State v. Seal

• Decision Date: 16 August 1968
• Docket Number: No. 10461,10461
• Citation: 83 S.D. 455,160 N.W.2d 643
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. David SEAL, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 643

160 N.W.2d 643

83 S.D. 455

STATE of South Dakota, Plaintiff and Respondent, v. David SEAL, Defendant and Appellant.

No. 10461.

Supreme Court of South Dakota.

Aug. 16, 1968.

Arend E. Lakeman, Mobridge, for defendant and appellant.

Frank L. Farrar, Atty. Gen., Thomas R. Vickerman, Asst. Atty. Gen., Pierre, Robert L. Tschetter, State's Atty., McIntosh, for plaintiff and respondent.

HOMEYER, Judge.

Defendant, David Seal, appeals his conviction of the crime of grand larceny. The sole question presented is the admissibility of an incriminating statement purported to have been made by appellant and used by the state at the trial in securing his conviction.

Appellant is a Texan who came to South Dakota about mid-September 1966 to work as a ranch hand for Jerry Smith, a fellow Texan. Smith had extensive ranching interests in Corson County southwest of Mobridge. At about 4:00 a.m. on October 28, 1966, at Valentine, Nebraska, appellant was driving a pickup with a horse trailer attached, when stopped by a police officer. Jerry Smith was riding with him. In the trailer were 3 Hereford bulls and a yearling steer. The pickup and trailer were the property of Smith. Because one of the animals appeared to have a brand, and the possessors did not have a bill of sale or other clearance on the cattle, inspectors were summoned and it was discovered that the steer bore the registered brand of Absalom Rye of Mobridge. Telephone calls resulted in Rye, Harry Kittleson, Sheriff of Corson County, and Clayton Vickmark, identification agent for the South Dakota Department of Criminal Investigation, traveling to Valentine where at about 3:00 p.m. that day Rye positively identified the steer and 3 bulls, which bore the registered brand of his son, Harold Rye, as the property of the two Ryes.

At this juncture Smith informed the inspectors that 'Dave (appellant) has got something he wants to tell you'. Shortly thereafter in the sheriff's office at Valentine with Smith, appellant, and inspectors Nelson and Bailey present, and after the officers read a card reciting Miranda warnings and rights, ¹ appellant said: 'Jerry didn't have anything to do with this' and that he had loaded the cattle in the open. Concerning a previous load of cattle he had hauled to Texas, appellant said they were at his place at Tell, Texas. Appellant's version and that of the officers is essentially the same concerning what occurred and what was said at this time. Inspector Bailey also testified that in advance of the conversation he said: 'You fellows are as of now under arrest for a felony out of South Dakota.'

After this Sheriff Kittleson explained that extradition procedures would have to be followed unless they voluntarily waived them. Appellant and Smith both signed extradition waivers and were permitted to drive back in the pickup with instructions to report to the sheriff at his office at McIntosh, South Dakota, the next morning.

On October 29, 1966, appellant and Smith accompanied an attorney, whom Smith had arranged for, from Mobridge to McIntosh. They arrived at the sheriff's office at about 9:30 a.m. Appellant was instructed to remain at the sheriff's office while Smith and the attorney went to a Mobil station nearby. The prosecuting attorney was at the station and had a conversation with the Mobridge attorney in which he was informed that the attorney was representing Smith and the prosecutor advised that Smith would not be arraigned at this time. In response to a question from the prosecutor, the Mobridge attorney then stated that he did not represent appellant because 'There would be a conflict of interest.'

Shortly thereafter the prosecutor drove his car in front of the courthouse and while Smith and the Mobridge attorney were absent, appellant was told by the sheriff he (appellant) had to talk to the prosecutor. Appellant was then taken into the front seat of the prosecutor's car and the sheriff occupied the back seat. The sheriff's testimony is contradictory, vague, and indecisive. He could not recall what was said in the conversation. Appellant testified he asked for an attorney, but the prosecutor kept asking questions. The prosecutor's version of what occurred is not entirely clear or consistent. ² Appellant was arraigned munutes after the incriminating statement was made. Smith was present at the arraignment and informed the magistrate that appellant had a lawyer. Bail was fixed at $1,000 and Smith furnished a cash bond in that amount for appellant.

