State v. Luna

Dakota, STATE of South Plaintiff Appellee, LUNA,

George Defendant and

Appellant.

No. 14621.

Supreme Court of South Dakota.

Argued May 1985.

Decided Nov. Guhin, Gen., Atty.

John P. Asst. Pierre (Mark Gen., Pierre, Meierhenry, Atty. V. on brief), plaintiff appellee. for England, Leslie J. Office of Public De- effective assistance of counsel when his fender, Rapid City, ap- attorney for defendant and abandoned motions to suppress pellant. evidence; (4) physical whether the trial

court’s denial change motions MORGAN, predicated prejudice venue generated by Justice. pretrial publicity violated Luna’s constitu- appeal jury’s This is from a conviction of impartial to an jury and to due George (Luna) on two counts of first- (5) process; whether Luna’s constitutional degree murder in violation of SDCL 22-16- right equal protection by was denied 4. Luna by grand was indicted jury, a provide court’s failure to a preliminary felony issued, arrest warrant was he was hearing; (6) whether Luna’s constitu- arraigned, by tried jury, and convicted. right to confrontation was violated appeals Luna his convictions. We affirm. by the trial court’s admission of hearsay A double murder early occurred evidence. morning May 1, 1983, hours Rapid urges Luna first that the trial court vio- City, Pennington County, South Dakota. lated his Sixth and Fourteenth Amendment (Helen) The victims were Helen Thomas rights by excluding certain third-party Lynn (Lynn), Luna daughter Helen’s perpetrator sought evidence that he to in- estranged and Luna’s wife. Luna and troduce. Lynn engaged in a rather heated di- The evidence sought that Luna to intro- vorce proceeding and expressed Luna had duce, brief, (1) as outlined in his is: Joe animosity Helen, considerable toward (Leonard) Leonard еntered a convenience mother-in-law. store, Store, the CommonCents situated on Pennington A County Jury Grand heard Road, Rushmore about one-half block from evidence on the matter four months later crime, the scene of the about 2:30 a.m. on Septem- handed down an indictment on morning May 1. Leonard had blood ber appointed 1983. Counsel was for on his hands and his shirt cuff. On June Luna, filed, notices were and at least one 18, 1983, approximately later, seven weeks motion change judge granted. was Leonard drinking also confessed to a com- jury 14, 1984, Before May trial on num- panion that he had committed the murder pretrial filed, erous appointed motions were and that he was a killer for hire. The withdrew, counsel and privately retained drinking cоmpanion allega- also made some up representation.1 counsel took The vari- leaving tions about Leonard pipe a steel ous rulings motions and that are in issue davenport under his and that another steel and the facts of the case will be discussed pipe had been moved from where he usual- they pertinent where are to the issues. (2) ly (Thomas), Doug stored it. Thomas (1) appeal: raises six issues on this son of Helen Lynn, and brother of had Whether rights Luna’s constitutional (a year threatened Helen in the fall of 1981 compulsory process and due crime) and a half before the and had fired a by violated the trial court’s exclusion of gun ceiling. Although into the Thomas evidence; (2) wheth- had year prior not seen the for a victims right еr pro- Luna’s constitutional to due crime; he arrived at the scene shortly by cess was violated the State’s failure to after the bodies were found. Thomas was produce potentially exculpatory microscopic also the beneficiary poli- of a life insurance evidence; (3) particle whether Luna’s con- cy account, on Helen’s life and a trust sent to involuntary search and seizure was well devisee/legatee as the under Helen’s required physical thus exclusion of (3) evi- will. allegation There is also some dence, physical whether use of this evi- containing one of two boxes four or five error, plain dence at trial was and whether missing thousand dollars was from Helen’s Luna was denied his constitutional aрartment, although the authorities had re- appeal. represent 1. Counsel at trial does not Luna on relevant, “Although missing. of Rule of Evidence 403: nothing The existence

