STATE OF SOUTH DAKOTA v. NATALIE MARIE ANGLE

Pierre, SD - Criminal defense attorney represented Natalie Marie Angle with appealing her convictions for vehicular homicide and driving under the influence charges

Natalie Angle left her boyfriend's home in Madison at around 5:15 p.m.

on December 17, 2018, and was driving her sport utility vehicle (SUV) west on

Highway 34 near the small community of Junius when she swerved over the center

line and collided with an eastbound pickup driven by James Birgen. An

investigation later revealed that Angle's SUV made contact with Birgen's pickup

behind the driver's-side door. The force of the impact flipped the pickup onto its

side. Birgen was ejected from the truck and was fatally injured.

[¶3.] Angle's SUV rolled several times and came to rest upright in the south

ditch of Highway 34. A truck driver traveling a short distance behind Birgen saw

the entire accident, including Birgen being thrown from his pickup. He stopped to

render such assistance as he could in the moments before emergency personnel

arrived.

[¶4.] Deputy Grant Lanning with the Lake County Sheriff's Department

was the first law enforcement officer to arrive on the scene. After checking Birgen

for vital signs and finding none, he approached Angle's vehicle. Deputy Lanning

was soon joined by Officer Heath Abraham from the Madison Police Department, #29208

-2-

and the two visited with Angle in an effort to keep her calm1 while waiting for

emergency personnel to extract her from her heavily damaged vehicle. Both Deputy

Lanning and Officer Abraham detected the smell of an alcoholic beverage, and

Angle admitted she had been drinking prior to the accident.

[¶5.] Once Angle was removed from her SUV, she was transported to the

Madison Regional Hospital. Officer Abraham followed in his patrol vehicle while

Deputy Lanning obtained a search warrant authorizing officers to obtain a sample

of Angle's blood. A sample taken at 7:34 p.m. —two hours after the accident—

subsequently revealed a blood alcohol content (BAC) of .243. A second blood test

obtained at 8:43 p.m. showed a BAC of .220.

[¶6.] At 9:05 p.m., Deputy Lanning requested an interview with Angle at

the hospital. A short while before, Lake County Sheriff Tim Walburg had told

Deputy Lanning to provide Angle with Miranda2 warnings, and if she waived her

rights, to "get as much information as he could.” Deputy Lanning did not have with

him a preprinted card containing the Miranda warnings often carried by law

enforcement officers. See State v. Willingham, 2019 S.D. 55, ¶ 36, 933 N.W.2d 619,

628 (noting officer's use of preprinted Miranda warning card to advise suspect).

Working from memory, he had the following exchange with Angle:



1. Officer Abraham testified that Angle was "battered and bloody.” Video

footage and audio recorded by Officer Abraham's body camera system also

shows Angle was extremely upset that one of two dogs riding with her in the

SUV was missing.

2. See Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 1612, 16 L. Ed.

2d 694 (1996).#29208

-3-

Deputy Lanning: OK. You have the continuing right to remain silent

and stop questioning at any time. Anything you say could be used

against you in the court of law. You have the right to have an attorney

present. Ok. You have the right to stop questioning at any time. So,

what I am saying is you don't have to talk to me if you don't want to.

Do you understand that?

Angle: Yea.

Deputy Lanning: Ok are you ok with answering some questions

tonight?

Angle: Umm, depends on your questions.

Deputy Lanning: Ok.

Angle: Then I'll decide.

Deputy Lanning: If there are some that you don't want to answer,

then just tell me. You know, just give me the common courtesy to say

hey I don't want to answer that, and I'll respect that.

Angle: Yeah uh huh.

[¶7.] During the interview, Angle admitted to drinking before the accident

and to being distracted by her dogs in the backseat. After the interview, Sheriff

Walburg spoke with Angle and advised her that Birgen had been killed as a result

of the crash. He placed Angle under arrest and transported her to the Lake County

Jail after she was discharged from the hospital a short time later. A Lake County

grand jury returned an indictment charging Angle with one count of vehicular

homicide and three counts of driving under the influence under alternative theories.

See SDCL 22-16-41; SDCL 32-23-1(1); SDCL 32-23-1(2); SDCL 32-23-1(4). She pled

not guilty and moved to suppress her statement to Deputy Lanning at the hospital,

arguing she was not properly advised of her Miranda rights.#29208

-4-

[¶8.] After conducting a hearing, the circuit court denied Angle's motion to

suppress. The court recognized that Deputy Lanning had provided Angle with three

of the four advisories required by Miranda, omitting the right to appointed counsel.

