United States v. Dupris, 2006 DSD 4

UNITED STATES OF AMERICA,
Plaintiff,
v.
DEAN DUPRIS,
Defendant.
[2006 DSD 4]

United States District Court
District of South Dakota—Central Division
CR. 05-30024

REPORT AND RECOMMENDATIONS
FOR DISPOSITION OF DEFENDANT’S
MOTION TO SUPPRESS

Edward G. Albright, Federal Public Defender's Office, Pierre, SD
Attorney for Defendant.

Randolph J. Seiler, US Attorney's Office, Pierre, SD
Attorney for Plaintiff.

Filed February 3, 2006

Moreno, Mark A., U. S. Magistrate Judge

[¶1]    Defendant, Dean Dupris, has filed a Motion to Suppress, and supporting Memorandum, Docket Nos. 25, 26. In his Motion, Defendant seeks to suppress any and all statements made by him to federal and tribal investigators on October 27, 2004, and those made during and in connection with a polygraph examination administered on January 13, 2005, including the outcome of such an examination and the fact that one was administered to him. Plaintiff, United States of America (Government), has filed a written Response to the Motion resisting the same and requesting that it be denied in its entirety.

[¶2]    On September 7, 2005 and January 19, 2006, this Court held evidentiary hearings on the Motion at which eight witnesses testified and fourteen exhibits were admitted. Because the Motion is a dispositive one, the 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 the Motion. I.

[¶3]    Defendant, a 26-year-old high school graduate and former tribal policeman, is charged with one count of sexual abuse and two counts of tampering with a witness. The Indictment alleges that Defendant sexually abused Robin Turning Heart at a time when she was asleep or passed out in her bedroom. He is also charged with corruptly persuading Kirk High Elk to make, or attempt to make, false and misleading statements (a) to law enforcement officials about the commission of a possible federal offense and (b) to influence, delay and prevent High Elk from testifying in an official proceeding. Defendant has pled not guilty to all three charges and requested a jury trial. The trial is scheduled to commence on February 22, 2006. II.

[¶4]    The salient facts can be briefly recited. During the early morning hours of September 28, 2004, Turning Heart reported that she had been raped by Defendant at her residence in the Bear Creek area on the Cheyenne River Indian Reservation. Tribal and federal authorities thereafter investigated the alleged rape and on October 27, 2004, Defendant was interviewed outside his residence in Eagle Butte. FBI Agent Brett Lonnel Bray, conducted the interview, with Sonny Garreau, a detective with the Cheyenne River Sioux Tribe (CRST), in the latter’s sport utility vehicle. After being advised of his Griffin rights and Miranda warnings, Defendant agreed to talk to Bray and Garreau and admitted to having consentual sexual intercourse with Turning Heart while she was awake and aware of what was happening. At the time of the interview, Defendant was suspended by, but not terminated from, the CRST Police Department. At the end of the interview, Defendant agreed to take a polygraph and then left the vehicle and went into his house a short distance away.

[¶5]    On January 3, 2005, Defendant was charged in tribal court with rape, aggravated assault, assaulting a law enforcement officer, aggravated trespass and public nuisance. The next day, he appeared in tribal court with lay counsel, Carson Mound, was arraigned and pled not guilty to all five charges.

[¶6]    On January 13, 2005, Defendant appeared, without counsel, at the Walter Miner Law Enforcement Center in Eagle Butte and submitted to a polygraph examination conducted by FBI Agent Robert Trone, a trained polygrapher. Trone opined that Defendant’s responses during the examination were indicative of deception and advised Defendant of this. When Trone questioned him further, Defendant changed his story and made inculpatory statements about the Turning Heart incident.

[¶7]    Defendant seeks now to suppress his October 27th and January 13th statements on voluntariness grounds under the Fifth Amendment, his January 13th statements on Sixth Amendment grounds, citing United States v. Red Bird, 287 F3d 709 (8th Cir. 2002), and the polygraph exam and its results as well based on Fed. R. Evid. 403 and United States v. Waters, 194 F3d 926 (8th Cir. 1999).

III.

