State v. Bowker

#24502-a-DG

2008 SD 61

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

FRANKIE LEE BOWKER, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

HONORABLE GLEN A. SEVERSON

Judge

* * * *

LAWRENCE E. LONG

Attorney General

FRANK GEAGHAN

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff

and appellee.

AMANDA M. WILCOXON

Minnehaha County Public

Defender’s Office

Sioux Falls, South Dakota Attorneys for defendant

and appellant.

* * * *

CONSIDERED ON BRIEFS

ON JANUARY 7, 2008

OPINION FILED 07/09/08

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GILBERTSON, Chief Justice

[¶1.] On May 10, 2006, Frankie Lee Bowker (Bowker) was indicted by a

Minnehaha County grand jury on one count of possession of a controlled substance

in violation of SDCL 22-42-5, and one count of possession of drug paraphernalia in

violation of SDCL 22-42A-3. Bowker filed motions in the South Dakota Second

Judicial Circuit Court to suppress evidence and statements, which were heard on

July 25, October 3, and November 21, 2006. The court denied all motions.

Thereafter, a jury returned guilty verdicts on both counts. Bowker was sentenced

to five years in the South Dakota State Penitentiary for the possession of a

controlled substance conviction. That sentence was suspended but for 90 days to be

served in the Minnehaha County Jail. Bowker was also sentenced to 30 days in jail

for the possession of drug paraphernalia conviction, which was suspended. We

affirm.

FACTS AND PROCEDURE

[¶2.] On May 2, 2006, at around 6:45 a.m., Sioux Falls Police Officer James

Buteyn (Buteyn) was pulling into the police station at Fourth Street and Minnesota

Avenue in Sioux Falls, South Dakota, as he neared the end of his shift. At that

time, Buteyn was flagged down by a passing motorist who reported that a man was

on the roof of a nearby house. At about 6:48 a.m., Buteyn called in a possible

burglary and proceeded to the subject house. Buteyn was shortly thereafter joined

at the residence by Sioux Falls Police Officers Brett Hamlyn (Hamlyn), Jason Leach

(Leach) and Allen Phillips (Phillips).

[¶3.] At the house, the officers observed a man in the yard with a Pit Bull.

The officers approached and made contact with the man at 6:51 a.m. and observed

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that he had a fresh bleeding cut on his hand. They also observed that a second

story window was broken. Buteyn asked the man to identify himself, where he

lived and how he cut his hand. The man stated that his name was Shaun Corbine

(Corbine) and that he had lived in an apartment inside the house for six months.

However, when asked if he carried identification, Corbine produced a driver’s

license, issued six days earlier, which indicated his address was in Harrisburg.

When asked about the discrepancy, Corbine explained that the address on the

driver’s license was his ex-wife’s and that he had not lived there for six months. In

reference to the apparent fresh cut, Corbine explained that he had cut his hand the

night before when he broke a window after his frightened Pit Bull lunged at him.

[¶4.] Corbine was then asked if anyone was inside the apartment. He

indicated that his girlfriend of six months, who had been staying with him, was

sleeping inside. Buteyn asked for the girlfriend’s name, but Corbine could not

initially remember it stating, “I’m drawing a blank.” Corbine eventually was able to

recall that her name was Frankie Bowker. At the July 25, 2006 suppression

hearing, Buteyn testified that due to the broken window; the suspicious answer

Corbine gave when he was asked for the name of his girlfriend of six months; his

inconsistent statements about his address; and the fresh cut on his hand, the police

officers determined that it was necessary for them to enter the premises to conduct

a well-being check because Corbine may have been a burglar and a possible assault

victim may have been inside.

[¶5.] Corbine did not consent to the officers’ entry of the apartment, but

produced a key that was used to open the exterior door to the house. Corbine was

handcuffed for officer safety and Hamlyn stayed with him while Buteyn, Leach and

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Phillips entered the house. At the July 25 hearing, Buteyn testified that the

exterior door opened to a ground floor apartment on the left and a stairway straight

ahead that led to a second floor apartment. At trial, Buteyn testified that after

announcing their presence, he proceeded up the stairs to the second floor apartment

followed by Leach and Phillips. Buteyn stated that when he was about three

fourths of the way up the stairway, a woman emerged from the apartment, which

was on the left, onto the second floor landing.

[¶6.] Buteyn testified that when the woman appeared, her feet were about

level with his head. He said that he asked the woman her name and that she

identified herself as “Frankie [Bowker].” Buteyn told Bowker to back up into the

apartment for officer safety; at which time she stated that the officers could not be

on the premises without a warrant. Buteyn again told Bowker to back up into the

apartment. Bowker complied and the officers continued ascending to the second

floor landing.

[¶7.] After reaching the landing, the officers observed that the doorway

opened into a living room with a kitchen area on the left. The officers observed two

small children sleeping on the living room floor. To the right of the living room, a

doorway opened to a bedroom. At the July 25 hearing, Buteyn testified that from

the second floor landing, the officers could see that there was blood on the

doorframe leading into the bedroom. Buteyn asked Bowker if she lived in the

apartment. At the hearing, Buteyn stated that Bowker said she did not.

[¶8.] Buteyn initially supervised Bowker while Leach and Phillips entered

the apartment and swept through the living room and kitchen areas. Phillips then

stayed with Bowker for officer safety while Buteyn and Leach entered the bedroom

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to continue the well-being check. At the July 25 hearing, Buteyn testified that upon

entering the bedroom, three “meth pipes” were in plain view. He stated, “There was

a meth pipe laying on the bed. There was a meth pipe laying on a chair and

another meth pipe laying on a bed stand.” Buteyn noted the time was 7:04 a.m.

when the meth pipes were discovered. Buteyn and Leach seized the pipes, which

they confirmed contained methamphetamine residue by conducting a field test.

Buteyn then called down to Hamlyn to have him place Corbine under arrest.

[¶9.] At trial, Buteyn testified that he then went back into the living room to

speak to Bowker. He stated that Bowker, then aware of the discovery, told him that

while she did not live in the apartment, she did stay there a lot. At the October 3,

2006 suppression hearing, Buteyn testified that at this juncture, Bowker was free to

leave. After speaking with Bowker, Buteyn then went back outside to talk to

Corbine.

[¶10.] At the October 3 suppression hearing, Leach testified that while

Buteyn was outside talking to Corbine, he stayed inside with Bowker and continued

speaking to her. Leach asked Bowker how often she stayed at the apartment.

Leach stated that Bowker replied that she stayed there four to five nights a week.

Leach also testified that he asked Bowker about the meth pipes, and that she said

she knew they were in the apartment, but that they were not hers. Leach further

testified that following this questioning of Bowker, he did not intend to arrest her.1

1. At the October 3, 2006 suppression hearing, Buteyn also testified that he did

not have evidence to arrest Bowker at this juncture and that she was free to

leave the apartment.

