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State v. Herting1/26/2000
Appeal from the Seventh Judicial Circuit, Pennington County, SD Hon. Michael J. O'Connor, Magistrate Judge
Reversed
Considered on Briefs Nov 29, 1999; Opinion Filed Jan 26, 2000
[ ] State appeals an order suppressing certain statements made by the defendant, Patty Herting (Herting) prior to her arrest. We reverse.
FACTS AND PROCEDURE
[ ] On November 7, 1998, at approximately 2:30 a.m., Pennington County Deputy Sheriff Ron Nordell (Nordell) went to the residence of Steve and Patty Herting after he received a dispatch regarding a possible domestic violence situation. Upon arriving at the Herting home, Nordell and Herting recognized each other because they had both been involved in the Cub Scouts. As he approached the residence, Herting volunteered words to the effect "she would get her shoes on, as she knew Nordell would be taking her with him."
[ ] After this brief initial contact, Nordell went into the residence and spoke with Herting's husband, Steve. Steve told Nordell, Herting had hit and choked him. Nordell observed that Steve had physical injuries, including swelling around the right eye and some red marks around the neck. Nordell next spoke with D.L., Herting's seven-year-old son. D.L.'s statement to Nordell was consistent with Steve's statement regarding the conduct of Herting.
[ ] Nordell proceeded through an open door to the back bedroom, where Herting was located. Nordell asked Herting one question: "What happened tonight?" No Miranda warnings were given. Herting responded that Steve had accused her of having an affair with a male friend. Herting readily admitted this accusation had upset her so she hit and choked Steve. Nordell then arrested Herting for simple assault. While she was being arrested, Herting stated, "No, don't say anything more." Nordell complied with her request and this ended his attempt to ascertain from all those present the facts surrounding the evening's events.
[ ] A preliminary hearing was held on January 11, 1999. The magistrate court found probable cause to bind the matter over for trial. A motion hearing was held before the court on January 26, 1999, at which time the court granted Herting's motion to suppress the statements she made to Nordell inside her residence on the night of her arrest. The volunteered statement previously made outside the home was not suppressed. State appeals, raising the following issue for our consideration:
Whether Herting was in custody for Miranda purposes.
STANDARD OF REVIEW
[ ] As the facts are uncontested, the State is challenging the trial court's conclusions of law regarding whether Miranda warnings were required in this case. Whether a suspect is in custody, and therefore entitled to Miranda warnings, presents a mixed question of law and fact qualifying for independent review. State v. Gesinger, 1997 SD 6, , 559 NW2d 549, 550 (citing Thompson v. Keohane, 516 US 99, 102, 116 SCt 457, 460, 133 LEd2d 383, 388 (1995)).
ANALYSIS AND DECISION
[ ] Whether Herting was in custody for Miranda purposes.
[ ] State argues the trial court's conclusions of law regarding the necessity of Miranda warnings in this case are based on an error of law. We agree. There is no dispute Nordell did not read Herting her Miranda rights prior to asking her the single question at her residence. Miranda warnings must be given whenever a defendant is interrogated while in police custody. State v. Thompson, 1997 SD 15, , 560 NW2d 535, 540 (other citations omitted). We have recently stated:
Any interview of one suspected of a crime by a police officer will have coerc
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