#26847, #26849-a-LSW
2014 S.D. 63
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
…
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
LLOYD E. EDWARDS, Defendant and Appellant.
…
APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
MEADE COUNTY, SOUTH DAKOTA
…
THE HONORABLE JEROME A. ECKRICH, III
Judge
…
MARTY J. JACKLEY
Attorney General
JEFFREY P. HALLEM
KELLY MARNETTE
Assistant Attorneys General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
ABBY A. REHORST of
Rena M. Hymans, PC
Sturgis, South Dakota Attorneys for defendant
and appellant.
…
CONSIDERED ON BRIEFS
ON MAY 27, 2014
OPINION FILED 08/20/14
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WILBUR, Justice
[¶1.] Lloyd Edwards appeals the circuit court’s denial of his motion to
suppress blood evidence seized without a warrant. He also appeals the circuit
court’s denial of his motion to strike his 2003 driving under the influence (DUI)
conviction from the part II information. We affirm.
FACTS AND PROCEDURAL BACKGROUND
[¶2.] On March 25, 2013, Officer Nathaniel Borg arrested Edwards for
driving or being in actual physical control of a motor vehicle while under the
influence of alcohol and driving with a revoked license. Officer Borg read the
following advisement to Edwards:
DUI Advisement Card
1. I have arrested you for a violation of SDCL 32-23-1.
2. Any person who operates any vehicle in the state has
consented to the withdrawal of blood or other bodily
substance and chemical analysis.
3. I require that you submit to the withdrawal of your blood
(blood, breath, bodily substance).
4. You have the right to an additional chemical analysis by a
technician of your own choosing, at your own expense.
[¶3.] Officer Borg asked Edwards twice if he understood the advisement, yet
Edwards did not respond. Officer Borg then transferred Edwards to the Meade
County jail.
[¶4.] At the jail, Officer Borg explained to Edwards that blood would be
drawn from him and that his refusal would result in the use of a restraint chair in
order to forcibly obtain the evidence. Edwards verbally and physically refused to
provide a sample of his blood to law enforcement. With the help of another officer,
Officer Borg placed Edwards in a restraint chair, held a Taser to Edwards’s
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abdomen, and threatened to use the Taser if Edwards continued to resist. A blood
sample was ultimately obtained from Edwards, without the use of the Taser, while
he was seated in the restraint chair.
[¶5.] On March 27, 2013, Edwards was indicted for driving or control of a
vehicle while under the influence of alcohol in violation of SDCL 32-23-1(2), or
alternatively, with driving or control of a vehicle while having 0.08 percent or more
by weight of alcohol in the blood in violation of SDCL 32-23-1(1). The State filed a
part II information alleging that Edwards had two prior DUI convictions within the
previous ten years—one conviction in 2003 and one conviction in 2012. Edwards’s
2013 charge would constitute a third offense DUI.
[¶6.] Edwards filed a motion to strike his 2003 conviction from the part II
information. Edwards claimed that his 2003 conviction could not be used to
enhance his sentence because his guilty plea was not voluntary, knowing, and
intelligent. The circuit court ultimately denied Edwards’s motion to strike.
Findings of fact and conclusions of law regarding Edwards’s motion to strike his
2003 conviction from the part II information and an order denying Edwards’s
motion to strike were entered on September 17, 2013. 1
1. The record contains two signed and filed sets of findings of fact and
conclusions of law pertaining to the motion to strike—the first set, denying
the motion to strike, was entered on September 17, 2013, and the second set,
granting the motion to strike, was filed on October 25, 2013. In their briefs,
both parties refer this Court to the September 17, 2013 findings of fact and
conclusions of law for purposes of appellate review. See Appellant Brief page
4 n.1; Appellee Brief page 5 n.1. Because neither party asserts that the
October 25, 2013 findings of fact and conclusions of law control, we limit our
review to the September 17, 2013 set of findings and conclusions.
