State v. Oster

Dakota, Plaintiff STATE of South Appellee, OSTER, Jr., Defendant

Marvin Appellant.

No. 17745.

Supreme South Dakota. Court 7, 1992.

Argued Oct.

Decided Jan. 1993. Denied 1993.

Rehearing Feb. Barnett, Gen., Atty.

Mark Joan Boos Schueller, Gen., Atty. Pierre, Asst. plaintiff appellee. Quinn, Eiesland, A.

Brad Schreiber of Barker, Day Fourche, & Belle for defen- appellant. dant and HENDERSON, Justice. PROCEDURAL HISTORY/ISSUES Appellant, Oster, Jr., Marvin J. was in- by grand jury dicted County Butte on 25, 1991, April for violation of Degree 32-3: Burglary. Second At a mo- hearing, tion he was denied a motion to dismiss the indictment for insufficient in- give dictment and failure to Miranda warnings. A granted motion limine was suppressing prior evidence of criminal con- victions; however, suppress a motion to taped Oster’s admissions was denied be- cause of the voluntariness of the admis- sions. September

Trial was held on jury finding with the of second degree burglary. 1, 1991, On November Oster was sentenced years to five Penitentiary. South Dakota State On No- 22, 1991, timely vember Oster filed a notice appeal to this Court raising the follow- ing issues: I. Did the sufficiently indictment in- charge against form Oster of the him?

II. Was Oster’s confession the result police coercion? III. Did the trial court abuse its discre- by admitting taped tion Oster’s statement into evidence? IV. Did the trial court abuse its discre- by denying tion Oster’s motion for mistrial?

V. Did the trial instruct on the law? VI. Was there sufficient evidence of corpus delicti to corroborate Oster’s confession and sustain a conviction? insufficient. holding on dictment was For indict- our

