State v. Uhre

#28279-a-MES
2019 S.D. 8

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

WAYLON NATHAN UHRE, Defendant and Appellant.

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APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
MEADE COUNTY, SOUTH DAKOTA

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THE HONORABLE MICHAEL W. DAY
Judge

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MARTY J. JACKLEY
Attorney General

ANN C. MEYER
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff and
appellee.

ELLERY GREY of
Grey & Eisenbraun Law Prof. LLC
Rapid City, South Dakota Attorneys for defendant and
appellant.

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ARGUED OCTOBER 3, 2018
OPINION FILED 01/23/19
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SALTER, Justice

[¶1.] Waylon Uhre was convicted following a jury trial of first-degree rape,

multiple counts of sexual contact with a child, and possessing, manufacturing, or

distributing child pornography. He appeals, claiming the circuit court violated his

right to a public trial when it ordered the partial closure of the courtroom during

the minor victim’s testimony. Uhre also argues the court erred when it denied his

motion to suppress his non-custodial statement to a law enforcement officer. We

affirm.

Background

[¶2.] On June 30, 2015, E.B.’s parents left E.B., then four years old, and her

older brother with their grandparents in Black Hawk while they took an overnight

trip. Waylon Uhre, E.B.’s adopted uncle, lived with E.B.’s grandparents. That

evening, E.B. told her grandmother that Uhre made her perform a sexual act on

him earlier that day. E.B.’s grandparents removed Uhre from the home, and E.B.’s

father contacted law enforcement the next day.

[¶3.] Hollie Strand, a forensic interviewer with the Child’s Advocacy Center,

interviewed E.B. on July 2, 2015. E.B. told Strand she licked Uhre. Strand noted

that E.B. was anxious, “incredibly guarded,” and “avoidant” during the interview.

Strand provided the family with options, including counseling, to help E.B. and

suggested giving her more time before considering a second interview.

[¶4.] On July 7, 2015, Deputy Dustin Bostrom with the Meade County

Sheriff’s Office called Uhre and requested a meeting to discuss E.B.’s allegations.

Uhre told Bostrom that he had spoken with an attorney and wanted to speak with

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the attorney again before any meeting, adding his attorney would contact Bostrom.

Attorney Robbie Rohl called Bostrom six days later, inquiring if Bostrom intended

to indict Uhre. Bostrom told Rohl he was still investigating the matter. Bostrum

testified that Rohl called him two days later and advised that he would not be

representing Uhre in the criminal investigation.

[¶5.] After E.B. told her mother more details about the incident with Uhre,

Strand interviewed E.B. a second time on July 14, 2015. During this interview,

E.B. gave Strand more information, including where she was in her grandparents’

home when Uhre made her “suck his wee-wee,” what Uhre was wearing, and where

her grandmother and brother were in the home when the abuse occurred.

[¶6.] Tye Parsons was also living with E.B.’s grandparents but was not

home on the afternoon and evening of the incident. When Parsons returned, he was

told to move out. While packing, he found a secure digital (SD) card on the floor in

the doorway of Uhre’s bedroom. Parsons believed the SD card was his and packed it

with his belongings. He later viewed the contents of the SD card and found

pornographic images of children, including E.B., along with pictures of Uhre. He

gave the SD card to E.B.’s grandparents, who turned it over to law enforcement.

[¶7.] On February 22, 2016—over seven months later—Special Agent Brett

Garland with the South Dakota Division of Criminal Investigation interviewed

Uhre at a friend’s home where Uhre was staying. While the two were inside of the

home, Garland told Uhre that he did not want to bother Uhre and that he was free

to get up and leave. Uhre, nevertheless, agreed to speak with Garland, but wanted

to continue the conversation outside of the home. The two went to Garland’s car,

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where Garland again advised Uhre at least two times that he did not have to speak

with him and could discontinue the interview at any time. During their

conversation, Uhre admitted to several of E.B.’s allegations. Two days later, Uhre

was charged by indictment with one count of first-degree rape, nine counts of sexual

contact with a child, and twenty counts of possessing, manufacturing, or

distributing child pornography.