However, the court concluded that the fact Deputy Lanning advised Angle of her

right to have an attorney present sufficiently communicated her separate right to

appointed counsel. The court went on to find that Angle voluntarily waived her

rights before she was questioned.

[¶9.] Angle waived her right to a jury trial, and the case was tried to the

circuit court on October 23, 2019. Prior to trial, the parties entered into several

stipulations regarding the admission of evidence. Included among these was a

stipulation of fact, which established that the December 17 crash was the cause of

Birgen's death. A separate stipulation acknowledged that the two blood samples

taken from Angle had produced BAC results of .242 approximately two hours after

the crash and .220 three hours after the crash. In addition, an affidavit from a state

chemist was admitted without objection and contained the expert opinion that

Angle's BAC was approximately .274 at the time of the accident.

[¶10.] As part of its case-in-chief, the State also provided expert testimony

from South Dakota Highway Patrol Trooper Jeremy Gacke, who is a certified

accident reconstructionist. Citing the findings of his investigation, Trooper Gacke

testified that Angle was traveling approximately 85 miles per hour, 20 miles per

hour over the speed limit, at the time she collided with Birgen's pickup. In Trooper

Gacke's opinion, Angle did not apply her brakes before the collision, which, he #29208

-5-

concluded, occurred when she crossed the centerline and struck the pickup halfway

inside the eastbound lane of Highway 34.

[¶11.] At the close of the State's case, Angle moved for a judgment of

acquittal, arguing that the State had not proven that she was under the influence of

alcohol at the time of the accident. The court denied Angle's motion and found her

guilty of vehicular homicide and driving under the influence (DUI) under SDCL 32-

23-1(1), which states that: "[n]o person may drive or be in actual physical control of

any vehicle while: (1) There is 0.08 percent or more by weight of alcohol in that

person's blood as shown by chemical analysis of that person's breath, blood, or other

bodily substance[.]”3

[¶12.] For the vehicular homicide conviction, the circuit court sentenced

Angle to fifteen years in the penitentiary with credit for 350 days served and two

years suspended upon certain conditions. The court also sentenced Angle to 350

days in county jail for Angle's DUI-first offense conviction with credit for 350 days

served.

[¶13.] Angle presents two arguments for our review:

1. Whether the circuit court erred when it denied her motion

to suppress her statement at the hospital.



3. The circuit court did not return a verdict on the alternative charges alleging

Angle violated SDCL 32-23-1 by driving or being in actual physical control of

a vehicle while she was "[u]nder the influence of an alcoholic beverage,

marijuana, or any controlled substance not obtained pursuant to a valid

prescription . . .” or while she was "[u]nder the combined influence of an

alcoholic beverage and or any controlled drug or substance obtained pursuant

to a valid prescription, or any other substance, to a degree which renders the

person incapable of safely driving[.]” See SDCL 32-23-1(2), (4).#29208

-6-

2. Whether the circuit court erred when it denied Angle's

motion for a judgment of acquittal.

Analysis

Miranda Warnings

[¶14.] Requiring law enforcement officers to provide Miranda warnings

before custodial interrogation protects an individual's constitutional privileges

"against self-incrimination and [the] right to retained or appointed counsel.”

Miranda, 384 U.S. at 475, 86 S. Ct. at 1628. We review "the denial of a motion to

suppress based on the alleged violation of a constitutionally protected right as a

question of law by applying the de novo standard of review.” Willingham, 2019 S.D.

55, ¶ 21, 933 N.W.2d at 625 (quoting State v. Rolfe, 2018 S.D. 86, ¶ 10, 921 N.W.2d

706, 709).

[¶15.] Whenever a defendant is subject to custodial interrogation,4 officers

must give four basic warnings: "[1] the right to remain silent, [2] that anything

[she] says can be against [her] in a court of law, [3] that [she] has the right to the

presence of an attorney, [4] and that if [she] cannot afford an attorney one will be

appointed for [her] prior to any questioning if [she] so desires.” Miranda, 384 U.S.



4. The State has not argued that Angle was not in custody when she was

interviewed at the hospital, and we express no opinion on the custody issue.

However, we are aware of several decisions in which other courts have held,

under particular circumstances, that a defendant was not considered in

custody when hospitalized. See United States v. New, 491 F.3d 369, 373-74

(8th Cir. 2007); United States v. Jamison, 509 F.3d 623, 628-31 (4th Cir.

