State v. Smith, 19744

Decision Date04 December 1997
Docket NumberNo. 19744,19744
Citation573 N.W.2d 515,1998 SD 6
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Michael Lee SMITH, Defendant and Appellant. . Considered on Briefs
CourtSouth Dakota Supreme Court

Page 515

573 N.W.2d 515
1998 SD 6
STATE of South Dakota, Plaintiff and Appellee,
v.
Michael Lee SMITH, Defendant and Appellant.
No. 19744.
Supreme Court of South Dakota.
Considered on Briefs Dec. 4, 1997.
Decided Jan. 14, 1998.

Mark Barnett, Attorney General, Timothy Bartlett, Assistant Attorney General, Pierre, for plaintiff and appellee.

Gary W. Conklin of Galland Legal Clinic, Sioux Falls, for defendant and appellant.

PER CURIAM.

¶1 Michael Lee Smith appeals from a judgment of conviction for accessory to murder and conspiracy to commit murder. We affirm.

FACTS & PROCEDURE

¶2 Smith and four co-defendants conspired to commit murder and carried out their plan to completion on July 9, 1995. Co-defendant Robert Power offered Smith $10,000 or two pounds of methamphetamine to commit the murder of Mary Kay Ross. Smith declined but agreed to find someone for Power who would be willing to kill Ross. Smith introduced Power to two of the co-defendants. Smith agreed to handle the payment for Power and was to receive $1500 to $2000 for his services. Power gave Smith a key to Ross' apartment and a map of its floor plan and indicated the murder needed to take place the weekend of July 9, 1995, when Power's wife would be out of the state. Smith did not participate in the murder act itself but assisted in the destruction and concealment of evidence thereafter.

¶3 On August 1, 1995, Smith provided two videotaped interviews to police which corroborated the version of the murder and the planning leading up to it given by his co-defendants and three other State witnesses. These video tapes were admitted into evidence, following denial of Smith's motion to suppress, with all references to prior convictions, probation, probation officers, and the penitentiary deleted for the jury.

¶4 Smith was convicted of accessory to murder and conspiracy to commit murder following a jury trial at which all four co-defendants, each having entered guilty pleas, testified against him. At a subsequent trial,

Page 517

he was found to be an habitual offender. He was sentenced to ten years on the accessory count and life imprisonment without parole on the conspiracy count, sentences to run concurrently.

¶5 Smith appeals two issues relating to the videotaped interviews: 1) Whether the trial court abused its discretion in denying his motion to suppress his videotaped statement to police; and 2) Whether the trial court abused its discretion in allowing the jury to review the videotape after deliberations had begun.

ANALYSIS & DECISION

¶6 1. Whether the trial court abused its discretion in denying Smith's motion to suppress his videotaped statement to police?

¶7 Smith claims his right against self-incrimination under the Fifth and Fourteenth Amendments to the United States Constitution and Article VI, Section 9 of the state constitution was violated because his videotaped statements were involuntary. Involuntary and coerced admissions are suppressed because of the inherent unreliability of a confession wrung from an unwilling suspect by threats, brutality, or other coercion. This Court reviews decisions of trial courts on motions to suppress under an abuse of discretion standard. State v. Gesinger, 1997 SD 6, p 8, 559 N.W.2d 549. The State must prove beyond a reasonable doubt that defendant's statements were voluntary and a finding of voluntariness by the trial court is binding upon this Court unless it is found to be clearly erroneous. Id. at p 9. On review, the evidence is considered in the light most favorable to the trial court's finding. Id. (citing State v. DeNoyer, 541 N.W.2d 725, 731 (S.D.1995)).

