State v. Wright

#24531-a-SLZ

2009 SD 51

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

DAPHNE ANTRANETTE WRIGHT, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT
OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

HONORABLE BRADLEY G. ZELL
Judge

* * * *

LAWRENCE E. LONG
Attorney General

MEGHAN N. DILGES
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellee.

TRACI SMITH
Office of the Minnehaha County
Public Defender Attorneys for defendant
Sioux Falls, South Dakota and appellant.

* * * *

ARGUED ON MARCH 25, 2009

OPINION FILED 06/24/09
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ZINTER, Justice

[¶1.] Daphne Wright appeals her convictions of premeditated murder, felony

murder, and aggravated kidnapping. The appeal raises issues regarding the

admissibility of Wright’s statements to police, hearing-impairment accommodations

provided at trial, minority representation in the jury pool, admission of prior acts,

sufficiency of the evidence, and a question of double jeopardy. We affirm.

Facts and Procedural History

[¶2.] In August 2004, Wright and her girlfriend Sallie Collins moved into

the home of Wright’s friend, Jackie Chesmore. Both Wright and Collins were deaf,

and in September, Collins moved to an apartment complex known within the Sioux

Falls deaf community as the “deaf apartments.” While living there, Collins became

friends with Darlene VanderGiesen, who was also deaf.

[¶3.] Wright became jealous of VanderGiesen and thought that

VanderGiesen was trying to destroy Wright’s relationship with Collins. On

February 1, 2006, Wright met VanderGiesen at a Pizza Hut restaurant ostensibly to

plan a Valentine’s Day surprise for Collins. VanderGiesen was never seen again.

Two days after the meeting, VanderGiesen’s father reported that his daughter was

missing. The next day, police found VanderGiesen’s vehicle abandoned in the Pizza

Hut parking lot. VanderGiesen’s car keys, house keys, wallet, and identification

were missing. Police also found clothing matching the description of what

VanderGiesen had been wearing on the last day she had been seen.

[¶4.] Detectives examined VanderGiesen’s computer and cell phone text

messages. Detectives also obtained information from related communication

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companies, which led police to VanderGiesen’s friends in the deaf community. Both

sources of information eventually led police to Chesmore’s home. The investigators

found that e-mails had been sent from Chesmore’s computer to VanderGiesen’s

computer under the user name “Wendy.” The e-mails advised VanderGiesen to stop

visiting the deaf apartments and contained insults directed at VanderGiesen.

Wright had also sent an e-mail under her name stating: “Hi this is Collins’s lover

as you know who am I [sic], right? am very disappointment [sic] in you because you

always visit Collins when am [sic] not there, enough please, thanks . . . .”

[¶5.] The day after these discoveries, Chesmore and Wright voluntarily

drove together to the Sioux Falls law enforcement center (LEC) to be interviewed.

Detective Olson interviewed Wright using a certified sign language interpreter.

Olson informed Wright when she arrived for the interview that he was conducting a

missing person investigation. He also advised Wright that she was not being

charged with a crime, she was free to leave, and she could stop the questioning at

any time. Wright was not advised of her Miranda rights.

[¶6.] During the interview, Wright initially denied sending the e-mails to

VanderGiesen. However, when Detective Olson informed her that he possessed

contrary information from the communication companies, Wright admitted that she

was the person who sent all of the e-mails. Wright also repeatedly changed her

story regarding her meeting with VanderGiesen at the Pizza Hut. Originally, she

denied any meeting, stating that the last time she talked to VanderGiesen was on

January 29. Later, she indicated that she was supposed to meet VanderGiesen at

the Pizza Hut, but Wright could not go because her car was out of gas. Ultimately,

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she admitted that she did meet VanderGiesen at the Pizza Hut on February 1st,

that they spoke for about five minutes in the parking lot, but that Wright cancelled

the meeting because she did not have enough money to eat.

[¶7.] The interview lasted from 10:49 a.m. until 12:54 p.m. Approximately

one hour into the interview, Detective Olson reminded Wright that she was free to

leave and could stop the questioning at any time. Wright did not request to leave or

stop the questioning. Instead, she consistently denied having any knowledge of

VanderGiesen’s disappearance.

[¶8.] The parties agree that at 12:54 p.m., Wright unequivocally asked for

an attorney. At that time, based upon her inconsistent statements and the

information discovered during the investigation, police obtained and executed a

search warrant on Wright’s person, home, and vehicle. Although she was not

further interviewed, Wright was not allowed to go back to her home while the

warrant was being executed. Police kept Wright at the LEC until 6:10 p.m., when

the search of her person was concluded.

[¶9.] The search of Wright’s vehicle revealed reddish stains on the rear

bumper that appeared to be blood. Subsequent DNA testing reflected that the blood

matched VanderGiesen’s profile. A search of Wright’s bedroom in Chesmore’s home

revealed a receipt from a hardware store. The receipt reflected that Wright had

purchased an electric chainsaw on February 3, 2006. The search of Chesmore’s

basement revealed fresh blue paint under which the police discovered cut marks in

the concrete floor. Testing confirmed the presence of VanderGiesen’s DNA under

the paint. A further search of the floor and walls of the basement revealed bone,

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muscle, and blood fragments matching VanderGiesen’s DNA. Following these

discoveries, Wright was arrested and indicted on charges of murder in the first

degree (premeditated murder), murder in the second degree (felony murder), and

aggravated kidnapping.

[¶10.] Prior to trial, psychologist Dr. McCay Vernon conducted an evaluation

of Wright. Based on testing, he determined that Wright had the reading ability of a

third-grader. A Bender Gestalt assessment suggested the possibility of brain

damage, yet Wright’s non-verbal IQ was 114 to 117. While Dr. Vernon indicated

that Wright had a very good grasp of American Sign Language (ASL), he also

testified that there were many commonly used legal terms for which there were no

signs. He further testified that it was difficult to convey many legal concepts to a

person such as Wright, who was “prelingually deaf,” meaning that she became deaf

before learning language. 1 Dr. Vernon recommended that trial testimony be

interpreted to Wright consecutively, rather than simultaneously. Dr. Vernon

opined that although the court could accommodate Wright through the use of real-

time captioning, in which Wright could see what the court reporter was typing, it

would be of little use to Wright because of her limited comprehension levels.

[¶11.] Based on Dr. Vernon’s testimony, Wright moved for consecutive

interpretation during trial proceedings. Following denial of that motion, Wright

moved for reconsideration and the appointment of a certified deaf interpreter

1. Wright lost her hearing at the age of ten months following an episode of
rubella.

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(CDI). 2 At the second hearing, Professor Michele LaVigne, from the University of

Wisconsin Law School, testified that Wright communicated quite well with ASL

when carrying on a casual conversation. Professor LaVigne noted, however, that

when she tried to communicate with Wright about what was happening with

Wright’s case, “[a]ll of a sudden the communication . . . was like we hit a brick wall.

. . . It was very, very difficult and incomplete.”

[¶12.] The circuit court denied Wright’s motion for reconsideration and

motion for employment of a CDI, explaining that it would provide a number of

alternative accommodations. First, instead of employing a CDI to interpret

consecutively in the courtroom, the court provided a CDI to assist Wright and

counsel in communicating before the proceedings. Second, the court provided five

level-five certified ASL interpreters: three to interpret what was occurring in the

courtroom and two to sit at counsel table to facilitate communication between

Wright and her counsel. Third, the court provided real time captioning, in which

every word the court reporter transcribed was simultaneously projected onto a

computer screen for Wright and other participants to read. Fourth, at Wright’s

request, the trial was videotaped, which captured the ASL interpreters’ hands.

