State v. Lohnes
324 N.W.2d 409
S.D.
1982
Check Treatment

*1 Dakota, Plaintiff STATE Appellee, LOHNES,

Burton Defendant Appellant.

No. 13572. Dakota.

Supreme Court of South

Argued April 15, Sept.

Decided 26,1982.

Rehearing Denied Oct. Gen., Kludt, Atty. E. Asst.

Douglas V. Pierre, appellee; Mark plaintiff Gen., Pierre, on brief. Meierhenry, Atty. Office, Burnett, Defender’s J. Public John and appellant. City, Rapid MORGAN, Justice. was sixteen (appellant), Lohnes

Burton (Mantzo- Harry Mantzoros old when years rifle, with a ros) was shot and killed by appel- a vehicle stolen was later found in *2 first for After Detective Appellant Hedenskog completed lant. arrested theft Later, after further interro- burglary. appellant was questioning, taken to the hos- gation, first-degree he was also arrested pital by Officer Jones to receive medical shooting murder in the death of Mantzoros. attention for a cut on his knee. Between Appellant was tried as an adult m., transported ap- 5:15 and 5:30 a. Jones charges third-degree burglary, grand pellant to the detention center. juryA theft and murder. con- later, Approximately appellant three hours appellant burglary grand victed again Rapid City taken to the Police theft charges and murder. time, By the police begun Station. this Appellant appeals the murder conviction investigating shooting death of Mantzo- and we reverse and remand. Scherr, ros. Rapid City assigned Detective Stop On November the First to this investigation, appellant considered Dakota, Shop Rapid City, Gun suspect as early as 9 a. m. on November burglarized guns and several stolen. That 14th. night, Dodge same a 1979 pickup was re- operated Mantzoros the Ranch House Mo- ported m., stolen. At p. Highway 10:45 Lane, tel in Rapid City. Donald an uncle of Patrol Rapid City informed the Police De- appellant, stayed at the motel on November partment they were following a 1979 Appellant went to the Ranch House Dodge pickup. Rapid City Police Officer fight erupted Motel where a between him- (Officer Jones), upon hearing Jones the re- self and Lane. Lane ran into the motel port, proceeded vicinity to the to aid in manager’s then occupied by office Mantzo- identifying enroute, the pickup. While he son, According ros. to Mantzoros’ his fa- received a radio transmission that the driv- ther him er had abandoned the vehicle called about the altercation. and was on scene, foot. way On his Officer appellant again Sometime later encoun- spotted appellant running Jones and or- tered Mantzoros in the motel office. This stop. Appellant immediately dered him to time, according appellant, ap- Mantzoros stopped, bag and threw a rifle and athletic peared pistol. to have a Appellant became Jones, to the ground. Officer with the aid enraged, chasing Mantzoros to a back room officer, of another appellant handcuffed with a .243 rifle where he shot him. At transported him Rapid City Po- m., 7:30 a. the son returned to the motel to lice Station. find his corpse father’s in the motel office. station, At the Officer Jones turned The investigation indicated Mantzoros pellant over to Hedenskog Detective who had been shot with Remington rifle, a .243 began interrogation at p. 11:25 m. and con- stolen earlier in November. The rifle was early morning tinued into the hours of No- found on the Dodge floorboards of the 1979 vember Appellant appeared nerv- pickup admittedly by appellant. stolen ous and scared but coherent and not intoxi- Mantzoros’ driver’s license was also found Shortly questioning cated. after the began, pickup. Hedenskog Detective that appel- discovered Between 8:30 a. m. and 11:30 a. m. on lant juvenile. was a Without attempting to 14th, police November attempted to lo- parent contact a guardian, question- or guardian cate a they so that ing Hedenskog continued. Detective read him, again interrogate could this time con- his Miranda but did not ask cerning the They murder. contacted Wil- him if he wished to waive rights. these Foley (Foley), lard Chief Court Services Of- During this initial interrogation, appellant ficer for the Seventh Judicial Circuit. Sub- admitted burglarizing Stop the First Gun sequently, via a news report, Foley learned Shop stealing the 1979 Dodge pickup. that appellant suspect was a in Mantzoros’ Appellant further admitted that he was an and might death be tried as an adult. escapee from the Fo- Training School ley immediately Plankinton and that he drinking arranged had been for a