People Ex Rel. Jmj

#23753-a-JKM

2007 SD 1

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                * * * *

                       THE PEOPLE OF THE STATE OF
                   SOUTH DAKOTA, IN THE INTEREST OF
                  J.M.J., MINOR CHILD AND CONCERNING,
                J.J. AND D.J., PARENTS AND RESPONDENTS

                                * * * *

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE SEVENTH JUDICIAL CIRCUIT
                  FALL RIVER COUNTY, SOUTH DAKOTA

                               * * * *
                       HONORABLE JANINE M. KERN
                                Judge

                                * * * *
PATRICK M. GINSBACH
HEATHER M. SUDBECK of
Farrell, Farrell & Ginsbach                Attorneys for appellant
Hot Springs, South Dakota                  child.

LAWRENCE E. LONG
Attorney General

STEVEN R. BLAIR
Assistant Attorney General                 Attorneys for appellee
Pierre, South Dakota                       state.

                                * * * *
                                          CONSIDERED ON BRIEFS
                                          ON OCTOBER 2, 2006

                                          OPINION FILED 01/03/07
#23753

MEIERHENRY, Justice

[¶1.]        In a juvenile proceeding, the trial court adjudicated sixteen-year-old

J.M.J. (J.J.) a delinquent child based upon a charge of rape in the first degree. J.J.

claims that the adjudication should be reversed because his statements to law

enforcement should have been suppressed and because there was insufficient

evidence to support a finding of rape in the first degree. Specifically, J.J. claims

that the deputy who questioned him about the alleged rape failed to inform him

that he could be tried as an adult. Without this warning, he claims that he could

not have made a knowing and voluntary waiver of his right against self-

incrimination.

[¶2.]        The circumstances leading up to J.J.’s interrogation began when

Deputy Steve McMillin (McMillin) of the Fall River County Sheriff’s Office was

called to Rapid City Regional Hospital to investigate allegations that sixteen-year-

old J.J. had raped his three-year-old niece. McMillin took a statement from the

niece’s mother and then retrieved the niece’s clothing for purposes of investigation.

McMillin drove to J.J.’s residence, arriving between 2 a.m. and 3 a.m. In J.J.’s

Mother’s presence, he questioned J.J. after advising him of his constitutional rights

under Miranda. McMillin read the rights from a pre-printed card, which included

an instruction for additional advisement when questioning a juvenile. The card

instructed officers to “inform the juvenile that there is the possibility that he/she

may be tried as an adult and that any statements made during questioning can be

used against him/her in an adult proceeding.” For reasons unknown, McMillin did

not follow the card’s direction to provide the additional advisement. Subsequently,


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J.J. waived his rights and answered questions for approximately twenty-five

minutes, during which he denied the allegations. McMillin then took J.J. into

custody and escorted J.J. to the patrol car. Alone with McMillin on the way to the

patrol car, J.J. asked McMillin, “if I did tell what I did, do I have to still go in?”

McMillin told J.J. that if he had done something, McMillin needed to know. J.J.

then told McMillin that he did it and, thereafter, repeated his confession in the

presence of his Mother.

[¶3.]         Subsequently, the State filed a petition alleging that J.J. was a

juvenile delinquent because he had committed the crime of first degree rape, or in

the alternative, sexual contact with a child under sixteen years of age. Initially, the

State gave notice of its intention to transfer the matter to adult court but decided

not to because J.J.’s psychological evaluation indicated that he could potentially be

rehabilitated in the juvenile justice system.

[¶4.]         Prior to adjudication, J.J. filed a motion to suppress any statements

made to law enforcement at the time of his arrest because McMillin had failed to

advise him that he could be tried as an adult. The court denied the motion. The

juvenile court ultimately adjudicated J.J. a delinquent child and remanded him to

the custody of the Department of Corrections. J.J. appeals, claiming the trial court

erred by failing to suppress his statements to law enforcement. He also claims that

the evidence was insufficient to adjudicate him as a delinquent.