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[¶11.] Buteyn then returned from talking to Corbine and asked Bowker how

long it had been since she had stayed somewhere other than the apartment. At the

October 3 hearing, Buteyn testified that in response to this question, Bowker said

that she had not stayed anywhere else “for 10 days to two weeks.” At this point,

Buteyn placed Bowker under arrest for possession of methamphetamine and drug

paraphernalia. Subsequent to the arrests, police obtained a search warrant for the

apartment and found digital scales with methamphetamine residue, jeweler bags

for which testimony was later given that they are frequently used for drug storage,

documents that law enforcement testified constituted “owe sheets” from drug

transactions, telephone records, automobile financing statements and a telephone

list with Bowker’s name at the top.

[¶12.] At the July 25, 2006 suppression hearing, Bowker argued her motion

to suppress the meth pipes and all subsequent evidence on the ground that they had

been illegally obtained without a search warrant. The trial court denied Bowker’s

motion concluding that exigent circumstances constituting an exception to the

warrant requirement existed due to the officers’ perceived need to check on the well

being of those inside the apartment.

[¶13.] At the October 3 and November 21, 2006 hearings, Bowker argued that

her statements, made before and after the discovery of the meth pipes, should be

suppressed because they were illegally obtained without a Miranda warning. The

trial court denied the motion concluding that Miranda warning was not necessary

because there was no custodial interrogation, and Bowker’s statements were the

product of the officers’ “general, on-the scene” questioning. Findings of fact and

conclusions of law were entered. Bowker’s trial was conducted on December 7 and

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8, 2006. Bowker was found guilty by a jury of possession of methamphetamine and

drug paraphernalia.

[¶14.] Bowker raises four issues on appeal:

1. Whether the trial court erred by denying Bowker’s

motion to suppress evidence obtained without a

search warrant.

2. Whether the trial court erred by denying Bowker’s

motion to suppress statements allegedly made to

police while in custody and without a Miranda warning.

3. Whether an exhibit containing various documents

obtained by police from the apartment was relevant

to the State’s case and properly admitted by the

trial court.

4. Whether the State’s remarks in reference to Bowker’s

request for a warrant were improper, constituting

plain error by the trial court in violation of her right

to a fair trial.

ANALYSIS AND DECISION

[¶15.] 1. Whether the trial court erred by denying Bowker’s

motion to suppress evidence obtained without

a search warrant.

[¶16.] Bowker argues that the trial court should have suppressed the meth

pipes seized by police officers during the initial entry upon the premises, and all

evidence subsequently obtained from within the apartment after the police obtained

a search warrant because it was all acquired as the result of an initial and illegal

warrantless entry.

[¶17.] This Court reviews the denial of a motion to suppress alleging a

violation of a constitutionally protected right as a question of law by applying the de

novo standard. State v Stanga, 2000 SD 129, ¶8, 617 NW2d 486, 488 (citing

Ornelas v. United States, 517 US 690, 699, 116 SCt 1657, 1663, 134 LEd2d 911

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(1996); United States v. Khan, 993 F2d 1368, 1375 (9thCir 1993); State v. Hirning,

1999 SD 53, ¶9, 592 NW2d 600, 603). Appeals alleging an illegal warrantless

search implicate a defendant’s Fourth Amendment rights and are reviewed by this

Court de novo. State v. Sweedland, 2006 SD 77, ¶¶12-13, 721 NW2d 409, 412.

(citations omitted). However, we apply the clearly erroneous standard to the

factual findings below. Id. ¶12 (citations omitted).

[¶18.] Since freedom from intrusion into one’s home or dwelling is the

overarching interest set out in the Fourth Amendment, there is a heightened

expectation of privacy therein. Payton v. New York, 445 US 573, 587, 100 SCt 1371,

1380, 63 LE2d 639 (1980) (citing Dorman v. United States, 435 F2d 385, 389 (CADC

1970)); State v. Meyer, 1998 SD 122, ¶20, 587 NW2d 719, 723 (citations omitted).

While this heightened expectation of privacy generally demands that law

enforcement obtain a warrant prior to entering a home or dwelling, “the ultimate

touchstone of the Fourth Amendment is ‘reasonableness’[, and thus], the warrant

requirement is subject to exceptions.” Brigham City, Utah v. Stuart, 547 US 398,

403, 126 SCt 1943, 1947, 164 LEd2d 650 (2006) (citing Flippo v. West Virginia, 528

US 11, 13, 120 SCt 7, 145 LEd2d 16 (1999) (per curiam); Katz v. United States, 389

US 347, 357, 88 SCt 507, 19 LEd2d 576 (1967)). One such exception is exigent

circumstances. Id. (citing Mincey v. Arizona, 437 US 385, 393-394, 98 SCt 2408, 57

LEd2d 290 (1978)); Meyer, 1998 SD 122, ¶20, 587 NW2d at 723 (citations omitted).

The State has the burden to prove that an exigency justifying warrantless entry

exists. State v. Hess, 2004 SD 60, ¶23, 680 NW2d 314, 324 (citations omitted).

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[¶19.] “Exigent circumstances exist when ‘a situation demand[s] immediate

attention with no time to obtain a warrant.’” State v. Dillon, 2007 SD 77, ¶18, 738

NW2d 57, 60 (quoting Hess, 2004 SD 60, ¶24, 680 NW2d at 325); Meyer, 1998 SD

122, ¶23, 587 NW2d at 724 (citing State v. Heumiller, 317 NW2d 126, 129 (SD

1982))). The need to protect or preserve life or avoid serious injury presents that

kind of situation. Dillon, 2007 SD 77, ¶20, 738 NW2d at 61(citations omitted).

[¶20.] Whether exigency justifying warrantless entry exists is “applied to the

facts as perceived by the police at the time of entry[.]” Meyer, 1998 SD 122, ¶23,

587 NW2d at 724 (citing Heumiller, 317 NW2d at 129). “[A]nalysis of whether this

exception to the warrant requirement has been made out is an objective one

centering on what a reasonable, experienced law enforcement officer would have

believed.” Hess, 2004 SD 60, ¶25, 680 NW2d at 325 (citing United States v.

Clement, 854 F2d 1116, 1119 (8thCir 1988)). We have recognized that a law

enforcement officer’s subjective justification is not determinative to this analysis.

State v. Lamont, 2001 SD 92, ¶21, 631 NW2d 603, 610. Still, there was until

recently a split view on this issue. Brigham City, 547 US at 402, 126 SCt at 1947,

164 LEd2d 650 (citations omitted). In Brigham City, the United States Supreme

Court settled the issue, reiterating that “[a]n action is ‘reasonable’ under the Fourth

Amendment, regardless of the individual officer’s state of mind, ‘as long as the

circumstances, viewed objectively, justify [the] action.’” Id. at 404, 126 SCt at 1948,

164 LEd2d 650 (citing Scott v. United States, 436 US 128, 138, 98 SCt 1717, 56

LEd2d 168 (1978)) (emphasis and alteration original).

