State v. Blue Thunder

Dakota, of South Plaintiff STATE Appellee,

Leonard L. BLUE THUNDER a/k/a Thunder,

Leo Blue Defendant Appellant.

Nos. 16929.

Supreme Court of South Dakota.

Argued Sept. 1990.

Filed Feb. 1991.

Rehearing April Denied 1991. Best, Atty. (Roger

Diane Asst. Gen. A. Gen., Atty. brief), Pierre, Tellinghuisen, plaintiff appellee. for and Pierre, McCahren, Lee C. ‘Kit’ and Lee McCahren, Vermillion, M. for defendant appellant. and MORGAN, Retired Justice. (Blue Thunder) Leonard L. Blue Thunder appeals judgment pursuant entered to a jury convicting of first-degree verdict him murder, first-degree burglary, aggra- and vated challenges assault. Blue Thunder the refusal of the trial court to excuse cause, certain for suppress to certain evidence, jury to and instruct the on self- review, defense. By notice of the State of challenges South Dakota two instruc- regarding charge tions assault. We affirm. gave

The facts rise to action are triangle relationship found in involving (Donna), Charge Donna Leader her first Thunder, lover Blue and Verle Janis (Verle), her second lover and the victim of the murder. When sought regain Donna, the affections of Verle severely beat and Blue Thunder retal- iated going to the motel where Verle and residing Donna stabbing Verle with a butcher knife. particularly, More record reflects night that on June Donna went to the West Wind Bar in Pierre. Blue Thunder at the bar when Donna ar- Later, rived. when Verle arrived at the Wind, West began two men argue. argument escalated into a fist fight, which place took outside of the bar. Don- na was up able intervene and break fight. Donna and Verle then left and be- gan walking back to their room Terrace Motel. When arrived at the motel, Donna and Verle found Blue Thun- waiting der them. Again, the two men began fight again, Donna up broke fight. Blue Thunder then fled. say him to “not Officer Trautman advised morning hours of Later, early times, and warned Blue anything” returned to the four Thunder June anything knife. Donna could be a butcher Thunder that said motel armed with for the to retire times. In- Verle were about him five different used opened the un- Thunder night when Blue several times that terspersed between the with the charged at Verle locked door and invoked his Fifth Amend- Blue Thunder six times before knife. Verle was stabbed rights, warnings by Officer ment col- nearby chair and staggered he to a Trautman, in- Thunder made several Blue grabbed Donna lapsed. Blue Thunder then criminating statements. her with the swung at by the arm and Blue Thunder was taken to the When Donna sus- ensuing struggle, In knife. the station, again his conversations were police of her her neck and on one tained a cut on station, police At the Blue Thun- recorded. hands. again attorney sepa- for his two der asked meantime, had the disturbance In the Blue Thunder also asked for rate times. motel and manager the of the awakened (to phone call his mother and/or a access police. approx- At him to call the prompted station; clergyman) police nine times at the a.m., Trautman David imately 3:40 Officer Again, requests these were all denied. Trautman) De- (Officer of the Pierre Police incriminating Blue Thunder made several call. response in to the partment arrived station, statements. Also at the at toward Verle’s room saw As he walked a.m., sample 5:50 a blood was taken from doorway with standing in the in defendant. The results indicated a BAC in the knife his hand. on his chest and blood that late hour. After the excess of 0.24 at officer, yelled the she When Donna saw sample, Blue Thunder taking of the blood Blue Thunder then him!” “He stabbed attorney. call his was allowed to but Officer Traut- to close the door tried subsequently indicted open. The officer then man kicked it by grand jury charges first-degree of floor, causing Thunder to the knocked Blue murder, burglary, aggra- first-degree knife, him. and handcuffed drop him to the pretrial suppression assault. At a vated Blue Thunder was hand- Shortly after court ruled that the hearing, the trial bulk cuffed, read he was taken outside morn- of Blue Thunder’s statements on the Bu- his Miranda rights by Officer Michael voluntary and ing of June were replied Thunder response, In Blue cholz. recordings admissible at trial.1 The of At the fifth amendment.” “I’d like to take patrol in of the conversations balance Greg the direction of Detective Lieutenant station, along with car and at the Swanson, charge, Blue Thun- the officer conversations, transcripts of those were ad- patrol placed in the back of a der was then into evidence at trial. Defense mitted surveillance, Trautman’s car under Officer challenged pretrial at the ad- counsel also forty-five next they remained for the where trial, missibility photographs. At of some conversation was record- minutes and their pic- the trial court admitted most of of conversations ed. The details excluded others. tures and related in more detail patrol car will be jurors included panel prospective The suppression issue. the discussion the defense counsel persons four whom now, say being that after it to for Suffice prejudice. the basis of bias or challenged on car, Blue Thunder placed patrol in the specific grounds will be detailed The attorney, speak to his to which asked to court the issue. The trial discussion of responded “Leo I can’t Officer Trautman to excuse the car, denied the motions patrol do that.” While had to exercise four of defense counsel that he wanted to “take the Thunder stated challenges to ex- twenty peremptory their separate Amendment” five times. Fifth interrogation Thunder Lieu- regard- of Blue a statement corded 1. The trial court did exclude ing police depart- of Blue Thunder's shoes that the location Swanson conducted tenant response question by to a direct morning was made in the murder. ment on the tape-re- was a Officer Trautman. Also excluded The trial also denied were made after waiver of Blue Thunder’s elude them. court per- previously motion for additional exercised Fifth Amendment defense counsel’s rights. nine- emptories. defense counsel used twenty peremptory

