State v. Phillips, 17621

Decision Date26 May 1992
Docket NumberNo. 17621,17621
Citation489 N.W.2d 613
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Darlene PHILLIPS, Defendant and Appellant. . Considered on Briefs
CourtSouth Dakota Supreme Court

Mark Barnett, Atty. Gen., Robert Mayer and Mark Smith, Asst. Attys. Gen., Pierre, for plaintiff and appellee.

Bruce A. Hubbard of Hansen & Hubbard, Sturgis, for defendant and appellant.

MILLER, Chief Justice.

Darlene Phillips appeals her conviction of conspiracy to commit murder in the first degree. We affirm.

FACTS

Phillips, her husband Jerome Phillips (Jerome), her twin sister Delores Christenson, and Delores' daughter (Robin) all moved into Walter Gibbs' home in Lemmon, South Dakota, in February, 1989. At that time, Gibbs, age 84, was living in a nursing home in Lemmon. Sometime shortly thereafter, Gibbs returned to his home, where Phillips and Christenson were going to care for him. Prior to 1989, both Phillips and Christenson had twice been married to and divorced from Gibbs.

As of April, 1989, Gibbs' will left all of his property to his cousin, Bernice Beoettner, except for his home in Lemmon, which he left to Christenson. On January 5, 1990, Gibbs changed his will, making Christenson his sole beneficiary. On January 8, 1990, while driving to Jerome's brother's funeral in Redfield, South Dakota, Phillips and Jerome first discussed killing Gibbs in order to "activate the will." Phillips suggested manipulating Gibbs' medications.

In late February, 1990, Phillips, Jerome, and Christenson further discussed killing Gibbs. They developed a plan to kill him over the next several weeks. The original plan involved manipulating his medications; however, it was later suggested they smother him with a pillow. Gibbs died April 1, 1990, from what was originally thought to be natural causes.

Sometime after Gibbs' death, Phillips was sentenced to the Springfield Correctional Facility in Springfield, South Dakota, on an arson conviction. 1 While she was incarcerated, Phillips confided to Gayle Baskin, who was also an inmate at the prison, that Gibbs had not died of natural causes but, in fact, had been murdered. Phillips told Baskin that she had been involved in the murder.

Through various third parties, Baskin contacted Robert Overturf, Special Agent for the Division of Criminal Investigation (DCI). Baskin told Agent Overturf that she had information concerning a crime that had been committed. Agent Overturf and Special Agent Jim Vlahakis met with Baskin at the Springfield Correctional Facility. After speaking with Baskin, Agents Overturf and Vlahakis met with Phillips. At Phillips' insistence, Baskin was present for the interview. During this interview, Phillips gave a statement which indicated that Gibbs did not die of natural causes and that she had been part of a plan to kill him.

On December 27, 1990, Phillips, Jerome, and Christenson were indicted on charges of aiding and abetting both first- and second-degree murder and conspiracy to commit both first- and second-degree murder. Thereafter, Jerome pled guilty to conspiracy to commit second-degree murder. A joint trial was held for Phillips and Christenson. Jerome testified for the State. Neither Phillips nor Christenson testified. According to the testimony, Phillips held Gibbs' hands down while a pillow was held over his face by Jerome, thereby smothering Gibbs. Phillips was convicted on the charge of conspiracy to commit murder in the first degree. Christenson was acquitted on all counts.

On appeal, Phillips raises the following issues: (1) whether the trial court improperly denied Phillips' suppression motion; (2) whether the trial court erred in denying Phillips' motion to dismiss the charges associated with first-degree murder; and (3) whether the trial court erred in allowing testimony from certain witnesses.

DECISION
I.

WHETHER THE TRIAL COURT ERRED IN DENYING PHILLIPS' MOTION TO SUPPRESS.

Phillips argues that the trial court erred in finding that Phillips had re-initiated contact with law enforcement officers and that she had voluntarily, knowingly, and intelligently waived her Miranda rights. This court will uphold the trial court's findings unless they are clearly erroneous. State v. Blue Thunder, 466 N.W.2d 613, 616 (S.D.1991); State v. Braddock, 452 N.W.2d 785, 788 (S.D.1990); State v. Jenner, 451 N.W.2d 710, 716 (S.D.1990); State v. Gregg, 405 N.W.2d 49, 52 (S.D.1987); State v. Woods, 374 N.W.2d 92, 98 (S.D.1985).