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[¶21.] In regard to Bowker’s motion to suppress evidence, the trial court

found that after Buteyn was alerted to a possible burglary in progress, he and the

other officers encountered Corbine at the subject residence. Corbine had a fresh cut

and blood on his hands and clothing. The trial court also found that although

Corbine claimed to live in an apartment inside the house, he nevertheless produced

a driver’s license indicating that he lived in Harrisburg; that Corbine told the

officers that his girlfriend was upstairs; and that although he had been seeing her

for six months, he was unable, initially, to identify her by name. The court found

that after entering the house, Buteyn, Leach and Phillips were proceeding up the

stairway to the second floor apartment when they encountered Bowker; that her

feet were about level with Buteyn’s head at that point; that the officers could not

see into the apartment until they had reached the second floor landing; and that

thereafter, they observed blood on the door frame leading into the bedroom. See

Lamont, 2001 SD 92, ¶32, 631 NW2d at 614 (opining in a warrantless entry case

that the presence of blood is a strong indicator of injury therein further justifying

the warrantless entry).

[¶22.] There is evidentiary support for the trial court’s findings in this case

and its determination that objectively speaking these police officers were concerned

that a burglary may have taken place and that assault victims may have been in

need of medical attention inside the apartment. Based on these findings, we

conclude that the police officers were objectively justified in entering the house and

apartment in order to check on the well-being of persons inside.

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[¶23.] Bowker argues that the fact Corbine was able to produce a key to the

apartment negates any concern that he was at the house for an illegal purpose,

which would justify a well-being check and that the officers entered the apartment

with the intent of obtaining evidence sufficient to charge Corbine with a crime.

However, we consider reasonable Buteyn’s testimony at the October 25, 2006

hearing, where he stated that he had no way of knowing whether Corbine had come

by the key legitimately or whether he had picked it up inside the apartment during

a burglary. For all the foregoing reasons we affirm the trial court on this issue.

[¶24.] 2. Whether the trial court erred by denying Bowker’s

motion to suppress statements allegedly made

to police while in custody and without a Miranda

warning.

[¶25.] Bowker argues that her statements made inside the house prior to her

arrest were produced through custodial interrogation without a Miranda warning;

thus violating her Fifth Amendment right against self-incrimination. Bowker

thereby contends that the trial court should have granted her motion to suppress

the statements.

[¶26.] The Fifth Amendment right against self-incrimination is implicated

whenever an individual is subject to custodial interrogation by law enforcement.

State v. Rhines, 1996 SD 55, ¶11, 548 NW2d 415, 426 (citing Miranda v. Arizona,

384 US 436, 478, 86 SCt 1602, 1630, 16 LEd2d 694 (1966)). “Miranda warnings are

called for when a person is being interrogated ‘in custody at the station or otherwise

deprived of his freedom of action in any significant way.’” State v. Hamm, 89 SD

507, 234 NW2d 60, 64 (1975) (quoting Miranda, 384 US at 477, 86 SCt at 1629, 16

LEd2d 694). The subjective views of the interrogating officer and the person being

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questioned do not enter into this analysis. State v. Thompson, 1997 SD 15, ¶25, 560

NW2d 535, 540 (quoting Stansbury v. California, 511 US 318, 323, 114 SCt 1526,

1529, 128 LE2d 293 (1994)). “Whether an individual is in custody is determined by

‘how a reasonable man in the suspect’s position would have understood his

situation.’” State v. Hoadley, 2002 SD 109, ¶24, 651 NW2d 249, 256 (quoting State

v. Anderson, 2000 SD 45, ¶79, 608 NW2d 644, 666 (quoting State v. Herting, 2000

SD 12, ¶13, 604 NW2d 863, 866)).

[¶27.] In setting out our standard of review for appeals alleging custodial

interrogation without a Miranda warning implicating a defendant’s Fifth

Amendment rights against self-incrimination, we follow a well-established test that

involves “two discrete inquiries” requiring the application of two standards.

Thompson v. Keohane, 516 US 99, 112-13, 116 SCt 457, 465, 133 LEd2d 383 (1995);

see also State v. Morato, 2000 SD 149, ¶11, 619 NW2d 655, 659 (observing that two

standards apply when reviewing cases where involuntary confession is alleged)

(citations omitted). “The first inquiry” applies to “the circumstances surrounding

the interrogation;” i.e. the scene and action, which is factual, thereby “attract[ing] a

presumption of correctness” to the trial court’s findings. Thompson, 516 US at 112,

116 SCt at 465, 133 LEd2d 383; see also Morato, 2000 SD 149, ¶11, 619 NW2d at

659 (citations omitted). We have also referred to this as involving factual

determinations that are reviewed under the clearly erroneous standard. State v.

Aesoph, 2002 SD 71, ¶12, 647 NW2d 743, 750 (citing Meyer, 1998 SD 122, ¶16, 587

NW2d at 722-23). However, the application of those facts to the determination of

whether a reasonable person under those circumstances would consider themselves

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to be in custody is a question of law. Thompson, 516 US at 112, 116 SCt at 465, 133

LEd2d 383; see also Morato, 2000 SD 149, ¶17, 619 NW2d at 661; Aesoph, 2002 SD

71, ¶12, 647 NW2d at 750. “The ultimate determination, [therefore], presents a

‘mixed question of law and fact’ qualifying for independent review.” Thompson, 516

US at 112-13, 116 SCt at 465, 133 LEd2d 383; see also Morato, 2000 SD 149, ¶17,

619 NW2d at 661; Aesoph 2002 SD 71, ¶12, 647 NW2d at 750.

[¶28.] From the time that Buteyn, Leach and Phillips entered the apartment,

Bowker was under continuous supervision. Buteyn supervised Bowker while Leach

and Phillips conducted the initial sweep of the living room area. Phillips then

supervised Bowker when Buteyn and Leach checked the bedroom. The officers’

testimony, reflected in the trial court’s findings, indicates that at no time until she

was arrested was Bowker formally restrained. 2 Nevertheless, Phillip’s testimony

indicates that she was placed on a couch and was not free to move about the

apartment while Buteyn and Leach checked the bedroom.

[¶29.] After the plain-view discovery of the meth pipes, Bowker was asked

about the pipes and how often she stayed in the apartment. The testimony of

Buteyn and Leach at the October 3, 2006 hearing, which is reflected in the trial

2. The dissent suggests that there was no reason for the police officers to have

entered the bedroom to continue the well-being check because “[w]ithin the

first few seconds after entering the apartment,” they were able to ascertain

that “no one in the apartment was injured or in danger.” However, the

dissent overlooks the suppression hearing testimony of officers Buteyn and

Leach who stated that from their vantage point just inside the doorway of the

apartment, they observed blood on the bedroom door frame and that they

entered the bedroom to determine whether someone was injured or concealed

therein.

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court’s findings, indicates that they had no intention of arresting Bowker and that

she was free to leave the apartment with her children, even after she acknowledged

having stayed in the apartment four to five nights a week and having seen the meth

pipes before. However, the officers’ testimony in this regard is not determinative to

our analysis. See Stansbury, 511 US at 323, 114 SCt at 1529, 128 LE2d 293

(reiterating that an interrogating officer’s subjective view is irrelevant to the

custody analysis).

