APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA HONORABLE BRADLEY G. ZELL. Judge.
The opinion of the court was delivered by: 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 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, 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, 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.*fn1 Dr. Vernon recommended that the 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 (CDI).*fn2 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 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.*fn3
[¶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.
[¶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.
[¶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,*fn4 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 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.
[¶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 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 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 ...