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                             STANDARD OF REVIEW

[¶5.]        Whether a statement is voluntarily given is a question of law which we

review de novo. State v. Holman, 2006 SD 82, ¶13, 721 NW2d 452, 456. Our

standard of review is set forth as follows:

             “Although there are often subsidiary factual questions deserving
             deference, the voluntariness of a confession is ultimately a legal
             question.” State v. Tuttle, 2002 SD 94, ¶20, 650 NW2d 20, 30
             (citing Miller v. Fenton, 474 US 104, 116, 106 SCt 445, 452-53,
             88 LEd2d 405, 414-15 (1985) (additional citations omitted)).
             This Court reviews the entire record and makes an independent
             determination of voluntariness. Id. (citing Beckwith v. United
             States, 425 US 341, 348, 96 SCt 1612, 1617, 48 LEd2d 1, 8
             (1976) (additional citations omitted)). The State must establish
             the voluntariness of a confession by a preponderance of the
             evidence. Id. ¶21 (citing Nix v. Williams, 467 US 431, 444, 104
             SCt 2501, 81 LEd2d 377, n5 (1984)).

Holman, 2006 SD 82, ¶13, 721 NW2d at 456. Even if the juvenile’s confession is

involuntary, it may “not constitute reversible error if the State can prove the error

was harmless beyond a reasonable doubt.” Id. ¶25 (citing Arizona v. Fulminante,

499 US 279, 296, 111 SCt 1246, 1257, 113 LEd2d 302 (1991)).

[¶6.]        Our review of the sufficiency of the evidence is de novo. State v.

Tofani, 2006 SD 63, ¶35, 719 NW2d 391, 400. “We will not reverse the trial court’s

denial of a motion for judgment of acquittal or reverse the guilt determination of the

trier of fact if we conclude that ‘the State presented sufficient evidence on which the

[court] could reasonably find the defendant guilty of the crime charged.’” Id.

(quoting State v. Guthrie, 2001 SD 61, ¶47, 627 NW2d 401, 420).




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                                        DECISION

             1. Whether the trial court erred in finding that J.J.’s
                admissions were voluntary even though he was not advised
                of the possibility that his statements could be used against
                him in adult court.

Per se Rule vs. Totality of Circumstances Analysis

[¶7.]            J.J. claims that McMillin’s failure to advise him of the possibility that

he could be tried as an adult when advising him of his right to remain silent

violated his constitutional rights. He claims that without this advisement, the

State could not establish that he made a clear and intelligent waiver of his right to

counsel and right against self-incrimination. He relies on State v. Lohnes, 324

NW2d 409 (SD 1982). J.J. claims that Lohnes established a per se rule that a

juvenile’s confession cannot be found to be voluntary without the juvenile first being

advised that he could be tried as an adult. The State argues that the absence of this

warning should only be a factor considered in the totality of circumstances analysis

when evaluating the voluntariness of a child’s confession.

[¶8.]        We take this opportunity to re-examine our holding in Lohnes. Id. In

Lohnes, this Court said:

             We now hold that a juvenile is afforded additional, not less,
             protection of his constitutional rights and before a trial court can
             conclude that a juvenile has made a clear and intelligent waiver
             of his rights to counsel and against self-incrimination, the state
             shall have to establish that he was advised that there was a
             possibility that he may be tried as an adult.

Id. at 414-15.