[¶30.] The officers were in the process of determining what was going on in

the premises, who was involved in it, and whether anyone was in need of emergency

assistance. It was not unreasonable, while this process was going on, to have

Bowker remain on the couch. This was for her safety, the safety of others in the

apartment and the officers. A right to move about the apartment is not

synonymous with a constitutional right to leave it. Bowker cites to no authority

that she had the right to move about the apartment during this brief process.3

3. The dissent cites excerpts from Phillips’s testimony at the November 21,

2006 continuation of the second suppression hearing, in order to suggest that

Bowker was not free to “walk around” the apartment let alone leave. The

dissent claims that following the discovery of the meth pipes there was a

point during which Buteyn and Leach left Phillips alone with Bowker while

they went downstairs to talk to Corbin. We acknowledge that Phillips

testified that he was alone with Bowker at some point. However, he also

testified that during the period in which he was alone with her, he was at the

same time “in the living room for security reasons” and that he was locating

himself in a “security position[.]” (Emphasis added). We conclude that the

fact finder at the suppression hearing could reasonably have determined that

Phillips’s reference to being alone with Bowker and restricting her

movements in the apartment was in the context of his supervising her for

officer safety while Buteyn and Leach were conducting the well-being check

inside the bedroom, since under no other circumstances would Phillips have

been present for “security reasons.” Furthermore, a review of the October 3

(continued . . .)

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[¶31.] Moreover, the officers’ questions were “general, on-the-scene”

questions, not subject to Miranda. A law enforcement officer is not required to

deliver a Miranda warning when his questions constitute “[g]eneral on-the-scene

questioning as to facts surrounding a crime or other general questioning of citizens

in the fact-finding process. . . .” State v. Bartunek, 323 NW2d 121, 124 (SD 1982)

(quoting Miranda, 384 US at 477, 86 SCt at 1629, 16 LEd2d 725). In Bartunek, a

sheriff’s deputy responding to an auto accident encountered the defendant and his

brother wandering around the accident scene. Id. at 122. The deputy asked the

brothers several questions including the extent of their injuries, whether they

needed medical attention, and who was driving the car. After the brothers admitted

that the defendant brother had been driving, the defendant brother was arrested

and charged with driving while intoxicated. Id. at 122-23. On appeal of his

conviction, the defendant argued that he was entitled to a Miranda warning at the

time the responding deputy asked the identity of the driver. Id. at 123. On the

strength of SDCL 32-34-4, which requires the driver of any vehicle involved in an

accident to contact law enforcement without delay and identify themselves, we

________________________

(. . . continued)

testimony of Buteyn and Leach, reveals that while Buteyn went downstairs

to talk to Corbine following the discovery of the meth pipes, Leach remained

behind in the apartment with Phillips and Bowker. Notwithstanding,

evidence contrary to the dissent’s claim that Phillips remained alone with

Bowker and continued to restrict her movements following the discovery of

the meth pipes, both Buteyn and Leach testified at the October 3 hearing,

that Bowker was free to gather her children and leave the apartment up until

the point at which she told Buteyn that she had stayed nowhere else for 10 to

14 days. See supra ¶¶9-11.

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affirmed the defendant’s conviction, holding that the deputy was conducting

“general, on-the-scene questioning.” Id. at 125.

[¶32.] It is also instructive to review the facts in State v. Myhre¸ 2001 SD 109,

633 NW2d 186. In Myhre, a wildlife conservation officer with the South Dakota

Department of Game Fish and Parks (GF&P) happened upon a party of three

hunters whom, after an initial questioning, he suspected had committed an

infraction. Id. ¶¶2, 3. The officer left the scene to search the nearby roadway for

evidence that would corroborate his suspicions. Id. ¶3. Finding none, he left the

scene, but happened upon a second group of hunters nearby whom he questioned

about the first group. Id. ¶4. The second group of hunters renewed the officer’s

suspicions about the first. He then returned to the first group to continue

questioning. Id. ¶5.

[¶33.] The officer questioned each of the three hunters individually. Id. ¶¶6,

7. He elicited a confession from the first hunter and then instructed him to remain

seated on the tailgate of the GF&P pickup. Id. ¶6. Next, the officer instructed the

second hunter to get into the GF&P pickup, where he elicited a corroborating

confession. After instructing the second hunter to remain in the pickup, he went to

the hunters’ adjacent vehicle and climbed inside with the defendant. Id. ¶¶6, 7.

After the officer confronted the defendant with specific allegations of a game

infraction, the defendant confessed to his role for which he was subsequently cited.

Id. ¶¶7, 8. The officer did not administer a Miranda warning prior to this

questioning. Id. ¶7.

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[¶34.] In Myhre, we concluded that the officer’s questioning of the defendant

was more than conversational, went beyond “general on-the-scene” fact gathering,

and was intended to elicit a confession. Id. ¶¶20, 21. In arriving at this conclusion,

we noted that the officer had ordered the defendant to remain in his vehicle while

he conducted separate interrogations of the other two hunters. Id. ¶20. Armed

with their confessions implicating the defendant, the officer confronted the

defendant with allegations of the game infraction. Id. Despite the defendant’s

repeated attempts to avoid the officer’s questioning, the officer persisted in his

attempts to obtain the defendant’s confession and at no time informed the

defendant that he could leave or that he did not have to answer the questions. We

held that that interrogation, which yielded the defendant’s confession, was custodial

in nature. Id.

[¶35.] Juxtaposed with the facts of Bartunek and Myhre, we agree with the

trial court that Buteyn’s initial question to Bowker when he encountered her while

coming up the stairs – i.e. whether she lived in the apartment – can be construed as

a “general on-the-scene” question in furtherance of the fact-finding process. Leach’s

and Buteyn’s subsequent questions to her about how often and how long she had

stayed in the apartment can be similarly construed. The nature of the questioning

and the environment in which the questions were asked is in no way similar to the

rigorous confined confrontation of the defendant in Myhre. In the instant case, the

officers were simply trying to ascertain Bowker’s status concerning the apartment

that they were searching on an emergency basis. A reasonable person in Bowker’s

situation would not have considered herself in custody at that time. While for

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officer safety she may not have been free to roam around the apartment at will, she

was nevertheless free to leave up to the point of her arrest. 4

[¶36.] 3. Whether an exhibit containing various documents

obtained by police from the apartment was relevant

to the State’s case and properly admitted by the

trial court.

4. The dissent relies in large part upon what it claims can be heard on

the audio portions of a videotape that recorded police conversations

made while the well-being check was on-going. There were two

motions to suppress. The first, heard on July 25, 2006, was to

suppress drug paraphernalia and other evidence of drug use and

distribution found at the apartment. The tape was introduced at

this hearing as an exhibit and is referenced in the transcript. The

trial court denied the motion to suppress evidence.