[¶8]    The Fifth Amendment prohibits the use of involuntary statements at trial. Chavez v. Martinez, 538 US 760, 769 (2003); see also United States v. Bordeaux, 400 F3d 548, 560 (8th Cir. 2005). A statement is involuntary when it is extracted by threats, violence, or express or implied promises sufficient to overbear a suspect’s will and critically impair his capacity for self-determination. United States v. LeBrun, 363 F3d 715, 724 (8th Cir. 2004) (en banc), cert. denied, _____, US _____, 125 SCt 1292 (2005); see also United States v. Braveheart, 397 F3d 1035, 1040 (8th Cir. 2005). Whether the suspect’s will has been overborne is determined by examining the totality of the circumstances, including both the conduct of officers in exerting pressure on the suspect and the suspect’s ability to resist that pressure. Id. The Government bears the burden of persuasion and must prove by a preponderance of the evidence that the suspect’s statements were voluntary. Id.

[¶9]    After reviewing the 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 October 27th so as to make his statements to Bray and Garreau involuntary. No threats or promises were made to Defendant and no undue influence or pressure was exerted on him. The duration, tone and overall atmosphere of the interview were not hostile or coercive. The record indicates that Defendant’s will was not overborne. Instead, he cooperated with Bray and Garreau, answered the questions posed to him, proclaimed that the sexual intercourse he had with Turning Heart was with her knowledge and consent and even agreed to submit to a polygraph examination at a later time. There can be little doubt that Defendant’s statements were voluntary. United States v. Plumman, 409 US 919, 924-25 (8th Cir. 2005); Bordeaux, 400 F3d at 560-61.

[¶10]  The same is true with respect to Defendant’s January 13th statements. That day, Defendant went to the Law Enforcement Center on his own, was advised of his rights, agreed and submitted to a polygraph examination and provided detailed descriptions of what happened at Turning Heart’s residence. After being questioned by Trone and Bray together for a short time, Defendant terminated the interview and left the room. No physical or psychological pressure was used on Defendant that overbore his will. Nor were Defendant’s statements the product of coercive interrogation or undue influence on the part of the agents. Because the agents took no action that could objectively be considered as coercion or overstepping their bounds, there is nothing to refute the voluntariness of Defendant’s statements. As such, no legal basis exists for suppressing the statements Defendant made to Trone and Bray on January 13th. See United States v. Bad Hand, 926 FSupp 891, 901-02 (DSD 1996).

[¶11]  The fact that Defendant’s statements came during and in connection with a polygraph examination, is of little, if any, significance because the circumstances present, when considered in toto, plainly demonstrate that his statements were made voluntarily. See United States v. Black Bear, 422 F3d 658, 664-65 (8th Cir. 2005). Having reviewed the record, the Court is not persuaded that the overall impact of the polygraph examination, or the interrogation that occurred both before and after it, caused Defendant’s will to be overborne. Jenner v. Smith, 982 F2d 329, 334 (8th Cir.), cert. denied, 510 US 822 (1993); Bad Hand, 926 FSupp at 901

[¶12]  Defendant maintains that after he was told that he had “failed” the polygraph examination, he stood up and asked to leave, but Trone told him to “sit back down, that a report had to be done [and] more questions [had] to be asked.” Defendant claims that he did what he was told to do because he believed he had to. Trone disputes this, and is steadfast that he at no time ever told Defendant that he had to stay and answer questions. The Court observed both Trone and Defendant testify and found Trone’s testimony to be more credible, particularly on this issue. In the Court’s view, Defendant was not forced to stay and continue his conversation with Trone, but rather, acquiesced to doing so on his own.

[¶13]  Defendant also contends that a reasonable person in his position, who was subject to an administrative inquiry by a police department, would feel obligated to cooperate and answer questions posed to him by other law enforcement officers out of fear that refusal to do so might result in termination of employment. Although Defendant’s suspension from the CRST Police Department was briefly discussed during the interview, Trone made it clear to Defendant that he was conducting a federal investigation and that the investigation had nothing to do with the suspension. From the Court’s own observations, Defendant, a police officer and high school graduate, appeared to be articulate and of at least average intelligence. Defendant’s “fears” of losing his job if he did not stay and answer a FBI agent’s questions are not ones that a reasonable person would have likely had. The suspension of a tribal police officer is not typically a matter that the FBI would be called upon to investigate for, and on behalf of, an Indian tribe. And, it is improbable that the FBI, if called upon to question a tribal officer about a personnel (as opposed to a criminal) matter, would Mirandize the officer and disavow any involvement in such a matter directly to him. Here, Defendant knew, or reasonably should have known, that Trone and Bray were interviewing him as a suspect in a federal criminal investigation and not as part of some tribal related employment matter.