2007); United States v. Robertson, 19 F.3d 1318, 1321 (10th Cir 1994); United

States v. Martin, 781 F.2d 671, 673 (9th Cir. 1985); People v. Theander, 295

P.3d 960, 966-69 (Colo. 2013); State v. Rogers, 848 N.W.2d 257, 262-65 (N.D.

2014).#29208

-7-

at 479, 86 S. Ct. at 1630. The requirement to provide a complete statement of

Miranda warnings, including notice of the right to appointed counsel, is unyielding:

In order fully to apprise a person interrogated of the extent of

[her] rights under this system then, it is necessary to warn [her]

not only that [she] has the right to consult with an attorney, but

also that if [she] is indigent a lawyer will be appointed to

represent [her]. Without this additional warning, the

admonition of the right to consult with counsel would often be

understood as meaning only that [she] can consult with a lawyer

if [she] has one or has the funds to obtain one. The warning of a

right to counsel would be hollow if not couched in terms that

would convey to the indigent—the person most often subjected

to interrogation—the knowledge that [she] too has a right to

have counsel present.

Id. at 473, 86 S. Ct. at 1627 (emphasis added).

[¶16.] This is not to say, however, that the Miranda rule requires rigid

conformity to a prescribed script or "talismanic incantation.” California v. Prysock,

453 U.S. 355, 360, 101 S. Ct. 2806, 2809, 69 L. Ed. 2d 696 (1981); see also

Willingham, 2019 S.D. 55, ¶ 35, 933 N.W.2d at 628 ("[T]he words of Miranda do not

constitute a ritualistic formula which must be repeated without variation in order

to be effective. Words which convey the substance of the warning along with the

required information are sufficient.” (quoting Evans v. Swenson, 455 F.2d 291, 295

(8th Cir. 1972))). Instead, either the warnings themselves or their functional

equivalent will suffice for Miranda compliance. Prysock, 453 U.S. at 360, 101 S. Ct.

at 2809 (quoting Rhode Island v. Innis, 446 U.S. 291, 297, 100 S. Ct. 1682, 1688, 64

L. Ed. 2d 297 (1980)).

In determining whether police officers adequately conveyed the

four warnings, we have said, reviewing courts are not required

to examine the words employed as if construing a will or

defining the terms of an easement. The inquiry is simply #29208

-8-

whether the warnings reasonably conve[y] to [a suspect] [her]

rights as required by Miranda.

State v. Ralios, 2010 S.D. 43, ¶ 25, 783 N.W.2d 647, 655 (quoting Florida v. Powell,

559 U.S. 50, 130 S. Ct. 1195, 1204, 175 L. Ed. 2d 1009 (2010)); see also Duckworth v.

Eagan, 492 U.S. 195, 203, 109 S. Ct. 2875, 2880, 106 L. Ed. 2d 166 (1989).

[¶17.] Here, the circuit court correctly determined that "three of the four

tenets of Miranda were explicitly provided to [Angle].” The court acknowledged

that Deputy Lanning did not inform Angle of her right to have an attorney

appointed prior to questioning.5 However, the court reasoned that Deputy Lanning

had, nevertheless, "reasonably conveyed to Defendant her rights as required by

Miranda” because, while not "explicitly told how she could get the advice of an

attorney, she was told that she could have one present; therefore, the important

part of the right was fulfilled.” We are unable to accept this view.

[¶18.] The circuit court's determination effectively eliminated the need to

advise individuals subject to custodial questioning that they have a specific right to



5. Angle also argues that Deputy Lanning's statement describing "the right to

have an attorney present” did not comply with Miranda because it did not

explain that the right applied prior to questioning. Though Deputy Lanning

did not use the explicit words, "before questioning,” we agree with the circuit

court's conclusion that the statement was nevertheless sufficient. Deputy

Lanning advised Angle of the right to counsel before he asked her any

questions, and he also told her that she could "stop questioning at any time”

and "[did] not have to talk to [him].” We believe that the most reasonable

interpretation of the advisory is that Angle had the right to have an attorney

present prior to answering any of the questions Deputy Lanning was

preparing to ask. See State v. Nave, 284 Neb. 477, 495, 821 N.W.2d 723, 737

(2012) (holding an officer's statement that the defendant had "the right to

consult with a lawyer and have the lawyer with [him] during the

questioning,” was enough to satisfy Miranda because it "impliedly included

the right to consult with the lawyer before the questioning.” (emphasis

added)).#29208

-9-

appointed counsel. As a consequence, the court's rationale allows the distinct rightto-counsel notice to fulfill its own Miranda requirement and also implicitly

communicate the separate right to appointed counsel. However, advising a

defendant of her right to have an attorney present during questioning is not the

functional equivalent of telling her she has the right to appointed counsel.6 We

have reviewed Deputy Lanning's extemporized recitation of the Miranda warnings

carefully, and we cannot discern anything else in his advisory that would, in some

way, provide Angle with notice of her right to appointed counsel. Notice of the right

was, simply put, "entirely omitted.” See Powell, 559 U.S. at 73, 130 S. Ct. at 1211

