*1
STATE Appellee, LOFTUS, Defendant
Robert John Appellant.
No. 19708. Dakota.
Supreme Court of South April Briefs
Considered July
Decided General, Barnett, Attorney Frank
Mаrk General, Pierre, Attorney Geaghan, Assistant Appellee. Plaintiff and Stonefield, of the Public Michael Office Rapid City, Pennington County, Defender Appellant. for Defendant SABERS, Justice. was convicted of Robert Loftus felony robbery, of a while
degree commission *2 firearm, attempted with a A robbery armed second de- similar liquor at a in store gree rape, aggravated ap- and assault. He police Box Elder led Shortly to Loftus. be- 1) peals, trial court arguing 21, 1995, erred p.m. fore 11:00 on June an armed denying appointed counsels’ motion to with- wearing man clothing dаrk a and ski mask 2) draw, allowing and the introduction of liquor clerk, entered store. After the V.N., other acts evidence. We affirm. instruction, locked the door at his helped money robber her remove from the FACTS register cash place bag. and it in a He made 26, 1995, April open an her give [¶ 2] On armed man the safe and him money purse. dressed in black from her clothes and black ski mask He her told to lie on her supper entered a bar club stomach northwest of and he tied her wrists and ankles. S.L., Rapid City. approached room, He He placed the man- moved her to another her her, ager, telling robbery, raped left, “This is a I’m here her back and her. Before he your money, get your money.” me he her again After made lie on her stomach gave money regis- she him the from the cash her tied wrists to her ankles. She remained ter, way he instructed her to take him until the store owner arrived at 6:00 because, stated, got day. office he “there’s a.m. the next be a office, they safe.” As walked toward the he A Box Elder police resident called gun held the to S.L.’s neck. Once in the when he learned from a story news office, he told her to lie on her stomach on looking for a red vehicle with the floor. He tried to tie her hands while tinted A days windows. few before the Box she was on her stomach. in Unsuccessful robbery, Hyundai parked Elder he saw a red attempts, he told her to turn over onto her liquor near the suspicious store. He became back. He tried to tie her hands in front of when the driver laid down on the seat. He stomach, again her failed. He told her followed the car for a short while before pant leg, stating remove оne “that would losing sight of it. When he heard about the help him tie better.” After [her] she robbery, he returned to where he last saw complied, he struck her in the left side car, eventually locating it. He wrote face, causing right side of her head to down the license gave number and strike a cinder hit again block wall. He her police. The registered car was to Loftus. at least possibly once and or four three more By times.1 now he was on his knees front [¶ 7] warrant was issued for Loftus on waistband, of her and as he reached for his June day 1995. The next highway a S.L. him еmployees told trooper would be ar- spotted a matching vehicle the de- riving soon. He then left. scription of Loftus’ ear. trooper Once the siren, lights activated his Loftus fled [¶ 3] Two customers who arrived around high-speed and a through Rapid chase City robbery time of the noticed a car red and the Black Hills followed. ap- He was with parking tinted windows lot of the prehended after running from his ear a bar. bought Chevy a red Cavalier wooded area. A Division of Criminal Inves- early April of 1995 and had the windows tigation agent observed the chаse from a shortly tinted thereafter. The Cavalier was helicopter and saw Loftus remove something repossessed April 1995. Loftus place his waistband and under bought Hyundai a red with tinted windows overhang. When another officer searched June 1995. area, he envelope found an containing a piece [¶ One evidence retrieved from money. bundle of piece the bar plastic; of black it was eventually plate missing matched as the butt [¶ 8] Loftus was interviewed two detec- pawned by from a rifle May Loftus on tives after Initially, he was arrested. any knowledge denied of the bar 1. This injuries requiring assault ing caused severe injury. effects of the head hospitalization. linger- S.L. continues to suffer trial, During Shortly Loftus wrote robbery. before store Disciplinary court and Board officer interview a different second express Bar to the State dissatisfaction with Glassgow), stated (Deputy Sheriff court-appointed The trial court counsel. crimes and man committed both that another hearing complaints. held a address these by the only the driver and stood that he was Fender, See State *3 being cоmmitted. the crimes were door while (S.D.1992) complete (remanding hearing for a were tied knew that the victims he request new counsel on defendant’s for Additionally, both robberies. during the “good requiring defendant to show cause” ap- that attackers testified their women why inadequate). current was his counsel were peared alone. Loftus’ statements to be us aspect hearing That is not before on through Glassgow’s testimo- at trial received appeal. hearing, At the this same defense at ny admissibility is not issue and their withdraw, permission moved for to сounsel trial, urged an alibi appeal. At Loftus this trial court. which was denied Defense feebly explained only that defense and compromised stated Loftus their counsel to at both being he admitted reason relationship by mailing complaint being into he was “talked crimes was because relationship now Bar and their