Petition for Writ of Certiorari — Massachusetts Department of Public Welfare v. United States

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No. |, JUN 4 1998

| GrFGE OF THe GLAM

In The

Supreme Court of the United States

October Term, 1992

DEBRA SUE JENNER,

Petitioner,

Vs.

JAMES SMITH, Superintendent

Springfield Correctional Facility, and

MARK BARNETT, Attorney General,

State of South Dakota,

Respondents.

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

a‘

PETITION FOR WRIT OF CERTIORARI

James Martin Davis 10927

500 Metropolitan Federal Plaza

Omaha, Nebraska 68102

(402) 341-9900

Counsel of Record

for Petitioner

‘\ ~/

‘ \

QUESTIONS PRESENTED FOR REVIEW

I. WHAT IS THE CURRENT LEGAL MEANING FOR

PSYCHOLOGICALLY INVOLUNTARY?

QUESTION:

Are admissions “voluntary” as a matter of constitu-

tional law when

1. They were obtained after an eight hour unre-

corded interrogation;

2. The police admitted to using deceit, psychologi-

cal trickery and appeals to religion; and

3. They terminated the interrogation only when

they believed the defendant was on the verge of

a psychological breakdown?

Il. SHOULD THE LENGTH OF AN INTERROGATION

TRIGGER THE MIRANDA REQUIREMENT?

QUESTION:

Are these same statements admissible as a mat-

ter of constitutional law when

1. They are the fruits of an eight hour station house

interrogation; and

2. The Defendant was never advised of her rights

under the Miranda decision at any point?

QUESTIONS PRESENTED FOR REVIEW - Continued

III.

ARE THERE SEPARATE STATE VS. FEDERAL

STANDARDS ON APPEAL FOR REVIEWING THE

CONSTITUTIONAL QUESTION OF “VOLUNTARI-

NESS”?

QUESTION:

In resolving the federal constitutional question

of “voluntariness” should a state supreme court be

permitted to use the less stringent standard of a

“review on the record” rather than the more strin-

gent standard of “plenary review” which is followed

by the federal courts.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW........... i

BOM I MURR RURPUIR EOE snc nen ccccccsscncscsccces Vv

a ace h GS 6.) 55.000 ¥4 6 08 ve oss eens 2

JURISDICTIONAL STATEMENT ................... 2

se ee | dS: Se 3

REASONS FOR GRANTING WRIT................. 11

I. THE CONSTITUTIONAL QUESTION OF VOL-

ee eee 11

A. There is currently no “bright line rule” as to

when admissions obtained by psychological

pressure become “involuntary” as a matter of

law, and to avoid the potential for constitu-

tional abuse in the future there should be... 11

B. As a matter of public policy and constitu-

tional law, the test for finding statements

“involuntary” should be no greater than the

tests for invalidating a Last Will and Testa-

ment because of undue influence, a contract

because of duress, or a guilty plea because it

was not knowingly, intelligently and volun-

tarily made; yet under current law it is a

much greater burden to meet............. 11

C. Asa matter of constitutional law and public

policy admissions obtained during an inter-

rogation which is terminated because the

defendant is believed to be on the verge of a

psychological breakdown should be consti-

tutionally inadmissible.................... 11

II.

III.

TABLE OF CONTENTS - Continued

EXTENDING THE MIRANDA RIGHTS........

Despite the fact that an interrogation may

originally be non-custodial when it is con-

ducted inside a police station for eight

hours without a lawyer, the police should

be required, as a matter of law, to advise an

unsophisticated defendant of her Fifth and

Sixth Amendment rights under Miranda...

Unless a defendant is advised of her Mir-

anda rights or clearly demonstrates that she

is aware of those rights, any statements

made by the defendant in a lengthy station

house interrogation should be inadmissible

because the defendant without knowing her

rights cannot knowingly and intelligently

ok eer ee er oT eee

SEPARATE STANDARDS FOR REVIEWING

FEDERAL CONSTITUTIONAL STANDARDS ..

To avoid a dual system of justice, state

Supreme Courts should be required to

review on appeal federal constitutional

questions concerning the voluntariness of

statements using a “plenary” review, as do

the federal courts, and not a “review on the

Py rere ee rer ere eT ers ee rere

em PTT TT eee ee ee ree

TABLE OF AUTHORITIES

Page

CAsEs:

Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336,

Be Me OF CUI 5 an vinx dau a uve nucdcncvncace 14

Miller v. Fenton (Fenton II), 474 U.S. 104, 106 S.Ct.

445, 88 L.Ed.2d 405 (1985)........................ 28

Russell v. Jones, 886 F.2d 149 (8th Cir. 1989)......... 27

Schneckloth v. Bostamonte, 412 U.S. 218, 93 S.Ct.

2041, 36 L.Ed.2d 854 (1973).................... 14, 15

U. S. v. Carter, 844 F.2d 37 (8th Cir. 1989)........... 26

Withrow v. Williams, 1993 WL 119753................ 22

Unitep States ConsTITUTION:

U. S. Constitution, Fifth Amendment......... 19, 24, 26

U.S. Constitution, Sixth Amendment ......... 19, 24, 26

STATUTES:

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er OE ho oii Vane Lense one caseesueuanceads 2

MISCELLANEOUS:

The Spanish Inquisition, Cecil Roth, W. N. Norton,

EE 4S) Cevkny <eivwess icuhess cence ve

No.

In The

Supreme Court of the United States

October Term, 1992

DEBRA SUE JENNER,

Petitioner,

VS.

JAMES SMITH, Superintendent

Springfield Correctional Facility, and

MARK BARNETT, Attorney General,

State of South Dakota,

Respondents.

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioner, Debra Sue Jenner, respectfully prays that a

Writ of Certiorari issue to review the judgment and opin-

ion of i.e United States Court of Appeals for the Eighth

Circuit, entered in the above-entitled proceeding on Janu-

ary 5, 1993.

OPINIONS BELOW

The opinion of the Court of Appeals for the Eighth

Circuit has not been reported. It is reprinted in the

Appendix hereto, p. 104, infra.

The Memorandum Opinion and Order of the United

States District Court for the District of South Dakota has

not been reported. It is reprinted in the Appendix hereto,

p. 91, infra.

The opinion of the Supreme Court of South Dakota is

reported at 451 N.W.2d 710, and is reprinted in the

Appendix hereto, p. 37, infra.

The findings of fact, conclusions of law and order

regarding suppression motions of the Court of South

Dakota for the Third Judicial Circuit has not been

reported. It is reprinted in the Appendix hereto, p. 23,

infra.

The memorandum opinion of the Circuit Court of

South Dakota for the Third Judicial Circuit has not been

reported. It is reprinted in the Appendix hereto, p. 1,

infra.

JURISDICTIONAL STATEMENT

Invoking federal jurisdiction under 28 U.S.C. § 2254,

the Petitioner brought this suit in the Southern District of

South Dakota. On November 27, 1991, the Southern Dis-

trict entered a judgment of dismissal. See. p. App-91,

infra.

On Petitioner’s appeal, the Eighth Circuit on January

5, 1993, entered an opinion affirming the Southern Dis-

trict’s Judgment of Dismissal. See p. App-104, infra. No

Petition for Rehearing was sought.

On March 26, 1993, Justice Blackmun ordered that the

time for filing this Petition for Writ of Certiorari be

extended to and including June 4, 1993.

The jurisdiction of this Court to review the judgment

of the Eighth Circuit is invoked under 28 U.S.C. § 1254(1).

STATEMENT OF THE CASE

On March 15, 1988, Debra Sue Jenner, a young

mother, was convicted of Second Degree Murder arising

out of the death of her three and a half year old daughter.

A major portion of the Prosecution’s case against Debra

consisted of admissions she had made during an eight

hour station house interrogation and evidence that

flowed from those admissions.

Prior to trial, Debra timely contested the use of those

admissions on the ground that they were “involuntary”,

and because they were obtained without benefit of her

Miranda warnings.

She appealed her conviction to the Supreme Court of

South Dakota specifically raising the issues of the volun-

tariness of her statements and her failure to be Miran-

dized.

In a close decision characterized by two powerful

dissents, the South Dakota Supreme Court affirmed her

conviction. Two justices of that five member Court wrote

that they believed that Debra had been subjected to an

“intense psychologically coercive interrogation” while

under a great deal of “stress and trauma” and while she

had had little sleep; and that the use of these techniques

caused Debra “to break down emotionally.”

These justices also forcefully objected to the fact that

Jenner was never advised of her Miranda rights, and

stated that she could not have exercised her Miranda

rights because she had not been advised as to what her

rights were.

On May 16, 1990, she filed a Petition for a Writ of

Habeas Corpus in the United States District Court for the

District of South Dakota. After struggling with this case

for twenty-one (21) months, U. S. District Judge John

Jones denied the Petition for Habeas Corpus. However, in

his opinion, the judge indicated that because of the

lengthy interrogation, the fact that it took place at a

police station, and because of the failure of the investiga-

tors to advise Mrs. Jenner of her Miranda rights the case

presented “a very close question.”

Mrs. Jenner appealed the denial of her Petition for

Writ of Habeas Corpus to the Eighth Circuit where it was

briefed and argued. On January 5, 1993, the Eighth Cir-

cuit entered an order affirming Judge Jones’ Judgment of

Dismissal.

On Application to the United States Supreme Court,

Justice Blackmun, on March 26, 1993, extended the time

for filing this Petition for Writ of Certiorari to and includ-

ing June 4, 1993.

The issues throughout all these lower court proceed-

ings related to two questions: First, the voluntariness of

Mrs. Jenner’s alleged admissions; and, second, the admis-

sibility of those admissions despite the fact that she was

not advised of her Miranda rights.

THE VOLUNTARINESS ISSUE

At the time of her interrogation, Debra Jenner had

just lost her only daughter in a brutal and vicious murder.

Only two days after her daughter’s death, and on the

same day that she had just returned from the funeral

home after viewing her daughter’s body, she was asked

to come to the Public Safety Building to answer a “couple

of questions” (SH:18).

On the day of her daughter’s death, Debra had talked

with police on five separate occasions, and as a conse-

quence of all that had occurred, she did not sleep that

night (SH:167). When Debra went to the police station the

next day to answer questions, she unknowingly walked

into a non-stop, hostile and relentless interrogation. She

was interrogated in a room that measured 12’ x 14’, and

that contained one table, three or four chairs, a filing

cabinet, no outside windows and no clock or radio

(SH:35-36). She was immediately separated from her hus-

band.

The first officer who interrogated her accused her of

being untruthful and of being responsible for the death of

her daughter. Debra became very emotional and cried out

she didn’t do it - that she couldn’t have done it (SH:81).

Later, a second officer accused Debra of killing her

Lette

daughter (SH:68), which she denied. This officer repeat-

edly advised Debra that he did not believe her and made

further accusations against her which she denied each

time.

Debra had come into the police station at 1:30 p.m. on

April 6, 1987. By 4:00 p.m., the police still had not

obtained a confession so the first officer came back again

and for a third time she was repeatedly accused of being

responsible for the death of her daughter (SH:83).

This officer employed numerous methods of hostile

and psychologically sophisticated interrogation. He told

her that her son had said that she had spanked her

daughter, Abby, the night before she died, which was not

true (SH:84;87;174). He conjectured that if Debra’s hair

was found in Abby’s hands, it would not be good

(SH:87). He suggested that “there was a rational Debbie

and an irrational Debbie, and that the irrational Debbie

had killed her daughter” (SH:92).

After four hours of interrogation by two experienced

police officers, Debra was -frightened, horrified and con-

fused. She would weep or cry out one moment and then

she would become calm the next (SH:90-91).

Despite the fact that she had no familiarity with the

law, the police never advised Debra that she could call an

attorney or stop answering questions at any time. Nor

did they tell her she could answer some questions and

not others (SH:93). Neither then nor at any time later, was

she ever told that she had the right to remain silent, the

right to talk to a lawyer, the right to stop the questioning

or that she was not required to be there.

At 5:00 p.m. following three and a half hours of relay

interrogation and point blank accusations, because no

confession had been obtained, a third officer was asked to

take over the interrogation (SH:83).

This officer, who had been listening to the question-

ing on monitoring equipment in another room, began ina

very sympathetic and apologetic tone. He asked that

Debra promise to cooperate for the sake of her husband,

her son and all the residents of Huron (SH:98). During

the next several hours, the officer employed deceit, lies,

psychological trickery and appeals to religion in an effort

to get Debra to confess.

He told her there was a good Debbie and a bad

Debbie (SH:422), and asked her to become the “bad Deb-

bie” and tell him what the bad Debbie had done (SH :174).

He prefaced questions by stating that Debra was a good

mother, and he knew she was a good Christian, but

“could it be possible that... ?” making suggestions he

wanted her to speculate about (SH:127).

This officer repeatedly asked Debra to create and

then describe various imaginary scenarios in her mind in

order to visualize and be able to relate to him the grue-

some details of the moments preceding Abby’s death

(SH:127).

When Debra requested that she undergo hypnotism,

psychological help or truth serum (SH:100), he refused

her request and told her that there was more she needed

to tell him and that he would “jar” it out of her (SH:28).

He used Debra’s religious beliefs to compel her to be

“truthful” (SH:134), he told her that she should confess to

help Abby’s little friends who were afraid (SH:176), and

that the killer was mentally ill and that she was the killer

(SH:174). He told her she should confess because “God is

forgiving” and that he only hates the sin and not the

sinner (SH:174:3-7).

The officer lied to her constantly. He told her that her

husband was in the other room telling others that Debra

was to blame (SH:131); that her husband would not sleep

with her and did not want to touch her because she was

filthy now because she had done this (SH:175). He told

her that they had found her hair in Abby’s hands

(SH:175); that she should help her husband by confessing

because he had failed a polygraph exam (SH:176); and

that her husband had told them that she had killed Abby

and that he had helped to cover it up (SH:179).

When these lies failed to produce a confession, the

officer became visibly angry, and intimidated her by

shouting at her even though she pleaded with him to stop

yelling (SH:178). At one point when she was exhausted

and on the verge of a breakdown, she asked him if she

had done it. He shouted: “It’s you, it’s you, it’s you, it’s

you!” (SH:197).

During the five hours that he interrogated Debra, she

repeatedly denied her guilt. At times totally exhausted

she would ask “Could I have done this and not know it?

Could I have psyched out?”

Throughout, Debra’s mood would fluctuate from

calm to excitement to anxiety to distress, depending on

the mood of the interrogator. At times she was highly

distraught and at other times she would black everything

out and show no emotion. She would stare up toward the

ceiling, her eyes were glassy and she would speak in a

meek and distant voice. Once in total exhaustion, she

held the officer’s hand and laid her head on his lap and

wept (SH:101-102).

At another point, in absolute frustration and agony,

Debra pleaded “Why are you putting me through this?

Isn’t it enough losing a daughter?”

In the 48 hours since her daughter’s death, Debra

had very little to eat, and nothing to eat at all at the police

station. She had slept only for a few hours on Monday

night and only after someone had obtained a prescription

for her.

During the interrogation, she was never left alone,

nor told she could leave on her own accord (SH:15). She

believed she had no right to leave (SH:173). She thought

she was required to be there because she believed that

was the way the process worked (SH:190).

After eight hours of interrogation, Debra had been

kept from her own daughter’s memorial service at

church, and had no more details from the police than she

did when she first spoke to law enforcement officers

(SH:126). Throughout this ordeal, she never made an oral

or written confession to the killing.

At approximately 9:00 p.m. after a day long inter-

rogation, the officer became very concerned about

Debra’s physical and mental well being, and he feared

that continuing the interrogation would have caused a

serious breakdown (SH:110). He advised the other offi-

cers to get some help for Debra (SH:24) so they called in a

psychologist for her.

At this point, the police decided to reunite Debra and

her husband, but prior to doing so, one of the other

officers untruthfully told her husband that Debra had

confessed and wanted to see him (SH:133).

When the two were reunited, Debra asked her hus-

band “Did I do it, did I do it?” (SH:180;214). The husband

looked at the officer and, based on the lie told to him, he

shook his head yes (SH:123). Debra crawled up on his lap

and screamed and screamed, thinking that if her husband

said she had done it, it must be true (SH:180). She asked

him “You mean you knew all along and you covered it

up?” He responded, “Honey, I don’t know anything.”

Debra then turned to the officers and asked “You mean

he could be blacking it out too?” (SH:201). At trial they

used these statements against her.

After procuring this alleged quasi-admission, the

officer took the husband from the room (SH:113;135).

After the psychologist had arrived and visited with

Debra, she was told for the first time that she could go

home - or to the hospital (SH:158). This was the first time

in eight hours that Debra was told she could leave.

One year later, at trial the officers resurrected bits

and pieces of this eight hour unrecorded interrogation

and testified as to what they perceived to be admissions

made by Debra. Yet the principal officers’ written report

of this day long interrogation was no more than three to

four pages (SH:223).

At trial these admissions, plus evidence derived

therefrom, was admitted over objection and resulted in

her being convicted for second degree murder.

LN eT RE

Ren

REASONS FOR GRANTING WRIT

I. THE CONSTITUTIONAL QUESTION OF VOLUN-

TARINESS

This Court should grant the Petition for a Writ of

Certiorari in this case for the following reasons:

A. There is currently no “bright line rule” as to

when admissions obtained by psychological

pressure become “involuntary” as a matter of

law, and to avoid the potential for constitu-

tional abuse in the future there should be.