[¶9.]        Lohnes involved a sixteen-year-old juvenile who was tried as an adult

for third degree burglary, grand theft and first degree murder. Id. at 411. The


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police initially took Lohnes into custody for questioning about a stolen pickup. Id.

at 410. Soon after beginning to question Lohnes, the police realized he was a

juvenile. Id. Nevertheless, the police continued questioning him for several hours

without contacting a parent or guardian. Id. Miranda warnings were given;

however, the juvenile was not asked if he wished to waive the rights when he

admitted to committing burglary and theft and that he was an escapee from the

state training school. Id. The next day, after learning that the driver of the pickup

was murdered, the police again questioned Lohnes. Id. at 411. Lohnes’s court

services officer became aware that the juvenile was a murder suspect and

attempted to schedule a court hearing for that same day. Id. The police

manipulated a delay in the hearing so that they could continue to question the

juvenile without an attorney or parent, arranging instead to have another police

officer serve as the child’s guardian during the questioning. Id. The interrogating

officer again read the Miranda rights to the juvenile. Id. Without asking if he

wished to waive the rights, the officer continued to question the juvenile until he

confessed. Id.

[¶10.]       The juvenile moved to suppress his confession based on grounds that

the deliberate delay in bringing him to court deprived him of an attorney and on the

grounds that his confession was not voluntary based upon the totality of the

circumstances. Id. Although the deliberate delay issue had not been preserved for

appeal, the Lohnes Court, nevertheless, considered it under the plain error rule

since evidence of the deliberate delay was presented at the suppression hearing. Id.

at 413. Based on the deliberate delay and the failure to inform the juvenile that he


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could be tried as an adult, the Court determined that the confession should have

been suppressed. Id. at 414.

[¶11.]         The Lohnes pronouncement that a juvenile must be told of the

possibility of being tried as an adult before a confession can be considered voluntary

cited to the following three cases from other jurisdictions: State v. Cano, 436 P2d

586 (Ariz 1968); State v. Loyd, 212 NW2d 671 (Minn 1973); and Theriault v. State,

223 NW2d 850 (Wis 1974). An analysis of the three cases, however, reveals that

they do not support the per se rule and all three jurisdictions embrace the totality of

the circumstances analysis. See In re Andre M., 88 P3d 552 (Ariz 2004); State v.

Ouk, 516 NW2d 180 (Minn 1994); In re Jerrell C.J., 699 NW2d 110 (Wis 2005). We

are aware of only two other jurisdictions that have adopted the per se rule:

Missouri and New Hampshire. State v. Simon, 680 SW2d 346 (Mo 1984); State v.

Benoit, 490 A2d 295 (NH 1985). The majority of jurisdictions apply the totality of

circumstances analysis approved by the United States Supreme Court in Fare v.

Michael C., 442 US 707, 99 SCt 2560, 61 LEd2d 197 (1979). 1 The juvenile in Fare



1.       States that have expressly rejected a per se rule requiring that a juvenile be
         warned of the possibility of adult prosecution include: Alaska, Watkinson v.
         State, 980 P2d 469, 472-73 (AlaskaCtApp 1999) (identifying New Hampshire
         and South Dakota as the only two states to impose this requirement);
         Connecticut, State v. Perez, 591 A2d 119, 123-24 (Conn 1991); Delaware,
         Marine v. State, 607 A2d 1185, 1197; North Carolina, State v. Taylor, 496
         SE2d 811, 816 (NCCtApp 1998); Oklahoma, J.D.L., Jr. v. State, 782 P2d
         1387, 1390 (OklaCrimApp 1989); Rhode Island, State v. Campbell, 691 A2d
         564, 567 (RI 1997); and Tennessee, State v. Callahan, 979 SW2d 577, 582
         (Tenn 1998).

         Some states that have declined to adopt a per se rule have found that the
         nature of the offense and the custodial nature of the interrogation may allow
         the juvenile to infer that he may be tried as an adult. See Quiriconi v. State,
                                                                     (continued . . .)
                                            -6-
#23753

argued that his request to speak with his probation officer during police

interrogation constituted a per se request to remain silent. Id. at 723, 99 SCt at

2571. The Court rejected the per se rule, explaining the adequacy of the totality of

the circumstances approach as follows:

             This totality-of-the-circumstances approach is adequate to
             determine whether there has been a waiver even where
             interrogation of juveniles is involved. We discern no persuasive
             reasons why any other approach is required where the question
             is whether a juvenile has waived his rights, as opposed to
             whether an adult has done so. The totality approach permits-
             indeed, it mandates-inquiry into all the circumstances
             surrounding the interrogation. This includes evaluation of the
             juvenile’s age, experience, education, background, and
             intelligence, and into whether he has the capacity to understand
             the warnings given him, the nature of his Fifth Amendment
             rights, and the consequences of waiving those rights.