Fifth, daily DVDs of the trial proceedings were provided for Wright’s review every

2. A CDI is an individual who is deaf or hard of hearing. In CDI interpretation,
a communication passes from a hearing person to hearing interpreter (a
hearing person who interprets) to the deaf interpreter (a deaf person who
interprets) to a deaf person. The response passes from the deaf person to the
deaf interpreter to the hearing interpreter and then to the hearing person.
Linton v. State (Linton II), 275 SW3d 493, 510 (TexCrimApp 2009) (Johnson,
J., concurring).

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evening. Wright and defense counsel were then given an opportunity each morning

to apprise the court of any communication problems that may have arisen during

the prior day. Finally, the court provided Wright the opportunity to take breaks at

any time during the proceeding if she was having difficulty understanding what

was occurring. 3

[¶13.] The State’s theory at trial was that on February 1, 2006, Wright

invited VanderGiesen to the meeting at Pizza Hut as a ruse, and that at some point

after they met, Wright struck VanderGiesen on the head with a blunt object,

leaving a seven-inch skull fracture. According to the State’s theory, Wright also

tightly cinched a plastic bag over VanderGiesen’s head, cutting off her oxygen

supply. Dr. Brad Randall testified that the cause of VanderGiesen’s death was

either “blunt force head trauma or suffocation or both.” Wright’s expert, Dr. Donald

Habbee, agreed with Dr. Randall as to the cause of VanderGiesen’s death.

[¶14.] The State also presented evidence that Wright tried to cover up the

killing by attempting to burn VanderGiesen’s body. When this failed, Wright, in the

basement of Chesmore’s home, dismembered VanderGiesen’s body with the electric

chainsaw. Chesmore testified that when she arrived home from work on February

3, 2006, she observed Wright cleaning and removing carpet remnants from the

basement. She also observed Wright loading bags of garbage and chunks of

concrete into the back of Wright’s vehicle.

3. Wright only requested one break, which was during jury selection. The court
provided the break.

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[¶15.] Allegedly, Wright then disposed of VanderGiesen’s legs and lower torso

in a dumpster behind a store near Chesmore’s home. Those body parts were

discovered in an area landfill on February 11, 2006. An American Sign Language

sweatshirt that belonged to VanderGiesen was discovered in the landfill with the

body parts. DNA from both VanderGiesen and Wright was found on the sweatshirt.

The State alleged that Wright disposed the remaining portion of VanderGiesen’s

body in a roadside ditch in Minnesota, not far from the South Dakota border.

[¶16.] The jury returned a verdict of guilty on all three counts. The jury

found that a death sentence should not be imposed. The court sentenced Wright to

concurrent life sentences on the premeditated murder and aggravated kidnapping

convictions. The court imposed no sentence on the felony murder conviction.

[¶17.] Wright appeals raising the following issues: (1) whether the circuit

court erred in denying Wright’s motion to suppress statements made during her

interview at the LEC; (2) whether the circuit court should have granted Wright’s

request for consecutive interpretation and a CDI; (3) whether the system of

selecting jurors violated Wright’s constitutional rights; (4) whether the circuit court

erred in allowing evidence of a prior altercation involving Wright, VanderGiesen,

and Collins; (5) whether there was sufficient evidence to support the convictions; (6)

whether the convictions for kidnapping and felony murder violated the Double

Jeopardy Clause; and, (7) whether cumulative error denied Wright a fair trial.

Decision

1. Wright’s Statements.

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[¶18.] Wright contends that her statements made to police during her

interview should have been suppressed because: (A) she was in custody and was

not advised of her Miranda rights; (B) she was denied requests to consult with an

attorney; and (C) her statements were involuntary. In reviewing the circuit court’s

rulings on Wright’s Fifth Amendment contentions, “[w]e review findings of fact

under the clearly erroneous standard. Once the facts have been determined, 4

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

reviewed de novo.” State v. Ball, 2004 SD 9, ¶21, 675 NW2d 192, 199 (quoting State

v. Hodges, 2001 SD 93, ¶8, 631 NW2d 206, 209).

A. Whether Wright’s Interview was a Custodial Interrogation Requiring
a Miranda Advisement.

[¶19.] At no time during Wright’s interview did the police advise Wright of

her Miranda rights. “[P]olice officers are not [,however,] required to administer

Miranda warnings to everyone whom they question.” State v. Aesoph, 2002 SD 71,

¶17, 647 NW2d 743, 751 (quoting State v. Thompson, 1997 SD 15, ¶23, 560 NW2d

535, 540). Rather, Miranda warnings are required only when there is a custodial

interrogation. Id. As this Court explained in State v. Johnson, a Miranda warning

is not required in non-custodial situations because:

Any interview of one suspected of a crime by a police officer will
have coercive aspects to it, simply by virtue of the fact that the
police officer is part of a law enforcement system which may
ultimately cause the suspect to be charged with a crime. Nor is
the requirement of warning to be imposed simply because the
questioning takes place in the station house, or because the

4. At oral argument, Wright conceded there is no disagreement regarding the
historical facts.

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questioned person is one whom the police suspect. Miranda
warnings are required only where there has been such a
restriction on a person’s freedom as to render [her] ‘in custody.’

2007 SD 86, ¶22, 739 NW2d 1, 9 (citation omitted). In making that custody

determination, a two-part test is utilized.

[F]irst, what were the circumstances surrounding the
interrogation; and second, given those circumstances, would a
reasonable person have felt he or she was not at liberty to
terminate the interrogation and leave. Once the scene is set and
the players’ lines and actions are reconstructed, the court must
apply an objective test to resolve the ultimate inquiry: was
there a formal arrest or restraint on freedom of movement of the
degree associated with a formal arrest.

Id. (citation omitted).

[¶20.] The State argues that an objective view of the circumstances at the

time Wright was actually interviewed (between 10:30 a.m. and 12:54 p.m.) reflects

that she was not so deprived of her freedom as to be in custody for purposes of

Miranda. There is no dispute that no restraints were placed on Wright and she was

told she was free to leave during this period of time. Wright, however, argues that

she “did not feel free to leave,” she felt “tremendous negative pressure,” and “she

felt that she had no choice” but to participate in the interview. (Appellant’s Br. 25)

Wright’s “subjective thoughts are not a proper basis for the determination of

whether [she] was in custody.” State v. Myhre, 2001 SD 109, ¶18, 633 NW2d 186,

190 (quoting State v. Herting, 2000 SD 12, ¶13, 604 NW2d 863, 866). “[T]he . . .

determination of custody depends on the objective circumstances of the

interrogation, not on the subjective views harbored by either the interrogating

officers or the person being questioned.” Herting, 2000 SD 12, ¶9, 604 NW2d at 865

(quoting Thompson, 1997 SD 15, ¶25, 560 NW2d at 540). Further, even if Wright’s

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subjective feelings were relevant, Wright did not testify at the suppression hearing

or at trial, so there is no evidence to support her appellate argument of feeling

subjective pressure.

