Deaf woman sentenced to life
South Dakotan convicted in dismembering,
burning of another woman
April 18, 2007
A deaf woman convicted of kidnapping
an acquaintance and hacking up her body with a chain saw was
sentenced Wednesday to life in prison..
In closing arguments earlier in the day,
prosecutor Dave Nelson said Daphne Wright deserved to die by
lethal injection because the mutilation was the act of a depraved
Wright's public defender, Jeff Larson, argued
that she burned and cut the body as an afterthought and that the
slaying was an isolated act motivated by jealousy.
"Do you really think the body was dismembered
for some perverse pleasure," Larson asked the jury, "or because
she couldn't figure out how to get a 200-pound body out of the
The jury of 11 woman and one man decide that
the state had proved depravity of mind beyond a reasonable doubt,
the standard for consideration of the death penalty. But jurors
instead opted for life in prison without parole.
The same jury convicted Wright, 43, of Sioux
Falls, last week of kidnapping and murdering Darlene VanderGiesen,
42, another deaf woman from Sioux Falls.
Prosecutors said that in a jealous rage Wright
kidnapped VanderGiesen, killed her, cut apart her body with a
chain saw and burned it. She was jealous of a friendship
VanderGiesen had with Wright's former female lover, authorities
Nelson told jurors their verdict will be just
if they treat both women equally. VanderGiesen was white and
heterosexual. Wright is black and homosexual.
"I don't believe that your verdict would be any
different based upon who the victim is and the defendant is. Then
regardless of what your decision is, regardless of whether your
decision is life or death, your decision will be just and your
decision will be right," he said.
Wright's mother, several other supporters and
at least one juror cried as Larson ended his closing arguments.
Wright would have been the first woman on South
Dakota's death row and likely the first deaf woman on death row in
the nation had she been sentenced to die.
Daphne Wright is found guilty
of first-degree murder, kidnapping
She cries as verdict is read; jurors need time
to compose themselves
By Josh Verges and Chuck Baldwin -
April 12, 2007
The jury considering Daphne Wright's fate found
her guilty of first-degree murder, felony murder and kidnapping of
As the verdict was announced, Wright wiped her
eyes, apparently crying.
Minnehaha County State's Attorney Dave Nelson
turned around to give the victim's parents a grim nod. Her mother,
Dee VanderGiesen, smiled slightly.
One by one, VanderGiesen family members and
friends filed past Nelson and his assistants, hugging them,
shaking their hands.
Today's verdict came after about eight hours of
Wright now faces the possibility of death by
injection. If sentenced to death, she would be the first woman on
South Dakota's death row.
Testimony in the sentencing phase could begin
as early as Monday.
The jurors - 11 women and one man - began their
deliberations at 5 p.m. Wednesday, then retired for the night
around 9:30 p.m. They resumed their deliberations around 9 a.m.
Wright, 43, was indicted on kidnapping and
premeditated murder charges for the Feb. 1, 2006, death of
42-year-old Darlene VanderGiesen.
After the verdict was read, jurors were led out
of the coutroom so lawyers and the judge could discuss what's
But it took several minutes for the jury to
return to the courtroom when summoned.
“The reason for the delay is some of the jurors
are trying to compose themselves and so we’re giving them a few
minutes to do that,” Judge Brad Zell said in court.
In four hours of closing arguments Wednesday,
the state asked jurors to use common sense, and the defense asked
them to focus on what is not known about the woman's death.
Nelson pieced together a wealth of physical and
circumstantial evidence to tell his theory of the events.
Upset about Darlene VanderGiesen's purported
attempts to "destroy" her lesbian relationship, Wright set up a
meeting with the victim the evening of Feb. 1 at the Pizza Hut at
26th Street and Sycamore Avenue.
Wright somehow got VanderGiesen into her
vehicle and later that day killed her with blows to the head and
by suffocating her with a plastic bag secured tightly at her neck,
The defendant waited two days for a check to
arrive, bought a chain saw and then, Nelson said, hacked the
victim's body into four pieces in the defendant's basement at 1806
S. Phillips Ave.
Wright's defense lawyers focused on a lack of
direct evidence of either kidnapping or premeditated murder.
Minnehaha County Public Defender Traci Smith
told jurors that the dismemberment evidence prosecutors relied on
so heavily is irrelevant because it occurred after VanderGiesen's
"The evidence that was presented all has to do
with what happened two days later - at least two days later,"
Smith said. "Once a person is deceased, the crime is done."
Nelson responded in his closing rebuttal that
the state's evidence strongly supports their theory of kidnapping
and premeditated murder.
"It's the circumstances surrounding all of the
events that lead us to the inescapable conclusion," he said,
calling the evidence "overwhelming."