B. Asa matter of public policy and constitutional

law, the test for finding statements “involun-

tary” should be no greater than the tests for

invalidating a Last Will and Testament because

of undue influence, a contract because of

duress, or a guilty plea because it was not

knowingly, intelligently and voluntarily made;

yet under current law it is a much greater bur-

den to meet.

C. As a matter of constitutional law and public

policy admissions obtained during an inter-

rogation which is terminated because the

defendant is believed to be on the verge of a

psychological breakdown should be constitu-

tionally inadmissible.

1. NO BRIGHT LINE RULE.

This Court has never distinguished in its written

opinions between the voluntariness of “admissions” as

opposed to “confessions” and it should do so. Both the

state and federal courts need a bright line rule as to when

admissions obtained by psychological pressure become

involuntary as a matter of law.

This case is not about a confession. It is about spo-

radic admissions which were made by a vulnerable

defendant who was subjected to a psychological barrage

of tactics and techniques which squeezed out of her frag-

mentary utterances that were arguably incriminating.

There was no confession written or oral obtained in

this case; although the police used every trick in the book

to obtain one. When they could not do so they attempted

to settle for admissions. When they failed to prompt any

clear and unequivocal admissions from the defendant,

they tried to trigger unguarded verbal responses which

they later suggested at trial were admissions of guilt.

These admissions should not have been admissible

because they were not knowingly, intelligently and vol-

untarily given and because they may not have been

admissions at all.

An actual confession may or may not be voluntary,

but on its face its contents usually reveal a clear and

unequivocal admission of guilt. Admissions are different.

Statements like those made by Debra - isolated remarks,

comments made out of frustration or exhaustion, and

concessions to hypothetical questions — do not have clear,

unequivocal meanings. The meaning of each is usually

hazy and unclear, and can only be extrapolated by

reviewing the entire context of the conversation in which

it was given and the conditions under which it was made.

In this case, the context was impossibly foggy and

unclear because the conversation dragged on for eight

hours and was not tape recorded in whole or in part.

Likewise, the conditions under which the statements

were made make the statements unreliable because they

were designed to induce isolation, fear, repentance,

remorse and self-incrimination. The conditions in this

case were designed to induce anything but statements

made in a knowing, intelligent and voluntary manner.

These admissions were coerced out of Debra as a

direct and proximate result of the direct accusations

made against her, the deliberate lies that were told to her,

the psychological suggestions made to her, the twisted

use of hypothetical questions asked of her, the creation of

artificially contrived scenarios, the isolation from her

family, the length of her confined interrogation, the inva-

sion of her sex life with her husband, the appeals to her

feelings for the community and Abby’s friends, the play-

ing upon her religious convictions, and the emotional

inability to resist or to think clearly caused by the death

of her daughter.

Her statements were the fruits of an interrogation in

a confining room, where in eight hours, she was permit-

ted only two trips to the restroom and one to get a Diet

Coke. These admissions were the creation of police sug-

gestions that she had blacked out any memory of her

actions. The police tried, in effect, to brainwash her into

believing despite her inability to remember or admit any-

thing about the murder, she had, in fact, committed the

murder. Rather than obtaining a confession, the police

obtained only concessions that Debra might be “blacking

it out” (their suggestion), or that it could be possible that

she did it and did not remember it (again, their sugges-

tion).

Where an actual confession is obtained, these kinds

of techniques may cross the line between “permissible

police conduct” and “methods offensive to due process.”

Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10

L.Ed.2d 513 (1963). These techniques are even more offen-

sive, more dangerous and more unfair when used to

induce simple statements, hypothetical answers, or other

abbreviated admissions for incriminating purposes. The

danger and unfairness is compounded further when the

statements are made during the course of a lengthy sta-

tion house interrogation, and they are not recorded or

preserved in any reliable way.

This Court has held that the voluntariness of a defen-

dant’s statements is to be determined from the totality of

the circumstances. The totality of the circumstances gen-

erally requires an examination of both (1) the details of

the interrogation and (2) the characteristics of the

accused. Schneckloth v. Bostamonte, 412 U.S. 218, 93 S.Ct.

2041, 36 L.Ed.2d 854 (1973).

The Schneckloth test, however, does not significantly

treat the question of “admissions” made in this context.

While Debra repeatedly denied killing her daughter, at

times totally exhausted she would ruminate “Could |

have done this and not know it? Could I have psyched

out?” Far from being reliable admissions by a party

defendant, these statements evidence a young lady whose

resolve was crippled by deception, suggestion and

fatigue. She was deliberately being made to doubt her

own memory by the police - and even her own sanity. Yet

these frailties were introduced against her.

At one point she asked to be hypnotized and for

psychiatric help. As Justice Sabers of the South Dakota

Supreme Court wrote, “While these statements are rele-

vant in considering the totality of the circumstances . . . If

anything, these statements indicate Jenner’s emotional

breakdown, rather than any desire to make a voluntary

statement” (S.D.S.C. Opinion, App. 83).

In considering the important concept of voluntari-

ness this Court has commented:

Is the confession the product of an essentially

free and unconstrained choice by its maker? If it

is, if he willed to confess, it may be used against

him. If it is not, if his will has been overborne

and his capacity for self-determination critically

impaired, the use of his confession offends due

process. Schneckloth v. Bostamonte, 412 U.S. 218 at

225, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

Yet, this test relates only to “confessions” which are

generally easy to examine. On their face, confessions

reveal important clues as to whether they are voluntary

or freely made, or the product of physical or mental

coercion.

On the other hand, admissions are not so revealing.

While generally not the product of physical coercion,

they frequently can be nothing more than the inadvertent,

ambiguous, involuntary response to a suggestion, ques-

tion or promise. As such, simple admissions should be

reviewed with much more scrutiny utilizing a different

test — a test this Court has yet to articulate.

2. TOO GREAT A BURDEN

It is a maxim of American justice that it is better to

allow ten guilty people to go free than to convict one

innocent person. Unfortunately, under the strict inter-

pretation of this Court’s recent cases, while this maxim

might be theoretically true, it is difficult to imagine that

such is actually the case.

Under recent criminal cases with respect to “involun-

tariness” this Court has established a more difficult bur-

den for a defendant to meet in order to have statements

excluded as involuntary than it has required for civil

proponents in meeting almost identical burdens in cases

where liberty is not involved.

The checklist for involuntariness under Schneckloth is

exhaustive. The factors this Court requires lower courts

to consider before excluding a confession as involuntary

include physical punishment, lack of sleep, lack of food,

detention, and a litany of others. Yet in other cases

involving “undue influence” with respect to the making

of a Last Will, or “duress” with respect to the making a

contract, this Court is far less demanding in terms of the

factors that must be demonstrated to set aside a Will or to

void a civil contract as not being the product of a volun-

tary act.

The cases are far too numerous to compare or con-

trast here. This Court has simply to review the tests it has

established in those civil areas to observe the difference.

While a disparity in burdens should exist, it should exist

in the other direction. When liberty is at stake, the burden

—————

should be much less stringent than when only inheri-

tances or contract rights are involved.

Even within the criminal law area there is an inexpli-

cable disparity between the tests propounded by this

Court. While admissions are considered involuntary only

when a defendant established that his will is overborne,

such is not the case with respect to guilty pleas.

Like statements made under interrogation, guilty

pleas are acceptable only when knowingly, intelligently

and voluntarily made. Yet guilty pleas are frequently set

aside on the simple showing that some possible threat,

promise or other collateral inducement may have influ-

enced the defendant to enter a guilty plea. While the

words are the same, the test is much different.

For a person who wants to plead guilty, the Court has

been overly cautious, but for the person who asserts his

innocence, the Courts have been far less concerned.

Again, the cases on the voluntariness of guilty pleas are

numerous. Yet, a simple comparison between the existing

standard for reviewing “voluntariness” in that context

discloses a salient distinction which imposes a much

greater burden on a defendant who asserts that his state-

ments made during a hostile interrogation are involun-

tary.

At worst, this disparity amounts to a denial of equal

protection and, at best, to a policy that discriminates

against those who consent to being interrogated by the

police.

3. TERMINATION BASED ON PSYCHO-

LOGICAL CONCERNS.

No confession was obtained in this case because the

defendant’s interview was terminated by the police. The

facts are not in dispute. The police, by their own admis-

sion, ceased interrogating this defendant because they

believed she was on the verge of an emotional break-

down. In fact, their concern was so substantial that the

police themselves called in a psychologist to examine the

defendant with respect to her emotional condition.

So concerned were the police about what psychologi-

cal havoc they had inflicted on the defendant that after

the psychologist had examined her they advised her that

she was free to go to her home or to a hospital.

Yet, despite the fact that this interrogation had

turned the defendant into an emotional basket case the

lower courts, following the tests articulated by this Court

with respect to voluntariness, ruled that the defendant’s

admissions during this same interrogation were admissi-

ble.

If the lower courts did, in fact, faithfully follow the

tests imposed by this Court, then how can these tests

advanced by the U.S. Supreme Court be fair? How is it

that, despite the fact that an interrogation must be termi-

nated because a defendant is psychologically incapable of

going further, her statements can nonetheless be deemed

to be voluntary?

The undisputed facts in this case mean either that the

lower courts were in error in following the precepts of

this Court or that the precepts of this Court have not yet

been fully articulated to take into account the tragedy

that occurred here.

II. EXTENDING THE MIRANDA RIGHTS.

This Court should grant the Petition for a Writ of

Certiorari for the following additional reasons:

A. Despite the fact that an interrogation may origi-

nally be non-custodial when it is conducted

inside a police station for eight hours without a

lawyer, the police should be required, as a mat-

ter of law, to advise an unsophisticated defen-

dant of her Fifth and Sixth Amendment rights

under Miranda.

B. Unless a defendant is advised of her Miranda

rights or clearly demonstrates that she is aware

of those rights, any statements made by the

defendant in a lengthy station house interroga-

tion should be inadmissible because the defen-

dant without knowing her rights cannot

knowingly and intelligently waive them.

1. NON-CUSTODIAL STATION HOUSE

INTERROGATIONS.

The facts in this case cry out that the Supreme Court

should hold that lengthy station house interrogations are

inherently custodial and should require that Miranda

rights be explained.

U. S. District Judge Jones held that because of the

length of the interrogation and because it was conducted

in a police station, it was a close question as to whether

Miranda should have been followed, but he still found

that the Miranda rights were unnecessary. As the current

state of the law exists, perhaps he was correct. However,

as a logical and practical matter, how can a young

mother, unsophisticated as to all the intricate aspects of

the law be aware of the fact that she has a right to remain

silent, that she has a right to a lawyer, and that she has a

right to stop the questioning at any time unless some-

body tells her about these rights.

Interviews conducted in private homes or outside of

automobiles are inherently noncustodial unless the per-

son is advised he is under arrest. Yet a person inside a

police station, detained for eight hours for the purpose of

extracting evidence from that person for the purpose of

building probable cause to arrest, is inherently in cus-

tody.

When Mrs. Jenner went to the police station, she was

told it was only to answer a couple of questions. She was

kept there, isolated and alone for a period of eight long

hours during which she was aggressively and deceptively

interrogated in order to cause her to incriminate herself.

She did not have the remotest idea that the Constitution

gave her the absolute right not to incriminate herself.

Operating on the false premise that she had to cooperate

with the police, she at first agreed to be interviewed.

However, what took place thereafter can be considered

nothing less than a “de facto” or “constructive” custodial

interrogation.

While she was never told she was under arrest, she

was never told she could leave. Nor was she ever told

that she could refuse to answer questions. In her mind,

her freedom was outweighed by her perceived obligation

to the demands of the police.

Debra was never told that the police had no authority

to keep her separated from her husband, to keep her from

attending her daughter’s memorial service or to keep her

from leaving the interrogation room.

In her testimony, she indicated she never believed

she had the right to leave. When the interrogation grew

exceptionally hostile, she cried, “Why are you putting me

through this? Isn’t it enough to lose a daughter?”

(SH:121). Instead of advising Debra she was free to dis-

continue the interview, the officer advised her that he had

to continue (165:1-8). How could Debra have thought

otherwise?

For all practical purposes, Debra Jenner was sub-

jected to a custodial interrogation. The investigation was

focused exclusively on her. The interrogation was hostile

and accusatory, conducted in a small room behind a

closed door, beyond which she was permitted to exit only

twice.

More significantly, the sole purpose of the interroga-

tion was to obtain a confession from her, not to gather

further useful general information as is usual in most

non-custodial interrogations.

What happened to Debra Jenner is typical of what

happens in most lengthy “non custodial” station house

interrogations, and should persuade this Court to extend

Miranda to these situations.

We must remember in this regard that Miranda

came down some 27 years ago. In that time, law

enforcement has grown in constitutional as well

as technological sophistication, and there is little

reason to believe that the police today are

unable, or even generally unwilling to satisfy

Miranda’s requirements. Withrow v. Williams,

1993 WL 119753, citing Quarles, 467 U.S. at 663.

First, Debra was not only separated from her hus-

band, but from her parents and minister as well. She was

kept in a small, windowless room for eight hours, and

never permitted to make a phone call. The atmosphere

was totally police dominated by her all male police inter-

rogators. She was never advised of a termination time for

the interrogation, nor was she told that her cooperation

was to be totally voluntary. More importantly, because of

her gender, status, lack of sophistication and vul-

nerability caused by the death of her daughter, she was

especially susceptible to police intimidation and sugges-

tion.

Other than actually being placed under arrest, her

interrogation could not have been more custodial. In her

mind, her freedom of action had been curtailed in almost

every way imaginable. She was trapped in an Inquisition,

and her failure to confess was the only reason that the

Inquisition continued.

To the ordinary citizen, the police station has all of

the trappings of an inquisitional chamber. To protect the

citizen once inside that chamber, this Court should

require that Miranda rights be given whether or not she is

officially placed under arrest if she is detained at a police

station for almost eight hours.

ee ey

In 1937, an Oxford Don wrote an illuminating history

referencing the dangers and stark horror of similar inter-

rogation techniques.

The function of the Inquisition was a double

one: it existed not only to detect and punish

crime, but also to save the soul of the criminal.

In order to achieve the latter end, it was essen-

tial that the accused should confess his guilt,

profess repentance and extract pardon. If the

prisoner refused to confess voluntarily, steps

must be taken to persuade him to do so. (The

Spanish Inquisition, Cecil Roth, W. N. Norton,

London 1937.)

In effect, the police, by appealing to Debra’s religious

convictions, her Christian beliefs, and by talking about

God’s forgiveness of her, were suggesting to her that she

could save her soul only by confession. Yet, the police

never told her that the same Constitution that gave her

freedom of religion also guaranteed her the right to

remain silent.

2. HOW DOES A PERSON KNOWINGLY

WAIVE RIGHTS SHE IS IGNORANT SHE

HAS.

Law professors, critical of the Courts, have written

that appellate tribunals frequently utilize the most convo-

luted legal reasoning just to save a conviction. Without

regard to the general truth of this statement, their criti-

cism is certainly on the mark in this case. Here, in order

to avoid reversing Debra’s conviction, the Courts had to

find, as a matter of law, that Debra Jenner knowingly,

intelligently and voluntarily waived certain constitu-

tional rights that she never knew she had.

Without regard to whether a person is in custody

every person has a right to remain silent, the right to talk

to a lawyer for advice, and the right to terminate the

questioning at any time. In order for statements made by

that person to be admissible against her, that person must

not only consent to be interrogated, but must consciously

waive her constitutional rights.

In this case, the Defendant was never Mirandized,

nor does the record disclose that she even understood her

rights. Nor does it clearly reflect that the defendant, by

her actions, somehow waived the rights that she was

guaranteed.

If Deb Jenner’s constitutional rights are to mean any-

thing at all, this Court should grant certiorari so it can

require police to advise individuals subjected to lengthy

interrogation inside a police station of their Fifth and

Sixth Amendment rights under Miranda. To be admis-

sible, any statements made by that person should be

admissible only after that person has been informed of

her Miranda rights or has clearly demonstrated, through

her words or deeds, that she understands those rights

and intends to waive them.

The failure to Mirandize Deb Jenner troubled U. S.

‘istrict Judge Jones and also deeply disturbed two jus-

» es of the South Dakota Supreme Court. As the primary

guardian of Constitutional liberties in this country, this

Court should be disturbed as well.

In cases involving police station interrogation, this

Court’s “totality of the circumstances” test is simply

inadequate because it provides a back door excuse for

police to override the rights of a defendant by inducing

admissions from that defendant which they can use to

convict her by claiming the interrogation was non-custo-

dial.

How could Debra Jenner under any circumstances

know she was free to leave if she was never advised of

that fact? How could she know she had a right to remain

silent or that she could discontinue the interview at any

time unless those rights were explained to her?

In his persuasive dissent, Justice Morgan of the South

Dakota Supreme Court did not rely on convoluted rea-

soning when he wrote:

One of the trial court’s findings is enigmatic in

that it first finds that neither of the Jenners were

advised of their Miranda rights; and further, that

neither requested counsel, or that the question-

ing stop and never refused to answer a question.

It is incomprehensible that any court could con-

clude that Debra’s cooperation could be evi-

denced by her failure to exercise her Miranda

rights when she had not been advised of those

rights. (S.D.S.C. Opinion, App. 72.)