ported probative related in an unsworn excluded if its such boxes was, by outweighed by a friend of Helen’s who substantially statement value time, on the West apparently Coast at that danger prejudice, of unfair confusion of investigation charges regarding eluding issues, jury, by consid- misleading or or eagle illegal taking possession or feath- time,, delay, eration of undue waste ers. presentation of cumulative evi- needless rules 23A-22-2 makes civil dence.” SDCL third-party perpetra- theory of a applicable also to criminal of evidence alternative, to-wit: apparently tor is cases, except provided in Title as otherwise committed either Leon- The crime was suggests that since SDCL individually or Leonard 23A. or Thomas ard The trial court Luna it is not conspiracy. 19-12-3 was not relied on and Thomas proffered disagree. scenarios. ob- reviewed the the court. We When the before admissible, that, to be adopted served of evidence were rules circumstances, of some chain of must show admissibility they the criteria for became point out or train of facts facts 19-9-1. It is notewor- of evidence. SDCL party than guilt of a third other possible Beets, any cases thy that neither nor of the that evi- defendant. It stated collateral SDCL 19- wherein this court has discussed kept proceed- of dence should be out adoption, approached its 12-3 since marginally ings though relevant. even perspective from the of constitutional rights. The latter cases were all decided proffered of the bulk The statutory application of on the basis of the affidavits, in written state was form — the rule and none of the latter involved depositions. very We find little ments and evi- exclusion Therefore, testimony. any if direct oral dence. of the evidence is not limited our review clearly rule re erroneous and we can perpetrator assessing third-party light in the same that the view the evidence evidence, Luna, the trial as offered though presented court did as here pointed out that: Junek, Ayres v. the first instance. (1) Doug Leonard and Thomas wеre Joe (S.D.1976). N.W.2d 488 possible matches for hair excluded as alleges the trial court erred in that samples the victims. found on Beets, relying on dicta from State v. (2) up though Leonard showed at a Even (1930), 233 N.W. 917 as the rule S.D. blood on his store at 2:30 a.m. with urges a Dakota and number more South no to show hand there was writings and the recent federal cases perpetrator injured himself that support Wigmore in of a far Professor it fashion and was obvious argues The that more liberal rule. and towel at the scene from the sink proper the Beets decision contains the rule perpetrator cleaned his that attempts align it Dakota and for South leaving. hands before Beets the federal authorities. with (3) blood ‍​​‌‌‌‌​​‌​‌​​​​‌‌​‌‌​​​​‌‌​​​​​‌​‌‌​​​‌​‌‌‌​‌‌‌‌‍on his Leonard walked with third-party appears to be that for a rule and accosted a hands into a store theory available as a perpetrator “[t]o security guard a blocks from few proof guilty that another is defense just where Luna contends he had consequence that as a thereof must show committed a heinous crime. guilty.” 57 S.D. at is not defendant judge found this inconsistent with Furthermore, the evi- 233 N.W. at guilt. any theory of Leonard’s require- admissibility dence must meet genuineness.

