Lead Opinion
This appeal is from a jury’s conviction of George Luna (Luna) on two counts of first-degree murder in violation of SDCL 22-16-4. Luna was indicted by a grand jury, a felony arrest warrant was issued, he was arraigned, tried by a jury, and convicted. Luna appeals his convictions. We affirm.
A double murder occurred in the early morning hours of May 1, 1983, in Rapid City, Pennington County, South Dakota. The victims were Helen Thomas (Helen) and Lynn Luna (Lynn), Helen’s daughter and Luna’s estranged wife. Luna and Lynn were engaged in a rather heated divorce proceeding and Luna had expressed considerable animosity toward Helen, his mother-in-law.
A Pennington County Grand Jury heard evidence on the matter four months later and handed down an indictment on September 21, 1983. Counsel was appointed for Luna, notices were filed, and at least one motion for change of judge was granted. Before the jury trial on May 14, 1984, numerous pretrial motions were filed, appointed counsel withdrew, and privately retained counsel took up representation.
Luna raises six issues on this appeal: (1) Whether Luna’s constitutional rights to compulsory process and due process were violated by the trial court’s exclusion of third-party perpetrator evidence; (2) whether Luna’s constitutional right to due process was violated by the State’s failure to produce potentially exculpatory microsсopic particle evidence; (3) whether Luna’s consent to search and seizure was involuntary and thus required exclusion of physical evidence, whether use of this physical evidence at trial was plain error, and whether Luna was denied his constitutional right to effective assistance of counsel when his attorney abandoned motions to suppress the physical evidence; (4) whether the trial court’s denial of motions for change of venue predicated on prejudice generated by pretrial publicity violated Luna’s constitutional right to an impartial jury and to due process; (5) whether Luna’s constitutional right to equal protection was denied by the trial court’s failure to provide a preliminary heаring; and (6) whether Luna’s constitutional right to confrontation was violated by the trial court’s admission of hearsay evidence.
Luna first urges that the trial court violated his Sixth and Fourteenth Amendment rights by excluding certain third-party perpetrator evidence that he sought to introduce.
The evidence that Luna sought to introduce, as outlined in his brief, is: (1) Joe Leonard (Leonard) entered a convenience store, the Common Cents Store, situated on Rushmore Road, about one-half block from the scene of the crime, about 2:30 a.m. on the morning of May 1. Leonard had blood on his hands and his shirt cuff. On June 18, 1983, approximately seven weeks later, Leonard also confessed to a drinking companion that he had committed the murder and that he wаs a killer for hire. The drinking companion also made some allegations about Leonard leaving a steel pipe under his davenport and that another steel pipe had been moved from where he usually stored it. (2) Doug Thomas (Thomas), son of Helen and brother of Lynn, had threatened Helen in the fall of 1981 (a year and a half before the crime) and had fired a gun into the ceiling. Although Thomas had not seen the victims for a year prior to the crime; he arrived at the scene shortly after the bodies were found. Thomas was also the beneficiary of a life insurance policy on Helen’s life and a trust account, as well as the devisee/legatee under Helen’s will. (3) There is also some allegation that one оf two boxes containing four or five thousand dollars was missing from Helen’s apartment, although the authorities had re
Luna’s theory of a third-party perpetrator is apparently in the alternative, to-wit: The crime was committed by either Leonard or Thomas individually or by Leonard and Thomas in conspiracy. The trial court reviewed the proffered scenarios. It observed that, to be admissible, the evidence must show some chain of circumstances, of facts or train of facts to point out the possible guilt of a third party other than the defendant. It stated that collateral evidence should be kept out of the proceedings even though marginally relevant.
