State v. Moeller

as, (stating 540 N.W.2d at 665 that such to a “entirely

information is irrelevant re- ...

viewing is] court bound [it provided issuing magis-

information more.”). may nothing

trate and consider

Furthermore, person’s propinqui- “a mere

ty independently suspected to others not, more, activity

criminal does without cause

give probable rise to to search Ybarra, 91,

person.” 444 U.S. at 100 S.Ct. (citation 342, 62 L.Ed.2d at 245 omit-

ted). majority opinion,

[¶ 36.] As noted present good State failed faith Therefore,

exception to the trial court. we

should reverse and remand. AMUNDSON, Justice, joins

dissent.

2000 SD 122 Dakota,

STATE of South Plaintiff Appellee, Eugene MOELLER,

Donald Defendant Appellant.

Nos. 20154.

Supreme Court of South Dakota.

Argued Oct. 1999. Aug.

Decided 2000.

Rehearing Denied Oct. Barnett, General,

Mark Attorney Craig Eichstadt, Attorney General, Deputy Sher- Wald, Gary Campbell, ri Sundem Grant General, Gormley, Attorneys Assistant Pierre, plaintiff appellee. Butler, Falls, Michael J. Sioux David R. Arneson, & Gienapp Gienapp, Issenhuth Madison, appellant. for defendant and MILLER, Chief Justice Donald Moeller was previously tried, convicted and sentenced to death for rape the 1990 and murder of Rebecca O’Connell. We reversed that conviction in Moeller, State v. (Moeller I). At his second trial Moel- again

ler was of first-degree convicted rape first-degree murder and was sen- challenges, tenced death. among He things, other the denial of various continu- requests, ance the jury process, selection admissibility of expert testimony, and aspects several sentencing phase his trial. We affirm.

FACTS Nine-year-old [¶ 2.] Rebecca O’Connell (Becky) of Sioux Falls was last seen on the 8, evening May day, 1990. next body two men found her in a wooded area County, Dakota. Lincoln South An au- topsy vaginally revealed that she been had anally raped, and had sustained knife neck, back, shoulder, chest, wounds her hip, arms and hands. A pathologist con- cluded that she died as a result of a cut to vein.1 jugular her Donald charged [¶ 3.] Moeller was with rape and murder in connection with tried, Becky’s death. He was convicted 1. Paragraph 174 contains a ing more detailed Moeller to the crime. recitation of the circumstantial link- evidence

431 Decision appeal, we to death. On sentenced “ prior bad conviction because reversed may prop ‘A continuance intro- improperly had been acts evidence party ample had erly be denied when commenced trial The second request duced. for a preparation for or the time convicted and until the last again He was was not made 1997.2 continuance April ” Village Sanitary Dist. minute.’ Corson appeals. to death. He sentenced (S.D. Strozdas, 876, 878 v. 539 N.W.2d Iversen, 1995) v. (quoting Fanning 535 REVIEW OF STANDARD (S.D.1995)) (other 770, cita 776 N.W.2d omitted). stated, However, every is- an accused is otherwise tions Unless right to a reason entitled as matter of under an is reviewed raised Moeller sue opportunity to secure evidence on able State v. standard. of discretion abuse diligence appears behalf. If it that due ¶ 29, 402, Letcher, 88, 552 N.W.2d 1996 SD it, a mani procure has failed to and where (continuance v. Dar- requests); State 407 injustice results from denial of the fest ¶ 311, 36, 127, 321 556 N.W.2d by, 1996 SD continuance, the trial court’s action should Smith, 477 v. (juror qualifications); State Dowling, v. 87 S.D. be set aside. State (SD 1991); v. 27, 4 State 33 n. N.W.2d (1973) 572, (citing 211 N.W.2d 573 (S.D.1988) 26, Miller, (juror 38 429 N.W.2d Wilcox, 532, 535-36, 21 114 v. S.D. State 67, White, dire); v. 1996 SD voir State (1908)). 687, N.W. 688-89 New, ¶ 676, 681; 19, v. N.W.2d State courts Other factors trial 8.] [¶ (S.D.1995); State v. deciding whether or not consider must (S.D.1987); Olson, 408 N.W.2d (1) include: wheth grant continuance McNamara, 325 N.W.2d the continu delay resulting er the from evidence); (S.D.1982) (admissibility of opposing prejudicial ance will be ¶ 87, I, 548 N.W.2d (2) whether the continuance motion party; not over- opinions). We will (expert by procrastination, bad was motivated ruling trial court’s absent turn the tactics or faith on planning, dilatory bad that discretion. abuse of moving party his coun part (3) sel; moving prejudice caused to the grant ISSUE trial refusal to party by the court’s (4) continuance; there whether its The trial court did not abuse or de prior continuances have been requests denying Moeller’s discretion Thompson, Evens v. 485 N.W.2d lays. (citations omitted). trial date. (S.D.1992) a continuance of the 591, 594 re a continuance is Additionally, when Facts prepare, for lack of time to quested trial, coun Prior to Moeller’s ac whether the must consider court for prepare time to requests ample filed four for continuance cused has had sel time would additional date, trial and whether all of which were denied. the trial pre any to be better the defendant allow that, a result of these He contends 22A CJS Criminal go to to trial. pared denials, to be attorneys were unable his (1989). Law, § 624 argues trial. He adequately prepared for scheduling Medlin, placed trial court that the v. 353 In States [¶ 9.] United denied, (6thCir.1965), 789, trial over his fundamental cert. expediency of 793 F.2d 1860, 16 973, L.Ed.2d 683 process and assis 86 rights to due effective U.S. S.Ct. 384 a (1966), presented with the court tance counsel. Presiding Judge assigned Arthur lo judge at case was E.W. Hertz was the 2. The Honorable the first the interim between the second trial. the first trial. L. Rusch for trials, Judge Hertz retired. The and second 432 quate prepare to

similar issue. There defendant’s counsel amount of time for trial. argument persuasive. We do not find their inadequate pre- claimed time to he had pare, detailing long hours he had al- argues Moeller also [¶ 12.] ready spent and stressing on the case the trial his court violated constitutional attention other obligations diverted to rights interpreting SDCL 23A-44-5.1 practice. his court The trial denied the require to parties stipulate that both must motion, affirmed, appeals and the court of 180-day to a argu waiver of the rule. His relying attorney only on the fact that the ment had seems to be that the defendant rule, 180-day must waive the and that year been to a engaged close before trial requiring to such State consent a waiv time had period employed er, rights his process to due and effective pretrial numerous procedures prepare assistance of counsel were violated. This Further, for the accused’s defense. First, position 180-day is untenable. court had not noted counsel shown procedural rule is a of court and rule not a might what done to have been enhance his constitutional requirement. State v. Sor preparation Finally, for trial. affirmed ¶ ensen, 597 N.W.2d SD prejudice because it no found that ¶ 684; Fowler, 79, 11, State v. 1996 SD defendant from the denial resulted 391, 393; Erickson, N.W.2d continuance. (S.D.1994). N.W.2d “Violation of synonymous 180-day rule is with Here, period a of ten months violation right of a constitutional elapsed between time Moeller’s first ¶ Sorensen, speedy trial.” conviction was overturned and the time his Erickson, (citing 597 N.W.2d at 684 second trial commenced. The record 711). N.W.2d at essentially What Moeller attorneys shows that both of his defense only contends is that he not has a constitu diligently prepare worked effective trial, right tional speedy to a but he also job defense and did an in pre- admirable right has a constitutional to not have a senting a thorough case. State v. Cf. speedy argument wholly trial. This l$cks (S.D.1984) Lang, 354 (stating merit. that despite defendant’s claim unpre- approximately [¶ 13.] Moeller had ten paredness, procure he was able months from the date remittitur was trial). present seven alibi witnesses at filed in I prepare Moeller his defense. Moreover, it must be remembered that adequate This is an amount time. The attorneys both defense also represented trial court did not abuse its discretion in trial and first therefore denying requests. his continuance were familiar with State’s case and the concededly file. voluminous There was no ISSUE specific showing additional how time would The trial court did not abuse have aided the more in defense its denying its discretion in Moeller’s re- preparation. quest pre-trial continuance of the admissibility hearing. DNA place great

[¶ 11.] Moeller’s counsel em- phasis they on the fact that did not wait Facts request until the last minute a continu- After we reversed Moeller’s Indeed, they ance. filed request the first conviction, first hearing status was held eight almost in advance of months the trial scheduling and a proposed order was pre They date. claim experi- their combined sented to the parties. court estab cases, ence in defending penalty five death 1997, 13, January lished as the date for a cases, and over twenty murder led them to hearing Daubert3 admissibility pertaining conclude eight that months an anticipated inade- August DNA evidence. On 3. Daubert v. Inc., Pharmaceuticals, 579, 2786, Dow Merrell 509 U.S. 113 S.Ct. 125

433 testimony to rebut State’s con- objection to such their own filed an Moeller testing of the various DNA cerning PCR insufficient date, claiming that it afforded subsequently markers. The trial court objection was over- The prepare. time motion to admit the DNA granted State’s ruled. evidence, that it the Daubert finding met 11,1996, filed State December 16.] On reliability. relevance and standards of DNA evidence identifying the motions trial, to Moeller’s claim that regard was to at which to introduce planned adequately prepared not for the January he was the scheduled subject of later, hearing, the trial court stated: counsel days Moeller’s hearing.4 Six continuance of for the request every op- filed a The Defendant was afforded they that would hearing, claiming Daubert present evidence and portunity and time to discover adequate have advantage not take of choose not to [sic] State had not results because review the as- opportunity. that The court would all testing anticipated yet completed for the defendant sume that counsel trial hearing, After a DNA evidence. they were not afforded argue would that and re- Moeller’s motion granted court they because were not “opportunity” an 3, to March hearing the Daubert they pre- scheduled given the time wanted 1997. pare .... 19, 1997, Moeller February

[¶ 17.] On in- interpretation A fair facts hearing [the] continuance Daubert filed a third the defense’s claims counsel had dicates claimed that his request. He witnesses, had been unable they in time had no DNA test results received the consultant, review, and had they to consult with their meaningful to conduct expert adequate time to secure time not had the amount of had underestimated to com- hearing witnesses for the there now prepare, and that necessary “intrica- preparation of the hearing date mence existed conflict between the DNA is not in connection with The cies” expert’s the defense schedule. court would conclude that untimely, credible. The the motion as trial court denied pres- by the defense not to the decision opinion in a letter defense stating witnesses at witnesses or examine advance ent approximately three months’ had a tactical deci- hearing was testing DNA which the Daubert specific notice intent to create the made with the at trial. sion intended to introduce and not the result of appearance of error hearing on March At the Daubert opportunity do so. being denied 3^, 1997, requested and re- the defense contends that appeal, On standing objection testimo- ceived a complete necessary to have the it was concerning admissibility of the ny of the well advance attorneys con- DNA test results Moeller’s DNA evidence. that his defense ex- hearing, so of Daubert virtually no cross-examination ducted them time for could review expert perts no experts presented State’s testimony (1993). sought to introduce motions adopted the Daubert 469 We L.Ed.2d testimony (1) admissibility expert typing the D1S80 marker regarding standard for 482, (S.D. reaction) Hofer, 484 in State v. using (polymerase chain the PCR 131, 1994). also, Loftus, SD Sta6tev. (2) See technique; typing of STRs amplification 21, 167, 173; ¶ Bland v. Davison 573 N.W.2d using amplification Polymarkers the PCR 452, ¶92, 35, County, 566 N.W.2d (3) DQ-alpha technique; typing marker Co., 462; Kuper Elec. Lincoln-Union (4) technique; amplification using PCR 748, ¶ 760. Under SD 557 N.W.2d using the PCR APO-B marker typing of the Daubert, ensur- judge the task of the trial has technique; amplification estimation testimony ing expert's both “rests on that an probabilities of profile frequencies and match to the task and is relevant reliable foundation markers. these (quoting Hofer, N.W.2d at 484 at hand.” Daubert, U.S. at 113 S.Ct. 485). L.Ed.2d at 434 argues given of nu- been