The salient fact that has been ignored in this case is

that at no time does the record disclose that Debra made

a knowing, intelligent and voluntary waiver of her rights

by virtue of her own conduct.

Whether or not a person is in custody, this Court

should demand, at a minimum, that any waiver must be

clearly and unambiguously made, and that the record

should reflect an unequivocal waiver. This requirement

should be all the more urgent when the person making

the statements is inside a police station for almost eight

hours.

Judge Jones was forced to affirm Debra Jenner’s con-

viction because he had no language from this Court to

allow him to reverse it. The Eighth Circuit, in following

Miranda has held that Miranda warnings are only required

if the person is subjected to custodial interrogation. In

other words, the person must be in custody or otherwise

deprived of his freedom of action in any significant way

before a questioning officer is required to read the person

his Miranda warnings. U. S. v. Carter, 844 F.2d 37 (8th Cir.

1989).

The key language here is “otherwise deprived of her

freedom in any significant way.” To find that Debra Jen-

ner’s freedom was not deprived in any significant way

when she was subjected to such a psychological coercive

interrogation for over eight hours inside a police station

is to resort to convoluted reasoning only to save a convic-

tion.

More importantly to so find not only makes a mock-

ery of logic and the English language, but it encourages

police inside the station house to circumvent the Fifth

and Sixth Amendments and to literally seduce incriminat-

ing statements out of unsuspecting individuals. This type

of action is certainly constitutionally suspicious when it

involves confessions. However, it is even more dangerous

when it involves simple admissions that, one at a time,

unknowingly slip out during a lengthy interrogation.

Deb Jenner was convicted by her own unknowing

and unguarded statements which the police unfairly

weaved together into a mosaic almost a year after her

interrogation, which distorted the true meaning of her

words and glossed over the actual context in which they

were made.

The function of the United States Supreme Court is to

act as a guardian of our constitutional liberties and not to

act as a shield for those who seek to erode those liberties

a little bit at a time.

Ill. SEPARATE STANDARDS FOR REVIEWING FED-

ERAL CONSTITUTIONAL STANDARDS.

A. To avoid a dual system of justice, state

Supreme Courts should be required to review

on appeal federal constitutional questions con-

cerning the voluntariness of statements using a

“plenary” review, as do the federal courts, and

not a “review on the record.”

It is the Defendant’s position that her conviction was

affirmed by the Supreme Court of South Dakota employ-

ing the wrong standard of review involving the federal

constitutional issue of the voluntariness of her statement.

The South Dakota Supreme Court in resolving this ques-

tion used the “clearly erroneous” standard of review. This

standard was improper.

The issue of voluntariness of confession is a legal

inquiry requiring plenary review. Russell v. Jones, 886 F.2d

149, 151 (8th Cir. 1989).

Writing in Miller v. Fenton (Fenton II), 474 U.S. 104,

106 S.Ct. 445, 88 L.Ed.2d 405 (1985), Justice O’Connor

stated:

The nature of the inquiry itself lends support to

the conclusion that “voluntariness” is a legal

question meriting independent consideration in

a federal habeas corpus proceeding. Although

sometimes framed as an issue of psychological

fact . . . the disposition question of the volun-

tariness of a confession has always had a

uniquely legal dimension. This hybrid quality of

voluntariness inquiry, subsuming as it does a

“complex of values” in itself militates against

the question as one of historical fact.

The question of voluntariness raised on appeal to the

South Dakota Supreme Court was of federal constitu-

tional dimension. While the South Dakota Supreme Court

is free to adopt any standard of review it chooses in

interpreting its own Constitution, it is bound to follow

the standard of review dictated by the Supreme Court of

the United States in examining questions arising under

the United States Constitution.

Under a properly conducted plenary review in the

South Dakota Supreme Court, that court’s determination

as to voluntariness might well have been different than

the determination made by Judge Jones.

The South Dakota Supreme Court is an appellate

tribunal composed of five appellate justices and Deb Jen-

ner was entitled to have that Court follow the appropri-

ate standard in deciding her case.

As a matter of public policy, both Congress and this

Court have taken steps to curtail the inundation of fed-

eral habeas corpus petitions arising out of state prosecu-

tions. In order to effectuate that policy, this Court could,

by its decision in this case, significantly reduce the

number of these appeals by requiring state supreme

courts to employ federal standards of review for the

thousands of cases they review involving federal consti-

tutional issues. Such an action would greatly reduce the

flow of cases to the federal courts arising out of state

prosecutions; and it would make review of those remain-

ing state cases much easier and much less time consum-

ing for the federal courts to consider.

If the Court does not accept certiorari on “voluntari-

ness” or “Miranda” grounds, it should do so nonetheless

if only to remand this case back to the Supreme Court of

South Dakota so it can redetermine the issue of voluntari-

ness with instructions to specifically conduct a plenary

review of this issue utilizing the federally adopted stan-

dard of plenary review.

CONCLUSION

It is respectfully submitted that for important reasons

of constitutional law and public policy, this Court should

grant the Petitioner’s request for a Writ of Certiorari.

Unresolved and difficult questions concerning issues

with respect to Miranda and “voluntariness” continue to

inundate both state and federal rules.

This Court can stem the tide of that flood by adopt-

ing and articulating a bright line rule for both of these

issues using the facts and circumstances presented to it

arising out of this case.

Our system of criminal justice envisions an investiga-

tory rather than an inquisitional approach designed to

insure that no accused shall be compelled to incriminate

himself. While the framers of our Constitution gave us

that right, only the United States Supreme Court can

make it sacrosanct.

It is the Supreme Court and not the police who

should establish the parameters of our liberty in America.

This Court should zealously guard that responsibility and

not inadvertently delegate it to the police one case at a

time.

Respectfully submitted,

DEBRA SUE JENNER, Petitioner,

JaMeEs Martin Davis #10927

500 Metropolitan Federal Plaza

Omaha, Nebraska 68102

(402) 341-9900

Attorney for Petitioner

APPENDIX

1/29/88 MEMORANDUM OPINION

Eugene L. Martin, Circuit Court Judge

South Dakota

RE: 1/6/88 Suppression Hearing..........---- App. 1

3/16/88 FINDINGS OF FACT, CONCLUSIONS OF

LAW AND ORDER RE: SUPPRESSION

MOTION

Eugene L. Martin, Circuit Court

Judge... ....ccccreeccseeeececeeeeee App. 23

2/14/90 SUPREME COURT OPINION/SOUTH

DAKOTA

UR ener eer er App. 37

9/27/91 U.S. DISTRICT COURT/SOUTH DAKOTA

JUDGMENT OF DISMISSAL & MEMORAN-

DUM OPINION AND ORDER

USDC Judge John Jones.........-.. App. 91

1/5/93 U.S. COURT OF APPEALS FOR THE

EIGHTH CIRCUIT OPINION...... App. 104

App. 1

CIRCUIT COURT OF SOUTH DAKOTA

THIRD JUDICIAL CIRCUIT

P.O. BOX 1358

HURON, SOUTH DAKOTA 57350

Chambers 605-353-7171

Chambers of

EUGENE L. MARTIN

Circuit Judge [SEAL]

PATRICIA J. SCHNIDER

Court Reporter

January 29, 1988

Dennis Holmes, Esq.

Deputy Attorney General

State Capitol

Pierre, South Dakota 57501-5090

David Gienapp, Esq.

P.O. Box 28

Madison, South Dakota 57042

William Matheson, Esq.

141 North Main, Ste. 706

Sioux Falls, South Dakota 57102

Re: State vs. Debra Sue Jenner

MEMORANDUM OPINION

(Filed Jan. 29, 1988)

Gentlemen:

The Defendant has moved to suppres [sic] any and all

statements made by the Defendant during the course of

an interview conducted by law enforcement on April 7,

1987. The grounds for the motion are:

App. 2

1. That the statements were not freely and vol-

untarily given by the Defendant, thus violat-

ing her rights under the 5th and 14th

amendment to the United States Constitu-

tion; and

2. That the interrogation was custodial and

therefore the Defendant should have been

advised of her legal rights under Miranda.

The State concedes that the Defendant was not advised at

any time of her legal rights under Miranda but that the

interrogation was not custodial and that any and all

statements were voluntary.

The hearing on the Suppression Motion transpired on

January 6, 1988 at the Beadle County Courthouse and was

open to the public. Present were Dennis Holmes and John

Bastian representing the State of South Dakota; the

Defendant, Debra Sue Jenner, and her attorneys David

Gienapp and William Matheson.

FACTS

1. The death of Defendant’s daughter occurred on or

about April 4 or 5, 1987.

2. On the morning or [sic] April 5, 1987, Beadle County

Sheriff, Tom Beerman, spoke with the Defendant and her

husband, Lynn Jenner, at the Huron Regional Medical

Center. Defendant’s husband did most of the talking.

Sheriff Beerman spoke with them about ten minutes and

said he would get back to them. Around 2:30 p.m. that

afternoon Deputy Sheriff Jim Sheridan obtained a written

consent from Lynn Jenner to search the Jenner residence

and also one of the Jenner vehicles. (State’s Exhibit 2)

Ee ae ee) ee

App. 3

Later that same day Jerry Lindberg, DCI agent, called

Sheriff Beerman to see if the Jenners would talk with him.

Sheriff Beerman then called the Jenners and talked with

Lynn Jenner and advised him that Mr. Lindberg would

like to speak with them. Sheriff Beerman also advised

that Lindberg was a DCI agent. Both the Defendant and

her husband agreed to come down to the police station to

speak with Lindberg. Between 9:00 and 9:30 that evening

the Defendant and her husband came to the police station

voluntarily and on their own. Lindberg interviewed both

Defendant and her husband separately. The interviews

lasted a total of 45 minutes to one hour. Both the Defen-

dant and her husband were very cooperative. After the

interviews the Jenners went to their residence and pro-

vided law enforcement with the clothing that they had

been wearing on the evening of April 4. They also pro-

vided hair samples. On this date Lindberg had also inter-

viewed other people besides the Defendant and her

husband.

3. On April 6, 1987, at about 8:12 a.m. the Defendant

called Sheriff Beerman at his office. Later that morning

Beerman returned the call to the Defendant at the resi-

dence of Lynn Jenner’s father. Defendant stated, “You

probably won’t believe this but my ring has not been

washed or scrubbed and that the investigators could have

it.” Later the Defendant gave the ring to Captain

McQuillen of the Huron Police Department at the Funeral

Home. On this day the Defendant’s husband also turned

over some jewelry to law enforcement.

4. On April 7, 1987, sheriff Beerman called Lynn Jenner

and asked that he and his wife come down to the Sheriff’s

office. The Jenners agreed and came to the Sheriff’s office

App. 4

on their own. Accompanying the Jenners were Lynn Jen-

ner’s parents as well as Reverend Darrell Wagner of the

Wesleyan Church. Both the Defendant and Lynn Jenner

were given polygraph tests separately and alone.

Prior to the test being given Lindberg spoke with both the

Defendant and her husband. They were advised as fol-

lows:

(A) They did not have to talk with him if they

did not want.

(B) They did not have to take the polygraph

test if they did not want.

tool and that the results could implicate or

eliminate them as suspects.

(D) If they did not pass the test they would be

asked more questions.

(E) Defendant admitted during her testimony

that she was told that the test could not be

used in court.

The Defendant asked Lindberg if the test would be accu-

rate considering her emotional state. Lindberg told her

that the emotional state she was in would have no bear-

ing on the testing. Both the Defendant and her husband

agreed to take the test. Further, the Defendant signed a

consent form to take the polygraph examination. (State’s

Exhibit 1.) The consent form provides basically that the

Defendant voluntarily agrees to take the examination;

that no threats or promises have been made or duress or

coercion exerted to induce her to take the examination;

that the technique will be fully explained to her and that

a ee

App. 5

all questions will be reviewed with her prior to the exam-

ination; and that she authorizes the release of the results

of the exam, and any recordings, statements, or conversa-

tions regarding the interview to Jerry Lindberg, DCI.

DCI Agent Fred DeVaney, polygraph examiner, met with

the Defendant and explained the polygraph examination

to her. DeVaney also advised the Defendant that she did

not have to take the polygraph test, that all the questions

would be reviewed with her, and that the results would

be released to Lindberg. The Defendant agreed to take the

test. A pre-test was conducted using cards as the testing

tool. The test started around 2:15 p.m. and lasted until

around 3:30 p.m.

5. The examination-interrogation room was 12 foot by

14 foot; had one table and three or four chairs; a filing

cabinet; no windows to the outside; a one-way glass

window; no clock; no taping equipment or radio. The

door was shut during the polygraph examination and

then during the subsequent questioning was slightly

open between three to five inches. The room was

“bugged.”

6. After the polygraph test DeVaney left the room for

approximately 15 minutes. The Defendant was left alone

in the room. DeVaney came back into the room after

reviewing the charts and told the Defendant that she had

lied. He confronted her with having been responsible for

the death of her daughter. The Defendant became very

emotional stating she didn’t do it, she couldn't have done

it. Later, Lindberg came into the room and talked with the

Defendant for approximately 20 minutes discussing the

accuracy of the polygraph examination. Lindberg told the

eal aati

App. 6

Defendant she had failed the test and accused the Defen-

dant of killing her daughter. DeVaney then returned and

talked with Defendant until about 5:00 p.m. DeVaney

again told the Defendant that he felt she was responsible

for the death of her daughter. He stated that Stewart

(Defendant’s son) had said that the Defendant had

spanked Abby (victim) on the night of the incident.

DeVaney also told the Defendant that if the Defendant's

hair was found in Abby’s hands this would not be good.

He further advised Defendant that there was a rational

Debbie and an irrational Debbie; that the irrational Deb-

bie did the deed and that he wanted the truth about the

irrational Debbie. Defendant stated, “The only way I

could have done it is if I psyched out.”

During this period of questioning DeVaney on one occa-

sion left the room and upon returning found that the

Defendant had gone to the bathroom and then returned

to the interrogation room. DeVaney asked the Defendant

if she wanted a coke and the Defendant requested a diet

coke and DeVaney got her one. During the interviews

with DeVaney Defendant’s mood would swing to the

extremes. There were times when she would cry; times

when she would be calm and collected. At one point the

Defendant wanted to know if DeVaney was a psycholo-

gist and if she could be hypnotized to see if she could

remember what happened.

Around 5:00 p.m. DeVaney asked Agent Ken Giegling to

take over because he wasn’t being successful. DeVaney

introduced Giegling to the Defendant and the Defendant

agreed to talk with Giegling. Giegling had sat in the outer

office listening (phone set) to the interviewing and was

App. 7

making notes. DeVaney and Giegling had worked

together as an interviewing team for several years.

Giegling told the Defendant that she was not being truth-

ful and that she knew more than she was telling. During

the interview Defendant stated, “Could I have done this

and not know it? Could I have psyched out?” Defendant

further stated that she also wouid like to find out and

suggested hypnotism, truth serum, or to see a psychia-

trist. After further questioning the Defendant stated, “I

may have psyched out during the night.” During the

interview Defendant’s mood would fluctuate from calm

to excitement to anxiety and distress. At times she was

highly distraught and at other times she would blank

everything out and show no emotion whatsoever. At one

point she held Giegling’s hand and even laid her head on

his lap and cried.

During this interview the Defendant stated she was going

to tell Giegling something she never told anyone before

and that was when they came home Lynn had closed the

drapes and the door. Giegling told the Defendant that he

knew she was responsible for the death of her daughter;

that there was a good Debbie and a bad Debbie; that there

is more there and “I am going to get it out of you.” Also,

he would preface some questions with the fact that the

Defendant was a good mother and christian and then go

on to ask the question. At one point the Defendant stated,

“Why are you putting me though [sic] this it’s bad

enough to lose a daughter.” Giegling stated that he was

doing his job. There were times when Giegling would yell

at the Defendant.

App. 8

7. During the interview with Giegling the Defendant

made statements on four separate occasions wherein she

perceived the incident through the eyes of another. On

the first occasion she volunteered a statement about see-

ing the incident through the eyes of her daughter. Defen-

dant stated, “Abby knew the person and was not afraid.

Abby saw a knife.” When asked to describe the knife the

Defendant held her hands apart about 8 inches and said

the handle was wooden and it was Chicago Cutlery. At

this time the Defendant was staring at the ceiling and her

eyes were glassy and she spoke with a different voice. On

the second occasion the Defendant again started speaking

of seeing the incident through the eyes of her daughter

and Giegling asked, “Is that person leaning over your

daughter, you?” Defendant stated, “I think so.” On a

third occasion the Defendant stated, “Abby saw a black

object.” Defendant further stated there was a black air-

plane belonging to her son, Stewart. The airplane was in

the kitchen area. At this point Deputy Jim Sheridan got a

search warrant from Lynn Jenner (State’s Exhibit 3) and

the officers went out to the residence and found the

airplane where the Defendant had indicated it would be.

On the fourth occasion the Defendant perceived these

events as being seen from the corner of the room and

stated she saw a person with a knife.

Defendant testified that the statements made on these

four occasions were the result of suggesions [sic] and

requests by Giegling that she do this.

8. I find that the statements made by Defendant on the

four occasions refered [sic] to in paragraph number seven

above, were volunteered by the Defendant and not made

pursuant to any questions asked to her by anyone.