(Stevens, J., dissenting); Cf. Duckworth, 492 U.S. at 203-04, 109 S. Ct. at 2880

(holding that Miranda warnings were adequate when suspect was at least informed

that an attorney would be appointed for him "if and when [he] goes[s] to court”).

[¶19.] A failure to provide adequate Miranda warnings requires suppression.

"The Miranda exclusionary rule . . . serves the Fifth Amendment and sweeps more

broadly than the Fifth Amendment itself.” Oregon v. Elstad, 470 U.S. 298, 306, 105

S. Ct. 1285, 1291-92, 84 L. Ed. 2d 222 (1985). Because of this, suppression may be

required in the absence of a Fifth Amendment violation, and even "unwarned



6. In Miranda, the Supreme Court explained that this requirement "does not

mean, as some have suggested, that each police station must have a 'station

house lawyer' present at all times to advise prisoners.” 348 U.S. at 474, 86 S.

Ct. at 1608. However, the prophylactic notice of the right to appointed

counsel means what it says—officers seeking to question a person in custody

must advise her of the right to have an attorney appointed if she cannot

afford one. In the event "authorities conclude that they will not provide

counsel during a reasonable period of time in which investigation in the field

is carried out, they may refrain from doing so without violating the person's

Fifth Amendment privilege so long as they do not question [her] during that

time.” Id. (emphasis added).#29208

-10-

statements that are otherwise voluntary . . . must nevertheless be excluded from

evidence under Miranda.”7 Id. The circuit court should have granted Angle's

motion to suppress.

[¶20.] This does not require us to reverse Angle's convictions, however. We

believe the evidence against Angle was overwhelming even in the absence of the

admissions she made at the hospital, and the error was unquestionably harmless.

See State v. Lewandowski, 2019 S.D. 2, ¶ 34, 921 N.W.2d 915, 924 (holding that

"even if the statements had been unlawfully obtained” the error was harmless given

independent overwhelming evidence to support defendant's convictions).

[¶21.] Here, even without Angle's admission at the hospital that she had been

drinking and was distracted by her dogs, the State introduced evidence at trial from

the truck driver who witnessed the accident. Based upon his personal observations

of the entire accident sequence of events, he testified that Angle was traveling at a

high rate of speed and crossed over the center line into Birgen's lane where she

collided with him. The truck driver also saw Birgen ejected from his truck and land

violently on the road surface. In addition, Angle's boyfriend testified that she had

filled a "to go” mug with whiskey and Diet Coke before leaving his house, and the

state chemist's affidavit expressed his unrebutted opinion that Angle's BAC at the

time of the accident was likely .274.



7. An exception to inadmissibility exists where the statement was given

voluntarily and is used to impeach the defendant's testimony. State v. Tapio,

459 N.W.2d 406, 411 (S.D. 1990) (citing Harris v. New York, 401 U.S. 222, 91

S. Ct. 643, 28 L. Ed. 2d 1 (1971)).#29208

-11-

[¶22.] Still too, there is Angle's separate admission that she had been

drinking made to Deputy Lanning at the scene of the crash while she was waiting to

be removed from her vehicle. Both Deputy Lanning and Officer Abraham testified

that they smelled the odor of alcoholic beverages, and Deputy Lanning's question to

Angle about drinking, though unwarned, would not have triggered the need for

Miranda warnings because Angle was indisputably not in custody. Angle may have

been unable to move freely as she waited for emergency personnel to extricate her

from her damaged vehicle, but that was a consequence of the collision—not action

by law enforcement officers. See California v. Beheler, 463 U.S. 1121, 1123, 103 S.

Ct. 3517, 3519, 77 L. Ed. 2d 1275 (1983) (quoting Miranda, 384 U.S. at 444, 86 S.

Ct. at 1612) ("by custodial interrogation, we mean questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise

deprived of his freedom of action in any significant way”).8

Sufficiency of the Evidence

[¶23.] "Denial of a motion for judgment of acquittal is reviewed de novo.”

