State v. Tapio
459 N.W.2d 406
S.D.
1990
Check Treatment

*1 evil, undergo an made to good, a Dakota, Plaintiff not deserve.

which he does of South STATE Appellee, decision, Honora- majority Under con- forsaken this universal ble Court has “Blaine,” Brings Plenty, termed viction. TAPIO, Dean Defendant Robert A that which he deserves: escaped has Appellant. sentence, parole, without lifetime Nos. 16653. and his Penitentiary. By his intent Dakota. Supreme Court of South juryA act, life. he took another man’s him, having of the evi- heard all convicted Argued 1990. March dence. July Decided expressed: “We Hand once Learned words, noth- there is deal with have to majority than words.”

ing more fluid however, it does

opinion fluidity; has word good sense does it achieve

not make nor majority writ-

just Specifically, the result. appreciate constitu- simply fails Supreme stance of United States

tional If reflected and Portash.

Court as Luce prece- enough,

that is not bad it overlooks Court, namely Cody. in this

dent precedent more not true that fosters

Is it

precedent? Accumulating they become — pub- lawyers depend upon it. The law depend it, upon also.

lic has bring does manner footnote

what

positive good to the of this settled law only sounding It acts as a board

State? previous case

for an acidulous dissent carry day. did not I am in accord with the Chief Justice’s also, 432 N.W.2d 268. believe, he, that the writing as does decision an artificial con- majority creates challenge convic- to the murder

stitutional Plenty. Brings

tion of

Therefore, join I in the Chief Justice’s

dissent.

assault, simple assault, attempts charged proposed. all offenses in al- the trial court erred 2. Whether lowing Tapio impeached custo- to be that were held to be dial statements rights. of his Miranda violation its abused 3. Whether *3 Gen., Ryan, Atty. Bridget M. Asst. Tapio refused to when it allow discretion Gen., Tellinghuisen, Atty. (Roger Pierre A. sequester po- and individually question Pierre, brief), plaintiff appel- on and jurors. tential lee. trial court its 4. Whether the abused admitting photos evi- in discretion Whiting, Hagg &

George Grassby of E. the scene. dence seized at appel- Hagg, City, for defendant and Rapid lant. review, the State raises the By notice