We reverse based sufficient, ment to be it must state all the Issue V. charged fairly of the offense elements charge against inform the defendant FACTS him; plead and it must enable him to 13, April early morning of hours In the of conviction in acquittal bar future 1991, girlfriend left Oster and his Dead- prosecutions for the same offense. United began gambling and night a wood after 394, Bailey, v. 444 U.S. 100 S.Ct. States “cruising in a near the around” snowstorm 624, (1980); 62 L.Ed.2d 575 State v. Youn- County, in community of Vale Butte rural ger, 453 N.W.2d 834 eventually stuck his Dakota. Oster South Logue, night in spent The. car in a ditch. two degree indictment for second bur- Oster’s daybreak. waiting for the car glary stated: a.m., Oster, leav- approximately 6:15 At Degree Burglary; I That Count Second car, girlfriend with the reached the his day April, the 13th on or about Larry Vissia. As Oster stood at home of Butte, county state of South door, getting in requested help he his Dakota, OSTER, MARVIN JR. did enter Although the road. the two car back on structure, occupied in an to- or remain met, invited him inside to had never Vissia Vale, residence, Larry Vissia Butte wit: put he his boots. While wait while on Dakota, County, South with intent to putting in room on his Vissia was another therein, in crime of theft commit the boots, prevent dog he closed the door to 22-32-3; and, contrary violation of SDCL bothering As escaping from and Oster. made and to the statute in such case area, he in the kitchen noticed Oster waited dignity of provided against peace and cupboard. on He sitting wallet Vissia’s of South Dakota. the state it, picked up, through it apparently looked mys- in This indictment not cloaked out $34.00 and then decided steal tery. The first words inform Oster bedroom, Thereafter, it. Vissia exited charged. The elements they drove rope, together found a tow correspond the statute for sec- with they whereupon successfully car to Oster’s 22-32-3, degree burglary. as ond parties Both then put it back on the road. in states: amended separate ways. their went Any person who enters an hours, picked Vissia Within the next two with intent structure that his cash up his wallet and discovered shoplifting or than the act of crime other missing. He called the a check were chapter in theft as described retail County reported office and Butte Sheriffs misdemeanor, or re- constituting a 30A Pomrenke was Deputy theft. Sheriff after in mains assigned investigate the case. any crime forming the intent to commit day Deputy Pomrenke’s inves- One described shoplifting than other Oster, he tigation him to contact- which led constituting a misde- chapter 22-30A him him meet at the ed and asked Oster not amount- under circumstances meanor After arriv- p.m. after 5:00 Sheriffs office burglary, ing to first Deputy began a ing, Pomrenke Oster degree burglary. Second concerning tape discussion Ost- recorded felony. 3 is Class day question. Less er’s actions consistently held that an This has Court later, minutes Oster confessed than ten it em generally if sufficient indictment money. taking or its ploys language of the statute 840; Logue Younger at equivalent. DECISION (S.D. 155; 99 N.W.2d Bingen, State v. 326 I. The indictment was sufficient. 1982); 82 S.D. Lange, the lan (1967). Inasmuch as alleges his convic N.W.2d first incorpo- guage of the indictment the in- tion should be overturned because statutory Dakota, rates the law of South guilty, responded he was find questions we the indictment be sufficient. freely. However, Pomrenke no- answers, ticed inconsistencies Oster’s voluntary II. be- Oster’s confession questions. rephrase would Several yond reasonable doubt. times Oster taking money. denied motions, eight During About pre-trial minutes after this interview began, sought suppressed to have his statements Pomrenke asked whether Oster might opportunity due to the failure of law enforcement offi have had an to steal the give warnings. cials to money. Miranda trial responding yes, deputy Perkins, judge ruled under State v. cash, asked once more whether he stole the (S.D.1989), interrogation the whereupon Oster and confessed offered to custodial, warnings was and thus the repay Vissia. required. were not Oster does not chal the deputy After told Oster that the con- decision, lenge this but claims that sequences court, by would be decided involuntary, by statements were achieved he permitted to Oster leave. The entire psychological coercion. taped interview lasted ten minutes. claim, Under such a State must argues Oster now that the use the news- beyond a prove reasonable that in doubt paper, the photo lineup, mention and criminating or statements confessions were repeated questioning up psycho- add to freely voluntarily and made. State v. logical coercion and suppressed. should be Corder, (S.D.1990); N.W.2d 460 733 had by Oster been telephone contacted Dickey, v. 459 445 N.W.2d when asked to to come the Sheriffs office. trial court must determine voluntariness Oster drove his own car to the office. through totality examination Pomrenke then informed that Oster he did Haynes the circumstances. Washing stay, open, have to the door was and he ton, 503, 1336, 373 U.S. 83 S.Ct. 10 L.Ed.2d was free to police leave. No other were (1963); Albright, 513 418 N.W.2d present. Even admitting after to (S.D. 1988). 292 Because the trial court crime, Oster was allowed to leave his on found the voluntary, confession to be own. police Absent element of over- finding binding unless, upon this Court reaching, simply there is no basis con- review, we conclude that such find cluding that deprived Oster has been Jenner, is clearly erroneous. State v. process. due Connelly, Colorado v. 479 716 Albright U.S. 107 S.Ct. 473 L.Ed.2d at 297. (1986). response Deputy In to Pomrenke’s re- quest, voluntarily deputy met with Pom- knew Oster had been at Vis- shortly p.m. renke sia's suspected committing 5:00 at the Sher- and thus him of iffs office. No one deputy voluntarily but the was the crime. Oster met with present. Oster was made aware of the Pomrenke. grueling After less than nature of the visit question session, and was handed a news- and answer Oster blurted paper about article the crime he indicate, when ar- out a confession. As facts rived. Pomrenke and then went to a Oster ingenious hot-boxed or in an private room to missing discuss Vissia’s game cat mouse with television’s money. famed Lieutenant He Columbo. confessed freely and candidly. began taping interrogation

