State v. Lufkins

• Decision Date: 19 August 1981
• Docket Number: No. 13212,13212
• Citation: 309 N.W.2d 331
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Dennis LUFKINS, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 331

309 N.W.2d 331

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

No. 13212.

Supreme Court of South Dakota.

Argued March 24, 1981.

Decided Aug. 19, 1981.

Mikal Hanson, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen. and Mark W. Barnett, Asst. Atty. Gen., Pierre, on brief.

Kay F. Nikolas of Dakota Plains Legal Services, Sisseton, for defendant and appellant.

HENDERSON, Justice.

ACTION

This is an appeal by Dennis Lufkins, appellant, from a judgment of conviction of first-degree manslaughter and a separate adjudication of habitual criminality. A Roberts County jury found appellant guilty of the manslaughter charge; appellant subsequently pled guilty to being a habitual criminal. His sentence was life imprisonment. Four separate issues, all treated below, are presented for review. We affirm.

FACTS

At trial, Ernest Hayes, Eugene Hedine and Matthew Blue Dog all testified that they, appellant, Ruth Titus, and the victim Sylvester Johnson had been drinking wine and rubbing alcohol at Hayes' residence on December 4, 1979. Testimony also indicated that a fight occurred between the victim and appellant resulting in appellant striking the victim on the head with an ax handle, causing him to fall. Hayes was in the process of taking the victim to the hospital by car when, believing that the victim had died en route, he pulled the victim out of the car and left him on a nearby church lawn. However, the sister of appellant, Faith Lufkins, testified that appellant had been at her home all day on December 4, 1979, and the morning of December 5, 1979.

The body of the victim was discovered on December 5, 1979, the cause of death being a subdural hemotoma (brain hemorrhage). It was determined that the victim's blood at the time of death contained 0.31 percent alcohol.

PROCEDURAL FACTS

January 22, 1980: Appellant commenced serving a sixty-day jail sentence for second offense D.W.I.

January 31, 1980: Appellant made and signed an inculpatory statement in the presence of law enforcement authorities regarding the victim's death.

February 8, 1980: Appellant was arrested and arraigned for first-degree manslaughter.

March 7, 1980: A preliminary hearing was held on the first-degree manslaughter charge, at the conclusion of which appellant was bound over for trial.

April 21, 1980: Appellant was arraigned on both the first-degree manslaughter and habitual criminal information, whereat appellant pled not guilty to both charges. A jury trial was then set for June 2, 1980.

June 2, 1980: After the commencement of a jury trial, appellant pled guilty to first-degree manslaughter thus aborting the trial.

June 12, 1980: Appellant was permitted to withdraw his guilty plea; also, appellant moved for a change of venue.

June 23, 1980: A hearing was held whereat the trial court denied appellant's change of venue motion; the court further determined that appellant had been legally detained when he made his inculpatory statement on January 31, 1980.

June 30, 1980: Trial commenced which resulted in a jury verdict and judgment of conviction against appellant on the charge of first-degree manslaughter.

July 7, 1980: Appellant moved for a mistrial; this motion was denied. Appellant's trial attorney was then permitted to withdraw as counsel and present counsel was appointed.

July 15, 1980: Appellant pled guilty to being a habitual criminal and was sentenced to life imprisonment.

ISSUES

I.

Under the facts of this case, was appellant denied due process by the admission into evidence of his incriminating statement without a prior independent hearing on the voluntary nature of the statement? We hold that he was not.

II.

Was appellant prejudiced by the trial court's lack of compliance with SDCL 23A-4-3? We hold that he was not.

III.

Did the trial court abuse its discretion by denying appellant's motion for a new trial? We hold that it did not.

IV.

Did the trial court err by denying appellant's motion for a change of venue? We hold that it did not.

V.

Was appellant denied his right to effective assistance of trial counsel? We hold that he was not.

DECISION

I.

Appellant contends that he was denied due process due to the admission of an incriminating written statement into evidence at trial without a prior determination of its voluntary nature. The statement in question is an acknowledgment and waiver of appellant's applicable constitutional rights and a confession to striking the victim with an ax on December 4, 1979. This statement was taken and signed by appellant on January 31, 1980, at the sheriff's office in Sisseton, South Dakota, at 11:30 a. m. in the presence of Sheriff Neil Long and D.C.I. Officer Delbert Peterson. After Sheriff Long was extensively questioned in the presence of the jury by both the state and appellant regarding the voluntary nature of the statement, the trial court admitted the statement into evidence, over appellant's objection. Essentially, Sheriff Long testified that appellant understood his statement and the ramifications thereof, and was not threatened, tricked, or coerced into signing it. As outlined in the procedural facts, the trial court ruled on June 23, 1980, that appellant was not being illegally detained when the statement was made.