App. 9

9. Giegling ended the interview sometime between 9:30

and 10:00 p.m. because he felt the Defendant was going to

have a nervous breakdown. Duane Majeres, local psy-

chologist, was called immediately and arrived sometime

between 9:30 and 10:00 p.m.

10. When the Defendant and her husband were

reunited, the Defendant stated, “I did it, I did it.” She

then said to her husband, “Did you help me?” Her hus-

band stated he did not help her.

11. Duane Majeres, psychologist from Community

Counseling in Huron, was called and arrived between

9:30 and 10:00 p.m. Upon entering the Correctional Facil-

ity he heard a wailing sound. He was introduced to the

Defendant and after speaking with her determined she

was not suffering from psychosis and had no suicidal

propensities. The Defendant was clearly responding. Fur-

ther that the Defendant’s previous interviews had mini-

mal affect on her and she was very much under control.

12. The Defendant asked to go home and was allowed to

do so by law enforcement. She was taken by Duane

Majeres and Jim Sheridan to the home of Reverend Dar-

rell Wagner. During the trip the Defendant appeared

quiet and reserved.

13. Debra Sue Jenner, Defendant herein, testified that

she is 31 years of age; that she is an agri-research techni-

cian and had an associate degree from college. She stated

that concerning the April 7 interview, she had never been

interviewed by law enforcement before; she had not slept

much the night before and had taken a prescription to

sleep; she ate no food on April 7; she had gone to the

App. 10

funeral home that day; and that a memorial service was

planned that evening.

Concerning the polygraph tests she admitted she was

advised she did not have to speak to anyone; that she

would not have to take the polygraph test; and that the

test results could not be used in court. She did not dis-

pute that her taking the polygraph test was totally volun-

tary. Further, she never told Lindberg or DeVaney that

she did not want to take the polygraph test; that she

wanted an attorney; or that she wanted the questioning to

stop at any time.

Concerning the subsequent questioning she testified she

was told that she did not have to talk to anyone unless

she wanted. She testified she was not threatened or

restrained in any way. She never requested to leave at

any time.

Defendant did testify that she felt she did not have the

right to leave because she felt it was a necessary part of

the process. As a finder of fact I specifically reject this

testimony as I find it unpersuasive and I simply do not

believe it.

Defendant further testified that she voluntarily went to

the Correctional Center, voluntarily provided hair sam-

ples, clothes and jewelry; that she knew her husband had

given permission for searches.

Defendant also testified that DeVaney told her that the

person who did this was mentally ill and that person was

the Defendant. Further that DeVaney stated, “Why do we

find long blonde hair in Abby’s hand? Are you filthy to

your husband now that he knows you did it? Don’t you

ee sm

App. 11

want to help Lynn, Stewart, Abby’s little friends who are

afraid, the people in the community who are besieged

with fear that there is a mad killer loose?” DeVaney

denies questioning the Defendant in this manner.

14. The Defendant was not told that the interview could

be stopped at any time or that she could leave at any time

and was never told that she could contact an attorney.

15. The Defendant was given the polygraph examina-

tion and subsequently questioned from around 2:15 p.m.

to around 9:30 p.m. that evening. The interrogation was

not taped.

16. After the Defendant was reunited with Lynn she

asked her husband if she had done it. Lynn nodded

affirmatively. At this point the Defendant screamed and

got up on Lynn’s lap and shook him and stated, “Did you

know this and cover it up?”

17. Lynn Jenner testified that he is 31 years of age and

works for Farmer’s Cashway Lumber. That he took his

son Stewart to Dr. Paul Byrd, clinical psychologist, on

April 6, 1987. Further that on April 7th he went to the

Correctional Facility and voluntarily took a polygraph

exam. After the test the examiner stated to him that he

was not being completely honest. The examiner stated,

“If you are a christian how can you go to heaven and be a

liar?” Lynn Jenner was interviewed by different people,

including the polygraph examiner, Lindberg, and another

investigator names Muller. Further, that at one point Jim

Sheridan came down and stated that the Defendant had

confessed and Lynn broke down and cried as did his

parents and the pastor. Jim Sheridan testified that he

never made this statement to Lynn that the Defendant

App. 12

had confessed but rather he did say that the Defendant

had made some admissions.

When the Defendant and Lynn were reunited the Defen-

dant asked Lynn if she had done it and Lynn stated “Yes.”

Lynn testified that he made this statement based on what

he had heard Jim Sheridan say. Lynn further testified that

when he and the Defendant were reunited the Defendant

looked exhausted and drained.

18. Lynn Jenner testified that up through and including

April 7, 1987, he and the Defendant were fully coopera-

tive including interviews, searches, polygraph tests, and

the turning over of jewelry and clothes. During this time

no threats of physical violence were made against he or

the Defendant.

19. That no time relevant herein were either the Defen-

dant or Lynn Jenner ever advised of their Miranda rights.

Further, neither the Defendant nor her husband ever

requested the services of an attorney; never requested

that the questioning stop and never refused to answer

any question.

20. The Defendant was indicted by a grand jury and

arrested on August 28, 1987, which was the first time the

Defendant was physically taken into custody.

LAW

The United States Supreme Court in the leading case of

Jackson vs. Denno (1964) 12 Law Ed.2d 908, made it clear

that the Defendant in a criminal case is deprived of due

process if his convictions is founded in whole or in part,

upon an involuntary confession without regard for the

ee a ee ee)

Sa hi a has Sater

App. 13

truth or falsity of the confession, and that equally clear is

the defendant’s constitutional right at some stage of the

proceedings to object to the use of the confession and to

have a fair hearing and a reliable determination of the

issue of voluntariness, which determination is to be unin-

fluenced by the truth or the falsity of the confession. The

Court additionally held that the burden of prove is on the

State to establish the voluntariness of the confession

beyond a reasonable doubt. Also see State vs. Thunder-

shield (SD 1968) 160 N.W.2d 408.

I. VOLUNTARINESS OF CONFESSION:

A confession must be voluntary to be admissible. The

true test of admissibility is that the confession is made

freely, voluntarily and without compulsion or induce-

ment of any sort. The question in each case is whether a

defendant’s will was overborne at the time he confessed.

State vs. Hartley (SD 1982) 326 N.W.2d 226. A statement is

voluntary if it is a product of a defendant’s free and

rational choice. Muncey vs. Arizona (1978) 57 Law Ed.2d

290; State vs. Janis (SD 1984) 354 N.W.2d 916.

“In determining whether a defendant’s will was

overborne in a particular case the court has

assessed the totality of all the surrounding cir-

cumstances . . . both the characteristics of the

accused and the detail of the interrogation.

Some of the factors taken into account have

included the youth of the accused, his lack of

education, has low intelligence, the lack of any

advice of the accused of his constitutional

rights, the length of detention, the repeated and

prolonged nature of the questioning, and the

use of physical punishment such as the depriva-

tion of food or sleep. In all of these cases, the

courts determine the factual circumstances sur-

rounding the confession, assess the psychologi-

cal impact on the accused, and have evaluated

the legal significance and how the accused reac-

ted. See Schneckloth vs. Bustamonte (1983) 36 Law

Ed.2d 854; State vs. Hartley, supra.

Coercion can be psychological as well as physical. Black-

burn vs. Alabama (1960) 4 Law Ed.2d 242. However, if

present, it does not per se make a confession involuntary. |

App. 14

Martin vs. Wainwright, 770 Fed. 2d 918 (11th Circuit 1985.)

Moreover, it is generally recognized that the police may

use some psychological tactics in eliciting a statement

from a suspect. Miller vs. Fenton 796 Fed. 2d 598 (3rd

Circuit 1986.) No one factor is determinative but rather

the court must consider the effect that the totality of the

circumstances had upon the will of the Defendant. I have

read State vs. Faller (SD 1975) 227 N.W.2d 433, wherein

the Supreme Court stated that a failure to advise a Defen-

dant of his Miranda warnings before and in connection

with the lie detector examination made his confession

involuntary and inadmissible. However, certain later

cases seem to dilute the holding in Faller, to wit:

Faller pre-dated Oregon vs. Mathison (1977)

50 Law Ed.2d 714, and the law which has

developed since on the question of custodial

interrogation.

The defendant in Faller was not told he did

not have to take the test or that the test

result would be inadmissible in court. Our

Supreme Court has since determined certain

statements to be voluntary made after a

polygraph examination where the defendant

easel

App. 15

was twice advised that he did not have to

take the test if he chose not to. State vs.

Dubois (SD 1979) 286 N.W.2d 801.

3. Our Supreme Court has since held certain

statements made during and subsequent to a

lie detector test to be voluntary when the

defendant has signed a consent form prior

to the taking of the test and his counsel

approved the suggestion that the defendant

take the test. State vs. Adkins (SD 1975) 225

N.W.2d 598.

4. Our Supreme Court has since stated that a

court must consider the totality of the cir-

cumstances and that the polygraph exam-

ination and the facts surround it is simply

one of the factors. State vs. Caffrey (SD 1983)

332 N.W.2d 269.

In the Caffrey case a juvenile during questioning was

threatened with forcibly taking a polygraph exam. He

was not advised that he could not be compelled to take

the test nor that any results would be inadmissible in

court. The Supreme Court again discusses polygraph

tests and accepted the following language from United

States vs. Little Bear, 583 Fed 2d 411 (8th Circuit 1978):

“As part of the effort to remove or mitigate the

pressures toward self-incrimination generated

by a polygraph situation, we deem it essential

that a person subject to a Polygraph examina-

tion be appraised, at a minimum, of the rights to

refuse to take the test, to discontinue it at any

point, and to decline to answer any individual

questions.”

Based on the above, | feel that the failure to give the

Miranda warnings prior to the polygraph test is simply

App. 16

one of the factors a court must consider in determining

whether a defendant’s statements were voluntary. It is

“not per se determinative. Also see 89 ALR 3d 230.

DISCUSSION OF FACTS:

1. Concerning the polygraph examination the evidence

shows the Defendant was advised she did not have to

talk to law enforcement; she was advised by Lindberg

and DeVaney that she did not have to take the polygraph

examination; she was advised that the test could not be

used in court; she was advised that the test was an

investigatory tool and that the results could implicate her

or eliminate her as a suspect; she signed a consent form

to take the test and authorized the results to be released

to Lindberg; there was no evidence that her mental or

physical condition, at the time she took the test, was abnor-

mal in any way; she had the test fully explained to her

and went through a preliminary testing with the use of

cards; she voluntarily cooperated in everyway. Further, it

seems reasonable that when a person is advised that she

does not have to take a polygraph test and is also advised

that she does not have to speak with law enforcement at

all, this would satisfy the minimum requirements

adopted by our Supreme Court in State vs. Caffrey (SD

1983) 332 N.W.2d 269. I have had the opportunity to listen

to the evidence, view the witnesses, determine their cred-

ibility and give weight to their testimony. I cannot over-

look the fact that the Defendant is an intelligent and

educated adult who understood completely the state-

ments and admonitions given to her prior to the testing

in question.

ti ete es El i ie

App. 17

2. Concerning the characteristics of the accused, the

Defendant did not sleep much prior to the exam; she had

not eaten that day; she is 31 years of age; intelligent;

educated; and employed. She was not deprived of food or

sleep. She could have asked for food and could have left

at any time. I do not feel that the lack of sleep or food

affected the Defendant to such an extent that it would

make her statements involuntary.

3. Concerning the details of the interrogation, there.

were times when the Defendant was highly emotional;

times when she was calm and collected; times when there

were no responses and long pauses. The interrogation

lasted from around 3:30 p.m. to between 9:30 and 10:00

p.m. that evening. Separate people, taking turns, ques-

tioned the Defendant and there were times when the

interrogator would yeli at the Defendant. Different inter-

rogation techniques were used such as false hypothetical

questions and “religion.” There were times when the

Defendant was left alone in the interrogation room. The

Defendant had never been previously interviewed by law

enforcement. She was never informed of her Miranda

rights. The interrogation was terminated because the

interrogator thought the Defendant was going to have a

nervous breakdown. On the other hand, when Duane

Majeres, psychologist, arrived he made an initial exam-

ination and spoke with the Defendant. He testified that

the Defendant was calm and collected and not emo-

tionally upset. Further that the prior interrogation had

minimal effect on her. The Defendant was allowed to

leave the room whenever she wanted; she was not

deprived of food or sleep; she was purchased a diet coke;

and she was free to leave at any time.

App. 18

The one common thread throughout this whole proceed-

ing which was glaringly evident to this court was the

total voluntary cooperation by the Defendant. She volun-

tarily came to the police station, accompanied by her

family and friends; she voluntarily took the polygraph

test and continually answered questions knowing she did

not have to do so; she voluntarily provided physical

evidence; she voluntarily signed consent forms; and she

knew her husband had signed search consent forms. In

short, the Defendant did not have to come down to the

station, did not have to take any tests, did not have to

answer any questions, and could leave at any time she

wanted, and was well aware of her rights in this regard.

The Defendant simply and unequivocally voluntarily

cooperated with law enforcement.

Psychological tactics are not entirely forbidden and emo-

tionalism does not invalidate a confession. Miller vs. Fen-

ton, supra. The Defendant was emotional but the

investigation of the killing of her 3!/2 year old daughter is

an emotional subject for everyone concerned. I am satis-

fied that neither the emotional state of the Defendant nor

the details of the interrogation effected the voluntariness

of her statements.

I have considered the totality of the circumstances and

their affect upon the will of the Defendant and | deter-

mined that, at all times relevant herein, the statements

made by the Defendant were voluntary. The will of the

defendant was not overborne. | am convinced of this

beyond a reasonable doubt. I have had the opportunity to

listen to the Defendant and observe her while testifying,

as well as having full opportunity to give weight to all of

Ss hte ie Mig on ales

~~" ee ee eee a ! eee

App. 19

the testimony given, and I am satisfied that the Defen-

dant is an intelligent, educated and most capable adult.

Il. CUSTODIAL INTERROGATION

The leading case is Oregon vs. Mathison. 50 Law Ed.2d 714

(1977) wherein the court stated:

“Any interview of one suspected of a crime by a

police officer will have coercive aspects to it,

simply by virtue of the fact that the police offi-

cer is part of a law enforcement system which

may ultimately cause a suspect to be charged

with a crime. But police officers are not required

to administer Miranda warnings to everyone

whom they question. Nor is the requirement of

warnings imposed simply because the question-

ing takes place in the station house, or because

the questioned person is one whom the police

suspect. Miranda warnings are required only

where there was [sic] been such a restriction

upon a persons freedom as to render him “in

custody”. It is that sort of coercive environment

to which Miranda by its terms was made appli-

cable, and to which it is limited.”

It is not whether a particular investigation has “focused”

on a person but rather the “custodial” aspects of the

interview. Beckwith vs. U.S., 48 Law Ed.2d 1 (1976.)

South Dakota is in accord:

The proper test in determining whether a per-

son need be given the Miranda warning is not

whether the investigation is focused on an par-

ticular suspect, but rather, whether the person

being questioned is in custody or deprived of

App. 20

his or her freedom to leave. State vs. Bruske (SD

1980) 288 N.W.2d 319.

The mere fact that an interrogation takes place at a police

station does not mean that the interrogation becomes

“custodial.” State vs. McQuillen (SD 1984) 345 N.W.2d 867;

State vs. Dubois (SD 1979) 286 N.W.2d 801.

The facts of this case are adequately set out earlier in this

opinion, however, it should also be noted that on April 9,

1987 the Defendant and her husband advised the police

that they had attained the services of an attorney. Prior to

that time the Defendant never advised or informed law

enforcement that she did not want to answer any of the

questions; she never told them that she wanted an attor-

ney; and she never gave any indication in any other

matter that she did not wish to cooperate with the inves-

tigation.

I am satisfied beyond a reasonable doubt that the inter-

rogation was non-custodial in nature and therefore the

Defendant need not have been read her Miranda rights.

The facts surrounding the interview of April 7 firmly

establish that there was no indications of arrest or

restraint on freedom of movement. There is simply no

evidence to show that the Defendant was not free to leave

at any time. Even she testified to this. Defendant did

testify that she felt she couldn’t leave because of the

investigatory process of law enforcement, however, |

have already determined this to be unbelievable and have

rejected this testimony.

App. 21

CONCLUSION

In conclusion I state that deciding suppression motions

are a grave responsibility since the Court’s function is not

discretionary but rather fact finding. The nature of this

case enhances this responsibility. South Dakota Criminal

Pattern Jury Instructions 1-16-2 provides:

In judging the credibility of the witnesses and

determining the weight to be given their testi-

mony, you may and should consider the oppor-

tunity and capacity of the several witnesses for

seeing and knowing and remembering the mat-

ters about which they have testified; their con-

duct and demeanor while testifying; their

apparent candor, fairness, biased or prejudiced,

if any appears; their interest or lack of interest

in the result of the case; the motive, if any,

actuating them as witnesses; the reasonableness

of their statements; and all the evidence, facts

and circumstances shown tending to shed light

upon the truth or falsity of the testimony of any

witness in the case and the weight to be given

his testimony.

Also, when serving in said capacity the judge is allowed

to ferret out the evidence which he believes is good or the

evidence which he believes to be unworthy, and has the

right to consider his ordinary experiences and observa-

tions in daily affairs of life. Gross vs. Conn. Muth Life

Insurance Company (SD 1985) 361 N.W.2d 259.

