State v. Thundershield

• Decision Date: 23 July 1968
• Docket Number: No. 10336,10336
• Citation: 83 S.D. 414,160 N.W.2d 408
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Bedie THUNDERSHIELD, a/k/a 'Bede' Thundershield and Cecelia Thundershield, Conjointly, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 408

160 N.W.2d 408

83 S.D. 414

STATE of South Dakota, Plaintiff and Respondent, v. Bedie THUNDERSHIELD, a/k/a 'Bede' Thundershield and Cecelia

Thundershield, Conjointly, Defendants and

Appellants.

No. 10336.

Supreme Court of South Dakota.

July 23, 1968.

Elmer Leroy Hill, Belle Fourche, for defendants and appellants.

Frank L. Farrar, Atty. Gen., Walter W. Andre, Asst. Atty. Gen., Pierre, William E. Anderson, State's Atty., Belle Fourche, for plaintiff and respondent.

HANSON, Presiding Judge.

Bedie Thundershield and his wife, Cecelia, were conjointly charged and found guilty of the crimes of (1) Assault, other than felonious, with a dangerous weapon, (2) Robbery in the first degree, and (3) Grand Larceny. On appeal they assert their constitutional rights were violated by admitting in evidence incriminating statements made to the sheriff after arrest and detention.

All of the crimes arise out of an incident involving Isaac 'Ike' Karinen on May 18, 1965 at which time defendants were in Nisland looking for work. Early in the morning of that day they met Ike who offered to help find employment. For this ostensible purpose the three rode around the Nisland area together in Ike's 1949 Chevrolet. Most of the time was spent drinking copious quantities of wine and other intoxicating beverages.

In the afternoon they drove south of Nisland a few miles and stopped at a remote place on the bank of Stinking Water Creek. According to the State's evidence which included admissions made by defendants, Ike and Cecelia walked down to the creek to see where Ike fished. A little while later Bedie came down and beat Ike with a hammer. During the fray Cecelia took Ike's wallet and defendants left in Ike's car. Ike was found later in a bloody and battered condition suffering from a concussion and multiple cuts and abrasions about his head and body.

Defendants were apprehended later in the day at Faith, South Dakota driving Ike's car. They were arrested by the town marshal for public intoxication and placed in the city jail. About noon next day they were released to the Sheriff of Butte County on a warrant for grand larceny. The sheriff read the warrant to defendants, which was for the theft of Ike's car. The sheriff also advised defendants they didn't have to tell him anything if they didn't want to and they could talk to an attorney if they desired. Defendants were then taken back to Belle Fourche by the sheriff and two deputies. One deputy drove Ike's car back to Newell where the group stopped for lunch. During the trip defendants admitted beating Ike and taking his car. They also directed the officers to the scene of the crime where blood stained grass, rocks and a ball peen hammer were found.

Defendants testified in their own behalf at the trial which was held on December 6, 1965. They admitted their association with Ike Karinen on the day of the crime and did not deny assaulting him or driving away with his car. However, their version of what transpired at Stinking Water Creek differed somewhat from their earlier admissions. According to their testimony Bedie was so intoxicated he passed out when the party stopped at the creek. Ike dragged Cecelia down to the bank of the creek where he had intercourse with her against her will. After some interval of time Bedie came to. Hearing Cecelia scream he went to her aid by beating and kicking Ike. Afterwards Ike was so remorseful about his conduct toward Cecelia that he gave her his money and the keys to his car. He then told defendants he would walk back to Nisland. This conflict in evidence as to what provoked the assault and what transpired at the creek were the main issues at the trial which the jury resolved in favor of the state.

Relying upon Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (June 22, 1964) as authority, defendants contend the incriminating statements made by them to the Butte County Sheriff following arrest were involuntary and inadmissible in evidence. Escobedo holds that where 'the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied 'the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as 'made obligatory upon the States by the Fourteenth Amendment' * * * and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.' However, the facts and sum total circumstances in the two cases are not comparable. Escobedo was not advised of his right to remain silent or of his right to an attorney. He repeatedly requested and was denied the right to consult with his attorney who was present at the police station where the prolonged interrogation took place. Defendants in the present action were not denied similar rights and their incriminating statements were apparently freely and voluntarily expressed.

It furthermore appears that the trial judge conducted a preliminary investigation of facts outside the presence of the jury and determined the statements were voluntarily made before allowing them to be introduced as evidence. The issue of voluntariness was not submitted to the jury. This procedure conformed to the orthodox rule approved by the United States Supreme Court 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. The court also approved the Massachusetts rule but held the New York procedure for determining the voluntariness of confessions violated the due process clause of the Fourteenth Amendment. In doing so the court said 'It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760, and even though there is ample evidence aside from the confession to support the conviction. Malinski v. People of State of New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029; Stroble v. State of California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872; Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975. Equally clear is the defendant's constitutional right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession.'

Under the New York rule the trial judge made a preliminary determination regarding the voluntariness of a confession and excluded it if deemed involuntary. If the evidence presented a fair question as to voluntariness, the confession was allowed in evidence and the jury, under proper instructions, made the final determinations as to its voluntary character and also its truthfulness. According to Jackson v. Denno 'This procedure has a significant impact upon the defendant's Fourteenth Amendment rights. In jurisdictions following the orthodox rule, under which the judge himself solely and finally determines the voluntariness of the confession, or those following the Massachusetts procedure, under which the jury passes on voluntariness only after the judge has fully and independently resolved the issue against the accused, the judge's conclusions are clearly evident from the record since he either admits the confession into evidence if it is voluntary or rejects it if involuntary. Moreover, his findings upon disputed issues of fact are expressly stated or may be ascertainable from the record. In contrast, the New York jury returns only a general verdict upon the ultimate question of guilt or...