State v. Navy
| Decision Date | 11 January 2010 |
| Docket Number | No. 26759.,26759. |
| Citation | 386 S.C. 294,688 S.E.2d 838 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Petitioner, v. Kenneth NAVY, Jr., Respondent. |
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, Assistant Attorney General Michelle J. Parsons, and Warren Blair Giese, all of Columbia, for Petitioner.
Acting Chief Appellate Defender Robert M. Dudek, of Columbia, for Respondent.
Respondent was convicted of homicide by child abuse in the suffocation death of his almost two year old son and received a twenty year sentence. On appeal, the Court of Appeals reversed, holding "the trial court erred in admitting [respondent's] voluntary oral statement and the second and third written statements." State v. Navy, 370 S.C. 398, 635 S.E.2d 549 (Ct.App.2006). We granted the State's petition for certiorari, and now affirm the decision to the extent it holds the second and third written statements are inadmissible under Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), but reverse the holding that the first oral statement was erroneously admitted.
At approximately 4 pm on Sunday, February 9, 2003, EMS responded to a 911 call placed from a residence. When they arrived, respondent was administering CPR to his son. The child had no heartbeat or respiration, and attempts to resuscitate him in the ambulance and at the hospital were unsuccessful. The child was pronounced dead at 4:58 pm.
An autopsy was performed on Monday. The doctor testified there was no medical reason for the child to die, and opined that the death was the result of suffocation. He also found that the child had four older healing rib fractures in his back, fractures which had occurred at different times.
Respondent gave a statement at the hospital on Sunday night, but because he was so upset and distraught it was thought to be incomplete. On Wednesday morning, Sgt. Weeks and Investigator Smith went to respondent's residence with the intent of taking him from the home to the sheriff's office to interview him and obtain another statement. The decision to talk with respondent was prompted by a meeting with the autopsy doctor the day before who told the officers that the only way the child could have died was by smothering or suffocation.
When the officers arrived at the home, they told respondent they needed to ask some additional questions. Respondent was very cooperative, stating he wanted answers too, but he was upset and crying at the home and remained upset and crying throughout the entire time period from the time the officers arrived at the home (approximately 9 am) until they obtained the third statement (1 pm). The officers knew that the child's funeral home visitation was scheduled for later that Wednesday, and told respondent and his family that they would have respondent back in time for the service.
Respondent's first statement was given at the station at 9:50 am. In this oral statement, respondent maintained that he was watching TV on the first floor while the two younger children (the victim and a four year old daughter) napped upstairs. He told the officers:
1) The victim awoke crying as if from a nightmare;
2) Respondent comforted him, putting him back in the crib, and patting him on his back;
3) Respondent went downstairs to get a bottle: upon returning upstairs he noticed the child was having breathing problems;1
4) Respondent "panicked" and went up and down stairs several times until he "figured out" what was going on and returned upstairs bringing with him his friend Terry who was visiting;
5) He picked the "lifeless" child up, and told Terry to take the other child downstairs and keep her from seeing what was going on;
6) Respondent took the lifeless child downstairs, put him on the floor, and performed CPR three times2 before calling 911;
7) Respondent continued CPR until EMS arrived.
This statement is largely consistent with the statement respondent gave at the hospital after the child died.
At the Sheriff's Department respondent was given cigarettes and permitted to take escorted smoking breaks. The investigator testified respondent was not in custody or under arrest, and agreed that respondent was free to tell the officers to take him home anytime he wanted.
After he gave this first statement, the crying and upset respondent was informed, for the first time, that the child had been suffocated and that there was evidence of broken ribs. According to Investigator Smith, respondent was shocked and surprised by this information. Respondent asked if he were under arrest, and was told "No, we are just trying to get some answers." The officers engaged in follow-up questioning, asking specifically how respondent had comforted the crying child. At this juncture, the nature of the interrogation and respondent's status changed, and what had begun as a voluntary question and answer session matured into custodial interrogation. In response to these follow-up questions, respondent told the officers he had "popped" the child on the back rather than simply patted him, and that he may have "patted" the child on its mouth to stop the crying.
After eliciting the answers in which respondent admitting hitting the child and interfering with the child's breathing, the officers allowed him another smoke break. Investigator Smith insisted at trial that respondent was still free to leave, but also testified that he "perceived that the line of questioning may move further into what he had just told us." Smith decided it was now appropriate to give respondent Miranda warnings and administered them to respondent at 11:35 am.
Following the Miranda warnings, respondent gave his second statement, this one in writing, at 11:40 am. Significantly, in this second statement, respondent described the events as "the same as in his first statement," except that:
1) He could not get the child to be quiet, and while the crying child was sitting up in the crib, respondent put his hand over the child's mouth, but did not hold it there.
2) Respondent then laid the child on his stomach in the crib and "popped" him in the middle of the back, causing the child to cry "one time real loud." Respondent then put his hand over the child's mouth again to try to stop the crying, then noticed the child could not get his breath, perhaps as the result of the pop on the back.
3) Respondent, thinking he had knocked the child's breath out, went downstairs and returned with a bottle.
4) The child was still "making that noise" "like he was still trying to catch his breath" and respondent panicked. As the child quit and then resumed breathing, respondent went downstairs and got Terry.
5) When respondent and Terry got back upstairs, the child was not breathing.
6) In response to the question: "When you placed your hand over [the child's] mouth, is it possible that your hand covered his nose area as well," respondent answered "It could have been."
Q. When you popped him in the back, did you have your fist balled up?
A. No sir. It was my flat hand.
Q. How hard did you pop him?
A. Not like trying to kill him or nothing. I just popped him.
...
Q. Why did you pop [him] in the back Sunday?
A. I was frustrated because he was crying.
Following this second statement, which was reduced to writing, Sgt. Weeks contacted the pathologist who had conducted the autopsy to ask whether the actions respondent admitted committing in his second statement "could have caused" the child's death. The pathologist said no, and told the officer that the hand would have had to cover the child's nose and mouth for at least a minute. The officers then obtained a third written statement from respondent at 12:25 pm. The brief questions and answers are:
Q. [Respondent], is it possible that you held your hand over [the child's] mouth and nose for a longer period of time then you first related to us that you did?
A. Yeah, it could have been longer.
Q. How long do you think it could have been?
A. I don't know.
Q. Can you give us any idea at all how long you might have held your hand over his nose and mouth?
A. A minute, not more than two minutes.
Q. When you removed your hand the last time was [the child] breathing?
A. He was gasping for breath.
Respondent moved to suppress all three statements, but particularly the written second and third statements. He argued that the statements were not voluntary, in that he was distraught, sleep-deprived, and shocked by the information that his child had been suffocated and had rib injuries. Specifically, respondent argued that the second and third statements were unconstitutionally obtained since the officers conducted unwarned custodial interrogation after he gave the first oral statement, obtained incriminating evidence, and only then Mirandized him and took the official second and third statements.
The trial court admitted all three statements, finding that respondent was not in custody, was not significantly deprived of his freedom, and that the first statement was voluntary and no Miranda warning rights were required. As to the second and third statements, he made the finding the statements were Mirandized and freely and voluntarily given. On appeal, the Court of Appeals reversed, finding none of the three statements should have been admitted.
Whether the Court of Appeals erred in reversing the trial court's decision to admit respondent's three statements?
On appeal, the Court of Appeals, citing State v. Evans, 354 S.C. 579, 582 S.E.2d 407 (2003), held the first statement should have been suppressed primarily because respondent was in custody at the time of the statement. The State contends the Court of Appeals erred in reaching this result. We agree with the State that the Court...
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