ments of (4) Although alleged to Leonard was bars, possibly have taken two metal since Beets we have that We note weapons, judge deter- the murder 19- adopted the Rules of Evidence. SDCL it be inconvenient mined that would codification of Federal 12-3 is an exact crime, noteworthy is it the store hand. He is in eаch with a bar to walk Road, portion manner located on Rushmore that the also determined leading Highway was No. 16 southward returned U.S. the bars were which City theory. Rapid to the tourist from downtown inconsistent with city. It is a attractions to the south (5) linkage between Leon- There was no city. We highly commercializedarea ard and the victims. the State first at- particularly note story (6) in Leonard’s Inconsistencies Luna, tempted to connect Leonard with by the fact that he explained had being indication that both there some drunk. was evening on the imme- in the Oasis Bar been (7) were too Threats made Thomas diately preceding the murders. When remote. any acquaintance Leonard denied with Thomas (8) night of the murders On the Luna, police apparently knowledge of a.m.; 4:00 a woman until was with gave up theory. on that Artful defense and there the alibi she corroborated picked up the ball and tried to counsel then she would no reason to believe was run with it. his behalf. perjure herself on Rushen, Perry We find the case support testi- (9) There was evidence Cir.1983), (9th persuasive. The F.2d 1447 emotionally mony that Thomas that the Sixth Amend- Perry Court noted at the deaths. distressed “ ‘compulsory guarantees ment the accused (10) Thomas asked about The fact that fa- obtaining witnesses sister’s condition his mother and ” The Sixth Amendment vor.’ Id. at 1450. his knowl- based on could have been by the Fourteenth imposed on the states threats on their lives. edge of Luna’s process im- compulsory Amendment and to (11) physical ties Thomas No arbitrarily prevents state from plicitly the crime. testimony. Perry, supra, excluding such 14, Texas, Leonard, v. 388 U.S. citing Washington respect the evidence With (1967). 1920, The 1019 18 L.Ed.2d he was a “street 87 S.Ct. appears to show that that the defend- further noted Perry moun- Court camp in a on the person” who lived right general Fourteenth Amendment ant’s near Dinosaur Park. Skyline Drive tain operation process restrains the due also apparently employed from to he was While Ninth Cir- fruit, The state rules of evidence. distributing he also re- of to time time Mississippi, citing panel, cuit Chambers “drawings” for his sales of his lied on 1038, 284, 297 35 L.Ed.2d 410 93 S.Ct. regular U.S. He also was a habitue income. process is in essence (1973), due put noted that liquor As he bars and stores. the local to defend right opportunity a fair go it, evening practice was to normal his evidentiary bar, rousted, against the accusations. bar, go the next get mechanistically to applied rousted, may not be get con- rules and a little trouble cause opinion justice. The the ends of defeat got to the mountain. tinuing until he back defendant’s emphasize that the goes on to not, jail- go to detox ... I’d “[I]f is undeni- present evidence general respect to schedule.” With That was the in- legitimate strong; yet the State’s ably hand, was that his recollection bloody is often efficient trials Bar, gotten rowdy terest reliable gone to the Oasis he had Harris, 401 Younger v. compelling. angry him See That made ejected. and was 37, 746, 669 27 L.Ed.2d 91 S.Ct. U.S. fist into a concrete slammed his and he (1971).2 summarized Perry The Court proximity As for the wall. block as follows: rules to the scene Store Common Cents each case the evidence Perry noted that in Court summarizing v. Mis issues in Chambers 2. 1038, exculpatory ex highly and would 284, excluded 35 L.Ed.2d sissippi, S.Ct. 410 U.S. 93 pointed Texas, out that the the defendants. (1973), U.S. onerate Washington v. 388 297 other (1967), and that no 1920, also crucial 14, evidence was 1019 S.Ct. 18 L.Ed.2d 87 the state strong, only Where interest is The trial court did by not commit error critical, the exclusion of excluding reliable and evi- highly probative evidence will violate due dence offered Luna. process. When the state interest second issue involves the al Luna’s weaker, significant pro- less evidence is leged disappearance glass parti certain tected. cles which he claims to exculpa have been ... impоr- must balance the [T]he tory. Under United Agurs, States v. against