de- day. tention Judge before Grosshans for understood them. police depart- as the remained p. 12:15 m. As soon ment became aware of this scheduled hear- throughout interrogation and knew that ing, Hennies Rapid City Captain Police an was better suited to advise Foley requested called because appellant, never said a word. In- Schuft interrogate appellant. wanted to Fo- deed, no distinction recognized Schuft be- ley improper. because he it was refused felt tween the roles of the officers and his *3 Hennies, however, Captain said he would guardian. own role as after Sometime get by Captain a continuance other means. m., originally p. 12:15 the time scheduled Foley they Hennies also con- informed hearing, for Detective appellant’s detention officer, templated using parole Scott sought-after Scherr obtained the admis- Schuft, appellant’s guardian. Foley as sions. again objected improper. to this as afternoon, 14,1980, Later that November Captain Hennies called the state’s attor- hearing the rescheduled detention was held ney’s meeting subsequently office. A was appointed represent and an was held in Hennies’ office with Wil- Captain 1981, Judge appellant. January, Gros- Tschetter, acting attorney, liam state’s John shans of the Judicial Circuit held Seventh Seehan, attorney, Captain assistant state’s hearing transfer in which he ordered that Moore, Hennies, the sheriff’s Deputy John an adult. appellant Ap- would be tried as representative investigation, in the Detec- then, in circuit pellant, arraigned was court. Scherr, tive and Each of the Scott Schuft. appellant sup- That same month moved to enough officers felt that press the statements which he had made appellant evidence at this time to arrest during interrogation on November 14th. Additionally, murder of Mantzoros. suppression hearing February, At a held in every person meeting each and at this knew candidly the various officers admitted p. the 12:15 detention hear- unless m. participation delaying appellant’s their continued, ing appellant would have detention and their motive to ob- counsel appointed and would refuse to ad- tain a confession before counsel was mit to the murder. With the aid and advice received a pointed appellant. Appellant office, attorney’s the state’s Scott Schuft psychiatric Rapid City examination in dur- became appellant’s acting guardian and the February, again and ing Sioux Judge continuance was obtained from Gros- August, during July, Falls shans p. day. until 4:00 m. that At no time suppress statements appellant’s motion prior p. Judge to 4:00 m. was Grosshans told interrogation was denied and during made delay sought po- because the third-degree burgla- was tried for appellant lice intended to seek an from admission theft, first-degree murder. ry, grand appellant Foley on the charge. murder guilty of third-de- jury appellant A found delay not informed of the but it discovered and second-de- gree burglary, grand theft when appeared he at the court chambers at from the gree Appellant appeals murder. p. Foley immediately sought 12:15 m. conviction, alleging that the trial murder but, judges, despite advice of several other jury that instructing court erred in advice, Judge their did not contact Gros- included second-degree murder was a lesser shans. Further, alleges that the appellant offense. informing appellant Without that he was suppressed No- trial court should the prime suspect in a Detective 14th confession since the de- vember State Scherr, Schuft, presence in the of Scott the detention hear- liberately acted to began interrogating approximately him at ing deprive attorney. him of an order meticulously noon. Detective in- Scherr of the propriety first consider the We appellant rights, again formed of his but trial court’s instruction on did not to waive ask if wished 3 of the information admission, murder. Count rights. By those his own Schuft with charged appellant duty guardian had satisfied his as after the were following read and he believed in the manner: Furthermore, 23A— urges day of Novem- about the 13th on or That that, cases of a crime Pennington, 26-7 mandates ber, County shall Dakota, designated by degrees, Bert Lohnes did of South include that in the crime and Degree degree of First public offense commit the there, provides: 23A-26-7 its verdict. SDCL in that he did then Murder authority of law and feloniously, distinguished Whenever a crime to effect design accused, premeditated if it convicts an