UNITED STATES OF AMERICA,
ORVILLE J. BLACK SPOTTED HORSE,
[2000 DSD 45]
United States District Court
District of South Dakota-Central Division
REPORT AND RECOMMENDATION
FOR DISPOSITION OF DEFENDANT'S
MOTION TO SUPPRESS STATEMENTS
Jay P. Miller, Ass't United States Attorney, Pierre, SD
Attorney for Plaintiff
Jana Miner, Ass't Federal Public Defender, Pierre, SD
Attorney for Defendant
Filed August 31, 2000
Adopted Sept 27, 2000
Mark A. Moreno, U. S. Magistrate Judge
[¶1] Defendant, Orville J. Black Spotted Horse (Black Spotted Horse), filed a Motion to Suppress, with incorporated legal authority, on July 18, 2000. A hearing on the Motion was subsequently held on August 24, 2000 in accordance with the District Court's (fn1) July 24, 2000 Order of Reference. Because Black Spotted Horse's Motion is a dispositive one, this Court is only authorized to determine the same on a report and recommendation basis. Pursuant to 28 USC. § 636(b)(1), the Court does now make and propose the following report and recommendation for disposition of Black Spotted Horse's Motion.
[¶2] Black Spotted Horse was originally charged by indictment filed on April 20, 2000 with Attempted Aggravated Sexual Abuse, in violation of 18 USC §§ 1153, 2241(a) and 2246(2). The indictment alleges that Black Spotted Horse forcibly attempted to engage in a sexual act with Valencia White Hat near St. Francis, South Dakota, on the Rosebud Indian Reservation. Black Spotted Horse has pled not guilty to the charge and is currently out on bond.
[¶3] Prior to his release, Black Spotted Horse filed a Motion to Suppress and requested a hearing. In his Motion, Black Spotted Horse seeks to suppress any and all statements made by him on September 20, 1999 and December 8, 1999.
[¶4] Upon review of the Motion and after consultation with counsel, the Court held a hearing at which two witnesses testified and five exhibits were received into evidence. The Court thereafter took the matter under advisement.
[¶5] On September 18, 1999, Valencia White Hat reported that Orville Black Spotted Horse tried to rape her. Based on information gathered by Rosebud law enforcement officials, Black Spotted Horse was arrested on tribal charges and incarcerated at the Rosebud Tribal Jail. The Federal Bureau of Investigation (FBI) was contacted and Special Agent Thomas Jones was assigned to investigate any federal charges arising out of the incident.
[¶6] As part of his investigation, Jones, along with Rosebud Criminal Investigator Grace Her Many Horses, interviewed Black Spotted Horse on September 20, 1999 in a detective's office at the Rosebud Jail. Prior to the commencement of the interview, Jones advised Black Spotted Horse of his constitutional rights via a written interrogation and advice-of-rights form. Black Spotted Horse read the form, signed it and agreed to talk to Jones without the benefit of counsel. The interview began shortly before 11:30 a.m. and continued for just under an hour until a break was taken. During this phase of the interview, Black Spotted Horse denied any wrong-doing, including having physical contact with White Hat.
[¶7] Following an eight minute break, the interview continued, with Jones confronting Black Spotted Horse with what Jones believed to be inconsistencies in Black Spotted Horse's version of what took place. Black Spotted Horse persisted in his denials and became angry at Jones' accusations. Jones then began to use a "theme development" type of interview technique and Black Spotted Horse calmed down. "Biting off on" Jones' consensual sex theme, Black Spotted Horse changed his story. He continued to deny trying to rape White Hat, but did admit to hugging and kissing her and pulling her pants and underwear down. He insisted though that he "backed off" after noticing that she was menstruating. This portion of the interview lasted approximately an hour.
[¶8] After a three-minute break, Jones resumed the interview. When Black Spotted Horse once again denied that he tried to rape White Hat, Jones asked Black Spotted Horse if he would write out a narrative of what happened. Black Spotted Horse then provided Jones with a written statement summarizing what he had told Jones during the oral portion of the interview.
[¶9] Before parting company that day, Jones asked Black Spotted Horse if he would submit to a polygraph examination some time in the future. Black Spotted Horse said that he would and an examination was later scheduled for December 8, 1999 in Pierre.
[¶10] Subsequent to the interview but before the scheduled polygraph examination, Black Spotted Horse was released from tribal custody. Following his release, Black Spotted Horse indicated that he was still willing to take the examination but that he did not have a ride from Rosebud to Pierre. Based on these representations, arrangements were made to have Black Spotted Horse, along with another individual (who was scheduled to be polygraphed right after Black Spotted Horse), transported to Pierre by a Rosebud Criminal Investigator.