tance of the evidence the state 97, 2392, U.S. 96 S.Ct. 49 L.Ed.2d 342 interest exclusion. (1976), Brady Maryland, 373 U.S. 83, 1194, 83 S.Ct. (1963), 10 L.Ed.2d 713 F.2d at Luna claims a violation of his due equation We then balance the in the rights because State did not disclose suggested Perry. manner We start potentially exculpatory (the glass giving weight due to the substantial state particles). See also v. Trom California preserving orderly trials, interest betta, 104 S.Ct. judicial sufficiency, excluding and in unreli (1984). L.Ed.2d 413 particles or shards prejudicial able or evidence. glass obtained the FBI Lab on a check of items of clothing, Luna’s including Regarding theory, we find shirt, t-shirt, jeans, pair gloves. and a respect the evidence with highly Leonard The shards from clothing each item of probative unreliable аnd of little value. purportedly placed in individual vials and style His life previously has been described respective labeled with the clothing items. and there is no changed indication that it agent The FBI who had examined the evi after the date of the crime. There is no dence testified at trial and identified some any evidence of sudden influx of wealth twenty-four shards which he found to be proceeds from the of the crime. There is comparable glass with broken from a win no evidence of connection between apartment. dow Helen’s The FBI test Thomas, only Leonard and baseless innuen results and the vials were turned over to do. As Thomas, to the circumstances of pursuant defense for examination to a agree we with the trial court’s determina pretrial court order on a pre motion.3 No tion that he Taking had an alibi. the evi suppression motion or motion in limine it, dence as we evaluate not as trial counsel respect was made with to the shards. In represented affidavit, it in agree we trial, the course of the when the State with the decision of the trial court: sought exhibits, to offer the Luna's counsel There is motivation, considerable lack of objected only on the basis of foundation. opportunity support or facts to either of In the course of cross-examination of the possibly these as committing individuals expert FBI testimony of the defense crime; therefore, the court feels that expert, argument an developed over whеth appropriate it is to exclude this evidence er the shards had properly preserved. been unduly to avoid confusion tying up expert The defense testified that he found the court and to insure that the only twelve shards in the vial and that jury is able to on the focus facts of the some of glass. those not even appears case itself without what to this court to argues be irrelevant evidence concern- The State that the issue was not ing relationships other or preserved facts that ex- appeal. record, for On the ist, pertinent above, which are not to the inci- noted clearly that would have been question. dent in Additionally, true. we have examined the land, 83, introducing avenues of issues were such avail 83 S.Ct. 10 L.Ed.2d 215 able. (1963). Nеither the motion nor the court order any specific clothing made mention of the general 3. The produc- motion was a motion for the shards. exculpatory per Brady Mary- tion v. Among expert may the defense have lost by filed Luna. for new trial motion by handling his method of as that grounds urged, he included: shards eleven some preserve properly the FBI Lab did not prosecutor. The 4. Misconduct of the is, certainly There no evidence that them. glass on which the very particles of any any anyone responsibility else had for were lost jury based their verdict loss. prosecutor and not available Denying testing by the defense. issue, In the third Luna attacks the ad- glass particles of fur- that other physical into evidence of certain mission defense were the same nished to the in his evidence seized in his home and van prosecution. particles tested authority purported on the of his written claim, misconduct Luna support catalog of Fourth Amend- consent. Kennedy, 714 F.2d cites States v. United ment violations which he claims includes examination, Cir.1983). (9th Upon we surroundings, promises, or coercive force Kennedy decision discussed find that the threats, illegal po- verbal abuse other missing items of evidence under some lice actions. He further contends that his No- aegis ‍​​‌‌‌‌​​‌​‌​​​​‌‌​‌‌​​​​‌‌​​​​​‌​‌‌​​​‌​‌‌‌​‌‌‌‌‍prosecutorial misconduct. negat- mental and emotional state of mind even allude to a where does the decision signed the voluntariness of the consent ed Brady deci- issue under constitutional properly he not and furthermore that progeny. its sion or sign- prior or “Mirandized” to his .advised ing the consent. brief, appar- reply defense counsel In his prop- issue was not ently concedes that the acknowledges suppression Luna argues argu- such an erly raised but sought pretrial mo- the evidence was attempt an to railroad his valid ment is that was withdrawn his counsel tion cites us to a of error. Counsel assertion hearing prior to the thereon. now supporting proposition Wisconsin case deprived this action him of his claims that raised for issues be that constitutional assistance constitutional to effective appeal when it is the first time on and in event the admission of counsel apparently over- justice. He interest plain error. of the evidence was contrary authority to the looks our case argument, first respect to the With Hermandson, 84 S.D. v. embodied State competency of again point out that we (1969). N.W.2d 255 The Her- ap direct reviewed on counsel will was asked to consider mandson Court ordinary circumstances. Anderson peal constitutionality stop of a truck (S.D.1985); State, 373 N.W.2d 438 State v. trial, suspicion game At of a violation. (S.D.1984); Tchida, 347 N.W.2d 338 nothing more for Hermandson did counsel (S.D. Phipps, N.W.2d 128 grounds of lack of foun- object on the than trial, 1983). counsel focused on At defense the ward- testimony of one of dation to the cooperation law enforcement with truck. Her- what he saw the ens as to attempt his inno- in an to show authorities presented strikingly similar mandson willingness to aid in the search and cence us. to that which we have before record appel- failed and for the truth. The tactic may not for said: “Defendant The court previous repudiates the late counsel now is- raise constitutional the first time [the strategy. 84 S.D. at appellate court.” in the sue] 212, at 257. 169 N.W.2d compe Attorneys presumed are alleges ineffec a who consid- tent and defendant appropriate it to

Nor do we deem heavy a burden. assistance carries tive plain on the error rule. See er the issue (S.D. State, 497 344 N.W.2d High a Elk v. The record discloses 23A-44-15. SDCL guess a 1984). not second agent FBI This court will the debate between considerable Anderson, supra; attorney’s tactics. proper trial expert on the аnd defense the State, Elk, 320 supra; v. ques- High in Grooms preserving the evidence means of (S.D.1982). 149 that N.W.2d appears equally possible as tion. 236 respect impartial to the latter argu

