State v. Johnson

739 N.W.2d 1

2007 SD 86

STATE of South Dakota, Plaintiff and Appellee, v. Fred Earl JOHNSON, Defendant and Appellant.

No. 23799.

Supreme Court of South Dakota.

Argued March 20, 2007.

Decided August 15, 2007.

Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorney for plaintiff and appellee.

Bryan G. Hall, Minnehaha County Public Defender's Office, Sioux Falls, South Dakota, Attorney for defendant and appellant.

MEIERHENRY, Justice.

[¶ 1.] Cassandra Breen was found in her driveway with a gunshot wound to her forehead, which she survived. Breen identified Fred Johnson (Johnson) as the perpetrator. After a jury trial, Johnson was found guilty of attempted murder and aggravated assault. Johnson appeals and we affirm.

FACTS

[¶ 2.] On the morning of September 30, 2004, in Baltic, South Dakota, passersby noticed a vehicle sitting at the end of a driveway with the driver's door open. They stopped to investigate. They found Breen lying over the console with her head in the passenger's seat. Her young son was buckled in his car seat in the backseat.

[¶ 3.] An emergency medical technician (EMT), who arrived shortly thereafter, observed that Breen had a severe injury to her forehead. Breen told the EMT that she had been hit in the forehead with a hammer by "Fred." When law enforcement officer Detective Tommeraasen arrived, Breen told him that her assailant's last name was "Johnson."

[¶ 4.] After Breen was transported to the hospital, doctors discovered that she had actually sustained a gunshot wound to her forehead. According to the neurological surgeon who examined Breen, the bullet entered through the forehead and traveled somewhat lateral through each lobe on the right side of her brain, leaving bullet fragments lodged in various parts of her brain. Although doctors were able to dislodge the bullet fragments in the frontal region of Breen's brain, they left a large fragment lodged in the back of the brain to avoid more damage by removing it. Breen's injury resulted in permanent physical disabilities including paralysis of her left arm and left foot.

[¶ 5.] Prior to the shooting, Breen and Johnson were involved in a tumultuous "on again, off again" relationship, which deteriorated shortly after the birth of their son. Breen eventually moved from her original location in Sioux Falls, South Dakota, to her parents' home in Baltic, South Dakota. Notwithstanding the move, they had bitter disputes over Johnson's visitations with their son. Ultimately, the disputes culminated in the shooting on the morning of September 30, 2004.

[¶ 6.] Less than two hours after the incident, at approximately 8:15 AM, Turner County Sheriff Byron Nogelmeier arrived at Johnson's home in Monroe, South Dakota. He found Johnson hanging up laundry behind his house. His children from a prior marriage were playing on the driveway and in the backyard. Sheriff Nogelmeier informed Johnson that he was responding to instructions from Minnehaha County law enforcement to arrest Johnson for aggravated assault against Breen. However, after speaking with Johnson, Sheriff Nogelmeier felt uncomfortable arresting Johnson because of Johnson's convincing explanation that he was at home that morning with his three kids and without a working vehicle. Since Sheriff Nogelmeier was unclear about the details of the alleged attack, he suggested they talk to Minnehaha County law enforcement. Johnson agreed with Sheriff Nogelmeier's suggestion to meet with Minnehaha County law enforcement at the Turner County Sheriff's office in Parker. Sheriff Nogelmeier then transported Johnson and his children to Parker, approximately ten miles away.

[¶ 7.] Johnson and his children waited in the interrogation room in Parker until Minnehaha County Deputy Pete Jaros and Detective Philip Toft arrived. Johnson's children were then removed from the interrogation room and placed in the care of Johnson's ex-wife. Detective Toft testified that he began to read the Miranda rights to Johnson but Johnson kept interrupting him and insisting that he wanted to cooperate and talk with law enforcement. Consequently, Detective Toft did not complete the advisement and did not specifically advise Johnson that anything Johnson said could be used as evidence against him. When Detective Toft finished questioning Johnson, he informed Johnson that he had probable cause to arrest him but wanted to continue questioning him in Sioux Falls. Johnson agreed and was placed in Deputy Jaro's vehicle and taken to the law enforcement center in Sioux Falls.

[¶ 8.] After arriving at the law enforcement center, the interrogation continued. Before Detective Toft questioned Johnson further, he told Johnson that he was not under arrest and apprised Johnson of all of his Miranda rights. He then questioned Johnson for approximately three hours after which he placed Johnson under arrest.