[¶14]  After reviewing the record and watching Defendant testify, it is clear that Trone and Bray did not overbear Defendant’s will or grievously impair his capacity for self-determination. This being the case, Defendant’s January 13th statements were made voluntarily and are admissible under the Fifth Amendment.

IV.

[¶15]  Defendant alternatively claims that his Sixth Amendment right to counsel attached when he appeared in tribal court with an assistant public defender for the CRST and pled not guilty to raping Turning Heart. {fn1} He maintains now that any waiver by him of his right to counsel prior to his January 13th polygraph induced interrogation was invalid under Red Bird, Michigan v. Jackson, 475 US 625 (1986) and Massiah v. United States, 377 US 201 (1964). According to Defendant, his statements to Trone during the polygraph examination and post-test questioning violated the Sixth Amendment, as interpreted by appellate courts in these three decisions, and must therefore be suppressed.

[¶16]  The Sixth Amendment provides that an accused shall enjoy the right to have the assistance of counsel for his defense in all criminal prosecutions. The accused is guaranteed the right to rely on counsel as a “medium” between himself and governmental authorities and is violated when those authorities obtain incriminating statements by knowingly circumventing his right to have counsel present in a confrontation with them. Maine v. Moulton, 474 US 159, 176 (1985). In Massiah, the United States Supreme Court held that a defendant’s Sixth Amendment rights were violated when federal agents deliberately elicited incriminating statements from him after he had been indicted and in the absence of counsel. 377 US at 206. Later, the Supreme Court, relying on Massiah, held that under the Sixth Amendment, “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” Jackson, 475 US at 636. Massiah and Jackson, thus make clear that the Sixth Amendment right to counsel attaches against the Government at the time of a defendant’s federal court arraignment. The issue here is whether this right attached when Defendant was arraigned in tribal court for the rape of Turning Heart.

A.

[¶17]  The question of whether Defendant’s Sixth Amendment right to counsel attached at his tribal arraignment is hotly disputed by the parties. The Government, on the one hand, asserts that Mound is not a licensed attorney in any federal or state court or even law trained and therefore, is not “counsel” for purposes of the Sixth Amendment. Defendant argues that a more functional approach should be used when deciding this question. He contends that despite Mound’s educational shortcomings, she nonetheless was skilled enough to provide Defendant with the legal assistance necessary to protect his rights and thus, was his “counsel” or “lawyer” within the meaning of Red Bird. The Court, however, disagrees with Defendant’s position, believing instead that Red Bird is distinguishable and that Defendant’s Sixth Amendment right to counsel was not triggered until he made his initial appearance in federal court on April 27, 2005. Stated another way, Defendant’s right to counsel did not attach because he never appeared in tribal court with “counsel” or a “lawyer” prior to the January 13th interrogation.

[¶18]  The following facts and circumstances aptly show this to be the case:

1.The CRST Constitution does not guarantee tribal members the right to an attorney in tribal court. In tribal court, a criminal defendant is advised that he has the right to retain counsel at his own expense, that if he “qualifies”, he may be represented by the tribal public defender, but that he does not have the right to professional or lay counsel, other than the public defender, at the expense of the Tribe. Defendant, like other tribal defendants, was informed of these matters in a Statement of Rights form he read and signed at his January 4th arraignment. {fn2}

2.The Statement both Defendant and CRST Associate Judge Georgia Gunville signed, contains the following admonition: “NOTE: If you pled NOT GUILTY, then it is your responsibility to immediately contact an attorney to represent you at your trial.” Judge Gunville interpreted the quoted language to mean that the tribal public defender’s representation of Defendant terminated after he entered his not guilty pleas in tribal court. {fn3}

3.Neither the CRST Public Defender Brenda Claymore, nor her assistant, Mound, are licensed professional attorneys. In fact, Claymore and Mound are not even active members, in good standing, with the courts of the CRST because they have not paid their bar dues as required.

4.Mound went to school until she was a sophomore or junior in high school and then obtained her GED. She has no college education and had not taken any legal training classes as of the time of Defendant’s tribal arraignment. According to Claymore, all Mound was supposed to do is appear with defendants at their arraignments. And, January 4th was only Mound’s second day on the job as an assistant public defender.

5.At no time during the January 13th meeting did Defendant ever advise Trone that he (Defendant) was represented by either an attorney or lay counsel. Nor was Trone aware then of the tribal charges that had been filed or that Mound had earlier appeared with Defendant for an arraignment in tribal court.

