*1 inescapable Statutory 2A When there is conflict between Sutherland Construction (5th Ed); § specific Bruening, 46.05 Luze v. general provisions terms or See 414,176 (1920); Mudie, statute, S.D. N.W. State v. specific prevail. will If con- 41,115 (1908). 22 S.D. N.W. 107 provisions in flict between the same act is way, provision resolvable no other the last case, Arguello’s the time lines for point arrangement offenses, convictions2, within the text of sentencing given act effect. are: degree burglary Third degree robbery First (Judge Tice) (Judge Fitzgerald) 10,1993 13,1994 April Offense: March 4,1993 30,1994 Conviction: October November 25,1993 Sentence: October sentence) (suspended imposition of (a.m.) (p.m.)
Sentence: December
December
(2
(15
years
years;
consecutive to
no mention of
imposed
sentence
day
earlier in
whether concurrent or
consecutive)
robbery)
22-6-6.1, Judge
13] Under SDCL
Tice
[¶
GILBERTSON, JJ., participating. judgment meanings. independently and sentence has two The technical "Conviction” guilty. guilty plea legal meaning verdict of or a is the final consummation of 1980). (S.D. including Dassinger, prosecution against N.W.2d 926 This the accused ordinary legal pursuant apply the judgment rendered to an Court has chosen to or sentence interpreting guilt. ordinary legal when stat Its mean definition of conviction ascertainment ing utes, Id., guilt prior case. to and and we do so is the establishment of *3 Barnett, Gen., Atty. Craig
Mark W. M. Eichstadt, Wald, Gary Camp- Sherri Sundem Pierre, bell, Attys. Gen., plaintiff for Asst. appellee. Nesson, of Butler and Michael J. Butler Falls, Gienapp R. of Arne- Sioux and David Blair, son, Issenhuth, Madison, Gienapp & appellant. for defendant and MILLER, Chief Justice. chal- appeal, In this Donald Moeller first-degree rape and
lenges his conviction of first-degree murder. He was sentenced to they tried for rape with crimes must be what prison on the twenty-five years did, they are. allegedly for who United charge. a sentence of death received He (9th Hodges, 770 F.2d States the murder conviction.1 injection lethal for Cir.1985). Ap- The Ninth Circuit Court of involves, among other appeal [¶ 2] This peals has observed: issues, death challenge to South Dakota’s system, may an individual Under our As set penalty reenacted which was herein, only the offense of which he convicted uphold forth in we detail later charged, not for other unrelated constitutionality penalty state’s of this death may he have criminal acts which commit- reverse convictions statutes. We Therefore, guilt or innocence of remand, ted. prior bad acts because evidence be established evi- the accused must pre- into improperly received evidence and particular dence offense receiving trial. relevant vented from a fair *4 tried, being by showing that not defendant FACTS wrongdoing. acts of engaged has in other (Becky) [¶ was a 3] Rebecca O’Connell despicable per- Id. No how vile or matter nine-year-old girl who lived with her mother be, may is appear son to he or she entitled to Falls, stepfather and in Sioux South Dakota. provisions clearly a fair trial. Constitutional parents her was last seen on provide may only be that individuals convict- 8,May when evening of she left their they ed for crimes with which are candy nearby buy home convenience to subject to charged; they may not be criminal night, Becky’s store. that mother and Later merely they conviction because have a de- stepfather police reported to that she was background. testable abhorrent Id. Our following missing. morning, two men system justice entire would deteriorate if body found in a wooded area in Lincoln her jealously protect we did these constitu- An County, autopsy suggest- Dakota. South safeguards tional for all citizens. raped, vaginally anally, ed and she had been neck, knife wounds and had sustained to her A. Facts back, shoulder, chest, hip, A and hands. 8] The filed a motion to [¶ introduce opined that pathologist she died as a forensic testimony bad from three acts individu- jugular result a cut to the vein of her neck. attempted als who that Moeller claimed to investigation Following Becky’s [¶ 4] sexually threatening while assault them them death, Donald Moeller testimony with a knife. Their summarized degree, rape felony in the first murder as follows. premeditated degree, and murder first Testimony Carolyn Incident. jury degree. in the Moel- first convicted January Carolyn Beshaw: when ler on counts. As the murder all three twenty-one years old, Beshaw was she convictions, a sen- recommended Speedy worked at the Car Wash in Sioux tence and the court entered a of death Falls, morning South Dakota. On the Additional facts will warrant of execution. January way on her Beshaw was they specific as be recited herein relate to work. stopped stop- She had her car at the issues. light near Axtell Park in Sioux Falls. Besh- ISSUE out, aw yell, get heard a women “Get out of court Did the trial abuse its discre- my car.” She heard a door slam. Then admitting “prior bad acts” evi- tion in man, whom she later identified Donald involving three sexual assaults al- dence Moeller, pushing was on the door handle legedly Moeller in committed passenger side of her car. Moeller was a 1979,and 1990? stranger opened to her. He the door and country it is In this a settled and slid into holding her car. He a black- persons charged that principle handled folding fundamental knife with a three-inch blade. serving currently Moeller, a life sentence unrelated Moeller to this case. See State v. parole (S.D.1994). possibility of crimes are without poked leg very sharp. Moeller Beshaw’s with the knife by slicing He demonstrated said, Eighth go “Go down East through dinner, paper with the knife. After straight going.” keep complied. Beshaw gave glasses Moeller Moore two of wine. got Beshaw’s car stalled and she and Moeller Then Moeller made a bet that Moore $100 out of the ear. he held the knife her As glasses could not drink five of winе two ribs, Beshaw lifted the hood and checked the did, pay minutes. Moore but Moeller did not got carburetor. Then she and Moeller back money. him the Moeller then offered to take passenger’s into car on side. Moeller Gillette, him Wyoming, where he could driving told her straight, to continue which help repair Moeller a car. Moeller insisted cornfield, they upon she did. When came permission Moore receive written from hip he knife held the at her and told her to his father. Moore’s father came to Moeller’s pants take her off. car She turned the off note, giving permission trailer with a his son keys and threw the out the window. When trip. to take the Moore’s father returned to clothes, she refused remove her his trailer. Moore and Moeller resumed said, don’t, you you.” “If I’ll kill Beshaw playing complained cards. When Moore me, replied, kill “You will have to because I trailer, the heat in the Moeller let him use slip won’t do it.” she tried to out When clothes, his robe. Moore all removed his car, her, grabbed he held the knife to her underwear, except put for his on the neck, said, you.” it I’ll kill “Do She *5 place robe. Moeller instructed Moore to a responded, “You’llhave to kill me because I jar nightstand you Vaseline on the in Moeller’s going anybody ain’t to do it for or else.” just bedroom, Shaking, stating explain Moeller sat and stared. He he would the need put pocket. folded the knife and it in his He for the Vaseline later. Then Moeller asked proceeded to tell Beshaw about his life. She ejaculated, Moore if he had ever Moore and keys get retrieved her and told Moeller to replied that he had not. Moeller offered to get out of her car. Moeller told her to in the ejaculate. bet Moore that he could not $50 pointed pocket. car and at the knife in his Moore refused the bet. Moeller then bet work, He told her to to drive so she drove to him escape that he could not if Moeller $50 Speedy Car Wash. He instructed her to tied his hands behind his back. Moeller tied tell her boss she had had a flat tire. He placed Moore’s hands behind his back and a warned Beshaw that she could over look her neck, dog chain around his while Moore knelt shoulder and see him or he could be tied, on the bed. Moore Once Moeller road, up back seat of her car. He walked said, you.” “I want to have sex with Moore saying he was headed to a friend’s house. refused and Moeller stuck the buck knife to Beshaw told her boss she had had a flat tire. said, Moore’s throat “You and either have Then, later, forty-five minutes she told him choice, you can oral with do sex me or let me about the man with the knife. - you through your make with have sex Testimony 1979 Incident. of Kenneth you.” I’ll kill rear end or Moore asked Moel- Moore: In Moeller next door to lived dog ler to remove the chain so he could Moore, thirteen, age in a trail- Kenneth then breathe. Moeller laid his knife down and park Wright, Wyoming. er Moore had dog removed the chain from Moore’s neck. way on to waved Moeller few times his jumped Moore then off the bed and ran for 10, 1979, February Moore no- school. On grabbed the front door. Moeller the knife working car. ticed Moeller outside on his long quar- and made a cut two inches and a mechanics, Moore was interested in car and leg. deep ter inch in Moore’s As Moore up a he and Moeller struck conversation. door, struggled open ap- to Moeller trailer, Moeller invited Moore into his where proached with the knife. Moore slammed they played talked cards. Moore’s fa- the door and fell into the snow. permission gave ther him to eat dinner at grabbed legs, but Moeller Moore’s waist Moeller’s home. Moore noticed a black buck escaped into trailer. Moore told Moore his lying knife on the table in Moeller’s kitchen. father, to kill knife, his “That son-of-a-bitch tried began open Moore Moel- When play ler him not to with it because it was me.” told first, get you her?” Testimony Tracy going think is cut Incident. War- or December of as grabbed