Id. at 725, 99 SCt at 2572. Except for the per se requirement of Lohnes, generally,

we have analyzed the voluntariness of a juvenile’s confession based upon the

totality of the circumstances. See State v. Horse, 2002 SD 47, ¶13, 644 NW2d 211,

218; State v. Caffrey, 332 NW2d 269, 272 (SD 1983).

[¶12.]       Of course, any analysis presupposes that Miranda warnings have been

given. The United States Supreme Court explained the necessity of the warnings

and noted,

             [f]or those unaware of the privilege, the warning is needed
             simply to make them aware of it – the threshold requirement for
             an intelligent decision as to its exercise. More important, such a
             warning is an absolute prerequisite in overcoming the inherent
             pressures of the interrogation atmosphere. . . . Further, the
_____________________
(. . . continued)
         616 P2d 1111, 1114 (Nev 1980); State v. Gullings, 416 P2d 311, 313-14 (Or
         1966); State v. Luoma, 558 P2d 756, 761-62 (Wash 1977).

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#23753

             warning will show the individual that his interrogators are
             prepared to recognize his privilege should he choose to exercise
             it.

Miranda v. Arizona, 384 US 436, 468, 86 SCt 1602, 1624-25, 16 LEd2d 694, 707

(1966). The required warnings serve as a safeguard against an atmosphere

dominated by custodial police-interrogation, which “creates compelling pressures

undermining the will to resist, compelling suspects to speak where they would not

otherwise do so voluntarily.” Horse, 2002 SD 47, ¶12, 644 NW2d at 218 (citing

Miranda, 384 US at 467, 86 SCt at 1624).

[¶13.]       Juveniles are also afforded these safeguards. In re Gault, 387 US 1,

13, 87 SCt 1428, 1436, 18 LEd2d 527, 538 (1967). As the Court stated, “[N]either

the Fourteenth Amendment nor the Bill of Rights is for adults alone.” Id. In

providing this protection for juveniles, the Court recognized that juvenile court

proceedings often “deal with many cases involving conduct that can lead to

incarceration or close supervision for long periods, and therefore juveniles often

need the same safeguards that are granted to adults.” Id. at 1450, n65 (quoting

Nat’l Crime Comm’n Report, pp 86-87).

[¶14.]       We have acknowledged that because of the immaturity and

vulnerability of children, their right against self-incrimination is of utmost

importance. We said in Horse:

             The youth of an accused is a significant factor in determining
             the voluntariness of a confession. A juvenile’s constitutional
             right against self-incrimination should be afforded additional
             protection. If counsel is not present when an admission is
             obtained, a court must take great care to assure that the
             juvenile’s confession was voluntary, “in the sense not only that it
             was not coerced or suggested, but also that it was not the


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             product of ignorance of rights or of adolescent fantasy, fright, or
             despair.”

2002 SD 47, ¶12, 644 NW2d at 218 (quoting Caffrey, 332 NW2d at 272 (emphasis

added)). 2 The young mind may lack the sophistication, knowledge or maturity to

understand the ramifications of an admission. Thus, we require law enforcement to

explain the child’s rights prior to interrogation and to determine if those rights have

been waived before proceeding. “Miranda warnings safeguard the privilege against

self-incrimination during ‘incommunicado interrogation of individuals in a police-

dominated atmosphere.’” Horse, 2002 SD 47, ¶12, 644 NW2d at 218. The

atmosphere of interrogation “creates compelling pressures undermining the will to

resist, compelling suspects to speak where they would not otherwise do so

voluntarily.” Id. “Children can be ‘easy victim[s] of the law,’ so [a court must] take

special care to scrutinize the record when juveniles are involved.” Id. ¶12 (citing

Haley v. Ohio, 332 US 596, 599, 68 SCt 302, 303-04, 92 LEd 224, 228 (1948)).