teen of allotted their Our review of this issue is con challenges. following precedent. trolled instructions, settling de- the course beyond proving has the burden of a reason proposed an instruction on fense counsel able doubt Blue Thunder's statements which the trial court denied. self-defense Volk, given voluntarily. objected in- State also to two instructions review, On question volving necessary of intent ruling upheld trial court’s will be unless it charge assault and the de- clearly is erroneous. at 70-71. In addi Id. charge. fense of intoxication on that tion, in we must consider the evidence the light trial most favorable to the court’s 3, 1989, jury a On convicted November Kiehn, 549, 556, decision. v. State charges. all Blue Thunder of three He was (1972). 199 N.W.2d 598 imprisonment pa- sentenced to life without conviction, role for the murder and two Arizona, v. 384 U.S. Miranda 86 ten-year sentences for the first- concurrent (1966), S.Ct. 16 L.Ed.2d 694 estab- degree burglary aggravated assault lished that accused has a Fifth and appeal convictions. This followed. right Fourteenth Amendment to have coun- present during sel interroga- custodial appeal urges the fol- On accused, having tion. expressed ... “[A]n lowing issues: police his desire to deal with the only admitting 1. the trial court err Did counsel, through subject is not to further statements that Blue Thunder made interrogation by the authorities until coun- 1989? June sel has been made available to unless by refusing 2. trial court Did the err the accused himself further initiates com- potential for cause certain disallow munication, exchanges, or conversations jurors? police.” Arizona, with the v. Edwards 451 by refusing trial 3. Did the court err 477, 484-85, U.S. 101 S.Ct. 68 jury instruct on self-defense? L.Ed.2d 386 by admitting 4. Did the trial court err voluntary waiver, On the issue of photographs? certain court has held: By notice review State raised two is- to be standard used a court in sues, one, which we view as as follows: determining not whether or an accused by instructing 5. trial court Did the err effectively right has waived his to coun- that assault un- Zerbst, sel is v. found Johnson 22-18-1.1(5) specific is a der SDCL U.S. S.Ct. L.Ed. 1461 crime, that, such, intent volun- (1938), wherein the United States Su- an tary intoxication is available de- preme stated: Court fense? pointed It been that has out ‘courts issue, argues every In indulge presumption his first reasonable inculpatory against that statements that he waiver’ of fundamental consti- 3, 1989, immediately rights made on June after he and that we ‘do tutional custody, presume acquiescence was taken into not have in the should loss of rights.’ been at trial admitted into evidence because fundamental A waiver is ordi- narily relinquishment in violation of his Fifth were obtained an intentional right attorney, right Amendment to an and as a or of a known abandonment State, result privilege. misconduct. on the The determination of wheth- hand, argues intelligent other has that statements er there been an waiver voluntary right that depend, were admitted were state- of the to counsel must ments, response interroga- particular not made in each facts tion, or, alternatively, surrounding statements and circumstances that oral admissions background, experi- Defendant’s case, including the [T]he Dave Trautman and De- made to Officer accused. ence, conduct sitting pa- tective Swanson while added.) at 304 U.S. (Emphasis scene, made trol car at the at 1023. S.Ct. Although Defendant’s it is cus- behest. 597, 599-600 Arpan, todial, interrogation. of it involved none (S.D.1979). Therefore, the Defendant’s statements determining incrimina whether sup- time shall not be made at law enforcement tory made to statements pressed. obtained, a validly have been officers part of the record of the conver- The first is whether determination threshold that followed can best be described sation response to custo were made statements inebriate, jabberings inter- as the Innis, Island v. interrogation. dial Rhode responses spersed with statements and 291, 100 64 L.Ed.2d 297 446 U.S. S.Ct. Blue Thunder ex- from Officer Trautman. (1980); Boykin, 432 N.W.2d pressed finding an interest out encompasses not Interrogation dead, whereupon Traut- victim was Officer any prac only express questioning but also anything man he said warned him rea should know tice “that [is] could be used him. Blue Thunder incriminating re sonably likely to elicit an responded: just “I’ll take Fifth Amend- definition sponse suspect.... from a [T]he ment too.” He also said: “I’m entitled to a only to words interrogation can extend of couple phone “I call calls too.” want to police part actions on the of officers responded home.” Trautman Officer reasonably they known should have jail, at the would be taken care of as there incriminating response.” likely to elicit an phone again was no in the car. After 301-02, 100 Innis, 446 U.S. at S.Ct. Amendment and “taking” the Fifth without (emphasis original; in 64 L.Ed.2d at 308 any interrogation by Officer Trautman the omitted); quoted Boykin, in footnotes following colloquy occurred: at 64. give I’ll Blue Thunder: a confession now, right my own free of will. Officer? noted, Blue Thunder was As earlier Officer Trautman: What’s that? rights by Bu- his Officer read Miranda give I’ll responded: “I’d like to take the Blue Thunder: a confession cholz and Amendment,” whereupon right you