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[¶7.] In addition to the motion to strike, Edwards filed a motion to suppress
blood evidence seized without a warrant. An evidentiary hearing on the motion to
suppress was held on June 12, 2013. The circuit court ultimately denied Edwards’s
motion to suppress. Findings of fact and conclusions of law regarding Edwards’s
motion to suppress and an order denying the motion were entered on September 17,
2013. 2
[¶8.] Edwards’s jury trial began on September 18, 2013. The jury found
Edwards guilty of driving or control of a vehicle while having 0.08 percent or more
of alcohol in the blood pursuant to SDCL 32-23-1(1). Based on a stipulation
between the parties, the circuit court entered a guilty verdict to the part II
information and found the current offense to be a third offense DUI within a ten-
year period. Edwards was sentenced to two years in the state penitentiary.
Edwards presents two issues for our review:
Whether the circuit court erred in denying Edwards’s motion to
suppress evidence obtained from a warrantless, nonconsensual
blood draw.
Whether the circuit court erred in denying Edwards’s motion to
strike the 2003 conviction from the part II information.
2. The record again contains two signed and filed sets of findings of fact and
conclusions of law pertaining to the motion to suppress—the first set, denying
the motion to suppress, was entered on September 17, 2013, and the second
set, in which the circuit court granted the motion to suppress, was filed on
October 25, 2013. In their briefs, both parties refer this Court to the
September 17, 2013 findings of fact and conclusions of law for purposes of
appellate review. See Appellant Brief page 4 n.2; Appellee Brief page 5 n.2.
Because neither party asserts that the October 25, 2013 findings of fact and
conclusions of law control, we limit our review to the September 17, 2013 set
of findings and conclusions.
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Pursuant to a notice of review, the State also presents an issue for our review:
Whether the circuit court erred in failing to hold that the
warrantless search conducted under South Dakota’s implied
consent statutes was constitutional.
DECISION
I. Whether the circuit court erred in denying Edwards’s motion to
suppress evidence obtained from a warrantless, nonconsensual blood
draw conducted pursuant to SDCL 32-23-10.
[¶9.] We note that in denying the motion to suppress, the circuit court did so
pursuant to the “good faith exception to the warrant requirement.” 3 The circuit
court’s use of this “warrant exception” was in error, because no such warrant
exception exists. Indeed, case law instructs that the good faith exception is an
exception to the exclusionary rule. See Davis v. United States, ___ U.S. ___, ___, 131
S. Ct. 2419, 2429,
180 L. Ed. 2d 285 (2011) (in discussing the good faith exception to
the exclusionary rule, the United States Supreme Court stated “[e]vidence obtained
during a search conducted in reasonable reliance on binding precedent is not subject
to the exclusionary rule”); State v. Sorensen,
2004 S.D. 108, ¶¶ 8-9,
688 N.W.2d 193,
196-97 (stating that “[u]nder the ‘good faith’ exception [to the exclusionary rule],
‘evidence is admissible when police officers reasonably rely on a warrant that is
subsequently invalidated because a judge finds there was an insufficient basis for
3. In its holding, the circuit court remarked: “[T]he Court does in this instance
find that McNeely is retroactive, [and] the Court also finds that the officer
acted in good faith and thus the good faith exception to the . . . warrant
requirement is applicable, and on that basis the defendant’s motion to
suppress is denied.” (Emphasis added.) In its findings and conclusions, the
circuit court also stated “Borg was acting in compliance with the law as he
understood it at the time, and that was objectively reasonable. Borg acted in
good faith and the good faith exception to the warrant requirement is
applicable.” (Emphasis added.)
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the issuing magistrate to find probable cause’” (quoting State v. Saiz, 427 N.W.2d
825, 828 (S.D. 1988))). “Good faith” is not one of the few, “well-delineated
exceptions” to the warrant requirement. See State v. Zahn,
2012 S.D. 19, ¶ 30,
812
N.W.2d 490, 499. Because we examine a circuit court’s grant or denial of a motion
to suppress involving an alleged violation of a constitutionally protected right anew,
this error is not determinative. See State v. Smith,
2014 S.D. 50, ¶ 14, ___ N.W.2d
___, ___.
[¶10.] “The [circuit] court’s findings of fact are reviewed under the clearly
erroneous standard, but we give no deference to the [circuit] court’s conclusions of
law.”