2.    A recent law review article by Kenneth J. King, entitled, “Waving Childhood
      Goodbye: How Juvenile Courts Fail to Protect Children From Unknowing,
      Unintelligent, and Involuntary Waivers of Miranda Rights,” cited several
      studies which analyzed whether juveniles understood the meaning of
      Miranda warnings. 2006 WisLRev 431, 433. According to one such study,
      only 21% of children, compared to 42.3% of adults, were able to comprehend
      the meaning and significance of Miranda warnings. Id. Of these children,
      55% could not understand at least one component of the Miranda warnings
      compared to 23% of adults. Id. Compounding this problem, King also noted
      that the children that make up the juvenile justice system are much more
      likely as a whole to have mental illnesses, substance abuse problems, or
      learning disabilities. Id. at 443-44. These studies suggest that, “a juvenile’s
      vulnerability and immaturity place him at a greater disadvantage than an
      adult when dealing with police,” demonstrating the need for greater
      protection for a juvenile’s Fifth Amendment rights. Id. at 455.


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[¶15.]       What we have said in these prior cases concerning the scrutiny to be

applied in determining whether a juvenile’s statements are voluntary still holds.

However, we are prepared today to retreat from the per se rule espoused in Lohnes.

We, therefore, join the majority of jurisdictions that apply the totality of

circumstances analysis. The United States Supreme Court noted that a totality of

the circumstances analysis “refrains from imposing rigid restraints on police and

courts in dealing with an experienced older juvenile with an extensive prior record

who knowingly and intelligently waives his Fifth Amendment rights and

voluntarily consents to interrogation.” Fare, 442 US at 725-26, 99 SCt at 2572.

Although we still adhere to our statement in Lohnes “that a juvenile is afforded

additional, not less, protection of his constitutional rights,” we no longer approve of

the per se rule. 320 NW2d at 414. Instead, the voluntariness of a confession should

be determined based on an analysis of the totality of the circumstances.

Advisement that the juvenile could be tried in adult court is a significant factor in

that analysis. As Justice Konenkamp wrote in reference to the importance of the

presence of a parent or guardian during questioning,

             [W]hile we do not hold that a juvenile has a per se right to
             consult with a parent, guardian, or custodian before questioning
             or to have such persons present during questioning, we do hold
             that notice to a parent, guardian, or custodian and a child’s
             opportunity to confer with such persons are significant factors in
             evaluating the voluntariness of a statement or confession under
             the totality of the circumstances.

Horse, 2002 SD 47, ¶26, 644 NW2d at 224.

[¶16.]       Thus, we hold that advisement of the possibility of being tried as an

adult, although not a per se rule, is “a significant factor in evaluating the

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voluntariness of a statement or confession under the totality of the circumstances.”

Id. However, where a juvenile is not advised that he could be tried as an adult,

courts should proceed with caution and consider the juvenile’s confession under the

backdrop that “a juvenile’s constitutional right against self-incrimination should be

afforded additional protection.” Horse, 2002 SD 47, ¶12, 644 NW2d at 218.

[¶17.]         The advisement is especially warranted where the juvenile is charged

with a crime that falls under SDCL 26-11-3.1. Since 1997, South Dakota law has

mandated that delinquents who commit certain crimes shall be tried as adults.3

SDCL 26-11-3.1. The relevant portion of the statute provides: “Any delinquent

child sixteen years of age or older against whom Class A, Class B, Class C, Class 1,

or Class 2 felony charges have been filed shall be tried in circuit court as an adult.”