was by the officers who two driver” appeals an adversarial nature. Loftus “I which him: can’t remember interviewed motion.3 denial of this was, up if I brought it but was detective trial, At the State was allowed to driver, be that it would had been concerning the submit evidence me, on they on would be easier different The at the Box Elder store. trial myself.” He also that he told Glass- testified 1) this was relevant court ruled to Glassgow gow was driver because he Loftus, how the led to show were him threat- vulgar language with used 2) to severe him with sentences: ened more and held that it was Well, I was point guess time I at prejudicial. appeals ruling, this Loftus angry at him I was because upset, claiming the admission of that evidence de- made, making was that were statements him of a fair prived trial. with being like I honest it sound wasn’t THE 1. WHETHER TRIAL point, [Glassgow] and at that me and ‘em COURT ABUSED ITS DISCRETION just past and I run-ins had some BY DENYING COUNSELS’ MOTION playing games with me figured that he was TO WITHDRAW. thing wrong or less and was the on of review [¶ 13] Our standard Now, that, I do, obviously. but I realize a motion counsel is for substituted denial him play my games with back decided discretion. the trial court abused its whether less. more or Necklace, v. Iron See State (1988): Rapid City in the [1Í9] is degree robbery, two counts counsel war- Appointment with first substitute
crime felony only upon showing good with a cause of a armed ranted a of commission while not firearm,2 rape, and will unreason- attempted degree and where substitution second A disrupt judicial process. trial ably Information assault. Part II aggravated request for substitu- offender court’s decision on a that Loftus was an habitual alleging a will not be reversed tion or continuance filed. was also they duplica- at the time the with- ous now as 2. trial court dismissed one count The following request tive at the close of State's case. sen- drawal was made injustice tencing. to Loftus It would be counsel, Appellate and was counsel convictions, any reviewing Loftus’ future represent- permission to from denied ing withdraw however, any that he waived chal- consider appeal. following state- Loftus on ruling by lenge Fender Trial Court's appears Appellant’s Brief at 16: ment requests raising appeal. it on this adequately appellate counsel cannot Current judgment fact. court’s reflect that position [the this issue advocate Loftus’ ruling], obvi- which are as reasons Fender of an appeal showing abuse of Yes. absent JANSSEN: discretion. Irvine, Here, any alleged by as in breakdown Johnson, People v. (Adоpting standard attorney/client relationship counsel in the Mich.App. 373 N.W.2d 268 was Loftus’ fault. “[A] defendant not enti- Irvine, (1985)); see also State tled to substitution counsel where the ¶ 13, 177, 181: breakdown ... his own caused refusal Cumbus, People Mich.App. cooperate attorney.” SD 43 (Mich.Ct.App.1985), Furthermore, at N.W.2d at
Michigan Appeals reviewed the Court Loftus has not shown a “substantive dis- motion agreement strategy.” denial of a for substitute counsel Accordingly, over Id. upon based breakdown the attor denial court’s of counsels’ motion to ney/client relationship. The court deter withdraw is affirmed. *4 fault mined the breakdown was the of the 2. WHETHER THE [¶ 15] TRIAL the, defendant and ruled that “defendant COURT ABUSED ITS DISCRETION was not entitled to substitution of counsel BY ADMITTING EVIDENCE CON- his relationship because the breakdown in THE CERNING BOX ELDER RAPE was caused defendant’s admitted refus AND ROBBERY. attorney.” cooperate al to with his Cum The trial court admitted evidence bus, at 496. uncharged relating robbery acts Irvine, we stated that the defendant must store, rape liquor finding at the Box Elder dispute show an regarding “irreconcilable police how relevant to show were able to ¶ 15, strategy or defense.” at Id. City Rapid trace the Loftus. crime to at N.W.2d court found it further relevant establish case, In this Loftus fails [¶ 14] Loftus’ and intent. dispute. an demonstrate such irreconcilable argues preju- the evidence was more questioned
The trial court of his both court- dicial probative. argues He also attorneys:4 appointed improper attempt prove for the State to you prepared THE COURT: Have for tri identity by Loftus’ introducing evidence of al? store because the similari- STONEFIELD: ties two were Yes. between the crimes minimal and not so as distinctive tо constitute the THE dropped Until COURT: this was recognizable person. work same He your you lap, ready were for trial? prejudicial also claims it was to allow the been, STONEFIELD: We have would perpetrator’s evidence to show the intent be- yes. only cause intent was relevant to the at- say THE you COURT: When we would tempted rape charge. been, concerning the merits of the case, evidence, talking I’m about Generally, evidence crimes or acts changed pro- what has of these because other than ones with which the defendant ceedings? inadmissible, an excep- are unless Moeller, changed applies. STONEFIELD: tion What has about 1996 SD ¶ 12, ability actually (citing cross examine wit- N.W.2d SDCL 19- 12-5; Thomas, trial, nesses and at evidence / (S.D.1986)). (FedREvid say nothing changed would has in that SDCL 19-12-5 404(b)) to, provides: respect. say, you require I would if us try we could week. case next crimes, wrongs, Evidence of other or acts
is not admissible to
the character of
Janssen,
THE
right,
person
COURT: All
Ms.