following issue: MORGAN, Justice. erro- Whether trial court in and/or as a matter of law neous erred a Tapio (Tapio) appeals Robert Dean excluding Tapio’s post-Mnmcto state- con- jury on a verdict judgment rendered ments. murder, second-degree aris- victing him of death of ing participation issue, in the Tapio first sec- In his claims that (Janis). companion (SDCL 22-16-20), This a ond-degree manslaughter Chris Janis Brings (SDCL 22-18-1.1(2) Plenty, case to aggravated assault (# conference). (SDCL 22-18-1(2) affirm. (4)), simple in We assault (3)), given should have been as lesser bludgeoning Janis’ resulted from a death charged. included offenses of crimes Brings at the hands of and Blaine attempt- He also claims that instructions on (Blaine) Plenty yard in the front of Vera murder, first-degree attempted second- ed Brings (Vera) Neptune Plenty's home at murder, degree attempted first-degree Rapid general background The City. manslaughter given. should have been Brings found in record is detailed in approved legal will be This has Plenty, supra, and additional facts a determining test for whether the supplied relevant to the discussion factual where court should have submitted a lesser trial issues. jury. included offense instruction to the charged Information with (S.D. Gillespie, 445 N.W.2d 661 (1) pre- four homicide alternative counts: 1989); Scholten, 445 State v. (SDCL first-degree meditated 22- murder Gregg, 405 State v. 16-4); (2) second-degree by acts murder (S.D.1987). Because we have held that the evinc- imminently dangerous others and required court is trial not instruct (SDCL 22-16-7); (3) depraved a mind might jury even as those offenses which first-degree manslaughter pas- in heat of test, legal included offenses under the be sion, but in a cruel and unusual manner warrant, but which evidence and, (SDCL 22-16-15(2)); (4) first-degree O’Connor, 86 S.D. manslaughter dangerous means of a and because we find the (SDCL weapon 22-16-15(3)). look dispositive, factual test we to that test jury guilty returned a verdict of test, discussing first. factual murder, second-degree of SDCL violation have stated: 22-16-7. life Tapio was sentenced to serve request has been Where made parole penitentiary. in the without state charge jury aon lesser-included of- appeal, Tapio On raises issues: four fense, trial duty judge of the is deter- the trial court erred in not If 1.Whether mined the evidence. has evidence instructing presented on lesser offenses of support included been which would second-degree manslaughter, aggravated charge, conviction of a lesser refusal to would be give requested instruction consider when in- warrants only greater must struction There offenses. reversible error.... suf- evidence, however, read when ficient mind, these principles With the defen- light most favorable arguments. Tapio’s Tapio’s examine It is dant, jury in con- justify a which would he was only contention that in the involved greater was not cluding that the offense fight first Janis where Janis sustained was, offense committed and that a lesser injuries. Assuming, minor determi for the fact, (Emphasis origi- committed. propriety instructions, of the nation nal.) case, could still be Scholten, (citing 445 N.W.2d at 32 guilty found of the death of Janis because Rich, (S.D.1988)). See also he acted at least as an aider and abettor.1 Woods, 374 N.W.2d Gregg, supra; State v. in beating initially actions Janis (S.D.1985). “A re- court is not him so he protect weakened could not him find no to instruct on matters that quired during subsequent clubbing. self Fur *4 evidence_” support in the v. Wil- thermore, State Tapio’s participation stopping son, (S.D.1980); 297 N.W.2d 482 who, having Cameron Red observed Star — (S.D.1978). Kafka, 264 N.W.2d 703 beating v. of Janis from trailer at 12 Neptune, police, only left summon the fact, this court that a In has cautioned ground to the by Tapio be beaten included deemed lesser offense instruction beating Blaine—allowed of Janis otherwise, may unnecessary, factually or State, continue. v. 346 Graham N.W.2d jury pro- considered detrimental to the be (S.D.1984) (robbery plan 433 called for Feuillerat, In v. cess. out, knocking still victim aider and abettor omitted), (S.D.1980) (citation 334 this though blow); to murder did not strike stated, as follows: (S.D. Schafer, N.W.2d point early emphasize cases out and 1980) (keeping watch in car a safe distance again, and we must stress because the burglary guilty still from made defendant keeps question recurring, that a determi- burglary). Since Janis died and on a nation whether an instruction guilty could found as an aider have been given lesser included crime should abettor, inappropri it would have been merely jury is not solved determin- aggravated simple to instruct on or ate charged the crime the lesser includes attempted assault or the homicide instruc juries giv- offense because are not to be Simply put, once Gregg, tions. pick the discretion or en freedom death, attempt charges there was a choose what offense the accused should Additionally, contrary moot. to Ta- became guilty must be found of. The evidence pio’s argument, there no offense of at is upon greater throw doubt of- second-degree tempted murder. State v. rightly convict fense. ... Juries cannot Lyerla, cert. denied merely sympa- from of the lesser offense 999, 109 774, 102 L.Ed.2d 767 reaching or for the an thy purpose of agreement. They by the evi- are bound should to those in- dence and be limited Next, Tapio suggests jury which view of cluded crimes a reasonable should have been assault instructed on the will and does not the evidence sustain attempts charges per medical beyond convince doubt the reasonable sonnel’s failure to after resuscitate Janis greater additional element of the crime stopped breathing proximate existed. cause of his death. State counters Rich, supra. light by failing also to cite waived issue above, jury position. agree. as to properly authority restricted for the We Bice, spectrum activity may Ferguson of criminal it Massey Corp. Credit who, crime, provides: "Anyperson person planning committing SDCL with 22-3-3 promote accountable, the intent to the commis- or facilitate legally principal as to the crime.” crime, aids, sion of a abets or advises another hour; and, finally, Pennington at the half Schmidt Wild- (S.D.1977). Cave, Inc., January at about County Jail on cat a.m., min- approximately fourteen 8:30 second-degree man Finally, Egan the same Detective who utes. This is reject properly slaughter instruction was Blaine, using interrogated somewhat testimony of if Tapio concedes that ed. technique. same (Lori), Brings Plen Brings Plenty Lori Ollie interrogation, initial At the (Ollie), (all ob and Vera who ty witnesses warnings. trailer) given only partial is be Miranda beating served the Tapio that Specifically, Egan lieved, failed to warn sufficient would be silent; murder, second-degree right he had the absolute to remain him of to convict pres- that he he had the testimony established since their beating attorney; stop Ta- Janis with clubs. ence of an and that he could took seeks, however, During question- their testi pio questioning to discredit time. case, that she mony. being fight In Lori’s he claims in a ing, Tapio admitted clearly; in Ollie's could not see events Janis. casé, events he claims that she lied about pretrial hearing, After a therefore, says is on, everything she early Tapio’s state- suppressing an order entered and, case, unbelievable; he claims in Vera’s ments for use State’s case-in-chief be- as everything she said and she recanted improper psychological induce- cause These ar present. that she was not serts warnings. defective ments and go only weight the testi guments However, met its it ruled that State had mony, jury properly considered. *5 proving beyond a reasonable burden Huber, v. State totality under the of the circum- doubt that Peck, 561, v. S.D. 150 N.W.2d voluntary Tapio’s statements were stances great (1967). They negate do not that the impeachment. used and could be for Moreover, er offense was committed. argues procedurally first that circum overwhelming there direct and used the statement should not have been the sec stantial evidence substantiate any purpose the trial court for ond-degree charge. murder opinion stated in a that first memorandum then, Clearly test was not factual and, then, involuntary statements were met because was evidence incorporating memorandum into while greater offense was committed. Without findings of fact and conclusions of law its overcoming hurdle, Tapio had no this first reference, still that the state concluded request the of sec- lesser offense voluntary. argues ments Scholten, ond-degree manslaughter. su- opinion superseded the memorandum

