State v. Faller

¶1(concurring specially).

¶2I agree that Mr. Brown was acting ‘as an 'agent for the law enforcement officers and that he, or one of .t-he officers, was bound to warn defendant of his Miranda rights before the polygraph examination was conducted. Although the state had ample opportunity to establish that the warnings were given, the record does not reveal that they were in fact given. I would reverse the conviction outright.

¶3(dissenting).

¶4Granting the issue presented is not the same, the facts which were presented describing the procedure followed by the same polygraph examiner and also resulting in a confession which followed earlier Miranda warnings, it is impossible for me to discern a clear difference between this case and that of State v. Adkins, 1975, 88 S.D. 571, 225 N.W.2d 599. The trial court fully complied with the requirements of Jackson v. Denno, 1964, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205; State v. Thundershield, 83 S.D. 414, 160 N.W.2d 408; State v. Seal, 1968, 83 S.D. 455, 160 N.W.2d 643.

¶5In addition to a full evidentiary hearing, the trial court had the benefit of the transcript of the preliminary hearing covering the same subject matter of compliance with the Miranda decision and determination of whether the statements made by the defendant were voluntary. On that record the trial court properly entered Findings of Fact clearly supported by that record.*

¶6*692The majority opinion adds a new dimension to the Miranda warning citing as authority State v. Cullison, 1974, Iowa, 215 N.W.2d 309. The Iowa court, in that decision affirming the trial court’s suppression of a confession, appears to establish a requirement that the forms used by polygraph examiners must restate the Miranda warnings. This ignores the general rule that the questions of whether a confession is voluntary and whether there has been a knowledgeable waiver of constitutional rights should be determined from the totality of the circumstances. To place such emphasis on repetitive statements of constitutional rights borders on ritual and undue emphasis of the trivial, placing form over substance and ignoring the true intent of the rule. State v. Bonrud, 1973, 87 S.D. 130, 203 N.W.2d 793; State v. Johnson, 1972, 87 S.D. 43, 202 N.W.2d 132.

¶7The better and widely accepted rule, I submit, is found in People v. Hill, 1968, 39 Ill.2d 125, 233 N.E.2d 367, cert. denied; 1968, 392 U.S. 936, 88 S.Ct. 2305, 20 L.Ed.2d 1394, as follows:

“It should be made clear that once Miranda’s mandate was complied with at the threshold of the questioning it was not necessary to repeat the warnings at the beginning of each successive interview. To adopt an automatic second-warning system would be to add a perfunctory ritual to police procedures rather than providing the meaningful set of procedural safeguards envisioned by Miranda. ” (cite omitted)

¶8I would affirm on the basis that “there was ample evidence; to sustain the trial judge’s finding that the confession was voluntary beyond a reasonable doubt.” State v. Aschmeller, 1973, 87 S.D. 367, 209 N.W.2d 369.

¶9The majority opinion, citing Westover v. United States, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, declares the confession “is tainted by the previous statements and; cannot be considered voluntary.” This position renders a further, hearing on the question of timely Miranda warnings meaningless. ‘