in order to show that he acted in
you ready
however,
conformity
for trial?
may,
therewith.
It
be
noted,
i.e.,
withdraw,
appeal
As
Lоftus does
asserted
in counsels' motion to
request
complaint
ruling
court's
on his
for substitute coun-
that Loftus’
to the State Bar created
Therefore,
grounds
relationship.
sel.
we will
address
adversarial
(Matthew
Evidence, §
Bender
404.07[2]
eral
purposes, such
other
admissible
ed.):
2d
motive,
prepa-
opportunity,
proof
identity, or ab-
ration,
knowledge,
plan,
if the other-crimes
is that
The rationale
or accident.
mistake
sence of
understanding
to an
contributes
description
or if a
question,
of the event
intricately related
Evidence
reveals
circumstances
of the immediate
without
case is admissible
to the facts
charged,
those
exclusion
other crimes than
Bar
19-12-5. State
to SDCL
reference
at
artificial situation
highly
will lead to a
ber,
trial,
rendering
confus-
Itzen,
omitted).
(citations
Cf.
ing.
ease,
(S.D.1989).5
In this
pursu
the evidence
expressly
noting
admitted
note 16 and
(Collecting cases id. at
and as crucial
appeal adopt
19-12-5
ant to SDCL
courts of
all
circuit
federal
Loftus.
traced
establishing
view).
how
uncharged of-
of an
“Even evidence
propensity evi
[¶20]
transaction or
of the same
arising out
fense
at
details
arising from the
dence
charged offense
as the
transactions
series of
trial,
go
at
were introduced
Box Elder
mean-
within the
offense
not an ‘extrinsic’
This
“background” evidence.
beyond mere
404(b),
not barred
and is therefore
ing of
severely limited
should have been
*5
contemporaneous and
is
it]
the rule [when
rape in
was no
the
because there
or excluded
prior unre-
crime rather
related
attempt
robbery, only a claim of
Rapid City
”
La,
v.
540
acts.’ State
lated ‘other
Therefore,
Loftus
аgree
we
with
rape.
ed
omitted).
(S.D.1995) (citations
As
180, 184
must be
this evidence
the admission of
resident
noted,
tip from a Box Elder
it was a
19-12-5.
under SDCL
reviewed
The
Loftus’ trail.
put
which
in
engage
The trial court must
Elder is
a crime Box
there was
fact that
ruling
admissi
analysis when
two-step
Rapid
at the
to the crime
reasonably related
SDCL 19-
acts evidence under
bility of other
crime, and not
bar,
to that
City
was relevant
12-5:
these circum-
Under
unfairly prejudicial.
offering
purpose for
intended
1.
Is the
stances,
showing of an
insufficient
there is an
relevant
other acts evidence
Fed-
2 Weinstein’s
See
abuse
discretion.
Cir.1984).
(11th
Accordingly,
evidence
when
Itzen,
were bro-
law office windows
several
5.
charged
an
part
"forms
of the crime
that is not
within a 36-hour
acts of vandalism
ken in five
part
of an account
integral and natural
following
verdict.
period
a client’s favorable
time
crime,
story
necessary
complete the
or is
adversary
was
in that
lawsuit
The client’s
proper.
jury” admission is
incidents,
for the
the crime
as he
charged
with one
1493,
Williford,
1499
764 F.2d
States v.