With be fair or for reasons other than ment, opinion guilt. plain applied error must an cautious ly exceptional only and circumstances. used peremptory Defendant all of his Holter, (S.D.1983). 340 State v. N.W.2d 691 challenges and does not claim that the trial no such There was error here. The trial jurors any court failed to remove that Luna merely acquiesced court in defense coun wanted removed for cause. The trial court sel’s trial tactic. only ninety-two poten- stated that twelve of jurors predetermined had a opinion tial and issue on apрeal The fourth raised this is any there is no indication that of the twelve whether the trial court committed reversi- jury. served on change by refusing ble error to the venue. support prejudice, his claim of pretrial publicity Luna contends that fatal- court, presented the trial motion for ly impaired his constitutional to a fair trial, new the affidavit one jurors of the trial. U.S. Const. Amend. VI. Luna made case, who sat on which claimed that change four for a motions venue. “those in favor of conviction referred media accounts and indicated that their The presumes law that a de up made prior minds were to trial.” SDCL fendant can receive a fair trial the coun provides, pertinent part: 19-14-7 ty in which the offense committed. provided as Except otherwise Brandenburg, State stat- 344 N.W.2d 702 ute, upon inquiry an (S.D.1984). validity into a is, The test is whether there juror a fact, may verdict indictment not prejudice county in the minds testify any matter or statement residents sufficient to a raise reasonable occurring during jury’s the course of the apprehension that the accused will not re except juror may deliberations ... that a impartial Id.; ceive a fair trial. see testify question on whether extrane- SDCL 23A-17-5. burden is on the prejudicial ous improp- information was defendant to show a impair constitutional brought erly jury’s attention!].] ment and decision motion is within the court’s discretion. Bran Luna relies on this statute to claim denburg, supra. coverage, that media absorbed before the jurors impaneled, constitutes “extra publicity Pretrial alone is not prejudicial neous information.” This court or, enough deny a fair trial in other jurors’ pretrial has held that bias cannot words, change to warrant a in venue. ‍​​‌‌‌‌​​‌​‌​​​​‌‌​‌‌​​​​‌‌​​​​​‌​‌‌​​​‌​‌‌‌​‌‌‌‌‍attacking form the basis for a verdict un Reed, (S.D.1981) State v. 788 N.W.2d der SDCL 19-17-7. v. Finney, State Florida, citing Murphy v. (S.D.1983). N.W.2d 167 (1979). Quali S.Ct. L.Ed.2d 589 portion denied this jurors fied have knowledge some of motion for new trial on its observa- based the facts issues involved without bur jurors trial; during tion of the dire voir dening a defendant’s Sixth Amendment finding jurors predis- not right. Id. posed pointed to convict Luna. It out that jury eight deliberated hours before tak- juror question- to the refers court’s ing their initial vote. potential naire in jurors which were asked: you why you “Do know of reason could issue, We next examine Luna’s fifth impartial juror serve as fair equal protection by whether he was denied particular case: the State of South provide preliminary failure of State to George yes, Dakota If explain G. Luna? noted, hearing. previously As Luna was detail:_” Seventy-six in jurors Pennington County indicted a Grand polled. Seventy-two percent were Jury. answer- grant He moved the trial court to a “no”; eighty-nine ed percent hearing, claimed no preliminary which motion was de- opinion innocence; guilt on Luna’s nied. He now asserts this is error of con- percent magnitude fifteen they develop- stated could that stitutional based