ner: In November the knife and was cut Warner gave when he Tracy him, met Moeller away. Warner “I’m pulled Moeller it She told acquaintance a ride to of hers Warner’s going cops.” nudged past him to call the She again Moeller until home. did not see She way her and went out the back door. On January p.m. around 10:00 1990. At out, said, you Moeller “I didn’t know were date, a knock at her door. Warner heard going get ran to the inter- cut.” Warner in,” yelling, she turned to see After “Come flagged down a car. Concerned section remembered Moeller inside her door. She daughter, for her she returned to the house but could not remember his Moeller’s face driveway. driving saw Moeller out of her if name. Moeller sat down and asked War- during slept Her child undisturbed the inci- out, go drink or dance. She ner liked to dent. if replied, “No.” asked he could come B. [¶ 9] Discussion time, could, him and she told he back another long only wanted to watch television. as he trial, sup- Moeller moved to [¶ 10] Prior to night, p.m. At that same War- around 11:00 Moore, Beshaw, press testimony tap ner heard a on the door and then some- hearing, Warner. After a court held He if one entered. It was Moeller. asked testimony admissible the State’s case- her, he could watch television and she ultimately in-chief. The court concluded that okay. brought it was Moeller had said evidence, jury, if believed extrinsic whiskey Daniels with him and bottle of Jack method, plan was relevant to show common handed a soft drink to Warner. He walked scheme, intent, identity, and motive. kitchen, living room towards the out justifying the relevance of the other acts living then returned to the room with a knife. evidence, identify the trial court seemed knife, folding It was a with three and a half five common marks between the crimes inch blade and a brown handle. Moeller ran *6 “prior charged in the indictment and the bad breasts, up the blade and down Warner’s (1) acquaintanceship acts”: Moeller had some saying up your going or I’m to cut “Lift shirt (2) victims; knowledge or of all the with his you’re you. going to me or to Show them (3) sex; object always to he was obtain was get stop, cut.” told him to he ran When she willing to threaten reluctant victims with up the flat side of the blade and down her (4) knife; pocket buck-style or he committed arm, knife, saying, “That’s the side of the do general neighbor- the acts within his own edge?” Then you want to feel the he ran the hood; (5) “mostly op- his attacks were and up again. knife her breasts War- and down portunistic” opposed planned to attacks responded, you stop my ner “If don’t —If identity perpe- to baby up going I’m intended conceal the wakes because of this shit said, pissed.” you to be “Who do trator.2 The court also concluded the support minority opin- the that she would be killed or otherwise threatened The record does Likewise, ion's assertion that the trial court identified ten prior her her with a knife death. charged common marks between the crimes and finding the trial court's that "in each instance the prior of ten the bad acts. list similarities Defendant committed the act within his own Findings identified in the court's Fact general neighborhood” Becky's is not true in among Law dealt with similarities Conclusions of Becky’s rape The evidence indicated that case. acts, among prior bad not similarities and murder occurred in a secluded area near prior bad acts and the crimes committed Alvin, Lake some fourteen miles from Moeller’s Becky. city home in the of Sioux Falls. the trial court Even if we assume intended this finding The trial court's that each act involved catalogue list as a of the common factors be- folding approximately knife same or acts, charged prior tween the crimes many and the bad length apply similar blade also does not pres- "common marks” are not of the ten (The Becky’s essentially case. court re- instance, Becky’s ent in case. For one of the ten finding stated this three times in the list of "ten” each instance the victim "[i]n similarities is was similarities). opinion, As noted later in this there identify the Defendant.” able Becky's proving that was no evidence assailant killed and was unable to name her assailant. folding buck-style knife or that the used mark listed the trial Another common court is length length of the blade was similar to the that Moeller threatened to kill his victims. There Becky’s is no evidence that assailant warned her the knives used to assault the other acts victims. tent, preparation, plan, knowledge, not sub- probative value of the evidence was identi- stantially outweighed by prejudicial ty, effect. its or absence of mistake or accident. trial, each of the other acts wit- At before statute, prior Under the bad acts evidence is testified, the court instructed nesses that, merely not admissible show because testimony only be used to could a defendant committed a similar offense on scheme, method, plan in- common show occasion, propensity another he has a to com- tent, identity motive. The trial court 19-12-5; charged. mit the offense SDCL jury’s prior to the reiterated this instruction Steele, 668 n. guilt deliberations. (S.D.1994); Strong, John W. McCormick on judge abused his 11] Moeller asserts (4th 1992); § Evidence ed. J. testimony admitting discretion Berger, M. Weinstein & Weinstein’s Evi- Beshaw, Moore, First, con- he Warner. ¶ (1992). dence, at 404-26 There are 404[04] between the tends dissimilarities policy sound and constitutional reasons for charged were so bad acts and the offenses this rule. that the great as to defeat the State’s claim prove identity. оther acts were relevant to Introduction of evidence that the defen- He notes that the victims were of different dant committed other crimes and unwhole- ages gender of the crimes and the details may jurors some acts lead to return a decidedly were different. He also asserts guilty verdict of for reasons other than that some of the common marks identified finding alleged all the elements of Second, the trial court were in fact absent. beyond Al- crime a reasonable doubt. argues he that the 1973 and 1979 incidents though guilt reasonable doubt exists were too remote to be relevant occasion, jury might conclude the offenses, charged in 1990. which occurred man,” defendant is a “bad who deserves Finally, probative value of the he claims the punishment regardless of his innocence of substantially outweighed by evidence was imprison- the crime and warrants defendant, unfairly prejudicing danger of prevent ment future maleficent acts. issues, confusing misleading jury. policy Such results defeat the letter and Generally, evidence of crimes or acts mandating criminal substantive law convic- than the ones with which the defendant upon non-vague tion based concrete stat- inadmissible, charged are unless certain ute; instead, jurors have found the defen- 19-12-5; exceptions apply. SDCL upon past unsavory guilty dant based acts *7 (S.D.1986). Thomas, 381 N.W.2d necessarily violating any criminal without provides: 19-12-5 Alternatively, SDCL process. statute in the crimes, just wrongs, improperly, upon learning of other or as that the Evidence prove or acts is not admissible to the charac- accused committed other crimes jurors person wrongs, might in order show that he infer that the defen- ter of a to conformity may, propensity in therewith. It dant has a to commit crimes acted however, purposes, probably crime be admissible for other committed this as motive, proof opportunity, charged. in- such as similarities, folding factor the trial court had two Another common listed ten that Moeller opportunis- possession attack is each instance the was knives in his when he was arrested "[i]n murder, opposed planned Becky’s prove signature to a attack with the intent for tic as does identity perpetrator.” the crimes to conceal method common to the other acts and However, argued specifically jury charged. simply the State It shows that Moeller carried Becky assaulting identity. Moeller killed to conceal his knives those he used in that similar to Beshaw, finding type trial court's that "in each instance The Warner Moore. Since passing knowledge Becky had a or ac- knife to never deter- the Defendant used murder was mined, history quaintance the victim” also fails. One of the the critical link between Moeller's stranger Becky's missing. victims was a to Moeller and other acts of assaults and death is knowledge acquaintanceship only similarity that remains in this “list of ten” is Moeller's Becky highly questionable. object is that the in each instance was to obtain all, eight opinion, of the "ten” common marks listed sex. later in this In For reasons discussed findings finding the court’s and conclusions are ab- this is warrant admission in insufficient to Becky's еntry case. Another in the list of
sent in
of other acts evidence.
(S.D.
Werner,
kill,
directly
allegation
N.W.2d
to
relevant to
State v.
1992) (Amundson, J., concurring
part
premeditated
him.
murder leveled
Patterson,
(quoting
Evi
dissenting
part)
related
While the bad acts evidence
Admissibility
Prior Bad Acts:
Un
dence of
case,
probative
material
issues in the
Rules,
Baylor.
L.Rev.
der the Federal
the evidence was minimal. When
value of
(1986)).
332-33
seeking
prove identity through
a common
19-12-5, the
13] Under SDCL
method,
probative
value of
criminal
two-step analysis
trial court must follow a
directly
bad acts evidence is
related to the
admissibility
ruling
of other acts
when
on
factual
between the other acts
similarities
evidence:
charged
and the
offenses. The common
purpose
offering
1.
Is the intended
operandi” exception
“modus
is
method or
evidence relevant
the other acts
used where two or more crimes exhibit
(factual
some material issue
the case
pattern “that is so distinctive that
similar
relevancy), and
separate
recognizable
crimes are
as the
probative
value of the evidence
Is
wrongdoer.”
of the same
handiwork
substantially outweighed
preju-
its
(S.D.
Champagne, 422 N.W.2d
(logical relevancy).
dicial effect
1988).
inference
that
“[s]ince
is
Steele,
at
review the
667. We
distinctively
defendant acted
similar
occasion,
trial court’s decision to admit such evidence
likely
it more
manner on another
standard.
(rather
else)
under
the abuse of discretion
act on
he
than someone
did the
(S.D.
Ondricek,
charged
crime.”
the occasion of
Id.
667).
1995)
Steele,
(citing
510 N.W.2d at
Here,
the similarities between the oth
alleged
against Becky
crimes
er acts and
case,
the trial court
unremarkable,
slight
are
and the dis
so
two-part
test was satisfied.
ruled
great,
probative
similarities are so
that the
the other
The court instructed the
negligible.
value of the extrinsic evidence is
testimony
proof
acts
could be used as
method,
scheme,
intent,
plan or
common
begin by noting
[¶ We
one of the com-
identity, and motive. All of these issues
mon marks identified
the trial court is
circumstantial
were material to
State’s
acquain-
absent. Moeller did not have an
case.
tanceship
knowledge
with or
of all the vic-
Moeller’s defense rested
his as-
tims. Beshaw testified Moeller was a
rape
sertion that he did not
and murder
stranger
allegedly
he
time
assaulted
Therefore,
Becky
identity
his
O’Connell.
her,
testify
any prior
and she did not
clearly in issue. Further-
the assailant was
and Moeller.
connection between herself
more,
identity exception to the extrinsic
finding
The trial court’s
that Moeller had an
closely
evidence
related to other ex-
rule is
acquaintanceship
knowledge
rule;
ceptions
showing that
contained in the
highly questionable.
also
The trial court
similarity
motive
exists in method or
be-
shortly
Becky’s disappear-
found that
before
offense,
tween the other acts and the
*8
ance, she and Moeller were in a convenience
charged
or that the other acts and the
of-
approximately
store at
the same time. The
scheme,
part
larger plan
fense were
of a
trial court also found that Moeller and
identify
perpe-
tends to
the defendant as
lived within blocks of each other in the same
Evidence, supra,
trator. McCormick on
general neighborhood in North Sioux Falls.
808;
§
B.
Christopher
190 at
Mueller &
meager
hardly supports the
This
evidence
Kirkpatrick,
Laird C.
Federal Evidence
acquainted
conclusion that Moeller was
(2nd
1994).