pra; Gregg, supra. findings by the conclusions. We and Tapio’s second contends that his issue agree. rights process due were violated when many stated that it is the We have times permitted use of his custodial prerogative trial court’s to re-think a deci- impeachment purposes. He statements for from the sion bench or a memorandum arguments his on three factors: premises Clark, decision. Hitzel v. warnings, of a inadequate Miranda lack (S.D.1983). itWhile is true that the trial knowing intelligent of the Mi- waiver incorporated opinion its memorandum safeguards, and involuntariness. randa reference, specific find- we believe the background Tapio’s for second The factual ings supersede and conclusions memo- interrogated that he was on three issue is and articulate court’s final randum separate occasions Detective William thoughts determinative on the volun- (Egan) City De- Egan Rapid Police tariness issue. department first at partment: police 1988, 10, January agreed 1:00 a.m. on The trial court on with hour; again premises relating approximately one-half then the first two to the Mi later, a.m., warning for one- two hours around 3:00 randa restricted the State voluntariness, findings court’s on con- in case-in- we using the statements their light in supra, dis- sider most fa- Brings Plenty, chief. In finding. prophylactic vorable to the application of the cussed the the Due Pro- opposed to rule as To decide the trial court was whether clear- where the statements suppression cess rule ly finding Tapio’s erroneous in statements involuntary. are determined to be voluntary, pro- to traditional due we look Elstad, analysis. Oregon cess 470 U.S. Court, Supreme States United 298, 1285, 84 L.Ed.2d S.Ct. York, 222, 91 S.Ct. Harris v. New (1971), 643, held that a defen- 28 L.Ed.2d 1 In determining whether will was voluntary impeached dant may overborne, process analysis due traditional proper without Mi- statement obtained requires following us to look at the factors: warnings. But the Court held randa and conditions of duration deten- “[T]he 385, Arizona, Mincey 437 U.S. 98 S.Ct. tion, ... the manifest attitude of the (1978), state- 57 L.Ed.2d 290 that a him, police his and men- toward by overbearing a procured ment state, pressures sap tal the diverse suspect’s is coerced and free will involun- powers or sustain his resistance suspect’s tary, thereby violating a constitu- self-control.” tional Amendment Fourteenth Fifth Spring, Colorado v. 479 U.S. process. ap- to due As rights Amendment 93 L.Ed.2d 965-66 issue, plied to the Court has stated (citation omitted). (1987) Hinz, further: 442, 450-51, 78 S.D. 660- statements, compelled defendant’s [A] provided factors consider to statements taken viola- opposed judging psychological coercion whether Miranda, may any put tion of not be free overcome a defendant’s will: against him in use whatever testimonial Among factors are the defendant’s these a criminal trial. “But criminal trial character, age, his his record as to for- against use a defendant his involun- crimes, background, mer educational process a denial of tary statement is due capacity; legality illegality mental original.) (Emphasis of law.” arrest; conditions of his incar- *6 ceration; Portash, 450, 459, arraignment; delay 440 his re- Jersey New v. U.S. 501, jail; prolonged ques- 99 59 L.Ed.2d 510 moval a distant police, (1979) (citation omitted) (footnote omitted). tioning by espe- of the the accused by deprivation cially accompanied when trial We then look to the court’s determi- relief, refreshment, rest, of or or when scope Our re- nation of voluntariness. of police working relays; by done officers of view on voluntariness confessions was being by police the a kept his isolated for recently by majority a of this reaffirmed time; by lack aid period substantial Jenner, 710, 451 court in v. N.W.2d State relatives, counsel, friends, or or or disin- (S.D.1990) omitted), (citations 716 wherein persons; terested failure it is said: police the the accused that his to warn proving State has the burden be- him, against might used statements that yond doubt such con- a reasonable rights, his and to him as to such advise incriminating or statements fessions silent, right or to as his to remain secure voluntarily If the freely were made. lawyer, request preliminary a a or to trial finds the confession or incrimi- hearing.... Admissibility Annotation^ voluntary nating be- statements Case,] in Criminal Pretrial Confession doubt, finding such yond reasonable a [1735,] 1 L.Ed.2d binding upon this Court unless we con- criteria, Using trial court was clude from our review record that those deciding clearly clearly The not erroneous that Ta- finding erroneous. Though pio’s free not overborne. trial must have reviewed the totali- will was .164, surrounding Tapio’s content ty of blood alcohol was the circumstances reviewing Egan Tapio trial did not feel was intoxicated interrogation. 412 proce a ques- We will not overturn trial court’s Tapio seemed to understand the conducting not dure in it is Tapio threatened voir dire unless put

