State v. Oster, 17745

• Decision Date: 19 February 1993
• Docket Number: No. 17745,17745
• Citation: 495 N.W.2d 305
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Marvin OSTER, Jr., Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 305

495 N.W.2d 305

STATE of South Dakota, Plaintiff and Appellee, v. Marvin OSTER, Jr., Defendant and Appellant.

No. 17745.

Supreme Court of South Dakota.

Argued Oct. 7, 1992.

Decided Jan. 27, 1993.

Rehearing Denied Feb. 19, 1993.

Mark Barnett, Atty. Gen., Joan Boos Schueller, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Brad A. Schreiber of Quinn, Eiesland, Day & Barker, Belle Fourche, for defendant and appellant.

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES

Appellant, Marvin J. Oster, Jr., was indicted by a grand jury in Butte County on April 25, 1991, for violation of SDCL 22-32-3: Second Degree Burglary. At a motion hearing, he was denied a motion to dismiss the indictment for insufficient indictment and failure to give Miranda warnings. A motion in limine was granted suppressing evidence of prior criminal convictions; however, a motion to suppress Oster's taped admissions was denied because of the voluntariness of the admissions.

Trial was held on September 19, 1991, with the jury finding Oster guilty of second degree burglary. On November 1, 1991, Oster was sentenced to five years in the South Dakota State Penitentiary. On November 22, 1991, Oster filed a timely notice of appeal to this Court raising the following issues:

I. Did the indictment sufficiently inform Oster of the charge against him?

II. Was Oster's confession the result of police coercion?

III. Did the trial court abuse its discretion by admitting Oster's taped statement into evidence?

IV. Did the trial court abuse its discretion by denying Oster's motion for mistrial?

V. Did the trial court properly instruct the jury on the law?

VI. Was there sufficient evidence of the corpus delicti to corroborate Oster's confession and sustain a conviction?

We reverse based upon our holding on Issue V.

FACTS

In the early morning hours of April 13, 1991, Oster and his girlfriend left Deadwood after a night of gambling and began "cruising around" in a snowstorm near the rural community of Vale in Butte County, South Dakota. Oster eventually stuck his car in a ditch. The two spent the night in the car waiting for daybreak.

At approximately 6:15 a.m., Oster, leaving his girlfriend with the car, reached the home of Larry Vissia. As Oster stood at the door, he requested help in getting his car back on the road. Although the two had never met, Vissia invited him inside to wait while he put on his boots. While Vissia was in another room putting on his boots, he closed the door to prevent his dog from escaping and bothering Oster. As Oster waited in the kitchen area, he noticed Vissia's wallet sitting on a cupboard. He apparently picked it up, looked through it, and then decided to steal the $34.00 out of it. Thereafter, Vissia exited the bedroom, found a tow rope, and together they drove to Oster's car whereupon they successfully put it back on the road. Both parties then went their separate ways.

Within the next two hours, Vissia picked up his wallet and discovered that his cash and a check were missing. He called the Butte County Sheriff's office and reported a theft. Deputy Sheriff Pomrenke was assigned to investigate the case.

One day after Deputy Pomrenke's investigation which led him to Oster, he contacted Oster and asked him to meet him at the Sheriff's office after 5:00 p.m. After arriving, Oster and Deputy Pomrenke began a tape recorded discussion concerning Oster's actions on the day in question. Less than ten minutes later, Oster confessed to taking the money.

DECISION

I. The indictment was sufficient.

Oster first alleges that his conviction should be overturned because the indictment was insufficient. For an indictment to be sufficient, it must state all the elements of the offense charged and fairly inform the defendant of the charge against him; and it must enable him to plead an acquittal of conviction in bar of future prosecutions for the same offense. United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980); State v. Younger, 453 N.W.2d 834 (S.D.1990); State v. Logue, 372 N.W.2d 151 (S.D.1985).

Oster's indictment for second degree burglary stated:

Count I Second Degree Burglary; That on or about the 13th day of April, 1991, in the county of Butte, state of South Dakota, MARVIN OSTER, JR. did enter or remain in an occupied structure, to-wit: Larry Vissia residence, Vale, Butte County, South Dakota, with the intent to commit the crime of theft therein, in violation of SDCL 22-32-3; and, contrary to the statute in such case made and provided against the peace and dignity of the state of South Dakota.

