# State v. Tuttle

> South Dakota Supreme Court · July 31, 2002 · 650 N.W.2d 20

URL: https://www.frixlaw.com/law-library/cases/9515008

## Case

- **Full name:** STATE of South Dakota, Plaintiff and Appellee, v. Thomas John TUTTLE, Defendant and Appellant
- **Court:** South Dakota Supreme Court
- **Decided:** July 31, 2002
- **Citations:** 650 N.W.2d 20; 2002 SD 94; 2002 S.D. LEXIS 108
- **Precedential status:** Published
- **Opinion:** Concurrence by Gilbertson
- **Judges:** Konenkamp, Amundson, Gilbertson, Sabers, Zinter
- **Cited by:** 48 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

GILBERTSON, Chief Justice
(concurring in part and dissenting in part).
[¶ 38.] I would not abandon this Court’s traditional “totality of the circumstances” test in favor of a per se rule that would render all statements involuntary when they appear to result from what the defendant subjectively perceives to be a threat. There is a clear distinction between making threats or false promises to coerce a defendant’s confession and simply apprising the defendant of all the facts so that he may make his decision of whether to cooperate in a knowing and intelligent manner. There is also a significant difference between remaining silent and lying to police to alleviate suspicion. Accordingly, I would affirm the trial court’s admission of Tuttle’s statement.
[¶ 39.] The essence of this inquiry is whether, under the totality of the circumstances, Tuttle’s confession was coerced by the officer’s statement. This Court claims the officer overcame Tuttle’s will when he informed Tuttle “I’m gonna have to write it up that you’re not cooperating, you’re being a real jerk about it.” However, the Court takes this statement out of context. The officer’s entire comment, in response to Tuttle’s repeated denials that he had anything to do with the stabbing, was as follows:
O: Here’s the problem T.J., okay. Here’s the problem. And this is — I *37 can’t make ya any deals. I can’t make ya any promises. But this is the way it’s gonna happen, okay. Everybody that’s there — You know, I don’t think there’s a big conspiracy to get you in trouble, okay. But the facts are the facts as what happened. I can write it up one or two ways. I can say T.J. doesn’t like this guy. He’s beat up his mother, he’s caused a lot of problems.’ And for whatever reasons, ya accidentally stabbed this guy. Or I’m gonna have to write it up that you’re not cooperating, you’re being a real jerk about it. T.J.: Okay, I stabbed him. Whatever. Shit.
The officer’s statement was not a threat, which overcame Tuttle’s free will to remain silent. 12
[¶ 40.] First, Tuttle’s claim that he was threatened with more severe punishment if he exercised his Fifth Amendment rights is not plausible. He could not have understood the officer’s comment about reporting Tuttle’s failure to cooperate as a punishment for exercising his right to remain silent. This Court’s opinion acknowledges that Tuttle had already voluntarily waived that right in speaking to the officer, well before the subject statement was made. In context, the remark was merely a warning of the consequences to Tuttle if he were to lie to the police. 13 There is no protected Fifth Amendment right to lie, only a right to remain silent. United States v. Apfelbaum, 445 U.S. 115, 117 , 100 S.Ct. 948, 950 , 63 L.Ed.2d 250, 254 (1980) (holding “proper invocation of the Fifth Amendment privilege against compulsory self-incrimination allows a witness to remain silent, but not to swear falsely.”).
[¶ 41.] Moreover, a defendant cannot be said to have made a knowing, intelligent and voluntary decision without being apprised of the consequences of his actions. See, e.g., Deets, 523 N.W.2d at 183. In Deets, the court held:
[C]oereive conduct does not occur when, as here, an officer, without promising leniency, tells a defendant that if he or she does not cooperate the prosecutor will look upon the case differently. In either case, the officer does nothing other than predict what the prosecutor will do, without making a promise one way or the other.
Id. In Deets, the court determined the detective’s statement was “a reasonable prediction,” and “not a threat of penalty.” Id. at 183, n.2. Likewise, the officer’s statement herein of “the natural consequences” of Tuttle’s choice not to cooperate no doubt influenced his decision to confess, but it could not have operated retroactively to induce Tuttle’s waiver of his right to remain silent. Nor could this apprisal be deemed overly coercive. See United States v. Ballard, 586 F.2d 1060, 1063 (5thCir.l978) (holding it is proper, *38 under certain circumstances, to “tell[ ] the appellant in a noncoercive manner of the realistically expected penalties.”); Commonwealth v. Damiano, 14 Mass.App.Ct. 615 , 441 N.E.2d 1046, 1050 (1982) (noting “a certain degree of coercion (in the sense of psychological or emotional pressure) is endemic to any system which asks a person to forgo certain rights in order to be spared certain penalties.”).
[¶ 42.] Finally, today’s ruling will have a chilling effect upon the ability of law enforcement to elicit confessions. “It is a fact of life for law enforcement that suspected criminals do not often readily volunteer incriminating evidence.” State v. Frazier, 2001 SD 19, ¶ 23 , 622 N.W.2d 246, 256 . Under this. Court’s ruling, law enforcement officers will be forbidden from uttering any words of consequences, for fear a defendant’s confession will become involuntary. But they are also forbidden to withhold information that may cause a defendant’s confession to be unknowing and, again, involuntary. This “catch 22” position will severely limit law enforcement capabilities in solving crimes. Indeed, if we are to take the Supreme Court’s 1964 ruling in Malloy to its most literal conclusion, as this Court advocates today, even plea bargains would be unconstitutional. See 378 U.S. at 7, 84 S.Ct. at 1493, 12 L.Ed.2d at 659.
[¶ 43.] Accordingly, I dissent.
[¶ 44.] I also join the special writing of Justice Zinter.
. Moreover, this exchange took place only twelve minutes after the officer read Tuttle a Miranda warning.
. First, when confronted with Terry's statement that Tuttle had stabbed him, Tuttle maintained Terry could not be trusted. Tuttle claimed that when his mother had previously stabbed Terry, Terry had lied to police resulting in Tuttle's brother's incarceration. Tuttle declared the same thing was happening to him. Next, Tuttle avowed he could not have done the stabbing because he was outside fighting with another man when it happened. Finally, when confronted with the statements of his mother and grandmother, Tuttle claimed they were lying to protect Terry because he was "Mom's boyfriend." After emphatically and repeatedly claiming he had nothing to do with the stabbing, the officer said “You've got yourself in a jam here. You're not being honest with me and you know it.” In fact, Tuttle waived his right to remain silent only because he mistakenly believed he could lie his way out of trouble.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9515008. Public record. Not legal advice.