[¶11] Black Spotted Horse was introduced to and met with Lester Davis, a Special Agent with the FBI, in the grand jury room of the Federal Building around 9:30 a.m. on December 8th. Davis explained how the polygraph worked and informed Black Spotted Horse of his Miranda rights from the same advice-of-rights form Jones had previously gone over with him. Davis read the form out loud and Black Spotted Horse signed the same. Thereafter, Black Spotted Horse executed a polygraph interview consent form which advised him that he could refused to take the test, could stop the test at any time and could refuse to answer any individual questions.
[¶12] During the pre-test portion of the examination, Davis obtained background information from Black Spotted Horse and went over the statements that he and White Hat had given to Jones. Davis and Black Spotted Horse also went through the test questions, including the two relevant questions pertaining to whether Black Spotted Horse attempted to force White Hat to have sexual intercourse with him and whether he hit White Hat on the night in question. Once Black Spotted Horse was hooked up to the polygraph components, he was asked eight test questions, administered an acquaintance test (fn2) and then asked the test questions two more times. The test results revealed clear deception on Black Spotted Horse's part with respect to the relevant questions. Davis advised Black Spotted Horse of the test results and proceeded into a post-test interview.
[¶13] Despite using various interview techniques, Black Spotted Horse "pretty much stuck to [his earlier] story." At Davis' request, Jones entered the room and he and Davis interrogated Black Spotted Horse together. A short time later, Black Spotted Horse asked to speak to Jones in private. Davis then left the room and while talking to Jones alone, Black Spotted Horse admitted that he attempted to rape White Hat. Jones then called Davis back into the room and Black Spotted Horse repeated and provided details of the attempted rape and executed a written statement, prepared by Davis, concerning the incident.
[¶14] Black Spotted Horse's conversations with Davis and Jones in the grand jury room lasted about ninety minutes. At the conclusion of the interview and upon reading and signing the statement, Black Spotted Horse left the room and was then driven back to Rosebud later that same day. He was not arrested federally on the attempted rape charge until the latter part of April, 2000.
[¶15] It is well-established that a defendant's statement, to be admissible under the Fifth Amendment, must be voluntary, "that is, [it] must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence." Bram v. United States, 168 US 532, 542-43 (1897) (quoting 3 Russell, Crimes 478 (6th ed.)). The Supreme Court has observed that certain methods of gathering incriminating statements "are so offensive to a civilized system of justice that they must be condemned." Miller v. Fenton, 474 US 104, 109 (1985). The question presented here, as in any other case involving inculpatory statements made by a defendant, is whether law enforcement officials engaged in any coercive misconduct or overreaching, Colorado v. Connelly, 479 US 157, 164-64 (1986); United States v. Rohrbach, 813 F2d 142, 144 (8th Cir.), cert. denied, 482 US 909 (1987), such that the defendant's statements were not freely self-determined, but rather the product of an overborne will, Rogers v. Richmond, 365 US 534 (1961).
[¶16] The test used to apply the constitutionally-based standard of voluntariness is whether "in light of the totality of the circumstances, pressures exerted upon the suspect have overborne his will." United States v. Jorgensen, 871 F2d 725, 729 (8th Cir. 1989) (citing Haynes v. Washington, 373 US 503, 513-14 (1963)); see also; Winfrey v. Wyrick, 836 F2d 406, 410 (8th Cir. 1987), cert. denied, 488 US 833 (1988). Two factors must be considered in the voluntariness inquiry: the conduct of law enforcement officers and the capacity of the suspect to resist pressure to confess. United States v. Kilgore, 58 F. 3d 350, 353 (8th Cir. 1995); United States v. Makes Room For Them, 49 F. 3d 410, 415 (8th Cir. 1995). According to the Eighth Circuit, a reviewing court must utilize:
[A] flexible totality of the circumstances approach, considering the specific interrogation tactics employed, the details of the interrogation and the characteristics of the accused.
United States v. Wilson, 787 F2d 375, 381 (8th Cir.), cert. denied, 479 US 857 (1986).
[¶17] The burden of proof on the issue of voluntariness is one of preponderance of the evidence. Connelly, 479 US at 168-69; United States v. Wright, 706 F2d 828, 830 (8th Cir. 1983). To be admissible, the government must establish by a greater weight of the evidence that a defendant's statements were voluntarily made.
[¶18] After reviewing the evidence of record and assessing the credibility of the witnesses who testified, the Court is unable to find that the requisite coercive or overreaching conduct was present on either September 20, 1999 or December 8, 1999 so as to make Black Spotted Horse's incriminatory statements involuntary.