Should the Deaf Get
By Lara Setrakian and Natasha Singh -
March 9, 2007
It was a grisly crime, with details shocking
enough to grab headlines of their own.
But the case of Daphne Wright, a deaf woman
charged with murder in a lesbian love triangle, is raising a
controversial question that goes beyond the case itself: Should
deaf defendants ever face the death penalty?
A motion filed by Wright's attorneys argues
that imposing the death penalty on Wright violates the Eighth
Amendment, which forbids the infliction of "cruel and unusual
punishments." Wright's attorneys say that because she has been
deaf since early childhood she is at an unfair disadvantage in
trying to persuade a jury to spare her life.
Presiding Judge Bradley Zeff denied that motion
in February, rejecting the defense argument that Wright's lifelong
deafness makes it unconstitutional for prosecutors to seek the
death penalty. As of now, with jury selection under way and a
trial imminent, Daphne Wright faces execution if convicted for her
The facts of the case are startlingly gruesome.
Darlene VanderGeisen, a deaf woman from Sioux Falls, S.D.,
disappeared on Feb. 1, 2006. She was later found dead and
dismembered, her body parts found scattered between a landfill in
Sioux Falls and a ditch near Beaver Creek, Minn.
Ten days after the killing Wright was arrested
on murder charges. According to court documents, a search of
Wright's basement yielded bone fragments and tissue that matched
VanderGeisen's DNA. Autopsy reports determined the cause of death
was either suffocation or a blow to the head. It is believed a
chainsaw was used to dismember VanderGeisen after she had been
Prosecutors say Wright got caught up in a
whirlwind of lesbian drama which drove her to commit murder. The
motive was jealousy. Wright says VanderGeisen, who was
heterosexual, was trying to break up her lesbian relationship with
a woman identified as Sallie Collins, a close friend of the
victim. The two reportedly had a heated argument over the
relationship shortly before the murder took place.
Wright maintains her innocence and has pleaded not
guilty. If convicted on the charges of abduction, murder and
dismembering, she faces death by lethal injection and could become
the first woman to be executed in South Dakota.
In court this week, prosecuting attorney Dave
Nelson told prospective jurors a simplified version of why he's
seeking the death penalty for Wright.
Nelson told the court, "We don't have different
rules for different people. We don't have different rules for
different groups," according to The Associated Press.
A number of disability rights activists agree,
stating that equal rights for the deaf means equal treatment
everywhere -- including in the courtroom. If Wright is charged
with crimes that warrant the death penalty, then that's what
prosecutors should pursue.
"I think it's very dangerous to argue that deaf
people as a general matter shouldn't be eligible for the death
penalty," Andrew Imparato told ABC News. Imparato is the president
and CEO of the American Association of People with Disabilities.
"Making that argument [involves] saying that
they are not aware of the consequences of their actions. It can
reinforce stereotypes … lead to discrimination against deaf
Most scholars and clinical professionals agree
that the deaf are at a disadvantage in the courtroom. But they
disagree on whether that disadvantage can be overcome.
The defense motion to bar the death penalty in
Wright's case cited a study by Barbara Brauer, executive director
of Gallaudet University, the first school for the advanced
education of the deaf. Brauer measured how long it takes to
interpret into sign language what a person is saying in English;
she found that a series of questions that could be administered in
42 minutes in spoken English would take two hours to administer in
American sign language.
In their motion to strike the death penalty
defense attorneys for Wright cited the lack of consecutive
interpretation. In other words, the sign language interpreter
assigned to her case would be translating simultaneously during
the court proceedings, rather than listening to a portion of
testimony and translating during a pause in the process.
This, attorneys argue, leaves little time to
compensate for the fact that it takes longer to say something in
sign language than in spoken English -- particularly when the
complex legal concepts are part of the conversation.
Her attorneys also state in their motion that
American Sign Language "lacks technical and legal terms" that
would be crucial to Daphne Wright as tries to understand the court
proceedings around her.
Judge Bradley Zell has allowed court
proceedings to be videotaped so that Daphne Wright and her lawyers
can have a record of the sign language communications used in the
courtroom. Her lawyers maintain that they are not allowed to use a
Certified Deaf Interpreter for the trial.
Professor Jeff Braden, an expert in deafness
and development, says that Wright should not face the death
penalty, even if an ideal interpreter were available. "She is at
more of a disadvantage than, say, if you or I were arrested and
taken to court in Pakistan, where we'd be at the mercy of a court
interpreter. Having an interpreter still doesn't change the fact
that deaf people don't have a native language."
The problem, Braden says, is that it is not
uncommon for a woman like Wright -- deaf since early childhood and
born to hearing parents -- to get a late start in her exposure to
language. In those critical early years, Braden says, critical
communication skills are lost.