I feel I have made this decision with the utmost consider-

ation for both parties and have made this decision not as

the result of reading from a transcript but rather from

being there.

App. 22

The State may prepare the proper Findings, Conclusions

and Order.

BY THE COURT:

/s/ Eugene L. Martin

Eugene L. Martin

Circuit Court Judge

Third Judicial Circuit

App. 23

IN CIRCUIT COURT

THIRD JUDICIAL CIRCUIT

STATE OF SOUTH DAKOTA )

> we

COUNTY OF BEADLE )

STATE OF SOUTH DAKOTA, _—+)_~_—- FINDINGS OF

ae ) FACT,

Plaintiff, ) CONCLUSIONS

v. ) OF LAW AND

DEBRA SUE JENNER, ) ORDER RE:

piel neane ) SUPPRESSION

Defendant. ) MOTION

) (Filed

: Mar 16, 1988)

The Defendant by way of motion has moved to sup-

press any and all statements made by the Defendant

during the course of an interview conducted by law

enforcement officers on April 7, 1987. Defendant’s motion

alleges two grounds for suppression. Those are:

That the statements were not freely and vol-

untarily given by the Defendant, thus violating

her rights under the fifth and fourteenth amend-

ments to the United States Constitution; and

That the interrogation was custodial in

nature and therefore the Defendant should have

been advised of her rights under the Miranda

decision.

The State has conceded at the time of the interview

the Defendant was not given Miranda warnings, but

asserts that the interrogation was not custodial and there-

fore no warnings were required. The State has also

App. 24

asserted that the statements given on April 7 were volun-

tary.

A suppression hearing was held upon Defendant’s

motion on January 6, 1988. Following the hearing, both

parties submitted legal briefs to the Court. On January 29,

1988, the Court issued its Memorandum Decision on the

motion. The Court now sets forth its Findings of Fact,

Conclusions of Law, and Decision.

FINDINGS OF FACT

The death of Defendant’s daughter, Abby Lynn Jen-

ner, occurred on or about April 4 or 5, 1987.

On the morning of April 5, 1987, Beadle County

Sheriff Tom Beerman spoke with the Defendant and her

husband, Lynn Jenner, at the Huron Regional Medical

Center. Defendant’s husband did most of the talking.

Sheriff Beerman spoke with them about ten minutes and

said he would get back to them.

Ill

Around 2:30 p.m. on the afternoon of April 5 Deputy

Sheriff Jim Sheridan obtained a written consent from

Lynn Jenner to search the Jenner residence and also one

of the Jenner vehicles.

App. 25

Later on April 5 Jerry Lindberg, Division of Criminal

Investigation (DCI) agent, called Sheriff Beerman to see if

the Jenners would talk with him. Sheriff Beerman then

called the Jenners and talked with Lynn Jenner and

advised him that Mr. Lindberg would like to speak with

them. Sheriff Beerman also advised that Lindberg was a

DCI agent. Both the Defendant and her husband agreed

to come to the police station to speak with Lindberg.

Between 9:00 and 9:30 that evening, the Defendant and

her husband came to the police station voluntarily and on

their own. Lindberg interviewed both Defendant and her

husband separately. The interviews lasted a total of forty-

five minutes to one hour. Both the Defendant and her

husband were very cooperative.

After the interviews, the Jenners went to their resi-

dence and provided law enforcement with the clothing

they had been wearing on the evening of April 4. They

also provided hair samples. On this date Lindberg had

also interviewed other people besides the Defendant and

her husband.

On April 6, 1987, at about 8:12 a.m. the Defendant

called Sheriff Beerman at his office. Later that morning

Beerman returned the call to the Defendant at the resi-

dence of Lynn Jenner’s father. Defendant stated, “You

probably won’t believe this but my ring has not been

App. 26

washed or scrubbed and that the investigators could have

it.” Later the Defendant had the ring delivered to Captain

McQuillen of the Huron Police Department. On this day

the Defendant’s husband also turned over some jewelry

to law enforcement.

Vil

On April 7, 1987, Sheriff Beerman called Lynn Jenner

and asked that he and his wife come to the sheriff’s

office. The Jenners agreed and came to the sheriff’s office

on their own. Accompanying the Jenners were Lynn Jen-

ner’s parents as well as Reverend Darrell Wagner of the

Wesleyan Church. Both the Defendant and Lynn Jenner

were given polygraph tests separately and alone.

Prior to the test being given, Lindberg spoke with

both the Defendant and her husband. They were advised

as follows:

(A) They did not have to talk with him if

they did not want.

(B) They did not have to take the poly-

graph test if they did not want.

gator’s tool and that the results could implicate

or eliminate them as suspects.

(D) If they did not pass the test, they

would be asked more questions.

(E) Defendant admitted during her testi-

mony that she was told that the test could not be

used in court.

App. 27

Vill

The Defendant asked Lindberg if the test would be

accurate considering her emotional state. Lindberg told

her that the emotional state she was in would have no

bearing on the testing. Both the Defendant and her hus-

band agreed to take the test. Further, the Defendant

signed a consent form to take the polygraph examination.

The consent form provides basically that the Defendant

voluntarily agrees to take the examination; that no threats

or promises have been made or duress or coercion exer-

ted to induce her to take the examination; that the tech-

nique will be fully explained to her and that all questions

will be reviewed with her prior to the examination; and

that she authorizes the release of the results of the exam,

and any recordings, statements, or conversations regard-

ing the interview to Jerry Lindberg, DCI.

DCI Agent Fred Devaney, polygraph examiner, met

with the Defendant and explained the polygraph exam-

ination to her. Devaney also advised the Defendant that

she did not have to take the polygraph test, that all the

questions would be reviewed with her, and that the

results would be released to Lindberg. The Defendant

agreed to take the test. A pre-test was conducted using

cards as the testing tool. The test started around 2:15 p.m.

and lasted until around 3:30 p.m.

App. 28

The examination-interrogation room was twelve foot

by fourteen foot; had one table and three or four chairs; a

filing cabinet; no windows to the outside; a one-way glass

window; no clock; no taping equipment or radio. The

door was shut during the polygraph examination and

then during the subsequent questioning was slightly

open between three to five inches. The room was

“bugged” with a listening device that allowed conversa-

tion to be heard by other agents, but not recorded.

After the polygraph test Devaney left the room for

approximately fifteen minutes. The Defendant was left

alone in the room. Devaney came back into the room after

reviewing the charts and told the Defendant she had lied.

He confronted her with having been responsible for the

death of her daughter. The Defendant became very emo-

tional stating she didn’t do it, she couldn’t have done it.

Later, Lindberg came into the room and talked with the

Defendant for approximately twenty minutes discussing

the accuracy of the polygraph exarnination. Lindberg told

the Defendant she had failed the test and accused the

Defendant of killing her daughter. Devaney then returned

and talked with Defendant until about 5:00 p.m. Devaney

again told Defendant that he felt she was responsible for

the death of her daughter. He stated that Stewart (Defen-

dant’s son) had said that the Defendant had spanked

Abby (victim) on the night of the incident. Devaney also

told the Defendant that if the Defendant’s hair was found

in Abby’s hands, this would not be good. He further

App. 29

advised Defendant that there was a rational Debbie and

an irrational Debbie; that the irrational Debbie did the

deed and that he wanted the truth about the irrational

Debbie. Defendant stated, “The only way I could have

done it is if I psyched out.”

xIl

During this period of questioning Devaney on one

occasion left the room and upon returning, found the

Defendant had gone to the bathroom and had then

returned to the interrogation room. Devaney asked the

Defendant if she wanted a Coke and the Defendant

requested a Diet Coke and Devaney got her one. During

the interviews with Devaney, Defendant’s mood would

swing to the extremes. There were times when she would

cry; times when she would be calm and collected. At one

point, the Defendant wanted to know if Devaney was a

psychologist and if she could be hypnotized to see if she

could remember what happened.

XII

Around 5:00 p.m. Devaney asked Agent Ken Giegling

to take over because he wasn’t being successful. Devaney

introduced Giegling to the Defendant and the Defendant

agreed to talk with Giegling. Giegling had sat in the outer

office listening (phone set) to the interviewing and was

making notes. Devaney and Giegling had worked

together as an interviewing team for several years.

App. 30

XIV

During this interview the Defendant stated she was

going to tell Giegling something she had never told any-

one before and that was when they came home Lynn had

closed the drapes and the door. Giegling told the Defen-

dant that he knew she was responsible for the death of

her daughter; that there was a good Debbie and a bad

Debbie; that there is more there and “I am going to get it

out of you.” Also, he would preface some questions with

the fact that the Defendant was a good mother and Chris-

tian and then go on to ask the question. At one point,

Defendant stated, “Why are you putting me through this.

It’s bad enough to lose a daughter.” Giegling stated that

he was doing his job. There were times when Giegling

would yell at the Defendant. Giegling told the Defendant

that she was not being truthful and that she knew more

than she was telling. During the interview, Defendant

stated, “Could I have done this and not know it? Could |

have psyched out?” Defendant further stated that she

also would like to find out and suggested hypnotism,

truth serum, or to see a psychiatrist. After further ques-

tioning, the Defendant stated, “I may have psyched out

during the night.” During the interview, Defendant’s

mood would fluctuate from calm to excitement to anxiety

and distress. At times she was highly distraught and at

other times she would blank everything out and show no

emotion whatsoever. At one point she held Giegling’s

hand and even laid her head on his lap and cried.

During the interview with Giegling, the Defendant

made statements on four separate occasions wherein she

App. 31

perceived the incident through the eyes of another. On

the first occasion she volunteered a statement about see-

ing the incident through the eyes of her daughter. Defen-

dant stated, “Abby knew the person and was not afraid.

Abby saw a knife.” When asked to describe the knife, the

Defendant held her hands apart about eight inches and

said the handle was wooden and it was Chicago Cutlery.

At this time the Defendant was staring at the ceiling, her

eyes were glassy and she spoke with a different voice. On

the second occasion, the Defendant again started speak-

-ing of seeing the incident through the eyes of her daugh-

ter and Giegling asked, “Is that person leaning over your

daughter, you?” Defendant stated, “I think so.” On a

third occasion the Defendant stated, “Abby saw a black

object.” Defendant further stated there was a black air-

plane belonging to her son, Stewart. The airplane was in

the kitchen area. At this point Deputy Jim Sheridan

obtained a consent to search from Lynn Jenner and the

officers went out to the residence and found the airplane

where the Defendant had indicated it would be. On the

fourth occasion the Defendant perceived those events as

being seen from the corner of the room and stated she

saw a person with a knife.

XVI

The statements made by Defendant on the four occa-

sions referred to in Finding XV were volunteered by the

Defendant and not made pursuant to any questions asked

her by anyone.

App. 32

XVII

Giegling ended the interview sometime between 9:30

and 10:00 p.m. because he felt the Defendant was going to

have a nervous breakdown. Duane Majeres, local psy-

chologist, was called immediately and arrived sometime

between 9:30 and 10:00 p.m.

XVIII

When the Defendant and her husband were reunited,

the Defendant stated, “I did it, I did it.” She then said to

her husband, “Did you help me?” Her husband stated he

did not help her.

XVIX

Duane Majeres, psychologist from Community Coun-

seling in Huron, was called and arrived between 9:30 and

10:00 p.m. Upon entering the Correctional Facility he

heard a wailing sound. He was introduced to the Defen-

dant and after speaking with her determined she was not

suffering from psychosis and had no suicidal propen-

sities. The Defendant was clearly responding. Further, the

Defendant’s previous interviews had minimal effect on

her and she was very much under control.

The Defendant, Debra Sue Jenner, is thirty-one years

of age. She is an agri-research technician and has an

associate college degree.

App. 33

XXI

The Defendant was aware that she did not have to

take the polygraph test; that she did not have to speak to

anyone; that the polygraph test results could not be used

in court.

XXII

The Defendant was never threatened or restrained in

any way.

XXIll

The Defendant never told anyone that she did not

want to take the polygraph. The Defendant never asked

that questioning stop. The Defendant never requested the

presence of an attorney. The Defendant never requested

to leave at any time.

XXIV

The Defendant voluntarily took the polygraph test;

voluntarily went to the Corrections Center; voluntarily

answered questions; voluntarily provided hair samples,

clothes and jewelry and was aware that her husband had

consented to several searches.

XXV

Up to and including April 7, 1987, Lynn and Deb

Jenner cooperated fully with law enforcement officers by

giving interviews, consenting to searches, consenting to

App. 34

polygraph tests, and turning over various items of evi-

dence.

XXVI

At no time were any threats or any form of physical

violence exerted towards Deb or Lynn Jenner.

XXVII

At no time relevant herein was either Defendant or

Lynn Jenner ever advised of their Miranda rights. Fur-

ther, neither the Defendant nor her husband ever

requested the services of an attorney; never requested

that the questioning stop; and never refused to answer

any question.

XXVIII

The Defendant was indicted by a grand jury and

arrested on August 28, 1987, which was the first time the

Defendant was physically taken into custody.

CONCLUSIONS OF LAW

This Court has jurisdiction over the parties and the

subject matter herein.

In the event any of these Findings of Fact or Conclu-

sions of Law are improperly designated, they are to be

considered interchangeable.

App. 35

Ill

The totality of the circumstances establishes beyond a

reasonable doubt that the Defendant’s statements on

April 7, 1987, were freely and voluntarily given and were

not the result of compulsion or inducement of any sort.

The totality of the circumstances establishes beyond a

reasonable doubt that Defendant’s will was not over-

borne at the time of her statements on April 5, 1987.

The totality of the circumstances establishes beyond a

reasonable doubt that Defendant’s statements on April 7,

1987, were the product of free and rational choice.

The evidence establishes beyond a reasonable doubt

that the Defendant was not in “custody” when she was

interviewed on April 7, 1987.

Vil

During the interview on April 7, 1987, there were no

indications of arrest or restraint of the Defendant’s move-

ment. The Defendant was able to leave at any time.

VIII

The evidence establishes beyond a reasonable doubt

that the interview of the Defendant on April 7, 1987, was

App. 36

not a “custodial interrogation” and therefore officers

were not required to give the Defendant Miranda warn-

ings.

The Court hereby incorporates its Memorandum

Opinion of January 29, 1988, as additional Findings of

Fact and Conclusions of Law.

ORDER

Based upon these Findings of Fact and Conclusions

of Law and the Court’s Memorandum Opinion, the

Defendant’s motion to suppress is hereby denied.

Dated this 16 day of March, 1988, at Huron, South

Dakota.

BY THE COURT:

/s/ Eugene L. Martin

Honorable Eugene L. Martin

Circuit Court Judge

ATTEST:

/s/ Adrianne Schinderling

Adrianne Schinderling

Clerk of Courts

By:

Deputy Clerk

SEAL

ee eS ee ae Ree ee rT

een GAs.

App. 37

STATE of South Dakota, Plaintiff and

Appellee/Cross-Appellant,

Vv.

Debra Sue JENNER, Defendant and

Appellant/Cross-Appellee.

Nos. 16211, 16240.

Supreme Court of South Dakota.

Argued March 20, 1989.

Decided Feb. 14, 1990.

Rehearing Denied March 26, 1990.

David R. Gienapp of Arneson, Issenhuth & Gienapp,

Madison, for defendant and appellant/cross-appellee,

William E. Matheson, Sioux Falls, on the brief.

John W. Bastian, Asst. Atty. Gen., Pierre, for plaintiff

and appellee/cross-appellant, Roger A. Tellinghuisen,

Atty. Gen., on the brief.

HENDERSON, Justice (on reassignment).

PROCEDURAL HISTORY/ISSUES

This criminal case arose after the body of a three and

a half year old girl, Abby Jenner (Abby) was discovered

mutilated and stabbed to death in her bed on April 5,

1987. Evidence indicates she tried to ward off her

attacker. The Beadle County Grand Jury issued an indict-

ment charging Abby’s mother, Debra Sue Jenner (Debra),

with one count of second degree murder (SDCL 22-16-7)

and one count of first degree manslaughter (SDCL

22-16-15(3)). After a trial in the Circuit Court for Beadle

County, the jury found Debra guilty of second degree

murder. She was sentenced to life imprisonment. Debra

App. 38

appeals her conviction (Notice of Appeal 16211) denoting

eight separate issues which we observe are allegations

that the trial court erred in essentially four regards:

I. Debra’s motion to suppress her statements

made during police questioning, on April

7, 1987, should have been granted;

Il. The jury was not correctly instructed

regarding unconsciousness, amnesia, and

insanity;

III. A state-requested motion in limine regard-

ing third party perpetrator evidence was

improperly granted; and,

IV. Evidence was insufficient to support her

conviction.

~Holding-

We affirm Appellant’s conviction, rejecting her argu-

ments. We do not reach the issues raised by the State’s

notice of review (16240), wherein the State urges that

second degree murder and first degree manslaughter are

not alternative counts, as the trial court instructed the

jury. We therefore uphold the jury’s verdict.