[¶19] At the outset, it should be pointed out that Black Spotted Horse was Mirandized prior to being questioned on September 20th and December 8th. Recently, the Supreme Court reaffirmed that "[c]ases in which a defendant can make a colorable argument that a self-incriminating statement was 'compelled' despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare." Dickerson v. United States, 530 US ___, 120 SCt 2326, 2336 (2000) (quoting Berkemer v. McCarty, 468 US 420, 433, n.20 (1984)). That is not to say that compliance with Miranda conclusively establishes the voluntariness of a subsequent confession. See Berkemer, 468 US at 433, n.20. Black Spotted Horse's pre-interview Miranda advisements though, make it much more difficult for him to rebut the government's assertion that his statements to Jones, Her Many Horses and Davis were voluntary.
[¶20] Significantly, throughout the entire course of the September 20th interview, Black Spotted Horse denied any criminal culpability. Although his story changed somewhat, he steadfastly maintained that he never tried to rape White Hat. The various interview techniques Jones used in an effort to obtain inculpatory admissions from Black Spotted Horse had little, if any, success and most certainly did not overbear his will.
[¶21] More importantly, even assuming that he was in custody at the time of both interviews (fn3), no threats or promises were made to Black Spotted Horse during the interviews and no undue influence or pressure was exerted on him. Contrary to Black Spotted Horse's claim, Jones did not use any deceptive stratagems or coercive questioning tactics to extract statements from Black Spotted Horse. It was not improper to inform Black Spotted Horse that his polygraph test results indicated deception or to resume questioning given the adverse test results. Jenner v. Smith, 982 F2d 329, 334 (8th Cir.), cert. denied, 510 US 822 (1993). It was likewise not impermissible to elicit further statements from Black Spotted Horse by questioning his denial of salient facts. Id. Numerous cases have held that questioning tactics such as deception, sympathy and other "suggestive" techniques will not render a defendant's admissions involuntary unless the overall impact of the interrogation caused his will to be overborne. Jenner, 982 F2d at 334 (citing cases); Makes Room For Them, 49 F3d at 415. "[T]here is nothing inherently wrong with efforts to create a favorable climate for confession." Jenner, 982 F2d at 334 (quoting Hawkins v. Lynaugh, 844 F2d 1132, 1140 (5th Cir.), cert. denied, 488 US 900 (1988)). As the Supreme Court adeptly observed some time ago, "very few people give incriminating statements in the absence of official action of some kind." Schneckloth v. Bustamonte, 412 US 218, 224 (1973).
[¶22] On this record, the Court is unable to find the requisite coercive activity and/or overreaching by law enforcement authorities. At no time did Black Spotted Horse express a desire to stop the interviews or to speak with an attorney. See Jorgensen, 871 F2d at 730. The duration, tone and overall atmosphere of the interviews were not hostile or intimidating. Moreover, it appears, based on what Black Spotted Horse said and did during the interviews, that he was alert and very much in control of his faculties. See Jenner, 982 F2d at 334. Black Spotted Horse has failed to demonstrate that Jones, Her Many Horses and Davis overwhelmed his will and "extorted" incriminating statements from him. Jenner, 982 F2d at 334; Makes Room For Them, 49 F3d at 415.
[¶23] The fact that the vast bulk of Black Spotted Horse's inculpatory statements came immediately following the polygraph examination, without renewed Miranda warnings, is of little, if any, significance because the circumstances present, when considered in toto, plainly show that the statements were made voluntarily. Wyrick v. Fields, 459 US 42, 47-49 (1982); on remand, 706 F. 2d 879, 880-82 (8th Cir.), cert. denied, 464 US 1020 (1983); McDowell v. Leapley, 984 F2d 232, 234 (8th Cir. 1993); Jenner, 982 F2d at 333-34; Vassar v. Solem, 763 F2d 975, 977-78 (8th Cir. 1985); United States v. Iron Thunder, 714 F. 2d 765, 771-72 (8th Cir. 1983); United States v. Jackson, 712 F2d 1283, 1285-86 (8th Cir. 1983); United States v. Eagle Elk, 711 F2d 80, 81-83 (8th Cir. 1983), cert. denied, 465 US 1013 (1984).
[¶24] As such, the admissions made by Black Spotted Horse to Jones, Her Many Horses and Davis were voluntary, and not the product of coercive interrogation or overreaching on their part. Id.; Kilgore, 58 F3d at 353; Makes Room For Them, 4F3d at 415; Jorgensen, 871 F2d at 729-30; Winfrey, 836 F2d at 410-12; Rohrbach, 813 F. 2d at 144. Black Spotted Horse was advised of his rights on two separate occasions and voluntarily confessed. Because Jones, Her Many Horses and Davis took no action that could objectively be considered as coercion or overstepping their bounds, there is nothing to refute the voluntariness of Black Spotted Horse's statements. The government has thus established, by a preponderance of the evidence, that Black Spotted Horse's statements satisfy the voluntariness requirements of both the Constitution and 18 USC § 3501.