Pomrenke by noting 5:00, time was after given Oster has no this Court reason to that Oster did not to have talk and was procedures County doubt the of the Butte freely acknowledged free leave. Oster Department Sheriff’s or the decision of the stay. that he would lower Although court. we are at a as loss explaining confessed, he get why suddenly wanted to we do things up cleared because had Vissia identi- conclude that statements were volun- photo lineup fied Oster in a tary and believed result psychological and not the may prescribe lower such terms and condi- overreaching. The police coercion (Emphasis suppression just. tions as are carefully considered review benefit of an on-site and had issue Discovery statutes exist eliminate trial findings deem its testimony. We do not meaningful, discovery To ambush. be clearly erroneous. possible must as far in advance as be permit opportunity the accused to inves- its trial court did not abuse III. The tigate damning the evidence which admitting Osier’s discretion case, help- to discover evidence which is taped into evidence. statement Trial ful his cause. courts must heed to case, prose During State’s discovery the criminal statutes disclo- lest incriminating sought to have cution tardy sures be so that defense counsel is object tape into evidence. Oster admitted protect adequate denied time to his client discovery proper that a grounds ed on the prepare his case. McKee pursuant request been made to SDCL had J., (Henderson, specially concurring). requesting “all written or record 23A-13-1 preferred Though Oster would have Although the ed of Oster. statements” original to the trial court stand its rul transcript a of the record produced State prohibit the ing and introduction of the produced. ing, was never tape the statutorily tape, the trial court was also objec- court sustained Oster’s After the permit inspect authorized to Oster to the tion, Pomrenke testified that witness State tape presence jury’s outside the before ad representa- transcript the accurate n mitting it into evidence. It did so. Under tape. immediately tion of the The State 23A-13-17, the trial court could have SDCL tape. a offer on the The trial made granted a continuance had he so re decision, permit- its but first court reversed Furthermore, quested. the contents of the tape the outside the ted Oster to hear evidence, already tape were admissible via jury’s presence. Therefore, transcript. the court the trial for Although a trial court’s order tape because it was a more permitted the expedi production the of evidence must be transcript. of the representation accurate obeyed, every tiously carried out and of remedy for nondisclosure discover as ordered is produce failure to evidence material is left the sound discretion able McKee, prejudicial error. State at of trial court. McKee State, N.W.2d 866 Marshall J., (Henderson, specially concurring). (S.D.1981). The trial transcript Whereas the was admissible rulings evidentiary presumed are court’s copy tran- possessed and a will not unless correct and be reversed script eventually tape, heard the is a clear of discretion. Mar there abuse introduced no undisclosed testimo- (S.D. Morgan, nette v. recording. In view the ny using the 1992). a party comply a fails to with When Oster, showing any prejudice to lack of request, the looks to discovery trial court the trial court did not abuse we hold that remedy: provide a 23A-13-17 by admitting tape into its discretion If, during any time the course of evidence. brought it proceeding, attention party has failed to of a court that abuse its IV. The trial court did not applicable discovery pro- comply with by denying the motion discretion vision, party such may the court order mistrial. discovery grant permit inspection, trial, timely continuance, made a party Prior to prohibit from evidence, disclosed, testimony, all suppress or it motion to introducing evidence prior criminal concerning order as it deems or otherwise may enter such other that Oster on the fact just convictions. Based under the circumstances. The granted time, testify, the trial court specify place and manner would may testi- discovery inspection Deputy Pomrenke making the motion. When State, for the the silence was broken disregard any aspects fied ... The is to testimony may as follows: of that that indicate that photographs these were taken in the Q: Now, Okay. you when had that sus- sheriff’s office might ... the sheriff mind, pect in what was the next possession, pictures per- have had thing you did? picnic at a sons which the sheriff’s office put together photo lineup A: I of Mar- any held or for other reason. There is no vin Oster. implication there was Q: Okay. just briefly And tell us how charged against any of the individuals you go about that? line-up, especially against this Mr. pictures every- A: extra We takey your Oster ... recollection of the wit- body that’s booked in the Sheriffs testimony governs; ness’ not mine. placed pho- and are either in a office Although the trial court’s intentions album; albums, photo if don’t we well-intended, perhaps were high- it put secretary’s we them in the desk. lighted the error. Pomrenke stated that go through photos And I photos used in identifying Oster at the pick people out that will look alike or scene of the crime were peo- of “booked” look like somewhat to the ple. did not misconstrue I suspect. was—that have as a “persons “booked” to mean picnic.” at a added). (Emphasis Essentially, the attempt interrupt Oster made no rules of evidence Pom- protect rights renke’s exist to remarks. He waited until Pom- accused. completely appears trial, renke It explained his answer that twice be- calling Regardless, pre-trial fore for a mistrial. violated a motion. Oster contends damage was done before the answer this violation prejudicial was completed, violating suppression However, thus should in result a mistrial. trial request. explained The State that it had no granting courts have broad discretion in publish intention to information which was mistrial. The decision of the lower court potentially prejudicial to Oster. will be disturbed absent a clear abuse showing of discretion and an actual prej of We find this excuse to be without merit. udice. Bogenreif State v. During hearing, the motions’ the same ex- McDowell, State v. 391 N.W.2d change prosecution between the Depu- (S.D.1986). 661 ty Pomrenke occurred. Q Okay. you your And did in have determining test for if the trial possession photographic line-up? court abused its discretion is whether Yes, A I did. original Court would have made an like ruling, judicial but whether we believe a Q photographs Where did the come mind, in circumstances, view of the law and placed from that were into the line- reasonably could have reached the same up? conclusion. Rufener, State v. 392 N.W.2d through A I went mug our books is (S.D.1986). 424 them; what we call we take an extra picture every person that comes of determining In whether an error is through the and we prejudicial, Sheriffs office we must find in that the error put them in a And I book. then probability all produced must have some through pictures went and found effect the jury’s verdict and was strong (Em- that had similarities. rights harmful to the substantial of phasis appellant. Blalack, State v. 434 N.W.2d 55, (S.D.1988). State was well aware that the infer- objection 58 After the prior admonishment, ence to convictions would surface. no further references to mistrial, denying judge prior express at- convictions occurred. We tempted remedy strong displeasure the situation admon- attorneys about who ishing jury: skirt and at- around the rules of evidence