The bulk of the proffered evidence was in written form — affidavits, statements and depositions. We find very little if any direct oral testimony. Therefore, our review of the evidence is not limited by the clearly erroneous rule and we can review the evidence in the same light that the trial court did as though presented here in the first instance. Ayres v. Junek,
Luna alleges that the trial court erred in relying on dicta from State v. Beets,
We note that since Beets we have adopted the Rules of Evidence. SDCL 19-12-3 is an exact codification of Federal Rule of Evidence 403: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration оf undue delay, waste of time,, or needless presentation of cumulative evidence.” SDCL 23A-22-2 makes civil rules of evidence applicable also to criminal cases, except as otherwise provided in Title 23A. The State suggests that since SDCL 19-12-3 was not relied on by Luna it is not before the court. We disagree. When the rules of evidence were adopted in 1978, they became the criteria for admissibility of evidence. SDCL 19-9-1. It is noteworthy that neither Beets, nor any of the cases wherein this court has discussed SDCL 19-12-3 since its adoption, were approached from the perspective of constitutional rights. The latter cases were all decided on the basis of the statutory application of the rule and none of the latter involved exclusion of third-party perpetrator evidence.
In assessing the third-party perpetrator evidence, as offered by Luna, the trial court pointed out that:
(1) Joe Leonard and Doug Thomas were excluded as possible matches for hair samples found on the victims.
(2) Even though Leonard showed up at a store at 2:30 a.m. with blood on his hand there was no evidence to show that the perpetrator injured himself in any fashion and it was obvious from the sink and towel at the scene that the perpetrator cleaned his hands before leaving.
(3) Leonard walked with blood on his hands into a store and accosted a security guard a few blocks from where Luna contends he had just committed a heinous crime. The triаl judge found this inconsistent with any theory of Leonard’s guilt.
(4) Although Leonard was alleged to have taken two metal bars, possibly the murder weapons, the judge determined that it would be inconvenient*233 to walk with a bar in each hand. He also determined that the manner in which the bars were returned was inconsistent with Luna’s theory.
(5) There was no linkage between Leonard and the victims.
(6) Inconsistencies in Leonard’s story were explained by the fact that he was drunk.
(7) Threats made by Thomas were too remote.
(8) On the night of the murders Thomas was with a woman until 4:00 a.m.; she corroborated the alibi and there was no reason to believe she would perjure herself on his behalf.
(9) There was evidence to support testimony that Thomas was emotionally distressed at the deaths.
(10) The fact that Thomas asked about his mother and sister’s condition could have been based on his knowledge of Luna’s threats on their lives.
(11) No physical evidence ties Thomas to the crime.
With respect to Leonard, the evidence appears to show that he was a “street person” who lived in a camp on the mountain on Skyline Drive near Dinosaur Park. While he was apparently employed from time to time distributing fruit, he also relied on sales of his “drawings” for his income. He also was a regular habitue of the local bars and liquor stores. As he put it, his normal evening practice was to go to a bar, get rousted, go to the next bar, cause a little trouble and get rousted, continuing until he got back to the mountain. “[I]f not, I’d go to detox ... or jail-That was the schedule.” With respect to the bloody hand, his recollection was that he had gone to the Oasis Bar, gotten rowdy and was ejected. That made him angry and he slammed his fist into a concrete block wall. As for the proximity of the Common Cents Store to the scene of the crime, it is noteworthy that the store is located on Rushmore Road, a portion of U.S. Highway No. 16 leading southward from downtown Rapid City to the tourist attractions to the south of the city. It is a highly commercialized area of the city. We particularly note that the State first attempted to connect Leonard with Luna, there being some indication that both had been in the Oasis Bar on the evening immediately preceding the murders. When Leonard denied any acquaintance with or knowledge of Luna, the police apparently gave up on that theory. Artful defense counsel then picked up the ball and tried to run with it.
We find the case of Perry v. Rushen,
*234 Where the state interest is strong, only the exclusion of critical, reliable and highly probative evidence will violate due process. When the state interest is weaker, less significant evidence is protected.
... [T]he court must balance the importance of the evidence against the state interest in exclusion.
We then balance the equation in the manner suggested in Perry. We start by giving due weight to the substantial state interest in preserving orderly trials, and judicial sufficiency, and in excluding unreliable or prejudicial evidence.