§ 114 at 677-78
ed
See also
Becky.
or knew of
Thomas,
Hence,
length against Becky of the blade used weapon. involved the use of a knife as a similar to the three or three and one-half- Moeller was not identified as the assailant in inch blade used in the assaults of Beshaw any cases, though minority these even minority and Warner. opinion points opinion would have us believe that the use of testimony pathologist, of a forensic Dr. a knife “signature.” is Moeller’s Additional Randall, concerning a four-inch chest wound ly, only we can surmise about the countless and an indication that the knife blade had murder, rape, involving assault cases making been inserted to the hilt use of knives that are never tried before a states, minority “Clearly wound. The ... jury, Court, appealed published to this the blade did not length exceed four inches in reporter. Focusing only reported cases substantially and could not have been shorter is an unrealistic and unscientific means of However, than that.” goes this conclusion deciding whether folding the use of a beyond far the evidence in the record. Dr. buck-style unique knife is a characteristic. Randall testified as follows: Importantly, regarded other courts have you Prosecutor Masten: Were able to esti- use of a knife as insufficient to establish a roughly mate length of the blade that operandi, modus even when considered to would have caused that wound? gether with other accompa identifiers like an mentioned, Dr. Randall: No. As I nying verbal threat. See United States v. depth of the wound was four inches but a Pisari, (1st Cir.1981) (in 636 F.2d produced shorter blade could have knife, the absence of a similar or distinctive compression due to the of the chest. So single fact that “one invokes the threat of you really any can’t make estimation of using a knife falls far short of a sufficient length
the exact (Emphasis the blade. signature upon or trademark posit which to supplied.) identity”); Connors, an inference People cross-examination, On again Dr. Ill.App.3d 771, 776, Randall tes- 37 Ill.Dec. (1980) (the tified that he was unable to general establish the N.E.2d similari length of the robbery blade: gun night ties of with a near the
475
(11)
always left
Apparently, the assailant
like
coupled
ear
with statements
victim’s
taking objects from the resi-
without
you
you”
“If
move
me shoot
“Don’t make
dence.
general,
to crimes
I’ll shoot” are “common
as
as to earmark each
(12)
and not so distinctive
always placed the knife
The assailant
perpetrator”); White
the conduct of the same
perpetrate
throat
the victim’s
Commonwealth,
366,
Va.App.
388 S.E.2d
9
v.
the crime.
(1990)
645,
(displaying a knife to a victim
647
(13)
always threatened to
The assailant
signature),
as to sеrve as a
is not so unusual
comply
kill the victim if she did not
overruled,
reh’g
grounds
en
on other
after
with his desires.
Commonwealth,
banc,
12 Va.
Lavinder v.
(14)
injured by
all
The victims were
910,
(1991);
1003,
911
Foster
App.
407 S.E.2d
knife.
Commomwealth,
316,
Va.App.
362 S.E.2d
v.
5
The numerous and
Id.
(1) the marked dissimilari rape-type cases. [¶28] All were the other acts and ties between (2) young, unattached women. All involved defy any signature method offenses (3) Martin. All victims knew Becky’s identify assailant. would (4) in the victim’s resi- rapes All occurred prove either allowing bad acts evidence dence. intent, specific our cases have identity or (5) surprised them as- All victims were important factors: routinely on two focused (2) (1) sailant. crimes. similar similar victims 298, Christopherson, 482 N.W.2d See (6) type always some wore The assailant Werner, (S.D.1992); N.W.2d at 482 covering. facial Perkins, 289-90; 444 N.W.2d 38 v. State (7) way always forced his The assailant Titus, (S.D.1989); N.W.2d v. 426 State into the residence. Thomas, (S.D.1988); at 236- 381 N.W.2d (8) always used a kitchen The assailant (S.D. Roden, 37; v. perpetrate the crime. knife to Means, 1986); (9) always from the vic- The knife came Thomas, (S.D.1985). As we observed tim’s kitchen. Williams, People (quoting N.W.2d at 236 Cal.Rptr. Cal.App.3d (10) always left the knife The assailant (1981)): fleeing. when behind *11 of other having
“[E]vidence sex offenses apparent What is that Defendant draws distinctive, similar among characteristics to those no distinction his victims other than charged generally opportunity admissible on the is- to commit a sexual assault. identity sue of defendant’s if such offenses The location of the crimes and Moel- time, are too in sufficiently remote are approach ler’s very to the victims is also charged, similar to the and are offense different. Moeller assaulted Beshaw her upon persons сommitted similar According car. testimony to Beshaw’s prosecuting (Emphasis sup- witness.” trial, he entered her vehicle uninvited and plied.) forced her to drive to a secluded area at contrast, knife-point. In Moore’s assault oc- case, In this [¶29] the victims and the curred Moeller’s home. Rather than im- decidedly crimes are Becky different. awas mediately knife, threatening Moore with a nine-year-old girl. body The condition of her Moeller invited him into his home and even presence and the suggested of semen permission secured his father’s for him to raped vaginally she was anally She was stay night. He used artifice rather than brutally also knifed and sustained several get him large quantities threats to to drink trying wounds to her hands to fend off her liquor having and to submit to his hands tied. contrast, attacker. two of the other acts only pulled He a knife on Moore after the women, twenty-one victims were adult each boy engage refused to in sexual relations years age'. The third victim was a thir- with him. teen-year-old boy. bad acts in- only attempts contact, volved Moeller’s assault of at sexual Warner took with place in her home. He vaginal penetration. immediately no did not Except or anal for a threaten her with a single knife as with leg hand, cut to Beshaw nor Moore’s and Warner’s attempt did he to trick her or intoxicate her any physical injuries did not inflict Instead, as with paid Moore. he a social visit these victims. Moeller’s demands for sex- and, securing permission after to return an- gratification ual were thwarted when the as- time, came back later that evening to sault victims showed resistance to his commit the assault. threats. case, In Becky’s State theorized that [¶ Moeller’s relationship 30] to each of the Becky willingly accepted a ride in Moeller’s very trial, victims is also different. At pickup to avoid the rain.3 pur- Yet Moeller’s presented additional sug- evidence to ported offer of a ride does not reflect a gest acquainted Moeller was Becky. method similar to those used in his earlier According State, to one witness for the Moel- Beshaw, crimes. Unlike his assault of Moel- gave Becky toy ler neighborhood at a rum- alleged ler’s Becky attack did not mage sharply sale. Moeller disputed any involve immediate force. Nor did he secure claim that he knew presented parent’s permission her to visit his home or strong indicating evidence pres- he was not ply her with alcohol and bets as he did with yard ent at the sale. if accept Even we preface Moore. Nor did he the attack with a State’s contention that Becky, Moeller knew visit, social inas Warner’s case. It is abun-
that does not create a similarity between dantly clear that no operandi modus emerges Becky and the other victims. Moeller was a disparate from these crimes. stranger Beshaw, neighbor of Moore’s inability to articulate similarities and a acquaintance social of Warner’s. between the other acts and the of- nothing There is disparate these relation- apparent fenses is closing argu- State’s ships suggests operandi.” a “modus jury: ment to the Even State’s brief to this Court seеms to acknowledge that there is no you identifiable sim- When think about you these crimes ilarity among the victims. The State writes: have to look at the crime scene. Where premised 3. The State this claim on the absence was forced into a vehicle. might of bruises suggest Becky or marks which *12 operandi the to be admitted to show modus things happen? What are these did (hence identity), admitting crimes to other time do go into this? What factors that merely they plan because show or scheme have to com- happen? You these crimes charged to the of- bear some resemblance personality, person the pare the offender’s cannot be defended. fense prod- this crime a doing this. Was that is Impulse? Acting opportunity? Particularly other crimes or acts uct of an when offense, planned? charged How fantasy? long was it occurred before out a Or theory they admitting victim? on the that approach his them does the offender a thin fiction jump prove plan Is it often smacks of Does he them? Con them? ahout, in merely disguises what is substance think that surprise or blitz? You inference, general propensity to, the forbidden you’re your experiences and entitled not be allowed. daily which should you in terms of the what know about life, you know think about what affairs of § Kirkpatrick, supra, 113 at 1 Mueller & of those type of crime terms about this Imwinkelried, (quoting Edward J. con, surprise blitz. You categories: A or (1991)). § Uncharged Misconduct 3:21 interesting you look at something when see bad probative value [¶ 36] Mr. Moeller. namely purposes, to for other acts evidence among motive, ques- highly is also concrete similarities show intent or Unable to define offenses, rape charge, forensic tionable. As to the acts and the the other indicating vaginal pen- jury any guid- anal and give the clear evidence failed to in nine- presence and the of semen the other etration concerning the relevance of ance sufficiently Becky’s body established year-old in the ease. Without legitimate issues acts to rape. State, general intent to commit the assailant’s from the compelling direction more id., § facts also estab- 108 at 605. These See certainly rested on the jury’s almost verdict “engaged was perpetrator that the lished Moeller was inference that because forbidden required perpetration rape” ... as assaults, likely he in other sexual involved felony 22-16-4. murder statute. SDCL Becky. This committed the offenses motive, satisfy a sexual perpetrator’s convicted of permit a man to be cannot Court need, by proving the abundantly clear is also has com- simply because he rape and murder Kirkpatrick, 1 Mueller & rape itself. See past. in the other crimes mitted § supra, 110 at 625. identity, failing proof of as [¶ 35] Besides charge premeditated As to does not establish the other acts evidence surrounding murder, circumstances conspira- “larger continuing plan, scheme death, brutality of the including the Becky’s charged at present crime cy of which the of the location knife attack and the secluded Champagne, only part.” “premedi- body, adequately demonstrаted court’s conclusion The trial N.W.2d person design the death of tated to effect op- “opportunistic, incident was that each Kost, 22-16-4; killed.” SDCL asser- posed planned attack” State’s (S.D.1980) (holding design were of the crimes that at least some tion from the may be inferred to effect death crimes negates any claim that the unplanned, killing). as- Moeller’s circumstances of the continuing scheme. part of a common or were Warner, Beshaw, Moore, where saults on Further, aptly observed commentator as one or no with few escaped victims all three exception: plan scheme regard to the of a injuries, provide scant evidence physical sup- must “[S]urrounding circumstances as- to murder. State’s premeditated intent crimes were that port an inference was motive for murder that Moeller’s sertion mind,” and both related the defendant’s readily in- can also be his victim to silence charged crime and the other acts itself, and Moeller’s murder from the ferred continuing a common or part “must proba- little additional provide acts prior bad enough that It is not scheme.” tive force. If charged crime. resemble the crimes had evidence the other acts While to the sufficiently similar they are not value, prejudicial its only meager probative enough or not distinctive charged offense “ ‘Prejudice effects were substantial. does Conclusion [¶ 40] C. damage opponent’s not mean case case, probative value of legitimate probative results from the identity extrinsic evidence show rather, evidence; force it refers to the slight, Beshaw, assaults on because the advantage capac- unfair results from the Moore so and Warner were dissimilar from ity persuade by illegiti- the evidence rape murder O’Connell. Shell, mate v. Iron means.’” State *13 Additionally, purported Moeller’s intent and (S.D.1983) (quoting C. readily motives could be inferred from the Graham,