237 upon unjustifiable ment an stan- holding a defend- ‘based ing that trend of cases race, religion, dard such as or other arbi- equal protec- right to ant’s constitutional classification_to trary prosecu- avoid hear- preliminary no tion is violated when equal pro- tion for a criminal offense on ing provided after indictment. grounds, defendant must tection show unique The case on this seminal government that the exercised selective Superior theory is Hawkins v. Court of upon enforcement of the law an invidious (Cal.1978). Francisco, 586 P.2d 916 San discriminatory basis.’ find that did indeed Hawkins Court (citations omitted). at 583 We 331 N.W.2d preliminary post-indictment of a the denial upon our decision both federal based fundamen hearing deprives a defendant of We therefore de- and state constitutions. confrontation, counsel, person rights tal join cline Luna’s invitation to the wave of judicial of appearance, hearing before a al future; rather, we our- but number from an to be free ficer and the jurisdictions with the who have re- selves cites prosecution. Luna also unwarranted jected pattern. classification the California supposedly part Oregon three cases us to Secrest, Like the defendant Luna Clark, of the future: State v. of this wave merely points possibility to a of selective (1981); P.2d 810 State 291 Or. 630 enforcement as the basis for his claim of 1981); (Ore Edmondson, 630 P.2d 822 equal protection. Since the violation 1983). (Ore Freeland, 667 P.2d 509 State v. exercise of selective enforcement conscious however, cases, find reading we In these violation, is not in a constitutional itself Oregon Supreme rejects Court Secrest, Luna does 331 N.W.2d at concept of “сircular use of the Hawkins’ apparent from the not claim nor is there class,” i.e., of those in terms classification any unjustifiable standard facts before us by in charged those are indicted and who en used in this selective or classification only to be where the distinctions formation forcement, we conclude that the constitu prelimi of a are the use or non-use tested do provisions and statutes before us tional defendants do not nary hearing. “These federal and state constitu not violate the categories or as classes with distin exist in equal protection. U.S. guarantees of apart guishing characteristics before VI, VI; art. Amend. S.D. Const. Const. how to prosecutor’s decision from 18. § or all defendants.” charge one or some trial court in added). affirm the action of the Clark, (emphasis We P.2d at 810 hearing. preliminary Freeland, denying the states that supra, The dissent Hawkins, has been discredited supra, by admitting Finally, Luna contends it, considered every jurisdiction which has amount of into evidence a considerable Illinois, Colorado, from including citations both victims hearsay testimony, which Virgin Kentucky, Pennsylvania, and West declarants, deprived he of his was Freeland, 667 P.2d at 523. ia. right of confrontation. U.S. constitutional VI, VI; art. Amend S.D. Const. § Const. reasoning of the agree We with crime, Lynn and Luna time of the At the “wholly reject the novel opinion and Clark proceeding engaged in a divorce classification. of a Hawkins proposition” hotly contest apparently quite which Freeland, In our P.2d at 523. Seе custody ed, issue of particularly on the view, of the two the coexistence it is not only child. their ‍​​‌‌‌‌​​‌​‌​​​​‌‌​‌‌​​​​‌‌​​​​​‌​‌‌​​​‌​‌‌‌​‌‌‌‌‍open ques- charging that is methods rather, en- tion; but, of selective an issue of intent to use gave notice The State Secrest, forcement. challenged its ad- testimony, hearsay (S.D.1983), we reviewed N.W.2d hearing was held missibility, pretrial and a against selective prohibition testimony constitutional court heard the wherein the trial enforcement. The evidence proposed witnesses. Lynn’s affidavits in various forms: Equal Pro- was Amendment

The Fourteenth statements made proceedings, divorce prohibits selected tection Clause enforce- attorney, worker, hearsay her divorce only social es marked with such trust- worker, a psychologist, sеrvices’ worthiness “there is no material de- friends, co-workers, reports and police to partment general the from reason of the officers. of the The bulk statements re- rule.” ... The focus of the court’s con- garded jealousy, temper, bad death cern to is then insure that are there threats, Lynn’s fear of him. There reliability indicia of which have been testimony was also of Helen’s statements widely viewed of wheth- determinative regarding threatening her, his abu- may placed er a statement before the nature, against Lynn. sive and his threats jury though there is no confrontation of hearings admissibility on lasted two declarant, the ... and to trier afford the days. The trial court ordered some of the satisfactory of fact a evaluating basis for the evidence excluded and balance admit- prior the truth of the statement[.]’ testimony ted. This was admitted under 56, 65-66, 2531, 2539, 100 S.Ct. 19-16-35, so-called SDCL the residual ex- (1980). L.Ed.2d 607-8 ception hearsay rule, to the which reads: McCafferty In we further stated specifically by A statement not covered “ ‘the reliability’ by indicia of to referred 19-16-34, of to 19-16-30 inclu- §§ the Roberts Court and the ‘circumstantial sive, equivalent having but circumstan- guarantees language of trustworthiness’ guarantees trustworthiness, tial of is not exception the hearsay residual to the rule excluded if 19-16-4 the declarant is § synonymous.” are 356 N.W.2d at 163. unavailable as a witness and if the court The trial court below heeded our direction determines that McCafferty the determination of (1) the statement is offered as evi- reliability be made on the record outside fact; dence of a material presence jury. the the judge of (2) probative the statement is more hearsay viewed the evidence with the other point the for which it is offered than (1) evidence in case and the considered the any other evidence which propo- the oral, evidence; nature ... written procure through nent can reasonable (2) statements; (3) character efforts; and relationship witness; (4) declarants’ to the (3) general purposes of these rules making declarants’ motivation in justice and the interests will best be statements; (5) un circumstances served admission the statement der which the declarants made the state into evidence. ments. The trial court found the witnesses However, a statement not be admit- trustworthy declarants and credible. ted under this propo- section unless the testimony It admitted that was found to be nent of it makes known to the adverse consistent with other evidence. The trial

