Argued November 17, 2014.
[Copyrighted Material Omitted]
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA. THE HONORABLE JANINE KERN, Judge.
MARTY J. JACKLEY, Attorney General, CAROLINE A. SRSTKA, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
ALECIA E. FULLER, Pennington County Public, Defender's Office, Rapid City, South Dakota, Attorneys for defendant and appellant.
GILBERTSON, Chief Justice, ZINTER, SEVERSON, and WILBUR, Justices, and KONENKAMP, Retired Justice, concur. KERN, Justice, not having been a member of the Court at the time this action was assigned to the Court, and being the trial judge in this case, did not participate.
GILBERTSON, Chief Justice
[¶1] After a jury trial from June 4, 2013, to June 7, 2013, in Rapid City, Pennington County, South Dakota, a jury convicted Defendant Jesse Johnson of first-degree rape, aggravated incest, and sexual contact with a child under age 13. Defendant appeals asserting that the circuit court improperly determined Defendant's interview was noncustodial, it improperly ruled Defendant's confession was voluntary and admissible, it abused its discretion in allowing certain expert testimony, it violated Defendant's Fifth Amendment Double Jeopardy rights, the jury lacked sufficient evidence to sustain its verdict, and the State failed to disclose exculpatory evidence. We affirm in part and remand in part.
Facts and Procedural History
[¶2] Defendant is prelingually deaf. Defendant was married to and cohabitated with J.D., who is also deaf, and J.D.'s daughter, K.J., for the past several years. Defendant helped J.D. raise K.J. On January 29, 2012, K.J. told J.D. that Defendant had made K.J. watch pornography, he had sexually assaulted her, and he raped her. K.J., then seven years old, told J.D. that Defendant's conduct had occurred several times between May 2010 and September 2010 when K.J. was six years old. J.D. had a friend come over and call the police. The police scheduled a forensic interview for K.J. with the Child Advocacy Center in Rapid City on February 6, 2012. At the forensic interview, K.J. said that Defendant showed her pornography, had her touch his penis, and penetrated her vagina. The interview was recorded.
[¶3] Later on February 6, 2012, Investigator Ed Schulz asked Defendant to come to the Rapid City Public Safety Building for a noncustodial interview. Defendant was the only suspect when Investigator Schulz requested the interview. Investigator Schulz also dispatched for an interpreter. Katie Peterson, a Level III Certified Transliterator, was hired by the Pennington County Sheriff's Office to interpret the interview. Peterson had worked with Defendant on several occasions over the past three years, but never in a legal setting. Schulz had never worked with Peterson before nor had he ever interviewed a deaf suspect. Schulz
explained to Peterson what Defendant was being accused of prior to the interview and that the interview would be recorded. When Defendant arrived, he and Peterson conversed about their families and made other small talk. The two conversed using a blend of American Sign Language (ASL) and signed English.
[¶4] Investigator Schulz brought Defendant and Peterson into an interview room in the Public Safety Building and shut the door for privacy purposes, but left it unlocked. Schulz did not advise Defendant of his Miranda rights. Once everyone was seated, Schulz began by informing Defendant that the interview was noncustodial. Schulz read a prepared, written statement, and Peterson interpreted it to Defendant. The prepared statement said:
Jesse, whenever I talk with people, I need to explain a few things. This will be a noncustodial interview. You are not under arrest and you are not being detained. You don't have to talk with me, if you don't want to. The door is shut for privacy purposes and unlocked. At any time you feel you don't want to talk anymore, you can leave. No matter what you tell me, I'm not arresting you today.
Do you understand what I just explained to you?
Do you have any questions?
Once Schulz read the statement to Defendant, Schulz asked if Defendant had any questions. The interpreter told Schulz that the Defendant signed, " I guess I don't know what the point is, like when we're finished, then what happens?" Schulz responded, " When we're finished and I will explain the whole process of what's going on and I will answer those questions as the interview progresses for you." Schulz then had Defendant read the statement to himself. Schulz asked, " Do you understand? Yes or no?" and then he pointed to the paper. On the paper that Schulz read to Defendant and Defendant read for himself, Defendant wrote his initials, " JJ," next to the first question of " Do you understand what I just explained to you?" Next to the second question--" Do you have any questions?" --Defendant wrote " no."
[¶5] The noncustodial interview lasted about 2 hours and 45 minutes. For about the first hour or so, Defendant resisted Schulz's questions and did not confess to any sexual touching of K.J. Schulz controlled the interview and utilized techniques of interrogation from the Reed School and others, but he did not threaten or deceive Defendant. Schulz would say things like, " I know it happened," " I need you to tell me the truth," and " I know it's tough to talk about but I can see it all over your face." Defendant appeared to know and understand what Schulz was talking about and even asked questions of Schulz.
[¶6] At about one hour into the interview, Schulz told Defendant he was going to execute a search warrant on Defendant's cellphone to see if he could uncover any photos. Defendant gave his permission and said that the police would not find anything on his phone. However, shortly before Schulz executed the search, Defendant admitted that K.J. had seen pornographic images, Defendant allowed her to touch his penis, and he had penetrated K.J. with his finger. At the conclusion of the interview, the police executed the search warrant on Defendant's phone, and he was allowed to go free. An arrest
warrant was issued on February 10, 2012, and the police arrested Defendant that day.