Id. Furthermore, when a delinquent requests a transfer hearing, the statute

establishes a “rebuttable presumption that it is in the best interest of the public

that any child, sixteen years of age or older, who is charged with a Class A, Class B,

Class C, Class 1, or Class 2 felony, shall be tried as an adult.” Id.

[¶18.]         Under the mandates of SDCL 26-11-3.1, the possibility of a juvenile

being tried in adult court is presumed. As the possibility that the juvenile may be

tried as an adult becomes more probable, the juvenile should understand that one of

the consequences of waiving his rights is that his statements could be used against

him in adult court. As the officer’s pre-printed Miranda card directed, law




3.       The legislature recently added Class C felonies to the list of felonies that
         automatically require delinquents to be tried as adults. 2006 SD Laws ch 117
         section 5.

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enforcement officers should take this precautionary step, especially where the

juvenile has committed a crime enumerated in SDCL 26-11-3.1.

[¶19.]       The State argues that the absence of such a warning should only be

considered when the juvenile is actually tried as an adult. The State, however, cites

no authority for its argument. An inquiry of voluntariness requires a determination

that the child’s statement “was not coerced or suggested, but also that it was not the

product of ignorance of rights or of adolescent fantasy, fright, or despair.” Caffrey,

332 NW2d at 272 (internal quotations and citations omitted). An invalid waiver of

Miranda rights is not cured simply because the proceedings are juvenile in nature.

See In re Gault, 387 US at 47-48, 87 SCt at 1454-55 (stating that delinquency

proceedings are criminal for purposes of the Fifth Amendment). The purpose of the

right against self-incrimination “is to prevent the state, whether by force or by

psychological domination, from overcoming the mind and will of the person under

investigation and depriving him of the freedom to decide whether to assist the state

in securing his conviction.” Id. at 47. Thus, we turn to our review of the lower

court’s decision.

Voluntariness under Totality of Circumstances Analysis

[¶20.]       In this case, the trial judge declined to follow the per se rule of Lohnes

and considered whether J.J.’s confession was voluntary based on a totality of the

circumstances analysis. However, in applying the totality of the circumstances

analysis, it is unclear whether the judge considered failure to warn of the possibility

of adult prosecution as a factor. Another problem in this case is that information

concerning J.J.’s learning disabilities and the effect of not being told he could be


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tried as an adult did not surface until the adjudication and disposition hearings.

For example, during the adjudication hearing, Mother first testified about J.J.’s

delayed development and that she would not have agreed to the interview had she

known that J.J. could have been tried as an adult. Similarly, information that J.J.

had an IQ of 79, was diagnosed with Attention Deficit Hyperactivity Disorder and

was on an Individual Education Plan came through testimony in the adjudication

and disposition hearings. The only witness at the suppression hearing was Deputy

McMillin. He testified that he went to J.J.’s residence at about 2:30 or 3:00 a.m. He

knocked on the door and J.J.’s mother answered. He then explained “what was

going on and that [he] needed to speak to J.J. about the incident.” He asked her

permission to speak with J.J. She agreed and awoke J.J. During the questioning,

McMillin stood in the entry while J.J. and Mother sat at a table in front of him.

McMillin explained to them “that no matter what come [sic] about, that [his] mind

had already been made up and there was nothing that was going to change the

outcome of the interview.” McMillin then read J.J. his Miranda rights from a pre-

printed card. He read from the card as follows:

             You have the continuing right to remain silent and to stop
             questioning at any time. Anything you say can be used as
             evidence against you. You have the continuing right to consult
             with and have the presence of an attorney. If you cannot afford
             an attorney, an attorney will be appointed for you. Do you
             understand your rights? Do you wish to waive your rights and
             talk to me at this time?

J.J. answered the two questions, “yes.” Although the pre-printed card indicated that

when questioning a juvenile, the officer should also explain that the child could be




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tried as an adult, the deputy admitted he did not read that portion of the card.

Thus, J.J. was not informed that there was the possibility of being tried as an adult.

[¶21.]       During the short interview in the residence, J.J. made no admissions.