[¶21.] In examining the objective circumstances of this interview, the circuit

court found and concluded that:

[Wright] was not in custody at the time of the interview with
Detective Olson, as [Wright] was not under arrest at the time of
her interview with Detective Olson, [Wright] voluntarily
submitted herself to the interview process, [Wright] was told she
was free to leave and in fact was allowed to leave the [LEC]
after her person was searched pursuant to a warrant obtained
after her interview[.]

That because [Wright] was not in custody during her interview
Detective Olson was not required to inform [Wright] of Miranda
Rights.

Our review of the record supports the circuit court’s findings and conclusion.

[¶22.] The record reflects that Wright voluntarily came to the LEC and

agreed to speak with the police while under no restraint until 12:54 p.m. Under

those circumstances, a defendant is generally not considered in custody for purposes

of Miranda. See Myhre, 2001 SD 109, ¶17, 633 NW2d at 190 (noting that “[i]n State

v. Anderson, [2000 SD 45, ¶77, 608 NW2d 644, 666,] we recognized that [a

defendant’s] voluntary acceptance of an invitation to the police station and his

choosing to speak with the police while not restrained in any way did not constitute

custodial interrogation”). Similarly, in State v. Darby, we considered analogous

circumstances concluding:

The door to the room in which [the officer] interviewed
[defendant] was unlocked, of which he was aware, but was
closed for privacy. We have previously held that a closed, or
even a locked, door does not, in and of itself, create a custodial

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interrogation. No restraints were placed on [defendant], and he
was free to move about the room and free to leave. . . . We do
not find error in the trial court’s conclusion that [defendant] was
not in custody at the time of the interview[ ] . . . at the police
station.

1996 SD 127, ¶26, 556 NW2d 311, 319 (citation omitted) (emphasis added).

[¶23.] Although the record does reflect that Wright was not permitted to

leave after her request for counsel at 12:54 p.m., all questioning stopped at that

time. Additionally, the initial 12:54 p.m. restriction on Wright’s freedom of

movement was simply a request that she step back into the interrogation room so

another interviewee could pass without the two of them seeing each other.

Thereafter, the officers specifically informed Wright that she was not under arrest

and that she was being detained solely for the purpose of executing the search

warrant. Although she was then detained for that purpose until 6:10 p.m., no

further questioning occurred.

[¶24.] It is also significant that at the time Wright was actually interviewed,

she was not a suspect. VanderGiesen’s body had not been found and the police were

only investigating a missing persons matter. Detective Olson informed Wright that

she was not charged with any crime, that she was free to leave, and that she could

stop the questioning at any time. Olson demonstrated that the door was unlocked

and reminded Wright later in the interview that she was free to leave. There is

simply no evidence suggesting that at the time she was actually interviewed, there

was a formal arrest or restraint on Wright’s freedom of movement of the degree

associated with a formal arrest.

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[¶25.] Wright, however, contends that her detention after 12:54 p.m. belies

Detective Olson’s earlier statements that she was free to leave. This after-the-fact

argument regarding the subjective intent of Detective Olson focuses on the incorrect

legal test and on the incorrect time for making the assessment. The proper inquiry

involves an objective examination considering whether a reasonable interviewee,

under the circumstances existing at the time of the interview, would have felt that

she was not at liberty to terminate the interview and leave. Johnson, 2007 SD 86,

¶22, 739 NW2d at 9; Thompson, 1997 SD 15, ¶25, 560 NW2d at 540 (citing

Stansbury v. California, 511 US 318, 323, 114 SCt 1526, 1529, 128 LEd2d 293, 298

(1994)). See also Bradley v. Weber, 1999 SD 68, ¶14, 595 NW2d 615, 620 (noting

that the defendant “was not in custody at the time of the interview and therefore he

was not entitled to Miranda warnings”) (emphasis added); State v. Ferguson, 84 SD

605, 613, 175 NW2d 57, 62 (1970) (providing, “[a]t the time of the interview

defendant was not in custody or otherwise deprived of his freedom by any

authorities”) (emphasis added).

[¶26.] In this case, a review of the custodial circumstances existing at the

time of the interview reflects that a reasonable person would have understood that

they were at liberty to terminate the interview and leave. Ultimately, there is “no

indication that [Wright] was coerced into making any statements through the

‘inherently compelling pressures’ of a custodial setting.” Johnson, 2007 SD 86, ¶28,

739 NW2d at 10 (citing Miranda v. Arizona, 384 US 436, 467, 86 SCt 1602, 1624, 16

LEd2d 694 (1966)).

B. Whether Wright Was Denied Her Fifth Amendment Right against
Self-Incrimination/Right to Counsel.

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[¶27.] Wright claims that her numerous requests for a lawyer were ignored

and, therefore, her Fifth Amendment rights were violated. “The purpose of the

Fifth Amendment right to counsel is to protect individuals from self-incrimination

and assist in the custodial interrogation process.” State v. Hoadley, 2002 SD 109,

¶26, 651 NW2d 249, 256 (citation omitted). “A person is not entitled to counsel if

the interrogation is noncustodial.” Id. Nevertheless, when counsel is requested,

questioning must cease. State v. Hartley, 326 NW2d 226, 231 (SD 1982). “[A]n

accused . . . having expressed [her] desire to deal with the police only through

counsel, is not subject to further interrogation . . . until counsel has been made

available to [her], unless the accused [her]self initiates further communication,

exchanges, or conversations with the police.” Edwards v. Arizona, 451 US 477, 484-

85, 101 SCt 1880, 1885, 68 LEd2d 378 (1981).

[¶28.] In this case, at approximately 12:30 p.m., Wright asked Detective

Olson, “Do I need to call a lawyer?” Detective Olson responded, “Like I said, I just

want you to sit here and talk to me. I want to figure this out. You know if you

didn’t do anything wrong then you wouldn’t need a lawyer. I want you to talk to

me and tell me what happened.” The interview then continued without Wright

requesting an attorney. Wright does not argue that her 12:30 p.m. question was

the type of ambiguous or equivocal request for counsel requiring Olson to clarify

her question before continuing the interview. See, e.g., State v. Blackburn, 2009 SD

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37, ___ NW2d ___. 5 Instead, Wright argues that her question, “Do I need to call a

lawyer,” was a request for a lawyer “as clear and unequivocal as [it] could be[,]”

triggering Edwards. (Appellant’s Br. 28) The State responds that Wright’s

question was not a clear and unequivocal request for counsel requiring the

cessation of further questioning.

[¶29.] The virtually identical question, asked by suspects in the closely

related context of a custodial interrogations, is uniformly considered to be an

equivocal request for counsel not triggering Edwards. See Davis v. United States,

512 US 452, 459, 114 SCt 2350, 2355, 129 LEd2d 362 (1994) (concluding that an

hour-and-one-half after reading Davis his Miranda rights, the statement, “Maybe I

should talk to a lawyer,” was an equivocal request for counsel). See also Noyakuk v.

State, 127 P3d 856, 871 (AlaskaCtApp 2006) (concluding that “Shouldn’t I just have

my attorney with me, or something?” was an equivocal request); State v. Radcliffe,

164 Wash2d 900, 907-08, 194 P3d 250, 254 (2008) (concluding that the defendant’s

statement, “maybe [I] should contact an attorney,” was equivocal). The law appears

to be settled that this type of question is not an unequivocal request for counsel.