tions to him. was if he did shown the court its discretion any consequences not talk. that abused with permitting not a Tapio’s truthful- defendant “some basis Egan said share office, knowledgeable attorney’s reasonably but for exercise of ness with state’s Banks, v. promises right challenge.” specifically State offer he did not 19, (S.D.1986) (citation him. 22 omit if At the 387 N.W.2d leniency Tapio talked Muetze, ted); (S.D. testimony State hearing, no medical suppression Shull, 1985); (S.D. any head injuries regarding offered was 1983). had, although may officers tes- Tapio have right his Tapio side of tified said Tapio did not waive this issue. Con given partial then head hurt. was assertion, he cited trary State’s warnings and he said he under- Pickering, rights. He related that he com- stood such Nagele, 625, S.D. grade currently had pleted the twelfth Louisiana, and Turner v. (1964); job program. He good with the Johnson 13 L.Ed.2d 85 S.Ct. prior felony and thus was had conviction proposi all of which stand for the experienced system. the criminal court right defendant’s to fair and tion warnings, Tapio was if he After the asked protected impartial jury must be his voir any problem talking about incident process. Having dire decided that replied in- negatively. During and he issue, preserved specif we move January terview on argument. ics of his acknowledged again rights. read He individual, First, is no rights given night they were the same Banks, supra. sequestered dire. voir problem talking no before and said he had Though may judge choose to use interroga- Each of the incident. precautionary procedure cases relatively was of short duration. The tions “ publicity massive and in ‘surrounded Tapio lasted first interview with about thir- ” issues,’ volving it is not re controversial minutes; ty thirty-six second about Banks, 22; (citing quired. 387 N.W.2d at minutes, and min- the third about fourteen Bull, v. Bad Heart

