State v. Dickey

MILLER, Justice.

In this opinion we affirm convictions of first-degree rape and first-degree burglary holding that (1) defendant’s admissions to police were voluntary, (2) evidence of other bad acts was admissible, and (3) there was sufficient evidence to support the convictions.

FACTS

C.S. and five other young women were living in a house off campus while attending Augustana College in Sioux Falls, South Dakota. C.S. testified that on August 18, 1988, she had gone to bed about 1:00 a.m. Sometime after 3:00 a.m., she remembers “feeling that someone was watching [her] or feeling that someone was in [her] bedroom[.]” She sat up and observed an individual standing at the foot of her bed. She could only make out a shadow or silhouette. She screamed and the intruder came over and covered her mouth. She tried to push him away, not sure what was happening. He told her, “shut up or I’ll cut your throat, bitch. Shut up or I’ll kill you. Close your eyes. You shouldn’t leave your doors unlocked, bitch.” Additionally, the intruder, told her to quit fighting and cover her face. She began to cry and he placed a pillow over her face.

Anal and vaginal penetration were achieved against C.S.’s will. Subsequent thereto, the intruder masturbated himself on her feet, ejaculating on her legs and the bed sheets. He asked C.S. where the washer and dryer were, to which she replied there weren’t any. He then stated that he would have to take the sheets. She testified that he used the sheets to wipe off every item he had touched. He made C.S. take a shower. Before he left, he told her that she was not to contact the police and if she did he would come back and kill her. After he left, C.S. checked the house to see if all the doors were locked. She discovered that the sliding glass door at the rear of the house was open. C.S. woke up one of her roommates and informed her of what had happened and then reported the incident to the police.

During the course of the investigation, S.K., roommate of C.S., reported that approximately one week before the rape a man, who she later identified as Dickey, walked through the hedge into their backyard where she was sunbathing. S.K. testified that he was wearing only tennis shoes and running shorts. Immediately prior to this incident, two other roommates (P.G. and J.S.) observed this individual walk by the front of their house.

Sometime in September, S.K. (while in company with another roommate, D.N.) again observed Dickey at a local dance bar in Sioux Falls. Conducting their own investigation, they visited and danced with Dickey in order to get a better look at him.

Two days later, C.S., S.H., S.K., D.N., and J.S. observed Dickey in the Augustana library (he was not a student). C.S. testified that when he saw her he looked “very surprised. Shocked.”

Dickey was later indicted and convicted of first-degree burglary and first-degree rape. He appeals the convictions.

DECISION

ISSUE I

WHETHER DICKEY’S ADMISSIONS DURING POLICE INTERROGATION WERE COERCED AND INVOLUNTARY.

Dickey primarily focuses on an interrogation conducted by police on September 16, 1988. It is undisputed that Dickey was not “in custody” during the interrogation and that he was not given the Miranda warnings. The focus of our discussion addresses whether the admissions and statements of Dickey were the product of police coercion, i.e., were they voluntary? See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Dickey asserts that promises were made to him and used to coerce him during the September 16, 1988, interrogation. Dickey refers us to the following statements during the interrogation by Detective Thompson which he claims are incidents of coercion:

1. “I thought we could handle it this way.”

2. “I’m trying to get you help.”

3. “This is not a big deal, but we want to get you some help.... ”

4. “What I’m interested in is getting you counseling, getting you help with this one problem.”

5. “... I’m not interested in throwing you in jail, ...”

6. “I can lead and guide you and get you help through counseling or whatever you need or whatever the experts think you need.”

7. “... before I can go to somebody and get you some help, I have to know exactly what happened....”

8. “I’ve gone out on a limb, I’ve tried to help you with this.”

9. “... tell me what happened in the house and get on with life.”

10. “... giving you a second chance, sticking my neck out with my superiors to give you a second chance.”

The State must prove beyond a reasonable doubt that such statements or confessions were freely and voluntarily made. See State v. Jenner, 451 N.W.2d 710, 716 (S.D.1990) (citing State v. Faehnrich, 359 N.W.2d 895, 898 (S.D.1984); State v. Janis, 356 N.W.2d 916, 918 (S.D.1984)). At the suppression hearing, the trial court found that the statements made by Dickey were voluntary. That finding is binding on us and will not be overturned unless we determine it to be clearly erroneous. Jenner, supra; Faehnrich, supra.