[¶8.] Prior to trial, the State filed a motion to close the courtroom to “all but

the necessary persons” listed in SDCL 23A-24-6 1 during E.B.’s testimony, citing

concerns about the victim’s young age and the seriousness of the crimes. Uhre

objected, asserting his Sixth Amendment right to a public trial and arguing there

was insufficient justification to close the courtroom. Following oral arguments and

post-hearing briefs, the circuit court issued a memorandum opinion granting the

State’s motion and ordering a partial closure of the courtroom during E.B.’s

testimony. The court concluded a partial closure was necessary to protect E.B.’s

interests based upon her age, psychological maturity, and the sensitive personal

nature of her testimony.

1. SDCL 23A-24-6 provides:
Any portion of criminal proceedings, with the exception of grand jury
proceedings, at which a minor is required to testify concerning rape of a child,
sexual contact with a child, child abuse involving sexual abuse, or any other
sexual offense involving a child may be closed to all persons except the
parties’ attorneys, the victim or witness assistant, the victim’s parents or
guardian, and officers of the court and authorized representatives of the news
media, unless the court, after proper hearing, determines that the minor’s
testimony should be closed to the news media or the victim’s parents or
guardian in the best interest of the minor.
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[¶9.] Also prior to trial, Uhre moved to exclude his statement to Special

Agent Garland, arguing it was obtained in violation of the holding in Edwards v.

Arizona, which prohibits reinitiating police questioning after a suspect has asked

for a lawyer in an earlier interview. 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378

(1981). Uhre contended he had requested an attorney during his initial telephone

conversation with Deputy Bostrom over seven months earlier. The circuit court

initially accepted Uhre’s argument and granted his motion to suppress. However,

the court later changed its ruling after granting the State’s motion to reconsider,

concluding, among other things, that the Edwards rule applies only in custodial

situations.

[¶10.] During the three-day trial, Uhre testified and denied the allegations,

telling the jury he had been pressured into making a false confession. He also said

he did not recognize the SD card, had never taken any sexually explicit

photographs, and never possessed child pornography. The jury found Uhre guilty

on all counts. The circuit court sentenced Uhre to 80 years in prison for first-degree

rape, 15 years for each count of sexual contact with a child, and 10 years for each

count of possessing, manufacturing, or distributing child pornography.

[¶11.] Uhre appeals his conviction, raising the following issues:

1. Whether the circuit court erred by ordering a partial
closure of the courtroom during E.B.’s testimony in
violation of Uhre’s right to a public trial.

2. Whether the circuit court erred when it denied Uhre’s
motion to suppress his statement to Special Agent
Garland.

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Standard of Review

[¶12.] Uhre’s claim that the circuit court’s decision to partially close the

courtroom violated his Sixth Amendment right to a public trial presents a legal

question that we review de novo. State v. Rolfe (Rolfe I), 2013 S.D. 2, ¶ 15, 825

N.W.2d 901, 905. A violation of the right to a public trial is among the narrow class

of errors regarded as structural, and it is, therefore, not subject to further review for

harmlessness. See Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 1833, 144

L. Ed. 2d 35 (1999) (“Indeed, we have found an error to be ‘structural,’ and thus

subject to automatic reversal, ‘only in a ‘very limited class of cases.’” (quoting

Johnson v. United States, 520 U.S. 461, 468, 117 S. Ct. 1544, 1549, 137 L. Ed. 2d

718 (1997))). 2

[¶13.] We review the circuit court’s “ultimate decision to close a court

proceeding for an abuse of discretion.” Rolfe I, 2013 S.D. 2, ¶ 15, 825 N.W.2d at 905

(quoting Rapid City Journal v. Delaney, 2011 S.D. 55, ¶ 9, 904 N.W.2d 388, 392).

