alibi witness who was known to defendant but was unavailable at time of trial, although no attempt at compulsory process was apparently made, found not to be newly discovered evidence
How later courts described this case
- alibi witness who was known to defendant but was unavailable at time of trial, although no attempt at compulsory process was apparently made, found not to be newly discovered evidence
- The right to effective assistance of counsel may be a substantial right recognized under the plain error rule if ineffectiveness can be shown.
- Morgan and Foshiem, JJ. dissenting
Written by the judges who cited it.
The opinion
FOSHEIM, Justice
(dissenting).
In my opinion the defendant was denied his constitutional rights by the admission into evidence of his incriminating statement.
In Pinto v. Pierce, 389 U.S. 31 , 88 S.Ct. 192 , 19 L.Ed.2d 31 (1967), the court held that a defendant’s constitutional rights were not violated when a voluntariness hearing was held within the presence of the jury since: (1) the defendant’s trial counsel consented to such procedure; and, (2) the trial judge found the admission(s) voluntary. This is a narrow holding and not applicable to the facts of the case before us.
The United States Supreme Court stressed in Pinto the fact that the defense counsel, after pointed questioning by the trial court, gave his express consent twice to the issue of voluntariness being tried in the presence of the jury. In light of the fundamental constitutional rights at stake here, and the defendant’s claim that he was represented by incompetent counsel (which claim appears to have merit), I cannot agree with the majority that a failure to request a voluntariness hearing outside the presence of the jury is the same as expressly consenting to such a hearing in the jury’s presence. A fair reading of Pinto does not qualify State v. Thundershield, 83 S.D. 414 , 160 N.W.2d 408 (1968), to this extent.
I cannot agree with the majority’s conclusion that when the trial court admitted the defendant’s statement into evidence it “impliedly ruled” the statement was voluntary. Both Pinto and Thundershield are rooted in the United States Supreme Court decision of Jackson v. Denno, 378 U.S. 368 , 84 S.Ct. 1774 , 12 L.Ed.2d 908 (1964), which granted a defendant the right to have the issue of voluntariness decided solely by the court. The Jackson court stated:
The procedures used in the trial court to arrive at its conclusions on the coercion issue progressively take on added significance as the actual measure of the protection afforded a defendant under the Due Process Clause of the Fourteenth Amendment against the use of involuntary confessions. These procedures must, therefore, be fully adequate to insure a reliable and clear-cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which the voluntariness issue may depend.
378 U.S. at 391 , 84 S.Ct. at 1788 , 12 L.Ed.2d at 924 .
This requirement of a clear-cut determination based on findings of fact has not been obviated by Pinto, Thundershield, or any other case I have read on this issue. In fact, this court, in State v. Stumes, 90 S.D. 382 , 241 N.W.2d 587 (1976), stated that its review of the defendant’s claim that certain incriminating statements were improperly admitted by the trial court was “seriously hampered, if not made impossible” by the failure of the trial court to make a determination on the issue of voluntariness. Id., 241 N.W.2d at 591 . In Stumes we did not infer a favorable finding from the trial court’s admission of the incriminating statement into evidence. We remanded Stumes for findings of fact and conclusions of law *338 on the voluntariness issue, ordering a new trial if the admission was found to be involuntary, or an affirmance if the admission were found voluntary. In Stumes we concluded:
In either event the trial court shall make the ‘determination,’ as suggested by this court in State v. Thundershield, supra, reiterated more explicitly in State v. Kiehn, supra, and which we now hold is required. The determination requiring the entry of findings of fact and conclusions of law we equate with a ‘decision.’
Id., 241 N.W.2d at 592 (emphasis added).
The majority states that Stumes is not controlling because the defendant in Stumes made a motion to suppress while in this case there was only a verbal objection to admission of the statement into evidence. This procedural distinction is irrelevant. In Jackson the court stated: “Equally clear is the defendant’s constitutional right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession.” 378 U.S. at 377 , 84 S.Ct. at 1780-1781 (citation omitted) (emphasis added).
The Pinto decision predates our Thunder-shield decision which makes me question the majority statement that Pinto qualified Thundershield . I believe this court correctly decided Thundershield and that its requirement that suppression hearings must be made in an independent hearing should stand. My reasons for adhering to Thun-dershield are well stated in Justice Fortas’ concurrence in Pinto and in Jackson at 389 n. 16, 84 S.Ct. at 1787 n. 16.
Accordingly, since the defendant was not afforded a suppression hearing that complied with the requirements of Thunder-shield and Stumes , I would remand for such a hearing. A new trial should be ordered if the defendant’s admission is found involuntary, or his conviction affirmed if his admission is found voluntary.
I am authorized to state that Justice MORGAN joins in this dissent.