The test for determining voluntariness of incriminating statements or confessions requires a review of the totality of the circumstances. Jenner, supra; State v. Hartley, 326 N.W.2d 226 (S.D.1982); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (confession is voluntary if it is made freely and unconstrainedly).

As the United States Supreme Court has noted, “[t]he line between proper and permissible police conduct and techniques and methods offensive to due process is, at best, a difficult one to draw, particularly in cases ... where it is necessary to make fine judgments as to the effect of psychologically coercive pressures and inducements on the mind and will of an accused.” Haynes v. Washington, 373 U.S. 503, 515, 83 S.Ct. 1336, 1344, 10 L.Ed.2d 513, 521 (1963); Miller v. Fenton, 796 F.2d 598 (3rd Cir.1986).

As stated earlier, to determine the volun-tariness of a confession, the court must consider the effect the totality of the circumstances had upon the will of the defendant. Miller, supra. The question in each case is whether the defendant’s will was overborne. Id. The factors to be considered include: The youth of the accused; his lack of education or his low intelligence; lack of any advice to the accused of his constitutional rights; the length of detention; the repeated and prolonged nature of questioning; and, the use of physical punishment such as the deprivation of food or sleep. Hartley, supra; Schneckloth, supra.

It is generally recognized that the police may use some psychological tactics in eliciting a statement from a suspect. Miller, supra at 605. For example, an interrogator may play on the suspect’s sympathies or explain that honesty might be the best policy for a criminal who hopes for leniency from the state. Rachlin v. United States, 723 F.2d 1373 (8th Cir.1983); Miller, supra. These ploys may play a part in the suspect’s decision to confess, but, so long as that decision is a product of the suspect’s own balancing of competing considerations, the confession is voluntary. Miller, supra; Hartley, supra. Therefore, the question we must answer is not whether the interrogators’ statements were the cause of Dickey's confession, but whether those statements were so manipulative or coercive that they deprived Dickey of his ability to make an unconstrained, autonomous decision to confess. Id.

We fail to see how the remarks of the detective could be construed to be coercive. His obvious intent was to seek professional help for Dickey assuming it was needed. In fact, Dickey did receive such help at a later date. Additional evidence of volun-tariness is found in the testimony of Detective Thompson. He testified that at one point during the interrogation he became frustrated with the interview and told Dickey it was over. He indicates that Dickey said, “no, no” and went over to the door and blocked Detective Thompson’s exit, stating that he did not want the interview to end. Dickey admitted this on cross-examination.

Finally, we find most interesting and compelling the following colloquy which took place between Dickey and the prosecutor during cross-examination at trial.

Q Now, when you spoke to Detective Thompson on September 16th, you did so voluntarily, didn’t you?

A First meeting?

Q Second meeting, I guess is what I’m talking about.

A Yes.

Q When had you first — you talked to Agent DeVaney, then you talked to Detective Thompson?

A Okay. Yeah. Second time.

Q That was all voluntary on your part?

A Yes, sir.

Q Nobody forced you to do it?

A No.

Obviously, Dickey did not feel coerced!

The trial court found Dickey to be reasonably intelligent, to have the substantial capacity to resist pressure, that the conduct of the police was not coercive but meant to suggest that telling the truth would be in his best interest, and that in addition under the totality of the circumstances his will had not been overcome and his statements during the September 16 interview were voluntary. “In reviewing the trial court’s findings on voluntariness, we consider the evidence in the light most favorable to the finding.” Jenner, supra at 716. We hold that this finding by the trial court is not clearly erroneous. Jenner, supra. The proper factors were considered and a determination made in accordance therewith. The trial court did not err in holding that the statements were voluntary and admissible.

ISSUE II

WHETHER EVIDENCE OF PRIOR ACTS SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE AS IRRELEVANT AND PREJUDICIAL.

Dickey had moved to suppress incidents of prior window peeking at C.S.’s and other residences. The trial court ruled that testimony concerning these acts, which occurred at the victim’s residence, were admissible to prove motive, intent and identity; however, other incidents of window peeking in the Sioux Falls area were not. Evidence and testimony regarding the incidents at C.S.’s residence were thus admitted at trial.

During interrogation, Dickey admitted to having committed several acts of window peeking at C.S.’s residence. He testified that on one occasion he masturbated while peering through a window. Additionally, he admitted to walking through a hedge into the backyard of the residence and observing S.K. sunbathing and visiting with her until she went into the house through the patio door.