6.Significantly, tribal records do not show that Mound was even with Defendant at his January 4th arraignment. In fact, copies of the tribal court file that were received into evidence during the first evidentiary hearing, reflect that Defendant waived his right to counsel at the arraignment. {fn4}

[¶19]  At the time of his polygraph examination and interview with Trone, Defendant had not even been charged with a federal offense. Although Defendant had been arraigned in tribal court and appeared with lay counsel there, this proceeding did not serve to trigger his right to counsel under the Sixth Amendment. {fn5} Inasmuch as Defendant’s Sixth Amendment right to counsel did not attach until his initial appearance in federal court, that right was not violated when Trone questioned him without the presence of counsel {fn6}. See Plumman, 409 F3d at 926-27; compare Red Bird, 287 F3d at 711-14.

B.

[¶20]  Even if, somehow, Defendant’s right to counsel attached at his arraignment in tribal court, nonetheless, his January 13th statements are admissible because he initiated the meeting and interview with Trone that day and waived his right to talk to or have counsel present with him before or during questioning. United States v. Eagle Elk, 711 F2d 80, 83 (8th Cir. 1983), cert denied, 465 US 1013 (1984); Fields v. Wyrick, 706 F2d 879, 881-82 (8th Cir.), cert. denied, 464 US 1020 (1983); see Wyrick v. Fields, 459 US 42, 46-47 (1982).

[¶21]  In Edwards v. Arizona, 451 US 477, 484-85 (1981), the United States Supreme Court held that an accused, having expressed his desire to deal with law enforcement authorities only through counsel, is not subject to further interrogation by authorities until counsel has been made available to him, unless the accused himself “initiates further communication, exchanges or conversation with [authorities].” The Supreme Court, however, went on to observe that an accused, in a meeting with authorities initiated by him, could validly waive his right to counsel if the waiver was knowing and intelligent and found to be so under the totality of the circumstances. 451 US at 485-86 & n. 9. While Edwards was decided on Fifth Amendment grounds, its pronouncements apply with equal force to the Sixth Amendment. Jackson, 475 US at 631-35.

[¶22]  The rule in Edwards, just discussed, was not altered by the Supreme Court in Jackson. Rather, the Jackson Court simply held that if police initiate interrogation after a defendant has been arraigned or appeared in court at a similar proceeding, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid. 475 US at 636. Jackson thus left in tact the validity of a knowing and voluntary waiver where a suspect has initiated the meeting with police and the questioning of him that flowed therefrom.

[¶23]  Applying the Edwards rule to the case at hand, it must first be asked whether Defendant “initiated” the January 13th meeting, polygraph examination and interrogation with Trone. The Supreme Court’s decision in Oregon v. Bradshaw, 462 US 1039 (1983), provides guidance in answering this question. In Bradshaw, the four-justice plurality concluded that a reviewing court should look at whether a defendant’s actions and conduct “evinced a willingness and a desire for a generalized discussion about the investigation.” 462 US at 1045-46. If so, the defendant is deemed to have “initiated” the meeting or conversation. Id. The four dissentors defined “initiation” more narrowly as “communication or dialogue about the subject matter of the criminal investigation.” Id. at 1053 (Marshall, J., dissenting). {fn7}

[¶24]  The Court in this case finds and concludes that under either of the Bradshaw tests, Defendant “initiated” the meeting with Trone and the events that took place thereafter at the Law Enforcement Center. At the conclusion of his interview with Bray and Garreau on October 27th, Defendant was asked and agreed to submit to a polygraph examination. On January 12th, CRST Detective James Norris came to Defendant’s residence and informed him that a polygraph examiner would be in Eagle Butte the following morning. Defendant agreed to be there and the next morning traveled on his own to and voluntarily appeared at the Law Enforcement Center for the examination. After introductions were made, Trone gave Defendant a short description of what he planned to do that day and what the polygraph examination consisted of. Defendant then was read, and read himself, a polygraph interview consent form which advised him that he could refuse to take the test, could stop the test at any time, and could refuse to answer any individual questions. Defendant was also advised of his constitutional rights {fn8} and signed a form stating that he understood what his rights were and was waiving those rights at that time.

[¶25]  Upon completing the polygraph examination, Trone told Defendant that his responses were indicative of deception and then continued questioning Defendant without advising him of his constitutional rights. While being questioned, Defendant made inconsistent and inculpatory statements about the Turning Heart incident. Shortly before 3:00 p.m. that afternoon, Defendant terminated the interview and left. At no time during the interview did Defendant ever ask for the assistance of counsel or invoke any of his rights.