he now. Will do it? Fifth was patrol of a car under the placed in the back you Trautman: If want to talk. Officer of Officer Trautman. The tri surveillance my will. Blue Thunder: Of own free findings following al court made the Leo, explain let me Officer Trautman: fact: something you. to pa- Trautman remained Officer I’ll take the Fifth Amend- Blue Thunder: Defendant and turned on a trol car with ment too. tape recorder. Defendant made several Okay, explain me Trautman: let Officer sitting in oral admissions while the car. any- talk something. you If want to admissions, During the course of these happened tonight, what one about what advised Defendant several Trautman get I’ll to do is ahold of Lt. Swan- have anything he said could be used times that son. him not against him in court and advised my I’ll have to talk to Blue Thunder: to talk about incident. too, (inaudible)—legal too. attorney — car, patrol While Defendant the first mention The above statement was speak asked to to Detective Swanson. specifically that he de- by Blue Thunder point, stuck his head At that Swanson exercise his Fifth Amendment sired to window at the scene and Defen- the car again attorney. an After right speak dant made several statements. suggesting that warning Blue Thunder and findings say anything, not Trautman From these the trial court conclud- he Officer he wanted again ed a matter of law: asked to talk to Lieutenant Swanson and Blue The record no holding reflects reason for yes. scene, Thunder indicated Blue Thunder incommunicado at the permit other than to him to babble into Lieutenant Swanson then came over to tape recorder. The burden was the car. He himself as a identified member Thunder, State to show that Blue in his police department again and advised highly condition, inebriated made an intelli- right Blue Thunder of his to remain silent gent voluntary waiver of his constitu- right attorney. and of his to an Blue Thun- right tional to counsel. We think response that, “I der’s know I was: know wholly regard. has failed in that my rights, yeah Miranda I know that. I’ll continuing car, patrol incarceration in the speak my own free will.” Blue Thunder in tight which complained restraints he inquired charged as to what was with constantly, only negate intelligent, an response “suspicion of mur- waiver, voluntary but borders on invid- der.” He then made statements: “I’ll take compulsion. ious form of Blue Thunder’s rap.” “It intentional.” “Donna’s intermittent invocations of his Fifth my guys' fucking wife and that been rights Amendment throughout the conver- my around with woman.” Blue Thunder any sations eschews intentional waiver of then I’ll said: “After this take the fifth right his counsel. The officers amendment,” and Lieutenant then tried they knew that suspect had a drunken interrogation. to terminate the Blue Thun- custody purposely held him incommuni- der, however, on to went volunteer that cado in the car for forty-five at least helped Donna had with her hand on minutes to any “milk” the situation for knife. When asked Lieutenant incriminating get. statements could Swanson if drinking, he had been We recognize that it is the task lawof had, Thunder admitted that he “to the gather enforcement officials to evidence to max.” After patrol Swanson exited the convictions, lead to but it is the task of the car, Thunder, presence of Offi- judiciary to that ensure the fundamental Trautman, cer again stated twice “I killed rights of constitutional the are accused him.” trampled process. on In this It noteworthy is the trial court’s rights ease Blue Thunder’s were indeed findings of fact and conclusions of law trampled and trial court failed to even totally ignored the fact that Blue Thunder key note the issue. statements of Blue specifically sought had right exercise his Thunder in patrol car implications legal counsel and the of that station suppressed should have been fact. The there fact that was not a tele- their entirety. phone patrol available in the car is no ex- cuse. All the had to pro- officers do was Having conclusion, arrived at that ceed to telephone the station a question where was we are left with whether the go available. Even when did to the error was egregious so as to have denied station, shortly as they did after Lieuten- Blue Thunder Although a fair trial. ant Swanson the highly had obtained incul- approached tactics dangerously close statements, patory coercion,2 Blue Thunder was not we conclude that even if Blue permitted telephone access to the for sever- Thunder’s statements were in vio obtained hours, during al time which he was further rights lation of his Miranda and should interrogated Swanson, excluded, Lieutenant which have been this error was not so interrogation suppressed by prejudicial require trial Preju as to reversal. error, court. dicial when questions constitutional ally 2. “[T]hree decisions of United States Su- held that the admission of coerced confes ” Arizona, preme 385, [Mincey Court v. 437 U.S. sions cannot be considered harmless error.' 398, 2408, 2416, 290, Fulminante, 237, 262, 98 S.Ct. 57 L.Ed.2d 303-04 State v. 602, 161 Ariz. P.2d 778 Denno, (1978); 368, 376, (1988) (citation omitted) Jackson 378 U.S. granted, v. 84 627 cert. — 1774, 1780, 908, (1964); U.S. -, 1522, 762, S.Ct. 12 L.Ed.2d 915 110 S.Ct. 108 L.Ed.2d — Arkansas, 560, 568, Payne 1528, denied, U.S. -, v. U.S. 356 78 S.Ct. and cert. 110 S.Ct. 844, 850, 975, (1958) (1990). 2 L.Ed.2d 981 actu- ] ‘have 108 L.Ed.2d 768

