dakota.

Over appellant's objection, the trial court instructed the jury on the offense of second-degree murder as well as on the offense of first-degree murder. The jury verdict convicted appellant of the offense of second-degree murder, an offense that he was never charged with and which has distinctly different elements than first-degree murder.

In State v. Reddington, 7 S.D. 368, 64 N.W. 170 (1895), this court held that it was reversible error to charge a defendant with murder with a premeditated design under one penal...