Wright K. Federal & Practice and surrounding Becky’s rape circumstances and (1978)), § Procedure 5215 at 274-75 convic- murder; testimony provided the other acts rev’d, grounds corpus tion habeas little, any, insight if additional on these is- proceeding, Leapley, Iron Shell time, given sues. At the same the offensive- (S.D.1993). case, N.W.2d 868 this the brutality and ness of the other the of the acts likelihood that acts evidence the other would crimes, prejudicial the likelihood of a persuade by illegitimate particu- means was jury exceedingly effect on high. the was larly high. State’s case Moeller was link circumstantial To one. Moeller to the the trial [¶ 42] We conclude court abused rape Becky O’Connell, and murder of the admitting its discretion in the other acts (1) showing State relied on evidence that: testimony; prejudice danger the of unfair so resembling individual Moeller had been seen substantially outweighed probative the value talking approaching or before her of acts that Moeller’s bad he was de- (2) disappearance; pickup truck similar to nied a fair trial. We therefore reverse his Moeller’s had been seen near the crime conviction for a and remand new trial. Due (3) scene; pickup soil on Moeller’s was con- the likelihood that other issues raised samples sistent with soil taken from the case, Moeller will on remand of resurface this (4) scene; crime had fled to Moeller another proceed we will to address these issues. composite police picture state when a of the ISSUE assailant, alleged Moeller, which resembled published admitting Did the court err in newspaper; in a Sioux Falls (5) typing procedure samples and DNA showed Moeller results of a DNA has DQ type polymerase Alpha perpetrator, same as the known as chain reaction (PCR)? DQ type and Alpha approxi- occurs in
mately every one out thirteen Caucasians. A. Facts testimony acts 39] The other was a emotionally shocking gripping and contrast performed battery [¶ 45] The State to State’s sterile circumstantial case. Be- serological vaginal, tests on anal/rectal living cause there were no witnesses to the samples Becky’s oral body. collected from rape Becky, testimony and murder of purpose of these tests was to determine Beshaw, Moore, provided Warner presence body fluids that foreign were only depiction engaged of Moeller as man Becky. spermatozoa showed results physical aggression. in sexual Through on the purposes swabs. For anal/rectal testimony, their transformed State comparison, performed serological State also from a man who have could committed the samples tests on blood drawn Becky, from crime, evidence, based on circumstantial to a Moeller, suspects. and other None of these crime, man who tvould have committed the analysis. tests involved DNA propensity based on a predation sexual pretrial hearing, [¶ 46] At a physical three violence. Because defense Moeller had others, experts sexually serological analy- testified that the assaulted could readily ses samples infer revealed type polymorphic that Moeller was the rape enzymes type man who would murder a and a which did child. blood not co- type precisely propensity makeup. This is incide with con- Moeller’s State’s ex- perts prohibited type clusion that is under SDCL 19- countered that the blood and en- zyme 12-5. exactly Becky’s results matched test and, therefore, likely reflected B. Discussion 50] most results il victim’s, perpetrator’s, rather than trial court dis- [¶ 51] The has broad sample. State claimed contribution expert concerning the cretion admission serological tests revealed no conclusive testimony, and will not be the court’s decision perpetra- about the rehable information showing reversed absent a clear of an abuse and, therefore, be ex- tor Moeller could not Hill, of discretion. these suspect (S.D.1990). as a on the basis of cluded tests. matter, initial must !¶ 52] As an we appropriate admitting enunciate test for supplement incon- allegedly To expert testimony in trial. scientific a criminal serological findings, sought ad- clusive Frye applies to Moeller asserts the standard performed by DNA results mission of test this case: Blake of Forensic Science Associ- Edward test, testimony Frye before re- Under samples Because ates. the anal/rectal *14 lating principle discovery ato scientific sperm were too to be revealed small admissible, principle is “must be suffi- using a common method of tested more ciently gained general to have established analysis Frag- known as Restriction DNA acceptance particular in the field in which (RFLP), Blake Length Polymorphism ment belongs.” it technique Polymerase as a known used (S.D. Wimberly, 467 N.W.2d 505 (PCR) duplicate genetic Chain Reaction 1991) Adams, citing State v. 418 N.W.2d Blake samples. in the material contained 1013). (S.D.1988) Frye, (citing 293 F. 620 resulting larger sample to deter- tested However, Hofer, in State v. 512 N.W.2d makeup particular segment on mine the of a (S.D.1994), forth adopted we new rule set strand, segment DNA known as Supreme by the United States Court DQ Alpha complex. According to gene HLA general acceptance in the scientific held Blake, the perpetrator these revealed tests community required. longer Id. at 484 no DQ Alpha type consistent had a which was (citing Daubert v. Merrell Dow Pharmaceu DQ Alpha type Moeller. with the of Donald ticals, Inc., 579, -, 113 S.Ct. 509 U.S. opined population Blake further studies (1993)). 2794, 125 See L.Ed.2d 3) (1.2, particular DQ Alpha type show this 156, 159 Schweitzer, 533 N.W.2d also approximately eight per- appears in seven to (S.D.1995). judge simply de The trial must roughly population, cent of the Caucasian i.e. testimony both expert’s “that an termine every one out of thirteen Caucasians. relevant rests on reliable foundation and is task evidence at hand. Pertinent Finding admissibility require- scientifically principles valid will based on satisfied, were Frye test ments Hofer, satisfy those demands.” testimony con- trial court admitted Blake’s Daubert, at -, (citing at 484 509 U.S. cerning the DNA test results and statistical 485). 2799, 125 L.Ed.2d at S.Ct. data.4 DNA testi 53] Moeller attacks the testing the DNA contends [¶49] reliability and mony of Blake under both the method, results, are the PCR derived from prongs test. He relevance Dazibert (1) for PCR inadmissible three reasons: does rest on a contends the evidence not fo- typing is reliable for use with DNA not foundation, typ DNA because reliable PCR evidence; (2) qualifi- rensic Edward Blake’s settings and be ing is not valid in forensic (3) inadequate; and and methods are cations qualifications and Blake cause lacks sufficient serological excluded Moeller as initial tests the evi also asserts that methods. Moeller typing DNA suspect, relevant, serological so admission of PCR was because dence perpe misleading prejudicial. We dis- him the already had excluded tests agree. trator. States, Frye F. 1013 in Frye admissi- lished v. United
4. The
test refers to
standard of
(D.C.Cir.1923).
testimony
bility
which was estáb-
for scientific
Reliability
typing
major
of PCR DNA
[¶ 57] One
drawback RFLP
anal-
ysis
use.
requires
relatively
large,
forensic
is that
it
nondegraded
sample. MacKnight,
DNA
su-
acid)
(deoxyribonucleic
[¶ DNA
“is
55]
pra,
many
Unfortunately,
297-98.
crime
‘genetic blueprint’
which
or ‘code’
makes each
scenes, including the one involved in this
living
exception
organism, with the
of identi-
case, yield only
genetic
a minute amount of
twins, unique
cal
from all others. DNA is
perpetrator.
information about the
Id. at
every
within
contained
nucleated cell in the
PCR,
the other current method of fo-
body.”
MacKnight,
human
Kamrin T.
testing,
designed
rensic DNA
to overcome
(PCR):
Polymerase Chain Reaction
The Sec-
photo-
PCR
“genetic
obstacle.
is like a
Analysis
ond
Generation
DNA
Methods
copy
Id. at
is a
machine.”
304. It
laborato-
Stand, Computer High
Takes the
&
Tech-
ry technique that can increase the amount of
(1993).
nology Law Journal
Be-
testable DNA
a crime sample. Federal
individuals,
unique among
DNA is
cause
ana-
Center,
Judicial
Reference Manual on Scien-
skin,
lyzing
hair,
DNA
contained
(1994).
tific
Evidence
one
As
treatise
blood,
semeh
saliva found at a crime scene
explains:
can
helpful
identifying
perpetrator
self-replicating prop-
PCR mimics DNA’s
of the crime.
up
copies
erties to make
millions
present,
essentially
[¶ At
there
are
two
original
sample
only
DNA
a few
analysis.
forensic
methods of
DNA
William
Although
hours.
the term PCR often is
*15
Thompson, Evaluating
C.
Admissibility
of
loosely
process
used
to refer to the entire
New Genetic Identification Tests: Lessons
replicating
testing
of
DNA and
for the
War,”
from the “DNA
L. &
J.Crim.
Crimi-
presence
alleles,
matching
of
the term
(1993).
22,
nology
widely
The most
used
properly
only
replication por-
refers
to the
fingerprinting
method is called DNA
or DNA
process.
tion
amplifying
of that
After
profiling.
employs
technique
Id. It
known
PCR,
sample
DNA
technicians must
Fragment Length Polymor-
as Restriction
use other methods to determine whether a
(RFLP)
phism
analysis.
Id. RFLP mea-
known
sample
and unknown
match. Stan-
fragments of
sures
DNA that are known to
analysis
dard RFLP
can
in many
be used
great
variability
show a
deal
among
circumstances,
indi-
techniques
but other
often
accounts,
By
viduals.
Id. at 26-27.
some
used,
including
are
process using
se-
analysis
“produces
RFLP
fragments
(SSO)
of these
quence-specific
oligonucleotide
profiles
virtually unique
DNA
that
probes. Currently,
locus,
are
to
one
called HLA
individual,
DQ
each
akin
finger-
Alpha,
process....
thus are
available for
is
this
prints.”
DQ
Id. at 27.
RFLP
HLA
...
Alpha
completely
Because
is so
has been
discriminating,
possible
phe-
sequenced
it is
thus can
derive
be used for foren-
typing.
sic
probability
regarding
nomenal
statistics
particular person
responsible
whether a
is
Evidence,
on
Manual
Reference
Scientific
investigation.
for the crime under
Mac-
supra,
n.
287-88
Knight, supra,
example,
at 299. For
in one
using
analysis,
recent case
RFLP
the fre-
Following
amplification
PCR
of the evi-
quency
profile
samples,
DQ
of the defendant’s DNA
in the
dence
Alpha types are
DQ
population
compared.
Alpha
Caucasian
If the
genotype
determined
be
one in
(citing
suspect
300 million. Id. at 299 n. 48
is different from that of the
Jakobetz,
sample,
United
the suspect
States
955 F.2d
evidence
is “excluded”
(2nd Cir.1992)). In
Wimberly,
N.W.2d at
and cannot
the donor of the evi-
suspect
held
DNA test
dence ....
If the
Court
results
evidence
analysis
genotype,
suspect
based on RFLP
were admissible
have the same
then
possible
a criminal
See
is
as a
defendant.
also
“included”
source of the
Schweitzer,
sample.
probability
(holding
denied,
-,
1430,
may
116
U.S.
S.Ct.
134 ble. Crime scene
contain a
evidence
(1996);
State,
contaminants,
552
including
L.Ed.2d
Clarke v.