[¶30.] Were there any doubt, Wright’s 12:54 p.m. statement confirmed that

factually, although she understood she had a right to counsel, her 12:30 p.m.

question was not a request for counsel. The recording of the interview reflects that

5. See also United States v. Rodriguez, 518 F3d 1072, 1078-79 (9thCir 2008);
Nom v. Spencer, 337 F3d 112, 118 (1stCir 2003); State v. Collins, 937 So2d
86, 92 (AlaCrimApp 2005); Freeman v. State, 857 A2d 557, 572-73
(MdCtSpecApp 2004); State v. Tuttle, 2002 SD 94, ¶14, 650 NW2d 20, 28;
State v. Leyva, 951 P2d 738, 743 (Utah 1997).

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following Wright’s 12:30 p.m. question, Officer Olson began to repeat questions

suggesting that Wright actually knew what happened. Wright became irritated

with Officer Olson and interjected, “OK. That’s fine. I need to call an attorney

then.” This spontaneous and unequivocal demand in response to Officer Olson’s

accusations confirms that Wright knew how to express an unequivocal request for a

lawyer.

[¶31.] Finally, even if Wright’s question had been an unequivocal request for

counsel, Wright has not demonstrated that she was prejudiced by any statement

elicited after her question. Ten of the twenty-four minutes at issue involved a

break in the questioning. And, Wright has not briefed or identified at oral

argument one incriminatory statement or one new inconsistent statement that was

elicited during the remaining fourteen minutes. 6 For all of the foregoing reasons,

we affirm the circuit court’s conclusion that Wright was not deprived of her Fifth

Amendment rights through any failure to honor a request for counsel. 7

6. To the extent that Wright’s statements after 12:30 p.m. may have been
inconsistent, Wright has not demonstrated prejudice as she has not
demonstrated how any alleged inconsistencies were materially different than
those previously disclosed. The only statement of consequence Wright
provided from 12:30 p.m. until 12:54 p.m., was that she volunteered to have
her vehicle searched. However, her vehicle was not searched pursuant to this
statement. Her vehicle was searched pursuant to a search warrant.

7. We acknowledge Wright’s arguments that after 12:54 p.m. she also requested
the use of a T.T.Y. to contact counsel, that she was told a T.T.Y. was
unavailable, and that she made several written requests for an attorney.
Wright, however, fails to acknowledge that her requests for a T.T.Y. and her
written requests for counsel occurred after 12:54 p.m., when all questioning
had ceased. Similarly, we acknowledge Wright’s argument that an attorney
from the public defender’s office arrived around 4:50 p.m., and Wright was
not permitted to consult with an attorney until 6:10 p.m. Again, however,
(continued . . .)
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C. Whether Wright’s Statements Were Voluntary.

[¶32.] Wright claims that Detective Olson was coercive, and that under the

totality of the circumstances, especially considering her hearing disability, her

statements to Detective Olson were involuntary. “When examining the

voluntariness of a confession, [this Court] consider[s] the totality of the

circumstances, giving deference to the trial court’s factual findings, but performing

a de novo review of the record, and making ‘an independent determination of the

ultimate issue of voluntariness.’” State v. Carothers, 2006 SD 100, ¶23, 724 NW2d

610, 619 (quoting State v. Tofani, 2006 SD 63, ¶30, 719 NW2d 391, 399).

“Ultimately, ‘[t]he voluntariness of a confession depends on the absence of police

overreaching. . . . Confessions are not deemed voluntary if, in light of the totality of

the circumstances, law enforcement officers have overborne the defendant’s will.’”

State v. Cottier, 2008 SD 79, ¶19, 755 NW2d 120, 128 (internal citations omitted)

(quoting Tuttle, 2002 SD 94, ¶20, 650 NW2d at 30). “The State must establish the

voluntariness of a confessant’s admission by a preponderance of the evidence.” Id.

(citing Tuttle, 2002 SD 94, ¶21, 650 NW2d at 30).

[¶33.] In analyzing this issue, courts look to the questioning officer’s conduct

in creating pressure and the suspect’s capacity to resist the pressure. We look to:

(1) the conduct of law enforcement officials in creating pressure
and (2) the suspect’s capacity to resist that pressure. On the
latter factor, we examine such concerns as the defendant’s age;
level of education and intelligence; the presence or absence of
any advice to the defendant on constitutional rights; the length

___________________
(. . . continued)
Wright does not contend that any questioning took place during this period of
time.

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of detention; the repeated and prolonged nature of the
questioning; the use of psychological pressure or physical
punishment, such as deprivation of food or sleep; and the
defendant’s prior experience with law enforcement officers and
the courts. Finally, [d]eception or misrepresentation by the
officer receiving the statement may also be factors for the trial
court to consider; however, the police may use some
psychological tactics in interrogating a suspect.

Id. ¶19, 755 NW2d at 129 (citing Tuttle, 2002 SD 94, ¶22, 650 NW2d at 31).

[¶34.] In denying Wright’s motion to suppress, the circuit court examined

these factors and made a number of findings of fact supporting its conclusion that

Wright’s statements were voluntary. The circuit court found:

15. That Detective Olson was not abusive, overly coercive or overly
pressuring during the interview with [Wright].

16. That [Wright] had the capacity to resist the pressure as
demonstrated by her constant denial of knowledge of the
disappearance of Darlene VanderGiesen and her continued profession
of innocence.

17. That at the time of the interview, [Wright] made no confession or
admission.

18. That [Wright] was inconsistent in her statements, but they were
not involuntary.

19. That at the time of the interview, [Wright] was 42 years old, had
achieved a tenth grade education and had an IQ of 114-117.

20. That the duration of the interview was 10:53 a.m. until 12:54 p.m.,
with breaks, although [Wright] was not allowed to walk around the
[LEC].

22. That [Wright’s] will was not overborne, but was strong.

27. That during the course of the interview, Detective Olson was not
untruthful nor demeaning toward [Wright].

In addition to these findings, the taped interview reveals that Wright asked for and

received cigarette and bathroom breaks. Ultimately, the circuit court found that

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“[Wright’s] will was not overborne, and she freely and voluntarily answered the

Detective’s questions.”

[¶35.] Our review of the taped interview supports the circuit court’s findings.

The tape reflects that the interview was not conducted in a coercive atmosphere.

Rather, the interview would be better described as conversational in character.

Wright answered questions, corrected Detective Olson’s statements, and even

offered to have her vehicle searched. As the circuit court found, Wright had the

capacity to resist the pressure through the constant denial of any knowledge of

VanderGiesen’s disappearance. The record demonstrates that Wright’s will was not

overborne. Considering the totality of the circumstances, and giving deference to

the circuit court’s underlying factual findings, the circuit court did not err in

concluding that Wright’s statements were voluntary.

2. Wright’s Request for Consecutive Interpretation and a CDI.

[¶36.] Notwithstanding the circuit court’s employment of extensive

accommodations for Wright’s hearing impairment, Wright claims a violation of her

constitutional rights because the circuit court denied her request for consecutive

interpretation and the appointment of a CDI during the trial. The Fifth, Sixth, and

Fourteenth Amendments to the United States Constitution and South Dakota

Constitution, article VI, sections 2, 6, and 7 provide the rights to confront witnesses,

to be present at trial and assist in the defense, and to understand the nature and

cause of the charges. It is the trial judge’s task to ensure that a hearing-impaired

defendant is provided these rights. Linton v. State (Linton II), 275 SW3d 493, 500

(TexCrimApp 2009) (citing Ferrell v. Estelle, 568 F2d 1128, 1132 (5thCir 1978)),

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opinion withdrawn on appellant’s death, 573 F2d 867 (5thCir 1978). Further, a

South Dakota statute requires that “[a] qualified interpreter shall be appointed . . .