619 considered, The second issue raised error which would being is are assigns ruling as error the trial court’s changing the re- likelihood of have some outset, 18, juror challenges. At the it is con- Chapman California, v. 386 U.S. sult. ceded that it would most unusual to find 824, (1967). The be 17 L.Ed.2d 705 87 S.Ct. jury panel potential a more loaded with law right does not of a constitutional

denial one, enforcement bias than this which in- appellate automatic reversal demand attorney general, cluded the wife of the beyond to declare a reasonable court is able (himself governor’s wife of the counsel a jury would have returned a doubt that the attorney general), long- former assistant a United States v. Has- guilty. verdict personality, time law enforcement 1974, 499, 103 S.Ct. ting, 461 U.S. 76 (a police mother of one of State’s witnesses (1983); Harrington v. Califor- L.Ed.2d 96 officer). Then, panel thirty out of the nia, L.Ed.2d 395 U.S. 89 S.Ct. 23 (or so), potential all to have four these Miller, v. (1969); State 284 429 N.W.2d sit, jurors drawn to ill-fated. would seem Garritsen, v. (S.D.1988); 421 36 case, though, That was the and each was State, (S.D.1988); High Elk N.W.2d 499 interrogated during voir dire. Each testi- (S.D.1984). Further, 344 N.W.2d 497 fied that he she could be a fair and Supreme has deter- United States Court impartial juror spite respective of their mined that the erroneous admission of a situations. may subject to a harmless confession be Wainwright, Milton v. 407 analysis. error Nevertheless, can before court 1 92 33 L.Ed.2d U.S. S.Ct. assignment review an of error for failure cause, potential juror to disallow a upon the other evidence Based general requires rule the defendant trial, clear, beyond it presented at is peremptory challenges. exhaust all must doubt, reasonable that Blue Thunder would Bittner, (S.D. 359 N.W.2d murder, first-degree have been convicted of Belt, 1984); 324, 111 State v. assault, first-degree bur Flack, (1961); State v. S.D. notwithstanding allegedly im glary, (1958); State v. proper statements to law enforcement offi Hammond, 86 N.W. S.D. cers. Donna testified that she witnessed dire, (1901). During voir charge Thunder room 22 with a Blue into challenged potential jurors for cause Carol repeatedly knife and stab Verle. butcher Kebach, Tellinghuisen, Gormley, Anne Rol arrived, Blue When Officer Trautman Schweigert. Mrs. Marvin The trial and 22, standing holding in room Thunder was challenge jurors denied each court hand. the butcher knife his Overwhelm subsequently removed Blue Thun ing testimony physical and evidence was peremptory der’s exercise of four chal support presented at trial to Blue Thun requested lenges. Blue Thunder additional reference to the der’s conviction without peremptory challenges compensate to for following he made the murder. statements required the fact that he was to remove jurors by expending per these four of his addition, Blue Thunder’s statements challenges. request was also emptory This charge. only inculpated him on the murder denied. upon culpa- His statements did not bear his bility burglary or assault. In this Blue Thunder does not upon testimony juror actually Based of State’s wit- em any claim that individual nesses, physical panel, paneled, jury as well as evidence or that the entire presented, impartial. Blue Thunder would undoubted- Blue Thunder used nineteen not challenges, twenty peremptory ly charges, have been convicted on all three of his challenge a final notwithstanding allegedly improper ad- contends that reserved configuration” in the incriminatory prevent to “a worse mission of Blue Thunder’s Accordingly, any jury panel. He contends that this is sub statements. error ad- requirement compliance with the mitting Blue Thunder’s statements was stantial harmless, challenges exhaust- peremptory not that all be does warrant reversal.