degrees, jury, Mantzoros, human be- Harry the crime of death shall find Harry Mant- murder said ing, did kill and find- include that guilty he is in violation'of SDCL by gunshot, zoros a rea- there is ing in its verdict. When 22-16-4, in such contrary to statute as to which of of doubt ground sonable peace provided against guilty, case made and degrees an accused two or more Dakota. of South dignity only the lowest he can be convicted degree. *4 the trial objection, Over of jury the on the offense court instructed application the approved has This court murder as well as on the second-degree charge the of man- relating statute of this jury The first-degree offense of murder. charged in the murder slaughter to that of verdict of the offense of convicted information, degree of man- or a lesser murder, he second-degree an offense that manslaughter first-degree when slaughter never with and which has dis charged however, hold, We charged. was so different elements than tinctly misplaced in this argument the State’s murder. first and second because the use of context no effect on legislature the degree by 7 64 Reddington, In v. S.D. second-degree of the first and the elements that it (1895), N.W. 170 this court held charge. murder a defendant with charge reversible error to design under premeditated murder with a hoary age with Reddington may be While jury the provision one and instruct penal reasoning that nevertheless contains it jury provision. dimension, The penal under another which a constitutional sounds of provided that Reddington instruction in the constitution is aging no until knows that the death purpose could convict if satisfied The court stated: “One amended. by an act immi- apprise of the deceased was caused the defendant of an indictment is to evincing a dangerous charged having to others and with done nently of what he is mind, life, offense, regardless of human so that depraved that constitutes a criminal himself at any premeditated design prepared without to effect to defend at 173. killed. trial.” 7 at 64 N.W. person the death of the the S.D. VI, Dakota Article 7 of Consti- § an- argues Reddington The State “In all pertinent part: in provides, tution upon and not because the cient to be relied the accused shall have prosecutions criminal changed. statutes have homicide and right ... to demand the nature murder, one al- only there was him; against to cause of the accusation ways; in three different though defined ” copy thereof . . .. liable for each made this court regard provisions, To- to these potential punishment. same maximum the indict- principal “The office of design is has said: day, premeditated murder with 22-16-4, accused of the ‘nature ment is to inform the designated degree, first SDCL him’; to imminently cause of the accusation perpetrated by an act ac- being one of evincing a de- be thus informed dangerous to others [the life, constitutional mind, important most praved regardless of human but cused’s] Swenson, ex rel. Kotilinic design rights.” to effect any premeditated 196, 202, (1904). 99 N.W. designated killed is person the death of the S.D. Reddington, and pointed out in degree. 22-16-7. These As second us, in this case before penalties. equally as is true homicide statutes have dissimilar by a clear the evi- preponderance a murderer dicted charged indictment [t]he class, State, the distinctive specific and set forth McMullen v. dence. See S.D. such a legal characteristics of 173 N.W.2d crime, and the and that was the kind of A crime, being tried. he was has not appellant’s counsel guilty put only allegations plea of not preserved appeal, the error for under our issue, in and such alle- the indictment findings and requires proposed rule which gations charged express mal- killing conclusions, v. Jen objections, Jennings deceased, pre- ice and with a towards nings, we have death; design to meditated effect determined that such substantial charge error judgment our it was involved as to mandate review under that, convict, jury in order it was rule, plain error 23A-44-15. See necessary to make out the state Brammer, (S.D. 304 N.W.2d 111 such set a case as it had out in 1981). ap We therefore consider whether indictment. pellant’s confession was admitted properly 380-81, 7 S.D. at 174. at N.W. suppression hearing transcript since the We, therefore, hold that trial court inten demonstrates officials had error clearly instructing hearing in a tionally delayed his detention