[i]n any court proceedings involving a person who is deaf . . . and such proceeding

may result in the confinement of such person or the imposition of a penal sanction

against such person[.]” SDCL 19-3-10.

[¶37.] Courts “apply an abuse of discretion standard in reviewing whether

the trial court took adequate steps to ensure that a deaf defendant sufficiently

understands the proceedings to be able to assist in [her] own defense.” Linton II,

275 SW3d at 502. “The ultimate question is whether any inadequacy in the

interpretation made the trial ‘fundamentally unfair.’” Id. at 503 (quoting United

States v. Huang, 960 F2d 1128, 1136 (2dCir 1992)).

[¶38.] A substantial portion of Wright’s argument is based on expert

testimony suggesting the best possible accommodations. That testimony, however,

noted that large segments of the hearing population also have difficulties

understanding legal terminology in legal proceedings. Further, communication

accommodations are subject to practical, reasonable, and pragmatic limitations:

The Constitution does not . . . guarantee every defendant a
perfect trial. The rights vouchsafed are practical, reasonable
rights rather than ideal concepts of communication, and even
these pragmatic rights may not be exercised without limit. The
Constitution does not require that every defendant comprehend
the English language with the precision of a Rhodes Scholar or
appreciate the nuances of a witness’ expressions or behavior
with the skill of a doctor of psychology. Nor may a defendant
press the exercise of his right to the point at which he disrupts
the public’s right to an orderly trial.

Ferrell, 568 F2d at 1131.

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[¶39.] This is not to suggest that expert opinion regarding necessary

accommodations may be ignored. However, as noted in Linton II, a circuit court is

provided wide discretion regarding interpretive services: “Because the proper

handling of translation hinges on a variety of factors, including the defendant’s

knowledge of English and the complexity of the proceedings and testimony, the trial

judge, who is in direct contact with the defendant, must be given wide discretion.”

275 SW3d at 502-03 (emphasis added) (quoting Valladares v. United States, 871

F2d 1564, 1566 (11thCir 1989)). Thus, “[t]he choice of procedure to help a hearing-

impaired defendant rests in the sound discretion of the trial court.” State v.

Johnson, 258 Kan 61, 68, 899 P2d 1050, 1056 (1995). See also People ex rel. Myers

v. Briggs, 46 Ill2d 281, 287, 263 NE2d 109, 113 (1970) (concluding that if the

defendant “is deaf, such opportunity as may be necessary should be allowed for

communication to [her] of the testimony of the witnesses to [e]nsure [her] a full and

fair exercise of [her] legal rights. The exact manner in which this result should be

arrived at must depend on the circumstances of the case and, to a considerable

extent, be left to the sound discretion of the court”). Ultimately, “[t]he trial judge,

on the scene and observing the defendant and the witnesses, must be allowed

considerable discretion, and where it is apparent that the judge has demonstrated

an awareness of the issues involved and concern for the protection of the rights of

the defendant, as here, his judgment must be accorded great weight and respect by

this Court.” Shook v. State, 552 So2d 841, 845 (Miss 1989) (emphasis added).

[¶40.] In the end, the question “is whether any inadequacy in the

interpretation made the trial ‘fundamentally unfair.’” Linton II, 275 SW3d at 503

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(citation omitted). “[A] defendant in a criminal proceeding is denied due process

when: (1) what is told [her] is incomprehensible; (2) the accuracy and scope of a

translation at a hearing or trial is subject to grave doubt; (3) the nature of the

proceeding is not explained . . . in a manner designed to [e]nsure . . . full

comprehension; or (4) a credible claim of incapacity to understand due to language

difficulty is made and the . . . court fails to review the evidence and make

appropriate findings of fact.” United States v. Cirrincione, 780 F2d 620, 634 (7thCir

1985).

[¶41.] Wright was not denied due process under these standards. The circuit

court clearly understood and appreciated the severity of Wright’s communication

difficulties. The court held two pre-trial hearings and considered the expert

testimony regarding accommodations. At the conclusion of the first hearing, the

court found that Wright was:

[A]ble to participate in these proceedings in the sense that she
can communicate with her attorneys. She would be able to
communicate if she wished to testify through the ASL
interpreters; that she is very competent or has great or good
command – as Dr. Vernon says – of ASL. She’s able to tell a
story. Now she may struggle with legal concepts, which this
[c]ourt does not find to be a standard of competency in this
matter, because there are many people who come into this court
that struggle with legal concepts. And what the Americans with
Disabilities Act requires is that we make reasonable
accommodations for those folks who have difficulties
communicating or somehow participating in the proceedings; but
that they are still subject to the same test of competency . . . .
The [c]ourt is using reasonable efforts, making reasonable
accommodations to allow Ms. Wright to communicate with her
attorneys, for them to communicate with her, to maintain
confidentiality of those communications, to use technology in
assisting her in participating in these proceedings if their
attention is diverted from the ASL [interpreters] . . . .

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#24531

At the second hearing the circuit court again found that due to Wright’s level of

intelligence, her fluency in ASL, the real time captioning, the interpreters that

would be provided (including a CDI before trial), the daily DVDs, and breaks during

trial, it was providing meaningful accommodations to ensure comprehension.

A. Consecutive Interpretation.

[¶42.] Notwithstanding the circuit court’s sensitivity to Wright’s needs and

the court’s accommodations designed to ensure Wright’s comprehension of the

proceedings, Wright argues that the failure to provide consecutive interpretation

during the trial denied her “an equal right to be meaningfully present.”

(Appellant’s Br. 46) Wright points out that it takes more time to express in sign

language what is said orally, resulting in potential interpreter errors in

simultaneous interpretation. Wright also points out that during the trial there

were complex words for which there were no ASL signs, which then had to be

finger-spelled. However, despite possessing DVDs of the entire trial, Wright fails to

identify one misunderstanding, one interpreter error, 8 or one complex legal word

causing a miscommunication or misunderstanding during trial. Further, she fails

to acknowledge the court’s use of real time reporting and opportunity for breaks,

which would have given her the opportunity to obtain clarification if she had any

uncertainties. Instead, Wright argues that her conviction must be set aside simply

because of potential errors.

8. Although Wright argues that at a pre-trial motions hearing the interpreter
did not interpret “prelinguially deaf,” but “born deaf,” she does not contend
that this occurred at trial or that it affected her ability to understand and
participate in the trial proceedings.

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[¶43.] In keeping with the notion that the question on appeal is whether

Wright received due process rather than a “perfect” trial, it is significant that

Wright has failed to identify any specific instances in which she may have

misunderstood trial proceedings or was unable to communicate with her counsel.

Further, Wright has not demonstrated: that anything she was told was

incomprehensible; that the accuracy and scope of interpretation provided was

subject to grave doubt; that the court did not describe the nature of the proceedings

to her full comprehension; or that there was a credible claim of incapacity to

understand the proceedings and the circuit court failed to review that evidence and

make appropriate findings. See Cirrincione, 780 F2d at 634, supra ¶40. Wright,

therefore, failed to demonstrate that the circuit court abused its discretion in

providing alternative accommodations in response to her request for consecutive

interpretation.