620 259, ed, that, present grounds, under the circum- other 7 S.D. 64 N.W. 152 stances, peremptory chal- (1894). matter, use of all but one policy As a when chal- lenge permit For is sufficient review. lenges venirepersons of for actual bias support, People Bailey, he cites us to v. arise, trial courts would be wise to err on 492, 495-496, Mich.App. 169 426 N.W.2d disqualification; the side of that worst 755, (1988), proposition. for that Bail- 757 happen impartial could would be one however, jury with the effect of ey, deals juror replaced would be with another. challenges change on a decision for of ven- Culhane, State v. 33 N.Y.2d n. facetiously, Blue Thunder ar- ue. Rather 350 N.Y.S.2d n. 305 N.E.2d gues that he “was forced to waive the last n. 3 peremptory challenge appeared as it City perhaps the Chief of Police for the of We next examine Blue Thun family Pierre of the victim’s close or one der’s claim that the trial court erred in permitted by the trial members would be refusing proposed jury his instruction on judge jury they on the if to serve were able 22-16-35; self-defense. See SDCL 22-18- words, T impar- to utter the can be fair and 4. “A defendant is entitled to an instruc ” not, however, sup- tial.’ The record does theory tion on his of defense there is port argument. Thunder’s Blue support proper request evidence to it and a pool called to examined did not contain be Conversely, is made. he is not entitled to any person. the names of such While the an instruction if there is no evidence to logic reserving peremptory of one chal- support theory.” Esslinger, his v. lenge seating prevent per- of such (S.D.1984) (citations 532 persuasive the standpoint sons is from omitted); Weatherford, see State v. litigator, provides the record here no (S.D.1987); N.W.2d State v. Kills support for Blue Thunder’s failure to exer- Small, (S.D.1978); 269 N.W.2d 771 State v. peremptory challenges. cise all of his Zemina, 206 N.W.2d 819 has failed to demonstrate (1973). The defense of self-defense is any prejudice actual as a result of the only prevent available danger imminent refusal of the trial court to disallow for 22-16-35, great personal injury, SDCL potential jurors. cause these Mikus v. prevent or to an offense one’s self States, (2d Cir.1970); 433 F.2d 719 United property, or SDCL 22-18-4. “Unless the States, F.Supp. Walter United required individual situation an immediate (D.C.Okla.1974). None of the response necessary prevent unlawful panel complains Thunder of sat on the being force from inflicted [defendant] tried were each removed another, the statute is challenges. [SDCL peremptory 22-18-4] his exercise of He applicable.” Rich, alleged has not that he was forced to ac cept empaneling any juror individual by