813
DNA
number of
654,
(Tex.Ct.App.1991), aff'd,
S.W.2d
839
victim
present
from the
and others
at the
denied,
(Tex.Crim.App.1992),
cert.
laboratory
S.W.2d
crime scene
from
workers han-
Texas,
996, 113
dling
sample.
Clarke
507 U.S.
S.Ct.
suggests
that fo-
Moeller
(1993); Spencer
sures not does undermine the of typing:
PCR DNA
conclusion,
regulation may
amplification
While
In
accreditation and
PCR
of
be
samples exposed
variety
DNA
desirable
the medical
well as
from
to a
of
as
yields
DQ
setting,
necessary
Alpha typing
forensic
it is not
insults
correct
to bar
re-
DQ
technology
Alpha
use of DNA
sults. The
present
until such
alleles
in a
safe-
guards
place.
sample
sensitivity
are in
at the level
“Although the court
of
of the test
reliably detected,
were
ensuring quality
ideal forum for
and no false results
science,
adversary process
produced
long
were
is a
as
as the test was
means
by
practice
prevent-
which those
carried out under
who
‘bad’ science
conditions that
discredited,
may
dropout.
ed
prac-
typing system aр-
while
who
allele
those
‘good’
may
pears relatively
variety
enjoy
credibility
tice
to a
science
resistant
of
they
insults,
deserve.”
environmental
and factors that do
give
influence
test serve to
no results
Russell,
This additional previous- been samples used control that had DQ Alpha typing procedure that the HLA testing were ly typed to ensure that methods procedure typing ais valid for forensic DQ Alpha types. samples. capable responding of to all interpretations All for cases amplification of is as- compatible interpretations using with Because uneven DNA were inadequate heating samples, of procedure. the RFLP sociated with temperatures Blake also monitored the amplification equipment to maintained heating during pro- proper ensure PCR DQ Alpha typing system The HLA has cess. been to be shown and reliable valid analysis approach biological evi- record, trial Having 69] reviewed the [¶ anticipated dence. It is that the increased literature, law, and we relevant ease scientific sensitivity DQ Alpha pro- test will DQ Alpha typing is suffi- conclude that PCR vide results situations in some which ciently in criminal tri- for admission reliable analy- there is insufficient DNA for RFLP making ruling, In we note the als. sis. testing equally benefit PCR extends al, Comey supra, Theisen et Catherine prosecution. defense as as the Because well Congress,
248. See U.S. Office of Tech- also person test can results exclude Assessment, nology Genetic Witness: Foren- crime, being perpetrator of from (1990) (“The of DNA sic Uses Tests DNA can be a valuable source PCR evidence (OTA) Technology finds Office Assessment exculpatory evidence. tests uses DNA are both forensic properly performed when reliable and valid qualifications Methods and analyzed by personnel.”). skilled Edward Blake. stud- addition these validation questions quali Blake’s [¶ 71] Moeller ies, took the trial record indicates Blake testify regarding typ fications to -PCR DNA testing proce- great pains to ensure reliable (1) noting possesses only a ing, Blake that: laboratory. To in his dures were followed degree in criminalistics of science bachelor laboratory samples, prevent contamination of degree criminology and a doctorate handling PCR material Blake confined all any degree in molecular biol lacks advanced pro- lab physical location in the to one analytical chemistry, genetics, and bio ogy, samples times at different cessed reference (2) chemistry; laboratory are Blake and his samples. evidentiary He used “blank” than (3) accredited; Blake not licensed typing samples during processing and PCR protocols established deviates from the evi- if chemicals added to to determine subject kit manufacturer the PCR dentiary samples were contaminated samples amplification ing to three additional re- also sources. Blake DNA from other cycles. evidentiary of all one-half served least *18 lab, retesting by his samples possible qualification held and We have “the [¶ 72] experts, or referees. defense speak competency a to as an ex of witness in primarily the discretion of the trial pert preferential notes that 68] Moeller [¶ court, ruling only and will in its be disturbed portions amplification of certain differential of case of a clear abuse discretion.” with sample a concern is also the DNA (S.D. Swallow, un- N.W.2d suggests, As Moeller the PCR method. 1987) Disbrow, (citing to inaccurate amplification could lead even (S.D.1978)). None of Moeller’s makeup of the DNA conclusions about show abuse of discretion However, that observations suggests research assailant. testify. permitting court in Blake to the trial calibration, use, maintenance and proper Rather, evidence indicated Blake has problem. prevent can equipment knowledge experience Further, requisite quali and MacKnight, supra, 314-15. that, fy expert. experts opined serological as an record shows that State’s studying Becky’s type when for his doctorate in criminolo tests reflected blood and en- little, gy, specialized zymes in provided any, Blake forensic science. His if and therefore entitled, doctoral thesis was identify perpe- “Determination which information could in Genetic Markers Human Semen.” opined trator. further that State witnesses Since Blake has worked as a typing forensic PCR DNA could differentiate be- private practice. serologist Most of perpetrator his tween contributions from the and analysis. work involves DNA He provide has co thereby the victim and more infor- twenty papers, authored more than scientific mation about the assailant. with con- Faced including concerning technology articles flicting testimony PCR expert allegations and that analysis. given inconclusive, He serological DNA has also over tests were fifty presentations aspects on various of fo trial did court not abuse its discretion in serology. rensic Blake has worked on over admitting concerning evidence the DNA DQ three involving hundred cases PCR Al makeup perpetrator. of the pha typing. laboratory his Blake and are not
accredited or licensed no such because ac [¶ 76] Conclusion. licensing creditation mechanisms exist. properly [¶ 77] We conclude the court ad- However, laboratory his participates in vol amplification DQ mitted evidence PCR Further, untary proficiency testing. al Alpha testing. record, on the Based though Blake from deviates the manufactur law, literature, relevant case and scientific we protocol by subjecting samples er’s to three analysis hold purposes PCR for forensic replication cycles, additional he testified that reliable, testimony respect to the cycles simply these additional increase the technique аpplication and its was offered sensitivity sample. Finally, of the we note qualified expert a used adequate who scienti- that other courts have deemed Blake to be procedures, fic and the evidence was relevant Hill, an expert typing. on DNA PCR See identity to the material issue of (concluding P.2d that “Blake has perpetrator. impressive appear credentials and would ISSUE field”); Williams, be one his leaders Did the (noting trial court abuse its discre- qualified at 967 A.2d scien allowing testimony tion in of a soil testing tists found Blake’s DNA PCR method reliable). expert, because he testified highly to be to mere possibility? Blake, The record 73] demonstrates through practical his experi- education [¶ A. Facts ence, qualified testify expert was as an on typing alleged pro- trial, PCR DNA at trial. His Prior to Moeller submitted go fessional technical deficiencies testimony the motion to exclude the of John P. weight credibility testimony Wehrenberg, professor his rather geology retired Swallow, admissibility. than specializes See who forensic examinations of at 42. soils. Wehrenberg’s Moeller contended tes-
timony
highly speculative
and therefore
of DNA
had
probative
[¶ 74] 3. Relevance
results.
no
value.
trial court de-
nied the motion and Moeller
entered
stand-
[¶ 75] Moeller asserts that the PCR DNA
ing objection
testimony
at trial.
irrelevant,
typing evidence was
because he
already
suspect
had
been excluded as a
Wehrenberg
testified
State’s case-
serological
basis
test results. At a
in-chief. He stated he had examined soil
pretrial hearing,
presented
samples
three ex-
taken from the wheel wells of a
*19
pert witnesses
pickup belonging
who testified that
tests on
to Moeller.
had
He
also
Becky’s body
semen and saliva found on
unpaved
did
studied several
roads located near
Dakota,
not
type
enzyme
Falls,
“match”
blood
Moeller’s
Sioux
South
including the road
makeup.
presented
expert testimony
leading
Becky’s body
into the area where
disputing Moeller’s claim
In
of exclusion. was found.
an on-site examination of this
Falls,
which
he
would be
would have this
noted
there
located south of Sioux
road
composition?
similar-type
general characteristics of the
colors and
quite
were
parts of this road
similar
soil on
A. That’s correct.
the left
samples
from
side
to soil
taken
be,
Q.
range
could be
And it could
Wehrenberg compared
pickup.
Moeller’s
significant, couldn’t it?
rather
two
samples to
on
soil found
these
Yes,
A.
it could.
to have been
where Moeller claimed
roads
Q.
you
say
any
of scien-
And
can’t
kind
driving.
road
lies across the river
One
that
certainty
tific
that the
in the wheel
soil
gravel and soils
from the crime scene showed
soil at
crime scene
well and the
any
than
considerably lighter
that were
source,
are
the same
would that
from
at the crime scene. Simi-
the soils examined
be correct?
gravel road north
larly, an examination of a
A. That’s correct.
gravel and soils that
Falls revealed
of Sioux
Q.
present
you’re telling
All
us is that as far as
lighter
were
in the
were much
than
possible?
Wehrenberg opined
well it’s
area.
that
that wheel
crime scene
pickup
Moeller’s
on the left side of
the soil
A. Yes.
the road he
not have come from
exam-
could
also,
indicated,
you
Q.
possible
as
And it’s
Wehrenberg
north of Sioux Falls.
also
ined
any
be from
number of
that it could
probability
there was a low
that the
stated
other sources?
pickup
came from
soils found Moeller’s
A. That’s correct.
river
located
from the
the road
across
crime scene.
B. Discussion
[¶ 85]
contrast, Wehrenberg opined
that
82]
Wehrenberg’s
that
asserts
[¶ Moeller
on the
wheel wells Moel-
soils found
left
testimony
possibilities
rather
is limited
very
to and
vehicle were
similar
consis-
ler’s
any
probabilities
than
and lacks
scientific
the crime
tent with soils taken from
scene.
therefore
the testi-
conclusion. He
asserts
Further, Wehrenberg
samples
that
stated
mony
fact and
did not assist the trier of
pickup
left wheel
of Moeller’s
from the
wells
unfairly prejudiced
responds
Moeller. State
very
crys-
sharp, clean hornblende
contained
go
weight of
that Moeller’s assertions
Wehrenberg
that the mud in
testified
tals.
testimony,
admissibility.