[¶ 9.] The State filed an indictment charging Johnson with attempted murder in violation of SDCL 22-16-4 and SDCL 22-4-1. The indictment also charged Johnson with three counts of aggravated assault in violation of SDCL 22-18-1.1(1), (2), (4) and commission of a felony while armed with a firearm in violation of SDCL 22-14-12. Johnson sought to have his statements to law enforcement officers suppressed. The trial court denied the motion and a jury trial was held.

[¶ 10.] At trial, Breen testified about what occurred on the morning of September 30th. She testified that "it was Fred Johnson" and that she remembered him "coming out of the car yelling at [her] and . . . pulling [her car] door open." Breen testified that Johnson then threatened her, stating, "listen here bitch, no one is going to take my son away." The next thing Breen was able to remember was waking up in the hospital. At the close of the evidence, the jury returned a verdict finding Johnson guilty of first degree attempted murder, one count of aggravated assault, and the commission of a felony while armed with a firearm. Johnson was sentenced to a total of sixty-five years imprisonment — twenty-five years for attempted first degree murder, fifteen years for aggravated assault; and twenty-five years for committing a felony while armed.

[¶ 11.] Johnson appeals and raises the following issues.

ISSUES

1. Whether the trial court erred when it found that a conviction and sentence for attempted murder and aggravated assault was not a violation of Johnson's right against double jeopardy.

2. Whether the trial court erred when it denied Johnson's motion to suppress the statements he made to law enforcement on September 30, 2004.

3. Whether the trial court erred when it limited Johnson's cross-examination of Breen.

ANALYSIS

1. Double Jeopardy

[¶ 12.] Johnson claims his right against double jeopardy was violated when he was convicted and sentenced for both the offense of attempted first degree murder and aggravated assault. The Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. Amend. V; see also State v. Lafferty, 2006 SD 50, ¶ 4, 716 N.W.2d 782, 784. Similarly, South Dakota's Constitution provides that "[n]o person shall . . . be twice put in jeopardy for the same offense." Id. (citing SD Const. Art. VI, section 9). "These prohibitions against double jeopardy protect against three types of governmental abuses: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense." Id. We review double jeopardy claims under the de novo standard of review. Id.

[¶ 13.] Johnson's claim stems from a single act, which resulted in multiple charges under different criminal statutes; thus he claims he was subject to multiple punishments for the same offense. See also State v. Chavez, 2002 SD 84, ¶ 18, 649 N.W.2d 586, 593 (considering whether defendant could be convicted of multiple violations of the same criminal statute); State v. Augustine, 2000 SD 93, ¶ 24, 614 N.W.2d 796, 799 (same). "Established double jeopardy jurisprudence confirms that the Legislature may impose multiple punishments for the same conduct without violating the Double Jeopardy Clause if it clearly expresses its intent to do so." State v. Weaver, 2002 SD 76, ¶ 8, 648 N.W.2d 355, 358 (quoting State v. Dillon, 2001 SD 97, ¶ 14, 632 N.W.2d 37, 43 (citing Garrett v. United States 471 U.S. 773, 778, 105 S.Ct. 2407, 2411, 85 L.Ed.2d 764 (1985))). "The true intent of the legislature is ascertained primarily from the language of the statute." Lafferty, 2006 SD 50, ¶ 6, 716 N.W.2d at 784; see also Garrett, 471 U.S. at 779, 105 S.Ct. at 2411, 85 L.Ed.2d 764.

[¶ 14.] Johnson argues there is no indication that the Legislature intended to impose punishment for both the offense of attempted murder and the offense of aggravated assault arising out of the same conduct. Johnson contrasts the specific language used by the Legislature in SDCL 22-14-12 (commission of felony while armed). The felony-while-armed statute clearly indicates that a sentence can be imposed in addition to the principal felony. SDCL 22-14-12. The statute specifically provides:

Any sentence imposed under this section shall be consecutive to any other sentences imposed for a violation of the principal felony. The court may not place on probation, suspend the execution of the sentence, or suspend the imposition of the sentence of any person convicted of a violation of this section.

SDCL 22-14-12.

[¶ 15.] Johnson argues that the absence of specific language in the attempted murder and aggravated assault statutes supports his claim that the Legislature did not intend to impose two penalties for the same conduct. To determine legislative intent, we first examine the statutory elements of the crimes of aggravated assault and first degree murder. The statutory elements of...