FACTS

Appellant is the wife of Lynn Jenner, (Lynn) and the

mother of a daughter, Abby, born November 10, 1983, and

a son, Stuart, born July 27, 1982. Abby had an allergy to

milk products, and had difficulty sleeping at times. Dur-

ing the evening of April 3, 1987, Abby awoke in the night,

requiring the attention of her parents. During a trip on

April 4, 1987, she soiled her pants twice. Shortly before

App. 39

9:00 a.m. on Sunday, April 5, 1987, Lynn entered Abby’s

bedroom to awaken her. He found her in bed, lying

totally still, with her mouth full of blood. He screamed,

whereupon Debra came over from the master bedroom,

approximately twenty feet away. Debra sat on the edge of

Abby’s bed and touched her. Abby’s body was cold, her

eyes dilated. Debra telephoned “911” at 8:59 a.m., gave

her address, then relating that a three year old girl was

there, with blood and “organs” coming out of her mouth.

Debra’s tone of voice, during this conversation, was very

loud. An ambulance was dispatched.

Before the ambulance arrived, at 9:05 a.m., Debra

made an additional telephone call to Doctor Cynthia Kor-

tum, M.D., her family doctor, during which her tone of

voice was quite calm. She informed Dr. Kortum, matter of

factly, that Abby had died during the night and requested

an autopsy. Debra, in the six minutes between her 911 call

and the ambulance’s arrival, also telephoned her parents,

Bruce Schafer and Janet Schafer, and her pastor, Darrel

Wagner. At the time the ambulance arrived, she was

engaged in still another call, to her friends, the Brink

family. The ambulance, her parents, and officer William

Ehlers, of the Huron Police Department, arrived at the

Jenner home within moments of each other. An emer-

gency medical technician entered the Jenner home, found

no signs of life in Abby, and carried her, still enwrapped

in bloodstained bedding, out to the ambulance. The

ambulance then proceeded to the Huron Regional Medi-

cal Center.

The ambulance crew noticed numerous cuts on

Abby’s body. Later examination revealed that seventy stab

wounds were inflicted on Abby. Dr. Brad Randall, the

App. 40

forensic pathologist who performed Abby’s autopsy, tes-

tified at trial that some wounds were of a slashing type,

consistent with a blade sharpened on one edge and dull

on the other. Other wounds were punctures, which could

have been made by a model airplane owned by Stuart

which was found next to the sink in the Jenners’ kitchen.

In particular, the geometry of one wound was described

by Dr. Randall as “relatively unique”, matching the

model plane, as markings around the wound corre-

sponded to a protrusion on the back of the plane and its

rear fins. Dr. Randall characterized numerous cuts on

Abby’s arms and hands as “defensive” in nature, i.e.,

inflicted as Abby, who laid on her stomach, attempted to

fend off the blows. He termed the attack a “frenzy type”,

evidenced by repeated blows with no particular target.

He estimated that Abby died during the early morning

hours of April 5, 1987.

No members of the Jenner family accompanied Abby

to the hospital. At 9:17 a.m., six minutes after delivering

Abby to the hospital, the ambulance driver, Mike Ball,

returned to the Jenner home to retrieve equipment. Ball

testified that appellant was talking on the telephone nor-

mally, in an utterly calm manner. Debra and Lynn went to

the hospital only after Janis LaMont, a registered nurse,

called them at home requesting information. Once at the

hospital, according to LaMont, Debra appeared restless,

and paced in the hallway. Lynn stayed in the waiting

room, head in hands. Shirley Jenner, Debra’s mother-in-

law, remarked that she wished Debra would cry. David

Bender, a hospital maintenance worker, spoke to Shirley,

who was, herself, a hospital worker, for about 20 minutes.

At one point, Shirley Jenner left him to converse with

———————————E

Nee TS

App. 41

Debra. He testified that he heard Debra remark that it

was a “screwed-up day”, and asked “why couldn’t this

have been a simple death?” He also heard Debra remark,

“I don’t know how the hell it happened”, in reference to

the cuts, wounds and scratches upon Abby’s lifeless

body. At one point, Debra asked Shirley who Bender was.

When Shirley identified him as a hospital maintenance

worker, Debra responded: “Oh shit.”

While at the hospital, Beadle County Sheriff Tom

Beerman (Beerman) spoke to Debra and Lynn. According

to Beerman’s testimony at trial, he asked Debra if Abby

had been sick, and Debra replied that Abby had been

“hyper” for a couple of days, that she had stayed up with

Abby on Friday night (April 3, 1987), and that Abby had

soiled her pants a couple of times on Saturday afternoon.

Debra also related that she checked on Abby at midnight

Saturday night, when Abby was asleep, and did not see

her again until after Lynn found her the next morning.

Debra and Lynn, Beerman was told, then went to bed,

only to be disturbed by noise from a party next door.

They arose, looked out a window, and watched three

intoxicated individuals enter a car and drive away. Per

Debra, they then returned to bed and slept until the next

morning. Lynn, who discovered Abby’s body, informed

Beerman that he went into Abby’ room to waken her for

church, noticed something wrong, turned her over onto

her back, and saw blood. He looked in Abby’s eyes and

knew that she was dead.

Meanwhile, when the Jenners, mother and father of

the victim, were at the hospital, Deputy Chief Robert

McQuillen (McQuillen) and Sergeant William Ehlers

(Ehlers) of the Huron Police Department went to their

App. 42

home. There they found Lynn’s father, Merlin Jenner, and

Ruby Wagner, wife of the Jenners’ pastor. Examining

Abby’s bedroom, they immediately noticed that her bed-

ding had been replaced. After Mrs. Wagner told him she

had already cleaned the room, as she did not want the

Jenners to come home and see the mess, McQuillen told

those present to leave the room and house alone.

McQuillen and Ehlers briefly went to the hospital, and

then returned to the Jenner home. They noticed that the

bedding in Abby’s room had been changed again.

McQuillen told everyone to leave. The bedding, not taken

to the hospital with Abby, was recovered that morning

from defendant's father, Merlin Jenner, who had placed it

in his car.

Huron police detective Dave Rand, Dr. Ilya Zeldes, a

forensic scientist, and Rex Riis, a criminologist from the

State Forensic Laboratory in Pierre, examined the Jenner

home later that day. They found no evidence of forced

entry. Bloodstains were discovered on the headboard of

Abby’s bed, on the wall behind the bed, on the bathroom

floor, on a wall-mounted light switch in Abby’s room and

on a telephone near the kitchen. Abby’s blood was there-

fore found in different parts of the Jenner home. Abby’s

mattress was turned over before they arrived, with the

bloody side facing down. A knife which was consistent

with some of Abby’s slashing wounds was in a silverware

tray atop a microwave oven near the kitchen sink. These

officers removed clothing, similar to clothes Debra

claimed to have worn to bed on the night Abby was slain,

from a hamper next to a washing machine in the base-

ment. No identifiable fingerprints were found.

App. 43

Debra and Lynn went to Merlin’s house after they

left the hospital that day. While there, Mary Brink, a

family friend, noticed that Debra washed her hands sev-

eral times that morning. When asked what the problem

was, appellant responded: “I can’t get the smell off of my

hands.” Debra and Lynn eventually left Merlin’s for

Debra’s parent’s home, where Beerman reached them by

telephone, sometime after 5:00 p.m. Beerman asked thein

to come down to his office to be interviewed by Jerry

Lindberg (Lindberg), a Division of Criminal Investigation

(DCI) agent.

Debra was interviewed by Lindberg for approx-

imately an hour and a half, starting at 8:30 p.m. During

this interview, she repeated much of the factual back-

ground she had earlier given to Beerman. There was one

significant difference, however, as she told Lindberg that

she did enter Abby’s room that morning just before Lynn

discovered Abby’s body, but noticed nothing unusual.

Also, according to Lindberg’s trial testimony, Debra

claimed that she could not remember whether the outside

doors of her home were locked the night Abby died.

Lindberg observed that Debra was very calm and col-

lected during the interview. After the Jenners left, Beer-

man, Riis, and Dr. Zeldes went to the Jenner’s home,

where hair and blood samples were given by the Jenners,

by consent.

The next day, April 6, 1987, Debra offered to turn

over her class ring, which she thrice assured him had not

been “scrubbed”. As she later testified that she wore it

from Saturday night, April 4, through Sunday night,

April 5, the ring, per her statements, must have been

washed at least four times while she wore it (three times

App. 44

while at Merlin’s house, according to Kay Brink’s testi-

mony, and once, additionally, in the bathtub at her home

after Lynn discovered Abby’s body). During this conver-

sation, she asked Beerman why the police were not check-

ing persons who had been at the party next door.

Beerman replied that they were being investigated. Lynn,

later that day, turned the ring over to McQuillen and

Rand, together with other personal jewelry.

Beerman telephoned Lynn Jenner, on Tuesday, April

7, 1987, and asked that he and Debra come to his office

for a few more questions. They agreed and arrived

shortly after 2:00 p.m., accompanied by Lynn’s parents

and their Pastor, Darrell Wagner. DCI agent Lindberg

spoke to them together, for five to ten minutes, and asked

them to submit to a polygraph test. Lindberg explained

that the tests were strictly voluntary, and that the poly-

graph was used as an investigative tool to help eliminate

or generate suspects. Lynn readily consented to testing,

and Debra consented after being assured that her grief

would not affect the test results. The Jenners were then

separated, and DCI agent Fred DeVaney (DeVaney) pre-

sented a polygraph consent form to Debra for signature.

As she read the form, he advised her that she did not

have to take the test, and discussed the test procedure.

She signed the consent form. DeVaney then administered

the polygraph test, which lasted 90 minutes. During the

test, Debra showed no reluctance or hesitation to answer

questions. According to DeVaney’s trial testimony, Debra

theorized that two men had broken into the house and

killed Abby. She opined that it had to be two men - one

to kill, and one to open doors without getting blood on

App. 45

the doorknobs. Between 3:30 and 4:00 p.m., having fin-

ished the test, DeVaney left Debra alone in the room for

five to ten minutes, while he reviewed the polygraph

charts. The charts indicated that she had been deceptive

in her responses. DeVaney asked Lindberg to fonow this

up. |

Lindberg then talked with Debra for 15 to 20 min-

utes. During this interview, Debra admitted past prob-

lems with physical discipline upon the deceased child,

including one specific incident where she spanked Abby

with a wooden spoon so hard that the spoon broke. She

also stated that she and Lynn locked their bedroom door

at night to prevent their children from crawling into bed

with them. When asked if she hurt Abby, she replied: “1

don’t remember[,]” and “I didn’t do this, but I could have

psyched out during the night.” When asked, outright, if

she killed Abby, she simply denied remembering it. At

one point, according to Lindberg’s trial testimony, she

said: “A person could just go click and go in and do this

and clean up the mess and not remember it.” She denied

noticing any smell of blood, even after touching Abby

after Lynn found her dead, and related that she noticed

nothing unusual when she entered Abby’s room imme-

diately before that (at trial, Debra testified that she only

glanced at Abby, and focused entirely on the floor when

passing around the bed on the way to the closet). During

this discussion, Debra’s demeanor fluctuated between

being calm and visibly upset with great rapidity.

At 4:00 p.m., DeVaney replaced Lindberg and inter-

viewed Debra for another hour. She exhibited no reluc-

tance or hesitancy to continue the interview. According to

DeVaney, Debra repeated that she might have “psyched

App. 46

out” and done it, and asked if he was a psychologist (he

was not). She also volunteered to him that she wanted to

use any means in DeVaney’s words, “to get the truth out

of her if she had done it[,]” including the use of a psy-

chologist or hypnosis. DeVaney testified that he left the

room at one time, and came back to find that she had

gone to the bathroom and returned while he was out. He

also procured a Diet Code for her, after she declined an

offered Coca-Cola. At approximately 5:00 p.m., he discon-

tinued his questioning because he perceived that she was

looking down on him after he responded negatively to

her inquiry as to whether he was a born-again Christian.

He asked her if she was willing to continue the interview

with another DCI agent, Ken Giegling (Giegling). She

agreed.

During this interview, which lasted until 9:00 p.m.,

Debra told Giegling that neither her husband nor her son

killed Abby. As in the earlier interviews that day, she

indicated that she could not recall killing Abby, yet

repeated that she might have “psyched out.” According

to Giegling, Debra asked his help in spurring her mem-

ory, and offered to undergo hypnosis, take a “truth

serum”, or talk to a psychologist to that end. Debra

related that, in Giegling’s words, “from the start of all

this that she has had it in the back of her mind that she

could have done this.” She also informed him that she

was afraid she had committed “this horrible premedi-

tated act[.]” At another point, Giegling testified, she

grabbed his hand and told him that she recalled her

husband locking the front door of her home on the night

in question, a fact that she had told nobody else (she

claimed at a later suppression hearing, and at trial, that

App. 47

she could not remember if this memory concerned the

night Abby died).

DeVaney also testified that Debra described the kill-

ing several times, as seen through Abby’s eyes. The first

such account came, according to Giegling, without any

prompting: Abby was not afraid, knew the perpetrator,

trusted the person, and saw a knife, a Chicago Cutlery

knife which she had seen before. The second time Debra

reconstructed Abby’s point of view, she indicated that her

own hair was down, and Abby grabbed it. (Analysis of

hair samples taken from Abby’s hands and arms indi-

cated that these hairs were consistent with samples of

either Abby’s or Debra’s hair, but not Lynn’s). Debra

related that a black object was in Abby’s room at the time,

and identified it as a black model airplane which

belonged to her son. When asked where the plane was

then, Debra informed Giegling that it was on the counter

in her kitchen. Giegling then left Debra and informed the

police of the model airplane and its location. They found

it exactly where Debra said it would be (this is the model

plane, the shape corresponding to wounds on Abby’s

body). Up until that point, the police had been unaware

of the model plane. At the suppression hearing and trial,

Debra disputed Giegling’s account. She testified that

Giegling had simply asked if there were any sharp toys in

the house, to which she replied by identifying the model

and giving its location.

The last time Debra described events in Abby’s bed-

room for Giegling, she changed her position, stating that

a man was standing over Abby’s bed with a knife in his

hand; further, that he took the knife with him when he

left.

App. 48

At approximately 9:00 p.m., Giegling became con-

cerned with Debra’s demeanor, which had been changing

throughout the interview. He brought Lynn into the

room, and Debra, as Giegling told it, cried out, “I did it, I

did it, I did it[,]” which statement her husband then

acknowledge by saying “You did it”, (Debra and Lynn

later disputed Giegling’s account on this point, by testi-

fying that she actually said “I did it, didn’t I1?”). Debra

then asked Lynn if he helped her, to which he replied that

he had not. She then said: “If you didn’t help me how

could I do this, clean up and go outside?” No further

questioning was undertaken by the police that night.

At Giegling’s request, Duane Majeres, a psychologist

and counselor was called in to assess Debra’s mental state

after the police interviews. He found her to be well-

oriented and very calm. After this psychological inter-

view she left. ;

Before trial, Debra moved to suppress all of her state-

ments elicited during the April 7 interviews on the

grounds that she was subjected to custodial interrogation

without being given Miranda warnings and that her state-

ments were involuntary. At a suppression hearing on

January 6, 1988, Debra testified, inter alia, that she had no

basis for feeling that she could not leave the police station.

Further, she testified that although she was offered no

food during the interviews that day, she was not aware of

even being hungry, as she was “concentrating on the

other things.” The trial court, after issuing detailed find-

ings of fact and conclusions of law, denied the motion to

suppress.

App. 49

Debra’s trial lasted from February 24, 1988, until

March 15, 1988. The jurors’ verdict determined her to be

guilty of second degree murder, but not guilty of first

degree manslaughter. The court instructed the jury that

these were alternative counts.

DECISION

Debra’s Notice of Appeal (16211)

I. Suppression of Debra’s Statements on April 7, 1987.

Debra first asserts that the trial court erred in deny-

ing her motion to suppress testimony regarding incrimi-

nating statements she uttered during the interviews on

April 7, 1987. Her argument is two-pronged: 1) The State

failed to prove, beyond a reasonable doubt, that her

statements were freely and voluntarily made; and, 2) The

interviews were custodial in nature, undertaken without

benefit of Miranda warnings. We reject both arguments.

Our standard of review regarding voluntariness of

confessions or incriminating statements is well estab-

lished. The State has the burden of proving beyond a

reasonable doubt that such confessions or incriminating

statements were freely and voluntarily made. State v.

Faehnrich, 359 N.W.2d 895, 898 (S.D.1984); State v. Janis,

356 N.W.2d 916, 918 (S.D.1984). If the trial court finds the

confession or incriminating statement was voluntary

beyond a reasonable doubt, such finding is binding upon

this Court unless we conclude from our review of the

record that the finding is clearly erroneous. State v. Al-

bright, 418 N.W.2d 292, 297 (S.D.1988); Faehnrich, at 898;

State v. Headrick, 357 N.W.2d 268, 270 (S.D.1984). The trial

App. 50

court must have reviewed the totality of the circum-

stances surrounding the interrogation. Albright, at 297;

Faehnrich, at 898. See also State v. Caffrey, 332 N.W.2d 269

(S.D.1983); State v. Lyons, 269 N.W.2d 124 (S.D.1978). In

reviewing the trial court’s findings on voluntariness, we

consider the evidence in the light most favorable to the

finding. State v. Volk, 331 N.W.2d 67, 70 (S.D.1983). On

this record, we do not deem the trial court’s finding to be

clearly erroneous. We are not unmindful of the plenary

(de novo) review rule in the federal courts. Historically,

we have not adopted this rule nor do we now. We do not

perceive that the fifty sovereign states have been manda-

ted to follow the plenary review rule. Miller v. Fenton, 474

U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). We would

not have reached a different result under that rule were it

heretofore or now adopted. We have thoroughly

reviewed the unique facts and conclude that the totality

of the circumstances do not justify a conclusion of invol-

untariness.