Id. (alterations in original) (quoting State v. Mohr,
2013 S.D. 94, ¶ 12,
841
N.W.2d 440, 444). And although “[f]actual findings of the lower court are reviewed
under the clearly erroneous standard, . . . once those facts have been determined,
‘the application of a legal standard to those facts is a question of law reviewed de
novo.’” State v. Heney,
2013 S.D. 77, ¶ 8,
839 N.W.2d 558, 561-62 (quoting State v.
Hess,
2004 S.D. 60, ¶ 9,
680 N.W.2d 314, 319).
The Fourth Amendment and blood draws
[¶11.] The Fourth Amendment to the United States Constitution guarantees
citizens the right to be free from unreasonable searches and seizures:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.
Likewise, Article VI, § 11 of our state constitution also guarantees our citizens the
right to be free from unreasonable searches and seizures:
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The right of the people to be secure in their persons, houses,
papers and effects, against unreasonable searches and seizures
shall not be violated, and no warrant shall issue but upon
probable cause supported by affidavit, particularly describing
the place to be searched and the person or thing to be seized.
[¶12.] “The Fourth Amendment’s prohibition against unreasonable searches
and seizures requires generally the issuance of a warrant by a neutral judicial
officer based on probable cause prior to the execution of a search or seizure of a
person.” Smith, 2014 S.D. 50, ¶ 15, ___ N.W.2d at ___ (quoting Mohr,
2013 S.D. 94,
¶ 13,
841 N.W.2d at 444). “Warrantless searches are per se unreasonable, apart
from a few, [well-delineated] exceptions[,]” Smith,
2014 S.D. 50, ¶ 15, ___ N.W.2d at
___ (first alteration in original) (quoting State v. Hirning,
1999 S.D. 53, ¶ 10,
592
N.W.2d 600, 603), and it is the State’s burden to prove that the search at issue falls
within a well-delineated exception to the warrant requirement. Hess,
2004 S.D. 60,
¶ 23,
680 N.W.2d at 324.
[¶13.] This principle applies to the type of search that is the subject of the
present appeal, which involves a compelled, warrantless blood draw for alcohol
content to be analyzed and used as evidence in a criminal investigation and
prosecution. See Skinner v. Ry. Labor Executives’ Ass’n,
489 U.S. 602, 616,
109 S.
Ct. 1402, 1412,
103 L. Ed. 2d 639 (1989) (stating that the United States Supreme
Court has “long recognized that a ‘compelled intrusio[n] into the body for blood to be
analyzed for alcohol content’ must be deemed a Fourth Amendment search”
(alteration in original) (quoting Schmerber v. California,
384 U.S. 757, 767-68,
86 S.
Ct. 1826, 1833-34,
16 L. Ed. 2d 908 (1966))). This type of invasion involves the
individual’s “most personal and deep-rooted expectations of privacy[.]” Winston v.
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Lee, 470 U.S. 753, 760,
105 S. Ct. 1611, 1616,
84 L. Ed. 2d 662 (1985).
“Reasonableness of a search depends on balancing the public’s interest in
preventing crime with the individual’s right to be free from arbitrary and
unwarranted governmental intrusions into personal privacy.” Hirning,
1999 S.D.
53, ¶ 11,
592 N.W.2d at 603.
Exceptions to warrant requirement
[¶14.] As it did in State v. Fierro,
2014 S.D. 62, ¶ 13, ___ N.W.2d ___, ___, the
State argues that under the Fourth Amendment and SDCL 32-23-10, 4 the South
Dakota Legislature may constitutionally condition the privilege to drive within the
state on a driver providing irrevocable consent to the warrantless withdrawal of
blood or other bodily substances. The State also attempts to justify the warrantless
blood draw that occurred in this case under the special needs exception to the
warrant requirement. We disagree with the State’s position for the reasons stated
in Fierro. Fierro,
2014 S.D. 62, ¶¶ 14-16, 21-24, ___ N.W.2d at ___. Because the
State has failed to articulate an exception to the warrant requirement that would
permit a compelled, warrantless blood draw, this type of blood draw violates the
4. SDCL 32-23-10 provides:
Any person who operates any vehicle in this state is considered
to have given consent to the withdrawal of blood or other bodily
substance and chemical analysis of the person’s blood, breath, or
other bodily substance to determine the amount of alcohol in the
person’s blood and to determine the presence of marijuana or
any controlled drug or substance or any substance ingested,
inhaled, or otherwise taken into the body as prohibited by § 22-
42-15 or any other substance that may render a person
incapable of safely driving. The arresting law enforcement
officer may, subsequent to the arrest of any operator for a
violation of § 32-23-1, require the operator to submit to the
withdrawal of blood or other bodily substances as evidence.