Wehrenberg’s
“probably
wells
have a
the wheel
would
Wehrenberg
numer-
that
found
State notes
being
found to
greater chance
south
soil
ous
between crime scene
consistencies
presence of horn-
Falls]” due to the
[of Sioux
pickup
exclud-
and the
Moeller’s
mud on
blende.
probable
as
ed locations Moeller identified
sources
the mud.
that
Wehrenberg concluded
the road
scene could not be
leading into
crime
admissibility
an ex
of the soil found on
excluded as
source
pert’s opinion within
broad discretion
pickup.
wheel
Moeller’s
the left
wells of
Peery v.
Dakota
of the trial court.
South
Department Agriculture, 402 N.W.2d
cross-examination, Wehrenberg
On
Shell,
(S.D.1987);
Iron
part
testified
follows:
(S.D.1981).
reverse
We will
Q.
basically your
And
ultimate conclusion
only where there
the trial
decision
court’s
soil in
left
possible
is that it is
showing
of an abuse
has been a clear
vehicle]
wheel well Moeller’s
came
[of
Id.; Hill,
at 676
discretion.
from the crime scene?
(S.D.
(citing
Logue,
perts testify only opinions. the form of must determine aggrava- the existence of an
487 punishment particular is beyond “capital a doubt. a matter of ting factor reasonable case, In the trial interest or local concern and does not SDCL 23A-27A-5. state they jury must judge require policy.” did instruct that uniform national Ramseur, 188, circum- aggravating 123, of find the existence 106 N.J. 524 A.2d 209 (1987). beyond a before re- stance reasonable doubt Eliza- also James R. Acker & See However, Walsh, turning a verdict death. Challenging beth R. the Death Penal- Constitutions, not define “reasonable doubt” trial court did 42 ty Vanderbilt Under phase proceedings.5 (1989). penalty LRev 1299 Although dispose we of this case on [¶ 95] indepen- Cognizant of this Court’s [¶ opportunity to grounds, we take this authority capital punish- to invalidate dent prose- importance defining stress the law, begin matter of our ment as a state we proof capital sentenc- cution’s burden of in a focusing legal analysis by on state’s our own future, failure to ing proceeding. precedent. Importantly, and historical jury on this could result instruct the issue pro- that very same constitutional document reversible error. punishment infliction of con- hibits the cruel
ISSUE 5.
ap-
implicitly recognizing the
provisions
tains
penalty.
of the
S.D.
propriateness
death
punish-
penalty
the death
“cruel
96] Is
[¶
VI,
8,
per-
§
“All
part:
states in
ConstArt.
per se in
Dako-
ment”
violation of South
sureties,
be bailable
sons shall
sufficient
VI, §
Article
23?
ta Constitution
capital
proof is evi-
except
when
offenses
Eighth
The
Amendment to the Unit-
[¶ 97]
presumption great.” (Emphasis sup-
dent or
un-
“cruel and
ed States Constitution forbids
VI,
2,
pertinent
§
plied.)
provides
Article
punishments.”
usual
The
States Su-
United
life ...
part:
person
deprived
“No
shall be
preme
penalty
held
Court has
that
process of
without due
law.”
a cruel
per
death is not
se
unconstitutional
Georgia,
punishment. Gregg v.
and unusual
recog
In addition to constitutional
2932,
153, 187,
2909,
49
428 U.S.
S.Ct.
nition,
legis
capital punishment
received
has
(1976).
859, 882-83
L.Ed.2d
approval.
penalty
has been
lative
death
history.
most of
in effect for
this state’s
The South Dakota Constitu
Capital punishment
from statehood
existed
language in
employs slightly different
tion
Opinion
until it was abolished in 1915.
impose
limiting
government’s power to
706,
477, 479, 161
Judges, 83 S.D.
N.W.2d
VI, §
penalties.
criminal
Article
(1968). It was
in 1939 and
reinstated
“Exces
South Dakota Constitution states:
until
States
continued
when
United
required,
fines
sive bail shall not be
excessive
effectively invalidated
Supreme Court
punishments
imposed,
cruel
nor
inflicted.”
capital
sentencing
then-existing
scheme.
supplied.)
argues that
(Emphasis
Hoffman,
Stephen
Richards &
C.
Reed C.
prohibition on
South Dakota’s constitutional
Capi
Among
Shifting
Death
Standards:
is
restriction
punishments”
greater
“cruel
Furman, 26 SDLRev
tal Punishment After
power
its federal coun
government
than
1981).
(Spring
legislature reenacted
pun
terpart prohibiting “cruel and unusual
re
penalty in
and it has
the death
pen
He contends
the death
ishments.”
present.
Richards &
mained
effect
invariably
punishment”
alty
“cruel
is
243;
Hoffman, supra, at
ch.
1979 S.D.Sess.L.
provi
of this state’s constitutional
violation
160;
indi
ch. 186. Eleven
1981 S.D.Sess.L.
sion.
Dakota.
have been executed in South
viduals
note
constitu
We
that a state
Hoffman, supra, at 243.
Richards &
may
interpreted
provide an indi
tion
ac
legislative
102] Historical and
greater protection
than the feder
vidual
significant,
ceptance
penalty
of the death
Opperman,
al constitution. State v.
Black,
(S.D.1976).
Additionally,
dispositive.
See State
but
importance
repeating the instruc-
proper
defini-
diminish
5. We note that the
received
penalty
that occur
guilt phase
deliberations
doubt
tion
of reasonable
at the
tion
However,
days later.
does not
this fact
several
their deliberations.
(Tenn.1991).
strong
capital punish
S.W.2d
Constitutional
cence
evidence
*22
analysis
dynamic
evolving;
it cannot
people
is
ment reflects the will of the
of South
solely
underpinnings.
rest
on historical
We Dakota.
three-part
analytical
adopt
therefore
reliable,
jury
objective
104] The
also a
[¶
is
from
framework derived
the United States
Gregg,
of societal
index
standards.
428 U.S.
Supreme
G'regg.
plurality
Court’s
decision in
181,
2929,
at
Black,
189;
Campbell,
815 S.W.2d at
State v.
1,
929,
(1984),
103 Wash.2d
691 P.2d
948
cert.
Having
pen-
determined
death
denied,
1094,
2169,
471 U.S.
105 S.Ct.
85 alty
contemporary
consistent
with
values
(1985).
Leg
L.Ed.2d 526
The South Dakota
Dakota,
in
also
South
we
conclude that
1979,
penalty
islature reenacted the death
of death
penalty
sentence
is not
excessive
and has made occasional amendments to the
crime
first-degree
for the
murder.7
statutory
since
scheme
time.
1979
Measuring
death,
punishment,
160;
ch.
1981
ch.
S.D.Sess.L.
S.D.Sess.L.
crime,
death,
causing
it is most difficult
186;
206;
1989 S.D.Sess.L.
ch.
1992
appreciate
penalty’s
the death
excessive-
173;
ch.
5.D.Sess.L.
ch.
S.D.Sess.L.
....
[Although
penalty
ness
the death
178; 1995
ch.
S.D.Sess.L.
132.
stat
These
irrevocable,
severe
it is not an exces-
utes have remained undisturbed
disproportionate
penalty
sive
for
electorate, despite
power
people
of the
crime of murder.
penalty proponents
death
vote
out
office
reject
Ramseur,
legislative
through
enactments
Imposing
A.2d at 213.
a sen-
referendum
public acquies
deliberately
election. This
tаking
tence of death for
the life
values,
law,
evaluating contemporary
kidnapping
we are also
may
7. Under South Dakota
thirty-seven
mindful of
the fact
other states
punishable by
death when
defendant has
adopted
authorizing
punish
capital
have
statutes
gross permanent physical injury
inflicted
Campbell,
ment for certain crimes. See
691 P.2d
22-19-1;
SDCL
SDCL
victim.
22-6-1. Moeller
at 947. In the four other states which include a
kidnapping Becky.
He
simple prohibition against
punishment”
"cruel
degree
was convicted of murder
the first
constitutions,
penalty
their
the death
has sur
was sentenced
death
this crime. There-
challenges.
vived slate constitutional
fore, we
appropriate-
limit our
discussion
Dickerson,
761,
(Del.Supr.Ct.1972);
298 A.2d
penalty
ness
death
for the offense of first-
Commonwealth,
97,
Gall
(Ky.
607 S.W.2d
degree murder.
1980),
denied,
1529,
cert.
450 U.S.
101 S.Ct.
(1981);
Zettlemoyer,
L.Ed.2d 824
A.2d at
969; Campbell,
There is little doubt that the
(invalidating “especially
9.
court also
definition of
late
“depravity
jury.
capital
"torture” and
of mind” for the
offenses.
However,
jury
alleg-
we read the
instructions as
reject
United
Su-
We
this claim. The
States
ing only
"aggravated battery”
an
and therefore
expressly approved judicial
preme
de-
Court has
our
the
that term.
confine
review to
definition of
impose limiting
on oth-
cisions that
instructions
vague aggravating circumstances. Arave
erwise
Although
urges
state as well as feder-
1534,
Creech,
463, 471,
S.Ct.
v.
507 U.S.
113
violations,
VI,
al constitutional
see S.D.Const.Art.
1541,
188,
(1993);
L.Ed.2d
Walton v.
2, 18,
23,
§§
and
we conclude that the effect of
3047, 3057,
Arizona,
639, 654, 110 S.Ct.
497 U.S.
both the federal and state constitutions in this
511,
(1990);
111 L.Ed.2d
528-29
v. Flori-
regard
Proffitt
is identical.
2968,
242, 255-57,
2960,
da, 428 U.S.
96 S.Ct.
913,
(1976) (opinion of Stew-
argues
vague
49 L.Ed.2d
art,
924-25
11. Moeller
that a
and overbroad
Powell,
Stevens,
JJ.); Gregg,
at
and
428 U.S.
aggravating circumstance must be amended
201,
2938,
(opinion
at 890
through legislative
493
”
ed,
468,
pitiless slayer.’
pable
at
necessary
507 U.S.
113
than the minimum
to accom
1539,
(quoting
plish
at
blooded, pitiless slayer” refers to a killer
(1984),
denied,
1012,
565
cert.
472 U.S.
feeling
sympathy....
who kills without
(1985).
2713,
S.Ct.