Bowker then filed a second motion to suppress statements she made in the

apartment. At the opening of the second hearing, the State asked the trial

court to incorporate the testimony from the first suppression hearing, but did

not ask for any exhibits to be incorporated. In denying Bowker’s second

motion to suppress, the trial court found that Bowker was free to leave

during the questioning and that she answered the questions voluntarily. At

no time during this suppression hearing did defense counsel ask for the tape to

be introduced or incorporated. We also observe that in objecting to the trial

court’s findings, Bowker did not cite to the tape. Nor does Bowker cite to the

tape on appeal for support of her argument pertaining to the Miranda issue.

Thus, while the dissent bases its argument chiefly on this tape, throughout

the trial and appellate proceedings, it played no part in the issue of whether

Bowker was free to leave or whether she was restrained at the time she made

the statements that she sought to suppress.

Since Bowker failed to introduce the tape at the hearing on the motion to

suppress statements or have it incorporated into those proceedings, any

consideration of the content of the tape is waived on appeal. See Berdahl v.

Gillis, 136 NW2d 633, 635 (SD 1965) (holding that a letter utilized by the

appellant in his argument would not be considered on appeal because it was

not properly before the trial court). As an appellate court, we are confined to

the record and issues presented to us for judicial review. See DeMarco v.

Jones & Laughlin Steel Corp., 522 A2d 26, 28-29 (Pa 1987) (opining that

appellate court consideration of matters not raised by trial counsel result in

the trial becoming “merely a dress rehearsal”)

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[¶37.] Prior to trial, Bowker filed a motion in limine seeking an order to

prevent the State or its witnesses from making any reference to various documents,

later entered as State’s Exhibit 17, and specifically, a phone list contained therein

with the words “Frankie’s Pimp Lists” printed at the top. Bowker asserted that the

documents were inadmissible, pursuant to SDCL 19-12-2 (Rule 402), because they

were irrelevant to the charges pending against her; they were inadmissible,

pursuant to SDCL 19-12-3 (Rule 403), because any probative value they might have

was substantially outweighed by their prejudicial effect; and they constituted

inadmissible character evidence, pursuant to SDCL 19-12-5 (Rule 404(b)).

[¶38.] A trial court’s evidentiary rulings are presumed to be correct. State v.

Crawford, 2007 SD 20, ¶13, 729 NW2d 346, 349 (citation omitted). On appeal, we

review evidentiary rulings for abuse of discretion. State v. Asmussen, 2006 SD 37,

¶13, 713 NW2d 580, 586 (citations omitted). “An abuse of discretion refers to a

discretion exercised to an end or purpose not justified by, and clearly against reason

and evidence.” Id. (quoting State v. Henry, 1996 SD 108, ¶10, 554 NW2d 472, 473

(citations omitted)).

[¶39.] “All relevant evidence is admissible[.]” SDCL 19-12-2 (Rule 402).

Relevant evidence is defined as “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” SDCL 19-12-1

(Rule 401). “The law favors admitting relevant evidence no matter how slight its

probative value.” State v. Bunger, 2001 SD 116, ¶11, 633 NW2d 606, 609. “It is

sufficient that the evidence has a tendency to make a consequential fact even the

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least bit more probable or less probable that [sic] it would be without the evidence.”

Id. (citation omitted) (emphasis original). However, “relevant [ ] evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice.” SDCL 19-2-3.

[¶40.] In addition to the phone list, Exhibit 17 contained Corbine’s vehicle

financing statements and cell phone records. The exhibit also contained the “owe

sheets” with coded language. 5 The State argued that the vehicle financing

statements and cell phone records were relevant to the charges against Bowker

because they connected her boyfriend Corbine to the residence and that the “owe

sheets” evinced drug transaction activity. 6 Although Bowker alleged that the State

sought to introduce the phone list entitled, “Frankie’s Pimp Lists” in order to

impugn her character, the State asserted that the sizable phone list had “probative

value to establish that [Bowker] was present [at the apartment], lived there,

apparently felt that she was there, put enough portion of the time of her life to

bring with her and leave there a list of phone numbers that had some importance to

her.” Moreover, the State argued that the phone list was “probative and admissible

5. Dollar computations, names and various terms such as “booties,” “T-shirts”

and “games” were found on the “owe sheets.” At the trial, a Sioux Falls

Police Department Detective, John Duprey (Duprey), testified that the term

“bootie” is equivalent to the term “8-ball,” which is code for an eighth of an

ounce of methamphetamine. Duprey stated that the term “T-shirt” is

equivalent to the term “teener,” which is code for a sixteenth of an ounce and

that the term “game” is code for an ounce of methamphetamine.

6. The “owe sheets” may have additional relevance since testimony was offered

that Corbine had not drawn up the sheets and that all but one of the sheets

was, in the opinion of Duprey, “in female handwriting.”

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to show [Bowker’s] access and joint possession of the premises which is part of what

the State needs to prove and persuade the jury about in this case.”

[¶41.] Evidence is unduly prejudicial if it persuades the jury in an unfair or

illegitimate manner, but not merely because it harms the other party’s case. State

v. Mattson, 2005 SD 71, ¶20, 698 NW2d 538, 546 (citations omitted). The party

objecting to the admission of evidence has the burden of establishing that the

probative value of said evidence is substantially outweighed by its prejudicial effect.

Id.

[¶42.] In this case, the State laid a foundation for the relevancy and

probative value of the documents that were entered into evidence as Exhibit 17. In

contrast, Bowker has failed to show in what manner she was unduly prejudiced by

the admission of these documents. Therefore, we find no abuse of discretion in the

trial court’s refusal to grant an order to prevent the State or its witnesses from

making reference to the documents.

[¶43.] 4. Whether the State’s remarks in reference to

Bowker’s request for a warrant were improper,

constituting plain error by the trial court in

violation of her right to a fair trial.

[¶44.] Bowker argues that the State made comments during closing

argument that violated her right to a fair trial when it referenced her request for a

warrant when Buteyn, Leach and Phillips were climbing the stairs to the

apartment. In that regard the State said,

There is only one reason why a person would say that.

That’s if they had guilty knowledge of what was within.

They have a desire to protect the drug paraphernalia and

substances that are within. They know about them. They

are exercising dominion and control them by preventing

the police from seeing them.

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The State went on to say, “That’s what a drug user would say to a police officer.

That’s not what a normal innocent citizen would say to a police officer.” Since

Bowker failed to object to the State’s remarks at that time, she now raises the issue

on appeal claiming plain error.

[¶45.] Where an issue has not been preserved by objection at trial, our review

is limited to whether the trial court committed plain error. State v. Buchhold, 2007

SD 15, ¶17, 727 NW2d 816, 821 (citations omitted). “Plain errors or defects

affecting substantial rights may be noticed although they were not brought to the

attention of a court.” State v. Nelson, 1998 SD 124, ¶7, 587 NW2d 439, 443 (citing

SDCL 23A-44-15 (Rule 52(b))).