311 Citing authority, California we the accused’s constitu- acknowl- tempt prejudice edged “burglary must be possible defense. committed right the best tional violation, in right who has no evidentiary be Despite the State’s building burglarized.” Matter that Oster’s substan- we are not convinced 24; Gauze, People at v. 15 Cal.3d T.J.E. unduly prejudiced by rights were tial Cal.Rptr. 125 542 P.2d 1365 in testimony. proper such situa- As (1975); Derby, tion, ignore jury was instructed (S.D.1990). legislature In response, the judicial like mind find that a remarks. We conclusion; second-degree amended South Dakota same have reached the could burglary statute to read: thus, was no abuse of discretion there By import of denying the mistrial. Any person who enters corroboration of and the Oster’s confession any structure with intent evidence, proof of Oster’s circumstantial shoplifting the act of crime other than Thus, overwhelming. we hold thieving was chapter retail theft as described prejudicial no error. There that there was misdemeanor, constituting a or re- 30A took ad- question no that Oster simply mains in an structure after entering by peacefully vantage Vissia any forming the intent to commit crime home, help, and then asking shoplifting other than as described in thieving money from Vissia’s wallet. State chapter constituting 22-30A a misde- 464 N.W.2d Myers, under circumstances not amount- meanor expressed that there Myers, Under we degree burglary, to first showing preju- an actual must be “... burglary. Second second dice.” It does not exist. felony. is a Class incorporate some The revised statute does were in error. V. The instructions as noted Matter remedies T.J.E., (Henderson, J., the trial court Oster claims that However, concurring). instruct the the stat- specially failed to remedy problem law of the case because the instruction still fails to ute indoors, degree burglary defining did no the commission of severe, felony entry remaining subject or in the to a state that matter how Furthermore, charge. To answer at to be Id. 26. structure had unlawful. this, burglar must revisit this case: In the the be we must it does not state that (S.D.1988). in the structure of T.J.E., right N.W.2d who has no be Matter one eleven-year girl burglarized. old who was T.J.E. was an and, during in a hours retail store business Thus, we come to Instruction store, Easter in the ate chocolate while dispute. The trial court subject # it. paying for egg, then left without law as follows: jury instructed charged her 22-32-3: under SDCL of second elements or remains in an Any person who enters In- charged degree burglary, the intent occupied structure with dictment, which the state must each of circum- crime therein under commit doubt are: prove beyond a reasonable degree amounting to first stances not (1) time and at the That defendant second bur- burglary, is en- place alleged the Indictment glary ... a structure de- tered or remained'in interpreted mean unlaw- We “remains” as a house. scribed occupied structure. remaining fully (2) That said structure was Therefore, that second bur- we held structure. en- “where T.J.E. is not committed glary with the (3) entered en- That defendant structure and tered an remained remaining in the intent commit try, struc- lawfully while in- formed the having of- therein after ture, to commit an formed the intent crime. tent therein.” fense Although object taped did not to this in- contends that his Depu- confession to struction, in- propose he did a substitute ty only piece Pomrenke was the of evidence correctly Failure of a court to struction. connecting corpus him to the delicti. This fully instruct reviewable accurate. objection unless an was made or a written extra-judicial An confession can be cor- correctly stating the law was instruction roborated the fact that a loss occurred requested. Kouf, 484 N.W.2d 864 Frey v. and the fact someone’s criminal act Cave, Inc., Schmidt Wildcat caused the at loss. Best 452. Vissia testi- (S.D.1977). pro- Oster’s fied that he had cash his wallet $34.00 posed exactly instruction was the same ex- placed cupboard when he it on the in his cept inserting “unlawfully” the term kitchen, money gone the fol- where indicated: lowing day, and that Oster was the (1) at the time and That the defendant during other in his home the inter- place alleged in the en- indictment Furthermore, im. Oster was alone in the remained in a unlawfully tered or room where the wallet was located and as a house. structure described opportunity. Although thus had the evi- circumstantial, dence is we hold that it is (3) That the defendant entered with the sufficient to corroborate the confession of intent to commit a crime or unlaw- Oster. having