hearing. hearing,” He because he should have suffi- testing State, he to delays by reports, photo- merous was cient time review the time to and bench work graphs completed not able to receive results in notes of DNA He prepare. testing He that the denial his lab. contends that asserts “only abuse received requests discovery continuance constituted an when and re- disagree. expert with a qualified viewed can it discretion. We be protocols, proper pro- determined whether Decision and were cedures standards adhered to 1, herein in Issue [¶ 21.] Earlier conducting, and interpreting the test re- ¶¶ 7-8, factors supra, we discussed the however, information, This goes sults.” to which re applied must be considered and evidence, weight of the not its admissi- requests. garding continuance Corson ¶ I, bility. See Moeller 548 at 22A Village, 539 878. See also N.W.2d at 484 that an (stating expert’s Law, Evens, (1989); § 624 CJS Criminal professional technical alleged deficien- 485 N.W.2d at 594. go weight credibility cies of the attorneys repre- Moeller’s also testimony admissibility); rather than its during ap- sented him the first trial and 1440, States v. 102 Beasley, United F.3d peal, amplification typing where PCR (8thCir.1996); States v. United John DQ-alpha marker were briefed and son, 947, (8thCir.1995); F.3d Unit extensively by Upon query discussed. Martinez, 1191, ed States 3 F.3d court, trial Moeller’s admit- one of counsel (8thCir.1993), denied, 1062, cert. 510 U.S. ted to on being put early May notice as as 734, 114 S.Ct. 126 L.Ed.2d 697 planned June of 1996 that State to (holding procedures that deficiencies go introduce evidence of The typing. APO-B weight admissibility); to rather than Fu early defense also had notice as Decem- Commonwealth, 931, gate v. 993 S.W.2d ber other 1996 of the markers that State same). Thus, (Ky.1999) (holding con Moreover, planned to a DNA introduce. trary argument, impera to his it was not expert appointed for Moeller in Octo- tive Moeller receive results of the 1996, expert ber for present and this testing prior DNA to the Daubert heari all State DNA testing of evidence that was ng.5 admitted at trial. Consequently, the de- Because had ample [¶ 24.] Moeller time fense had reports access first hand prepare for the DNA-related methodol- testing Finally, being conducted State. ogy discussion conducted March one previously granted continuance was Daubert hearing, the trial court did give the defendant additional to pre- time in denying abuse its discretion his pare. Moeller has not specifically shown for motions a continuance. how aid- second continuance would have defense, ed his of a presentation other ISSUE 3. say than to it would given his counsel have prejudicial It was not error more time to prepare. jurors prospective refuse remove argues it is “[w]hile cause. true that a general knowledge of PCR Facts technology, general legal issues con- cerning admissibility During under Daubert of selection process, DNA typing prior eight reviewed there were venirepersons could that Moel- result, 5. accept proposition remaining Were we preliminary Moeller’s marker con- 23, that he needed the results of the DNA tests in January clusion was included in the begin preparing order to for the hear- Daubert discovery. preliminary That result was con- ing, position is still without merit. expert February firmed on State's record he shows that received APO-B Thus, Moeller had results in his addition, evidence on December 1996. In possession more than 5 weeks in advance he received all final other marker results ex- hearing. the Daubert cept January one 1997. For the one

435 Rhines, 55, 1996 SD of the case.” based on their side for cause challenged ler (citations omitted). ¶ 41, at 430 548 N.W.2d regarding questions to counsel’s responses denied responsibili- The trial court penalty. primary One of the the death all exhausted court to make certain ties of a trial is challenges. strikes, eight impartial jury a has been peremptory fair twenty of his trial. venirepersons that for the defendant’s on the selected were used which predetermined a expression mere for cause. challenged were during voir dire opinion regarding guilt Moeller contends appeal, 27.] On [¶ juror A per a se. disqualify does not challenged for jurors to remove the failure juror should be excused for potential perempto- him exhaust his forced cause juror to set aside cause if that is unable him with insufficient challenges, leaving ry impartial an and render preconceptions challenges to strike one seated peremptory juror’s Determination of a verdict. He have been stricken. juror who should upon must be based qualifications jurors prospective that five of the argues examination; “single iso- whole voir dire inability to serve a constitutional evinced not determinative.” responses lated are evinced and four others6 impartially 127, ¶ 34, at 556 N.W.2d Darby, 1996 SD inability impartially. statutory serve 220). Hansen, (citing 407 N.W.2d 320 Decision ju determining prospective whether a cause, the be excluded for Unit ror should will reverse “Before we applied the Supreme ed Court has States for cause refusal to disallow a trial court’s Would the individual’s following standard: show movant must jurors, potential “ substantially impair ‘prevent views the trial resulting from prejudice actual juror of his duties as performance 127, Darby, 1996 SD decision.” court’s his instructions and accordance with ¶ 36, (citing State v. 556 N.W.2d at 321 ” Rhines, 55, ¶ 44, 1996 SD 548 oath[?]’ (S.D. 613, Thunder, N.W.2d 620 466 Blue Wainwright “ v. (quoting at 430-31 N.W.2d 1991)). only error exists ‘Reversible 844, 852, Witt, 424, 412, 105 S.Ct. U.S. material can demonstrate where defendant (1985)). 841, ” L.Ed.2d 851-52 Id. prejudice.’ Moeller contends writ questionnaires and Dakota ten answers Both the South [¶29.] jurors prospective responses dire guar voir States Constitutions and the United Desehamp, Kinniburgh, Drabek Raftery, jury. by impartial an antee trial strong pro all indicated a VI, 7; Traphagen § amend. art. U.S.Const. S.D.Const. automatically impose the death Illinois, 719, 728, pensity VI; 504 U.S. Morgan v. that sub additionally argues He penalty. 119 L.Ed.2d S.Ct. ¶ those indi Rhines, attempts rehabilitate (1992); sequent v. State an erroneous basis Hansen, gave judge 415, 430; 407 viduals 548 N.W.2d (S.D.1987). challenge for cause. State deny “Jury selec responses were elicited ensuring responds such important means of tion is pic gruesome the defense showed to when process designed dire right. The voir venireper- to the the crime scene who tures of from the venire persons eliminate opinion. them for an asking before to either sons they cannot be fair demonstrate made outside statements court based on Although he was forced to she he claims that attorneys. challenges prospec- Because peremptory on one of State's four of court to use court, for jurors have been excused was not tive statutory who should she was excused she cause, ju- Therefore, actuality of those one among panelists selected. the 56 court, and Moeller brief, rors was excused we contrary claims in Moeller’s challenge peremptory did not use showed actual consider whether she need not cause, being passed juror. potential After of SDCL 23A-20-12. bias in violation by juror was excused potential Mueller Also, that the responses, State contends defense did Based on these Moel- adequately pro- challenged Raftery the bifurcated ler’s counsel explain for cause. case, cedure in a murder capital responded following expla- therefore with the potential jurors’ responses sentencing phase: the were nation of the based on After review- incomplete information. Q. up I want ques- to follow some ing transcript of each voir complete you. tions Mr. asked Butler And I’m dire, agree. we not process entirely sure the was clear. I’ll you through process walk Raftery you follow-up questions. ask some Let’s Raftery, the defense first 32.] With argument you assume for the sake Becky’s pictures body showed at guilty find beyond a rea- defendant crime the autopsy scene and before was degree sonable doubt of first murder. conducted. Defense counsel then asked Okay? you Then come back in for a whether, him viewing pic- even after mini-trial, sentencing hearing, kind of a tures, impartial; he could Raftery be re- speak. so to It would be a second trial sponded in affirmative. Counsel next or at hearing. And that hearing the moved the voir the topic dire onto of the purpose to would be what determine penalty. death asked what types When Okay. sentence The law in is. the State crimes would warrant death penalty, South Dakota and the United “Well, Raftery responded, the crimes in- juror States does allow a after good volved in this case would be a exam- they’ve guilty reached the verdict to ple.” explaining Without first the bifur- come in sentencing hearing here at that case, cated structure of Moeller’s themselves, well, say I don’t care counsel then asked: what at presented evidence is the sen- Q: Beyond you a reasonable doubt tencing want hearing, I to sentence this they were satisfied committed this life, person to heck with the evidence crime, you strongly would be inclined at at hearing. the sentencing Okay. That’s you that get judg- time make a rule number And the Judge one. would give ment about penalty them the give if you you that rule were selected penalty? death juror as a right? in this case. All So you would required A: be under the law I penalty. would vote for the death keep an at open mind the sentencing Q: you Even if had the alternative of hearing and to all listen the evidence life? presented at the sentencing A: Yes. hearing, only you after then heard all the evidence at the sentencing hear- Q: If somebody you not told to feel the ing you go back and make a determina- felt, words, way you you know, in other Now, tion what the sentence should be. you’ve about, well, heard a lot here if hearing you this sentencing can count Judge going you order to do on the fact that I stand you would before this, this and you you instruct to do and I would argue is one of those realize a fallacy that’s kind of in way. special types murder under South just You somebody can’t tell to stop subject Dakota law which is to the death feeling something. penalty. prove And I have to A: Right. it’s America Because and we you beyond a reasonable doubt that this all have opinions. is one of classes or special catego- those Q: Right. your opinion And here Okay. ries of Then murders. the defen- just by wouldn’t changed somebody dant, to, to, if he wanted he doesn’t have telling you to it. change but you in addition all the evidence A: No. may original have at the heard trial the explanation sentencing phase evi- present could additional defendant sentencing hearing. For thus: at the dence instance, may cases a defendant some Q. purposes For our discussion let’s may attorney up argue stand say you guilty found Mr. Moeller fact into account the argue. Please take year rape and murder of this nine or fifteen my client was fourteen girl. government old And then the at a you Can happened.

when this murder would separate hearing, be after maybe into account? Or take that guilt, the determination of would then into account the they’ll say, please take say special and a come forward this is had a mental defect my fact that client kind of case under South Dakota law really happened and was at the time of a punishment that makes the death right in the mentally and wasn’t affected possibility. You’d have two choices. mind, take that into please frame of parole Life with no or lethal death may say, please take they account. Or injection. strength your Given the of client history my that into account feelings rape, about the crime of obvi- endure, to let’s talk about has had very strong and no doubt ously feelings person that this went family life terrible by many people, and this is a shared talk about the circum- through and let’s case, you got if to that and point murder brought were they stances under which options you there was two available to Hopeless environment. Let’s talk up. you already and found Mr. Moeller that into ac- that. Please take about guilty, you strongly be inclined or would doesn’t have to Okay? count. Defendant leaning heavily penalty toward a that, I don’t present any evidence like point? at that death could, But you. to he want mislead you sitting here as okay? And would be under juror you required a would be Q. you got point you If to the where that the law to consider evidence appropriate had to determine what the sentencing at that hear- put forward was, punishment Judge and of course ing. Okay. per- And the law would not say way can’t vote that or vote Rusch you up your mit make mind on what way, attorneys can come before you’ve the sentence should be until after you try you argue persuade evidence after heard all determine, I’m you. trying And what you’ve all of the considered evidence you please I’m correct misreading and if and, if meet fairly go and then back we me, strongly you I feel but know how this is one of those our burden talked about it rape about because we’ve cases, types you’ve and after special allega- given type here. And that evidence, you all the then considered you strongly leaning here would tions be permitted impose penal- would be you a of death if punishment toward pro- ty Okay? You follow death. my guilty? find client were to way cess the it’s set out? so,

A. Yah. say yes. If A. Yes. the evidence Yes. giving explanation, After [¶ 34.] Raftery that he would be able indicated challenged Des- The defense also evidence, judge’s all the follow the

listen to cause, presented an champ for and State sentencing phase, instructions as to the given to Raft- explanation similar to that way and not lean either until he had been description of the ery. thorough After a everything. with presented that he would be process, Deschamp stated Deschamp all into account and able to take evidence instructions be- judge’s A oc- would listen questioning process similar or death. a decision as to life making fore Deschamp. curred with Defense counsel’s Kinniburgh specifically clarifying asked for more infor- sentencing phase: mation about the “Are Kinniburgh gave seemingly [¶ 37.] After have, that, you supposed if it came to conflicting to the defense answers something you’re supposed there to base questions, questioned State’s the court her: your decision on with those?” - Q: I Kinniburgh, you Ms. let me ask Later, gave thorough, eas- couple questions, may. if I ily explanation understood of the sentenc- Okay. A: ing phase, following after which the ex- Q: you saying It felt like I heard oppo- change place: took - things site I there. Q: I Okay. guess And the question that A: Right. is, we need you willing to know would Q: clarify And I need to that. Be- juror to keep open mind until cause, you very clearly Mr. told Butler you’ve heard all of the evidence at the that, know, you you once were convinced sentencing phase you before up made guilty that this defendant you your you just go mind or would into would feel that really there was no other sentencing say, automatically I’m you option that would consider other going to person sentence this to death? penalty. than the death - realize, A: I guess didn’t I I guess A: Right. way you explained just, it that I Q: yet And you I heard saying Mr. I when, that’s what trying to ask you Abdallah that would fairly consider know, you when he’s convicted if he’s other options. these guilty convicted without a reasonable A: Yeah. in your doubt mind after evidence that - you have these two choices and that was Q: Now, know, any I don’t have you it, that’s the end. I didn’t realize that it doesn’t matter to me which of those it - they maybe could come off is, saying Ibut need to know — had, person has was abused or A: I guess I didn’t understand the ad- Q: Right. Exactly. ditional sentencing evidence at the hear- - — mean, ing. I I I would have an A: open or to of that degree. mind in considering that additional evi- Q: they to, And if they could wanted - dence before all of the evidence before present that kind of evidence. What making a final decision. Gienapp you, Mr. wanted to ask would Q: Okay. you you willing Do feel considering type then to listen to that strong you feelings got presented, have evidence if it was keep about in an favor of penalty open the death that mind and after hearing that’s a all the evi- option, realistic you really that could dence then make a decision as to wheth- sincerely evidence, consider er not impose that other or the death penalty or you or would go impose prison. into that with a life in precon- ceived you going idea that were im- A: Yes.