[¶46.] “We invoke our discretion under the plain error rule cautiously and

only in ‘exceptional circumstances.’” State v. Robinson, 1999 SD 141, ¶17, 602

NW2d 730, 735 (quoting Nelson, 1998 SD 124, ¶8, 587 NW2d at 443). “Plain error

requires (1) error, (2) that is plain, (3) affecting substantial rights; and only then

may we exercise our discretion to notice the error if (4) it ‘seriously affect[s] the

fairness, integrity, or public reputation of judicial proceedings.’” Id. (quoting

Nelson, 1998 SD 124, ¶8, 587 NW2d at 443) (alteration original). When plain error

is alleged, the defendant bears the burden of showing the error was prejudicial.

Nelson, 1998 SD 124, ¶7, 587 NW2d at 443 (citations omitted).

[¶47.] Bowker cites United States v. Moreno, 233 F3d 937 (7thCir 2000) and

United States v. Thame, 846 F2d 200 (3dCir 1988) as a basis for reversal of her

conviction. However, these cases do not aid Bowker’s argument on this issue, and if

anything, lend support for affirmance. The defendant in Moreno alleged that

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testimony by a government witness pertaining to an initial consent to warrantless

search and subsequent revocation of that consent was improperly allowed. 233 F3d

at 940. The court observed that the government may not refer to a defendant’s

post-arrest silence or invocation of Fifth Amendment privilege, id. at 941 (citing

Doyle v. Ohio, 426 US 610, 96 SCt 2240, 49 LEd2d 91 (1976); Griffin v. California,

380 US 609, 85 SCt 1229, 14 LEd2d 106 (1965)), and that the rule is extended by

many jurisdictions to implicate the Fourth Amendment arising from a defendant’s

refusal to grant warrantless entry. Id. However, the court considered this

proposition arguendo in order to affirm the judgment below on the strength of

harmless error based on the overwhelming evidence pointing toward the

defendant’s guilt. Id.

[¶48.] Thame, like the instant case, raises an issue of plain error based on

statements made by the government during closing argument in regard to the

defendant’s refusal to submit to a warantless search of a baggage item. 846 F2d at

204. While the court decided that the holding in Griffin should be extended to the

Fourth Amendment, id. at 207, it affirmed the judgment concluding that since there

was overwhelming evidence pointing towards guilt, the government’s remarks had

no impact on the jury deliberations. Id. at 207-08.

[¶49.] With respect to the instant case, while we do not condone the kind of

prosecutorial conduct evinced by these remarks, we conclude that given the

overwhelming evidentiary support for the jury’s verdict, Bowker has not satisfied

her burden of showing plain error, affecting a substantial right that seriously

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affected the fairness or integrity of her trial or the public reputation of judicial

proceedings in general.

[¶50.] For all the foregoing reasons, we affirm.

[¶51.] SABERS and KONENKAMP, Justices, concur.

[¶52.] ZINTER, Justice, concurs with a writing.

[¶53.] MEIERHENRY, Justice, dissents.

ZINTER, Justice (concurring).

[¶54.] I concur, except that with respect to Issue 2, the questioning went

beyond general on-the-scene questioning. Nevertheless, the trial court’s findings of

historical fact regarding Bowker’s custodial status were not clearly erroneous, and

the trial court did not err in concluding that suppression was not required.

MEIERHENRY, Justice (dissenting).

[¶55.] I dissent on issue two and would reverse the trial court’s denial of

Bowker’s motion to suppress. I agree with the majority that “Buteyn’s initial

question to Bowker when he encountered her while coming up the stairs – i.e.

whether she lived in the apartment – can be construed as a ‘general on-the-scene’

question in furtherance of the fact-finding process.” Supra ¶35. However, I

disagree that Leach’s and Buteyn’s subsequent questions to her “can be similarly

construed.” Id. The audio from the videotape of the alleged well-being check 7 along

7. Although the majority says that the videotape was not offered into evidence for

the second suppression hearing and should not be considered, the videotape

actually was part of the entire record that the court clearly considered for both

the original motion to suppress evidence and the second motion to suppress

(continued . . .)

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with the testimony of the officers, establish that Bowker was in custody and

interrogated without first being made aware of her Miranda rights.

[¶56.] A review of the record supports Bowker’s claim that a reasonable

person in her situation would have considered herself in custody. Before the

officers entered the apartment, Bowker identified herself and protested that the

police could not enter the apartment without a warrant. The officers ordered her to

step back and not to move about while they entered to look around. Before

inquiring as to her well-being, one of the officers asked her, “Why is Shaun out on

the roof?” and, “What’s up with the broken glass out there?” Bowker immediately

________________________

(. . . continued)

statements. The denial of both the suppression of evidence and statements

were drafted together on a single order, which stated:

the [c]ourt having heard and considered the evidence and

arguments of the parties together with the files and the records

herein and having made and entered Findings of Fact and

Conclusions of Law; now, therefore IT IS HEREBY ORDERED

that Defendant’s Motion to Suppress Re; Search of Residence

and Motion to Suppress Statements be and the same here are

denied.

Both denials utilized the same findings of fact and conclusions of law.

Additionally, Bowker questioned a witness about the videotape and argued

portions of it in the second hearing. No objections were made by the State.

Clearly, the videotape was before the court and considered when the order was

entered. Consequently, this Court must consider the same evidence for this de

novo review.

The audio of the officers’ discussion (apparently between Buteyn to

another officer) regarding whether they had enough information to enter the

apartment progressed as follows: “I mean the cut [on Corbine’s finger] is old;

but, these guys just said he was up [on the roof]. And [Corbine] said he was up

there cleaning the glass up.” This exchange suggests that the officers knew the

wound on Corbine’s finger was old at the time of the well-being check, not

“fresh” as the trial court and the majority opinion described it. Moreover, the

audio also reveals the officers discussing whether or not to arrest Corbine.

They settled on cuffing him and checking out the apartment before arresting

him.

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identified herself to the officers and told them she lived in the apartment with

Shaun (Corbine). Within the first few seconds after entering the apartment, the

officers had Bowker’s name, had corroborated Corbine’s story about living in the

residence and had established that no one in the apartment was injured or in

danger. Nevertheless, the officers still restrained Bowker’s movement. Officer

Phillips testified that Bowker would not have been permitted to “walk around,”

even after the well-being check. One of the officers ordered her not “to get crabby

and reach for something.” To which she immediately replied, “I am not going to do

nothing crazy. Fuck! Fuck!” Consequently, Bowker remained seated on the couch

in the snug 8’ by 12’ living room during the entire time the officers were in the

apartment. Officer Phillips supervised her at all times.

[¶57.] Officer Phillips explained his role in securing Bowker’s movements and

that she was not free to move about even after the “well-being” check. He described

the situation as follows:

A: . . . They [Officers Leach and Buteyn] would go

downstairs and talk to a male individual. I would just

basically stand in the living room [watching Bowker] for

security reasons.

***

Q: And were other officers [Officers Leach and Buteyn] down

there with Mr. Corbine?