An abuse of discretion is “a choice outside the range of permissible choices[.]” State

v. Stanley, 2017 S.D. 32, ¶ 22, 896 N.W.2d 669, 678 (quoting State v. Kvasnicka,

2016 S.D. 2, ¶ 7, 873 N.W.2d 705, 708). We review the trial court’s findings of fact

justifying a courtroom closure for clear error. State v. Rolfe (Rolfe II), 2014 S.D. 47,

¶ 14, 851 N.W.2d 897, 902.

2. We recognize six types of structural error from Neder: “(1) a deprivation of
the right to counsel; (2) a biased judge; (3) an unlawful exclusion of grand
jurors of the defendant’s race; (4) a deprivation of the right of self-
representation at trial; (5) a deprivation of the right to a public trial; and (6)
an erroneous reasonable doubt standard.” Miller v. Young, 2018 S.D. 33,
¶ 14, 911 N.W.2d 644, 648 (quoting State v. Arguello, 2015 S.D. 103, ¶ 6,
873 N.W.2d 490, 493).
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[¶14.] “A motion to suppress based on an alleged violation of a

constitutionally protected right is a question of law reviewed de novo.” State v.

Rademaker, 2012 S.D. 28, ¶ 7, 813 N.W.2d 174, 176 (quoting State v. Wright,

2010 S.D. 91, ¶ 8, 791 N.W.2d 791, 794). We review the trial court’s findings of fact

“under the clearly erroneous standard. Once the facts have been determined,

however, the application of a legal standard to those facts is a question of law

reviewed de novo.” Id.

Analysis

Courtroom Closure

[¶15.] The Sixth Amendment provides that “[i]n all criminal prosecutions, the

accused shall enjoy the right to a speedy and public trial . . . .” U.S. Const. amend.

VI. The South Dakota Constitution similarly provides that “the accused shall have

the right to . . . a speedy public trial . . . .” S.D. Const. art. VI, § 7. The right to a

public trial serves to protect the accused and exists so “that the public may see [the

defendant] is fairly dealt with and not unjustly condemned, and that the presence of

interested spectators may keep [the defendant’s] triers keenly alive to a sense of

their responsibility and to the importance of their functions.” Rolfe I, 2013 S.D. 2,

¶ 17, 825 N.W.2d at 906 (quoting Waller v. Georgia, 467 U.S. 39, 46, 104 S. Ct. 2210,

2215, 81 L. Ed. 2d 31 (1984)). In this regard, “[t]he public-trial right also protects

some interests that do not belong to the defendant. After all, the right to an open

courtroom protects the rights of the public at large, and the press, as well as the

rights of the accused.” Weaver v. Massachusetts, ___ U.S. ___, 137 S. Ct. 1899, 1910,

198 L. Ed. 2d 420 (2017).

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[¶16.] Notwithstanding constitutional protections, the right to a public trial

is not absolute. See Rolfe I, 2013 S.D. 2, ¶ 18, 825 N.W.2d at 906. South Dakota

statutory law authorizes a circuit court to exercise its discretion to partially or

completely close the courtroom during criminal proceedings when minor victims are

“required to testify concerning rape of a child, sexual contact with a child, child

abuse involving sexual abuse, or any other sexual offense involving a child[.]”

SDCL 23A-24-6. We have held that the application of this statute is guided by what

have become known as the “Waller factors,” which owe their moniker to the United

States Supreme Court’s decision in Waller v. Georgia. These factors include:

[1] the party seeking to close the hearing must advance an
overriding interest that is likely to be prejudiced,
[2] the closure must be no broader than necessary to protect that
interest,
[3] the trial court must consider reasonable alternatives to
closing the proceeding, and
[4] it must make findings adequate to support the closure.

467 U.S. at 48, 104 S. Ct. at 2216.

[¶17.] Courts across the country, including ours, have observed that the

Waller decision contemplated a total courtroom closure—not a partial one. See, e.g.,

United States v. Simmons, 797 F.3d 409, 413 (6th Cir. 2015). “A total closure

involves excluding all persons from the courtroom for some period while a partial

closure involves excluding one or more, but not all, individuals for some period.”

