State v. Long

• Decision Date: 26 March 1971
• Docket Number: No. 10651,10651
• Citation: 185 N.W.2d 472,85 S.D. 431
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Steven R. LONG, Charles W. Hale and Jack B. Tisdale, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 472

185 N.W.2d 472

85 S.D. 431

STATE of South Dakota, Plaintiff and Respondent, v. Steven R. LONG, Charles W. Hale and Jack B. Tisdale Defendants and Appellants.

No. 10651.

Supreme Court of South Dakota.

March 26, 1971.

Rehearing Denied April 29, 1971.

Leonard E. Andera, Asst. Atty. Gen., Pierre, for plaintiff and respondent; Gordon Mydland, Atty. Gen., was on the brief.

Robert A. Warder of Gunderson, Farrar, Aldrich & Warder, Rapid City, for defendnts and appellants.

PER CURIAM:

During the night of March 11, 1968 the cabin of Forrest A. Koos located in the Spearfish Canyon was forcibly entered by the defendants Hale and Tisdale who removed therefrom a table model TV. Hale and Tisdale were accompanied by the third defendant, Long, who, while the evidence does not show an entry into the cabin by him, was the outside man of the trio. On March 12, 1968 the sheriff of Lawrence County, Richard McGrath, investigated the burglary and from tracks in the snow on the premises found that a 'compact car' had been in the vicinity and also that the burglary had apparently been committed by three individuals, one of whom was wearing what appeared to be 'football or track shoes'. Also the individual wearing these shoes had waded through the water of a small creek in front of the place. The sheriff advised people in the canyon and a deputy sheriff who had a place of business there to be on the lookout for a red Volkswagon with Iowa plates, county number 77. The sheriff testified that an informer had given him this lead.

On March 13, 1968 the sheriff was notified by the deputy sheriff that a red Volkswagon had just left his place of business. Two deputy sheriffs, upon the orders of the sheriff, intercepted the red Volkswagon shortly thereafter, which was being operated by the defendant Long and of which he admitted ownership. Long was at that time accompanied by the defendant Tisdale and a third party who subsequently was absolved from any guilt. Long's car was searched by the deputies who found nothing and Long was told that the sheriff wanted to talk to him and his companions at the Spearfish police station. Long and the other two boys proceeded to that place. Defendants were students at Black Hills State College and resided in a dormitory at that place. Long, shortly after arriving at the Spearfish police station, advised the sheriff that he had an appointment to have his picture taken with the college wrestling team. The sheriff sent Deputy Sheriff Palmer to ride with Long in Long's Volkswagon to the place where the picture was to be taken. In the meantime, the sheriff went to the dormitory with Tisdale. He asked Tisdale's permission to search his room which permission was granted. The sheriff made such search but found no evidence connecting Tisdale with the breakins. Tisdale made no statements or admissions at the time.

Long returned to the dormitory accompanied by the deputy. The sheriff, with Long's permission, searched his room and found a pair of athletic shoes that seemed to fit the tracks that the sheriff had seen in the snow at the Koos cabin. The shoes were damp and showed signs of recently having been soaked in water. Sheriff McGrath's testimony and that of Long is somewhat conflicting as to the actual conversation that took place between them at that time. However, it is conceded that one of the warnings required by the rule in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and State v. Connors, 82 S.D. 489, 149 N.W.2d 65, was not given. ¹ The defendant Long confessed to the break-in of this cabin and others in the canyon and admitted that the and his confederates had Koos' television set. He also admitted that two other boys were involved but did not incriminate them by name. The sheriff then asked Long to get the television set and the others who were involved and come down to the sheriff's office in Deadwood the next day as he wanted to talk to them.

On March 14, 1968, Long, Tisdale and Hale appeared at the sheriff's office with the television set and other items removed from the cabins and each signed a statement written in their own longhand as to the details of the burglaries. ² They left and returned to their dormitory.