Regarding Luna’s theory, we find the evidence with respect to Leonard highly unreliable and оf little probative value. His life style has been previously described and there is no indication that it changed after the date of the crime. There is no evidence of any sudden influx of wealth from the proceeds of the crime. There is no evidence of any connection between Leonard and Thomas, only baseless innuendo. As to the circumstances of Thomas, we agree with the trial court’s determination that he had an alibi. Taking the evidence as we evaluate it, not as trial counsel represented it in his affidavit, we agree with the decision of the trial court:
There is considerable lack of motivation, opportunity or facts to support either of these individuals as possibly committing the crime; therеfore, the court feels that it is appropriate to exclude this evidence to avoid confusion and unduly tying up the court process and to insure that the jury is able to focus on the facts of the case itself without what appears to this court to be irrelevant evidence concerning other relationships or facts that exist, which are not pertinent to the incident in question.
The trial court did not commit error by excluding the third-party perpetrator evidence offered by Luna.
Luna’s second issue involves the alleged disappearance of certain glass particles which he claims to have been exculpatory. Under United States v. Agurs,
The State argues that the issue was not preserved for appeal. On the record, as noted above, that would clearly have been true. Additionally, we have examined the
4. Misconduct of the prоsecutor. The very particles of glass on which the jury based their verdict were lost by the prosecutor and were not available for testing by the defense. Denying that other particles of glass furnished to the defense were the same particles tested by the prosecution.
In support of the misconduct claim, Luna cites United States v. Kennedy,
In his reply brief, defense counsel apparently concedes that the issue was not properly raised but argues that such an argument is an attempt to railroad his valid assertion of error. Counsel cites us to a Wisconsin case supporting the proposition that constitutional issues may be raised for the first time on appeal when it is in the interest of justice. He apparently overlooks our case authority to the contrary embodied in State v. Hermandson,
Nor do we deem it appropriate to consider the issue on the plain error rule. See SDCL 23A-44-15. The record discloses a considerable debate between the FBI agent and the defense expert on the proper means of preserving the evidence in question. It appears as equally possible that the defense expert may have lost the shards by his method of handling as that the FBI Lab did not properly preserve them. There is, certainly no evidence that anyone else had any responsibility for any loss.
In the third issue, Luna attacks the admission into evidence of certain physical evidence seized in his home and in his van on the purported authority of his written consent. The catalog of Fourth Amendment violations which he claims includes force or coercive surroundings, promises, threats, verbal abuse and other illegal police actions. He further contends that his mental and emotional state of mind negated the voluntariness of the signed consent and furthermore that he was not properly .advised or “Mirandized” prior to his signing the consent.
Luna acknowledges that suppression of the evidence was sought in a pretrial motion that was withdrawn by his counsel prior to the hearing thereon. Luna now claims that this action deprived him of his constitutional right to effective assistance of counsel and in any event the admission of the evidence was plain error.
With respect to the first argument, we again point out that competency of counsel will not be reviewed on direct appeal in ordinary circumstances. Anderson v. State,
Attorneys are presumed competent and a defendant who alleges ineffective assistance carries a heavy burden. High Elk v. State,
The fоurth issue raised on this appeal is whether the trial court committed reversible error by refusing to change the venue. Luna contends that pretrial publicity fatally impaired his constitutional right to a fair trial. U.S. Const. Amend. VI. Luna made four motions for a change of venue.
The law presumes that a defendant can receive a fair trial in the county in which the offense is committed. State v. Brandenburg,
Pretrial publicity alone is not еnough to deny a fair trial or, in other words, to warrant a change in venue. State v. Reed,
State refers to the court’s juror questionnaire in which potential jurors were asked: “Do you know of any reason why you could not serve as a fair and impartial juror in the particular case: the State of South Dakota v. George G. Luna? If yes, explain in detail:_” Seventy-six jurors were polled. Seventy-two percent answered “no”; eighty-nine percent claimed no opinion on Luna’s guilt or innocence; and fifteen percent stated that they could not be fair or impartial for reasons other than an opinion of guilt.