on the offense murder. deprive effort him counsel successful inculpatory to obtain admissions. order mandated, we it Because a retrial is deem necessary appellant’s argument to consider holding our Appellant cites us to recent *5 sup- failing the trial court erred in to Poss, State v. 298 N.W.2d 80 press (1) reasons: confession two representatives agen- of wherein the same ap- deliberately delayed That the had State Rapid delayed City intentionally cies in had pellant’s a appearance judge before in order arraignment an of adult in an effort to an to of deprive they him an until had case, inculpatory In that obtain evidence. confession; (2) extracted the a and 23A-4^1, application of we discussed SDCL voluntary, considering confession was not part: “A law provides, pertinent the totality of the We have circumstances. shall, making officer an arrest enforcement of previously po- detailed activities unnecessary delay, take the arrest- lice attorney’s delaying and state’s office in com- person ed before the nearest available appellant’s appearance judge, before Poss, magistrate.” mitting and noted that at the suppression delay of dismissal because of the sought candidly officers admitted that sixty-five The trial de- some hours. so acted. sup- dismissal nied the motion for but

Actually, grounds the two intermin- partic- We noted in pressed confession. gled, delay because intentional not a “[ijllegal detention is ular pearance juvenile judge of a a would before showing of for dismissal absent a grounds obviously figure strongly totality Further, ille- [appellant]. to the prejudice Although findings the circumstances. gal is a nonconstitutional detention of fact and conclusions law of the trial (cita- Id. at 85 jurisdictional non defect.” suppression hearing go court in into omitted). important our dis- Most tions great circumstances, as detail no- here, in Poss are the statements cussion any where do we mention the inten- that: Further, tional delay. we do not find either dia- Attorney’s actions were The States proposed findings by appel- and conclusions purpose metrically opposed counsel, lant’s or objections to the State’s * * * meaning of SDCL23A-4-1. proposals. Absent the of an intention- issue sup- al would affirm delay, have to the trial the trial court’s order occur- court’s such as foreclosed from findings pression prejudice actions inasmuch as trial, at position the trial ring court does make are not contra- as to the (S.D.1976). Moreover, the treatment of tactics pre-arraignment we condemn informal, juvenile protective, in this case. Cal- a is rehabilita- Attorney of the States nonadversarial, right opposed to be tive and as culated in defendant’s formal, adversarial, judicial officer cannot retributive treatment taken before and has no against zeal justified by self-ordained used to secure criminal sanctions of criminal place system Gullings, in this state’s v. persons tried as adults. State justice. (1966). 416 P.2d 311 244 Or. Id. Supreme The United Court States case, sought by appel- In this the relief repeatedly required pro has dismissal, of a suppression, not lant was the ceedings satisfy process rights.3 due As the reading a fair of Poss confession and Gault, “neither the Four stated Court State, however, it. The seem to mandate Rights teenth Amendment nor the Bill of inapplicable, as is SDCL argues that Poss 1, 13, 87 for adults alone.” 387 U.S. S.Ct. 23A-4-1, herein was a because 1428, 1436, 18 L.Ed.2d 538. With few juvenile proce- under juvenile, detained require protec courts additional exceptions, 26-8, that more ch. dures right juvenile’s tion of a constitutional provisions under the particularly, against counsel self-incrimination. 26-8-23.1, up can be held Loyd, 297 Minn. v. State hearing. This hours without a forty-eight Cano, (1973); v. 103 Ariz. unsound, argument misplaced and indeed (1968). juvenile, P.2d 586 Before a who will' alarming. adult, effectively be tried as an waives his 23A-4-1,1 addressing Admittedly, SDCL constitutional to counsel and procedures, speaks “unnecessary arrest self-incrimination, giv must be 26-8-23.1,2 address- delay” whereas SDCL that he as an en notice be tried adult. detention, ing juvenile speaks in terms of Cano, Loyd, supra; supra; v. within a maximum of “prompt hearing” State, Theriault 66 Wis.2d forty-eight hours. We hold that this is a difference, particular- distinction without ly since the latter statute is drawn case, Clearly, in this *6 theory of the parens patriae context of the state’s had decided before the in promotes treatment which a close be terrogation request rep- and the relationship between Moreover, tried as an adult. he was in fact of the court. resentatives that a tried as an adult. We now hold sentences, additional, less, pro is afforded not proceedings

