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State v. Owens4/10/2002
e police repeatedly referred to incriminating evidence that did not exist. During the interview, Openhowski told Owens that: (1) police had his fingerprints on the rocks that were in Ross' mouth; (2) there was an eyewitness who saw Owens with Ross near the railroad tracks on the morning in question; (3) police found Owens' DNA in Ross' body; (4) Ross' blood was found on Owens' shoes; and (5) Owens' semen was found in Ross' body.
[ .] In Smith, 1998 SD 6 at , 573 NW2d at 519, we held that police misrepresentations regarding the strength of evidence against a defendant does not render a confession involuntary. Other states agree. See Henry v. State, 738 NE2d 663, 664 (Ind 2000); State v. Bays, 716 NE2d 1126, 1137 (Ohio 1999); People v. Givans, 575 NW2d 84, 89 (Mich 1997). As we noted in Smith, an interrogating officer's implication that police have more information about a crime than they actually have is a psychological tactic which does not upset a finding of voluntariness as long as the confession is a product of the suspect's own balancing of competing considerations. Smith, 1998 SD 6 at , 573 NW2d at 519. In this case, the use of non-existing evidence did not interfere with Owens' balancing of competing considerations as he made his decision to confess. On the contrary, Owens repeatedly challenged or refuted Openhowski when Owens was confronted with non-existing evidence.
[ .] Owens also complained about Openhowski's reference to the penalties and consequences of a murder conviction. During the interview, Openhowski talked to Owens about Charles Sisney, who was then serving a life sentence for murder. Owens points out that Openhowski incorrectly stated, "[Sisney] went in the first day and pled guilty . . . . He got like sixty or seventy years or something like that." At the same time, however, Openhowski also told Owens, "I can't make you promises. I can't make you deals. I can't do anything." Openhowski further stated, "I can't promise you anything." When considered in context, the evidence does not indicate that Openhowski actually misled Owens about the penalties and consequences of a murder conviction.
[ .] Owens next complained that Openhowski encouraged Owens to tell his mother what happened. The record reflects that, on three occasions before Owens confessed, Openhowski encouraged Owens to call his mother to tell her what happened before she found out from the media. After Owens confessed, Openhowski told him, "I've done this job long enough to know that you owe [your mother] that much, if you love her like you say you do." Owens eventually called his mother and confessed to killing Ross. However, at that point Owens had already incriminated himself. Moreover, the record does not reflect that this encouragement, when viewed in context, deprived Owens of his ability to make an autonomous decision to confess.
[ .] Owens finally complains about Openhowski's statement that he had to tell Openhowski "everything." The following conversation took place:
Detective : So how do you want to play this thing?
Owens: I'm just going to go to the judge and tell him everything.
Detective : You have to tell me everything. We can dance around it, or you can tell me the real story, and be done in five minutes . . . ."
This exchange reveals that Owens had already decided to "tell everything" before Openhowski made his statement. Owens' argument that this conversation coerced him into making a statement is without merit.
[ .] Even when considered together, the police deception about the strength of their case, their statements about possible penalties, their suggestion that Owens talk to his mother, and their
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