495 Attempts affirm evidentiary and the defendant.” Id. to elimi- the trial court on this rul- ing. in aspects nate discretion all the criminal
justice system place totally unrealistic condi- provides: SDCL 19-12-5 punishment. capital tions on the use of 428 crimes, wrongs, Evidence of other or acts 50, at 199-200 n. 96 S.Ct. at n. U.S. 2937-38 prove is not admissible to the character of 50, Gregg 49 L.Ed.2d at n. 50. As the 889 person in order to show that he acted in explained: Court conformity may, however, therewith. It be necessary require [I]t would be purposes, admissible for other such as
prosecuting charge capital authorities of- proof motive, intent, opportunity, prepa- arguably fense whenever there had been a ration, plan, knowledge, identity or ab- capital they plea murder and that refuse to sence of mistake or accident. bargain If jury with the defendant. [¶ 140] The trial court admitted the testi- though refused to convict even the evi- mony upon Carolyn of Moeller’s attacks supported charge, dence its verdict 1973, Beshaw in in Kenneth Moore 1979 and
would have to be reversed and a verdict of Tracy doing, Warner in so the trial ordered, guilty entered or a new since correctly court applied the two criteria neces- discretionary act nullification sary to make such a decision: Finally, permitted. would not be acts of (1) purpose Whether the intended for of- clemency pro- executive have to would be fering the other acts evidence is rele- course, system, hibited. Such a would case, vant to some material issue totally alien to our notions of criminal justice. (2) probative Whether the value of the evi- 50, U.S. 199-200 n. S.Ct. substantially outweighed by dence is 50, n. 49 L.Ed.2d at n. 50. prejudicial its effect. unnecessary Werner, [¶ We deem 133] it consider 482 N.W.2d Basker, other issues that are moot (S.D.1992)(citing rendered our State v. (S.D.1991)). reversal Moeller’s conviction. The trial court found
the evidence was
to show
relevant
common
method,
scheme, intent,
plan
identity,
J.,
AMUNDSON,
[¶ 134]
JOHNSON and
probative
motive and that the
value was not
ZINTER,
concur.
Judges,
Circuit
substantially
outweighed
danger
J.,
GILBERTSON,
part
prejudice.
concurs in
unfair
part.
and dissents
analysis
Crucial to
of this
issue is
A
standard of
trial court’s deter
review.
JOHNSON,
Judge, sitting
Circuit
mination to admit other acts evidence will not
J.,
SABERS,
disqualified.
for
be overruled absent an abuse of discretion.
(S.D.
State v. Larson 512 N.W.2d
ZINTER,
Judge, sitting
Circuit
McDonald,
1994);
KONENKAMP, J., disqualified.
Werner,
(S.D.1993);
AND 1990? (S.D.1994). Erickson, 703, 710 525 N.W.2d “Upon I review ... must be careful not to respectfully [¶ 139] dissent as to the ra- we for that reasoning I our of the trial tionale and result of Issue One. would substitute Thus, type of knife with the Larson, consistent [sic] at 736. 512 N.W.2d court.” in the assaults. whether, used had we been question is not prior judge, would have admitted (f) we had a instance the Defendant each trial court whether the knowledge acquaintance acts evidence but passing bad victim, discretion sitting in case abused its victim had no sub- this and the Id.; Rufener, relationship 392 N.W.2d with the Defen- doing stantial so. (S.D.1986). dant.1 the Defendant com- (g) In instance each Unfortunately, majority devotes [¶ 142] within, general act his own mitted the upon to this standard only single sentence neighborhood. hinges proceed- before the entire issue which (h) oppor- attack was In each instance the analysis more lengthy which is ing into a tunistic, opposed planned to a attack as rather than to a de novo review appropriate identity to conceal the with the intent discretion criteria cited applying the abuse of perpetrator. clearly This is most established above. discus- that in the entire text (i) object
the fact of the at- In each instance sion, single para- majority devotes not a cоupled with was a demand for sex tack analysis of the similarities be- graph prodding to an kill and the vic- the threat to prior on and the bad tween the attack tim the knife. with Instead, majority entirely focuses acts. able to (j) In each instance the victim was justifications perceived dissimilarities identify the Defendant. rather than affirm the trial court not to challenge the trial Moeller does [¶ 145] weigh for or balancing the facts that findings prior that the bad acts oc- court’s in-depth abuse of applying admission Moeller, however, attacks the trial curred. review. discretion admissibility ruling of of those acts court’s arguing that the dissimilarities between I. Relevance prior the offense are so bad acts and they overcome the State’s substantial above, As noted the trial court Moeller claims the end claim of relevance. prior bad acts were relevant to found the impermissibly which was result is evidence scheme, method, in- plan or show common merely that he is a bad admitted to show tent, identity Contrary to the and motive. past committed bad acts man who has only majority’s that the trial court assertion facing. charge he is now similar to five common marks between the identified (S.D.1994). Steele, n. 668 8 charged in and the crimes the indictment acts, actually analysis identi- prior agree majority’s bad the trial court I with the They identity are as fied ten. follows: the issue of this case exceptions closely to the other con- related (a) folding knife similar to Each involved motive, plan or tained in the rule such as approximately a Buck brand knife with scheme, However, I focus on and intent. will length blade. the same or similar* identity operandi, and modus the issues (b) appre- At the time the Defendant was they dispositive. are Tacoma, WA, City he hended in the frequently exception is more used The posses- two knives in his had similar appear two or more crimes where sion. plotted have the same individual been (c) object of each attack was sex. they exhibit a similar unusual because (d) attack weapon of choice in each operandi” pattern. Distinctive “modus type of knife. was the above described rationale on which the summarizes the (e) points length admitted and out that The wounds and blade evidence is identity purpose perpetrator’s is the
knife used to commit the murder correct, finding part, did The balance of the the most this is correct. Moeller had not. 1. For Becky, did not have a substantial passing knowledge and War- however. Moeller Moore However, any prior erroneously relationship victims to his of these the trial court found ner. upon knowledge them. when he attacks Moeller had of Beshaw
497 similar, is invari- not so unusual as this kind of evidence are and distinctive which means ably operandi’ distinguish operandi used. ‘Modus to the modis ac- of the pat- working of to a method and refers many of perpetrators cused from that other of criminal behavior that is so dis- tern type of the same crime. separate recog- that crimes are tinctive however, majority, give The fails to the as the handiwork of same nized emphasis to knife sufficient the matter of the useful wrongdoer. еvidence is surrounding and the circumstances use its identify perpetrator of accused as the upon relied the trial court. testi- Beshaw charged. the crime The inference folding- a fied Moeller used black-handled ‘identity’ operandi’ ‘modus of from to the knife with a three-inch testi- blade. Moore culprit. in Since the defendant acted fied that Moeller assaulted him with a black distinctively similar manner on another buck Warner knife. testified that Moeller occasion, (rather likely it than is more he knife, folding with a assaulted her else) occasion someone did act on the three a half-inch black and a brown of the crime. Following questioning by handle. law en- Champagne, 422 N.W.2d Becky’s murder, forcement about Moeller (citations omitted). (S.D.1988) cap- Washington. fled to the When There are common characteristics [V147] later, in nine still tured Tacoma months he worthy unique to this not case which are possession, pocket had in his “two knives or acquaintanceship Moeller had an note. folding-type buck Both knives.” knives were Moore, knowledge Becky, but Warner knives, which was similar knives one of not Beshaw. The trial court found prior in used Moeller bad acts and prox- committed these acts close Becky’s consistent with wound. against imity his residence. The attacks Beshaw, Becky Warner and were committed Randall, pa- Dr. the forensic [¶ 150] While Falls, in or near Sioux South Dakota. performed thologist autopsy, was who attack Moore was committed testify unable to as to the exact nature Wyoming. attacks Wright, Three of the four Becky knife used on to deliver the stab purposes. against females
were
for sexual
wounds,
testify that a
he did
wound to
Moore,
against,
young
The fourth was
deep.
chest was four inches
The claim of
male,
purposes.
for sexual
also
majority that the “the State’s
could
witnesses
Granted,
generic
these are
facts
identify
type
either the
of knife or the
apply
arguably
which
themselves could
length
blade” used in the
of the
murder
all
many violent sexual attacks. Were this
one sentence
Dr.
takes
Randall’s
court, I
given
would
the evidence
testimony
of context.
out
join
majority opinion
that the relevance
deep
If one has a four-inch
knife
making
such
was minimal
best. When
mark,
wound which contains
hilt
one must
admission,
comparisons
justify
factual
logically
the blade that made the
conclude
distinctive,
422
Champagne,
must be
facts
or,
no more than four
wound was of
inches
843;
Haston,
People
69 Cal.2d
N.W.2d
testified,
isn’t
“[i]f
Dr. Randall
the blade
419, 427,
Cal.Rptr.
99
P.2d
hilt, then we
inserted to the
don’t see
(1968);
similarity
a marked
or a close
contain
type
edge
around the
of abrasion
Thomas,
parallel, State v.
N.W.2d
way
wound.” I know no
the blade can
(S.D.1986); or
fea-
evidence common
majority
any longer
four inches and the
than
Willis,
tures,
Dr.
say
does not
how it can be otherwise.
(S.D.1985)
Evidence,
(citing Wigmore,
Randall further testified that a blade some-
(Chadbourn
1979)).
§
Other-
357 at
rev
depth
than the four-inch
what shorter
attacker, in
argue
could
wise one
injury
produced
have
wound could
such
charge,
acts and
the current
bad
Clearly
compression of the
shoes,
due to the
chest.
English,
pants,
spoke
tennis
wore
however,
sex,
inches
any
did not exceed four
right-handed,
the blade
wanted
facts,
length
while
and could not have been substan-
generic
set of
factors. These
*31
“highly
much
crime and earlier offenses
rele-
than that.2 This is
more
tially shorter
identity
present
in the
majority’s
to the issue of
assertion
vant
fact-specific than the
case”).
with
type
the
of
Moeller was later arrested
two
“[h]aving failed to establish
Becky,
possession.
in
knives
his
length of
used
such
knife or
blade
generic observation
is left with the
the State
not all idle talk.