This Court held in State v. Thundershield, 83 S.D. 414, 422, 160 N.W.2d 408, 412 (1968):

When a confession or an incriminating statement allegedly made by the accused is offered by the prosecution and objected to, the state has the burden of proving beyond a reasonable doubt the same was freely and voluntarily made. This proof must be made in an independent hearing of all relevant facts outside the presence of the jury.

This holding was reiterated in State v. Kiehn, 86 S.D. 549, 199 N.W.2d 594 (1972); see also State v. Landers, 21 S.D. 606, 114 N.W. 717 (1908).

During the questioning of Sheriff Long by the state, appellant made no objection pertaining to the jury's presence. At the conclusion of his cross-examination of the sheriff, appellant objected to the statement's admission due to its alleged involuntary nature. Appellant's objection was overruled by the trial court.

In State v. Stumes, 90 S.D. 382, 241 N.W.2d 587 (1976), we remanded the case to the trial court for the purpose of entering findings of fact and conclusions of law with regard to the voluntariness of certain admissions made by the defendant. The trial court had originally allowed the admissions into evidence (subsequent to a suppression hearing) without entering a formal order thereon. Stumes, however, is inapposite. Stumes involved a motion to suppress; here there was only a verbal objection to the admission of the statement into evidence. Appellant's objection, which occurred after the applicable evidence was produced, is quite different from an objection to procedure which occurs prior to the production of any evidence. Given this procedural variance, the result reached in Stumes is not controlling.

Although the voluntariness of appellant's statement was determined in the jury's presence contra to the requirements of Thundershield, we must defer to the United States Supreme Court ruling in Pinto v. Pierce, 389 U.S. 31, 33, 88 S.Ct. 192, 193-4, 19 L.Ed.2d 31, 33 (1967) (footnotes omitted) wherein it was stated:

A confession by the defendant found to be involuntary by the trial judge is not to be heard by the jury which determines his guilt or innocence. Hence, because a disputed confession may be found involuntary and inadmissible by the judge, it would seem prudent to hold voluntariness hearings outside the presence of the jury. In this case, however, the confession was held voluntary and admitted as evidence suitable for consideration by the jury. In addition, there is no claim that because the hearing was held in the presence of the jury it was inadequate or had any other unfair consequences for the respondent.

Finally, it is clear that the respondent in this case did not object to having the voluntariness of his admission considered in the presence of the jury. At his trial the court asked defense counsel whether there was any objection to the testimony being taken in the presence of the jury. Defense counsel replied, "None whatsoever." The court continued, "As you know, it can be taken in their presence or outside of their presence, and that is a matter of discretion with the Court but I am inquiring of you if you have any objections. If you did I would hear you but I assume you have none." Again counsel replied, "I have none." The evidence regarding voluntariness, which included testimony by respondent, was then taken, after which the court ruled that the statement was voluntary.

Since trial counsel consented to the evidence on voluntariness being taken in the presence of the jury, and the judge found the statement voluntary, respondent was deprived of no constitutional right.

In the instant case, the trial court, by allowing the statement into evidence, impliedly ruled that it was given voluntarily. By not making the appropriate objection, appellant's trial counsel consented to the taking of evidence in the jury's presence on the voluntariness of the statement. ^* Moreover, we note that the jury was not instructed to determine the voluntariness of the statement; rather, the trial court made this determination.

We hold that our decision in Thundershield is hereby qualified in accord with the provisions of Pinto v. Pierce, supra. As such, we also hold that appellant was not denied his constitutional rights by the admission of the statement into evidence.

II.

Appellant secondly contends that the trial court's failure to comply with SDCL 23A-4-3 constituted prejudicial error. SDCL 23A-4-3, South Dakota's counterpart to Fed.Rule 5(c), provides in pertinent part:

A defendant is entitled to a preliminary hearing, unless waived, when charged with an offense for which the maximum penalty exceeds a jail sentence of thirty...