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Fourth Amendment of the federal constitution and Article VI, § 11 of our state
constitution.
Good Faith Exception to the Exclusionary Rule
[¶15.] We now examine whether suppression is the appropriate remedy for
this Fourth Amendment violation. See Davis, ___ U.S. at ___, 131 S. Ct. at 2426
(explaining that the Fourth Amendment “says nothing about suppressing evidence
obtained in violation of [its] command. That rule—the exclusionary rule—is a
‘prudential’ doctrine created by [the United States Supreme] Court to ‘compel
respect for the constitutional guaranty’” (citation omitted) (quoting Elkins v. United
States,
364 U.S. 206, 217,
80 S. Ct. 1437, 1444,
4 L. Ed. 2d 1669 (1960))). The State
argues that the blood sample and test results are admissible pursuant to the good
faith exception to the exclusionary rule based upon the officer’s reliance on prior
case law. The State cites to the United States Supreme Court’s decision in Davis for
the proposition that suppression is not an appropriate remedy when the officer
reasonably relied on a binding court precedent at the time of the search or seizure.
We examine the good faith exception de novo. Sorensen,
2004 S.D. 108, ¶ 9,
688
N.W.2d at 197 (citing United States v. LaMorie,
100 F.3d 547, 555 (8th Cir. 1996)).
[¶16.] The exclusion or suppression of evidence is “‘not a personal
constitutional right,’ nor is it designed to ‘redress the injury’ occasioned by an
unconstitutional search.” Davis, ___ U.S. at ___,
131 S. Ct. at 2426 (quoting Stone v.
Powell,
428 U.S. 465, 486,
96 S. Ct. 3037,
49 L. Ed. 2d 1067 (1976)). “The rule’s sole
purpose . . . is to deter future Fourth Amendment violations.”
Id. (citing Herring v.
United States,
555 U.S. 135, 141 & n.2
129 S. Ct. 695, 700 & n.2,
172 L. Ed. 2d 496
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(2009)). “Where suppression fails to yield ‘appreciable deterrence,’ exclusion is
‘clearly . . . unwarranted.’” Id. at ___,
131 S. Ct. at 2426-27 (quoting United States
v. Janis,
428 U.S. 433, 454,
96 S. Ct. 3021, 3032,
49 L. Ed. 2d 1046 (1976)). “For
exclusion to be appropriate, the deterrence benefits of suppression must outweigh
its heavy costs.”
Id. at ___,
131 S. Ct. at 2427. “Because the goal of deterrence will
not always be advanced by excluding relevant, though illegally seized, evidence, the
Supreme Court has identified several exceptions to the exclusionary rule.”
Sorenson,
2004 S.D. 108, ¶ 8,
688 N.W.2d at 197.
[¶17.] In Davis, the United States Supreme Court held that an officer’s
objectively reasonable reliance on binding court precedent at the time of the search
or seizure, even if the precedent is later overruled, satisfies the good faith exception
to the exclusionary rule. Davis, ___ U.S. at ___,
131 S. Ct. at 2428-29. In so
holding, the Court noted that “[p]olice practices trigger the harsh sanction of
exclusion only when they are deliberate enough to yield ‘meaningfu[l]’ deterrence,
and culpable enough to be ‘worth the price paid by the justice system.’”
Id. at ___,
131 S. Ct. at 2428 (alteration in original) (quoting Herring,
555 U.S. at 144,
129 S.
Ct. at 702). The Court further reaffirmed “that the harsh sanction of exclusion
‘should not be applied to deter objectively reasonable law enforcement activity.’”
Id.
at ___,
131 S. Ct. at 2429 (quoting United States v. Leon,
468 U.S. 897, 918-19,
104
S. Ct. 3405, 3418,
82 L. Ed. 2d 677 (1984)). “Evidence obtained during a search
conducted in reasonable reliance on binding precedent is not subject to the
exclusionary rule.”
Id.