Dickey asserts that it was an abuse of discretion for the trial court to permit testimony of the window peeking activities. He argues that the prejudicial effect outweighs its probative value. Additionally, he contends that these acts were not shown to be relevant.

State contends that SDCL 19-12-5¹ permits introduction of these acts because they evidence preparation, plan, knowledge, and identity.

The test for determining whether evidence of other crimes or wrongs was properly admitted against a defendant involves a two-step inquiry. It first must be determined whether the proffered evidence is relevant to proving one of the stated exceptions of SDCL 19-12-5. State v. Bradley, 431 N.W.2d 317 (S.D.1988). See also State v. Titus, 426 N.W.2d 578 (S.D.1988), and [State v. Champagne, 422 N.W.2d 840 (S.D.1988)]. If the evidence is found to be relevant, it next must be determined whether its prejudicial effect substantially outweighs its probative value. Bradley, supra; Titus, supra; Champagne, supra; see also SDCL 19-12-3. Evidence is relevant and has probative value if it contains any fact which tends to connect an accused with the commission of a crime. See State v. Reutter, 374 N.W.2d 617 (S.D.1985). However, if the court determines that the evidence is relevant, but that its submission will unfairly prejudice the defendant’s case, such evidence cannot be admitted. Bradley, supra; Titus, supra; Reutter, supra. Under State v. Holland, 346 N.W.2d 302 (S.D.1984), this balancing process is within the sound discretion of the trial court. Further, this balancing process must be conducted on the record. See State v. Eagle Hawk, 411 N.W.2d 120 (S.D.1987).

State v. Klein, 444 N.W.2d 16, 18-19 (S.D.1989). See also, State v. Goodroad, 442 N.W.2d 246 (S.D.1989); State v. Rufener, 392 N.W.2d 424 (S.D.1986).

Our review of the evidence leads us to conclude that the trial court did not abuse its discretion by admitting Dickey’s acts of window peeking at C.S.’s residence. In addition to showing his identity, we believe that these voyeuristic acts were relevant to show preparation, knowledge, and a plan to enter the house. They show that Dickey was familiar with the location of the house, the layout of its interior, that it was occupied exclusively by women, and that it had a patio door rear entrance.

Lastly, we do not believe the trial court erred in determining that the probative value of the evidence, as admitted, was not outweighed by its prejudicial effect. The trial court performed the appropriate balancing and did not abuse its discretion in admitting such evidence. Klein, supra; Goodroad, supra; Champagne, supra; State v. Swallow, 405 N.W.2d 29 (S.D.1987).

ISSUE III

WHETHER SUFFICIENT EVIDENCE EXISTED IN SUPPORT OF THE CONVICTIONS.²

In determining sufficiency of the evidence on appeal, the question presented is, “whether there is evidence in the record, which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt_ In making this determination, the Court will accept that evidence, and the most favorable inferences fairly drawn therefrom, which will support the verdict.” State v. Miller, 429 N.W.2d 26, 38 (S.D.1988) (citations omitted). See also Jenner, supra.

The testimony indicated that Dickey had been identified on four separate occasions by C.S. and her roommates, excluding the night of the rape. Twice he was observed at or near their residence. In addition, Dickey admitted that he had been there on other occasions window peeking. It is also important to note that although C.S. testified that she only saw a shadow or silhouette the night of the rape, she was able to identify and suggest material changes in the composite sketch created by S.K. and the police artist (specifically, she noticed that glasses and a mustache were missing). These alterations in the sketch were significant to Dickey’s identification. Finally and emphatically, we point out that during the interrogation with Detective Thompson, Dickey admitted that on the night of the rape he entered the victim’s residence and masturbated on her bed.

The evidence and testimony presented are clearly sufficient to support the jury’s determination of guilt.

Affirmed.

WUEST, C.J., and MORGAN, J., concur. HENDERSON and SABERS, JJ., concur specially.

1 . SDCL 19-12-5 provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

2 . Dickey was convicted of first-degree burglary in violation of SDCL 22-32-1(3), which provides:

Any person who enters or remains in an occupied structure, with intent to commit any crime therein, is guilty of first degree burglary when:

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(3) The offense is committed in the nighttime. Dickey was also convicted of first-degree rape, a violation of SDCL 22-22-1(1), which provides:

Rape is an act of sexual penetration accomplished with any person other than the actor's spouse under any one or more of the following circumstances:

(1) Through the use of force, coercion or threats of immediate and great bodily harm against the victim or other persons within the victim’s presence, accompanied by apparent power of execution!.]