A: At the bottom of the stairs outside, they were.

Q: So you were basically just there in a security capacity?

A: Yes.

***

Q: And in that capacity would you have let somebody, say

walk around?

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A: No.[ 8 ]

[¶58.] After the officers found the meth pipes in the adjoining bedroom and

after they arrested Corbine, their attention turned to Bowker. Officer Leach, with

the meth pipes in his hands, then began to question Bowker. Leach explained to

her that the meth pipes were in plain view on the bed, chair and bedstand. He

8. The majority states that the fact finder “could reasonably have determined

that Phillips’s reference to being alone with Bowker and restricting her

movements in the apartment was in the context of his supervising her for

officer safety while Buteyn and Leach were conducting the well-being check

inside the bedroom, since under no other circumstances would Phillips have

been present for ‘security reasons.’” Supra ¶30 n3. Although I agree that

Phillips claimed his sole purpose for supervising Bowker was for “security

reasons,” I strongly disagree that the fact finder could reasonably fabricate a

sequence of facts contrary to those argued or presented. Phillips

unequivocally testified to the following:

State (cross-examination): Officer Phillips, do you have a clear

distinct recollection of being alone with Ms. Bowker in that

apartment –

Phillips: Yes.

State: At the time when both Officer Leach and Officer Buteyn

were downstairs and outside talking to Mr. Corbine?

Phillips: Yes.

It is not reasonable for the trial court, nor the majority, to independently

concoct a factual situation that contradicts the plain facts of this case without

substantiating a reason for the contrary finding.

Although the majority claims that the dissent relies chiefly on the

videotape for this writing, the officers’ testimonies, such as the quoted

portion above, are the foundation for this special writing. Indeed, the video

recorded only a small fraction of the interrogation and captured no useful

picture evidence. It is only useful to recreate a truthful tone of the officers’

entry into the apartment and the following few minutes inside, prior to the

custodial interrogation. With regard to the custodial interrogation analysis,

the testimony is where the substantive analysis begins.

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wanted to know if the pipes belonged to her, if she slept in the bedroom and if she

knew that the pipes were in the bedroom. 9 He testified as follows:

A. I asked her, it would have been before, when I was

upstairs originally, I did ask her, I told her I found three

pipes in the bedroom. I showed her the pipes. I asked her

if they were hers. She stated they were not hers but she

had seen them before.

Q. Seen them before, correct?

A. Correct.

Officer Leach testified that he also asked her questions about the living

arrangements in the apartment as follows:

I did talk with Ms. Bowker. I asked her first of all her name.

She stated her name was Frankie Bowker. Also asked her if she

lived at this apartment. She stated she did not. Gave me an

address on East 20th Street. She said that was where she lived.

I did ask Ms. Bowker how often she does stay at the apartment

here. She stated to me she stayed in the apartment four to five

nights a week. I asked her if her children stayed with her. She

stated when her children stay with her, she does stay out in the

living room with them. I then asked her if she occasionally

stays in the bedroom. She stated when her children were not

with her, she does sleep in the bedroom.

While the officers questioned her, one can hear the officers on the audio actually

having a discussion, apparently in front of her, about arresting her.

[¶59.] To determine if Bowker was in custody, we have to apply the test of

“whether, under the totality of the circumstances, a reasonable person would not

9. During the “well-being” investigation, the audio from the officers’ on-person

microphone cut off at two different times for a substantial period. The first

audio void occurred immediately after the officers determined they would

arrest Corbine. The second large chunk of missing audio corresponds with

the complained-of questioning. Therefore, the only rendition of the officers’

questioning of Bowker is reconstructed from the officers’ testimony at the

suppression hearing and trial.

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believe [herself] free to go.” State v. Corder, 460 NW2d 733, 736 (SD 1990) (citing

Terry v. State of Ohio, 392 US 1, 88 SCt 1868, 20 LEd2d 889 (1968)). We have said

that to distinguish between custodial and non-custodial interrogations it is

important to analyze the “nature of the interrogator; nature of the suspect; time

and place of the interrogation; nature of the interrogation; and purpose of the

investigation.” State v. Bartunek, 323 NW2d 121, 124-25 (SD 1982) (citation

omitted).

[¶60.] Here, an analysis of the circumstances indicates that most of the

questioning was in a custodial setting and that a reasonable person would not have

believed she was free to go. Bowker first encountered the officers prior to 7:00 a.m.,

when the officers demanded entry into the residence without consent or a

warrant. 10 Barging into the residence, the officers never explained to Bowker the

10. Both Officers Buteyn and Leach testified at the hearings and the trial that as

they initially ascended the stairs to the apartment, Bowker appeared at the

top landing and asked if they had a search warrant. The prosecutor used her

question about the search warrant in his closing argument as follows:

There is only one reason why a person would say that. That’s if

they had guilty knowledge of what was within. They have a

desire to protect the drug paraphernalia and substances that are

within. They know about them. They are exercising dominion

and control over them by preventing the police from seeing

them.

I don’t think you can’t be here without a search warrant

would be the first thing that would come out of anybody else’s

mouth. You might say what are you doing. You might say

what’s going on. You might say has something happened to my

child or my folks. You might say all kinds of things but unless

you have a reason or unless you are a constitutionalist, a

constitutional scholar and you have no evidence to believe she is,

the first thing out of your mouth is not going to be you can’t be

here without a search warrant. That’s what a drug user would

(continued . . .)

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purpose for the abrupt invasion. The officers ordered Bowker to step back and not

move. Once back in the apartment, the officers ordered her to sit on the couch and

“not to get crabby and reach for something.” The officers continuously supervised

her while they searched the apartment. During this entire time, she was not free to

move around or leave. She observed the officers discover drug paraphernalia from

Corbine’s bedroom. After this discovery, one of the officers yelled out the window to

a fourth officer on the ground to arrest Corbine. At this time, the officers split up;

Buteyn went downstairs to interrogate Corbine while Leach remained upstairs to

interrogate Bowker. Phillips remained in the living room with Leach and Bowker

for “security purposes.” With the drug paraphernalia held in front of Bowker,

Leach interrogated Bowker about her knowledge and possible ownership of the drug

paraphernalia. After a substantial amount of interrogation, Leach left Bowker,

with Phillips still “supervising” her, and went downstairs to question Corbine and

confer with Buteyn. Buteyn then returned to the apartment to interrogate Bowker

further, at which point she was eventually arrested.

[¶61.] The questioning went beyond mere on-the-scene questioning or inquiry

into her well-being. The questioning occurred substantially after the officers were

aware that no one in the apartment was in danger or injured. Moreover, the

interrogation happened after the officers had arrested Corbine. The officers

remained in the apartment without consent “supervising” and questioning Bowker

________________________

(. . . continued)

say to a police officer. That’s not what a normal innocent citizen

would say to a police officer under those circumstances.

The defense made no objection.