pose penalty? the death Q: keep open Could an mind. A: Open mind. (Affirmative A: response.) Um-hum. Q: Okay. I Based on that am going to Q: Honor, Your we would resist deny challenge. [the defense’s] challenge. Drabek, THE just COURT: Ms. I want Drabek you question ask to make I sure ostensibly [¶ 38.] After the defense ex- it. you indicating understand Are plained sentencing it phase, you asked Dra- would follow the Court’s instructions bek whether she automatically would im- in making that decision about pose the penalty. death In response, impose she whether penalty you the death impression being evidence that she was not fully

would consider the understood, Traphagen you’re preconceived stated: both sides - automatically impose the you would Perhaps help say it would can I some- penalty? death My thing? opinion, thought and I’ve my I about ... guess opinion Yah. I when was it lot on the A: Because once death thought penalty, to ask him I because I’ve never been trying he’s, you close to a there’s somebody if was convicted case where been a crime, say they way you anything it wouldn’t I’ve never been close to saw that they personally you thought where there’s been a violent guilty were unless evidence, someone, just crime against everything from the so I so guilty were choices, I your here’s have to draw on is what I would point felt like at that against to this feel if were committed me or going happen this is what is it pa- my family. my life without And that’s I find either it will be where person, death, me, opinion. something against If or that’s it. Those were our were role something my my if point. against family, I didn’t realize choices at were child, you that’s I would it go that it would on and would hear how feel. Since be, way of argument particularly either which would not this case [sic] of, anybody way you go with it. isn’t that I’ve even heard should known, you’d anybody I’ve ever have to say- Okay. you’re THE But all COURT: to everything sit and listen either way you willing would he to consider ing is happen If because didn’t to me.... that? something happen my child were to A: Right. happen what I would that want automatically THE You’re not COURT: person. I know right And that’s not — committing to the death why I wrong but that’s how I feel and point I the thought A: No. that was So, way. yes, feel that I would have to we’d make our decision. every listen to side. I would sit and open- have to sit and listen to and be Traphagen know, say, you you say if minded and imprisonment the for pictures after the that life is best viewing [¶ 40.] Even victim, man, incomplete if a the and after an de- this he’s been convicted of crime, if all the indicates that scription guiltypenalty of the bifurcated evidence you say prosecution process, Traphagen guilty still not he’s and then panelist did order, in says penalty you the death express strong propensity a to automati- for cally penalty. invoke death have to listen to the other side and Consistent reason, know, and questionnaire, any particular you with the answers on her you go have to listen to both sides and Traphagen began her discussion of the you go. that evidence which should penalty general death with the statement on - Because, say, like I it’s not it’s although thought she should be mandatory against say in me so I can’t involving personal cases murder die, children, when yes, they in those there are deserve to I’ve based even cases my feelings any- on like my opinion circumstances that should be extenuating cursory thing happened you if it to me. So expla- After the most considered. and be process by nation of the bifurcated would have to listen to both sides defense, per- if it’s not open further to both sides because Traphagen opined sonally against in mind” when me. someone was “not their crime, perhaps committed a then they penalty not warranted.

death would to both you But would have to listen know, you goes and if it into by arguments, lengthy questioning 41.] After a [¶ defense, sentencing stage you point at that and to apparently response my point you have to knowledge obligation upon pres- at this the defendant to everything mitigation. listen to both sides and take ent evidence best, if that’s the account and find panelist [¶ 45.] Moos was another who punishment. best gave an incomplete answer based on infor- response question mation. In Despite Moeller’s assertions to defense, she indicated that she would not contrary, spontaneous, insightful consider a life sentence once the defendant did not har- Traphagen oration shows had been guilty aggravated found mur- automatically strong propensity bor However, der. the record reveals that the penalty. invoke death defense had not adequately explained the sum, not find an 43.] we do indica- [¶ sentencing phase asking of the trial before jurors challenged tion that of the five question. explained Once State possessed strong inclination favor of the her, process to and the trial court followed penalty. death is correct he when up with further questioning clarify her jurors qualified states that search for “[a] position, Moos stated she would be ping pong game.” should not be a This able to consider all before deciding factors ping pong approach qualifying potential on a sentence of in prison. death or life jurors through could be avoided use When to explain seemingly asked her con- complete, accurate information about the answers, tradictory Moos stated that her process. entire trial The trial court did questionnaire answers on the and those not abuse its in denying discretion Moel- given to longer correctly the defense no challenges ler’s for cause for these five views, reflected her because had she been venirepersons, and there was no violation “enlightened system how works.” right of his constitutional to an impartial Finally, as noted the trial jury- court, panelist “obviously Hiland was very gruff individual” as reflected in his Similarly, we find no statu responses to the ques- defense’s voir dire tory denying violation7 in Moeller’s chal However, nothing tions. there was in the lenge jurors. cause to the other He record that indicated he possessed any panelist contends that Scott indicated she animosity fact, toward the defendant. require would to carry defendant he stated several times that he keep would burden of proof. by This is contradicted open mind and his decision would be which, full review of the entire voir dire upon based the evidence. jurors discussed, like those previously shows that response Scott’s ju based on A [¶ 47.] determination of a an incomplete understanding of penal qualifications upon ror’s must be based ty phase examination, and which had the side burden of whole voir dire upon “sin proof. explanation by State, After an gle responses.” Darby, isolated ¶ upon court, questioning by further the trial A N.W.2d at 320. review of Scott indicated that she would follow complete voir transcript dire shows court’s instruction impose and would not that the trial court did not abuse its discre- 15-14-6(6) (7) (2) 7. Moeller cites SDCL Actual bias. authority showing statutory inability for a of a Actual bias is the existence of a state of pertains juries. to serve. That statute to civil part juror, mind on the aof in reference gov- The statute in effect at the time of trial party, to the case or to either which satis- erning challenges for cause in a criminal case court, fies the discretion, in the exercise of sound 23A-20-12, provided per- was SDCL which in try that he cannot the issue part: tinent impartially, prejudice without to the sub- specific challenge A for cause that a is rights party challenging. stantial of the juror disqualified serving from in the repealed. SDCL 23A-20-12 has since been case on trial because of: SL 1999 ch. 285. bias; Implied or challenges denying permitted. in Moeller’s toward evidence is Id. tion “While cause, prospective jurors may been shown there questioned because it has not not be statutory viola- any respect hypothetical were constitutional with sets of facts jury.8 impartial trial, to an right expected proved tions of his to be thus com- advance,

mitting they them to decision may subjected hypothetical be questions ISSUE about their mental attitude toward certain did not abuse The trial court [¶48.] Miller, types of evidence.” 429 N.W.2d at sustaining pros- certain its discretion State, (citing Hobbs v. 277 Ark. objections by dire de- ecution to voir (1982)). 9, 12 S.W.2d fense counsel. A review of the voir dire tran- Facts scripts questions posed by reveals that the During process, the voir dire an attempt get defense were in fact attempted poten- Moeller’s counsel to ask potential jurors case, prejudge jurors they tial whether could vote for life hypothetical questions whereas the asked imprisonment parole without where the by no relationship any State had facts at any did not evidence defense introduce issue in merely given the trial and were mitigation sentencing phase. at the explain legal process. A typical exam- objected questions, to each of these claim- ple type of questions posed by the ing required venireperson it questions defense are shown asked objec- The court sustained the speculate. potential juror Moos: appeal, tions. On Moeller contends that Now, Q: Mr. Abdallah talked to you argues was an abuse of discretion. He about the fact that the put defense could merely an at- questions that such were mitigation you evidence on in indi- tempt potential to determine whether you cated that would consider that? juror life if imprisonment could vote for Right. A: New evidence. the defense did not introduce evidence Well, Q: be wouldn’t new evidence. mitigation. posits prosecu- He that the A: Well. hypothetical tion was allowed to ask Q: But there is no burden on the de- speculative questions potential related to fense to do that. mitigation testimony might intro- Right. A: duced the defense. Q: What if the didn’t do that? defense

Decision object, I your Mr. Abdallah: would Hon- Counsel is allowed rea Asking speculate. or. her to in questioning prospective sonable latitude The Court: Sustained. Smith, 4; jurors. All at 38 n.

Miller, Moreover, Q: 429 N.W.2d at 38. You understand that the defense jurors’ hypothetical probing put mitigation? of attitudes does not have to on just any right 8. We find no cause that would have war- under the Federal Rules of Criminal challenged ranted the removal of Procedure or the Constitution. United States However, Martinez-Salazar, -, jurors. were we the trial U.S. S.Ct. to find (2000). failing potential erred L.Ed.2d But see State v. court to remove a Etzkorn, cause, (revers- reject juror for we still 552 N.W.2d 824 would Moeller’s argument ing remanding where: that the failure to remove the chal- and a DUI conviction (1) lenged jurors per- erroneously to remove forced him to exhaust his the court refused cause; (2) emptory challenges. jurors The States Su- two for Etzkorn exhausted United preme recently peremptory challenges removing Court held that if a defendant his the two incompetent jurors; alleged elects to cure the refusal of a trial Etzkorn erroneous jurors judge potential juror appeal a the names of several he to dismiss for cause on using peremptories exercising peremptory challenge, removed a and is would have subsequently by jury peremptories on convicted a on which no had he not exhausted his sat, juror deprived incompetent jurors). biased he not been two has sustaining an Right. A: abuse its discretion such objection. talk- Q: when Mr. Abdallah was Then saying you’d ing you he was 5. ISSUE considering mitigation the de- you responded yes, fense I’d put on The trial court did not abuse its [¶ 55.] making that before a decision. consider allowing to offer into discretion State typing evidence results of APO-B DNA Right. A: request by expert working at its an done Q: you nothing if had Right. What for both sides. consider? Facts objection, your Mr. Abdallah: Same trial, prior to the first Honor. samples sent swabs and to Dr. State blood objection. The Court: Sustain Schanfield, Analytical Moses director In comparison, hypotheti- State’s (AGTC). Testing per- Genetic Center He explain application cals were used to formed serological conventional tests and procedure the law and the used at the DNA extracted so that it could be sent to poten- See voir dire of sentencing phase. testing. another lab for At the time ¶ juror Raftery, supra, tial Issue 3 conducting testing. AGTC was not DNA developed capabilities It sodo sometime Although it acceptable is to use shortly thereafter. hypothetical explain fact situations to legal concept application, January 24, 1992, or its im- On proper jurors to then potential appoint ask how filed motion to Dr. Schanfield as they respond hypothetical would expert purpose for the defense “for the given. conducting situation once Herein lies the dif- testing forensic DNA in the between what ference Moeller’s counsel instant and review replication case did and what State did. It was proper for those tests conducted the direction of hypothetical concept State to use the of a of South Dakota in the instant 15-year-old person mental defect or a A hearing day. case.” was held the same explain the concept mitigating exchange of a factor. The was as follows: However, it would have improper been I Court: did want to talk about it to potential juror then ask the whether defendant’s expert witnesses. How are he impose would life sentence or death that, going we Mr. Butler? upon hypothetical, especially based if today Mr. Butler: I do have an order truly those were the facts of the case. - along regarding with the affidavit if I question “staking Such a would be akin may approach the Bench? potential juror’s responses, out” the Yes, The Court: do so. permitted. generally that is not See Anno- Mr. Butler: From the Testing Genetic tation, Propriety asking pro- and effect of Institute as it concerns the additional spective hypothetical jurors questions, on my understanding, again tests.... It’s dire, they voir as to how would decide Masten, talking to Mr. we should not case, (Later 7, § issues 99 A.L.R.2d any difficulty formally encounter in 1993). Case Service agreeing to what needs be submitted po- [¶ 54.] When defense asked the to Mr. Mr. Schanfield.... Masten indi- jurors they tential whether could might vote for cated it be advisable to discuss or imprisonment life where there was no evi- point out for the Court that I have dis- dence in mitigation presented, it was an particular point my cussed this with attempt a get prejudgment agreement from the client and is in he with the jurors. objection An a question making to such I’m seek- decisions least as to proper, was and the trial court did not ing expertise. true, 1, 1992, Mr. May