Specifically, in response to Justice Morgan’s dissent —

on the plenary (de novo) rule in this case, the stare decisis

in this Court reveals that our standard of review regard-

ing voluntariness of confessions is well established, as set

out in the following cases in which current members of

this Court participated, namely:

State v. Albright, 418 N.W.2d 292 (S.D. 1988)

(authored by Justice Miller, joined by Justices

Morgan and Henderson, with Chief Justice

Wuest concurring in result and Justice Sabers

concurring on voluntariness but concurring in

result because of a search warrant issue).

App. 51

State v. Gregg, 405 N.W.2d 49 (S.D.1987) (autho-

rized by Justice Sabers, on reassignment, joined

by Chief Justice Wuest and Justice Henderson,

with Justice Morgan concurring on the suppres-

sion issue, and former Chief Justice Fosheim

dissenting on a different issue).

State v. Faehnrich, 359 N.W.2d 895 (S.D.1984) (a

unanimous opinion authored by Justice Hender-

son, joined by then Chief Justice Fosheim, Jus-

tices Wollman and Morgan, and then Acting

Justice Wuest).

State v. Headrick, 357 N.W.2d 268 (S.D.1984) (a

unanimous opinion by then Acting Justice

Wuest, joined by then Chief Justice Fosheim and

Justices Wollman, Morgan and Henderson).

State v. Janis, 356 N.W.2d 916 (S.D.1984)

(authored by then Chief Justice Fosheim, joined

by Justices Morgan and Henderson, and Retired

Justice Dunn, with Justice Wollman dissenting,

on application of the facts to the clearly erro-

neous rule).

State v. Caffrey, 332 N.W.2d 269 (S.D.1983)

(authored by Justice Wollman, joined by Justices

Morgan and Henderson, with Justices Fosheim

and Dunn concurring in result).

State v. Cowell, 288 N.W.2d 322 (S.D.1980) (a

unanimous opinion authored by Justice Fos-

heim, joined by then Chief Justice Wollman and

Justices Dunn, Morgan and Henderson).

State v. DuBois, 286 N.W.2d 801 (S.D.1979) (a

unanimous opinion authored by Circuit Judge

Dobberpuhl, sitting for Henderson, J., disqual-

ified, joined by then Chief Justice Wollman, and

Justices Dunn, Morgan and Fosheim).

App. 52

State v. Lyons, 269 N.W.2d 124 (S.D.1978) (a

unanimous opinion written by Circuit Judge

Jones, sitting for disqualified Justice Zastrow,

joined by then Chief Justice Wollman, and Jus-

tices Dunn, Porter and Morgan).

A finding by the trial court, that a confession or

incriminating statement was beyond a reasonable doubt

voluntarily made, is binding upon this Court, unless we

conclude from our review of the record that the finding is

clearly erroneous. State v. Hall, 353 N.W.2d. 37 (S.D.1984),

written for this Court by Justice Morgan.

The facts of this case, set out at length above, over-

whelmingly indicate that Debra participated in the April

7 interviews of her own accord and cooperated fully. She

and her husband, accompanied by his parents and the

family pastor, came to the police station on their own

volition. She was orally advised that the initial polygraph

test was strictly voluntary, and that they were under no

obligation to talk to the police. This oral warning was

given twice, separately, by Agents Lindberg and

DeVaney. See, State v. DuBois, 286 N.W.2d 801 (S.D.1979).

Debra aiso signed a polygraph consent form before the

test was administered, immediately after DeVaney

advised her that she did not have to take the test and

explained the process to her. See, State v. Adkins, 88 S.D.

571, 225 N.W.2d 598 (1975). The polygraph test was not

used as a psychological threat, or figurative “rubber

hose”, in the manner proscribed in State v. Caffrey, 332

N.W.2d 269, 272 (S.D.1983). Indeed, this Court, in Caffrey,

cited DuBois and Adkins as instances where past-poly-

graph statements were vcluntary. On the facts of this

ee ee ee eee te ee

App. 53

case, the polygraph test did not render Debra’s state-

ments involuntary.

Important, also, to our consideration of the totality of

circumstances presented here, are Debra’s repeated dem-

onstrations of a willingness to participate in the subse-

quent interviews. The suppression hearing testimony of

all three agents who interviewed her reveal cooperation.

She specifically suggested, to DeVaney, that she be inter-

viewed by a psychologist or be hypnotized in order to

reach the truth. Similarly, during Giegling’s interview, she

offered to undergo hypnosis, psychological examination,

or take a “truth serum” to jog her memory. She asked

Giegling to “jar her memory.” She exhibited manifesta-

tions of voluntariness throughout these interviews, weak-

ening any supposition that her will was overborne. Her

subjective intent and state of mind is indicated by her

oral expressions to the officers that she wanted to find

out what happened to her slain child. Even her emotional

State at the end of the interviews does not mandate, by

itself, a finding of involuntariness, as even collapse into

unconsciousness after a confession might only be a

release from the terrible burden of concealing a heinous

crime. Miller v. Fenton, 796 F.2d 598, 606, 612 n. 13 (3rd

Cir.1986), cert. denied, sub nom, Miller v. Neubert, 479 U.S.

989, 107 S:Ct. 585, 93 L.Ed.2d 587. Mere emotionalism

does not necessarily invalidate a confession. Miller, id, at

613.

Further, the April 7 interviews were part of a chain of

instances of Debra’s cooperation with the police. She

signed a consent form allowing police to search her home

on April 5. She voluntarily went to the Correction Center

App. 54

on April 5, late in the evening, and submitted to question-

ing by Lindberg. She voluntarily provided the police with

clothing and jewelry, going so far as to telephone Sheriff

Beerman, on April 6, to offer her class ring for analysis.

She consented to giving hair and blood samples. We

cannot, on this record, hold the trial court’s determina-

tion of voluntariness to be clearly erroneous. State v.

Gregg, 405 N.W.2d 49, 52 (S.D.1987). Exhaustive detailed

findings were entered below. On other facts, the length of

examinations, see, Colorado v. Connelly, 479 U.S. 157, 163,

107 S.Ct. 515, 520, 93 L.Ed.2d 473, 482 (1986), or her lack

of food! might support a finding of involuntariness. Here,

however, Debra was not deprived of rest, refreshment, or

relief. Hawkins v. Lynaugh, 844 F.2d 1132, 1140 (5th

Cir.1988). Her age (31), and education (two-year college

degree) are factors weighing in favor of the trial court’s

findings. She was neither young, uneducated or weak-

minded, and thus, capable of some degree of resistance to

interrogation, had she chosen to resist. Miller, at 606.

The second leg of Debra’s suppression argument,

grounded on lack of Miranda warnings, fails because the

April 7 interviews were not undertaken in a custodial

1 This Court has observed that deprivation of food and

sleep, inflicted as punishment, may indicate involuntariness.

See, State v. Hartley, 326 N.W.2d 226, 230 (S.D.1982) (quoting

Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d

854 (1973)). Here, however, her lack of food was due to lack of

appetite, and Debra testified that she was unaware of hunger

and asked for no food. A lack of food was self-inflicted. She had

a plate of lunch before her on this day and refused it, as she was

not hungry; later, at 2:00 p.m., she went to the police station.

App. 55

situation. As noted above, Debra went to the police sta-

tion voluntarily, was not restrained in any manner during

her stay there, and was not taken into custody at any

point. See, State v. Graves, 83 S.D. 600, 163 N.W.2d 542

(1968). Her own testimony at the suppression hearing

indicates that no action by the police gave her any indica-

tion that she was not free to go. Morgan, J. in his dissent

reflects on this factual issue but one slice of her testi-

mony. She also testified that she had no restraint upon

her. The trial judge was in a better position to decide any

conflicts in evidence as he was exposed to the conduct,

temperament, and demeanor of the witnesses involved.

State v. Brim, 298 N.W.2d 73, 78 (S.D.1980). It is for the

trial court to resolve conflicts in the evidence. State v.

McQuillen, 345 N.W.2d 867, 871 (S.D.1984). As the United

States Supreme Court observed in California v. Beheler, 463

U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275, 1279

(1983):

Although the circumstances of each case must

certainly influence a determination of whether a

suspect is “in custody” for purposes of receiving

Miranda protection, the ultimate inquiry is simply

whether there is a “formal arrest or restraint on

freedom of movement” of the degree associated with a

formal arrest. (emphasis added).

Beheler built on a foundation contained in Beckwith v.

United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1

(1976), wherein the Supreme Court held that custody or

deprivation of freedom to leave was the proper test for

determining whether Miranda warnings need be given,

not mere focus on a suspect. See also, State v. Perkins, 444

N.W.2d 34 (S.D.1989); State v. Bruske, 288 N.W.2d 319

App. 56

(S.D.1980). In State v. McQuillen, 345 N.W.2d 867, 870

(S.D.1984), we stated:

This Court has set forth a number of factors to

be examined in determining whether an inter-

rogation is custodial or noncustodial: probable

cause to arrest, subjective intent of the defen-

dant, focus of the investigation, nature of the

interrogator, nature of the suspect, time and

place of the interrogation, nature of the inter-

rogation, and purpose of the investigation. (cita-

tions omitted).

Here, Debra’s subjective intent was clearly to cooperate

fully.2 She, a mature, educated adult, was not under any

restraint, at any time. Unattended, she left the interroga-

tion room at oxie point, at which time she testified that

nothing prevented her leaving. Jenner came and left of her

own accord. This totally reinforces that she was not in

custody. All these facts lead us to affirm the trial court.

This is consistent with Oregon v. Mathiason, 429 U.S. 492,

496-7, 97 S.Ct. 711, 714, 50 L.Ed.2d 714, 719 (1977):

Any interview of one suspected of a crime by a

police officer will have coercive aspects to it,

simply by virtue of the fact that the police offi-

cer is part of a law enforcement system which

may ultimately cause the suspect to be charged

2 The trial court’s Memorandum Opinion dated January 29,

1989, was incorporated by reference into the formal Findings Of Fact

and Conclusions Of Law as reflected in Fact #18: “Lynn Jenner

testified that up through and including April 7, 1987, he and the

Defendant were fully cooperative including interviews, searches,

polygraph tests, and the turning over of jewelry and clothes. During

this time no threats or physical violence were made against he or the

Defendant.” (emphasis supplied-ours).

App. 57

with a crime. But police officers are not required to

administer Miranda warnings to everyone whom

they question. Nor is the requirement of warning to

be imposed simply because the questioning takes

place in the station house, or because the questioned

person is one whom the police suspect. Miranda

warnings are required only where there has been

such a restriction on a person's freedom as to render

him “in custody.” It was that sort of coercive

environment to which Miranda by its terms was

made applicable, and to which it is limited.

(emphasis supplied).

In short, Debra was neither in custody nor deprived of

her freedom of movement.

Our recent decision in McDowell v. Solem, 447 N.W.2d

646 (S.D.1989), page 649 thereof, as regards no Miranda

warnings on a taped interview of McDowell, is very akin

to the case at hand. We expressed therein: “absent a

custodial situation, Miranda warnings are not required

prior to commencing an interrogation.” We cited not only

the Miranda decision but also State v. Hall, 353 N.W.2d 37,

40 (S.D.1984). We noted that McDowell willingly agreed

to partake in interviews with the police. We noted that

Debra Jenner likewise willingly agreed to participate in

interviews with investigative agents here. In McDowell,

we mentioned that McDowell, in the interviews, would

express his opinion and ideas regarding the scheme of

execution for the murder of his wife. Here, also, Debra

Jenner had a theory as to the possible murder of her

child. In McDowell, we mentioned that there were no

restrictions on his travel; here, Debra Jenner had oppor-

tunity to come and go. In McDowell, we held that the

taped interviews could be played to the jury ” . . . as the

App. 58

law enforcement officers were not required to give

McDowell his Miranda warnings prior to these inter-

views.” Therefore, our decision here is consistent with

the McDowell decision. McDowell was a unanimous deci-

sion of this Court including the same composed members

of this present Jenner decision.

We note appellant’s attack on the conduct of the law

enforcement officials involved in the questions to appel-

lant. We express that police coercion, in and of itself, does

not invalidate a confession. Further inquiry is necessary,

namely, when considering coercion, is the confession still

voluntary. Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515,

93 L.Ed.2d 473 (1986). “While the state of the accused’s

mind, and the failure of the police to advise the accused

of [her] rights, were certainly factors to be evaluated in

accessing the voluntariness an accused’s responses, they

were not in and of themselves determinative.” State v.

Hartley, 326 N.W.2d 226, 230 (S.D.1982), quoting Schnec-

kloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d

854 (1973). Nor does Jenner’s emotional condition, on

these facts, become determinative, for “mere emotional-

ism and confusion do not necessarily invalidate” confes-

sions. Miller v. Fenton, 796 F.2d 598, 613 (3rd Cir.1986).

Here, a distressed woman came to a law enforcement

facility and expressed, inter alia, that she wanted agent

Giegling to “jar” her memory. At 5:00 p.m. on the day in

question, she pledged her cooperation. Later, when the

officers obtained the truth, she blurted to her husband “I

did it.” Having found out that she “did it”, she now cries

out that the officers are guilty of police coercion. If this

Court accepts that there was police coercion (to get her to

confess), we must still determine if, under the totality of

App. 59

the circumstances, these tactics were sufficient to over-

bear appellant’s free and rational will to thus render her

admissions involuntary. We then must examine her sub-

jective state of mind. Appellant’s statements were volun-

tary, we must conclude, because of the totality of acts and

circumstances we have extensively set forth in this opin-

ion, including but not limited to, that she was actually

begging the officers to assist her in recalling what hap-

pened or who had killed her daughter. In Michigan v.

Mosley, 423 U.S. 96, 102, 96 S.Ct. 321, 326, 46 L.Ed.2d 313,

320 (1975) we read that suspects should be given an

opportunity to make informed and intelligent assess-

ments of their interests; here, Debra was trying to find

out who killed her daughter. Apparently, when she found

out that she was the one who had killed her daughter she

is claiming that she was not properly Mirandized. Justice

Byron White warned against a paternalistic interpretation

of the Miranda safeguards so as not to “imprison a man in

his privileges.” 423 U.S. at 109, 96 S.Ct. at 329, 46 L.Ed.2d

at 324. Debra had a right to look into who killed her

daughter and to make an informed and intelligent assess-

ment of that right.

It is necessary to examine the appellant’s subjective

state of mind to ascertain whether the coercion was suffi-

cient to overbear the will of the accused. McCall v. Dutton,

863 F.2d 454 (6th Cir.1988); see also, United States v.

Rohrbach, 813 F.2d 142 (8th Cir.1987). Further, a defendant

must establish that her/his will was overborne because of

the coercive police activity in question. If the police mis-

conduct was not the motivating factor behind the defen-

dant’s confession, the confession is voluntary and may

App. 60

not be suppressed. McCall, supra; Hawkins v. Lynaugh, 844

F.2d 1132 (Sth Cir.1988).

The trial court, which carefully considered the sup-

pression issue, as reflected in its voluminous findings, is

affirmed on this issue. Debra’s statements were volun-

tary, and Miranda warnings were not, on these unique

facts, required.

Lastly, we note Justice Sabers’ forceful criticism of the

majority writer’s position in this case, comparing same to

a dissent in State v. Meek, 444 N.W.2d 48 (S.D.1989). Meek

and this case are totally dissimilar in fact. Meek is there-

fore, inapposite. In Meek, we stated: “Officer Hofeldt

stopped Meek’s vehicle”. Meek involved field sobriety

tests and whether they are protected by the constitutional

privilege against self-incrimination. Meek was a DUI case,

whereas this case involves murder. In Meek, it was totally

undisputed that Meek claimed his privilege against self-

incrimination. He repeatedly did “plead the Fifth Amend-

ment” — in those express words. Here, Debra Jenner never

made such a claim. Furthermore, entered findings by the

trial court absolutely establish, which is also undisputed,

that the Jenners voluntarily traveled to the police station

on April 5, 1987; the Jenners also drove to the sheriff’s

office on April 7, 1987. In Meek, we have a stopping of a

vehicle on a highway which is known in law as an “inves-

tigative stop”. Jenners were never “stopped”; they drove

to the law enforcement facilities to cooperate. An incon-

sistency, suggested by Justice Sabers, bears academic

scrutiny for correctness.

App. 61

II. Jury Instructions.

Debra next asserts that the trial court committed

errors in instructing the jury as to applicable law in four

respects: 1) No instruction was given on the defense of

unconsciousness; 2) An instruction on amnesia was

improperly given; 3) The jury was not instructed about

the insanity defense; and, 4) The jury was improperly

instructed on pleas available to Debra. We disagree with

all four allegations of error, and discuss them under one

heading because all four founder on the same reef — the

evidence in the case.