The deputy then put J.J. under arrest and collected the clothing J.J. had been

wearing that day. The deputy then explained to J.J. and Mother that he was taking

J.J. to the sheriff’s office and would be contacting a judge to decide if J.J. would be

placed in the juvenile detention facility. The deputy then walked J.J. towards the

patrol car, which was parked on the street. On the way to the car, J.J. asked

McMillin, “if I did tell what I did, do I have to still go in?” McMillin responded, “if

you did something, I need to know. I understand it is tough to say certain things in

front of your parents.” J.J. then confessed. McMillin testified as follows:

             From there he said, “I did do it. She told me to do it.” I said, “a
             three-year-old girl told you to do it?” He said, “yes,” and I
             inquired where it was at. He said, “in the Explorer.” I asked, “if
             I bring your mom out here, will you explain everything to her?”
             He said he would. So I placed him in the patrol car and went in
             and got his mom.”

Mother then came to the patrol car and J.J. told her what had happened. This

taped conversation was introduced into evidence. J.J. asked again if he could stay

with his mother.

[¶22.]       Based on this evidence and briefs submitted by counsel, the judge

decided that the statements were voluntary. In a letter decision, she indicated that

the factors she considered were as follows: “1) the defendant’s youth; 2) the

defendant’s lack of education or low intelligence; 3) the absence of any advice to the

defendant of his constitutional rights; 4) the length of detention; 5) the repeated and

prolonged nature of questioning; 6) the use of physical punishment such as the

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deprivation of food or sleep; 7) the defendant’s prior experience with law

enforcement and court system; and 8) whether the interrogating officers used

deception or misrepresentation.” The judge’s written decision does not indicate that

she took into consideration the factors involving the absence of the warning that he

could be tried as an adult and the presence or absence of J.J.’s mother when he

made the statements. See Horse, 2002 SD 47, ¶26, 644 NW2d at 224. She did,

however, mention them in her decision as follows:

             Having considered the totality of the circumstances, the Court
             determines that J.J.’s consent to interrogation was freely and
             voluntarily given. J.J. was fifteen years old at the time of his
             arrest. He was advised of his Miranda rights prior to the
             interrogation, but not of the fact that there was a possibility he
             could be tried as an adult. He indicated he understood his
             rights, wished to waive them and speak to Deputy McMillan.
             No evidence that J.J. is of low intelligence has been presented to
             the Court. J.J. was questioned for a very short period of time in
             his own home with his mother present. J.J. was not punished in
             any way during the interrogation. Also, the Court has been
             presented with no evidence that Deputy McMillan used
             deception or misrepresentation to obtain the confession. After
             J.J. initially refused to speak he then reinitiated the
             conversation outside his mother’s presence and then made
             incriminating statements. J.J. will be tried in juvenile rather
             than adult court.

The State had the burden of proving by a preponderance of the evidence that J.J.’s

statements were voluntary. Holman, 2006 SD 82, ¶13, 72 NW2d at 456. Based on

the testimony and evidence presented at the suppression hearing, we cannot say

that the trial court erred in finding voluntariness. Evidence of J.J.’s learning

disabilities and low IQ and Mother’s claim that she would have stopped the

interrogation had she been told that J.J. could be tried as an adult may have tipped

the scales against voluntariness. However, that evidence was not presented as part


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of the motion to suppress. It was not until the adjudicatory hearing that Mother

attempted to testify that she did not know or understand during the questioning at

the residence that J.J. could have been tried as an adult and that had she known

she would not have allowed McMillin to continue questioning her son. The State

objected to her testimony and the judge sustained the State’s objection because it

should have been presented at the suppression hearing. The judge then asked as

follows:

             Well, we’re in the unique situation where a trial is occurring
             before the Court. We had a full blown suppression on this. You
             briefed it as did [the State’s Attorney] and there was a
             significant amount of information that you didn’t apparently
             bring to the Court. Now, you want to revisit this during the
             middle of an adjudicatory hearing, is that what you’re asking
             the Court to do?
             ...
             The Court’s point is that should have been done at the
             suppression hearing. Are you asking the Court to reconsider the
             ruling made at the suppression hearing by evidence now you’re
             garnering at the adjudicatory proceeding?