The Court: Is that Moeller? On Schanfield re- samples. ceived defense At the direction Yes. Mr. Moeller: defense, of the DNA was extracted but no tests were conducted. The decision not to just I Mr. Masten: One issue that want- any conduct DNA tests on samples its was record, in Your Honor. ed The a strategic choice the defense. One might inquire want of Mr. Court 12, 1992, month on later June Schanfield regard Moeller in to the defense’s ex- Frye testified for State at the on hearing9 - Mr. Schanfield. Mr. Butler I pert admissibility the issue of the of DNA PCR- Butler when we had made Mr. aware testing DQ-alpha based of the marker. telephone discussions when one these testifying Frye [¶ 59.] After at the hear- expert, up was an it came looking he ing, approached Schanfield State and in- name, just I because remembered it formed that his lab had developed part Dakota as the State South capability to conduct PCR-based APO-B investigation in this case submitted some typing. State sent a letter to the defense sperm samples, two of the samples, 17, 1992, on June asking they whether Dr. lab in I it was Schanfield’s believe pursue intended to testing APO-B using some testing 1990 for advance en- According with Schanfield. to Moeller’s Dr. zyme technique. So Schanfield’s lab attorney, responded he to the letter samples testing had our and did for us indicating inquiry that the premature they proposing 1990 and are hire yet because the trial court had not issued a him as a I expert. now defense don’t Frye hearing decision from the on whether that, have a I want problem with but did to admit typing. PCR-based Addi- tionally, it in the record so that if there was ever counsel indicated that he wished to review proceeding habeas came out Schanfield’s validation studies prior deciding pursue to his whether that the State and defense both used testing. such He claims he did not receive laboratory the same we couldn’t be ac- studies, Schanfield’s validation but instead dealing. cused of double only typ- received an article about APO-B Mr. Butler had mentioned Court: ing. It to me earlier. off of the receiving After no indication from I get record but assumed that would pursue the defense that it intended to the record at point some time these Schanfield, typing APO-B with di- State proceedings. rected him to conduct the tests point Mr. The other I would Butler: samples. The results failed to exclude make, Honor, I fully Your disclosed all possible Moeller as a semen donor. On Moeller, fully that Mr. ap- he is August approximately two weeks prised very of it. IAnd discussed that trial, into Moeller’s first State filed Schanfield, thing with Mr. he did not proof seeking offer of to introduce evi- its I perceive that as conflict. And did a A typing. dence of PCR-based APO-B preliminary discussion with the Court hearing day. the same The de- was held and the I not Court did do objected fense to the introduction of such it. I perceive hope So therefore we evidence, asserting untimely it was have resolved matter. Frye hearing offered and that a was neces- signed appointing The court an order sary in order to determine its admissibili- expert Schanfield as defense “for ty. The trial court denied the State’s offer purpose conducting replicating cer- proof, and the evidence was not APO-B tain DNA tests.” admitted at the first trial. States, (D.C.Cir. Frye “generally accepted” v. United 293 F. 1013 as reliable in the rele- 1923) (holding expert that in order for scienti- community). vant scientific admissible, testimony fic to be it must be

444 trial, Prior the second [¶ 64.] State Moeller cites v. Hutchinson Peo- (Colo.1987), ple, filed a motion to introduce Schanfield’s 742 P.2d in support There, response, In position. APO-B evidence. the de- his the Colorado Su- prohibit preme fense filed motion to the intro- held that prosecution’s Court case-in-chief, grounds expert duction of such evidence on the of use of a defense in its waiver, al- prosecutorial misconduct. The motion the absence aof violated the leged knowledge approval that “without or right defendant’s to effective assistance of (The Defendant, of the Schanfield informed counsel. defendant had retained a laboratory purportedly handwriting that his analyst, [State] but decided not to use capable conducting typing a new him prosecution DNA at trial. The then subpoe- procedure known as APO-B.” It further him testify naed as to his conclusions alleged that State and Schanfield acted in regarding similarities between the defen- by conducting typing collusion APO-B handwriting handwriting dant’s and the on informing piece without the defense. Moeller a vital of evidence that inculpated the defendant.) argued though decision, that even the defense did In reaching its not have Schanfield conduct DNA court reasoned that the prosecution should testing, typing or have the APO-B proce- not be allowed to intrude into the confiden- done, dure Schanfield still did not have relationship tial between a defendant and authority to make such services available expert. knowledge

to State without his or permis- In response, State directs our sion. McDaniel, attention to v. State hearing After a the trial court (Iowa 1992), N.W.2d 630 wherein the Iowa denying entered an order the defendant’s Supreme prosecution’s Court held that the suppress. appeals, motion to ar- retainment of a psychiatrist who had ini- guing that inclusion of Schanfield’s tially conducted an examination on behalf attorney-client APO-B tests violated his permissible. defendant was It rea- privilege, his right Sixth Amendment to soned that the physician-patient privilege counsel, effective and his Fifth Amend- was not invoked cases where psychia- ment rights process protection to due appointed trist was paid by self-incrimination, against as well as his Further, state. it found there to be no rights similar under the South Dakota attempt privileged secure information Constitution. from psychiatrist, stating hold-

Decision ing otherwise “a criminal defendant could block testimony the State from the of like- [¶ 63.] There is considerable conflict of ly experts by procuring many as examina- authority as to under what circumstances many tions from as experts possible.” an. expert witness party retained one Id. at 633. testify will be allowed to upon request of party. the other Highway Comm’n Another case directly more Earl, 82 S.D. point than either Hutchinson or McDaniel (1966). Earl, after surveying other is State v. Bockorny, Or.App. jurisdictions’ treatment (1993), of similar situa- P.2d 1230 where the defendant re tions, we declined to attorney- extend the expert tained an to testify whether materi privilege client to cover the services of al pair found on a of scissors was blood. appraiser real estate who had first com- The defense also discussed other issues pleted appraisal defendant, for the and with expert, but decided not to have who was later testify by called to plain- testify him aspects as to those case. tiff. We reasoned that testified, “[t]he mere fact Before the expert prosecution expert may have communicated his contacted him concerning his anticipated opinion of value attorney to either the testimony During about the scissors. client conversation, does not make it a privileged com- prosecutor also asked the munication.” Id. at expert 143 N.W.2d at 92. analysis about a certain method disingenuous to the It is that was scissors. The somewhat for unrelated Moeller prosecution the expert argue later contacted that he knew that AGTC had analysis testify offered to meth- [only] been hired to serological do work od, accepted. Conse- prosecution and didn’t anticipate AGTC would testified for quently, expert the de- do DNA work for the State because he regarding fense scissors and for the knew that a relationship with the State prosecution analy- the unrelated regarding reasoning existed. The same could be ultimately sis method. The defendant was used argue that AGTC had been charged. convicted of the crimes by hired the Defense to do DQ-alpha testing way and that the State had no Bockorny court appeal,

[¶ 67.] On knowing the Defense interested that, was if an dispute stated: “There is no in APO-B It is testing. unrealistic to give expert willing opinions is to both attempt sides, difficult, to draw such narrow lines hold- placed in a litigant can be ing that an can expert employed at for impossible, if not trial. How situation ever, one prohibited by purpose purpose not and one only is a situation law.” party Id. at 1235. It reasoned that since can talk to hired him expert only with the respective consulted about that narrow topic while talk- case, parties aspects unrelated ing only party the other about the and there was no evidence that he shared topic they narrow for which hired him. confidential with the information other side, no or work attorney-client product ... impose the court is to [I]f

privilege had been violated. prohibition absolute on communications by expert counsel with an who has al- considering appli After [¶ 68.] ready employed by been the other party, legal persuaded cable we are principles, then had the Defense no business talk- that the trial did not abuse its discretion ing place. to AGTC in the first If the allowing testimony in Schanfield’s concern case, facts were different either Here, ing APO-B evidence. Moeller’s as in that there was revelation of defense sertion of error down to an allegation boils expert, if communications to the not Schanfield should have told the expert had prosecution by first been retained developed that he had the ca defense, would pability the court have no con- typing. to conduct APO-B We attorney-client see no violation of the cerns with these test re- privi suppressing communication, lege sults, facts, in such a especially given actual there but merely to general develop when it relates justification that. doing no for ments in technology. no There was abuse discretion Moreover, we do not accept in admitting expert testimony, Schanfield’s logic argument of Moeller’s that the State because both aware that he sides were only prelimi- had retained Schanfield performing work for the other side. While nary serology work and that his DNA we do practice by any not condone such services were reserved defense. In- witness, prejudice. we see no deed, at the State utilized time Schan- yet field’s services in his lab did not ISSUE capability have the conduct forensic did not abuse trial court analysis. why DNA That is he admitting its a belated re- discretion DNA expert. retained as a State Similar- expert, port failing State’s soil ly, he was retained the time admissibility hear- conduct a Daubert expert, defense he had acquired as DNA ing testimony. expert’s on the soil DNA DQ-alpha capabilities, but he typing Facts yet had not begun conducting typ- APO-B I, Wehrenberg, John ing. the trial agree apt We with court’s specializ- retired who professor geology observations: 446 soils, opining rarity on the of April 1997 letter of sub- in forensic examinations