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[¶18.] Following the United States Supreme Court’s decision in Schmerber,
this Court adopted the following rule:
[B]odily substance samples [are] not subject to the exclusionary
rule under the Fourth Amendment if they are taken (1) incident
to a lawful arrest, (2) by a reliable and accepted method of
obtaining such sample, (3) in a reasonable, medically approved
manner, and (4) where there is probable cause to believe that
the evidence sought exists. [Schmerber] held that the
elimination of alcohol by natural bodily functions presents
exigent circumstances which obviate the necessity of obtaining a
search warrant.
State v. Hartman, 256 N.W.2d 131, 134 (S.D. 1977) (emphasis added) (footnotes
omitted) (citing Schmerber,
384 U.S. 757,
86 S. Ct. 1826,
16 L. Ed. 2d 908). This
rule was consistently applied by this Court and guided the practice of law
enforcement officers over the next several decades. See, e.g., State v. Mattson,
2005
S.D. 71, ¶ 44,
698 N.W.2d 538, 552; State v. Hanson,
1999 S.D. 9, ¶ 28,
588 N.W.2d
885, 891; State v. Tucker,
533 N.W.2d 152, 154 (S.D. 1995); State v. Lanier,
452
N.W.2d 144, 145 (S.D. 1990); State v. Parker,
444 N.W.2d 42, 44 (S.D. 1989). These
authorities held that the rapid dissipation of alcohol in the body was a per se
exigent circumstance that provided law enforcement in South Dakota the authority
to conduct warrantless blood draws. Recently, however, the United States Supreme
Court’s decision in Missouri v. McNeely expressly rejected a per se rule that the
natural dissipation of alcohol in the blood alone is an exigent circumstance
obviating the need for a warrant prior to a blood draw. See
id. ___ U.S. ___, ___,
133
S. Ct. 1552, 1556,
185 L. Ed. 2d 696 (2013). Instead, the Supreme Court relied on
Schmerber’s case-by-case analysis in reviewing exigent circumstances based on the
totality of the circumstances and held that “the natural dissipation of alcohol in the
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bloodstream does not constitute an exigency in every case sufficient to justify
conducting a blood test without a warrant.” Id. at ___,
133 S. Ct. at 1568. The
Supreme Court’s holding in McNeely was a shift from this Court’s previous
interpretation of Schmerber. See Siers v. Weber,
2014 S.D. 51, ¶ 15, ___ N.W.2d ___,
___ (discussing South Dakota’s pre-McNeely interpretation and application of
Schmerber).
[¶19.] Here, Officer Borg arrested and drew Edwards’s blood on March 25,
2013—prior to the United States Supreme Court’s decision in McNeely. At the time
of the arrest, Officer Borg was clearly acting in compliance with the law as he
understood it at the time, i.e., the rule provided for in Hartman and subsequent
cases from this Court was that the dissipation of alcohol in blood was a per se
exigent circumstance sufficient by itself to justify conducting a blood test without a
warrant. Less than a month later, this per se interpretation would be stricken by
the United States Supreme Court in McNeely. See
id. at ___,
133 S. Ct. at 1568.
Officer Borg acted in good faith reliance on binding court precedent at the time of
the search and seizure of Edwards’s blood. The good faith exception to the
exclusionary rule applies. Accordingly, we affirm the denial of Edwards’s motion to
suppress.
II. Whether the circuit court erred in denying Edwards’s motion to strike
the 2003 conviction from the part II information.
[¶20.] Edwards challenges the constitutional validity of his 2003 DUI
conviction for enhancement purposes. Edwards contends that his 2003 guilty plea
was not voluntary, knowing, and intelligent because he was not “personally
advised” of his constitutional rights, the maximum possible penalties, his right to a
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preliminary hearing, and the consequences of entering his plea on the day he
initially appeared, pleaded, and was sentenced. He also alleges that he was not
advised of his Boykin rights, specifically his right against self-incrimination and his
confrontation rights. See Boykin v. Alabama, 395 U.S. 238,
89 S. Ct. 1709,
23 L. Ed.
2d 274 (1969).