This indictment is not cloaked in mystery. The first words inform Oster of the offense charged. The elements of this crime correspond with the statute for second degree burglary. SDCL 22-32-3, as amended in 1989, states:

Any person who enters an occupied structure with intent to commit any crime other than the act of shoplifting or retail theft as described in chapter 22-30A constituting a misdemeanor, or remains in an occupied structure after forming the intent to commit any crime other than shoplifting as described in chapter 22-30A constituting a misdemeanor under circumstances not amounting to first degree burglary, is guilty of second degree burglary. Second degree burglary is a Class 3 felony.

This Court has consistently held that an indictment is generally sufficient if it employs the language of the statute or its equivalent. Younger at 840; Logue at 155; State v. Bingen, 326 N.W.2d 99 (S.D.1982); State v. Lange, 82 S.D. 666, 152 N.W.2d 635 (1967). Inasmuch as the language of the indictment properly incorporates the statutory law of South Dakota, we find the indictment to be sufficient.

II. Oster's confession was voluntary beyond a reasonable doubt.

During pre-trial motions, Oster sought to have his statements suppressed due to the failure of law enforcement officials to give Miranda warnings. The trial judge ruled that under State v. Perkins, 444 N.W.2d 34 (S.D.1989), the interrogation was not custodial, and thus the warnings were not required. Oster does not challenge this decision, but claims that the statements were involuntary, achieved by psychological coercion.

Under such a claim, State must prove beyond a reasonable doubt that incriminating statements or confessions were freely and voluntarily made. State v. Corder, 460 N.W.2d 733 (S.D.1990); State v. Dickey, 459 N.W.2d 445 (S.D.1990). The trial court must determine voluntariness through an examination of the totality of the circumstances. Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); State v. Albright, 418 N.W.2d 292 (S.D.1988). Because the trial court found the confession to be voluntary, that finding is binding upon this Court unless, upon review, we conclude that such a finding is clearly erroneous. State v. Jenner, 451 N.W.2d 710, 716 (S.D.1990); Albright at 297.

In response to Deputy Pomrenke's request, Oster voluntarily met with Pomrenke shortly after 5:00 p.m. at the Sheriff's office. No one but the deputy was present. Oster was made aware of the nature of the visit and was handed a newspaper article about the crime when he arrived. Pomrenke and Oster then went to a private room to discuss Vissia's missing money.

Pomrenke began taping the interrogation by noting that the time was after 5:00, and that Oster did not have to talk and was free to leave. Oster freely acknowledged that he would stay.

After explaining that he wanted to get things cleared up because Vissia had identified Oster in a photo lineup and believed that he was guilty, Oster responded to questions freely. However, Pomrenke noticed inconsistencies in Oster's answers, and would rephrase questions. Several times Oster denied taking the money. About eight minutes after this interview began, Pomrenke asked whether Oster might have had an opportunity to steal the money. After responding yes, the deputy asked once more whether he stole the cash, whereupon Oster confessed and offered to repay Vissia.

After the deputy told Oster that the consequences would be decided by the court, he permitted Oster to leave. The entire taped interview lasted only ten minutes. Oster now argues that the use of the newspaper, the mention of the photo lineup, and the repeated questioning add up to psychological coercion and should be suppressed.

Oster had been contacted by telephone when asked to come to the Sheriff's office. Oster drove his own car to the office. Pomrenke then informed Oster that he did not have to stay, the door was open, and he was free to leave. No other police were present. Even after admitting to the crime, Oster was allowed to leave on his own. Absent any element of police overreaching, there is simply no basis for concluding that Oster has been deprived of due process. Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).

The deputy knew Oster had been at Vissia's and thus suspected him of committing the crime. Oster voluntarily met with Pomrenke. After a less than grueling question and answer session, Oster blurted out a confession. As the facts indicate, Oster was not hot-boxed or in an ingenious cat and mouse game with television's famed Lieutenant Columbo. He confessed freely and candidly.

Oster has given this Court no reason to doubt the procedures of the Butte County Sheriff's Department or the decision of the lower court. Although we are at a loss as to why Oster suddenly confessed, we do conclude that the statements were voluntary and not the result of psychological coercion or police overreaching. The lower court carefully considered the suppression issue and had benefit of an on-site review of testimony. We do not deem its findings as clearly erroneous.

III. The trial court did not abuse its discretion by admitting Oster's taped statement into evidence.

During the State's case, the prosecution sought to have this incriminating tape admitted into evidence. Oster objected on the grounds...