es 9, 1991, testimony to that May con- well as his gahnite, a dated as report mitted effect, He sample soil taken from an abuse of discretion. cluding that a was pickup was so left front fender of Moeller’s late disclosure of the re- asserts that the many ways in to soil taken from by expert to port testing similar his soil prohibited that the two soils could crime scene question in whether the mineral determine Among place origin. the same of have had Additionally, he con- gahnite. was indeed in locations minerals identified both neces- hearing tends that a Daubert was gahnite. called was one reasoning whether the sary to determine underlying Wehrenberg’s methodology Wehrenberg submitted a second [¶ 73.] scientifically valid and ad- testimony was 7, 1997, regard- April to State letter dated the trial court did not missible. Because mineral concluding ing gahnite, conclusively to conduct tests to order State “very This letter was faxed to was rare.” mineral, identify or allow the defense day. the next Counsel Moeller’s counsel itself, a test the mineral or conduct time to 28, 1997, April in limine on filed a motion argues that such hearing, Daubert Moeller the introduction of seeking prevent be excluded. evidence should in the Wehrenberg’s conclusions embodied letter, arguing that the letter April 1997 Decision previously new conclusions not contained report the belated i. Admission of addition, that the they In contended seen. Sahlie, In State v. untimely and late letter was its disclosure 682, 687, 245 N.W.2d 478-79 S.D. give adequate them time to deter- did not (1976), can process “[d]ue we stated that accuracy mine the of the conclusion defendant not be satisfied unless the gah- was indeed question the mineral provided opportunity pos some to examine nite. exculpatory long enough evidence be sible hearing A on the motion was held opportu trial so as to have at least an fore Thursday, May on addition if evidence is nity to determine such or is motion, in the Moel- points presented exculpatory.” holding The was Sahlie argument raised the ler’s counsel later modified to the extent that omission hearing should be conducted re- Daubert longer, no with or belated disclosure was analysis method of Wehren- garding the exception, prejudicial out error. State soil After berg performed sample. on the (S.D.1979). Reiman, court hearing arguments, counsel’s de- Now, error, find order to the defendant motion, only in- finding nied the that the must establish the belated disclosure April letter formation added of evidence was material to the issue of rarity of Wehrenberg’s opinion Reiman, guilt, 284 N.W.2d at because to make gahnite. The court ordered State material, if it was not could not be expert Wehrenberg available to Moeller’s (citations process. violative of due Id. weekend, taking the (prior over the to his omitted). applies rule to both incul- This following Monday), witness stand patory exculpatory evidence. any questions order to answer the defense April had about the 1997 letter. On Mon- agreement are in parties Both May day, Wehrenberg testified rarity gahnite; Wehrenberg about the opinions concerning comparison mineral, “very characterized it as a rare” the soils at the crime scene and on Moel- Rahn, expert, de- Perry Moeller’s soil regarding gahnite. Moel- pickup, ler’s “extremely scribed it as rare.... Gold is requested ler’s counsel and received than gahnite.” more common Therefore objection testimony. standing to such gahnite indeed found both whether pickup Moeller’s and at appeal, argues that the wheel well of [¶ 75.] On strong piece was a Wehrenberg’s belated the crime scene the admission reasoning whether and material to the or methodology circumstantial evidence un- guilt. derlying testimony issue was sci- Wehrenberg’s admissible, entifically valid and and that aside, materiality [¶78.] issue such a hearing failure to conduct vio- claim, the late Moeller’s disclosure of rights. lated his process Specifically, due prohibited April report testing challenges Moeller the soil sample collec- whether expert his soil to determine the methodology tion the visual inspection and question gahnite, mineral in was indeed analysis by method of Wehrenberg used was mentioned in unfounded. Gahnite the identify question the mineral in gahnite. as twice,10 May report least it* 1991 at and at was also characterized the first as trial Wehrenberg’s [¶ 81.] Prior to testimony, being a mineral of “substantial interest” to orally requested defense counsel a Dau- Wehrenberg when he testified in State’s bert hearing. The court denied the mo- report case-in-chief.11 Both the 1991 and tion, its stating that in view the Daubert testimony at the Wehrenberg’s first trial standard was more liberal somewhat than placed that gahnite Moeller on notice had Frye the standard. court further possible piece been identified as a of evi- testimony found Wehrenberg’s report him crime linking dence to the scene. admissible upon qualifications “based the “ ruling he’s shown the of the Su- do equate late ‘[W]e preme in already regard Court evi- the suppression, especially disclosure with However, dence him.”12 tendered where, here trial record as indicates court did grant continuing objec- Moeller that defense counsel made use of the infor tion. Knecht, mation at trial.’” State v. 1997 ¶ 21, 563 421 (quoting SD N.W.2d 104(a) [¶ 82.] SDCL 19-9-7 and Rule Fox, (S.D.1981) State v. 40 provide Federal Rules of Evidence (citation omitted)). The trial court did not pertinent part: “Preliminary questions admitting April abuse its discretion in concerning the of a qualification person to report. be a witness ... shall be determined Daubert, the court....” the Supreme Allowing Wehrenberg ii to testify judges, Court mandated that when faced conducting without a Daubert first proffer with a expert scientific testimo- hearing. ny, “gatekeeping” preliminary conduct a prof- [¶ 80.] Moeller also contends that a Dau- evaluation to determine whether the hearing necessary testimony bert fered determine is allowable. U.S. at report particular comparison grain 10. The one were described were there that of sub- as, rounded, polished you? of soil "well brown- stantial interest to black, index, Well, high microscope isotrop- grains A: under in terms the mineral ic, (?).” was, gahnite certainly It also described another themselves with the there one, sample particle glassy significant "black rounded as hornblende was the the ru- index, tile, biotite, grain, probably high may spinel.” abe is a mineral that I there have According testimony Wehrenberg of both gahnite tentatively identified which is Rahn, gahnite spinel ais member of the rather rare which I found in mineral both group report, that, of minerals. Later in the when samples. gahnite And could con- comparing soil from left fender wells to individuating ceivably be an mineral if I scene, Wehrenberg soil from the crime re- gahnite knew more about the distribution of ported that he "Gahnite” identified in the left region.... in this front fender well and in two crime scene I, samples. 12.In Moeller we held that trial court permitting did not abuse its discretion testimony 11. was as There follows: Wehrenberg testify. We found Moeller’s Q: testimony any you lacked When take out minerals that contention that such weight place are ... of the common to east of the scientific conclusion went evidence, I, admissibility. expect any- would to find not to Rockies one its ¶60, 92, many points SD N.W.2d at 486. where in South Dakota how Daubert, stated, 2798-99, Citing at the court process. 125 L.Ed.2d 113 S.Ct. cannot conclude the court “[w]e the discretion trial must ex- abused courts Complementing SDCL 19-9-7 choosing manner ercise the best 104(a) 19-9-9 and and Rule are SDCL to determine whether scientific evi- which 104(c), provide which further Rule jury.” Relying dence will assist a Id. on “[h]earings admissibility of confes- Quinn, Ninth Circuit’s decision in sions shall in all cases be conducted out of for the U.S. District Court District of New jury. Hearings hearing on oth- Jersey recently opponent held that “the preliminary er matters shall be so conduct- proposed expert testimony must dem- or, justice require ed when the interests prima unreliability onstrate a facie case of witness, if when an accused is a he so evidentiary hearing required.” an is also, before requests.” United States v. See (D.Colo. v. 177 1278, Jersey, Lanni State New F.R.D. 1279 McVeigh, F.Supp. 955 (D.N.J.1998). 295, Nichols, 1997), v. 303 It reasoned that aff'd, United States 169 (10thCir.1999), denied, hearing required F.3d 1255 cert. such a- was not under — States, -, Nichols v. unnecessary United U.S. Daubert and “would cause ex 336, (1999); 120 S.Ct. 145 L.Ed.2d 262 60 pense delay.” and Id.13 Challenge The Daubert to Am.Jur.Trials Recently the United States Admissibility Evidence of Scientific Court, Supreme in ruling that the Daubert (1996) § 25 The Daubert [hereinafter non-exclusive, reliability factors14 are Challenge] (stating hearing whether a granted a trial court wide latitude in deter required presence jury is outside the of a mining expert’s reliability. how to test an depends upon required whether it is in the It stated: justice). interests The trial court have the kind must same never to [¶ 84.] We have had occasion in deciding of latitude how to test an 19-9-9, interpret in SDCL but federal expert’s reliability, and to decide wheth- courts, evidentiary hearings full pre- special er or when briefing or other liminary 104 are Rule assessments proceedings investigate are to needed routinely Challenge, úsed. The Daubert reliability, enjoys as when it decides Quinn, § supra, In United v. States expert’s testimony whether that relevant 1461, (9thCir.1994), 18 F.3d 1465 the court Joiner, rejected opinion is reliable. Our argument the defendant’s that he 512, evidentiary hearing was entitled to a full U.S. 118 S.Ct. 139 L.Ed.2d 508 (1997) reliability expert’s on the of an scientific ap- makes clear that a court of also, Hoult, (1st 13. See Hoult v. 57 F.3d 4-5 stead directed a verdict favor defen- 1995) (rejecting argument Quattrocchi, dants); Cir. a defendant’s 681 A.2d required that Daubert the trial court to make (R.I.1996) (stating preliminary that a ex- sponte, ruling a sua on-the-record on the ad- presence jury amination out of the of the is missibility expert testimony each time it is necessary involving in cases scientific evi- proffered, declining to "shackle dis- memories, repressed dence about if such evi- mandatory explicit trict court with a reli- challenged). dence is ability analysis," assuming instead that the performs analysis trial court such an 'sub si- Supreme 14. The Court in set forth a Daubert throughout respect lentio the trial with to all list of factors which trial court should con- see, expert testimony). Alpha But Gruca v. making reliability sider when determina- (7th Therapeutic Corp., 51 F.3d Cir. (1) theory tion: whether the can be and has 1995) (holding that the lower court "abdicat- tested; (2) theory been has whether been 104(a) responsibility ed its under Rule fail- (3) peer publication; subjected review and ing preliminary to conduct a assessment error; potential the known or rate of admissibility plaintiff’s expert of the testi- general acceptance theory in the mony” permitting plaintiff's expert before Daubert, community. scientific 509 U.S. at testify, expressly where the trial court de- 593-94, 2796-97, S.Ct. at at challenge 125 L.Ed.2d clined rule on the defendant's admissibility testimony, of such and in- 482-83. Moreover, an abuse-of-diseretion there no evidence apply is to peals Wehrenberg’s methodology a trial the record that “review[s] when it standard exclude ex- analysis to admit or was so skewed as alter the court’s decision 138-139, testimony.” 522 U.S. reliable method. “An pert otherwise scientific applies as allegation properly apply 512. That standard of failure to 118 S.Ct. trial decisions about principle provide much to the court’s scientific should the basis reliability as its if ‘a expert opinion only how to determine for exclusion of Otherwise, trial altered ... methodology ultimate conclusion. reliable was so as discretionary au- methodology would lack the to skew Beas- judge itself.’” Martinez, thority needed both to avoid unneces- ley, (quoting 102 F.3d at 1448 1198) (other omitted). “reliability” proceedings ordi- sary F.3d at citations reliability of an nary cases where Because the trial court could have properly taken for expert’s methods is “reliability” pro- concluded that a properly appropriate pro- granted, require ceeding presence outside the of a or more com- ceedings in the less usual unnecessary, we find no abuse of discre- questioning cases where cause for plex denying tion in Moeller’s motion for a Indeed, reliability arises. expert’s admissibility hearing Daubert “unjustifiable Rules seek to avoid testimony. Wehrenberg’s their delay” part expense “jus[t] for “truth” and the deter- search 7. ISSUE proceedings. Fed. Rule min[ation]” The trial court did not abuse [¶ 89.] Evid. 102. denying in Moeller’s mo- its discretion Ltd., Carmichael, Co., Kumho Tire regarding pa- in limine a forensic tion 152-53, 1167, 1176, 137, 119 S.Ct. U.S. thologist’s report. (1999) in (emphasis L.Ed.2d 252-53 Facts original). in Moeller was arrested [¶ 90.] When disagree with 86.] We therefore [¶ knife with a folding three-inch contention that a Daubert hear Moeller’s in among possessions was found his blade testimony was neces ing Wehrenberg’s analyzed by his vehicle. The knife was First, sary. challenged we note that the State, unhelpful. It but determined present any did not new scientific evidence placed in an evidence subsequently was theory, methodologies were nei and the at the first locker and not used as evidence McVeigh, 955 complex ther nor unusual. trial. F.Supp. at 1279. It is a well-established trial, Prior to the second mineralogy in that a principle [¶ the field of reviewing all and re-dis- accepted began method of evidence analysis is an visual knife. It was sent to Dr. Brad mineralogist A first covered the identifying minerals. Randall, who exam- pathologist, minerals. a forensic inspection studying visual uses He submitted a identify April -to ined it on Only when that method fails 15, 1997, April report Ed to State dated mineral should other tests be made. Dana, the knife and How he concluded that Salisbury ward Minerals wherein (Cornelius Hurlbut, 7-8, inconsistent with the wounds S. Study Them 1962) also, concluded that rev., Becky’s body. He further 3rdEd. See Richard M. Jr. Gems, Minerals, the stab wounds Pearl, “the characteristics of Crystals and Ores having been inflicted are were consistent with (stating 49-50 there minerals, edge and a single sharp a knife with a many ways identify depending skill; comparable to that of the blade thickness degree of one be on the observer’s However, injuries subject knife.” key properties such as gins analyzing fracture, to a class of luster, color, streak, only be attributed cleavage, could any specific distin- hardness, knives “rather than magnetism, specific gravity). crime, it was another link Moeller to the point ly to a which would guishing features that tend- knife and the circumstantial case identity piece between the definitive Moel him to the crime. See inflicted wounds.” ed to connect ¶ I, at 486. 548 N.W.2d ler filed a motion defense [¶ 92.] assertion, expert’s testi Moeller’s introduction suppress'the seeking limine if it is based mony legally probative is not hearing, Following a report. of Randall’s without merit. possibility, a mere upon motion. denied defendant’s the trial court weight arguments go Such trial, admitted report was Randall’s evidence, admissibility. not its testify his regarding allowed he was counsel cross-ex- Moeller’s conclusions. accept Moeller’s We cannot expert its own wit- him and called amined testimony in the that Randall’s argument Randall’s conclusions. to refute ness testimony his beyond trial went far second argues appeal, 93.] On First, trial. not limited in the first State is no forensic evidence there was because first trial. presented to evidence crime, knife to the connect the tending to Next, given opportuni Randall was not prejudicial opinion was more Randall’s in the first trial to examine the knife ty have been ex- probative than and should whether testify regarding opinion report He further contends cluded. It was it could have inflicted the wounds. . untimely and therefore should offered to examine and not error to allow Randall disagree. have been excluded. We about the knife. opine Decision find error Nor do we reversible guides 19-15-2 SDCL report fact that was submit- Randall’s testimony. expert us on the admission had commenced. after selection ted testimony “assist the requires It that such regard in to Dr. Weh- previously As stated the evidence or of fact to understand trier renberg’s report, equate we do not late soil 19- a fact in issue.” SDCL to determine especially with disclosure suppression, I, 60, ¶ 88, 15-2; 1996 SD 548 Moeller made where the defense counsel use “ ‘Any fact that tends to at 485. N.W.2d Here, in- at trial. the record information of an with the commission connect accused that Moeller’s counsel did an admi- dicates probative has val a crime is relevant and job in exposing rable of the weaknesses ” ¶ I, 60, 88, 548 ue.’ Moeller 1996 SD testimony report. Randall’s Johnson, State v. (quoting at 486 N.W.2d (other (S.D.1982) 652, cita 316 N.W.2d ISSUE 8. omitted)). relevant, expert Although tions may excluded if it is more testimony be The trial court did not err [¶ probative. 19-12- prejudicial than SDCL jury defining aggrava- its instructions exclusion, the evidence 3. To warrant ting circumstances. v. prejudice.” must show “unfair State Facts ¶ N.W.2d Wright, 1999 SD with prejudice 799. “Unfair is associated During sentencing the trial’s jury’s hostility that arouse the or ‘facts presented attempt evidence phase, State regard to sympathy for one side without to establish that Moeller’s murder ing ” value of the evidence.’ probative vile, wantonly Becky “outrageously ¶ I, 60, 92, 548 N.W.2d at Moeller 1996 SD horrible, in that it involved or inhuman (citation omitted). torture, mind, aggravat or an depravity battery to the victim.” SDCL 23A- shows that ed 95.] A review of the record 27A-1(6).15 a jury The returned verdict report could not definitive- while Randall’s part: is the 1990 ver- 15. statute issue here 23A-27A-1(6), provided sion of which SDCL injection, indicating that it Part responsibility