Appellant's defense was that he believed the cattle belonged to Smith and were being transported to Smith's ranch in Texas. That the statement he made to the inspectors at Valentine was under the influence of and upon urging by Smith who represented that he would obtain a bill of sale to the cattle and prevent prosecution. At the trial the former prosecutor ³ testified:

'Q * * * Then what took place in the conversation (in his car) after that? A I asked him about the cattle that were caught, taken down in, apprehended down in Valentine, Nebraska.

'Q The Ab Rye cattle, were it? A He said they were Abe Rye's. Abe Rye, I believe he said. I don't believe he said Absalom, but Abe Rye. And I said, 'Well, how did you know that those were Abe Rye's cattle?' He said, 'I helped round those cattle up on Wednesday and they were left out there at his place, the 3 bulls and a steer'. And then he said that--I said, 'How did you get those cattle loaded?' I said, 'You'd sure have to have some help to load cattle out there'. He said, 'No, I loaded them alone. I loaded them out there on the right-of-way near Abe Rye's place.' And I again asked him if he knew whose cattle they were and he said yes, he did, they were Abe Rye's. And, oh, we had other discussion there and finally I asked him about some other cattle that we were interested in that we had known had been missing in that area and he said, 'I would rather not discuss that'. And I didn't ask him any more questions about that then.'

The trial judge told the jury he had admitted the purported incriminating statement and the facts and circumstances surrounding its making, and instructed if they found it was made 'freely and voluntarily * * * then you should take it into consideration with all the other evidence in the case in determining the guilt or innocence of the defendant.' If they believed it was not made freely and voluntarily they were instructed to disregard it.

A preliminary hearing was held outside the presence of the jury on the admissibility of this statement. Testimony was offered by both sides. At the conclusion of the hearing, the trial judge admitted the statement. In so doing, however, it is plain he misconceived the import of the Supreme Court decision in Jackson v. Denno (June 22, 1964), 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205 and its effect on our prior decisional law. See State v. Thundershield, S.D., 160 N.W.2d 408, decided by this court on July 23, 1968. He appears to have admitted the statement because he felt on conflicting evidence and inferences there was a fact question to be decided by the jury on voluntariness of the statement ⁴ and not because he found it voluntary. Specifically he also instructed the jury if the officers did not give the Miranda warnings ⁵ before the statement was made, it should not be considered unless appellant 'knowingly and intelligently waived his right to remain silent and to be represented by an attorney and affirmatively agreed to answer questions or make a statement.'

Where voluntariness is contested after all of the proof of the state and the defendant has been submitted without the presence of the jury (1) the trial judge Must make his own finding as to whether the State has sustained the burden of proving that the incriminating statement or confession is voluntary, and (2) if he finds it to be voluntary and hence admissible he will admit it in evidence without disclosing his own finding to the jury. The duty of the trial judge to make an independent determination as to voluntariness of an incriminating statement or confession is a constitutional requirement, Jackson v. Denno, supra, and responsibility for such determination cannot be shifted to the jury. This is true both under the orthodox rule and the Massachusetts rule. Under the former, the jury is not concerned with the admissibility of the statement or confession, but only with its credibility. Under the latter the jury is instructed to disregard the statement or confession if they find it was not voluntarily given. ⁶ Whether or not the Miranda warnings were given, and if so, whether or not they were knowingly and intelligently waived were fact questions basic to the issue of voluntariness and the trial judge was required to make his decision thereon. The record does not satisfy us that he made this determination, but on the contrary it strongly indicates that he did not and left the decision to the jury. This he could not do.

Accordingly, this case would ordinarily have to be remanded to the trial court for determination of the question of voluntariness under the guidelines of Jackson v. Denno, supra; however, for reasons to be stated we have concluded that the court erred constitutionally when it admitted the incriminating statement necessitating reversal and a new trial. We refer to some of the cases which cause us to come to this conclusion.

In Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, a federal prosecution, it was held incriminating statements deliberately elicited by federal agents from an accused after arraignment and while free on bail in the absence of his attorney was a deprivation of right to counsel the Sixth Amendment and could not be constitutionally used as evidence against him in his trial.

Massiah was closely followed by Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977,...