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State v. Owens4/10/2002
d at 320. As we recognized in State v. Stanga, "trickery is sometimes a legitimate interrogation technique." 2000 SD 129, , 617 NW2d 486, 491. Therefore, deception by the police is not sufficient to make an otherwise valid confession inadmissible unless it appears that the deception produced a coerced or involuntary confession. Frazier, 2001 SD 19 at , 622 NW2d at 255; Smith, 1999 SD 83 at , 599 NW2d at 352; Darby, 1996 SD 127 at , 556 NW2d at 320.
[ .] The trial court considered the Smith factors and found that Owens voluntarily participated in this interview. We agree.
[ .] Owens was 37 years old. He stated that he had a high school education, and he appeared to be of average intelligence. Owens was advised of his Miranda rights. Moreover, he had at least two prior felony convictions and knew that he had the right to prevent further questioning because he actually broke off the questioning on more than one occasion. Although the interview was lengthy, it was not particularly adversarial or coercive. The record reflects substantial give-and-take between Openhowski and Owens. Finally, there is no evidence of any physical punishment. Owens was not deprived of sleep, and he was supplied with soda and cigarettes.
[ .] It is also significant that, at the time of the interview, Owens was under arrest for a different crime, and it was Owens who demanded the interview with a detective about Ross' death. The record reflects that, when Openhowski started the interview, Owens was so eager to talk that Openhowski had some difficulty giving Owens his Miranda rights. When Openhowski was finally able to advise Owens of his right to remain silent and the fact that his statements would be used against him, Owens responded, "I got to talk to you . . . ." This record does not suggest that Owens' will was overborne.
[ .] Owens' specific complaints of deception are either overstated, taken out of context, or had no influence on his ability to make an unrestrained, autonomous decision to participate in the interview. For example, even if one assumes that Openhowski's conduct concerning the presence of a recording device was deceptive, Owens was not subjectively deceived. Owens' conduct during the interview demonstrated that he knew, or at least suspected, that the interview was being taped. Indeed, during the interview, Owens stated, "you've got me and I have to go to court to tell it like it is. Intercom here, the speaker thing, taping everything I'm saying." Owens' conduct belies his contention that he was actually deceived about the presence of a recording device.
[ .] Equally important is the fact that Openhowski's deceptive conduct related only to the presence of a recording device. Owens was never misled about the fact that the statements given would be used against him. Near the beginning of the interview Owens asked Openhowski whether the interview was going to be tape-recorded. Openhowski indicated that it was not, and he raised his shirt to show Owens that Openhowski was not "wired." Although Openhowski's actions were deceptive, Owens responded that he knew Openhowski was going to advise him that everything he said was going to be used against him. Additionally, after Openhowski read Owens his Miranda rights, Owens indicated that he wanted to talk and that he knew his statements would be used against him. Owens even stated that he would testify as to everything he told Openhowski. Therefore, unlike the deception in Stanga, 2000 SD 129 at , 617 NW2d at 490-91, the deception here did not mislead Owens about his constitutional rights. Consequently, the deception concerning the recording device was irrelevant.
[ .] Owens' second complaint was that th
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