B. Whether Wright Was Entitled to a CDI.

[¶44.] Wright also claims entitlement to a certified deaf interpreter (CDI)

based on Linton v. State (Linton I), 246 SW3d 698 (TexCtApp 2007), which

concluded that a deaf-relay interpreter (a CDI) 9 was constitutionally required.

Linton argued that the trial court erred in not providing a deaf-relay interpreter to

ensure her full understanding of the trial proceedings. Like Wright, Linton

contended that the interpretation provided did not account for her low level

9. At oral argument, Wright’s counsel indicated that a deaf-relay interpreter is
another name for a CDI. See also Linton II, 275 SW3d at 510 (Johnson, J.,
concurring), supra ¶11 note 2.

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comprehension of the English language, and that she was unable to understand or

have a command of the interpreted language presented to her. The Texas

intermediate appellate court agreed, concluding, “[W]e find that the appointment of

an additional interpreter to break down concepts during breaks in trial was

insufficient to provide Linton with a thorough understanding of the proceedings

against her.” Id. at 704. The court continued: “Moreover, given that the English

based transliteration 10 did not account for Linton’s low level comprehension of the

English language, we find that the transliteration provided was also inadequate.”

Id.

[¶45.] Linton I, however, was overruled by the Texas Criminal Court of

Appeals:

Although the [intermediate appellate court] may be right that a
deaf-relay interpreter could have been “the best” solution to
appellant’s lack of hearing, it erred in concluding that the three

10. LaVigne and Vernon explained transliteration:

The role of the interpreter for the deaf is probably easiest to
understand if we begin at the English end of the spectrum. The most
English form of interpretation is known as transliteration.
Transliteration is the means by which spoken English is converted
word for word into visual English. . . .

Transliteration conveys the words being spoken. It does not decode
the spoken English–that is, it does not get to the meaning. Rather, it
recodes the English, making the spoken word visible, either in signed
form or orally. Oral transliteration is a type of interpretation in which
the interpreter repeats the words of the speaker verbatim. Signed
transliteration utilizes manually coded English and reproduces the
words via hand signs and finger-spelling.

Michele LaVigne & McCay Vernon, An Interpreter Isn’t Enough: Deafness,
Language, and Due Process, 2003 WiscLRev 843, 870-71 (2003).

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interpreters that the trial judge did use were constitutionally
insufficient to ensure her due process rights.

Linton II, 275 SW3d at 509. The Texas Criminal Court of Appeals explained, “‘the

best’ is not constitutionally required unless the defendant also shows that, without

it, [s]he was unable to understand the nature and objective of the proceedings

against h[er] and to assist in h[er] own defense.” Id. at 508. In finding that the

defendant failed to make that showing, the Linton II court highlighted the

importance of demonstrating the inability to understand crucial testimony or the

inability to adequately communicate with counsel during trial:

[T]he record reflects that appellant understood the proceedings
well enough to assist in her own defense; moreover, whatever
communication difficulties might have existed between
appellant and her trial counsel were not apparent in the record.
The record reflects that the defense thoroughly and competently
challenged every aspect of the State’s case. Appellant failed to
set out, at the motion for new trial hearing, any specific instances
in which (1) she failed to understand crucial testimony during
the trial, or (2) she was not able to communicate adequately
with her counsel during the trial or how either of those failures
led to a fundamentally unfair trial and a violation of her due-
process rights.

Id. at 509 (emphasis added).

[¶46.] Like the defendant in Linton II, Wright provides no “concrete examples

of how [she] failed to participate in her defense because of her linguistic

incompetence,” see id. at 499, and nothing in the record demonstrates that the lack

of a CDI during the trial proceedings rendered Wright’s trial fundamentally unfair.

For these reasons and those expressed supra ¶43, we conclude the circuit court did

not abuse its discretion in denying Wright’s motion for a CDI during the courtroom

proceedings.

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3. The Circuit Court’s System of Selecting Jurors.

[¶47.] Wright moved for a mistrial, arguing that the jury pool did not

represent a cross-section of the community. “The Sixth Amendment to the United

States Constitution guarantees that a petit jury will be selected from a panel of

names representing a fair cross section of the community.” St. Cloud v. Class, 1996

SD 64, ¶9, 550 NW2d 70, 73. Further, “[i]t is the policy of the State of South

Dakota that all litigants in the courts of this state entitled to trial by jury shall have

the right to grand and petit juries selected at random from a fair cross-section of the

community[.]” SDCL 16-13-10.1.

[¶48.] Wright had “the burden of making a prima facie showing that the

cross-section requirement [was] violated.” St. Cloud, 1996 SD 64, ¶10, 550 NW2d at

73. In order to establish a prima facie challenge:

[T]he defendant must show that: (1) the group excluded is a
“distinct” group in the community; (2) the representation of this
group in the jury pool is not fair and reasonable in relation to
the number of such persons in the community; (3) this under
representation is due to the systematic exclusion of the group
from the jury-selection process.

Primeaux v. Dooley, 2008 SD 22, ¶12, 747 NW2d 137, 141 (citations omitted).

[¶49.] Regarding the first prong, the State concedes and the circuit court

found that African Americans are a distinct group. Regarding the second prong, the

circuit court determined that Wright met her burden of showing that African

Americans were not fairly represented.11 Although the State argues that the circuit

11. In making this determination, the circuit court noted that out of
approximately 800 juror questionnaires, 350 people responded. Of those, 164
were voir dired. While there is nothing in the record to show the racial
(continued . . .)
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court erred in this second determination, we need not consider the argument as

Wright failed to make a prima facie case of systematic exclusion. The circuit court

found:

I would agree with the numbers . . . that it would not appear
that the group is fairly represented in the current jury pool that
we have seen[.] However, I have heard the argument of counsel
regarding its reasons why it believes that maybe some of these
folks have been excluded . . . but the court does not find that the
underrepresentation is due to a systematic exclusion of a group
from the jury selection process.

[¶50.] Under SDCL 16-13-4.1, prospective jurors are selected from voter

registration and driver’s license lists. Wright argues that because some people’s

driver’s licenses are revoked, persons of “lower economic status” are systematically

excluded from the jury pool. (Appellant’s Br. 62) Wright, however, did not provide

any evidence of a relationship between the revocation of a driver’s license and

economic status or race. Furthermore, Wright provided no statistics regarding

voter registrations of African Americans and how the use of the driver’s license list,

supplemented with voter registrations, affected the jury pool. Therefore, she

provided no evidence to support her claim that African Americans were

systematically excluded from the jury pool. 12

___________________
(. . . continued)
makeup of those 164 individuals, Wright stated to the circuit court that, in
terms of minority representation generally, only two were Native American
and the State responded that they thought two or three were African
American. The circuit court referred to a 2005 United States Census
reflecting that African Americans comprised 2% of the population of
Minnehaha County.

12. Although Wright also argues that the jury panels did not include a fair
representation of the community, that argument is misplaced.
(continued . . .)
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#24531

[¶51.] We have previously noted that numbers alone are insufficient proof of

systematic exclusion, St. Cloud, 1996 SD 64, ¶25, 550 NW2d at 77, and the Court

“will not presume that the source for jury selection fails to provide a fair cross-

section of the community, absent adequate proof.” State v. Arguello, 502 NW2d

548, 553 (SD 1993) (quoting State v. Lohnes, 432 NW2d 77, 84 (SD 1988)). Here,

Wright failed to make any showing that African American exclusion occurred or

that if it did, it was “inherent in the particular jury-selection process utilized.” St.