J.J.’s counsel answered that he did not want the judge to reconsider the suppression

ruling and that he only offered the information for the purpose of determining the

weight and credibility to give to J.J.’s confession. Counsel’s answer was as follows:

             I’m asking you, as trier of fact, to make a determination, when
             you render your decision, not to give any credibility to those
             admissions that were made under the circumstances in which
             they were procured and that’s what the jury instruction says,
             when you look at admissions or confessions, you’re supposed to
             look at them as suspect, as a jury. That’s the jury, what they
             are suppose to do. The reason you look at all circumstances
             under which they were obtained. So all I’m doing is fleshing out
             how those are to be determined and what weight you are going
             to give to those admissions.




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[¶23.]       A review of the judge’s findings reveals that almost all of her findings

in determining guilt were based on evidence and testimony other than J.J.’s

confession. Of the judge’s nineteen findings of fact, only two mention J.J.’s

admissions. Her findings in regard to the admissions were as follows:

             16. That J.J. admitted, in a conversation with Fall River County
             Deputy Sheriff Steve McMillin and his mother, that [the niece]
             wanted to know what it felt like if he put “his winker in her
             dink,” and that she wanted him to and that he did do it.

             17. That the Court reduces the weight given to the admission of
             J.J. because of the testimony that J.J. is enrolled in an Individual
             Education Program at the Edgemont School and that he is two
             years behind as he was not allowed to matriculate immediately
             from Kindergarten and the fifth grade; however, these grade
             retentions were a result of J.J.’s maturity levels and not a result
             of his inability to read, write or communicate.

None of the other findings of fact upon which the judge based her adjudication

depended on or were a result of J.J.’s statements. The findings were based on the

testimony of the doctor that examined the niece, statements made by the niece to

her mother and others, and photographs of the child’s injuries. Even if we were to

assume that J.J.’s statements were involuntary, the error was harmless beyond a

reasonable doubt because the judge gave reduced weight to the admission and

because the evidence supported the adjudication without the admission. See

Holman, 2006 SD 82, ¶25, 72 NW2d at 459.

             2. Whether the trial court erred when it found sufficient
                evidence to adjudicate J.J. a delinquent child.

[¶24.]       J.J. also claims that the evidence was insufficient to adjudicate him as

a delinquent. We find no merit to his claim. Although he claims there was no

corroborating evidence to establish the corpus delecti of the crime, a review of the


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evidence shows otherwise. Both the statements of the niece and the medical

observation of the doctor establish that a rape occurred and that the perpetrator

was J.J. Four pictures of the niece’s vaginal area were introduced into evidence

which depicted the injuries explained by the doctor. The doctor’s observations were

that a “rubbing” trauma from the skin being pulled back and forth caused tears

along the niece’s labia approximately 7-10 mm in length. The doctor testified, based

upon the child’s demeanor, the spontaneous allegations made by the niece and the

results of the exam that a sexual assault had “probably occurred.” Additionally, the

niece told her mother that J.J. had put his “winker” in her “dink.” She complained

of burning when she urinated and the photographs showed the redness and trauma

to the child’s vaginal area.

[¶25.]       J.J. also claims that the hearsay statements of the child should not

have been considered by the court. The child’s statements came in without

objection, consequently, this issue was not preserved for appeal. Rogen v. Monson,

2000 SD 51, ¶15, n2, 609 NW2d 456, 460 (stating that the failure to make a timely

objection does not preserve the issue for appeal).

[¶26.]       Based on our standard of review, we cannot say that the trial judge

erred in adjudicating J.J. a delinquent child. We affirm on all issues.

[¶27.]       GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and

ZINTER, Justices, concur.




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