[¶21.] In moving to strike his 2003 conviction, Edwards does not claim that
he is innocent of the predicate conviction, but rather, he “seeks to deprive that
conviction of its normal force and effect for sentence-enhancement purposes.” See
State v. Woodard,
2014 S.D. 39, ¶ 7, ___ N.W.2d ___, ___ (quoting State v. Smith,
2013 S.D. 79, ¶ 5,
840 N.W.2d 117, 119). As such, Edwards’s challenge is a
collateral attack of a predicate conviction, and therefore, his plea is subject to less
scrutiny than if it were raised on direct appeal.
Id. Additionally, “our review of a
collateral attack of a predicate conviction is limited to jurisdictional errors.”
Id.
(quoting Smith,
2013 S.D. 79, ¶ 6,
840 N.W.2d at 119). “For purposes of a collateral
attack on a predicate criminal conviction, we have treated a constitutionally infirm
guilty plea as a jurisdictional error.”
Id. The circuit court’s factual findings “shall
not be disturbed unless they are clearly erroneous.” Smith,
2013 S.D. 79, ¶ 6,
840
N.W.2d at 119 (quoting Monette v. Weber,
2009 S.D. 77, ¶ 6,
771 N.W.2d 920, 923).
“And we review the circuit court’s conclusions of law de novo.”
Id.
[¶22.] “To initiate an attack on a predicate conviction, the ‘defendant has the
initial burden of placing the validity of the prior conviction in issue[,]’” such as what
was done here—by way of a motion to strike. Woodard,
2014 S.D. 39, ¶ 8, ___
N.W.2d at ___ (quoting State v. Jensen,
2011 S.D. 32, ¶ 9,
800 N.W.2d 359, 363).
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“Once the defendant has placed the prior conviction in issue[,] the burden shifts ‘to
the State to prove the existence of a prior valid conviction by a preponderance of the
evidence.’” Id. (quoting Smith,
2013 S.D. 79, ¶ 7,
840 N.W.2d at 119). “The State
meets this burden by presenting a document that ‘appears on its face to be a valid
judgment.’”
Id. (quoting Jensen,
2011 S.D. 32, ¶ 9,
800 N.W.2d at 363). “If the
State meets its burden, the presumption of regularity arises and the burden shifts
to the defendant to show that the prior conviction is invalid.”
Id. (quoting Jensen,
2011 S.D. 32, ¶ 9,
800 N.W.2d at 363).
[¶23.] “Boykin requires that before a defendant pleads guilty, he ‘be advised
of his [federal constitutional] rights relating to self-incrimination, trial by jury, and
confrontation,’ and ‘that [he] intentionally relinquish or abandon known rights.’”
State v. Bilben,
2014 S.D. 24, ¶ 5,
846 N.W.2d 336, 338 (second and third alterations
in original) (quoting Smith,
2013 S.D. 79, ¶ 8,
840 N.W.2d at 120). “A guilty plea
operates as a waiver of important rights, and is valid only if done voluntarily,
knowingly, and intelligently, with sufficient awareness of the relevant
circumstances and likely consequences.” Woodard,
2014 S.D. 39, ¶ 9, ___ N.W.2d at
___ (quoting Bradshaw v. Stumpf,
545 U.S. 175, 183,
125 S. Ct. 2398, 2405,
162 L.
Ed. 2d 143 (2005)). And, “[w]e cannot presume a waiver of these three important
federal rights from a silent record.” Smith,
2013 S.D. 79, ¶ 8,
840 N.W.2d at 120
(quoting Rosen v. Weber,
2012 S.D. 15, ¶ 8,
810 N.W.2d 763, 765). See Woodard,
2014 S.D. 39, ¶ 9, ___ N.W.2d at ___ (stating that “the record in some manner must
show the defendant entered his plea understandingly and voluntarily”) (quoting
Monette,
2009 S.D. 77, ¶ 11,
771 N.W.2d at 925). Thus, the issue of whether the
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circuit court erred in denying Edwards’s motion to strike his 2003 conviction “rests
on whether the record ‘affirmatively show[s] that the [2003 DUI guilty] plea was
voluntary, that the defendant understood the consequences of pleading guilty, and
that the defendant explicitly waived the constitutional right against compulsory self
incrimination, the right to trial by jury, and the right to confront one’s accusers.”
See Smith, 2013 S.D. 79, ¶ 8,
840 N.W.2d at 120 (first alteration in original)
(quoting Monette,
2009 S.D. 77, ¶ 10,
771 N.W.2d at 925).
[¶24.] On April 25, 2003, Edwards appeared before the Honorable Randall L.