Cloud, 1996 SD 64, ¶24, 550 NW2d at 76 (quoting United States v. Garcia, 991 F2d

489, 491 (8thCir 1993)).

4. Prior Altercation Involving Wright, VanderGiesen, and Collins.

[¶52.] Wright argues that the circuit court erred in admitting evidence of an

altercation that occurred five days prior to VanderGiesen’s disappearance. The

altercation occurred when VanderGiesen was visiting Collins at Collins’s

apartment. Wright arrived unexpectedly, and Collins testified that when Wright

___________________
(. . . continued)

The composition of the panels . . . is irrelevant. A panel is selected at
random from the master jury list, see SDCL 16-13-27, which is a “list
of names randomly selected by the board of jury selectors from the jury
selection lists[.]” SDCL 16-13-9.1. Because the master jury list is
selected at random from the current precinct registration list (jury
selection list), see SDCL 16-13-4.1, it may not accurately indicate the
percentage of [African Americans] registered to vote. Theoretically, a
panel could be composed entirely of women, men, blacks, whites,
American Indians, or any combination. [Defendant] has failed to show
that the process was not random or that it was due to the systematic
exclusion of the group from the jury-selection process.

State v. Arguello, 502 NW2d 548, 553-54 (SD 1993).

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saw VanderGiesen, Wright “got very mad and said, ‘Why are you destroying our

relationship?’” Collins asked Wright to leave, but Wright refused and Collins then

suggested that VanderGiesen leave. As she was leaving, VanderGiesen “gave

Wright the middle finger.” Wright then started walking towards VanderGiesen, but

Collins intervened by grabbing Wright. After VanderGiesen left, Collins and

Wright argued about Collins’s relationship with VanderGiesen. Collins

subsequently asked Wright to leave, but Wright refused. Collins then tried to leave,

but Wright blocked her at the door. Eventually, Collins was able to leave and call

the police. When the police arrived, Wright agreed to leave. On her way out,

Wright threatened Collins that she would be “very sorry.”

[¶53.] Prior to trial, the State moved to offer evidence of this altercation,

arguing that it was res gestae and admissible other acts evidence. The State noted

that the argument occurred five days after Wright started sending the threatening

e-mails to VanderGiesen, and four days after Wright’s e-mail to VanderGiesen

stating, “am very disappointment [sic] in you because you always visit Collins when

am [sic] not there, enough please, thanks[.]” The State argued that the altercation

was blended with and explained the circumstances of the crime in that the failure of

the e-mail threats led to the altercation, and that only five days later Wright set up

the ruse meeting at the Pizza Hut after which VanderGiesen was killed. The State

also argued that the altercation was evidence proving motive for the murder.

[¶54.] Wright objected arguing that the evidence was not res gestae and did

not fall under any exception in SDCL 19-12-5 (Rule 404(b)) (allowing other acts

evidence when relevant to prove non-character matters such as motive, opportunity,

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intent, preparation, plan, or knowledge). Wright also argued that the evidence was

substantially more prejudicial than probative. See SDCL 19-12-3 (Rule 403). The

circuit court allowed the evidence both as res gestae and under SDCL 19-12-5 (Rule

404(b)). “Evidentiary decisions of a trial court are presumed correct.” State v.

Owen, 2007 SD 21, ¶9, 729 NW2d 356, 362 (citation omitted). This Court reviews

evidentiary decisions under the abuse of discretion standard. Id.

[¶55.] Other acts evidence is admissible under SDCL 19-12-5 (Rule 404(b))

when it is relevant for some purpose other than character. In applying the rule:

The trial court must employ a two-step process when
determining if prior bad acts should be admissible. First, the
offered evidence must be relevant to a material issue in the case.
Second, the trial court must determine “[w]hether the probative
value of the evidence is substantially outweighed by its
prejudicial effect.”

Id. ¶14, 729 NW2d at 362-63 (internal citations omitted). “The res gestae rule is

[also a] well-recognized exception to Rule 404(b).” State v. Goodroad, 1997 SD 46,

¶10, 563 NW2d 126, 130 (citation omitted). The res gestae exception permits the

admission of evidence that is “so blended or connected” in that it “explains the

circumstances; or tends logically to prove any element of the crime charged.” Owen,

2007 SD 21, ¶15, 729 NW2d at 363 (citation omitted). Evidence, when a part of the

res gestae, is proper if it is related to and tends to prove the crime charged although

it also proves or tends to prove the defendant guilty of another crime. Goodroad,

1997 SD 46, ¶10, 563 NW2d at 130 (citations omitted).

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[¶56.] In its letter opinion, the circuit court applied the res gestae exception

and followed the SDCL 19-12-5 (Rule 404(b)) two-step analysis, 13 concluding:

1. Rule 40[4](b) – An argument between a victim of a crime
and the person suspected of perpetrating the crime is
undoubtedly relevant as either motive or, more generally,
the suspect’s feelings toward the victim. The prejudice does
not outweigh the probative value.

2. Res Gestae – The argument is admissible under the res gestae
standard. The argument may explain the circumstance of
the death of the victim.

[¶57.] “[I]n view of the law and the circumstances,” this Court “could have

reasonably reached the same conclusion.” Hoadley, 2002 SD 109, ¶17, 651 NW2d at

254 (quoting Goodroad, 1997 SD 46, ¶9, 563 NW2d at 129). This altercation, just

days before VanderGiesen’s disappearance, tended to prove the State’s theory

regarding motive. Considering the short time between the altercation and

VanderGiesen’s death, it was also evidence tending to explain the events and

circumstances leading up to VanderGiesen’s death. The circuit court did not abuse

its discretion in admitting evidence of the prior altercation.

5. Sufficiency of the Evidence.

[¶58.] Wright argues that there was insufficient evidence to support the

jury’s verdict of kidnapping, and therefore, there was insufficient evidence to

support the jury’s verdict of felony murder. Wright notes that there was no

13. This Court has stated that the 404(b) “balancing must be conducted on the
record.” Owen, 2007 SD 21, ¶14, 729 NW2d at 363. In this case, the circuit
court did not conduct a contemporaneous balancing test on the record. The
court did, however, issue a letter opinion on the issue examining whether the
altercation was admissible under SDCL 19-12-5 (Rule 404(b)) and/or the res
gestae exception.

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#24531

evidence of a struggle and no evidence that she and VanderGiesen left together in

Wright’s car. Wright further argues that there was insufficient evidence of the

premeditation necessary for first degree murder. Wright specifically contends that

there was no evidence of any murder weapon, a plan to kill VanderGiesen, or an

explanation how VanderGiesen received her head injuries. Without knowing what

caused those injuries, Wright argues, the jury could not have known whether there

was premeditation. Because the same facts and inferences of fact tend to prove a

plan to kidnap and a plan to murder VanderGiesen, we consider the sufficiency of

the evidence supporting the offenses together.

[¶59.] In reviewing the sufficiency of the evidence, this Court considers

“whether there is sufficient evidence in the record which, if believed by the jury, is

sufficient to sustain a finding of guilt beyond a reasonable doubt; in making this

determination, the Court will accept the evidence, and the most favorable inference

fairly drawn therefrom, which will support the verdict.” Owen, 2007 SD 21, ¶35,

729 NW2d at 367 (quoting State v. Mesa, 2004 SD 68, ¶9, 681 NW2d 84, 87).

Further, “this Court will not resolve conflicts in the evidence, pass on the credibility

of witnesses, or weigh the evidence.” State v. Frazier, 2002 SD 66, ¶8, 646 NW2d

744, 748 (quoting State v. Buchholz, 1999 SD 110, ¶33, 598 NW2d 899, 905).