death lethal of a State’s regard a doubt that reasonable is to define the for which beyond found crimes death may way factors of be the sentence in a involved all three tor- offense mind, ture, sentencing obviates standardless aggravated discre- depravity tion. It must channel the sentencer’s the victim. battery to discretion clear objective stan- argues that appeal, On specific dards that provide and detailed of aggravating the trial court’s definition guidance, rationally and that make re- unconstitutionally vague circumstance process viewable the for a sen- imposing jury’s it fails to channel the sen- because tence of death. in- tencing discretion. He claims such “A aggrava- State’s definitions of its structions violated the cruel and unusual ting circum- circumstances —those Eighth clause of Amend- punishment stances a that make criminal defendant process guarantees the due ment and ‘eligible’ for the penalty death —there- the Fifth and Fourteenth Amendments to significant play fore a in channeling role Constitution, States as well as United To satisfy sentencer’s discretion.” companion clauses in the South Dakota mandates, constitutional an aggravating Constitution. circumstance must meet two basic re- Decision First, quirements. genuinely “must [¶ 101.] We review trial persons eligible narrow the class of interpretation court’s of statutes de novo. penalty reasonably death and must ¶57, 10, Arguello, SD justify imposition of a more severe Regarding aggravating compared sentence on the defendant cases, in capital circumstances murder Second, guilty others found murder.” requirements constitutional are met when aggravating may “the circumstance trial court’s instructions de unconstitutionally A vague.” chal- vague fine and limit and over- otherwise lenged provision is impermissibly vague statutory adequately broad terms so as to juries when it to adequately fails inform I, jury’s channel the discretion. Moeller they impose what must find to the death ¶ 548 N.W.2d at 491. penalty and as result them and leaves appellate with open-ended courts discre- [¶ 102.] As we stated Moel tion. ler I: ¶ I, Moeller SD 548 N.W.2d Eighth The and Fourteenth Amend- Rhines, at 1996 SD (quoting 489-90 the ments to United States Constitution ¶¶ (citations 447) 138-40, at 548 N.W.2d systems prohibit sentencing state that omitted). wantonly death to be penalty cause the i mind” “Depravity freakishly imposed. and of definition. capital If a Addressing State wishes to authorize each of Moeller’s ar- [¶ 103.] turn, punishment guments has a constitutional re- we first on the focus apply to He sponsibility depravity tailor and its law of mind instruction. asserts (In- “depraved that that of mind” arbitrary a manner avoids the and the definition 8) struction suffers the same capricious penalty. infliction of the death No. from torture, mind, aggravated penalty depravity cases for the death of or an [I]n all which authorized, judge may be shall con- battery the to the victim. sider, or he shall in his instruc- (6) include In 1995 was amended to add subsection consider, jury any tions mitigating for it vile, sentence, "Any wantonly the horrible, murder is any and circumstances of the inhuman if is less and the victim following aggravating circumstances years age." than thirteen of may supported by which the evidence: S.D.Laws ch. (6) wantonly outrageously The or offense vile, that horrible or inhuman in it involved nature, satisfy vagueness the instruc- of such a as to as have been unconstitutional doubt, a the Rhines, you beyond reasonable 1996 SD of in disapproved tion ¶¶ of Defendant depraved state mind of the 137-148, 447-49. He at at the time Defendant took existed “largely is a the instruction claims which in the death the actions resulted phras- subjective, compilation pejorative of victim. of the alone, which, standing in combina- or es tion, vagueness not cure so as do Here, con- specifically sufficient, objective guidance provide (1) phrases, age physical and tests the the term. jury” meaning of (2) victim; of characteristics of the actions depraved The instruction issue defined before, after the during the defendant and jury as mind for the follows: (3) murder; utterly cor- of the commission mind; or rupt; perverted immoral state of INSTRUCTION NO. 8 an indifference to the life or suf- with is order instructed victim; (5) fering gained relished or of “depravi- that this find murder involved murder; a from and pleasure sense of mind,” you find that ty of must (6) corrupt, perverted immoral state of or defendant, in murder perpetrating this in ex- part mind on the of the defendant victim, depraved a upon acted with required accomplish cess of what was “depraved A a mind. mind” is state the murder. utterly corrupt, perverted which is mind Rhines, In In a determining or immoral. whether we held defi “depraved depraved Defendant a nition of mind that included the acted with crime,” case, and may phrases, mind” in this “senselessness of the you consider victim,” of the unconsti age physical “helplessness characteristics ¶55, 145, tutionally vague. you the actions may victim and consider are phrases N.W.2d at 449. Since those before, af- during, of the defendant instruction, in the challenged not included ter the the murder. commission of supports we are unclear how Rhines Moel- find order to that this offense involved position. reject argument ler’s We mind, depravity you must find that helplessness implicit phrase in the Defendant, utterly an a result of the vic “age physical characteristic of corrupt, perverted or immoral state of tim,” a phrase provides because the latter mind, and with an to the life indifference limiting description helplessness victim, suffering or committed thereby jury’s open- limits otherwise aggravated battery upon a torture or ended discretion. victim, living body subjected the victim, mutilation, deceased serious Moreover, Moeller does not di- abuse, disfigurement, or or that sexual jurisdiction attention to rect our or gained pleasure he relished sense a phrase has held such be unconstitu- Depravity from the murder. of mind tionally vague. sufficiently We think it is requires corrupt, a immoral perverted or especially limiting, compared when to oth- state of mind on of the Defen- part the that have phrases er condemned as been in required dant excess of what was Florida, overly vague. See v. Espinosa murder, the accomplish so it is not 1079, 2926, 112 L.Ed.2d 505 U.S. S.Ct. 120 enough merely (1992) for the state to show wicked, evil, (“especially atro 854 participated he in the victim’s death cruel”); Maynard Cartwright, cious or v. occuring without more. af- 356, 1853, [sic] If acts L.Ed.2d 486 108 S.Ct. 100 U.S. (1988) heinous, atrocious, ter the death of the victim are relied (“especially 372 upon by cruel”); the State to the Defen- Godfrey Georgia, show v. 446 U.S. or mind, depravity 420, 1759, dant’s of such acts must 64 100 S.Ct. L.Ed.2d 398 vile, wantonly be shown have so close to or horrible (“outrageously oceur[r]ed death, inhuman”); Clarke, the time of the and must F.2d victim’s or Moore v. 904

453 denied, (8thCir.1990), perversion,” or or cert. Clarke v. an 1226 “shows indifference 1995, Moore, 930, 112 118 to the of suffering 504 U.S. S.Ct. the victim and evidences (1992) (“senselessness of a killing). L.Ed.2d the sense of in pleasure” 591 victim”); “helplessness phrases of crime” and used in in limiting instructions White, (Del.1978) v. 395 A.2d 1082 State instant case are so similar to those “defenselessness”). (“elderly” approved in and as to furnish Walton sufficient guidance jury. comparison, United [¶ 107.] limiting a approved Court Supreme States Finally, use of the [¶ words required of instruction that evidence some in “corrupt, perverted or immoral” the in physical abuse to define kind of torture overly struction not vague. are As we heinous, or cruel” in “especially atrocious stated in v. Bullis: “Unless words of 364-65, Maynard, U.S. at 108 S.Ct. at 486 seeming generality such ‘moral’ and 1859, at held that 100 L.Ed.2d 382. It also ‘immoral’ in [or were valid statutes phrase, pitiless slayer” “cold-blooded instructions], government would itself be disregard sufficiently limited “utter for hu- come impossible.” 89 S.D. 231 life,” a man murder- because described (1975) (citation omitted). 851, 852 question mind a er’s state of and was In that additionally case we held that the from the fact that could inferred sur- use of “corrupt” vague the word was not so Creech, Arave v. rounding circumstances. as to right violate a criminal defendant’s 463, 471-73, 1534, 507 U.S. 113 S.Ct. 1541- process. 214-15, due Id. at 231 N.W.2d at (1993). 42, 188, 123 L.Ed.2d 198-99 Addi- “perversion,” 852. The word variant of tionally, Georgia Court Supreme ap- “perverted” also approved as ade proved specific phrase “age use quately narrowing depraved mental state victim,” physical characteristics of the as a Walton, 655, 497 U.S. at 110 at S.Ct. limiting “depraved instruction for mind” in 3058, Arave, 111 L.Ed.2d at 529 State, 313 S.E.2d 67 West Ga. 473-74, U.S. at 113 S.Ct. at (1984). compared to other chal- When L.Ed.2d at 199-200. lenged phrases, we do not “age think entirety, When viewed in its physical of the victim” characteristics is depraved significantly mind instruction overly defining depravity broad mind. limited the number convicted murders eligible penalty provided death foregoing For the reasons specific guidance jury. It reject we also Moeller’s other contentions unconstitutionally vague. vagueness regarding depravity mind. phrase We note that “actions of the ii. “Torture” definition. prior defendant to and after the commis 112.] Moeller next claims that murder,” approved by sion of the (Instruction the definition of “torture” No. West, Georgia Supreme Court 7) narrowing require does not meet the agree. S.E.2d at 71. We at Godfrey, ments of 446 U.S. nearly Phrases identi 1764-65, at S.Ct. L.Ed.2d be cal to “with indifference to the life or murders, nearly except cause those in all suffering the victim” and “relished or volving or uncon instantaneous death pleasure mur gained sense of from the sciousness, the trial court’s would meet approved by der” United were States definition. Arizona, in Supreme 497 Court Walton 7 defin- Jury instruction number 655, 639, 3047, 3058, U.S. S.Ct. ing provided: torture (1990) 511, (refusing L.Ed.2d fault 7NO. INSTRUCTION limiting for “depraved state’s instruction phrases instructed in order to jury manner” which included the “rel The is “torture,” murder, evidencing ishes find that murder involved debasement inflict find, pain, agony, the victim was the intent such or that while you must ¶ conscious, at anguish. the defendant Id. 548 N.W.2d still alive and severe, intentionally prop- inflicted unneces- We held that such an instruction was pain, agony, or pool or mental er because it eliminated from the of sary, physical This could include anguish, upon death-eligible her. murderers those who intend- in anguish mental painlessly the victim’s severe ed kill their victims or in- physical serious harm. anticipation of stantly only pain or who intended to cause anguish or re- Unnecessary pain, agony that was incident to death. Id. part the vic- quires suffering on challenged jury The instruction [¶ 116.] tim, required what was in excess similarly in the instant case contained both murder, so it does not accomplish the requisite proper elements for a torture pain, ago- mental physical include or Moreover, it “required instruction. ny anguish reasonably or which resulted jury precise inquiries make factual re- or her an- from the victim’s death brief injuries garding nature of the victim’s Acts committed af- ticipation of death. I, and the defendant’s intent.” Moeller death or while ter the victim’s she ¶ 117, at 492. SD 548 N.W.2d conscious, longer may no not be consid- overly vague The not or oth- instruction is determining in whether “torture” ered constitutionally erwise infirm. was involved. ” Rhines, In we considered and [¶ 114.] “Aggravated battery Hi definition. approved an instruction on “torture” sub- Moeller also reiterates his identical to one stantially presented ¶ I, in arguments Moeller 1996 SD here. There the instruction stated: that the definition of living person Torture occurs when a (Instruction 9) “aggravated battery” did subjected unnecessary to the and wan- sufficiently jury’s channel the discre physical ton infliction of severe or men- Alternatively, argues tion. that if the he pain, agony, anguish. tal or Besides “aggravated battery” instruction is consti abuse, serious torture includes serious tutional, there is insufficient evidence to psychological resulting abuse of a victim support finding a that the victim suffered anguish victim in severe mental to the “aggravated either “torture” or an bat anticipation physical of serious harm. defined, tery” they are because You would not be authorized to find that injuries physical pain extent of suf Degree the offense of First Murder in- or fered while she was alive conscious is simply volved torture because the victim unknown. pain briefly suffered anticipated or aggravated The definition bat- prospect of death. Nor would com- acts tery given jury to the was as follows: upon body mitted of a deceased vic- tim support finding of torture. NO. 9 INSTRUCTION order to find that the offense of First is instructed that order to torture, Degree you involved Murder “ag- find that this murder involved must find that the Defendant intention- victim,” gravated battery you ally, unnecessarily, wantonly inflict- must find that the victim this case physical pain, agony ed severe or mental aggravated battery suffered an to her anguish upon living or victim. person, which was inflicted the defen- ¶ 160, 548 N.W.2d at 451-52. dant; battery in- aggravated physical We noted Rhines that the infliction serious volved victim, by depriving torture instruction included two essential upon abuse her limiting finding body, by rendering elements for a of torture: of a of her member (1) useless, unnecessary body and wanton infliction member of her or seri- pain, agony, anguish; ously disfiguring body part severe her or a body; [¶ and that the defendant at the The 121.]

her sentence will not be set aside, aggravated time that he inflicted this because the evidence and all favor- victim, battery upon had the able can specific the inferences that be drawn from intention, Rhines, purpose support theory of mali- a design guilt. or rational of ¶ ciously unnecessary pain inflicting SD 548 N.W.2d at 451 (citations well, omitted). victim this context as unneces- sary implies suffering in pain excess of required accomplish