whom he would have otherwise removed Here, only evidence that Blue challenges. peremptory exercise of his Re points Thunder supporting to as his claim only error where versible exists defendant of self-defense is that he and Verle prejudice. can demonstrate material had Wool 965, (Ind. State, engaged separate fights ston v. 453 N.E.2d 968 in two on the eve 1983). record, On the basis of this we murder, ning before the Blue Thunder decline the ninety- invitation to overturn a allegedly by was invited into room 22 and, alone, year-old rule on that basis we Verle, and that another resident at affirm the trial court. Terrace Motel testified that he heard a fight going on in room 22. Blue Thunder note, however,

We that when faced with failed any to establish threat of immediate bias, challenges for actual such as those danger to himself. The fact that he and presented here, it would have been better fights evening Verle had two fist be for the trial court to have allowed the chal- lenges potential jurors. support to fore is insufficient to an instruc State v. Church, 60 N.W. rev’d tion on self-defense.

621 in examine the issues raised State its Furthermore, fight, the second after returned notice of review. fled. He hours, a morning armed with butcher early The decision of the trial' court is affirmed room, knife, and stabbed charged into the respects. in all clearly was six times. Yerle and, such, enti as he is not aggressor MILLER, C.J., concurs. v. assert self-defense. State tled to (S.D.1985), Woods, WUEST, J., 97 cert. specially. 374 N.W.2d concurs — U.S. -, denied, 110 S.Ct. SABERS, JJ., HENDERSON Rich, (1990); 417 N.W.2d L.Ed.2d 314 see dissent. Means, 871; 276 N.W.2d v. State (S.D.1979). own Blue Thunder’s 701-02 HERTZ, acting Judge, Circuit stabbing breaking in and conduct Justice, having Supreme Court been relied may victim not be unarmed a member of the court at the time this legal excuse of self-defense. invoke the argued, participate. case was did not Means, Rich, affirm supra; supra. We WUEST, (concurs specially). Justice pro of defendant’s the trial court’s denial (cid:127) on self-defense. posed instruction opinion except I concur this finding majority fact on the volun- Thun examine Blue Finally, we tary statements made the defendant. photographs argument that certain der’s finding We should leave the fact have at trial should admitted into evidence only when the facts trial court and reverse cumula been excluded because clearly are erroneous. v. found State Jen- Photographs gen are prejudicial. tive ner, N.W.2d 710 There are por they accurately erally admissible when suggest police no facts to held the a witness could describe tray anything that defendant to obtain admissions violation they provide an aid to a verbal or when Rather, rights. the facts of his Miranda description objects of relevant or condi repeatedly warned show the defendant Muetze, v. tions. State statements, against making incriminating Rash, (S.D.1985); 294 N.W.2d yet voluntary he continued to make state- (S.D.1980); Compton, 418-19 incriminating himself. It was un- ments 430, 433, 205 N.W. S.D. necessary gag for the him or rush photographs at issue were him to the station at the start of a morning taken on the incident. prevent him from investigation murder victim and the They depicted the murder making voluntary incriminating state- murder, burglary, and assault. scene of the ments. particularly pictures None of these trial court con graphic nature. The HENDERSON, (dissenting). Justice objections, Blue Thunder’s excluded sidered reviewing appears it to me photographs and admitted the re some Blue Thunder did not receive a fair maining pictures. The trial court has dis Therefore, I and re- would reverse duly pho trial. cretion