utes. Shull, (S.D.1977)); totality light and in a most Viewed pre Though Tapio claims he was court, finding favorable conducting cluded voir dire individual voluntary Tapio’s statement was exposure, to determine media such is not Therefore, erroneous. jurors potential the case. Panels of twelve properly used im- statements were available were seated and for individual Elstad, supra; Har- peachment purposes. *7 chose, questioning. Tapio matter of as a ris, supra. strategy, individually question trial not to The third arises from trial issue the alleged jurors poisoning for fear of the the Tapio’s request court’s denial of for individ- potential jurors. minds of the other His ual, sequestered dire examination of voir conduct, court, preclud not that of prospective Tapio jurors. claims this questioning. As we stated in Banks: ed necessary publici- was due extensive Here, jurors the trial court ordered the ty surrounding attorney’s the state’s chal- individually questioned could but that lenge judge as publicity trial as well Thus, jurors present. would be other co-accused, Brings focused on the Blaine provided Banks with a basis for a was Plenty. Tapio State counters that waived knowledgeable reasonably exercise of by failing provide authority this issue to right, challenge. to position. Alternatively, for his at 22. claims there of was no abuse discretion Tapio Second, specially because had failed to show that he we address ar- impartial gument prejudiced did not he because jury. receive a fair that time, pool in the inside the At this jurors of his also were back trailer. several permission Brings Plenty’s trial. Plooster asked Vera for of for jurors Connor, search additional of the trailer and areas S.D. omitted), agreed. part, This (1972) (citation produced, she search 695, 697 found in the closet of the club bedroom stated: covering middle bedroom a wet bed in his Assuming is correct that defendant taken from the middle Photo- bedroom. mem- that at least some of the assertion graphs taken after the before and jury on his must have heard about bers given. additional oral consent Later being of reason his involvement a.m.), morning (approximately during the voir dire of co-ac- present [his sign permission Plooster asked Vera de- jury, it does not follow that cused’s] Vera, read, signed search form. can who trial. He did receive a fair fendant form the consent and Ollie witnessed it. impartial only fair and was entitled jury composed not a of individuals jury, Tapio pretrial suppress made a motion to knowledge absolutely prior had no who He all evidence collected at the scene. of his of the facts case. alleged that the have been evidence should suppressed as the fruit of a warrantless Likewise, Tapio any showing by absent trailer curti- search of the house and of the impar- jurors could fair and that his not be lage. The trial the motion to court denied tial, argument not raised his above has standing suppress, ruling no jurors All of the assured conjecture. object to the search he was they im- court that could be fair and trial resident of the Golden Hills Motel at the partial. jurors had heard The four who Moreover, it time of the search. found through they case media said about the outside the evidence seized they had not be affected what appropriately trailer was seized because opinions formed heard and had no plain and that the items were view Therefore, do not find that the case. inside were conducted with the searches by not the trial court abused its discretion Vera, consent of the actual lessee allowing sequestered individual voir dire. premises. Muetze, Shull; Banks, supra; supra; su- Connor,

pra; scope sup- motion to Our review on a Brings Plenty, raises court abused its press whether trial Just Bartlett, discretion. the issue of abuse discretion (S.D.1987). suppress factual de- failing trial court As to termination, scope our evidence seized at the home at of review certain Woods, su- overnight Neptune, where was an erroneous standard. pra. guest. against appeal, this must We consider this issue On determine following findings are background. factual whether court’s Id. weight against of the evidence. original an

Approximately hour after the by noting on police response, Detective Harold Plooster We start that the test (Plooster) Tapio may Neptune. standing arrived at 12 Several issue was not whether residence, protecting scene at had another but whether he officers were have expectation privacy Burdick time. Officers Nelson and had a reasonable Thomale, the trailer. They happened. Plooster what had told Illi- Rakas v. (S.D.1982) (citing yard him the and the inside of showed area *8 nois, 128, 421, in the 439 58 L.Ed.2d people trailer. Several were U.S. 99 S.Ct. the Lori, Ollie, Vera, (1978)). term, trailer, including as Just the United 387 Brings Plenty Supreme standing and Leo settled the well as Millard States Court looking overnight guests it Brings Plenty. briefly While inside issue for when stated: trailer, go conclude, splinter Plooster need no than to saw a wood “We further do, picked status earring on the kitchen floor and as we as [the defendant’s] overnight guest enough to up. them Plooster then went outside an is alone show expectation photographs. privacy Plooster came he had an of took some 414 recognize consent to the society prepared to contends that Vera’s