United
(11th
leaving
reversed
the scene. This court
identified
Cir.1985);
v. Curri
also United States
see
regarding
of evidence
court's admission
the trial
Cir.1987);
(1st
er,
v.
United States
52
821 F.2d
19-
of SDCL
incidents on
basis
the other four
Cir.1986);
Brennan,
(2nd
United
581
798 F.2d
suggested that statute
dissents
One of the
12-5.
(8th
Howard,
F.2d 1281
Cir.
504
States v.
apply
circumstances:
under the
did not
237,
Scott,
1974);
Neb.
318
v.
211
in a short
similar events
is a series of
This
Moreover,
(1982).
admission
N.W.2d 94
essentially
contem
period
time which
story prop
completes the
is
such evidence
evidence, though circumstan
poraneous. This
tends to show
though the evidence
er even
material,
relevant,
tial,
competent.
Crisp,
v.
offense. Chase
of anothеr
commission
is
Cir.1975),
SDCL 19-12-5
(10th
circumstances
595,
Under such
cert.
4
600 n.
523 F.2d
1418,
un
947,
of 'an
implicated
denied,
”[e]vidence
because
not
47
S.Ct.
96
424 U.S.
case,
arising
trans
charged
(1976).
out of the same
offense
evi
In the
L.Ed.2d 354
charged
as the
...
is
uncharged
[
]
series of transactions
incidents
action or
dence of the
charged
within
of
inextricably
an "extrinsic” offense
offense is not
intertwined
404(b)
possi
19-12-5]’ and
the crime is
meaning
[SDCL
rule
account of
fense.
full
dam
Simpson,
all incidents of
v.
United States
without reference
admissible.”
ble
thus
Thus,
Cir.1983)
903,
(5th
uncharged
cannot be
(quoting
offense
age.
907
709 F.2d
scope
Gonzalez,
"prior
within the
bad acts”
F.2d
493
considered
661
States
United
(5th Cir.1981),
19-12-5,
challenged
denied,
evidence
and the
U.S.
of SDCL
cert.
(1983));
admissible.
see also
L.Ed.2d 322
SCt.
J.,
(Sabers,
Itzen,
dissenting).
Leichtman,
N.W.2d at
742 F.2d
States
United
(factual
“(t]o prove
issue in
by
material
the ease
other
some
like crimes
the ac-
nearly
so
relevancy),
cused
identical method as to
them
earmark
as the handiwork of the
value
evidence
probative
Is the
exception,
accused.” This
often referred
substantially outweighed by
preju-
its
signature excep-
to as the “handiwork or
(logical relevancy).
dicial effect
exception
or the
operan-
tion”
“modus
Moeller,
60 at
548 N.W.2d at
is, however, only
di”
one method which
We review
court’s decision to
identity[.]
other crimes can
admit such
under the
of dis
abuse
(Citations omitted).
(citing
cretion
Id.
v. Ondri
standard.
cek,
(S.D.1995)).
argues
crimes
the two
are not
“Any
that tends to
fact
connect
so similar as to make
of the un-
accused with the commission of a crime is
one
example,
admissible. For
points
relevant and has
value. Such oth-
out
the assailants
each case
they
plan
very
if
gun;
er incidents are material
show a
style
used a
different
the crimes
system
of criminal action and acts consti- were committed at
day;
different
times of
tuting
Tiger,
alcohol,
perpetrator
continuous offenses.” State
the Box Elder
smelled of
(citations
(S.D.1985)
Rapid
City
appear
while the
did not
robber
omitted).
permitted
trial court
drinking;
liquor
to have been
store lost
crime, finding
liquor
robbery,
of the details of the Box Elder
and beer
the bar did
not;
injuries
relevant to
S.L. received severe
from an
separate
intent.6
assault
actions
found to
not;
аttempted
constitute
V.N.
rape,
did
put
identity
his
in issue
[¶23]
S.L.,
robber was unable
to tie
while V.N.’s
admitting
presence
at both crime scenes
tied her
attacker
so well she was unable to
denying
participation
but
crimes.
Finally,
free herself.
store robber
prior
When the “similarities between the
*6
for a
asked V.N.
marker and used it to leave
(are]
charged
[they
striking
offenses
are]
graffiti
cooler,
on a
nothing of
but
this sort
highly probative on the issue of defendant’s
was discovered at the bar.
United
Thomas,
identity.”
The
in Rule
for use of
lar
reasonably
involvement
related to the
Pedde,
prove identity
offеnding
other crimes evidence to
will
conduct.’”