These threats were
use of
offenses involved the
that all the
apparently
did not have
In 1973
Moeller
knife.”
cany through with
motivation to
sufficient
by
when
Beshaw.
represented to the trial
his threats
confronted
The State
152]
[¶
fully capable
prove
by 1979
it
However
he was
prior to trial that would
the
court
buck-style
by
cutting
with
knife and
Becky
inflicted
Moore
the
on
were
the
knife wounds
in
again
in the as-
1990 in the Warner incident.3
knife
used
did so
type of
as was
same
Beshaw, Moore,
Warner
were
saults on
knife for
These
with the
sex
155]
attacks
[¶
person
he fled
Moeller’s
when
to
found on
made
unusual in that Moeller
no
were also
questioned about
after he
his
Seattle
was
identity, hardly
his
attempt to hide
univer
Becky’s
The State
involvement
death.
rapist
trait for a
or murderer. State v.
sal
representation
no incon-
on that
delivered
(S.D.1989); Martin,
Olson,
after a brief visit
apparent
to return a short time
It is
that the indicated inference
forcibly
later to assault her with intent
does not arise ... from the mere fact that
knowing
readily identify
charged
molest her
she could
uncharged
offenses share
parked
him.
certain
similarity,
may
He also
his car in
marks of
Warner’s
for it
be
driveway prior
allowing
question
to the attack thus
marks
are of such
common
plate
they
Warner to obtain
occurrence that
his license
number
are shared
only by
charged
when he left after the attack.
crime and defen-
offenses,
prior
dant’s
but also
numerous
rape
[¶
While the
156]
and murder of
other
persons
crimes committed
Becky probably occurred in rural Lincoln
hand,
than defendant. On the other
county,
Likewise,
point.
that misses the
inference
depend upon
need not
one or
Becky
claim that
was murdered to hide the
unique
nearly
more
unique
features
identity of her attacker is also off the mark.
charged
common to the
uncharged
previously
Moeller had
Becky
overtaken
offenses, for features of substantial but
Russell,
the intersection of Main and
two of
distinctiveness, although
lesser
insufficient
the busiest streets in Sioux Falls at the
to raise the
if
sepa-
inference
considered
height of the 5
only
o’clock rush hour
min-
rately, may yield a distinctive combination
upon
utes before the attack
prior
her.
Just
if
together.
may
considered
Thus it
spotted by
to that he had been
a clerk next
identity
said that the inference of
arises
Becky
busy
a
store in which he was a
when the marks
charged
common to the
well-known customer. Moeller was known to
offenses,
uncharged
singly
considered
the clerk as the store stocked an unusual
combination, logically
or in
operate to set
cigarettes
brand of
for Moeller at his re-
charged
uncharged
apart
offenses
quest.
identity
Moeller’s failure to hide his
general
from other crimes of the same
prior
to his abduction and attack on
variety and,
doing,
suggest
so
tend to
even more
when one
bizarre
considers he did
perpetrator
that the
uncharged
of the
of-
prison
prior
substantial
time for all three
bad
perpetrator
charged
fenses was the
of the
(Moore),
upon
guilty plea
acts either
con-
offenses.
(Warner),
pursuant
plea
viction
to a
bar-
Haston,
427-28,
Cal.Rptr.
444 P.2d at
(Beshaw).
gain concerning other crimes
(cited
approval by
99-100
with
McCormick’s
attempt
identity,
Rather
than
to hide his
§
Handbook of the Law of Evidence
n.
display
Moeller seems to
it.
(2d
added).
1972))(emphasis
ed
keeping
In
with
his lack of desire to
disposes
[¶ 160] This also
of Moeller’s
attacks,
identity in
hide his
all four
initial
(in
similarity
claim that lack of
of victims
contact with his intended victims occurred Becky
young girl,
was a
Beshaw and Warner
within fifteen blocks
less of his victims’
.or
women, Moore, young boy)
were adult
homes.
automatically precludes
admission. The
comparison
The trial court
dispositive, by
further
found it
of victims is not
itself,
significant
admissibility
that Moeller did not have a “sub-
issue. State v.
Moore,
relationship
Becky,
(S.D.1978),
Houghton,
stantial”
with
501
Jenner,
(S.D.1990),
Winter,
Dokken,
493,
held
Likewise,
we
it was not
v. Keiz
in
Commonwealth
ns.11
prior
to admit a
bad
er,
an abuse
discretion
264,
(1979),
385
1001
377 Mass.
N.E.2d
defendant
oc-
act committed
which
Supreme
the Massachusetts
Judicial Court
previous
homicide
curred
prior
question
bad acts admissi
stated
prior bad act and the homi-
where both the
weapons
bility concerning
required
they
by the
the use
defendant of
cide involved
sense,
just in
generic
be similar “not
but
weapon, a
gun. Therein we
held:
same
Id.
specific
terms of
characteristics.”
operandi”
included
term “modus
[t]he
prior
the court
There
admitted
bad
“plan” exception in
SDCL 19-12-
ap
act
crimes
“what
where both
involved
Thus,
plan exception
we
that the
stated
peared
square-barrelled pistol and
to be a
the former acts should indi-
requires that
bag.”
shotgun
by paper
sawed-off
concealed
features,
cate,
plan
design
common
Breazeale,
714,
Id.
See State
Kan.
tends
that it was carried out
which
to show
denied,
1356,
(1986),
cert.
P.2d
U.S.
charged.
by doing the act
(1986),
victed of two counts of
assault for
(S.D.1983).
the attack on Warner.
arguments
[¶ Moeller
two
advances
necessary
it
prior
[¶ 173] While
is
that the
regards
question.
argues
to this
He
that he
degree
bad acts evidence bear a substantial
unduly prejudiced
was
due to the sensational
similarity
present
of
to the
crime
order to
nature of the case when combined with the
Werner,
operandi,
show a modus
see
other bad acts and
that
least two of the
Christopher
N.W.2d at 289-90 and State v.
bad acts were too remote in time to be
son,
298,
(S.D.1992),
482 N.W.2d
301-02
the
admissible.
prior
circumstances of the
offenses need not
charged.
be identical to those of the crime
[¶ 178] Herein the trial court determined
Martin,
Breazeale,
prior
rape and murder.
In
this Court
It
opinion
is the
court that
of this
the State
held:
deprived
should not
the use of such
simply
evidence
because defendant was de-
testimony
Werner
other acts
claims the
nied his freedom
reason of his own
charged.
was too
remote from
acts
activity
deprived
criminal
him
which
own,
standing
testimony
When
on its
opportunity to commit such crimes. When
may appear
from
in
these women
remote
period
defendant’s
of incarceration is taken
fact,
time.
In
other acts
evidence
account,
period
opportunity
into
be-
However,
spanned
years.
several
in deter-
prior
tween the
and the principal
crimes
value,
mining probative
remoteness must
approximately
years.
offense is
two
factors,
be considered with other
such as
Titus,
reliability
necessity.
(ten
Breazeale,
State v.
years’
See
at 1356
P.2d
(S.D.1988).
arguably perusing Moeller failed waived since this issue was generic or common- knives are conclude such subject. on the instruction proposed offer a public. The so- sale ly offered for (S.D. Holloway, commonly knives are that these called fact 1992). argue proceeds to then The State nothing itself. So proves offered sale apply can not merchandise, “plain error” doctrine that the some many articles are nor sub “is neither obvious this error potential for since possessing and some harmless merit, Holloway, N.W.2d at 309. stantial.” argument to have harm. For such however, leap from items must make one rule apply plain error I would [¶ to items used commonly for sale offered points. on both disagree I rapes, aggravated assaults commit forced specifically requires the 23A-27A-3 SDCL- majority and the murders. Herein jury at the properly instruct the trial court to any facts or cases opinion unable to cite are proceeding. “Upon phase of a penalty jurisdiction support this thesis. from this arguments of evidence and of the conclusion began as I it. Our I this issue 188] end jury appro- counsel, give judge shall _” is abuse of discretion. of review standard added). (emphasis priate instructions judicial mind” in lack “a the trial court Did any er- argument that Therefore the State’s case in and the facts this the law view of. jury was the fact the ror is corrected admissibility? decision of arriving at phase guilt at the con- properly instructed jurist abuse of discre- once defined Another 23A- explicit terms SDCL flicts with target. You did not shooting at tion as 27A-3. bulls-eye need to hit but did need to hit the Further, nothing in the there is [¶ 196] herein the trial I would submit target. to reflect the non-law-trained record target. hit the court pressure-packed of situa- jury, in this most did, tions, accurately recall could TWO, THREE, [(cid:127)¡¡189] ISSUES previous- it had doubt instruction reasonable SIX, FIVE, AND SEVEN phase given during guilt ly been I concur. in the not have that instruction trial. It did hearing. A penalty jury with it at the room FOUR ISSUE
A191] phase jury instructions penalty review FAILURE A TRIAL COURT’S DOES in- guilt phase no reference to shows THE THE JURY AS TO structions, phase TO INSTRUCT instruc- penalty do the nor “REASONABLE DEFINITION OF jury to recall or refer back tions direct the THE instructions, AT SENTENCING DOUBT” its phase based on guilt REQUIRE AND REVERSAL HEARING many of the bench memory. How members THE VERDICT JURY’S VACATION OF accurately recite the reasonable bar can DEATH? memory? OF This clear- from doubt instruction ly of an obvious and substantial was an errоr majority reverse on would As penalty phase instruc- as the other nature One, not reach this issue. With it did Issue “rea- at least ten references to tions made affirmed, I my Issue One should view that instructions without doubt” those sonable this issue on the compelled to address am defining the fact that the above it. Given merits. required the trial court specifically statutes person Dakota a cannot In South of reasonable on the definition to instruct jury unless the deter- to death be sentenced so, I fact it failed to do would doubt and the aggravating factor the existence of an mines therefore Moeller plain error and hold this is doubt. SDCL 23A- beyond a reasonable appeal for review on not waive the issue did correctly in- Herein the 27A-5. to this Court. guilt phase of the trial as to at the structed *39 argue However, proceeds to The State then of reasonable doubt. the definition statute, violation of a if this is a technical sentencing phase, to inadvertence at the due affecting the defect it not a structural given. no similar instruction
507
or,
words,
in other
it is
fairness of the trial
CONCLUSION
harmless error.
I would affirm the
conviction
jury is the final
[¶ 198] When the
sentenc-
charge.
I
murder
would reverse and remand
er,
jury
it
that the
properly
is essential
be
penalty
on the
verdict of death to allow the
all
sen-
“regarding
instructed
facets of the
impanel
jury
a
State to
new
for
retrial of
Arizona,
tencing process.” Walton v.
497
phase.
penalty
If the
elects not
State
3047,
639,
U.S.
110 S.Ct.
L.Ed.2d
so,
do
the conviction for
the first
murder
(1990),
Louisiana,
325,
Roberts v.
U.S.
degree under SDCL 22-6-1 would be life
(1976).
3001,
S.Ct.
In Sulli-
49 L.Ed.2d
imprisonment in
penitentiary
the state
Louisiana,
275,
v.
van
508 U.S.
113 S.Ct.
possibility
parole.
no
for
2078,
(1993),
Supreme
reasonable doubt in instruction is a
structural constitutional error
which cannot harmless. The reason is be
obvious: ‘beyond
But
connection
the essential
law. This was a
statutory magnitude. and Constitutional