whether to admit verified mand for a new trial. tographs of a murder victim. State v. As chmeller, 87 S.D. Although Thunder asked for an at- (1973). photographs reviewing In officials abso- torney, the law enforcement victim, trial of the murder of admitted at right. lutely denied him that Nine times he scene, victim, the assault and of the crime attorney his and nine asked to contact apparent it is that the trial court did not preju- Clearly, it denied. this is times was admitting pic abuse its discretion these Michalek, 407 dicial error. State v. tures, and we affirm on this issue. fact, (S.D.1987). it point In of N.W.2d 815 approximately three hours before his Because we affirm the convictions of was called, the focus of the lawyer raised was after Thunder on all issues and he was in appeal, unnecessary investigation him was it is for us to (handcuffed car). declare, custody patrol beyond doubt, Cer- a reasonable car, tainly, containing him in patrol this would have returned a of verdict drunk, asking while he was while he was guilty. my opinion, In testimony did lawyer, pleading for a and while he was attain, not absent these constitutional viola- Amendment, Fifth was the functional tions, degree such a proof. of As we have equivalent interrogation. my opinion, of In before, acknowledged “the harmless error finding the court’s on this matter was ought rule never be justify used to unfair- clearly Hall, erroneous. State v. Webb, ness at trial.” State v. (S.D.1984). N.W.2d 37 In this Attorney pro- State’s excused two Indian “Egregious” is not the Re standard. spective by peremptory challenge. cently, the United Supreme States Court Blue Thunder is an American Indian. I do agreed to review a state court’s determina assign se, per this as reversible error tion that prohibits constitutional law a con but recite it to reflect the flavor of the sideration of the harmless error rule when fairness of this trial. the issue involves confession in violation Further, for 45 minutes he was held of the Fifth Amendment. State v. Fulmi officers, police car, law enforcement in a nante, 237, 161 Ariz. 778 P.2d 627 — on, tape with a recorder while he was hand- (1988), (citation omitted) granted, cert. times, separate cuffed. Five while he was U.S. -, 110 S.Ct. 108 L.Ed.2d car, right he exercised his — denied, -, and cert. U.S. 110 S.Ct. by taking remain silent the Fifth Amend- 1528, (1990). 108 L.Ed.2d 768 car, ment. While he was in this majority opinion The again condemns the when he asked to talk to lawyer, his jury panel being potential “loaded” with “Leo, officer told him I can’t do that.” law enforcement bias this defen- Yet, they persisted question- in extensive agree. dant. I I do not believe that it was ing. contrary This holding was to the place fair to people these panel, on this Arizona, Edwards v. 451 U.S. thereby absolutely necessitating the remov- 101 S.Ct. 68 L.Ed.2d al (1981). prospective jurors of these trying from This was a violation of his right astounded, the case. I am this, bluntly, to remain silent. Considering prospective jurors these fact that his blood test reflected not excused level, percent a .30 blood alcohol he for cause at the Unfortunately, outset. simply dead drunk. The statements which were not and Blue Thunder was re- made, under totality of these circum- quired to exercise peremptory four chal- stances, voluntary, were not in that lenges including, you, mind the wife of the statements were not knowingly, intelligent- Attorney General of this state. Rol Ke- ly, voluntarily made. Miranda Ari- bach was in criminal law enforcement in zona, 384 U.S. 86 S.Ct. 16 this state for approximately years L.Ed.2d 694 Department of Investigation, Criminal which headquarters has its in Pierre where