[¶25] Having determined that Black Spotted Horse's statements to Jones, Her Many Horses and Davis were voluntary, the Court must next proceed to decide whether his waivers were valid based on "the particular facts and circumstances surrounding the case, including the background, experience and conduct of the accused," North Carolina v. Butler, 44l US 369, 374-75 (1979) (quoting Johnson v. Zerbst, 304 US 458 (1938)), when measured against applicable precedent.
[¶26] The inquiry into whether a waiver is valid or has been coerced "has two distinct dimensions." Moran v. Burbine, 475 US 412, 421 (1986) (citing Edwards v. Arizona, 451 US 477, 482 (1981)):
First, the relinquishment of the rights must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogtion" reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.
Id. (quoting Fare v. Michael C., 442 US 707, 725 (1979); see also, Colorado v. Spring, 479 US 564, 573 (1987); Butler, 441 US at 374-75. In light of the Supreme Court's teachings, the Court must determine whether Black Spotted Horse's waiver was "knowing and intelligent." Inasmuch as the voluntariness issue has already been decided, the Court is left only with the task of ascertaining whether Black Spotted Horse's waivers were "knowing" and "intelligent".
[¶27] Black Spotted Horse was advised of his Miranda rights and waived these rights in writing before being questioned on either September 20th or December 8th. The written waivers themselves constitute strong evidence that Black Spotted Horse had a clear understanding of his rights and intended to and did give up the same. Butler, 441 US at 373 ("an express written ... statement of waiver of the right to remain silent or the right to counsel is usually strong proof of the validity of that waiver ..."). In addition, Black Spotted Horse's law enforcement experience together with his actions and conduct during the course of the interviews weigh heavily in favor of a valid waiver. Based on the entirety of the record, there can be little doubt that the government has met its burden, by a preponderance of the evidence, that Black Spotted Horse knowingly and intelligently waived his Miranda rights before being questioned and making inculpatory remarks to law enforcement officials on September 20th and December 8th.
[¶28] The fact that Black Spotted Horse's admissions, during the December 8th interview, were made in response to questions asked of him during a polygraph examination did not serve to vitiate his waiver or the validity of the same. By agreeing to submit to the examination, Black Spotted Horse consented to questioning and waived not only his right to be free of contact with law enforcement authorities in the absence of an attorney, but also his right to be free of interrogation about the crime of which he was suspected. See Fields, 459 US at 47, on remand, 706 F2d at 881-82; Eagle Elk, 711 F2d at 82-83. Regardless of what Black Spotted Horse's anticipations were regarding the examination and the questions he would be asked, it would have been unreasonable for him to assume that he would not be informed of the polygraph readings and asked to explain any unfavorable results. See Fields, 459 US at 47, on remand, 706 F2d at 881. Moreover, Black Spotted Horse was told that he could have a lawyer present with him while being questioned and that he could stop the questioning at any time. See Fields, 459 US at 47-48. Merely disconnecting the polygraph equipment would not remove this knowledge from his mind. See id. at 47; see also, Vassar, 763 F2d at 978; Eagle Elk, 711 F2d at 83.
[¶29] In the Court's view, it is plain from the record that Black Spotted Horse fully understood and expressly waived his rights prior to being interviewed and submitting to the polygraph examination. As such, he voluntarily, intelligently, knowingly and intentionally relinquished both his Fifth and Sixth Amendment rights during the interviews/examination. Therefore, the inculpatory statements made by Black Spotted Horse on September 20th and December 8th are admissible at trial.
[¶30] Based on the foregoing and in accordance with 28 USC § 636(b)(1), the Court concludes that Black Spotted Horse's September 20, 1999 and December 8, 1999 statements were made voluntarily and after he knowingly and intelligently waived his rights. Accordingly, the Court
[¶31] RECOMMENDS that Black Spotted Horse's Motion to Suppress, Docket No. 21, be DENIED in all respects.
Note: Findings and recommendations issued by Magistrate Judge Moreno adopted by Order of the Court, Hon. Richard H. Battey, presiding, September 27, 2000.
1. The Honorable Richard H. Battey, Senior United States District Judge, presiding.
2. In this test, the examinee is asked to write down a number and hide it from the examiner, then lie about the number that is chosen. The test is designed to demonstrate to the examinee that a polygraph instrument cannot tell the difference between white lies and other lies, it can only tell the examiner when someone is not being truthful. It is also designed to show the examinee that the polygraph test does in fact work. See United States v. Bad Hand, 926 FSupp 891, 896, n.6 (DSD 1996).
3. It is not clear that Black Spotted Horse was in custody so as to trigger the protections of Miranda at the time of the interviews/polygraph examination on December 8th. See Bad Hand, 926 FSupp at 897-98.