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about her sleeping habits, residence, woman’s clothing and toys found near the drug

paraphernalia and the drug paraphernalia itself. The questioning clearly was

targeted at soliciting an admission from Bowker. We have said that when

questioning goes beyond the purpose of general fact finding and is used to elicit a

culpable response, Miranda warnings are required. State v. Myhre¸ 2001 SD 109,

¶¶20-21, 633 NW2d 186, 190.

[¶62.] At no time did the officers inform Bowker of her Miranda rights, even

though they were discussing whether to arrest her. A reasonable person in

Bowker’s situation would have considered herself in custody. Therefore, based on

the facts and circumstances surrounding the interrogation, I would conclude that

Bowker was in custody and that the officers should have given Bowker her Miranda

rights before they questioned her concerning whether she had knowledge of the

drugs and paraphernalia. Ultimately, her answers were used by the State to prove

she had knowledge. Her statements should have been suppressed as the fruit of an

unlawful custodial interrogation.

[¶63.] The State claims that even if the trial court erred by not suppressing

Bowker’s statements, the error was harmless. “Erroneous admission of statements

obtained in violation of Miranda may constitute harmless error when there remains

overwhelming independent evidence of guilt.” State v. Stanga, 2000 SD 129, ¶20

617 NW2d 486, 491 (citing Arizona v. Fulminante, 499 US 279, 306, 111 SCt 1246,

1263, 113 LEd2d 302, 329 (1991); SDCL 15-6-61; SDCL 23A-44-14 (Rule 52(a))). We

must be able to say that the error was harmless beyond a reasonable doubt. State

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v. Zakaria, 2007 SD 27, ¶19, 730 NW2d 140, 146 (citations omitted). We have

explained harmless error as follows:

The harmless error doctrine preserves the essential purpose of

criminal trials: to decide a defendant’s guilt or innocence. The

rule promotes public respect for the criminal process by focusing

on the underlying fairness of the trial rather than on the

virtually inevitable presence of immaterial error. The harmless

error rule governs . . . provided the court is able to declare a

belief beyond a reasonable doubt that the error was harmless

and did not contribute to the verdict obtained. [H]armlessness

must . . . be determined on the basis of the remaining evidence.

Id. (citations omitted). When analyzing the effect the erroneously admitted

evidence had on the trial, we need to consider the elements of the offense along with

the other evidence. Id.

[¶64.] The court instructed the jury that the State had to prove that Bowker

“knowingly [had] been in possession of methamphetamine” and “knowingly used or

possessed with intent to use, drug paraphernalia.” The court further instructed

that “the mere fact that a person is near a location or had access to a place where

methamphetamine is found is not, by itself, sufficient proof of possession.” Crucial

to the State’s case was proving that Bowker knowingly possessed illicit drugs and/or

paraphernalia.

[¶65.] As evidenced by the prosecutor’s comments to the trial court and the

jury, Bowker’s statements to the police played an important part in that proof.

When settling instructions, the prosecutor asked the court to instruct the jury

concerning admissions made by a defendant other than during the trial. The

instruction read in part as follows:

A statement made by a defendant other than at his trial

may be an admission.

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An admission is a statement by a defendant admitting

one or more of the facts at issue. It is not sufficient by itself to

prove guilt of the crime charged, but it may prove one or more of

the elements of the crime charged.

In support of the court giving the instruction, the prosecutor told the court, “I think

the things [Bowker] said to the police are statements. They make up a good bit of

probably the State’s case or the State’s argument.” Defense counsel objected to the

instruction, and the court asked the prosecutor, “what statement would be an

admission?” The prosecutor answered, “Well, [Bowker] had stayed there 10 to 14

nights in a row. That she had possessions there in the premises. That she had seen

those three pipes before.”

[¶66.] Additionally, the prosecutor acknowledged that the main issue for the

State in this case was proving that Bowker had knowledge. He said in his closing

argument to the jury:

If there is an issue in the case which you could detect from the

evidence offered by the defense as well as the cross examination

of State’s witnesses, that would be the element of knowing

possession of a controlled substance.

As to knowing, the knowing aspect of the possession, I

submit to you that when the defendant told the officers that

morning that the pipes weren’t hers but she had seen them

before, that is proof of her knowledge of those pipes. If you take

that statement, that admission in the context of all the rest of

the evidence in the case, it becomes an important admission, an

important element of knowledge.

The prosecutor lists all the other pieces of evidence that showed that Corbine was

involved with drugs and then again used Bowker’s statements to argue that she had

knowledge:

I submit to you you couldn’t be within this house without

knowing what was going on there. You certainly couldn’t be a

girlfriend of Mr. Corbine for 90 days or four months, stay there

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four or five nights per week, stay there for 10 to 14 nights in a

row and not know what was going on.

***

She admitted to the officers she sometimes slept in that

bedroom. She certainly had access to it.

***

So again, that State wasn’t required to prove use or ownership.

The State was required to prove possession and the knowing

exercise of dominion or control. She was in possession of the

objects in question. She knew of their character and that’s

why the first thing out of her mouth when she saw the cops

was you can’t be here without a search warrant or words to

that effect.

Then in rebuttal, the prosecutor summed up with the following:

She admitted she had seen the pipes before. She knows he is an

addict. And the first words out of her mouth are you can’t come

in here without a search warrant. I submit to you that that is

strong evidence of consciousness, knowing possession of the

illegal controlled substances within those premises.

[¶67.] Without Bowker’s statements to the police, the evidence against

Bowker is not overwhelming. Besides her admissions, the other evidence against

her consists mainly of her proximity to Corbine’s drugs and paraphernalia. The

officers found her and her children staying in Corbine’s apartment where the

evidence of drugs (most of the indicia of its presence was in the closet) and drug

pipes were found. The officers evidently did not observe any signs that she had

been using nor did she admit to using. Consequently, most of the State’s evidence

of her “knowing possession” depended on three of her answers to the officers’

questions. First, the State placed a substantial amount of emphasis on her

admission that “she had stayed there 10 to 14 nights in a row.” Second, the State

relied heavily on the fact that she admitted that her possessions were in close

proximity to the illicit items. Third, the State heavily touted Bowker’s admission

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that she had seen the three meth pipes in the residence. All of these

statements/admissions derived from the custodial interrogation of Bowker.

[¶68.] Corbine testified in Bowker’s defense and explained that the only

reason the meth pipes were in plain view was because he was rearranging his room

that morning while Bowker slept in the living room with her children. He further

testified that other paraphernalia was always hidden from Bowker. Corbine also

claimed to be unaware of Bowker’s knowledge of the drug paraphernalia. Although

the State can argue that the jury discounted Corbine’s testimony because he was a

convicted drug felon, his testimony was before the jury.

[¶69.] Given the facts in this case, I am unable “to declare a belief beyond a

reasonable doubt that the error was harmless and did not contribute to the verdict

obtained.” See Zakaria, 2007 SD 27, ¶19, 730 NW2d at 146 (citations omitted).

This case should be reversed and remanded for a new trial with the evidence

derived from the custodial interrogation suppressed.

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