Id.; see also Rolfe III, 2014 S.D. 7, ¶ 16, 851 N.W.2d at 902-03 (“Whether a closure is

total or partial . . . depends not on how long a trial is closed, but rather who is

excluded during the period of time in question.’” (quoting United States v.

Thompson, 713 F.3d 388, 395 (8th Cir. 2013))).
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[¶18.] Of course, “‘both partial and total closures burden the defendant’s

constitutional rights, but ‘the impact of [a partial] closure is not as great, and not as

deserving of such a rigorous level of constitutional scrutiny.’” Simmons, 797 F.3d

at 414 (quoting Judd v. Haley, 250 F.3d 1308, 1315 (11th Cir. 2001)); see also

Rolfe I, 2013 S.D. 2, ¶ 22, 825 N.W.2d at 907 (“[A] partial closure does not

‘implicate the same secrecy and fairness concerns that a total closure does.’”)

(quoting United States v. Farmer, 32 F.3d 369, 371 (8th Cir. 1994)). The

justification for the partial closure should vary in proportion to the extent of the

closure requested. Generally, “the more extensive the closure that is sought, the

greater the burden on the party seeking closure.” United States v. Ledee, 762 F.3d

224, 229 (2d Cir. 2014).

[¶19.] In this regard, we have modified the first Waller factor by allowing a

partial closure to be supported by a “substantial reason” rather than the more

stringent “overriding interest” described by Waller for complete courtroom closures.

Rolfe II, 2014 S.D. 47, ¶ 17, 851 N.W.2d at 903. The remaining three Waller

factors—testing the breadth of the closure against necessity, considering reasonable

alternatives and making adequate findings—are more easily adapted to a partial

courtroom closure and apply without modification. See Rolfe I, 2013 S.D. 2, ¶ 22,

825 N.W.2d at 907–08 (“[E]ven though a substantial reason, rather than an

overriding interest, may justify the partial closure of the courtroom, the rest of

Waller’s requirements must be addressed.”).

[¶20.] We have also recognized the fact-bound nature of courtroom closures

involving the testimony of child sex abuse victims and the need for case-by-case

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determinations. Id. ¶ 19, 825 N.W.2d at 906; State v. Slota, 2015 S.D. 15, ¶ 21,

862 N.W.2d 113, 120. To assist in these determinations, courts consider the

“victim’s age, psychological maturity and understanding, the nature of the crime,

the desires of the victim, and the interests of the parents and relatives.” Rolfe I,

2013 S.D. 2, ¶ 19, 825 N.W.2d at 906; Slota, 2015 S.D. 15, ¶ 21, 862 N.W.2d at 120

(quoting Globe Newspaper Co. v. Super. Ct. for Norfolk Cty., 457 U.S 596, 608, 102

S. Ct. 2613, 2621, 73 L. Ed. 2d 248 (1982)).

[¶21.] Here, the circuit court ordered only a partial closure of the courtroom

during E.B.’s testimony. The parties, attorneys, members of E.B.’s family, a victim

assistant, and members of the media were not excluded from the courtroom. The

courtroom was not closed, even partially, at any other time during the course of the

three-day jury trial.

[¶22.] Further, the circuit court issued a pre-trial memorandum opinion in

which it applied the Waller factors and assessed the applicable Globe Newspaper

considerations before exercising its authority under SDCL 23A-24-6 to partially

close the courtroom during E.B.’s testimony. The circuit court began its analysis by

identifying the interest in protecting E.B.’s welfare. The court utilized the Globe

Newspaper considerations and found that E.B. was four years old at the time of the

incident and five at the time of the trial. The court also determined that “E.B. will

not have the psychological maturity to testify in front of an audience, while not also

incurring some form of psychological trauma from the experience.” The court

further noted the serious nature of the offenses alleged in the indictment would

require “delving into sensitive and personal information.” Under the circumstances,

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the court found no reasonable alternative to protect E.B.’s interests other than

partially closing the courtroom to the public during her testimony.