Defendant used all of his peremptory challenges and does not claim that the trial court failed to remove any jurors that Luna wanted removed for cause. The trial court stated that only twelve of ninety-two potential jurors had a predetermined opinion and there is no indication that any of the twelve served on the jury.
In support of his claim of prejudice, Luna presented to the trial court, by motion for new trial, the affidavit of one of the jurors who sat on the case, which claimed that “those in favor of conviction referred to media accounts and indicated that their minds were made up prior to trial.” SDCL 19-14-7 provides, in pertinent part:
Except as otherwise provided by statute, upon an inquiry into the validity of a verdict or indictment a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations ... except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention!].]
Luna relies on this statute to claim that media coverage, absorbed before the jurors were impaneled, constitutes “extraneous prejudicial information.” This court has held that jurors’ pretrial bias cannot form the basis for attacking a verdict under SDCL 19-17-7. State v. Finney,
The trial court denied this portion of the motion for new trial based on its observation of the jurors during voir dire and trial; finding that the jurors were not predisposed to convict Luna. It pointed out that the jury deliberated eight hours before taking their initial vote.
We next examine Luna’s fifth issue, whether he was denied equal protection by failure of State to provide a preliminary hearing. As previously noted, Luna was indicted by a Pennington County Grand Jury. He moved the trial court to grant a preliminary hearing, which motion was denied. He now asserts this is error of constitutional magnitude based on a develop
The seminal case on this unique theory is Hawkins v. Superior Court of San Francisco,
We agree with the reasoning of the Clark opinion and reject the “wholly novel proposition” of a Hawkins classification. See Freeland,
The Fourteenth Amendment Equal Protection Clause prohibits selected enforcement ‘based upon an unjustifiable standard such as race, religion, or other arbitrary classification_to avoid prosecution for a criminal offense on equal protection grounds, a defendant must show that the government exercised selective enforcement of the law upon an invidious discriminatory basis.’
Like the defendant in Secrest, Luna merely points to a possibility of selective enforcement as the basis for his claim of violation of equal protection. Since the conscious exercise of selective enforcement is not in itself a constitutional violation, Secrest,
We affirm the action of the trial court in denying the preliminary hearing.
Finally, Luna contends that by admitting into evidence a considerable amount of hearsay testimony, in which both victims were the declarants, he was deprived of his constitutional right of confrontation. U.S. Const. Amend VI; S.D. Const. art. VI, § 7. At the time of the crime, Lynn and Luna were engaged in a divorce proceeding which was apparently quite hotly contested, particularly on the issue of custody of their only child.
The State gave notice of intent to use hearsay testimony, Luna challenged its admissibility, and a pretrial hearing was held wherein the trial court heard the testimony of the proposed witnesses. The evidence was in various forms: affidavits in Lynn’s divorce proceеdings, statements made to
A statement not specifically covered by any of §§ 19-16-30 to 19-16-34, inclusive, but having equivalent circumstantial guarantees оf trustworthiness, is not excluded by § 19-16-4 if the declarant is unavailable as a witness and if the court determines that
(1) the statement is offered as evidence of a material fact;
(2) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
(3) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
However, a statement may not be admitted under this section unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.
In State v. McCafferty,
‘Reflecting [the Confrontation Clause’s] underlying purpose to augment accuracy in the fact-finding process by insuring the defendant an effective means to test adverse evidence, the clause countenances only hearsay marked with such trustworthiness that “there is no material department from the reason of the general rule.” ... The focus of the court’s concern is then to insure that there are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant, ... and to afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement[.]’
In McCafferty we further stated “ ‘the indicia of reliability’ referred to by the Roberts Court and the ‘circumstantial guarantees of trustworthiness’ language in the residual exception to the hearsay rule are synonymous.”