Juvenile hearings, with the exception rights of transfer tection of his constitutional and be solely juve conducted in the best interests of the a trial court can conclude that a fore 26-7-11; People intelligent child. SDCL in Interest nile has made a clear and waiver L., (S.D.1977); of D. M. 254 457 self-in of his to counsel and A., crimination, People in Interest of L. V. the state shall have to establish part: provides pertinent in to determine further detention re- SDCL 23A-4-1 or making added). (emphasis “A law enforcement officer an arrest lease. shall, delay, unnecessary take the ar- C, 707, 99 person 3. Fare v. Michael 442 U.S. S.Ct. rested before the nearest available com- 2560, Winship, added). (1979); mitting magistrate.” (emphasis In re 61 L.Ed.2d 197 397 1068, 358, (1970); U.S. 90 S.Ct. 25 L.Ed.2d 368 pertinent part: provides 26-8-23.1 in 1, 1428, Application Gault, 387 U.S. 87 S.Ct. facility placed designat- States, (1967); When a child is in a 18 L.Ed.2d 527 Kent United court, charge person ed facility in 541, 1045, 383 U.S. 86 S.Ct. 16 L.Ed.2d 84 notify promptly at- Colorado, shall so the state’s (1966); Gallegos v. State of 370 U.S. torney. 49, 1209, (1962); Haley 8 L.Ed.2d 325 82 S.Ct. longer No child shall be held in detention . . . Ohio, 332 U.S. 68 S.Ct. 92 v. State of forty-eight petition than has hours .. . unless a L.Ed. filed, following been or the court so orders “untenable.” The possi- say was a court went on to that there that he was advised tried as an adult.4 a held to notice that an indict- bility that he be defendant is ment all the lower for murder “includes record, it is review of the From our grades of felonious homicide” and that in was never advised clear that duty homicide cases it is the of the trial against him in could be used statements jury that if court to instruct therefore hold proceeding. an adult We the defendant innocent of crime . such statements should be upon retrial charged they must consider the evidence suppressed. to the other forms of homicide. relative trial. We reverse and remand for new Hubbard, 104 N.W. S.D. (1905),presented an inverse situation: HENDERSON, J., concurs. murder, charged the defendant FOSHEIM, J.,C. and WOLLMAN and instructed on the trial court DUNN, JJ., part concur in and dissent in but refused to instruct on manslaughter part. manslaughter. We held that second-degree FOSHEIM, (concurring Chief Justice in (currently 23A- pursuant to statute part, dissenting part). 7) indispensable proper “. . . it is 26 - trial of a homicide case that the I part majority dissent from that which holds that the trial court erred in designated by the crime be ascertained instructing jury second-degree mur- jury. The record must show this essen der. verdict, to en tial element of the in order judgment with pronounce able the court to v. Stumbaugh, S.D. in a crime of that penalty attached (1911), N.W. 666 the defendant was indicted added). (emphasis We degree.” Id. at for manslaughter murder and convicted of trial even upon held that degree. the first urged The first error believes the evidence though the trial court by appellant was: higher of conviction of the only warrants having charged been [T]he fense, homicide must degrees of criminal the information with the crime of mur- jury. empha Hubbard be submitted to der, and the crime manslaughter sized that a conviction either degree not having alleged been legally responsive to manslaughter information, the court was not autho- indictment, though such ver even charge rized in its state unjustifi unjust or “might illogical, dict that, them if they found the defendant the evidence.” Id. able under guilty murder, they of the crime of could find him guilty of the lesser crime by our designated murder was of manslaughter in the first or second second as murder in the first or legislature degree. murder carries degree. First-degree *7 Id. at In Stumbaugh we held lesser Class B felony penalty. The Class A second-degree trial court correctly instructed on man- felony penalty applies 23A- slaughter, stating any other view was 22-16-12.1 SDCL murder. SDCL B., (S.D. privilege against In 284 Matter of M. J. 284 N.W.2d 874 self-incrimination.” R., 1979) here, appellant, and Matter of V. 267 N.W.2d 832 N.W.2d at 877. Since the (S.D.1978), juveniles’ custody, police interrogated this court examined waiv in the State while right privilege against er of to counsel and their had the burden to establish that cases, voluntary intelligent, In knowing, self-incrimination. those we held that had made juveniles’ counsel, appel- statements were admissible. The and that waiver of his case, however, present distinguished any possibility is because lant realized the evidence juveniles against in Matter of M. J. B. and Matter of gave be used him in an that he custody V. R. were “not in or otherwise de prosecution for homicide. adult prived any signif of freedom of action in [their] way imprisonment A felo- icant and therefore the state had no bur 1. Death or life for Class ny, 22-6-1(1); imprisonment knowing, intelligent, and volun life den to show a tary felony, juveniles’ right 22-6-1(2). waiver of the to counsel or Class B 416 Hubbard, Painter, Stumbaugh, find the of Violett requires