[¶23.] In our view, the circuit court correctly applied the governing legal

principles, and its decision to partially close the courtroom during E.B.’s testimony

did not violate Uhre’s right to a public trial. The well-being of a child witness

testifying as a victim in a rape trial is most certainly a substantial interest, if not an

overriding interest. See Globe Newspaper, 457 U.S. at 607–08, 102 S. Ct. at 2620–

21 (stating the interest in “the physical and psychological well-being of a minor” can

justify a courtroom closure).

[¶24.] A partial closure can address the best interests of the child and assist

in the orderly presentation of trial testimony. This is particularly true where, as

here, the child victim is quite young. Even among child victims, E.B. was young—

not much older than the minimum age for participation in forensic interviews, as

explained by Hollie Strand. 3 The circuit court determined that the nature of the

allegations meant the State would ask E.B. highly sensitive and personal questions.

This determination is sound. The case involved allegations of first-degree rape of

E.B. and her exploitation in the production of child pornography at the hands of

Uhre, her adopted uncle. During her first forensic interview, E.B. was guarded.

She was more open during her second interview, but still anxious.

[¶25.] While the court’s determination that E.B. would not have the

psychological maturity to be able to testify “in front of an audience” without

3. Strand provided this testimony and her description of E.B.’s anxiety during
the forensic interviews at the pretrial hearing to consider the admissibility of
E.B.’s hearsay statements pursuant to SDCL 19-19-806.1.
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sustaining psychological trauma is not based on expert testimony, it is,

nevertheless, a reasonable inference from the indisputable facts. Indeed, whether

termed “psychological” trauma or not, the record provides adequate support for the

sensible conclusion that a five-year-old girl would experience trauma by testifying

in public about sexual abuse inflicted upon her by her uncle. See A.B. v. Y.Z.,

878 A.2d 807, 813 (N.J. 2005) (Rivera-Soto, J., concurring) (“Both our own

limitations on expert testimony as well as plain common sense tell us that there is

no need for expert proofs to reach the self-evident conclusion that requiring a child

sexual abuse victim to confront [her] abuser in open court will be traumatic for the

victim.”).

[¶26.] Further, the circuit court’s determination of E.B.’s relative

psychological maturity is adequately supported by the record. In this regard, we

read the term “psychological maturity” used by the Globe Newspaper Court to mean

developmental maturity in relation to physical age or maturity. Here, there was no

dispute that E.B.’s maturity level was consistent with her young age. There is no

claim that she possessed an advanced level of maturity, and she described Uhre’s

abuse in simple, childlike terms.

[¶27.] It is certainly possible that a court might desire, or even need, the

benefit of expert testimony in a different case to help it assess a child’s maturity

and susceptibility to trauma. Here, however, given E.B.’s young age, the language

she used to report the abuse, and her behavior during the forensic interviews, we

accept the circuit court’s finding that E.B. would experience trauma.

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[¶28.] In addition, the circuit court’s partial closure was no broader than

necessary to protect E.B. from unnecessary trauma during her testimony. Under

the circuit court’s order, only members of the general public were excluded during

E.B.’s testimony. The parties, counsel, E.B.’s family, a victim assistant, and

members of the media were all allowed to remain in the courtroom. See Rolfe II,

2014 S.D. 47, ¶ 16, 851 N.W.2d at 903 (“Because the courtroom remained open to

the representatives of the media, the closure in this case did not ‘implicate the same

secrecy and fairness concerns’ as a total closure.”) (quoting Rolfe I, 2013 S.D. 2,

¶ 22, 825 N.W.2d at 907). Further, E.B.’s testimony accounts for approximately 10

of the 380 pages of trial testimony. Within the realm of courtroom closures, this

closure was comparatively modest in its scope and no more restrictive than

necessary to protect E.B.’s. welfare.

[¶29.] Short of not ordering a closure at all, we are unable to conceive of

another alternative available to the circuit court that was more favorable to Uhre.

For instance, utilizing closed circuit video during E.B.’s testimony would have been

more, not less, restrictive under the circumstances of this partial courtroom closure.