The law in South Dakota is well settled on the point

that courts are not required to instruct as to matters

which find no support in the evidence. State v. Weather-

ford, 416 N.W.2d 47, 55 (S.D.1987); State v. Hoadley, 319

N.W.2d 505, 507 (S.D.1982); State v. Johnson, 81 S.D.600,

608, 139 N.W.2d 232, 236 (1965). The evidence Debra

relies on to support her arguments regarding the defenses

of unconsciousness and insanity consists of her state-

ments to the effect that she had no memory of killing

Abby, and that she slept all night (while Abby died). We

consider this showing inadequate to require jury instruc-

tions on either defense.

The defense of unconsciousness is based upon SDCL

22-3-1, which provides, in pertinent part: “Any person is

capable of committing a crime, except those belonging to

the following classes: . . . (4)Persons who committed the

act charged without being conscious thereof[.]” This

defense, also known as automatism, Fulcher v. State, 633

P.2d 142, 145 (Wyo.1981), is separate and distinct from

insanity. State v. Grooms, 85 S.D. 532, 186 N.W.2d 889

App. 62

(1971). “Although related, the defenses of insanity and

unconsciousness are not the same in nature, for uncon-

sciousness at the time of the alleged criminal act need not

be the result of a disease or defect of the mind.” Weather-

ford, supra, at 55 (quoting State v. Caddell, 287 N.C. 266,

285, 215 S.E.2d 348, 360 (1975). On the facts of this case,

Debra is trying to convert her claimed amnesia into an

unconsciousness defense. “It is generally said that amne-

sia, in and of itself, is not a defense to a criminal charge.”

Caddell, 287 N.C., at 286, 215 S.E.2d, at 360, and amnesia

alone does not entitle one to the defense of unconscious-

ness. See, 1 LaFave and Scott, Substantive Criminal Law,

§ 4.9, at 544 (1986). As in Polston v. State, 685 P.2d 1, 8

(Wyo. 1984), not a single witness, medical or otherwise

testified to facts that could reasonably raise the defense of

automatism, or unconsciousness. The evidence here

raises no more than conjecture, which is insufficient to

support an instruction to the jury. Jd. American courts

have recognized that an unconsciousness defense might

be established when the defendant’s condition is brought

about by any of a variety of circumstances, including

epilepsy, somnambulism, hypnotism, some physical

trauma, or even emotional trauma. LaFave and Scott,

§ 4.9, at 543. Without embracing all of these causes for

unconsciousness defenses, we note that no testimony

indicated that Debra was suffering from a condition

caused by any such circumstances.

There is even less justification for Debra’s arguments

that she was entitled to an insanity defense. There was no

testimony, of any sort, indicating that she was suffering

from a mental disease or defect which affected her mental

Ab AG te Whine asian ‘ae

eae i ped Ss as.

App. 63

faculties in such a way as to require an insanity instruc-

tion. See, Weatherford, supra, at 55 (interpreting SDCL

22-1-2(18A), now SDCL 22-1-2(20)). Insanity is statutorily

defined as “the condition of a person temporarily or

partially deprived of reason, upon proof that, at the time

of committing the act charged against him, he was inca-

pable of knowing its wrongfulness, but not including an

abnormality manifested only by repeated unlawful or

antisocial behavior.” SDCL 22-1-2(20). As Debra has pre-

sented no evidence of her being incapable of knowing her

acts were wrong at the time Abby was killed, the trial

court was correct to decline to instruct the jury in that

regard.

Debra’s remaining two jury instruction arguments

are without merit. The trial court’s instruction on amnesia

read: “You are instructed that amnesia or loss of memory

is not a defense to a crime.” Given the evidence in this

case, as noted above, this instruction was a correct state-

ment of the law. If Jenner’s amnesia had been linked to

evidence indicating that she was suffering from a condi-

tion rendering her unable to know the nature of her act

and the act was wrongful, the given instruction would

have been incomplete, but such evidence was not pre-

sented in this case. As the Supreme Court of North Caro-

lina has written, amnesia is no defense to a criminal

charge; that a defendant is subsequently unable to

remember is in itself no proof of his mental condition at

the time the crime was committed. State v. Bock, 288 N.C.

145, 217 S.E.2d 513 (1976). The rationale for this is simple:

“Amnesia is a neutral circumstance, or symptom, unless

connected to a precipitating cause.” Jackson v. State, 149

App. 64

Ga.App. 253, 255, 253 S.E.2d 874, 876 (1979). We find no

error here.

The last challenge to the trial court’s jury instructions

is Debra’s argument that the trial court erred by instruct-

ing on the various pleas available to a criminal defendant

which concluded:

As stated, the Defendant in this case has entered

a plea of not guilty. Therefore, your delibera-

tions should be confined to the determination of

whether the defendant killed Abby Lynn Jenner,

and, if so, whether she did it in the manner in

which she has been charged in either Count I or

Count II of the Indictment.

Debra argues that this instruction “appears to be another

attempt to make sure . . . that the jury did not delve in

their deliberations into [un]consciousness and/or insan-

ity[.]” As insanity and unconsciousness were not issues

raised by the evidence in this case, we perceive no reason

to belabor this point. Further, Debra assails this instruc-

tion because it makes no reference to “reasonable doubt”

or “general intent,” while conceding that these two mat-

ters were the subject of separate instructions. The trial

court’s instructions, when read as a whole, were ade-

quate. This satisfies well settled law in this Court. State v.

Jaques, 428 N.W.2d 260, 266 (S.D.1988)

Ill. Third Party Perpetrator Evidence.

With a backdrop of admitting that she killed her

daughter, appellant contends that a third party could

conceivably have killed her little girl. Notwithstanding,

we address this argument in legal merit.

App. 65

The trial court excluded third party perpetrator evi-

dence proffered by Debra, granting a pretrial motion in

limine on such evidence until Debra made a showing that

such evidence satisfied a balancing test set out in State v.

Luna, 378 N.W.2d 229 (S.D. 1985).

In Luna, at 234, this Court adopted a position based

upon Perry v. Rushen, 713 F.2d 1447, at 1452 (9th Cir.1983)

(quoted in Luna, at 234):

When the State interest is strong, only the exclu-

sion of article, reliable and highly probative evi-

dence will violate due process. When the State

interest is weaker, less significant evidence is

protected. ... [T]he court must balance the

importance of the evidence against the state

interest in exclusion.

Appellant stresses that Perry was based upon a line of

California caselaw which has since been modified. See,

People v. Hall, 41 Cal.3d 826, 226 Cal.Rptr. 112, 718 P.2d 99

(Cal.1986):

We reject [People v.] Arline, 13 Cal. App.3d 200,

91 Cal.Rptr. 520 [(1970)] to the extent that it

creates a distinct and elevated standard for

admitting this kind of exculpatory evidence.

Rather than speaking in terms of a [People v.]

Mendez [193 Cal. 39, 223 P. 65 (1924)] - Arline

“tule,” courts should simply treat third-party

culpability evidence like any other evidence: if

relevant it is admissible (note omitted) unless its

probative value is substantially outweighed by

the risk of undue delay, prejudice, or confusion.

(note omitted).

The extreme position overruled in Hall, however, was not

adopted in Luna. We observed, in Luna, at 233, that “State

App. 66

evidentiary rules may not be applied mechanistically to

defeat the ends of justice.” The rule expressed in Luna

does not infringe upon Debra’s right to due process for

the reason that the evidence, in her case, is so weak in

probative value and presents such an opportunity to con-

fuse the jury and to waste time (See SDCL 19-12-3 and

F.R.E. 403) to a far greater degree than in Luna.

The evidence excluded by the trial court is as follows:

1. Debra’s neighbor secured restraining orders

against her ex-husband to avoid physical

abuse;

2. A woman telephoned the neighbor’s house

at 1:50 a.m. on the night Abby died, asking

for Russell (the ex-husband’s name was

Russell);

3. A guest at the neighbor’s party on the night

Abby died saw a man she did not know

walking near the Jenner home at 11:30 p.m.;

and,

4. A man was seen in the graveyard where

Abby was buried eight days after she died,

who dressed similarly to the man seen walk-

ing near the Jenner home.

We deem this evidence has no relevance, and the trial

court was correct to exclude it under SDCL 19-12-3, of

which Luna is simply an illustration. we find no error

here.

3 In Luna the defendant had a far stronger argument, as the

third party perpetrator’s evidence included a violent drunk

who was near the crime scene, covered in blood, shortly after a

killing, and confessed.

App. 67

IV. Sufficiency of Evidence.

Appellant’s last argument is that the evidence pre-

sented at trial was insufficient to support her conviction.

The trial court denied her motion for judgment of acquit-

tal at the close of the State’s case, and renewed at the

close of evidence. This argument has two components: 1)

SDCL 22-16-7, requires an act “imminently dangerous to

others,” whereas the attack on Abby was a danger only to

her; and, 2) no evidence connects Debra to the crime. We

strongly disagree with both assertions.

As to the definition of second degree murder in

SDCL 22-16-7, we note that SDCL 2-14-6 provides:

“Words used in the singular number include the plural,

and the plural, the singular, except where a contrary

intention plainly appears.” we perceive no contrary

intention in SDCL 22-16-7, and adopt the position of the

Supreme Court of Maryland in Robinson v. State, 307 Md.

738, 751, 517 A.2d 94, 101 (1986), which held “depraved

heart murder” to “not require more than one life be

placed in imminent danger by an assailant’s life-threaten-

ing act”:

We reach this conclusion because of what we

have already said about the blameworthiness of

an act that, without intent to kill, nevertheless

produces that result because of the action’s reck-

less disregard for the likely fatal consequences

of the act. We are not persuaded that such act is

punishable as second degree murder only when

several potential victims are involved.

Robinson, 307 Md. at 751, 517 A.2d at 101. This is in accord

with State v. Lowe, 66 Minn. 296, 68 N.W. 1094 (1896) and

App. 68

Hogan v. State, 36 Wis. 226 (1864), contra, Darry v. People,

10 N.Y. 120, 4 N.Y.S. 137 (1854).

Appellant relies on State v. Reddington, 7 S.D. 368,

379, 64 N.W. 170, 174 (1895), for the proposition that

“where one state adopts the statute of another state it

takes it impressed with the meaning and construction

which had been judicially given it at the time of its

adoption[,]” with its observation that our territorial legis-

lature “evidently” borrowed New York’s murder statutes

in enacting the Penal Code in 1865, in attempting to lock

res into the long-superceded interpretation in Darry. The

murder statute in Darry was in common use, as Robinson

indicates, and interpretations of the point now in ques-

tion varied. The legislative intent in 1865 is too murky to

cleave in so facile a manner, especially as the Reddington

court’s use of “evidently” does not reflect certainty.

Finally, we consider Debra’s last argument, that there

is no evidence connecting her to Abby’s killing. Her

position is without merit, as she no more than derides

unfavorable evidence, and inferences therefrom, as “spec-

ulation.” State v. Miller, 429 N.W.2d 26, 38 (S.D.1988). In

determining the sufficiency of evidence on appeal, the

question presented is whether there is evidence in the

record which, if believed by the jury, is sufficient to

sustain a finding of guilt beyond a reasonable doubt.

Miller, id. In making this determination, the Court will

accept that evidence, and the most favorable inferences

fairly drawn therefrom, which will support the verdict.

Miller, id. All elements of a crime, including intent, may

be proven with circumstantial evidence. State v. Cody, 323

N.W.2d 863, 869 (S.D.1982).

AREA ASSN TDAP TIE cA de wh SAND Shh te or

App. 69

The evidence against Debra includes her own state-

ments, in which she provided information which tallies

with the physical evidence, example being the model

plane, which fits one wound “uniquely”; and when she

remarked that her hair was down, and Abby pulled it, it

tallies with the hair samples taken from Abby’s body.

This is highly damning against her. Debra said she might

have “gone click” or “psyched out,” terms completely

undefined in the record, yet the devastation visited on

Abby was characterized, by an expert, as a “frenzy.” The

child’s body was mutilated by the seventy stab wounds.

Debra described Abby as being on her stomach and

resisting, truly, as evidenced by the placement and nature

of Abby’s wounds.

Although the defense tried to maintain that the Jen-

ners’ outside doors were unlocked, Debra told officer

DeVaney that the front door was locked, and other testi-

mony established that the back door was not quick to

open, i.e., locked. There was absolutely no evidence of

forced entry into the Jenner home. Debra also was quoted

as saying “I did it, I did it,” and although she later denied

using these words, the testimony stands. Clothing similar

to that she once claimed to have worn to bed on the night

in question, was found in a laundry hamper next to a

washing machine, corresponding to her references to hav-

ing cleaned up after Abby’s death. She made statements

to friends and co-workers - that she would accept going

to an institution but did not want to go to prison — that

there was a war inside her between God and Satan, and

that Abby’s death was the work of Satan - and then tried

to telephonically tell the grand jury witnesses, Kay Brink

and Joan Bieyer, in the days before their testimony, on

App. 70

how to testify. Debra told police that she could not smell

blood in Abby’s room, yet she washed her hands repeat-

edly that morning, complaining that she could not get rid

of the smell. Her ring, voluntarily given to police as

reportedly unscrubbed, was apparently washed often that

day — it was on her finger. Appellant’s bedroom was only

twenty feet from the murder scene. The murder weapons

— a Chicago Cutlery knife and a toy airplane — came from

within the Jenner home. Appellant testified that she

could hear her children walking to the bedroom door

when they needed assistance at night, yet testified that

she slept through Abby’s killing although physical evi-

dence indicated that the little girl struggled in the course

of a prolonged attack. Different weapons were used and

seventy stab wounds are consistent with a conclusion of a

prolonged attack. Appellant admitted that the little girl

was “hyper” in previous days and soiled her pants sev-

eral times the previous day; she informed a friend that

the little girl was irrational the night of the killing. A

mass of circumstantial and direct evidence convinced this

jury, beyond a reasonable doubt, that appellant had mur-

dered her own three and half year old daughter. The

evidence, and inference therefrom, was sufficient. A

guilty verdict will not be set aside if the State’s evidence,

concerning all favorable inferences to be drawn there-—

from, supports a rational theory of guilt. State v. Dale, 360

N.W.2d 687, 690-91 (S.D.1985). Jury instruction No. 22

correctly instructed the jury on both direct and circum-

stantial evidence.

State’s Notice of Review (16240)

As we affirm Debra’s conviction, we do not address

the State’s argument that she was charged with two

App. 71

distinct statutory violations and could be convicted of

both. The trial court instructed the jury that second

degree murder and first degree manslaughter were alter-

native counts, and the jury, therefore, acquitted her of one

count. This issue, of interest if retrial was ordered by this

Court, is moot on affirmance.

Conviction and sentence affirmed.

WUEST, C.J., and MILLER, J., concur.

MORGAN and SABERS, JJ., dissent.

MORGAN, Justice (dissenting).

I join in Justice Sabers’ dissent, but I write to express

my frustration in reviewing this case.

First of all, I am appalled by the failure of the DCI

agents to record the interrogation proceedings of April 7,

1987. It is inconceivable to me that they would gather a

team of agents from across the state, with two sets of

polygraph equipment, and not have any form of tape

recorded available. Thus, we are left with the testimony

of the agents and Debra for the details of an extended

interrogation and that testimony was not given until

some nine months later, on January 6, 1988. It is of further

interest to me that the authorities did not seek an indict-

ment until over four and one-half months after the inter-

view.

The trial court, in its findings of fact for the suppres-

sion hearing, set the scene for this interview. It described

the examination/interrogation room as being 12 by 14

feet, furnished with a table, 3 or 4 chairs, and a filing

cabinet, with no windows to the outside and a one-way

glass window for observation into the room. The room

App. 72

was bugged for listening but not recording and had no

clock, radio or taping equipment. This was the milieu in

which Debra found herself for some six or seven hours of

interrogation except for two occasions when she went to

the bathroom, the location of which we are not apprised

of in the record.

Justice Sabers has detailed the interrogation pro-

cedures used on Debra, and | shall not repeat them except

for two points that I wish to make.

First, the trial court finds certain instances where

Debra talked of “psyching out” and suggested hypno-

tism, truth serum or psychiatry. This is relied on heavily

by the majority to demonstrate cooperation on Debra’s

part. I suggest, however, that the trial court and the

majority ignore the fact, as found by the trial court, that

both Devaney and Giegling had planted the seed in

Debra’s mind that “there is a rational Debbie and an

irrational Debbie,” and “a good Debbie and a bad Deb-

bie.” Again the trial court and the majority stress Debra’s

statement to her husband, Lynn, when he was brought

into the room: “I did it, I did it. Did you help me?” When

Lynn said that he did not help her, as the record shows,

Debra then recanted. That recantation is entirely over-

looked in the finding as is the fact that the agents had

previously lied to Debra that Lynn had told them that she

had done it.

One of the trial court’s findings is enigmatic in that it

first finds that neither of the Jenners were advised of

their Miranda rights and, further, that neither requested

counsel, or that the questioning stop and never refused to

answer a question. It is incomprehensible that any court

App. 73

could conclude that Debra’s cooperation could be evi-

denced by her failure to exercise her Miranda rights when

she had not been advised of those rights.1 Nor can I agree

with Justice Henderson that his writing in State v. Meek,

444 N.W.2d 48 (S.D. 1989), is totally distinguishable

because Meek was a DUI case and this is a murder case.

The Fifth Amendment does not distinguish between the crimes

involved. One suspected of murder, even as heinous an

offense as this is, is surely entitled to the same constitu-

tional rig

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