[¶26]  These facts are indistinguishable from those in Eagle Elk and Fields. Defendant agreed to take a polygraph examination and appeared voluntarily for the examination without counsel. He executed consent and waiver forms, acknowledged that he understood his rights, and agreed to answer questions without counsel present. At no time during the examination or the questioning that followed it did Defendant ever request the assistance of counsel. On these facts, it is clear that Defendant “initiated” the meeting and dialogue that occurred January 13th. Eagle Elk, 711 F2d at 83; Fields, 706 F2d at 881-82.

[¶27]  Having concluded that Defendant had “initiated” the meeting that led to his interrogation and incriminating statements, the Court must now determine whether he waived his right to counsel. After careful review of the record, the Court is convinced that Defendant waived this right.

[¶28]  It is clear from the record that Defendant was fully informed of his right to counsel and that he expressly waived this and other constitutional rights prior to the commencement of the polygraph examination and any interrogation. {fn9} In addition, Defendant’s education, his training and experience as a police officer and the fact that he terminated the interview and walked out of the meeting room, weigh heavily in favor of a valid waiver. Like in Eagle Elk and Fields, the facts and circumstances here plainly show that Defendant voluntarily, intelligently, knowingly and intentionally relinquished his Sixth Amendment right to have counsel present during and in connection with the polygraph examination and any questioning that occurred incident to it. Eagle Elk, 711 F2d at 83; Fields, 706 F2d at 881-82; see also Wyrick, 459 US at 46; Black Bear, 422 F3d at 664-65; Vassar v. Solem, 763 F2d 975, 977-78 (8th Cir. 1985); United States v. Iron Thunder, 714 F2d 765, 771-72 (8th Cir. 1983); United States v. Black Spotted Horse, 120 FSupp2d 802, 809 (DSD 2000). {fn10}

[¶29]  Accordingly, Defendant’s statements to Trone and Bray on January 13th were not obtained in violation of Defendant’s Sixth Amendment right to counsel and may be used by the Government in its case in chief at trial.

V.

[¶30]  Lastly, Defendant seeks to suppress any testimony concerning the fact that a polygraph examination was administered and the outcome of the same. He argues that polygraph evidence is unreliable, not relevant, and even if marginally relevant, is more prejudicial than probative and should be excluded under Fed. R. Evid. 403. Although Defendant’s attempt to “suppress” any reference to the polygraph, and the opinions concerning his performance on it, is really a motion in limine, the Court will address Defendant’s assertion for expediency purposes.

[¶31]  Defendant’s argument has support among the case law of the Supreme Court and Eighth Circuit. In United States v. Scheffer, 523 US 303, 309-12 (1998), the Supreme Court held that polygraph evidence is of questionable reliability and that the President did not act arbitrarily or disproportionately in promulgating a per se rule excluding all polygraph evidence. The Eighth Circuit, citing Scheffer, later affirmed the exclusion of polygraph evidence under Rule 403 based on the collateral nature of such evidence and the confusion it would likely create if admitted at trial. Waters, 194 F3d at 930. While polygraph evidence may not be per se inadmissible in the Eighth Circuit and could potentially be admitted in the absence of a stipulation from the Government, see United States v. Rouse, 329 FSupp2d 1077, 1083 (DSD 2004), aff’d, 410 F3d 1005, 1011 (8th Cir. 2005), the Court believes that such evidence, if allowed, would be unduly prejudicial and should accordingly be excluded in this case. Such a view is consistent with both Supreme Court and Eighth Circuit precedent and that of this District. See Scheffer, 523 US at 309-17; United States v. Gianakos, 415 F3d 912, 925 (8th Cir.), cert denied, ___ US ___, 126 SCt 764 (2005); Waters, 194 F3d at 930-31; Rouse, 329 FSupp2d at 1083-86.

VI.

[¶32]  Based on the foregoing and in accordance with §636(b)(1), the Court hereby RECOMMENDS that Defendant’s Motion be granted in part and denied in part. The Motion should be granted to the extent that it seeks to exclude the fact that the polygraph examination was administered to Defendant and the outcome of that examination, but should be denied in all other respects.

NOTICE

            Failure to file written objections to the within and foregoing Findings of Fact and Report and Recommendations for Disposition within ten (10) days from the date of service shall bar an aggrieved party from attacking such Findings and recommended disposition before the assigned United States District Judge. See 28 USC. § 636(b)(1)(B); Fed. R. Crim. P. 72(b).

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