what was ISSUE 9. murder, physical so it does not include [¶ The 122.] trial court’s of definition pain reasonably mental resulting or 23A-27A-K6), SDCL which differed or her from victim’s death an- brief I, given from that in Moeller did not ticipation of In determining death. jeopardy violate post the double or ex battery an in aggravated whether exists provisions facto United States case, you only consider may this those and South Dakota Constitutions. injuries which inflicted upon were Facts prior her You may victim death. sentencing At the injuries phase consider which actually those trial, the first jury the court Only caused the death of the victim. instructed the vile, regarding “outrageously or injuries wantonly did not those which cause the horrible or inhuman” as follows: may by you victim’s death be considered determining whether there was an The term “aggravated battery” as aggravated assault upon victim. instructions, used in these is defined as physical infliction of serious abuse challenged Because instruc upon victim, by depriving a him of requirements specificity tion met body, member by of his or a rendering sufficiently the jury’s channeled dis useless, body member by of his or seri- death, sentence rendering cretion ously body his disfiguring or a member we find no violations. constitutional Moel thereof. ¶¶ I, 115-17, ler 548 N.W.2d at alleged The State has as an aggrava- ting circumstance this case that the outrageously wantonly murder was or Moreover, the record con vile, horrible inhuman in in- or that it ample support finding tains evidence to aggravated battery volved an to the vic- the victim both suffered “torture” and tim. The has the prove, burden to “aggravated battery” prior to her doubt, beyond a reasonable the exis- autopsy Becky death. showed tence of aggravating this circumstance. likely died jugular when her vein was sev you may Before find that aggrava- this aby ered knife. was also There evidence case, ting you circumstance exists prior to her she death sustained nu find, doubt, must beyond reasonable other merous knife wounds were not following each of the elements of Further, pattern incident death. this aggravating prov- circumstance are injuries Becky indicated that sustained en the evidence: “defense wounds” to her hands and fore (1) That the suffered an aggra- victim Finally, arms. evidence showed that she battery person, vated inflicted vaginally been penetrated had while she the defendant. alive, anally penetrated after she defendant, dead. This could have rea evidence That the time sonably beyond aggravated battery led the find a rea that he inflicted the victim, upon specific doubt that murder had the inten- sonable involved torture, tion, aggravated battery, maliciously or a depraved design purpose inflicting unnecessary pain mind. to the victim. evidence, proven by have the [sic] finds that been jury the each Unless doubt, you beyond a must proven by has been reasonable elements above two the the benefit of the evidence, beyond give a defendant reasonable the aggravating that the cir- doubt, give doubt and find you must the defendant then not exist. Your verdict the doubt and find that cumstance does the benefit which, any, if specify form should circumstance does aggravating this you find were these alternatives involved exist. in the murder. ¶60, 112, 548 at 490-91. SD of that opinion in footnote 9 We noted This was followed the in- instruction provided court also a definition “[t]he trial “torture,” that further defined structions ‘depravity mind’ for ‘torture’ mind,” “aggravated “depravity of bat- However, jury. jury read the instruc- we tery” supra. discussed Issue only ‘aggravated an bat- alleging tions as asserts appeal, 125.] On Moeller [¶ tery’ confinefd] review and therefore our impermissibly expanded the trial court ¶ that term.” 112 n. to the Id. definition he could found factors under which be n. 9. at 491 548 N.W.2d that in the death-eligible. argues He first trial, court In the second trial, only presented factor aggravating jury as initially follows: instructed aggravated battery, whereas in was NO. 6 INSTRUCTION jury presented trial was with second (torture, aggravating all three factors de- as alleged aggrava- has an The State pravity aggravated battery). of mind and in this case that the ting circumstance including the other He contends that two outrageously wantonly or murder at the factors consideration second trial vile, inhuman in it in- horrible or broadened violated the the law and double torture, depravity of or an volved mind jeopardy facto clauses of the post and ex battery to the victim. The aggravated Dakota Constitu- United States and South prove, a beyond has the burden to tions. doubt, the reasonable existence of this Decision you circumstance. Before aggravating may aggravating find that this circum- three presents [¶ 126.] Moeller ratio- case, find, you exists in this must stance First, to support argument. nales he doubt, fol- beyond a reasonable that the rationale, asserts a offense lesser-included aggravating cir- lowing elements of he wherein that: claims proven are cumstance the evidence: in the first trial [T]he court’s instruction That the murder this case was could classified as lesser included vile, wantonly outrageously or horrible compared offense to the court’s when or inhuman involved at least trial. It instruction in the second following factors: one of the judge error for in the the trial second (a) torture; or statutory trial to add elements (b) mind; depravity of Defendant al- aggravating factor. had (c) aggravated battery the vic- an ready aggravated been convicted tim. alone, battery which under the lesser finds this ele- Unless rationale, prohibits included offense evidence, proven by ment has been offense; greater retrial on the and sec- doubt, beyond you a reasonable must ondly, jury in the because the second give the defendant benefit of trial could now use one of three aggravating and find that this cir- doubt elements, one, to just opposed find not exist. cumstance does proved aggravating that State fac- tor, subject exposure you find that at one of Defendant was Unless least above, greater set the three alternatives out offense. Secondly, proffers sentencing phase capital case, murder That which

implicit argu- applied). rationale. the “clean slate” rule acquittal ment that since the evidence at surmises arguments [¶ All these clearly 131.] are apparently the trial was insufficient to first contrary explicit terms SDCL he persuade judge the trial should 23A-27A-1(6), which disjunctively sets mind, depraved instruct on torture forth the three factors: “The offense was implicitly acquitted defendant of such vile, outrageously or wantonly horrible or Therefore, aggravating factors. torture, inhuman in that it involved de- contends, them give it was error to mind, pravity aggravated battery or an jury aggravating factors at the separate as added). (emphasis the victim.” Irre- second trial. first, spective of the trial court’s rationale did, instructing for as it see no error in we argument [¶ 128.] Moeller’s third is judge setting second trial forth all post based provisions on the ex facto torture, aggravating three factors of de- Dakota United States South Constitu- praved aggravated battery mind for I, 10; § art. tions. U.S.Const. S.D.Const. jury to consider. VI, § art. argues 12. He that because a making trial court in effect the law when is ISSUE 10. instructions,

it narrowing issues it must comply post require- also with the ex facto did [¶ The trial court not 132.] abuse here, ment. when He asserts that refusing its pro- discretion Moeller’s trial fac- expanded aggravated court posed jury regarding miti- instructions trial, tors from to three in second one gating factors. encompassing he faced a more and broad- Facts Thus, er statute his trial. he than first sentencing phase, [¶ 133.] Prior ex post contends an facto violation oc- a proposed jury Moeller submitted instruc- curred. tion specifying possible mitigating list of 129.] Moeller no authori [¶ offers jury factors for the into take consider- ty arguments. for such unconventional An ation deliberating while a sentence. It argument supported by authority could provided: Pellegrino, be deemed waived. State you If find that exists at there least ¶ 22, 599. circumstance, you one should then con- take any sider and into consideration Additionally, arguments these exist. mitigating circumstances wholly are without merit. Their primary consider, account, You into shall take they fault is that assume the first trial guided by following and be circum- deliberately court refused to include tor- stances, if applicable: ture and depraved aggravating mind as However, poor. factors. 1. is we noted Moeller Mr. Moeller I, the did trial court include instructions to up 2. without natural father. Grew on those It un- two factors. 3. Mother’s death 1990. clear why it failed to include them for 4. Disagreements in the evidence on aggravating along consideration as factors DNA/serologic how evidence should with aggravated battery. From the infor- interpreted. record, simply mation in the we cannot Unwavering 5. declaration inno- presuppose reasoning the first behind cence. instructions, design trial’s whether their 6. Mr. of alcohol. Moeller’s abuse See also Po- intended or inadvertent. throughout 7. Mr. Moeller’s behavior Arizona, land v. U.S. S.Ct. good. trial was (stating 90 L.Ed.2d 123 8. jeopardy apply Intelligent. double clause does not response con- Non-applicability of all other statu- to Moeller’s 9. rebuttal, might, cerns that State in its tory aggravating circumstances. beyond open scope the door the initial Family him. 10. loves evidence, court first not- mitigating contact with concern Continued speculation ques- ed and abstract such family. tions in advance. were difficult rule on background. 12. Difficult going court then stated that was 13. Effect of execution others. testimony strictly rebuttal require possibility pa- 14. Life without the directly narrowly would rebut have to and the role is alternative sentence. the indicated judge defense evidence. The a human being. 15. Mr. Moeller is he was much latitude going to offer as 16. Residual doubt. normally give as he in rebuttal. He would any further that rebut- questionable DNA from a stated 17. The evidence female testimony tal would first outside thigh. left be heard on Rebecca’s inner jury. presence the any may All or one of the above be However, in mitigating circumstances. argues trial [¶ Moeller that the 137.] determining or not mitigating whether to right court violated his constitutional exist, you should circumstances consider process right against due cruel and any other circumstances not listed here- punishment by refusing unusual to instruct mitigate gravity in which the the jury specific mitigating the factors. He on a even it is not though legal crime ex- further argues his constitutional the cuse for crime. rights by ruling were violated that State present was allowed to rebuttal in the rejected The court the instruc- “anti-mitigation” form of at the evidence tion, stating on “Fve instructed the miti- penalty phase. the gating jury circumstances and that is Decision any to take into consideration all miti- It gating circumstances offered. seems to We Moel first consider if the Court to instruct on partic- me the argument, ler’s trial court violated mitigating ular list of circumstances that right process his to due constitutional really gets commenting into the Court right cruel and against punish unusual the evidence in this case.” on refusing jury ment by instruct the specific con mitigating In stark factors. A discussion also related ensued assertion, trast States United parties regarding between extent recently in Supreme any held that Court which State would be allowed to rebut mitigation regarding struction evidence mitigation presented evidence Moeller. not constitutionally required. Buchanan although contended acknowl- Angelone, 522 U.S. 118 S.Ct. edged being to arguing only limited statu- (1998). L.Ed.2d In that ease torily aggravating enumerated factors requested jury defendant instructed be case-in-chief, additionally its it should be statutorily prescribed as to mitigating four any to rebut mitigating allowed evidence argued during factors were the sen which presented agreed, Moeller. The court tencing phase. The state court denied ... stating inherently “[it] would be instruction, such an and that denial be put unfair to allow the defense to in unre- came of a petition. the basis habeas mitigating buttable evidence. Then there way be no In any affirming appeals’ [¶ would checks balances the court of ... petition, Supreme on the defendants and would denial of habeas be able completely misrepresent himself to the Court constitutional differentiated jury and that ... aspects would allow defendant treatment accorded the two portray completely capital procedure. According himself in inaccurate sentencing first, jury.” Court, to the light phase, to the the eligibility anti-mitigation, jury narrows the class defendants as suggested by evidence penalty, State. eligible for the death often

through aggravating consideration position 142.] Moeller’s is without point circumstances. At the Court merit. agree We with the trial court that channeling stressed need for limit- to foreclose the opportunity for State to ing jury’s discretion. 522 U.S. at 275- rebut mitigation evidence would allow 761-62, 76, 118 S.Ct. at 139 L.Ed.2d at Moeller to inaccurately portrayed contrast, during 709-10. the selection jury. To do inherently so would be unfair phase, determines whether to im- and would a basic emasculate tenet under- pose a on an eligible death sentence defen- lying system our adversary justice. emphasized dant. Here the Court the Whether put decided on miti- inquiry need for a into all broad relevant gating decision, evidence a tactical mitigating evidence order to allow an which would subject have of course been individualized determination. Id. Under attack on rebuttal. theAs California Su- capital sentencing process, this view of the preme Court regard: stated in this the Buchanan Court concluded that a Even if we somehow assume additional mandatory mitigation on instruction existed, mitigating evidence counsel did required. constitutionally not necessarily present to it. have As always, counsel to pos- had consider the jury the Reviewing instructions sible detriment as well as the benefit. whole, aas we no abuse of find discretion. Presenting mitigating evidence risks agree judge giving We with the trial a opening the door to rebuttal evidence. specific mitigating list factors would prosecution may The rebut mitigating jury. have instructed the improperly A penalty evidence with unfavorable reve- specific mitigating list of factors might lations about In the defendant. rebut- message jury have sent a to the that it tal, prosecution the is bound by neither only could those consider factors included statutory pretrial its notice of aggrava- in the This instruction. would have im- ting by evidence the aggravating nor properly range of limited its consideration factors set the forth in statute. The in violation of 23A-27A-1 and SDCL 3. possibility of damaging rebuttal is a nec- Moreover, stated, trial court spe- the a essary in consideration counsel’s deci- might perceived cific been list have the present mitigating sion whether to evi- jury as a propriety comment on the dence about the defendant’s character This, too, presented. evidence would have background. been improper. Freeman, People v. 8 Cal.4th 34 Cal. similarly reject [¶ We 141.] Moel- (1994) (cita Rptr.2d 882 P.2d ler’s argument, second his constitu omitted). tions rights tional ruling were violated present State was to in allowed rebuttal ISSUE “anti-mitigation” the form of evidence at did [¶ The trial court not abuse 143.] penalty phase. In support posi refusing pro- its discretion in Moeller’s tion, specifically he claims that the court’s posed jury regarding life im- instruction refusal to rule in advance on whether it prisonment, refusing proposed in State’s would allow to his mitigation State rebut jury regarding the instruction Gover- him prevented evidence from submitting authority nor’s to a life sen- commute mitigation evidence of certain factors listed tence, response question in nor its to a Moeller, in the According instruction. jury regarding from the the definition of his counsel did not want to risk “opening imprisonment. life the door” on certain character evidence Facts which the it bring State vowed would in. Moreover, he nothing contends sentencing phase, [¶ 144.] Prior to the rebuttal, permit statutes open-ended sought divergent or both sides to include in- given any was not imprisonment. Accordingly, jury regarding life structions following authority about the sought to include information Governor’s Moeller sentence, jury: to as- nor ‘You are commute life was it instruction to you that if sentence Donald “life means life.” sume instructed he the rest spend will imprisonment, life provided 147.] instructions [¶ prison.” response, of his life “life “life jury imprisonment,” used sen- seeking to instruct filed a motion tence,” “life and “life penitentiary” authority to commute on the Governor’s parole” interchange- imprisonment without life sentence. ably. The verdict used the term “life form imprisonment parole.” During without de- hearing A was held State’s liberations, the sent a jury foreman note to jury was motion, argued if the at which asking: penalty court “If the ‘life life,” then it that “life means be told parole’ should imprisonment without counterbalancing given the should also be defendant, upon the will he EVER imposed a life about potential information parole a chance to appear have before re- sentence be commuted. Moeller (emphasis original). board?” com- sponded argument with the that the authority was discretion- purely mutation hearing arguments After from ary speculative given and too to be counsel, objections and over defense jury. hearing court arguments, After counsel, respond the trial decided to court motion, stating: denied State’s jury’s question with this statement: me of possibility It seems as to the [sic] acknowledge asking your ques- “We note commutation, remote or that’s too life imprisonment pa- tions about without for the instructed speculative jury be I All the which role. of information can However, following if the de- on that. you jury is set forth in instruc- give the or brings up [life fense that means life] response That was sent back in to tions.” of I argument makes the kind indicated jury, the which returned a sentence of any way which that could indicate followingmorning. death the ways are no that therefore the there appeal, On Moeller challenges released, could be that that defendant of his life” jury the denial “life means up. opened it But it’s open would unless instruction, response as well court’s by I up in that fashion the defense will jury’s question. By to the notice of re- argu- or not allow either instruction view, raises of the issue whether dealing with au- ment the Governor’s jury not to on was error instruct thority to commute life sentences. authority. commutation Governor’s [¶ Later the trial court denied 146.] Decision instruction, rea- proposed jury Moeller’s 150.] 23A-27A-4 pro [¶ SDCL soning: of part vides sentence death “[i]f with, fact, dealing The instructions by jury, not recommended court what the actual result of the sentence sentence the to life impris shall defendant know, basically, nobody will you be is onment.” SDCL 24-15^1 further states bring. what I knows future will imprison life person “[a] sentenced to request refused the State’s to instruct eligible parole by ment is not for board authority to com- about the Governor’s However, paroles.” pardons “[t]he I think to in- mute sentence. likewise may ... grant pardons, commu Governor them, does, really struct which tations, reprieves ...” art. S.D.Const. commuted, would the sentence never be IV, § 3. or commenting also would involve me Rhines, these I don’t In there

instructing things we held to be [¶ in the trial know about. no abuse discretion court’s rejection following pro- of the defendant’s tions. In that case the defendant was posed instruction: ineligible parole for of prior because con- However, victions. specified you argued