334 N.W.2d at
probably
encompass
Gocke,
(citing
be used most often to
United States v.
507 F.2d
(8th
denied,
exception
Cir.1974),
another
in McCormick’s list that
cert.
420 U.S.
appear
(1975)).
does not
elsewhere in the Rule:
95 S.Ct.
with the time of two crimes firmed. two, the and the similаrities between leads us to trial court did not abuse its conclude the AMUNDSON, J., concurs. in admitting this evidence or discretion probative value its ruling that its exceeded MILLER, C.J., 33] and KONENKAMP [¶ prejudicial effect.9 GILBERTSON, JJ., concur in result. light holding regard GILBERTSON, our (concurring Justice re- 19-12-5, sult). ing identity exception SDCL the to we need not determine whether the Box Eld join I writing Justice Sabers properly er evidence was admitted on the ¶¶ except for 27-30. agree I cannot that the attempted rape charge under the intent ex rape trial court’s admission of the However, ceрtion. we note the intent during robbery store clerk the Box Elder exception should be used where the iden 21, 1995, “may reversal, required June tity perpetrator of the other act is not here, Loftus, but for the fact admitted where, especially so established. This presence at scene of both robberies.” here, later, unproved, using the State is There was no abuse of the trial court’s dis- noted, uncharged admitting act. As before cretion the admission of this It evidence. act, the other court must properly admitted to show jury whether rea detеrmine could probative such admission was sonably find that committed defendant prejudicial. preponderance the other act with, was charged [¶ 35] Loftus and con- Huddleston, 690-92, U.S. at evidence. of, attempted second-degree rape victed 1501-02, at at S.Ct. L.Ed.2d 782-84. Rapid clerk in City robbery April prosecutors Finally, we [¶30] remind 26, 1995. It to was unclear as Loftus’ intent Grooms, statement where this when he ordered the clerk remove her against abusing excep- court cautioned pants leg. help He stated him “would exclusionary tions rule of 19- SDCL [her] tie better.” the clerk 12-5: prepar- testified that she believed Loftus was rape ing her. The trial court held that the fail We to understand the rationale rape at the Box Elder evidentiary these admissions. The limited during as to whether it was Loftus’ intent
reasons for admittance of other act evi-
City robbery
Rapid
clerk
appears
exceeded,
dence
to have been
merely
up.
tie her
said
extension of
this case
*8
perilously
comes
requiring
close to
rever-
Attempted
second-degree
(SDCL
generally
22-22-1(2));
sal.
of
Evidence
other aсts is
22-4-1 requires
SDCL
specific
inadmissible. But if other acts
perpetrator;
intent in the
mind of
exception,
scrupu-
is,
by
introduced
it must be
specific
to commit
intent
lously
Hart,
17,
rape.
monitored
insure that it is consid-
crime of
State v.
1996 SD
13,
206,
purpose(s)
ered
for the
its
previ-
limited
N.W.2d
We
209.
have
crimes,
admittance.
trial bar
ously
specific
We caution the
held that
intent
exception aspect
proof
bench
rule
may
similar acts
be admitted to
can reach a limit
carry
and the admittance
that burden even if
the defense
White,
charge
outright
this evidenсe strains the
of eviden-
bounds
is an
denial. State v.
237,
tiary propriety.
(S.D.1995);
per-
trial court must
538 N.W.2d
v.
State
weigh
9.
against
We
reviewed the record and find no merit
value of the evidence
prejudicial
in Loftus' contention that the trial court did not
its
effect.
Ondricek,
872,
(S.D.1995);
535 N.W.2d
This Court has the no
tion that bad acts must meet
any credibility may standards of before it
be admitted into evidence.
McDonald, (S.D.
1993),this Court stated:
In [State v.] Sieler [397
(S.D.1986) ], rejected we adopting an addi requirement
tional for admission of bad
acts evidence under SDCL 19-12-5. The
reliability sought of the evidence to be already
admitted is part an inherent perform.
tests the court must We decline adopt an additional standard for a trial
court to balance deciding before to admit prior
or exclude bad acts.
Here the trial court made such a determina- clearly resting,
tion in part, upon the admis-
sion Loftus that he was at the scene of the
rape at the time it occurred. Given the fact that the trial court did
not abuse its discretion admission of the
evidence to establish I would not ad- justification
dress the identity alternative
which troubles Justice Sabers. I am authorized to state that Chief
Justice MILLER and Justice KONEN- join special
KAMP writing.