party sufficiently in advance of the trial court found the written documents admit or hearing provide party the adverse (affidavits ted proceedings) in the divorce opportunity prepare with a fair were carefully accurately prepared. it, meet his intention offer the state- it, including particulars ment and the The bulk of the evidence before the trial the name and address declarant. court on of admissibility the issue was in testimony the form of of various witnesses In State McCafferty, N.W.2d who relating declarations. this (S.D.1984), dealing аlso a case with the instance, clearly we hold that the erroneous quoted exception, residual we Ohio v. Rob- applies scope rule as our See review. erts: 15-6-52(a). SDCL We do not find that the ‘Reflecting Confrontation [the Clause’s] clearly trial court was erroneous in admit- underlying purpose augment accuracy ting hearsay testimony. insuring the fact-finding the defendant an effective means to Accordingly, test Luna’s convictions are af- evidence, adverse clause countenanc- firmed.

239 FOSHEIM, C.J., WUEST, Appel- This is a situation. Circuit uations. such Justice, Judge, acting right a Supreme as a Court lant has the to create reasonable concur. es- and he should not have been doubt doing so under these circum- topped from J., HENDERSON, dissents. him, Surely, man stances. a with blood HERTZ, Judge, acting as a Circuit Su- scene, just crime a half block from the at Justice, participating. preme Court death, of or the exact time who was about HENDERSON, (dissenting). Justice the demonstrating hostility a to felon and security point fight he a picked a with below, expressed For I re- the reasons guard, “speculative” is not nor “fantastic” spectfully dissent. 139, Wigmore, 1A comments Evidence § right proffer criminally accused’s to particularly It rele- upon. becomes more a defense is fundamental. Chambers See vant, on, later this when individual confess- 284, 302, 93 Mississippi, v. S.Ct. statements he committed es or makes that (1973); 1038, 1049, 297, 35 L.Ed.2d 312 the murders. is a fundamental standard 481, Garner, 488 v. 581 F.2d United States relevancy require of to the admission of (5th Cir.1978); United States v. Balleste testimony prоve per- a which tends that ros-Acuna, 928, (9th F.2d Cir. 527 930 the son other than defendant committed Thomas, 1975); 488 and United v. States crime, subject to the the discretion 334, (6th Cir.1973). constitu F.2d 335 This to exclude evidence and cumulative evidence, right to and thus a present orderly of presentation an the case. assure defense, grounded in the is due 951, 621 F.2d Armstrong, United States v. and Fourteenth clauses of the Fifth Cir.1980). (9th Apparently, the federal 953 the United States Constitu Amendments to the ad- preference show a for VI, authorities tion, Chambers, and in Const. art. S.D. Thus, mission of evidence. 2 the accused “is entitled §§ discretion, judges given under any theory of Federal are jury consider to have the 403, determining the evi- in whether supported by which is law and FRE defense evidence, position I some is admissible. take which has fоundation dence jury v. United make the however tenuous. Tatum it is the which should that 386, 612, States, U.S.App.D.C. 190 F.2d 88 evidence is whether determination (D.C.Cir.1951); v. Phil- 617 United States if or fantastic or merely speculative (7th 435, Cir.1954).” F.2d 442-443 lips, 217 exculpatory na- is of sufficient 1376, Grimes, F.2d v. 413 short, United States I line reject the California ture. Cir.1969). also, (7th United See authority adopt the federal case of Chatham, 445, (5th 568 F.2d States authority of Wigmore’s formulation Cir.1978). admitting such evidence. The standards by the in line with federal the evidence are accused] latter authorities [offered [I]f jury Certainly, to cause the requirements. is in truth calculated a constitutional attempt doubt, life, the court should not lifetime on trial for a defendant jury this confinement, for doubt right present decide has the speculative and fantastic but purеly support his inno- facts which defense of every opportu- remembered, the accused afford should It is to be cence. contrary A nity that doubt. trial, to create had the criminal South Dakota really innocent ac- to a evidence; hence, is unfair rule South present rebuttal cused. de- have rebutted defendant’s Dakota could SDCL third-party perpetrator. fense (Till- at Wigmore, Evidence 1A § parties may 23A-24-2(4) provides: “The Rushen, 1983). Perry cited ers rev. rebutting then, respectively, offer F.2d at ob- majority opinion, 713 reason, court, good only, unless rule for exclusion serves that the California evi- justice or to correct an furtherance third-party perpetrator evidence would evi- oversight, permits them to offer sit- dent principles in some violate constitutional upon original jury jury their Under and let the decide if dence it was case[.]” facts, orderly presentation this fair and true or false. court, jury, than the rather should court, however, excluded all of weighed have tested and the evidence. determined, this because it inter bar, Luna, criminally In the case at the alia, it that was inconsistent with Luna’s accused, sought present evidence— guilt. of Leonard’s Thomas’ theories and/or another, present a third- defense—that a court, however, specifical- did trial not party perpetrator, committed the murders. ly that determine such evidence was irrele- evidence, majority This as noted in the 19-12-1, relevant, vant, if SDCL or that its (1) Leonard, opinion, is that: a violent “substаntially probative value was out- drunk, entered a store with blood on his weighed by danger prejudice, of unfair shirt, shortly after crime hands and issues, misleading of the or confusion therefrom; a half block Leonard con- jury, delay, or considerations of undue drinking companion fessed he to a that was time, presentation or needless waste a killer for hire and had committed the evidence.” cumulative SDCL 19-12-3. murders; and that two metal bars had dis- evidence, This evidence was relevant not appeared person from the residence of the 19-12-3, supported excludable under SDCL with; (2) Thomas, staying he was by the and had more law than a tenuous beneficiary relative of the victims and a foundation; thus, Luna was entitled to policy a life insurance and tаker under a jury theory have the consider his of the will, violently threatened one of the victims court, defense. Grimes. how- crime; prior 18 months to the had not seen ever, credibility determined the and consist- year prior the victims for a to the murders ency of Luna’s defense and withheld the suddenly up and then showed at the crime proffered jury. evidence from the This shortly scene after the bodies were discov- process rights violated Luna’s due ered. The coroner ‍​​‌‌‌‌​​‌​‌​​​​‌‌​‌‌​​​​‌‌​​​​​‌​‌‌​​​‌​‌‌‌​‌‌‌‌‍fixed the time of the present a defense a fair trial. As this a.m.; victims’ death at or about 2:30 Leon- dispositive, I issue is do not address the ard in the at was seen convenience store Repeatedly, other claimed errors below. about 2:30 a.m. with blood on his hands. If appellant’s cоunsel advocated before this evidence, jurors reject they wish to this Court that the trial court had emasculated credibility, do so. The under these the defendant’s defense. Under above circumstances, exclusively was within the authorities, compelled agree. I am I province jury and not the trial court. therefore would reverse and remand for evidentiary Even under the South Dakota permit retrial which would the defendant to rule, concerning the admission of upon third-party defend the basis that a party that a third has confessed to the Let, then, perpetrator was involved. crime, (FRE as 19-16-32 found SDCL court, jury, determine the 804(b)(3)), appears there to be sufficient my opinion, facts. the exclusion of this “corroborating evidence to estаblish cir- evidence, upon based rationale such as “to states, That statute inter cumstances.” unduly up tying avoid confusion and alia, tending expose that “a statement jury and to insure that the liability the declarant to criminal and of- able to focus on the facts of the case itself exculpate fered to the accused is not admis- court, is by the trial ...,” expressed corroborating sible unless circumstances vaulting orderly jus- administration clearly trustworthiness of the indicate the efficiency tice and over cherished constitu- neighbor- statement.” The immediate protections. itself—the hood—almost the crime scene blood, bars, missing metal the wildness anger displayed convenience at the

store, corroborating are all circumstances confession. certainly enough place it before

Case Details

Case Name: State v. Luna

Court Name: South Dakota Supreme Court

Date Published: Nov 20, 1985

Citation: 378 N.W.2d 229

Docket Number: 14621

Court Abbreviation: S.D.