[¶7] Defendant was indicted for first-degree rape, aggravated incest, and sexual contact with a child under 13 on February 23, 2012. On March 5, 2012, Defendant was arraigned and pleaded not guilty. On September 14, 2012, Defendant filed a motion to suppress his confession on February 6, 2012, arguing that he was in custody at the time and the confession was not voluntary. The circuit court held three evidentiary hearings on November 9, November 28, and December 13, of 2012. The State called Investigator Schulz and Katie Peterson, the interpreter, as witnesses. Schulz testified about the interview and what Defendant had confessed to him. Peterson testified that she worked for Communication Services for the Deaf (CSD), a nonprofit agency assisting the deaf in South Dakota and the United States. Peterson received her Bachelor's degree in sign language interpreting and holds a Certificate of Transliteration (CT) from the Registry of Interpreters for the Deaf (RID). She is registered with the South Dakota Department of Human Services required by law. Peterson testified that her certification qualifies her to interpret in the court system. Peterson acknowledged that she was not ASL certified at the time of the interview and that a Certificate of Transliteration is intended to be used more with individuals who use signed English rather than ASL. However, Peterson testified that she studied ASL as an undergraduate and that the blend of ASL and signed English used by her and Defendant had worked well over the previous three years. They had worked together in job interviews and counseling sessions in those three years. Defendant had never expressed any concern to her or CSD regarding her skills or proficiency as an interpreter.
[¶8] Defendant called two expert witnesses at the suppression hearings, Anna Witter-Merithew and Dr. Steven Manlove. Defendant did not testify. Ms. Witter-Merithew holds a variety of degrees and certifications, including a specialty in legal interpreting, and has published over 30 books and articles. She interviewed Defendant for over five hours using interactive video conferencing and reviewed the video footage from the noncustodial interview. She produced a 33-page report containing her findings, conclusions, and opinion. Based on her observations of the video footage, she testified that Peterson was fluent in terms of the clarity of her signs, the conversation was English based, and the interpreter provided a transliteration, not an interpretation. Ms. Witter-Merithew also opined that the interpreter worked for a long period of time without a break and certain errors were made. Ms. Witter-Merithew opined that the legal concepts of " noncustodial" and " detained" were not clearly established. She said
these concepts needed to be interpreted in ASL, Defendant's primary language, and not merely transliterated. Ms. Witter-Merithew thought the transliteration did not provide an adequate advisement of the conditions surrounding the interview, and that the interpreter did not observe best practices. Ms. Witter-Merithew believed that a reasonable deaf person would not have felt free to leave under the circumstances.
[¶9] Dr. Manlove, a forensic psychiatrist, also testified for Defendant. Dr. Manlove testified that Defendant had an average IQ of 93 and a low-average verbal IQ of 86. Dr. Manlove thought that Defendant had the cognitive ability to understand the warning given by Investigator Schulz regarding the noncustodial nature of the interview. Dr. Manlove did not think Investigator Schulz had coerced Defendant in any kind of direct way, but he thought the language difference provided an unintended coercive element to the interview. As a result, Dr. Manlove opined Defendant's ability to meaningfully understand his rights was compromised during the interrogation due to his deafness, expectations placed on him by the deaf culture, his reliance on an interpreter to understand verbal language, his need to trust what the interpreter was relaying to him, and his reliance on interpretations and body language to understand what was happening. Dr. Manlove further testified that Defendant's ability to waive his rights and to understand what he was waiving was also compromised. Dr. Manlove testified that only with the help of excellent interpretation could Defendant competently understand the nature of the proceedings against him.
[¶10] At the conclusion of the suppression hearings on December 13, 2012, the circuit court re-arraigned Defendant because it was Peterson who initially interpreted the arraignment on March 5, 2012, and Defendant had raised an issue with Peterson's qualifications. Defendant again pleaded not guilty to all charges. On March 22, 2013, following the evidentiary hearings, the circuit court issued a memorandum opinion, concluding that the interview was noncustodial and Defendant voluntarily confessed. The circuit court relied heavily on the fact that Schulz had first read the prepared statement to Defendant, Peterson translated it to Defendant, Defendant had a chance to read it himself, he indicated that he understood it, and did not have any questions about it.
[¶11] The circuit court held a jury trial from June 4, 2013, to June 7, 2013. The jury found Defendant guilty of first-degree rape under SDCL 22-22-1(1), guilty of sexual contact with a child under 13 pursuant to SDCL 22-22-7, and guilty of aggravated incest under SDCL 22-22A-3. On August 14, 2013, Defendant was sentenced on all counts, receiving 40 years for first-degree rape, 15 years for sexual contact with a child, and 15 years for aggravated incest with all sentences to run concurrently. Judgment was filed on August 19, 2013. Defendant appeals.
[¶12] He raises six issues in this appeal:
1. Whether the circuit court erred when it determined that Defendant was not in custody during the interview on February 6, 2012.
2. Whether the circuit court erred when it determined that Defendant's interview statements were voluntary.
3. Whether the circuit court abused its discretion in allowing Dr. Leslie Fiferman to testify at trial.
4. Whether Defendant's Fifth Amendment Double Jeopardy rights were violated.
5. Whether the circuit court properly denied Defendant's motion for ...