State v. Ware, 2020 S.D. 20, ¶ 12, 942 N.W.2d 269, 272 (quoting State v. Traversie,

2016 S.D. 19, ¶ 9, 877 N.W.2d 327, 330). "On appeal, 'the relevant question is

whether, after viewing the evidence in the light most favorable to the prosecution,



8. Though we think it best to avoid the fact-bound discussion about whether

Angle was in custody while she was at the hospital given the State's

acquiescence, see supra n.4, we feel differently about the question of custody

immediately after the accident. In our view, the record and the undisputed

circumstances of the crash lead to the certain conclusion that Angle was not

in police custody at the scene of the crash. In addition, it appears the motion

to suppress was directed at the hospital interview only. Though the motion

itself was stated broadly, Angle's brief to the circuit court focused only on the

hospital interview and the incomplete warnings.#29208

-12-

any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.'” Id. (quoting State v. Martin, 2015 S.D. 2, ¶ 13, 859

N.W.2d 600, 606).

[¶24.] The offense of vehicular homicide includes the following essential

elements:

1. That the defendant at the time and place . . . operated or

drove a motor vehicle in a negligent manner.

2. That the defendant at the time and place was under the

influence of an alcoholic beverage.

3. That the negligent operation or driving was a proximate

cause of the death . . . .

4. That the defendant did so without a design to effect the

death . . . .

State v. Lamont, 2001 S.D. 92, ¶ 14, 631 N.W.2d 603, 608. See also SDCL 22-16-41.

[¶25.] The theory of driving while under the influence for which Angle was

convicted required proof that she was "in actual physical control of any vehicle

while . . . [t]here is 0.08 percent or more by weight of alcohol in . . . [her] blood as

shown by chemical analysis . . . .” SDCL 32-23-1(1).

[¶26.] As discussed above, even without Angle's admissions to Deputy

Lanning at the hospital, the evidence supports her convictions, and the circuit court

correctly denied her motion for judgment of acquittal. The parties' partial

stipulation of facts established that Angle was driving her SUV at the time of the

fatal collision and that Birgen died as a result of the injuries he sustained in the

crash. Beyond this, the State's accident reconstructionist provided unrebutted

expert testimony that Angle was driving 20 miles per hour over the posted speed

limit and crossed the center line of Highway 34 to approximately the middle of the #29208

-13-

eastbound lane before colliding with Birgen's vehicle without applying her brakes.

We have no difficulty accepting this as sufficient proof that Angle was negligent and

that her negligence was the proximate cause of Birgen's death.

[¶27.] Also undisputed are the expert opinions of the state chemist admitted

by stipulation. The parties admitted that blood samples taken from Angle two and

three hours after the crash yielded respective results of .242 and .220 alcohol by

weight. In addition, the chemist's affidavit was admitted without objection and

included his expert opinion that Angle's blood alcohol content was .274 at the time

of the collision. The opinion, the chemist stated, was based on standard absorption

rates and the assumption that Angle was in the post-absorptive phase of alcohol

metabolization, meaning the alcohol was no longer in her stomach and had been

absorbed into her blood. There was no evidence to suggest that either of these

assumptions was unsound or rendered the ultimate opinion unreliable.9

[¶28.] Further, the circuit court focused on the element of SDCL 32-23-1(1),

which simply requires proof that Angle's BAC equaled or exceeded .08. It was,

therefore, unnecessary to establish the precise level where, as here, the court was

convinced beyond a reasonable doubt that the State's evidence established at least

the minimum BAC level required by SDCL 32-23-1(1). Because the evidence is



9. Angle's contrary argument is not sustainable. The chemist's opinion was the

only evidence bearing upon Angle's BAC at the time of the fatal crash. It was

admitted by stipulation and without any challenge to its underlying bases.

Angle's claim that the opinion was, nevertheless, unsound would require us

to act on our own to consider the exercise of the circuit court's discretion to

allow the stipulated opinion or reweigh the strength of the opinion. Given

our role as a reviewing court, we are not inclined to do either.#29208

-14-

sufficient to support the court's determination in this regard, we must affirm its

decision to deny the motion for judgment of acquittal

Although the circuit court erred by denying Angle’s suppression

motion, Deputy Lanning’s failure to advise her that she had the right to appointed

counsel before questioning her at the hospital was harmless, given the

overwhelming evidence against her. The circuit court did not err when it denied

Angle’s motion for acquittal, finding sufficient evidence to sustain her convictions

for vehicular homicide and driving under the influence. We affirm