The bulk of the evidence before the trial court on the issue of admissibility was in the form of testimony of various witnesses who were relating the declarations. In this instance, we hold that the clearly erroneous rule applies as our scope of review. See SDCL 15-6-52(a). We do not find that the trial court was clearly erroneous in admitting the hearsay testimony.
Accordingly, Luna’s convictions are affirmed.
Notes
. Counsel at trial does not represent Luna on appeal.
. In summarizing the issues in Chambers v. Mississippi,
. The motion was a general motion for production of exculpatory evidence per Brady v. Maryland,
Dissenting Opinion
(dissenting).
For the reasons expressed below, I respectfully dissent.
The criminally accused’s right to proffer a defense is fundamental. See Chambers v. Mississippi,
[I]f the evidence [offered by the accused] is in truth calculated to cause the jury to doubt, the court should not attempt to decide for the jury that this doubt is purely speculative and fantastic but should afford the accused every opportunity to create that doubt. A contrary rule is unfair to a really innocent accused.
1A Wigmore, Evidence § 139, at 1724 (Tillers rev. 1983). Perry v. Rushen, cited in the majority opinion,
In the case at bar, Luna, the criminally accused, sought to present evidence— present a defense — that another, a third-party perpetrator, committed the murders. This evidence, as noted in the majority opinion, is that: (1) Leonard, a violent drunk, entered a store with blood on his hands and shirt, shortly after the crime and a half block therefrom; that Leonard confessed to a drinking companion that he was a killer for hire and had committed the murders; and that two metal bars had disappeared from the residence of the person he was staying with; (2) that Thomas, a relative of the victims and a beneficiary of a life insurance policy and a taker under a will, violently threatened one of the victims 18 months prior to the сrime; had not seen the victims for a year prior to the murders and then suddenly showed up at the crime scene shortly after the bodies were discovered. The coroner fixed the time of the victims’ death at or about 2:30 a.m.; Leonard was seen in the convenience store at or about 2:30 a.m. with blood on his hands. If the jurors wish to reject this evidence, they may do so. The credibility, under these circumstances, was exclusively within the province of the jury and not the trial court. Even under the South Dakota evidentiary rule, concerning the admission of evidence that a third party has confessed to the crime, as found in SDCL 19-16-32 (FRE 804(b)(3)), there appears to be sufficient evidence to establish “corroborating circumstances.” That statute statеs, inter alia, that “a statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.” The immediate neighborhood — almost the crime scene itself — the blood, the missing metal bars, the wildness and anger displayed at the convenience store, are all corroborating circumstances of the third-party perpetrator confession. It was certainly enough to place it before the jury and let the jury decide if it was true or false.
The trial court, however, excluded all of this evidence because it determined, inter alia, that it was inconsistent with Luna’s theoriеs of Leonard’s and/or Thomas’ guilt. The trial court, however, did not specifically determine that such evidence was irrelevant, SDCL 19-12-1, or if relevant, that its probative value was “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” SDCL 19-12-3. This evidence was relevant evidence, not excludable under SDCL 19-12-3, supported by the law and had more than a tenuous foundation; thus, Luna was entitled to have the jury consider his theory of the defense. Grimes. The trial court, however, determined the credibility and consistency of Luna’s defense and withheld the proffered evidence from the jury. This violated Luna’s due рrocess rights to present a defense in a fair trial. As this issue is dispositive, I do not address the other claimed errors below. Repeatedly, appellant’s counsel advocated before this Court that the trial court had emasculated the defendant’s defense. Under the above authorities, I am compelled to agree. I therefore would reverse and remand for retrial which would permit the defendant to defend upon the basis that a third-party perpetrator was involved. Let, then, the jury, not the trial court, determine the facts. In my opinion, the exclusion of this evidence, based upon rationale such as “to avoid confusion and unduly tying up the court process and to insure that the jury is able to focus on the facts of the case itself ...,” as expressed by the trial court, is vaulting the orderly administration of justice and efficiency over cherished constitutional protections.