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State v. Owens4/10/2002
rejudice resulted to Owens from any such editing.
[ .] We have found no prejudicial error in the trial court's other rulings. Therefore, we find no cumulative error.
[ .] Affirmed.
[ .] AMUNDSON, KONENKAMP, and GILBERTSON, Justices, concur.
[ .] SABERS, Acting Chief Justice, concurs in result.
[ .] MILLER, Retired Chief Justice, was a member of the Court at the time this action was submitted, but was disqualified and did not participate.
[ .] ZINTER, who was a Circuit Court Judge at the time this case was submitted, for MILLER, Retired Chief Justice, disqualified.
SABERS, Justice (concurring in result).
[ .] I concur in result, but write specially on Issue 6 to point out the deceit and trickery used by the interrogating detective . The majority opinion concludes that Owens had no objective or subjective expectation of privacy in the phone call to his mother. While it may be true that Owens discovered that he was being taped and that any admissions he made thereafter were not protected, the detective clearly engaged in deceit and trickery in getting him to call his mother and in taping the conversation, contrary to his prior assurances.
[ .] The actions of this detective cross the line of permissible interrogation. See Stanga, 2000 SD 129 at , 617 NW2d at 492 (Sabers, J., concurring specially). The detective first assured Owens that he was not recording or taping their conversation. Early on in the September 4, 1999 interview, Owens said to the detective: "You ain't got no tape recorder or nothin on ya do ya?" The detective said no and even lifted up his shirt to prove to Owens that he was not wired.
[ .] The detective then played on Owens' emotions and persuaded him to call his mother and confess his actions. The detective asked Owens: "If I were you, you want to know what I would do?" He then stated that he would call his mother because "she going to hear about this one way or another and I think she should hear it from you." The detective also made the following comments to Owens during the course of the interview:
Now you've got to decide how you want to deal with it. [Regardless] and let me tell you, this is just between us, I mean man to man, [regardless] on what you decide to tell me, you need to tell your mom before she finds out some other way. Okay? And you told me that you loved your mother. I know from experience of doing this job, let her know first, before somebody calls her and says "Your son really [ ] up and he is in big trouble." You know. You've got to understand that your family's never gonna, you know, your mom is still going to love you. I want you personally to contact your mother. Let her hear it from you. Don't let her hear it from somebody else. She deserves that much. (emphasis added).
As indicated, the detective clearly used deceit and played on Owens' emotions in an attempt to elicit a confession from Owens knowing it was being recorded.
[ .] In State v. Dickey, Justice Henderson warned:
I vote hereby to affirm this conviction but with a singular warning to the Sioux Falls Detective Bureau that there is a limit to which it can proceed, in order to obtain incriminating statements. I truly hope that this affirmance does not spawn further similar practices. 459 NW2d 445, 450 (SD 1990) (Henderson, J., concurring specially).
It is readily apparent that this officer of the Sioux Falls Detective Bureau has not heeded this warning.
[ .] In State v. Oltmanns, this Court affirmed the suppression of incriminating statements obtained through coercion. 519 NW2d 602, 606 (SD 1994
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