The procedure would have also implicated other Sixth Amendment concerns by

preventing face-to-face confrontation. See United States v. Yazzie, 743 F.3d 1278,

1290 (9th Cir. 2014) (“Two-way closed circuit television or videotaped

depositions . . . prohibit face-to-face confrontation during cross-examination and

raise substantial Confrontation Clause issues.”).

[¶30.] Finally, the circuit court made findings on the record supporting its

decision to grant the State’s motion for the partial closure after a hearing on the

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matter and briefing from the parties. Though the court’s findings were not

extensive, they were, nevertheless, adequate to support the partial closure. The

need for clear findings, as described, in Waller is not, itself, a doctrinal element used

to test the constitutionality of a courtroom closure. It is, instead, a practical rule of

necessity to permit meaningful appellate review. Here, our ability to review the

circuit court’s Waller analysis was not impacted by the lack of more expansive

findings. The court’s findings here were either based upon basic undisputed

information contained in the record or reasonable inferences drawn from it. Indeed,

though he finds the circuit court’s analysis to be too spare, Uhre does not argue that

the findings are clearly erroneous.

[¶31.] Instead, Uhre’s principal argument is that the court’s findings lack a

sufficient evidentiary basis because they are not based upon a discrete record

developed at an evidentiary hearing to consider partially closing the courtroom. In

our view, however, the absence of an evidentiary hearing focused solely upon the

courtroom closure issue does not render the circuit court’s analysis infirm.

Although a court may, in some cases, perceive the need to take evidence on the

issue of whether to close the courtroom, we are reluctant to impose such a

categorical procedural requirement for partial courtroom closures. 4

[¶32.] In a related argument concerning the factual basis for the circuit

court’s partial closure analysis, Uhre objects to the use of any of Strand’s testimony

provided at the pretrial hearing to determine the reliability of E.B.’s hearsay

4. The provisions of SDCL 23A-24-6 explicitly require a hearing in the event the
court considers a more complete form of courtroom closure that would exclude
“the news media or the victim’s parents or guardian[.]”
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forensic interviews. He claims he did not have notice that Strand’s testimony could

be used for the additional purpose of supporting the court’s decision to partially

close the courtroom. We can appreciate the argument on general principles, and it

might have more persuasive force if the material from the pretrial hearsay hearing

that also supported the Waller analysis was controverted or the subject of debate

between the parties. We do not understand that to be the case, though, for the

basic, limited information implicated by Strand’s pretrial testimony.

[¶33.] Because we find no violation of Uhre’s Sixth Amendment right to a

public trial, it is unnecessary to address his argument that the United States

Supreme Court’s decision in Weaver requires a new trial for violations of the public

trial right rather than a remand for additional findings under Waller.

Motion to Suppress

[¶34.] Uhre’s claim that the court erred when it denied his motion to

suppress his statement to Special Agent Garland potentially implicates his Fifth

and Sixth Amendment rights to counsel and his Fifth Amendment right against

self-incrimination. In order to further these protections, the United States Supreme

Court created the well-known Miranda rule as a prophylaxis, requiring police

officers to advise suspects of their rights and to terminate custodial questioning of

an individual if he requests the assistance of counsel. Miranda v. Arizona, 384 U.S.

436, 474, 86 S. Ct. 1602, 1628, 16 L. Ed. 2d 694 (1966). The United States Supreme

Court extended these protections in Edwards v. Arizona when it held that police

officers may not reinitiate questioning once the accused requests counsel “until

counsel has been made available” to him. 451 U.S. at 485–85, 101 S. Ct. at 1884–

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85; see also Minnick v. Mississippi, 498 U.S. 146, 147, 111 S. Ct. 486, 488, 112 L.

Ed. 2d 489 (1990) (providing additional analysis on the Edwards rule as applied to

attorney consultations). The United States Supreme Court has since modified the

Edwards rule to allow law enforcement officers to reinitiate questioning after a two-

week break in custody. Maryland v. Shatzer, 559 U.S. 98, 109, 130 S. Ct. 1213,

1222, 175 L. Ed. 2d 1045 (2010).