"There are a number of barriers that deaf
people face that would put them at a severe disadvantage in a
legal proceeding. … She'd be at a significant disadvantage, even
with an interpreter." Braden told ABC News.
"Battery or manslaughter may be signed the same
way. An individual is not getting info they need because American
Sign Language doesn't [those symbols]," Braden added. He also
notes that tone of voice and other nuances that convey meaning in
the courtroom would get lost in interpretation.
Rick Norris of Communication Service for the
Deaf told ABC News he believes otherwise. He says the only time
interpretation could present a problem is at times of long
duration, when it might become taxing on the interpreter.
Other researchers agree, stating that as long as
qualified interpreters are provided, deaf defendants should have
no inherent problem understanding the complexity of the legal
process or the moral weight of their alleged crimes.
The problem seen by activists like Imparato is
lack of access to qualified interpreters. In some cases, courts
are not willing or able to find and pay for qualified
interpreters. According to the Registry of Interpreters for the
Deaf, an agency that logs all nationally legally certified
translators, says there are currently only 167 legally certified
translators across the United States.
"There is a serious problem around the country
with deaf people not having access to qualified sign language
interpreters," Imparato told ABC News. "Under the Americans with
Disabilities Act and other federal and state laws, deaf people are
entitled to effective communication."
What's Next for Wright?
Jury selection began on March 5 and could last
up to six weeks. Because the death penalty is a possible outcome,
the pool of possible jurors is larger than in most cases.
The case is being closely watched by activists
from the deaf community, the disabled community and the gay rights
community -- all of them waiting to see how Wright is treated in
court, whether she'll be convicted and whether execution is the
sentence she'll ultimately face.
Supreme Court of South
State v. Wright
STATE of South Dakota, Plaintiff and Appellee,
Daphne Antranette WRIGHT, Defendant and Appellant.
Argued on March 25, 2009. -- June 24, 2009
Lawrence E. Long, Attorney
General, Meghan N. Dilges, Assistant Attorney General, Pierre,
South Dakota, Attorneys for plaintiff and appellee.Traci Smith,
Office of the Minnehaha County Public Defender, Sioux Falls, South
Dakota, Attorneys for defendant and appellant.
[¶ 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
[¶ 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.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
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.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
[¶ 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
[¶ 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.
1. Wright's Statements.
[¶ 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 N.W.2d 192, 199 (quoting State v. Hodges, 2001 SD 93,
¶ 8, 631 N.W.2d 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 N.W.2d 743, 751 (quoting State v. Thompson, 1997
SD 15, ¶ 23, 560 N.W.2d 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 N.W.2d 1, 9 (citation
omitted). In making that custody determination, a two-part test
[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 N.W.2d 186, 190
(quoting State v. Herting, 2000 SD 12, ¶ 13, 604 N.W.2d 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 N.W.2d at 865 (quoting
Thompson, 1997 SD 15, ¶ 25, 560 N.W.2d 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
[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
N.W.2d at 190 (noting that “[i]n State v. Anderson, [2000 SD 45,
¶ 77, 608 N.W.2d 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 N.W.2d 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.
[¶ 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 N.W.2d at 9; Thompson,
1997 SD 15, ¶ 25, 560 N.W.2d at 540 (citing Stansbury v.
California, 511 U.S. 318, 323, 114 S.Ct. 1526, 1529, 128 L.Ed.2d
293, 298 (1994)). See also Bradley v. Weber, 1999 SD 68, ¶ 14,
595 N.W.2d 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 S.D.
605, 613, 175 N.W.2d 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 N.W.2d at 10 (citing Miranda v. Arizona, 384 U.S. 436, 467, 86
S.Ct. 1602, 1624, 16 L.Ed.2d 694 (1966)).
B. Whether Wright Was Denied Her Fifth
Amendment Right against Self-Incrimination/Right to Counsel.
[¶ 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 N.W.2d 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 N.W.2d 226, 231 (S.D.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 U.S. 477, 484-85, 101 S.Ct. 1880, 1885,
68 L.Ed.2d 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 37, 766 N.W.2d 177.5
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
[¶ 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 U.S. 452, 459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 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 P.3d 856, 871 (Alaska Ct.App.2006) (concluding that
“Shouldn't I just have my attorney with me, or something?” was an
equivocal request); State v. Radcliffe, 164 Wash.2d 900, 907-08,
194 P.3d 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 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
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
C. Whether Wright's Statements Were
[¶ 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 N.W.2d 610, 619 (quoting State v. Tofani, 2006 SD 63, ¶ 30,
719 N.W.2d 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
N.W.2d 120, 128 (internal citations omitted) (quoting Tuttle, 2002
SD 94, ¶ 20, 650 N.W.2d 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 N.W.2d
[¶ 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 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 N.W.2d at 129 (citing Tuttle,
2002 SD 94, ¶ 22, 650 N.W.2d 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
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
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
“[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 S.W.3d 493, 500
(Tex.Crim.App.2009) (citing Ferrell v. Estelle, 568 F.2d 1128,
1132 (5thCir.1978)), opinion withdrawn on appellant's death, 573
F.2d 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
[¶ 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 S.W.3d 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 F.2d
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 F.2d at 1131.