home that —Olson, nonconsensual she was search was as Minnesota v. reasonable.” intimi- 1684, 1688, subjected misrepresentations -,-, 109 110 S.Ct. U.S. dation, given the im- and because she was 85, 93 L.Ed.2d pression that she had no alternative but Here, staying overnight Tapio was sign 6 The record the consent form at a.m. Ollie, girl friend at the trailer with his phys- anyone does not indicate that exerted overnight guest. They stayed in the an pressure ical coercion or official on Vera to middle room where the sheet was taken form, sign make her she admit such, Tapio standing As from bed. reading signed she had after ted that Olson, supra. to contest the search. With weapons same. No threats made or were cleared, examine the sub this hurdle O’Brien, 69 shown. State v. searches, starting objections stantive (S.D.1978). Tapio’s argument ignores all the trailer. with the search of signing of her before the consent. actions problem Nor do find a with the continu- well-recognized exception It is a ing objection search. No or revocation may requirement party the warrant that a Fi- by consent was ever manifested Vera. Woods, give supra, consent. at 99-100 nally, exe- Vera testified that she read and Bustamonte, (citing 412 Schneckloth cuted the consent to search form which 218, 2041, 36 L.Ed.2d 854 U.S. 93 S.Ct. any earlier confirmed oral consent. (1973)). Furthermore, may giv consent circumstances, totality Under of the person en a third who has “common we do not find that the trial court abused authority over or other sufficient relation admitting its discretion this evidence. ship premises sought or effects to be Bartlett, All supra. evidence seized and Matlock, inspected.” United States v. 415 photos taken inside the trailer admis were 988, 993, 39 L.Ed.2d U.S. sible because Vera’s valid consent. Mat omitted). (1974) (footnote lock, Schneckloth, Woods, supra; supra; Whether consent to search has been vol- supra. untarily given question “is fact to be admissibility next We examine totality determined from the of the circum- of the evidence seized outside the trailer. Schneckloth, stances.” 412 U.S. at regard For all of the reasons stated with 862; Woods, S.Ct. at 36 L.Ed.2d at trailer, anything seized in the supra. showing has the burden curtilage observed or seized convincing voluntariness clear and evi- Neptune at 12 deemed trailer admissible dence that the search result of a phone consent. call and Vera’s Vera’s free, intelligent, unequivocal specific subsequent her actions constituted a con coercion, consent without duress or curtilage Neptune. sent to search the implied. actual Id. Woods, supra. The initial search was occasioned when police Neptune by Alternatively, Vera summoned to 12 the evidence seized help curtilage plain 911 call for because someone was be- view. police Martin, (S.D.1979) killed. She directed into the cert. guys trailer to find “the who did it.” Once denied 100 S.Ct. inside, she identified Blaine and as L.Ed.2d 112 this court found that entry the assailants. Vera’s words and conduct evidence observed at the initial into a police emergency invited officers to enter her residence in an situation was Woods, investigate. Bittner, home and admissible. also State v. updated (S.D.1984). Here, Plooster shortly testified that he the earli- after given arrived, police er consent weapons Officers Nelson and the the murder (clubs) Blenner when he arrived scene. were observed outside the resi Plooster specifically They asked if he appropriately Vera could dence. seized un agreed Likewise, look around the plain exception. trailer and she der view ultimately signed photographs the written consent. of the scene were admissible *9 SABERS, (concurring in specially Justice first search of the mere continuation as a dissenting in part part). consent. oral pursuant to Vera’s conducted Martin, supra. Although agree generally I with the ma review, the is- raises By notice relating I jority’s treatment Issue in erred the trial court sue whether offenses, I con lesser-included am still post-Miranda statement. excluding Tapio’s attempt that there is an offense of vinced the Miranda argument that It is State’s second-degree Da ed murder under South Egan, was given by Detective warning, as 22-4-1; 22-16-7. kota law. SDCL SDCL specifically adequate. The trial my Lyerla, dissent in State v. Tapio that Egan failed to warn found that (S.D.1988), appeal dis silent; right to remain had the absolute he denied, 488 U.S. missed and cert. pres- right to the that he had There 102 L.Ed.2d 767 S.Ct. stop he could attorney; and that ence of an fore, specially I on this issue. concur any time. questioning at I would decide Issue II —Use of Involun- complete agreement not in We are Impeachment of De- tary Statements for findings regard the trial court’s treatment of fendant —consistent with our deficiencies. California Brings Plenty, same issue in 355, 101 453 U.S. Prysock, (S.D.1990),because, based us that Mi instructs L.Ed.2d 696 circumstances, totality of the formula require precise does not randa were, fact, involuntary. statements warnings given a criminal defen tion of II in the determination of Issue Since but, rather, incantation dant or a talismanic (State’s No- manner would resolve Issue V convey warning reasonably to a Review), I reach Issues tice of would not required. In our rights as defendant III and IV. Egan: “You view, language used and the right to consult with have the the re attorney” satisfies

presence of an

quirement that he be advised prior attorney present

to have an Egan had The fact that be

questioning. stating the

gun questioning before

right, testified later that attorney get Tapio an at know how to JANKLOW, Plaintiff William one, go requested point if he had Appellant, warning, not the substance form of the extent, disagree with thereof. To that ruling. But it is clear that court’s

the trial and Peter The VIKING PRESS that he could termi not advised Matthiessen, Defendants any point that he questioning nate Appellees. wished, deficiency in the was a so there No. 16778. given, warning of the Miranda substance Therefore, applying well as the form. Dakota. Supreme Court of South review, clearly erroneous standard 19, 1990. Argued March properly ex we determine the statement the use of cluded July Decided case-in-chief. State’s Affirmed.

WUEST, C.J., HENDERSON JJ.,

MILLER, concur.

SABERS, J., specially concurs part. dissents