[¶60.] “Homicide is murder in the first degree . . . [i]f perpetrated . . . with a

premeditated design to effect the death of the person killed[.]” SDCL 22-16-4(1).

The term, premeditated design to effect the death, means an
intention, purpose, or determination to kill or take the life of the
person killed, distinctly formed and existing in the mind of the
perpetrator before committing the act resulting in the death of
the person killed. A premeditated design to effect death

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sufficient to constitute murder may be formed instantly before
committing the act.

SDCL 22-16-5. “When determining if premeditation exists[,] we consider the

following factors: 1) the use of a lethal weapon; 2) the manner and nature of the

killing; 3) the defendant’s actions before and after the murder; and 4) whether there

was provocation.” Owen, 2007 SD 21, ¶36, 729 NW2d at 367 (citation omitted).

“However, direct proof of deliberation and premeditation is not necessary. It may

be inferred from the circumstances of the killing.” State v. Owens, 2002 SD 42, ¶96,

643 NW2d 735, 757 (citation omitted).

[¶61.] The felony murder statute, SDCL 22-16-4(2), provides in relevant part

that “[h]omicide is murder in the first degree . . . [i]f committed by a person engaged

in the perpetration of, or attempt to perpetrate . . . kidnapping[.]” At the time

Wright was charged, the kidnapping statute provided in relevant part:

Any person who shall seize, confine, inveigle, decoy, abduct[,] or
carry away any person and hold or detain such person . . . [t]o
inflict bodily injury on or to terrorize the victim or another . . . is
guilty of kidnapping.

SDCL 22-19-1 (1993). “Inveigle means ‘[t]o lure or entice or lead astray, by false

representations or promises, or other deceitful means.’” State v. Running Bird,

2002 SD 86, ¶25 n3, 649 NW2d 609, 614 n3 (citation omitted).

[¶62.] The circumstantial evidence reflects that prior to VanderGiesen’s

disappearance, Wright was jealous of VanderGiesen because of her relationship

with Collins. The evidence further reflects that following Wright’s unsuccessful

attempts to terminate that relationship, Wright lured VanderGiesen into the ruse

meeting at the Pizza Hut. On the day of that meeting VanderGiesen left work at

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5:07 p.m., went home and changed clothes, and then drove to the Pizza Hut to meet

Wright. Following the meeting, VanderGiesen disappeared and her car was left

abandoned at the restaurant. During her interview regarding the meeting, Wright

lied several times when Detective Olson asked her about the event. From this, the

jury could have inferred that VanderGiesen was “inveigled” and “decoyed” into

meeting Wright at that location. See id. ¶25, 649 NW2d at 614 (stating, “[a]lthough

we acknowledge that [the victim] voluntarily walked with [defendant] to the site of

the rape, she was ‘inveigled’ and ‘decoyed’ into doing so”).

[¶63.] The evidence is undisputed that after Wright and VanderGiesen met,

VanderGiesen disappeared, was brutally murdered, and was dismembered. The

evidence established that: VanderGiesen’s car keys, house keys, wallet, and

identification were missing following her trip to the Pizza Hut; that VanderGiesen’s

blood was found on the bumper of Wright’s car; and that DNA from both

VanderGiesen and Wright was found on VanderGiesen’s American Sign Language

sweatshirt in the landfill buried with VanderGiesen’s body parts.

[¶64.] Additionally, Dr. Randall and Dr. Habbee confirmed that

VanderGiesen died as the result of either blunt force head trauma or suffocation or

both. While the weapon that caused the blunt force trauma was never found, the

physical evidence indicated that VanderGiesen received at least two blows to the

head with the object, leaving a seven-inch skull fracture. Dr. Randall testified that

a plastic bag was also tied around VanderGiesen’s neck constituting another “lethal

environment” and that “no one can live for a period of time with a thick plastic bag

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over their head.” Considering the manner of death, the jury could have found that

the repeated blows and suffocation were designed to inflict VanderGiesen’s death.

[¶65.] The jury also considered Wright’s actions after VanderGiesen’s death.

“Attempts to conceal or dispose of evidence may . . . support an implicit finding of

premeditation.” Owens, 2002 SD 42, ¶97, 643 NW2d at 758 (citation omitted). The

post-death evidence reflects that Wright made several attempts to conceal the

crime. She first attempted to burn VanderGiesen’s body. When that failed, Wright

used a chainsaw to dismember VanderGiesen’s body and discarded the remains at

different locations. Wright also attempted to destroy evidence of the crime by

cleaning her car and painting the basement where she dismembered

VanderGiesen’s body.

[¶66.] Thus, considering Wright’s jealousy and threats, the ruse meeting,

VanderGiesen’s disappearance following that meeting, the cause of death, the

physical evidence tying Wright to the death, dismemberment and concealment of

the body, there was sufficient evidence to suggest a premeditated plan to kidnap

and kill VanderGiesen. Furthermore, because the evidence was sufficient to

support the jury’s verdict on the charge of kidnapping, the evidence was sufficient to

support the jury’s verdict on felony murder as the evidence suggests that

VanderGiesen died during the course of the kidnapping.

6. Convictions for Both Kidnapping and Felony Murder-Double Jeopardy.

[¶67.] The Double Jeopardy Clause of the United States Constitution’s Fifth

Amendment provides that no person shall “be subject for the same offen[s]e to be

twice put in jeopardy of life or limb[.]” US Const amend V. Similarly, South

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Dakota’s Constitution provides that “[n]o person shall . . . be twice put in jeopardy

for the same offense.” SD Const art VI, § 9. “These provisions shield criminal

defendants from both multiple prosecutions and multiple punishments for the same

criminal offense if the Legislature did not intend to authorize multiple punishments

in the same prosecution.” State v. Dillon, 2001 SD 97, ¶13, 632 NW2d 37, 43.

Wright argues that because the convictions of kidnapping and felony murder arise

out of the same incident, the multiple convictions14 violate these provisions.

[¶68.] We decline to consider this argument because Wright failed to preserve

it for appeal. Wright never asked the circuit court to rule on the issue, and the

failure to raise an issue before the circuit court constitutes a waiver of the issue on

appeal. Hoglund v. Dakota Fire Ins. Co., 2007 SD 123, ¶30, 742 NW2d 853, 861;

State v. Henjum, 1996 SD 7, ¶13, 542 NW2d 760, 763. This includes a double

jeopardy claim: “Even a fundamental right may be deemed waived if it is raised for

the first time on appeal.” Dillon, 2001 SD 97, ¶11, 632 NW2d at 43.

7. Cumulative Error.

[¶69.] Wright argues that the cumulative effect of the circuit court’s errors

denied her a fair trial. Because Wright has not established any prejudicial error, we

conclude that she received a fair trial.

[¶70.] GILBERTSON, Chief Justice, and KONENKAMP and MEIERHENRY,

Justices, and SABERS, Retired Justice, concur.

14. As previously noted, Wright did not receive multiple punishments as result of
the felony murder conviction. The court did not impose a sentence for this
conviction.

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