26-7 guilty. crime of which a defendant is and Zobel for the rule that in homicide duty cases the trial court has a to instruct 277, Painter, In v. 17 State S.D. degrees and lesser included offenses.2 (1945), N.W.2d 12 defendant in Clearly, as this court stated in the first-de- charged manslaughter Cook, 809, “. . . gree manslaughter but convicted of in the the defense option does not have the of second-degree. appeal urged On defendant precluding carrying the court from out this that the trial court erred in a second- giving duty hopes forcing an ‘all nothing’ or degree manslaughter instruction. We verdict.” held, again citing emphatically Hubbard Stumbaugh, that the trial had a v. Reddington any is not cited in duty to instruct on man- the above my knowledge cases and to its

slaughter and it would have been reversible holding has, on the instruction issue until error not to do so. now, reposed quiet sleep of the dead. unwrap legal If our choice is to this mum- consistently These have been principles my by nearly or abide a century living reaffirmed still later cases. In State v. precedent, opt I to let the dead rest Violett, (1961), 79 S.D. 111 N.W.2d 598 peace. charged defendant was with murder first-degree manslaughter. and convicted of hereby I am authorized to state that Jus-

We said that: joins tice part DUNN in this concurrence in An alleging Information em- in part. dissents braces elements of the lesser manslaughter crimes of defined stat- WOLLMAN, (concurring part, Justice jury may guilty ute. A dissenting part). any offense the commission of I portion cannot concur in that necessarily involved in that with which he majority opinion which holds that upon re- charged. Supp. SDC 1960 34.3669. It trial statements sup- must be if, concluded, follows as pressed because he was not advised that evidence adduced was sufficient to have those statements could be used him a verdict sustained it was in the event that he should be tried as an sufficient to sustain the verdict of man- adult. slaughter. I principal do not read the cases relied added). Id. at (emphasis In upon by the majority opinion requiring as Zobel, (1965), 134 N.W.2d 101 S.D. per majority opinion se rule that cert. den. 382 U.S. S.Ct. adopts. Gullings, State v. 244 Or. (1965), charged defendant was L.Ed.2d 76 (1966), Supreme P.2d 311 Court with murder and convicted of second-de Oregon point was careful to out that: the issue gree manslaughter. Zobel parens patriae The relationship does not again a verdict of second-de raised whether exist between and child but be- gree manslaughter could be returned on a tween court and are in the child. Police charge of affirmed the con murder. Zobel solving transgressions against business of viction, Hubbard, citing Stumbaugh and society apprehen- welfare of and the holding Painter. Hubbard’s in homi responsible sion of those who are there- jury’s “illogi cide cases the could be verdict They engaged cal” for. in the rehabil- explained in Zobel: if the evidence *8 supports itation of the and the treatment of charged, the offense a conviction child family problems on a lower where will not be set aside. emotional and Vassar, exchange State v. information and a N.W.2d 678 the free we (SDCL 23A-26-7) important. cited 23-45-22 so The relationship close is ' felony applied seemingly peculiar lesser included tests to other criminal This rule is Stumbaugh. homicide offenses. and should not be confused with the use of by police information secured will should be court, transferred to adult but the not, in opinion, our make tend to more likelihood of such transfer becomes a mat- difficult the establishment ter of a close rela- of probability rather than possibility. tionship juvenile between regard, workers and In this although as stated in the majority opinion child. the officers and the state’s attorney had early decided request on to 244 Or. at 416 P.2d at 314. adult, that be tried as an decision, In following Gullings decision was a matter for the circuit court Supreme Court Minnesota stated: and not for the prosecuting authorities. We agree expressed with the rule by Granted that process decisional the Oregon court in Gullings, State v. triggered be in the first instance by a re- (1966). Or. 416 P.2d 311 A confes- quest from the attorney’s state’s office that by juvenile sion is admissible if he has proceeded adult, against as an been apprised rights of his constitutional the ultimate responsibility making voluntarily intelligently waives decision court, was for the circuit and for those in making a statement. the circuit court alone. However, recognize we that the nature of It is interesting to note the conclusion juvenile system may work to encour- by Supreme reached Court of Minnesota age a by juvenile confession Loyd case: might otherwise While be withheld. The defendant in this case had an ex- of the facts and circumstances should be juvenile record, tensive delinquency examined in juve- whether a determining parole from the state school at Red nile has intelligently rights, waived those Wing, supervision was under the of a it important juvenile that the is ques- probation officer. Officer tioned in adversary an setting and not in specifically Brown did not inform defend- the confidential atmosphere juve- possible prosecution, ant of he was adult process; nile court otherwise not juvenile attached to realize that responsibility might criminal policeman.... knew defendant he was a result. potential Awareness of criminal responsibility may imputed often be to a