[¶ 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
S.W.3d at 502-03 (emphasis added) (quoting Valladares v. United
States, 871 F.2d 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 P.2d 1050, 1056 (1995). See also People ex rel.
Myers v. Briggs, 46 Ill.2d 281, 287, 263 N.E.2d 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 So.2d 841, 845 (Miss.1989)
[¶ 40.] In the end, the question “is whether
any inadequacy in the interpretation made the trial ‘fundamentally
unfair.’ ” Linton II, 275 S.W.3d at 503 (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 F.2d 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]․
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
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.” (Appellants 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.
[¶ 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 F.2d 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 S.W.3d 698 (Tex.Ct.App. 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 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
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 interpreters that the trial judge did use were
constitutionally insufficient to ensure her due process rights.
Linton II, 275 S.W.3d 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
[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.
3. The Circuit Court's System of Selecting
[¶ 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 N.W.2d 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 N.W.2d 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
N.W.2d 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 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
[¶ 51.] We have previously noted that numbers
alone are insufficient proof of systematic exclusion, St. Cloud,
1996 SD 64, ¶ 25, 550 N.W.2d 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 N.W.2d 548, 553 (S.D.1993) (quoting State v. Lohnes,
432 N.W.2d 77, 84 (S.D.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 N.W.2d at 76 (quoting
United States v. Garcia, 991 F.2d 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 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
[¶ 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, 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 N.W.2d
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
Id. ¶ 14, 729 N.W.2d 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 N.W.2d 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 N.W.2d 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 N.W.2d at 130 (citations
[¶ 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
1. Rule 40(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 N.W.2d at 254
(quoting Goodroad, 1997 SD 46, ¶ 9, 563 N.W.2d 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
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
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
N.W.2d at 367 (quoting State v. Mesa, 2004 SD 68, ¶ 9, 681 N.W.2d
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 N.W.2d 744, 748
(quoting State v. Buchholz, 1999 SD 110, ¶ 33, 598 N.W.2d 899,
[¶ 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 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
N.W.2d 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 N.W.2d 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
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 N.W.2d 609, 614 n. 3 (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 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 N.W.2d 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 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 N.W.2d 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[.]” U.S. Const. amend. V. Similarly,
South Dakota's Constitution provides that “[n]o person shall ․ be
twice put in jeopardy for the same offense.” S.D. 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 N.W.2d 37, 43. Wright argues that because
the convictions of kidnapping and felony murder arise out of the
same incident, the multiple convictions 14
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 N.W.2d 853, 861; State v. Henjum, 1996 SD 7, ¶ 13,
542 N.W.2d 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
N.W.2d 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.
lost her hearing at the age of ten months following an episode of
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 S.W.3d 493, 510 (Tex.Crim.App.2009)
(Johnson, J., concurring).
only requested one break, which was during jury selection. The
court provided the break.
oral argument, Wright conceded there is no disagreement regarding
the historical facts.
also United States v. Rodriguez, 518 F.3d 1072, 1078-79
(9thCir.2008); Nom v. Spencer, 337 F.3d 112, 118 (1stCir.2003);
State v. Collins, 937 So.2d 86, 92 (Ala.Crim.App.2005); Freeman
v. State, 158 Md.App. 402, 857 A.2d 557, 572-73 (2004); State v.
Tuttle, 2002 SD 94, ¶ 14, 650 N.W.2d 20, 28; State v. Leyva, 951
P.2d 738, 743 (Utah 1997).
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.
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, Wright does not contend that any
questioning took place during this period of time.
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.
oral argument, Wright's counsel indicated that a deaf-relay
interpreter is another name for a CDI. See also Linton II, 275
S.W.3d at 510 (Johnson, J., concurring), supra ¶ 11 note 2.
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).
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 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
Wright also argues that the jury panels did not include a fair
representation of the community, that argument is misplaced.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
N.W.2d 548, 553-54 (S.D.1993).
Court has stated that the 404(b) “balancing must be conducted on
the record.” Owen, 2007 SD 21, ¶ 14, 729 N.W.2d 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
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.
[¶ 70.] GILBERTSON, Chief Justice, and
KONENKAMP and MEIERHENRY, Justices, and SABERS, Retired Justice,