Defendants were arrested on March 26, 1968 and charged with burglary in the third degree and grand larceny. Preliminary hearing was held on May 3, 1968, and they were bound over to the circuit court for trial.

Before arraignment defendants filed a motion to suppress the statements and admissions made by them on the grounds they were not advised of any of their constitutional rights from the time they were stopped in the Spearfish Canyon up and through the time of their arrest as set out by the Supreme Court of the United States in Miranda v. Arizona, supra, and State v. Connors, supra. The hearing was held in accordance with Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205, and State v. Thundershield, 83 S.D. 414, 160 N.W.2d 408. The motion to suppress was denied. The court in ruling on the motion held as follows:

'Let the record show that the Court views the statements as having been made prior to arrest, and that the statements which the defense claims were made when the defendants were not in custody as indicated under the Miranda Decision, and, in fact, the most damaging statement was made to the Sheriff within the defendant's (Long) own room, and there is no indication that he was under any duress, compulsion legally, and such statement is admissible. The Court further finds that the defendants were not under any duress or compulsion at the time when they in their own automobile brought some of the items stolen to the Sheriff's office. And that they were not subjected to any prolonged interrogation. And, quite to the contrary, were told they could write up their statements in their own handwriting without any questioning. And it appears that these boys were above average intelligence. At least they are college boys in their freshman year in college, and having been admitted to a college would be assumed to have above average intelligence. And were not subjected to any duress. Nor can it be said they didn't understand the gravity of the situation that they were facing. It appeared to the Court that, on the contrary, they were probably compelled mainly by their own consciences to get it off their mind. And I might say that they were entirely cooperative and didn't require any compulsion or urging particularly by the Sheriff to have them make the statements. And, for that reason, the Court feels that the only compulsion was their own consciences as far as making the statements. The Court views the Miranda Decision as a situation which applies only to custodial interrogation and under circumstances which are in and of themselves presumed by the Court to be of a compulsive nature. And there is some question in the Court's mind as to the admissibility of any statement they made after they were arrested at a time when they were not advised of their rights. And the Court is going to resolve that in favor of the defendants and will exclude in the trial any statements made after the arrest during that trip up through the canyon. So the motion of the defendant to exclude the statements will be denied.'

At the trial all three defendants took the witness stand on their own behalf and admitted breaking into the Koos cabin and taking the television set. The defendants denied an intent to steal anything when they broke into the cabin. Defense also argued that the value of the TV set was less than $50 thus reducing the offense of grand larceny to the lesser included offense of petit larceny.

The jury returned a verdict of guilty of burglary in the third degree and petit larceny. On the burglary charge the court placed defendants on probation for two years, instructed them to make restitution in money, labor, or both, for damages to the cabins and assessed them $250 costs individually. As to Count 2, the petit larceny charge, the court sentenced the three defendants to (1) thirty days in the Lawrence County Jail, and (2) fined each of them $100.

Defendants assign 29 errors as the basis for their appeal. These errors are consolidated into six points in defendants' brief. Point 1 is as follows:

'Did the Sheriff of Lawrence County in obtaining the oral and written confessions, and did the Court in ruling on the admissibility of the confessions transgress the mandate of the Supreme Courts of the United States and the State of South Dakota?'

Point 1 as raised by defendants is crucial to everything that followed--if the admissions were illegal as to any defendant, the conviction must be reversed as to him. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, and Harrison v. United States, 1968, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047. On the other hand if the admissions were legally obtained then the reasons that the defendants felt compelled to testify were unimportant as the court committed no error. In the case of Harrison v. United States, supra, the Supreme Court of United States stated:

'A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him.'

At the hearing to suppress held before the trial court prior to arraignment the sheriff and deputy sheriff testified as to the details surrounding the admissions and confessions. The defendants did not take the stand or testify at this hearing which they could have done with immunity. See State v. Thundershield, 83 S.D. 414, 160 N.W.2d 408, wherein this court stated:

'At this hearing the defendant may testify and be cross-examined as to the issue of voluntariness without...