fully remained therein after formed the intent to commit a crime. CONCLUSION (Emphasis We hold that the indictment was suffi- Ordinarily, jury adequate, are instructions finding cient. The court did not err in whole, they if correct- when considered as voluntary. confession to be There was no ly jury. inform state law and admitting taped abuse of discretion in Gillespie, denying confession or the motion for mis- Although the trial court’s instruction fol- trial. We hold that the instructions statute, wording it did lowed comport did not to the law in this state on incorporate applicable decisional law that degree burglary, a crime was made known to the trial court Ost- tried, which thereby prejudicing Oster was er. As this has held and Court indicated record, his defense. For the Oster served above, the re- unlawfully accused must approximately five months for this convic- T.J.E., main. Matter 25. paroled. tion and has since We take been home; was bid to come into Yissia’s judicial Penitentiary’s notice of the State peaceful entry, after this and invited he 19-10-2(2). records under SDCL spontaneously money took the from We reverse. cupboard. by wallet We stand our previous T.J.E., holding in Matter writ- AMUNDSON, JJ., WUEST and concur. Justice, ten our former Chief Justice Wuest. We hold that crucial because MILLER, C.J., specially. concurs wording missing was from the instruc- SABERS, J., dissents. tion, accurately the trial court failed to inform the of the law. MILLER, (concurring spe- Chief Justice cially). There VI. was evidence to sus- sufficient tain a conviction. prosecuto- This is a classic case of unfair pre- over-charging. rial facts trial, Under At the close of the the trial the. sented, only possible I conclude that the extra-judi instructed that an confession, alone, was standing Oster could have committed cial will not sus (SDCL Proof, second-degree independent petty tain a theft 22-30A-l conviction. statement, Garza, -17)& the time carried a maxi- must exist. which at Best, county penalty thirty days mum State v. (1975). jail 89 S.D. and a fine. SDCL 22-6-2. $100 chapter constituting steal- 22-30A a misde- reality, convicted of In meanor under circumstances not amount- Samari- good wallet of ing from the $34 burglary, guilty first degree to is five-year penitentiary He tan. received degree burglary. degree second Second (the fails note that majority sentence burglary felony. (Emphasis is a Class 3 suspended). years this was three peni- independent inquiry of Through his legislature could While have amend- records, major- parole tentiary or board by inserting ed SDCL 22-32-3 “unlawful- served ity author has learned “remains”, in front of the it chose ly” word months of this sentence. approximately five shoplifting exempt instead to and retail appropriate maximum That far exceeds encompassed theft from crimes within the jail which the correct thirty-day sentence This one statute. leads to conclusion. charge would have carried. statute, legis- amended Under the as crimes, in lature as to all other than SABERS, theft, (dissenting). shoplifting person if a re- retail Justice mains, lawfully unlawfully, in an occu- properly instructed on the The trial court forming pied structure after the intent to law I vote to affirm. current crime, any person guilty commit is degree burglary. interpret To second provided: 22-32-3 Prior SDCL any in manner in direct statute other in person enters or remains an Any who legis- intent of the conflict with obvious occupied with intent lature and erroneous. any crime under circumstances therein legislative purpose of the branch burglary, amounting degree to first purpose to enact laws. Sec- burglary. judicial interpret and enforce branch is felony. is Class 3 ond It is important the laws. refresh our TJ.E., decision in In re court’s occasionally, forget. lest we We memories (S.D.1988)interpreting the affirm trial court and this con- should of those word “remains” within context presently under 22-32-3 as viction * remains,” “unlawfully to mean facts enacted. pro legislature amended SDCL 22-32-3 vide follows: enters

Any who any intent

structure with commit shoplifting the act of

crime other than chapter

retail theft as described misdemeanor, constituting a or re-

30A structure after

mains

forming intent to commit shoplifting than as described

other T.J.E., every burglar." shoplifter inter make In re * Thiscourt stated in In re TJ.E. that "[t]o pret (citation omitted). to hold the word 'remains' in SDCL22-32-3 when commits present with’ he is in an ever a crime therein would the intent

Case Details

Case Name: State v. Oster

Court Name: South Dakota Supreme Court

Date Published: Jan 27, 1993

Citation: 495 N.W.2d 305

Docket Number: 17745

Court Abbreviation: S.D.