Macy in Butte County. At this initial appearance, Judge Macy advised a group of
defendants, including Edwards, of their statutory and constitutional rights,
including the right to counsel, right to a preliminary hearing/grand jury proceeding,
right against self-incrimination, right to a jury trial, and right to confrontation. The
group was also advised of the pleas available and the maximum penalty for a class 1
misdemeanor.
[¶25.] Following this advisement, Judge Macy personally addressed Edwards.
When asked by the court, Edwards stated that he was present in court for the
reading of the rights, heard the rights, and understood them. Edwards then
requested a preliminary hearing and the hearing was continued to May 13, 2003.
[¶26.] On May 13, 2003, Edwards once again appeared before Judge Macy.
Judge Macy advised a group of defendants, including Edwards, of their statutory
and constitutional rights, including the right to counsel, right to a preliminary
hearing/grand jury proceeding, right against self-incrimination, right to a jury trial,
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and right to confrontation. The group was also advised of the pleas available and
the maximum penalty for a class 1 misdemeanor.
[¶27.] Judge Macy then personally addressed Edwards. The court asked
Edwards if he was present in court for the reading of the rights, heard the rights,
and understood them. Edwards confirmed that he did. The court advised Edwards
of his right to have an attorney. Edwards stated that he did not want an attorney
and that he intended to plead guilty. The court explained by pleading guilty
Edwards would be waiving his “right to a jury trial and all rights that accompany a
jury trial.” Edwards then pleaded guilty.
[¶28.] Here, the record reflects that in 2003, Judge Macy fully advised
Edwards of his Boykin rights. Edwards was also advised of the maximum penalty,
the consequences of entering his plea, and the right to a preliminary hearing.
Edwards was present in the courtroom when the rights were explained en masse.
Contrary to Edwards’s assertion, a circuit court is not required to “personally” or
individually advise each defendant separately of his rights. See State v. Driver, 290
N.W.2d 856, 859 (S.D. 1980). In addition to the en masse advisory, Judge Macy
then individually canvassed Edwards about his understanding of the rights and
that he would be waving his “right to a jury trial and all rights that accompany a
jury trial.” See Bilben,
2014 S.D. 24, ¶¶ 7, 12,
846 N.W.2d at 338-39 (stating that
this Court recently approved “a general waiver advisement indicating that ‘by
pleading guilty, you give up all the rights I just read’” (quoting Smith,
2013 S.D. 79,
¶ 18,
840 N.W.2d at 124)). Like the advisement given in Smith and Bilben, “all
rights that accompany a jury trial” includes the right against self-incrimination, the
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right of confrontation, and the right to trial by a jury. Id.; Smith, 2013 S.D. 79, ¶
18,
840 N.W.2d at 124. And, notably, Edwards makes no claim that, under the
totality of circumstances, his plea was unknowing or involuntary. 5 Accordingly, the
circuit court did not err in denying Edwards’s motion to strike his 2003 conviction.
CONCLUSION
[¶29.] We affirm the denial of Edwards’s motion to suppress. And, in
addition, we affirm the denial of Edwards’s motion to strike his 2003 conviction.
[¶30.] KONENKAMP and ZINTER, Justices, concur.
[¶31.] GILBERTSON, Chief Justice, and SEVERSON, Justice, concur on
Issue 1, and concur in result on Issue 2.
GILBERTSON, Chief Justice (concurring in result).
[¶32.] I concur with the Court on Issue One. On Issue Two, I concur in the
result and adhere to my dissent in State v. Bilben, 2014 S.D. 24,
846 N.W.2d 336.
[¶33.] SEVERSON, Justice, joins this special writing.
5. For the reasons set forth in Justice Zinter’s special writing in State v.
Burkett, 2014 S.D. 38, ___ N.W.2d ___, and the Court’s decision in State v.
Bilben, 2014 S.D. 24, ¶¶ 18-19,
846 N.W.2d 336, 340 and in State v. Woodard,
2014 S.D. 39, ¶ 20 n.6, ___ N.W.2d ___, ___ n.6, we decline to adopt, at this
time, the position the Chief Justice takes in his concurrence in result.
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