juvenile when the police conducting evidence, After all the considering course, the interrogation. Of the safest amply supports conclude that the record method the interrogating authority can inculpa- finding the trial court’s pursue is to specifically advise a tory statements were not elicited prosecution criminal as an adult context in which the could rea- could result prosecution whenever such sonably protective believe that a and con- possible. between relationship fidential existed police. him and the State v. Loyd, 442, 449-450, 297 Minn. Minn, 450-451, Loyd, at N.W.2d at 677. Indeed, as the stated, Minnesota Court the “safest method” might well be Likewise, for the Supreme Court of Wiscon- interrogating officers to specifically result, applying advise sin reached a similar of the possibility prosecution Loyd rationale: as an adult prosecution whenever such question There is no but that defend- possible. rule, however, Such a mandatory confession in the instant case is ant’s carries with it its own inherent difficulties. proceedings. criminal admissible adult Strictly speaking, prosecution of a placed custody by regular po- He was as an adult is theoretically possible any licemen, at questioned the detective bu- case, following the transfer hearing reau, man- and warned that his statements dated 26-11-4. practical As a could be used him “in a court of matter, course, only those cases that law.” No evidence indicates defendant meet the criteria set forth in that statute expecting confessed that his statements *9 faith, good diligent resulted from the ef- only juvenile proceed- be used in could forts, ultimately unavailing, of the law en-

ings. forcement to to locate attempt officers 33, 52, State, Theriault v. 66 Wis.2d pellant’s Rapid at the relatives locations (Ap- City that he described to the officers. by the circuit findings entered One of pellant’s living mother was somewhere in hearing in following suppression court Minnesota, father had been and his killed the instant case was that “the defendant Nam.) Viet not taken Had officers by the protected he was did not believe search, they time to conduct this could have finding is juvenile justice system.” That interrogation with the af- proceeded shortly evi- amply supported by the uncontroverted ter 8:00 a.m. on 14. November Unless following find- dence that resulted in the hold that law enforcement officers to ings: interrogate no to absolutely producing before him at a deten- I. hearing, that I proposition tion do not majority opinion espouse, understand the 13, 1980, prior That on November hold, I believe that we must however reluc- on the being detained tantly, totality that in view of the herein, charges was an es- the defendant taking appellant delay circumstances the capee Training from the State School require does not before the circuit court Plankinton, South Dakota. Al- statements. suppression agree majority opinion’s with the though I II. rejection argument of the State’s That the defendant had an extensive interrogation may hold juvenile history prior charges be- a hear- up forty-eight hours without ing brought herein, with considerable however, this, say not to ing, say during contact with the system Court interrogate never police may which he had been advised of his constitu- her before a circuit bringing before him or tional by several times Circuit provisions of SDCL judge under Judges Court as well as law enforce- 26-8-23.1. ment officers and court services workers. denying appel- I affirm the order suppress. lant’s motion to

III.

That the three defendant had served

separate terms of detainment at School,

South Dakota Training es-

caping from the third such term. supported by

Likewise evidence presented hearing, at the suppression Dakota, Plaintiff of South STATE included the number of testimony of a Appellee, teachers and had worked counselors who closely with appellant during his several BUNNELL, D. Defendant Deraid terms Training of detainment at the State Appellant. School, is finding the trial court’s that “the No. 13346. age, defendant’s educa- ability mental tional level are adequate such that he un- Supreme Court of Dakota. him, derstood what was could com- said to on Briefs Dec. Considered prehend him, the rights explained to Sept. Decided was aware of in which he proceedings was involved.”

While it is unfortunate that there was a

delay hearing, detention