Apparently, having totally decried the vi- this case was tried. Department of olation of Blue Thunder’s constitutional Investigation building Criminal is named in rights, majority opinion posi- takes the his I honor. find it almost tion that the error was not unbelievable egregious “so Schweigert that Mrs. was not as to have denied Blue excused for Thunder a fair I cause when she related her accept leap trial.” cannot son was a logic member of the Pierre part company Department that is where I Police with the majority opinion. expected and was Having testify at trial. leap made that fact, logic, disagree, point to which I majority testify he did at trial for the opinion Kebach, opinion noted, then rests its on the harm- State. it should be rule, i.e., less error involved in the process would selection to hire have been convicted of Degree Ily First Mur- witness Zeldes. Defense counsel re- that, der due to the conclusion peatedly attempted absent these to have Kebach ex- we, appellate court, admissions as an empted can for cause but it was all denied. noted, who, spoke again, Kebaeh, juror with another once could it should further be Investigation Agent Gromer’s at Criminal preclude having him a fair trial. from Also, Attorney party. Gen- retirement Thus, perempto he did not exercise last potential juror. as a eral’s wife was called scenario, ry challenge. Under this factual Tellinghuisen testified that I note that Mrs. technique. it was a valid trial I would about cases she and her husband visited exception carve out an to the State v. Con on; working Attorney that he was Gen- nor, (1972) 199 N.W.2d 695 Pierre, the situs eral and his wife lived Bittner, and its successor City alleged of these crimes was (S.D.1984) that the defen Pierre. advised the court that she She required dant was not final exercise his charged was with murder she would not peremptory challenge because he had been Attorney married to the want peremptory forced to exercise four chal sitting Notwithstand- General on her case. lenges patently due to the trial in court’s comments, repeated ing all of these mo- rulings. Simply put, goes correct it to the jury tions to have her excused from the particular jury fairness of this trial. Gormley formerly denied. was Grant prosecutor Attorney for the chief Gen- we, appellate It is fundamental at the Moreno, Attorney eral’s office. State’s level, integrity jury sys- insure the prosecuting this knew the who was by tem. I refuse to be bound a technical Gormleys very and with them well visited strips spirit formula which of fairness socially. Recently, Gormley gone Mrs. had jury jury panel from a trial. As the was prosecutor’s home and delivered a against (per “loaded” gift in honor of a new child unto Mr. born characterization), majority opinion’s it cast judge and Moreno. The trial refused Mrs. pall proceed- a of unfairness on all of the Gormley challenge a to have Mrs. removed ings grant I below trial. would a retrial implied for bias. pretense fairly so that of a selected refusal, As a result of this defense coun- obliterated, jury panel would be thus cast- prospective jurors had to remove these sel ing appearance aside the impro- of bias and by peremptory challenge. Defense counsel priety judicial in the branch of the State of judgment his moved Honor’s for additional South Dakota. peremptory challenges but this was denied. Meyers,

As was stated in 190 Neb. SABERS, (dissenting). Justice (1973): duty It is the of a trial court to see that I dissent on Issue I. Defendants criminal cases are tried Issue I. I would reverse and for remand jury suspicion a such that not even the a fair trial in view of Blue Thunder’s (leaning) prejudice (prejudgment) bias prompt rights claim of Fifth Amendment any can thereof. attach member Un- prompt request attorney, and his for an jury absolutely impartial, the less the be attorney specifically Kit McCahren. The jury system becomes an awkward instru- gave fact that the officers justice and ment of the Constitutional rights tape his Miranda while the guaranty every person charged with running indicates to me that knew he an offense the laws of this state jabber would continue to while he cooled public speedy ... shall have a trial impartial forty-five car for is worthless. his heels ... Although minutes. this was not an in-cus- why It is understandable defense counsel sense, tody interrogation in the usual once peremp- did not choose to exercise his last claiming knew the accused was tory challenge. Having been stricken with rights, Fifth and Amendment it his Sixth rulings appears unfavorable and what to be proper put storage him in cold legitimate requests striking juror for tape mutterings. his intoxicated I cause, defense counsel was afraid to roll strongly believe that the trial court should challenge, dice peremptory on his last believing might up that Blue Thunder end have excluded such “admissions state- I

merits” under these circumstances and

would reverse for a new trial.

Issue II. I am about the fail- troubled disqualify Tellinghui-

ure to Carol

sen, Kebach, Gormley Rol Ann Upon

mother of the re- state’s witness. trial, closely

mand for a new individuals so

connected to law enforcement should be

excused for cause. Dakota,

STATE South Plaintiff Appellant,

John A. ZACHODNI and Linda W.

Zachodni, Defendants and

Appellees.

Nos. 16990.

Supreme Dakota. Court South

Argued Sept. 1990.

Decided Feb. 1991.

Case Details

Case Name: State v. Blue Thunder

Court Name: South Dakota Supreme Court

Date Published: Feb 20, 1991

Citation: 466 N.W.2d 613

Docket Number: 16920, 16929

Court Abbreviation: S.D.