¶8 When this Court examines a claim of involuntariness, it considers "the effect the totality of the circumstances had upon the will of the defendant and whether the defendant's will was overborne." State v. Thompson, 1997 SD 15, p 29, 560 N.W.2d 535, 541-42 (citing State v. Darby, 1996 SD 127, p 28, 556 N.W.2d 311, 319; State v. Dickey, 459 N.W.2d 445, 447 (S.D.1990)). Factors considered in this examination include: 1) the defendant's age; 2) the defendant's lack of education or low intelligence; 3) the absence of any advice to the defendant of his constitutional rights; 4) the length of detention; 5) the repeated and prolonged nature of questioning; and 6) the use of physical punishment such as deprivation of food or sleep. Id. A defendant's prior experience with law enforcement officers and the courts is also a factor this Court considers. Darby, 1996 SD 127 at p 30, 556 N.W.2d at 320. The question is not whether the interrogators' statements were the cause of the confession but whether those statements were so manipulative or coercive that they deprived Smith of his ability to make an unrestrained, autonomous decision to confess. Gesinger, 1997 SD 6 at p 12, 559 N.W.2d at 551.

¶9 The two interviews, which were the subject of Smith's motion to suppress and are the subject of this appeal, took place at the Sioux Falls police station on August 1, 1995. Both interviews were videotaped in their entirety. The record shows that Smith was 21 years old at the time and had completed eleventh grade. He had previous experience dealing with law enforcement and the judicial system. In August 1994, Smith pled guilty to felony grand theft. He had previously spent time in the penitentiary and, just ten days prior to these interviews, was incarcerated in the Minnehaha County jail. He had been questioned by these same detectives on previous occasions. On this occasion, Smith answered questions of two police detectives behind closed, but not locked, doors. 1 He was not deprived of food or water and was allowed to bring a beverage into the room and to smoke during questioning. The longer of the two interviews lasted less than one and one-half hours.

¶10 The first interview on August 1, 1995 began at 1:15 p.m. and ended at 2:40 p.m. Smith was not given Miranda warnings and

Page 518

was in fact told he was not under arrest and that he was free to leave at any time. This interview came about when he voluntarily accompanied his girlfriend to the station house as she was to be questioned regarding the Ross murder. Smith was at his girlfriend's home when the police arrived. In the driveway of his girlfriend's home, Detective VanBuskirk told Smith that the police had an opportunity to get everything straightened out that day and asked if he would come along. On this day, police interviewed several of the suspected participants. They had a fairly strong idea that Power was involved but there was a question regarding what, if anything, Smith and his girlfriend knew about the crime. Smith accepted a ride from police detectives and sat in the passenger seat. Both Smith and his girlfriend had been questioned before by police regarding the Ross murder and both knew the questioning on this date concerned the Ross murder. 2 Upon arrival at the station house, Smith walked past one of the co-defendants who had actually committed the murder and who had just been questioned. Following this interview, Smith agreed to remain at the police station for a possible re-interview.

¶11 During and subsequent to this first interview of Smith on August 1, officers were in other interrogation rooms interviewing his girlfriend and three individuals who would later be his co-defendants. Each implicated Smith in the conspiracy to murder Ross. Before the start of Smith's second interview on August 1, 1995, which began at 4:50 p.m. and ended at 5:17 p.m., the police felt Smith had been transformed from one possibly having knowledge about the crime to a prime player in the case. They decided to place him in custody. Smith was Mirandized prior to the second interview and was not, in fact, free to leave. He waived his right to an attorney and agreed to speak with detectives.

¶12 On appeal, Smith claims his statements during both interviews were involuntary and offers the following "evidence" to show his will was overborne and his confession coerced by police: he was under the influence of drugs during the interview; he was considered a possible participant in the murder; he was assured he would be "walking out" of the police station after questioning; he was provided with false representations regarding what others had said; and he was told he could not see his girlfriend until he told the truth and that after he did so, he could begin a new life with her. He claims that, most of all, his "precarious emotional state" regarding his girlfriend during the interviews warrants reversal of the trial court's finding of voluntariness. 3

¶13 Although Smith has an admitted history of methamphetamine abuse, the trial court found he did not appear to be under the influence of drugs when he gave the statements he later attempted to suppress. 4 Smith told...

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