Through a series of events, two DCI Agents (Overturf and Vlahakis) arrived at the Springfield Correctional Facility to interview Phillips about Gibbs' death. The agents were not armed and they were dressed in coats and ties. Phillips knew that investigators were coming to Springfield to interview her. At the beginning of the interview, Phillips requested that Baskin be present. They stopped the interview and sent for Baskin.

Once Baskin arrived, a tape recorder was turned on and Agent Overturf read Phillips her Miranda rights. She waived those rights. However, she was asked again whether she wanted an attorney. She responded by asking if an attorney was present, to which Agent Overturf said "no." Phillips then asked how soon he could get her an attorney. He replied that he could not get her one right away and that if she wanted an attorney, the interview had to end.

At that time, Agent Overturf ended the interview and left the room to call the Attorney General's Office. 2 Agent Vlahakis remained in the room with Phillips and Baskin. When Agent Overturf returned to the room, Phillips indicated that she wanted to make a statement. Agent Overturf turned the tape recorder back on and re-Mirandized Phillips. At this time, she stated that she had reapproached the agents and that she would give them her statement without an attorney present. She stated she had not been forced or coerced into making this statement.

The South Dakota Constitution, art. VI, Sec. 9, provides in part: "No person shall be compelled in any criminal case to give evidence against himself...." The United States Supreme Court has said:

To protect the privilege of self-incrimination guaranteed by the Fifth Amendment, we have held that the police must terminate interrogation of an accused in custody if the accused requests the assistance of counsel.

Minnick v. Mississippi, 498 U.S. 146, ----, 111 S.Ct. 486, 488, 112 L.Ed.2d 489, 494 (1990); Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694, 723 (1966). See also State v. Wiegers, 373 N.W.2d 1 (S.D.1985). The Miranda protections were reinforced in Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378, 386 (1981): "[O]nce the accused requests counsel, officials may not reinitiate questioning 'until counsel has been made available' to him." Minnick, 498 U.S. at ----, 111 S.Ct. at 488, 112 L.Ed.2d at 494 (quoting Edwards, supra ). However, an accused "having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1885, 68 L.Ed.2d at 386 (emphasis added). See also Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988); Minnick, supra. This rule is to ensure that the defendant is not coerced into making any statements in subsequent police interrogations. Id.

A defendant can waive his privilege against self-incrimination and the rights that go along with it, provided that the waiver is made voluntarily, knowingly, and intelligently. Miranda, supra. To determine whether the waiver was made voluntarily, knowingly, and intelligently, we must look to the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); State v. Hartley, 326 N.W.2d 226 (S.D.1982); State v. Cody, 293 N.W.2d 440 (S.D.1980). We must also consider whether the defendant knew of the nature of the offense for which he was charged or suspected. Cody, supra. State has a heavy burden of demonstrating beyond a reasonable doubt that defendant voluntarily and knowingly waived his rights, and the courts must indulge in every reasonable presumption against waiver. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Cody, supra.

State v. Holland, 346 N.W.2d 302, 305 (S.D.1984). See also Braddock, 452 N.W.2d at 788; Gregg, 405 N.W.2d at 52; State v. West, 344 N.W.2d 502, 504 (S.D.1984).

Based on this record, we cannot say the trial court was clearly erroneous in finding that Phillips was the one to re-initiate the interview and that Phillips voluntarily waived her right to an attorney.

II.

WHETHER THE TRIAL COURT ERRED IN DENYING PHILLIPS' MOTION TO DISMISS THE CHARGES RELATED TO FIRST-DEGREE MURDER.

Phillips argues that the trial court erred in denying her motion to dismiss the charges relating to first-degree murder. This argument is based on Jerome Phillips' plea. Jerome was originally charged as a co-conspirator with Phillips; however, he later pled guilty to conspiracy to commit murder in the second degree. Phillips argues that "[h]aving decided on the merits to allow him [Jerome] to plead guilty to the lesser conspiracy charge [second-degree murder], the State then defined the nature of the conspiracy, not only for Jerome Phillips, but also for the other two alleged co-conspirators."

It is important to note that Phillips has not cited a single authority which supports this argument. We have repeatedly held that failure to cite authority violates SDCL 15-26A-60(6), and constitutes a waiver of that issue. State v. Lykken, 484 N.W.2d 869 (S.D.1992); Ashker v. Solem, 457 N.W.2d 473, 478 (S.D.1990); Nielsen v. McCabe, 442 N.W.2d 477, 480 (S.D.1989); ...

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