[¶35.] Like the progenitor Miranda decision, the bright-line rule of Edwards

applies only to custodial questioning. Edwards, 451 U.S. at 485–86, 101 S. Ct.

at 1884–85 (“The Fifth Amendment right identified in Miranda is the right to have

counsel present at any custodial interrogation.”); see also State v. Hoadley,

2002 S.D. 109, ¶ 26, 651 N.W.2d 249, 256 (“The purpose of the Fifth Amendment

right to counsel is to protect individuals from self-incrimination and assist in the

custodial interrogation process.”); United States v. Bautista, 145 F.3d 1140, 1147

(10th Cir. 1998) (“Absent either a custodial situation or official interrogation,

Miranda and Edwards are not implicated.”). Therefore, if a court finds that a

defendant was not in custody, it does not reach the question of whether an accused

validly invoked his rights to remain silent or to have counsel present. We examine

whether a defendant was subject to a custodial interrogation by using a two-part

test: (1) “what were the circumstances surrounding the interrogation” and (2) “given

those circumstances, would a reasonable person have felt he or she was not at

liberty to terminate the interrogation and leave.” State v. Hopkins, 2017 S.D. 13, ¶

8, 893 N.W.2d 536, 539–40 (quoting State v. McCahren, 2016 S.D. 34, ¶ 30,

878 N.W.2d 586, 599).

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[¶36.] Here, even if Uhre sought the assistance of counsel during his July 7,

2015, telephone interview with Deputy Bostrom, he was most assuredly not in

custody. Though not central to the application of Edwards, Uhre was also not in

custody when he spoke to Special Agent Garland over seven months later, on

February 22, 2016. The interview was conducted in Garland’s vehicle at Uhre’s

request. Garland told Uhre he was not under arrest and repeatedly advised Uhre

he could get out of the vehicle and end the interview at any time. Under the

circumstances, we conclude that Uhre’s interview with Special Agent Garland was

non-custodial in nature. The interview was voluntary, and a reasonable person

would have felt free to leave. Accordingly, the circuit court’s factual determination

that Uhre was not in custody is free of any clear error, and the court’s application of

Edwards was correct.

[¶37.] Uhre acknowledges the absence of custody, but asks us to extend the

Edwards rule to prohibit police officers from reinitiating questions whenever an

accused has previously sought the assistance of a lawyer. We decline to do so.

[¶38.] Accepting Uhre’s invitation to overlook the absence of custody would

effectively disconnect Edwards from its principal rationale, which is to “prevent

police from badgering a defendant into waiving his previously asserted Miranda

rights.” Montejo v. Louisiana, 556 U.S. 778, 787, 129 S. Ct. 2079, 2085,

173 L. Ed. 2d 955 (2009) (quoting Michigan v. Harvey, 494 U.S. 344, 350, 110 S. Ct.

1176, 1180, 108 L. Ed. 2d 293 (1990)). Here, Uhre does not claim on appeal that

Special Agent Garland badgered him—only that he could not reinitiate questioning

because Uhre expressed a desire to have an attorney present when he spoke by

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telephone to Deputy Bostrom over seven months earlier. Such a categorical bar to

reinitiating questioning prior to a criminal charge is unsupported by the decisions of

the United States Supreme Court or our jurisprudence. Indeed, the argument

seems at odds with the Supreme Court’s decision in Shatzer, which recognized

instances in which police officers could, indeed, reinitiate questioning despite a

suspect’s earlier invocation of Miranda rights. 559 U.S. at 110, 130 S. Ct. at 1223.

[¶39.] Under the circumstances, therefore, it is unnecessary to address the

question of whether Uhre unequivocally invoked his right to counsel or the details

of Attorney Rohl’s communication with Deputy Bostrom. Simply put, the absence of

any custodial interrogation renders Uhre’s argument unsustainable under Miranda

and Edwards.

[¶40.] We affirm.

[¶41.] GILBERTSON, Chief Justice, and KERN and JENSEN, Justices,

concur.

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