The two sentences that the state death, jury dangerousness are to consider this case are his future awas and life in factor to prison parole. without consider deciding when whether impose life or death. The deliberations, defendant your you are pre- was not allowed to jury instruct the you if as to sume that sentence Charles Rus- ineligibility his death, parole. for During sell he in fact deliber- Rhines will ations, jury injection. sent out a note asking executed lethal You must whether imprisonment life courts, or carried the speculate pos- not assume that the sibility parole. any agency responded or other court government, will telling jury stop the defendant’s execution from tak- to consider parole when ing place. reaching its verdict and that terms death sentence imprison- and life you Similarly, presume are to that if ment were to be interpreted according to you sentence Charles Russell Rhines to ordinary their and everyday meanings. life in prison parole, without he will in spend fact rest his natural life in Supreme 154.] The Court reversed prison. You must not assume or specu- the sentence. A plurality of the Court courts, late that the other agency held that where a defendant’s future dan- government, will release the defen- gerousness had put been at issue by the prison dant from at any during time state, and the defendant ineligible life. parole, jury was entitled to be so in- ¶55, 121, at 168-69, structed. Id. at 114 S.Ct. at case, Like the instant L.Ed.2d 145-46. Rhines sent a note out to the court [¶ 155.]Simmons is distinguishable from during asking deliberations whether the presented First, the situation here. we placed defendant could ever be in a mini- note that future dangerousness was not mum security prison given work re- specifically raised as a concern State. lease. Based on questions these from the We further note that while not explicitly jury, argued Rhines on appeal that the life,” instructed that jury “life means the note demonstrated the inadequacy of the here was informed that a sentence of life instructions, trial court’s jury and that the imprisonment imprisonment was “life with- unduly concerned he would be re- Indeed, parole.” out very those were the if leased he received a life sentence. We words used on the sentence verdict form. rejected argument, concluding instead that the “gave instructions as a whole previous holding [¶ 156.] Given our in full and correct statement of the law.” Id. Rhines, considering the fact that the ¶ 124, Further, 548 N.W.2d at 444. we jury was instructed as to “life imprison- found no in error the trial response court’s parole,” ment without we see no abuse of jury stated, question, which “I ac- discretion in rejection the trial court’s of knowledge your asking questions note Moeller’s additional instruction to that ef- about life imprisonment. All the informa- fect. The instructions were an accurate give you tion I can jury is set forth in the complete reflection of the law. Fur- ¶ 104, instructions.” Id. 548 N.W.2d at ther, we find in no error the court’s re- sponse jury’s question. concerning Carolina, In [¶ 153.] Simmons v. South parole. life without The court acknowl- 154, 2187, 512 U.S. 114 edged patterning S.Ct. 129 L.Ed.2d response its after the (1994), 133 Supreme United States Rhines response, court’s which was met propriety including Court addressed the approval Asking with in this Court. the possibility parole jury in jury instruc- to refer back instructions as

462 rejected arguments instruc proper reply, was a as the states or instructions given concerning sentencing the law. See correctly tions set forth commutation to 13, -, jury. 120 id. at 1026 n. Angelone, v. U.S. See 103 S.Ct. Weeks 13, 77 727, (citing n. L.Ed.2d at 1197 n. 13 (holding L.Ed.2d S.Ct. where, jurisdictions holding from cases that the Constitution is not violated jury possibility not should consider response jury question, in to a the trial commutation). pardon, parole, or In addi- constitutionally court refers tion, instructions). separate Justice Stevens noted in a adequate dissenting opinion was the that California accept Nor we [¶ 157.] do State’s only state to have enacted such a statute. that the have argument jury should been Id. at 103 S.Ct. at 77 L.Ed.2d authority instructed about the Governor’s at 1199. a life support to commute sentence. We choose align ourselves rely this decision we on the United States holding majority with Supreme Court’s decision California jurisdictions other that have addressed Ramos, 463 U.S. 103 S.Ct. this issue. Ramos can and must be distin- (1983). L.Ed.2d case, guished present from the because case, In that the United States California, unlike our legislature has Supreme Court the constitution- addressed that a mandated commutation instruction ality requiring judges state statute included. should be juries instruct about the Governor’s au- If a court were to include an thority commute a sentence. The Court that the instruction Governor can commute held there be no constitutional barrier then, years a life to a term of sentence legislature’s impose to the state decision to preclude misleading jury, order to it an juries. opined such instruction on It would also need to include an instruction preclude such instruction did not equally eligible that a death sentence sentencing individualized determinations all, After commutation. our statuto- under factors, of mitigating or consideration nor scheme, ry just plausi- scenario is inject an impermissibly speculative did ble as the commutation of a life sentence. jury’s element for No- determination. conjectures might happen about what tably, majority opinion concluded with future, depending on the Governor the remark that in- its decision was not penalty, and his or her views on the death contrary judgment tended to override the simply speculative are too to include capital sentencing juries of states that jury instructions. Such instructions are permitted not be should to consider the supposed provide guidance, not invite gubernatorial power to commute a sen- Furthermore, guesswork. an in- such 1013, 3460, tence. Id. at 103 S.Ct. is not sufficiently tailored to the struction essence, finding L.Ed.2d at 1188. In no individual characteristics and circum- constitutional infirmity, the Court deferred Rather, of the crime. ge- stances it is a to the decision of legis- the California state rumination, neric source of not one lature. pertains unique to the cir- individuals or 5-4, The split [¶ 159.] Ramos Court was of each cumstances case. the dissenting persuasive and Justices filed opinions. As to the merits of commuta- ISSUE 12. instruction, tion Justice Marshall contend- upon appellate Based re- [¶ 162.] ed that it was and misleading, speculative by 23A-27A-12, view mandated SDCL unrelated to the defendant’s character or lawfully Moeller’s sentence of death was circumstances of the crime. Id. at imposed. 1016-22, 3461-65, 103 S.Ct. at 77 L.Ed.2d In support position, every at 1190-94. he of his where the death [¶ 163.] case noted that the overwhelming majority imposed, required of penalty is this Court is Boles, independent conduct an review of the ing Oyler 448, 456, v. 368 U.S. (1962)). sentence. SDCL 23A-27A-9. We must S.Ct. 7 L.Ed.2d “[P]rosecutorial determine: discretion to select those eligible cases which penalty the death (1) Whether the sentence of death was actually will sought does not in and of imposed passion, under the influence of itself arbitrary evidence an capricious and factor; prejudice, any arbitrary or other capital punishment system or prin- offend ciples equal protection, process, due or supports Whether evidence cruel punishment.” unusual People and/or jury’s judge’s finding statutory or of a Ray, 13 Cal.4th Cal.Rptr.2d aggravating circumstance as enumerat- (1996) (citations omitted). 914 P.2d 23A-27A-1; §ined (3) Whether the sentence of death is Next, we conclude that the disproportionate excessive or pen- supports evidence jury’s finding of at cases, alty imposed in similar consider- least statutory one aggravating un factor ing both crime and the defendant. der SDCL 23A-27A-1. deter mined that the murder was outrageously SDCL 23A-27A-12. vile, or wantonly horrible or inhuman un begin [¶ 164.] We our review deter- 23A-27A-1(6). der SDCL beyond It found mining whether the sentence of death was a reasonable doubt evidence of sepa three imposed under the passion, influence of torture, rate mind elements: depravity of prejudice, any arbitrary other factor. aggravated and an battery to the victim. rejected find none. We We have Moeller’s There is substantial evidence in the record that he prejudiced by claims the ad- each support finding. The record con mission reports by expert of late the soil tains evidence that Becky likely died when pathologist. dispelled and the We his con- her jugular vein was severed a knife. tention that he should have been given There is also evidence prior to her additional prepare time to for the Daubert death she sustained numerous other knife hearing as well as the trial. We have wounds that were not incident to death. further found no error in the selection of Further, there was evidence that the vic jury. Nor any have we found breach tim sustained “defense wounds” to her of attorney-client privileges by DNA hands and Finally, forearms. evidence expert who was simultaneously working showed that the victim vaginally had been for both sides. We cannot discern penetrated alive, while she was anally extenuating circumstances that would war- penetrated after she Clearly was dead. rant overturning jury’s verdict. torture, this evidence depravity shows Moreover, reject we Moel- mind aggravated battery, therefore ler’s contention prohibited there is eligible penalty. the death arbitrariness in allowing State discretion Finally, we must consider to decide in which Class A felonies seek whether Moeller’s dispropor sentence is penalty. death Prosecutorial discre tionate in comparison to similar Da South tion part is a vital of our criminal justice kota cases. We decline Moeller’s invita system. Selective enforcement of SDCL tion to review ruling our Rhines 23A-27A-1 and 22-16-4 is insufficient to proper the pool of similar cases to be show that the statutes have been unconsti considered on in proportionality review tutionally defendant, applied specific to a those proceeded cludes cases that have showing absent a particular selec penalty death deliberations. 1996 SD deliberately tion was unjustifi based on an ¶ 185, 548 N.W.2d at 455. race, able standard such religion or arbitrary other classification. State Since the enactment South O’Brien, (S.D.1978) (cit- scheme, N.W.2d penalty Dakota’s current death Anderson, defendant was In [¶ 171.] includ sentencing proceedings, capital

ten trial, kidnapping, In place. taken to death for the have sentenced ing present cases, jury imposed life young murder of two mothers. rape of those and six Rhines, I, and kidnap- In Moeller jury that Anderson’s sentences. found Anderson, 2000 SD Leroy Dumansky v. Robert State of Larisa ping and murder County Crimi McCook vile, 608 N.W.2d 644 or horrible or outrageously wanton 97-70,16 a sen jury imposed nal No. inhuman or de- in that it involved torture judicial notice of takeWe (SDCL 23A-27A-1(6)), tence of death. pravity of mind set forth in summaries case seven purpose for the that it was committed ¶¶ 187-204, at 1996 SD Rhines with, avoiding, interfering preventing or (Rule 19-10-2 at 456-57. SDCL (SDCL 23A-27A-1(9)). lawful arrest 201(b)). cir Additionally, we examine the previously aggra- described addition to in Rhines and Anderson. cumstances factors, further found that vating the second raped Anderson and murdered According to Rhines’ statements [¶ 169.] mother, Piper Streyle, for his own benefit a store when burglarizing police, he was receiving something purpose entered and for the unexpectedly Donnivan Schaeffer 23A-27A-1(3)).17 (SDCL monetary office value came into the the store. Schaeffer him and Rhines stabbed area of the store comparison In a to the other down, Schaeffer fell in the abdomen. pool, we con- proportionality cases in the about, and screamed Rhines’ thrashed dispro- clude a sentence of death was again in Rhines stabbed Schaeffer name. criminal portionate for Donald Moeller’s back, lung. Rhines his left piercing First, only we note that this is the act. into out of the office then walked Schaeffer young the murder of a case that involves air Rhines could hear the storeroom. distinguishable child. It also from the is whistling of the wound Schaeffer’s out inflicted other cases terms of abuse pallet Schaeffer on a back. Rhines seated after her death. upon Becky before and placed in the storeroom. He Schaeffer’s slash to her neck Although the two wounds and thrust head between his knees vagus her jugular that cut her vein and knife the base of his skull. Rhines into to kill nerve would have been sufficient to breathe and claims Schaeffer continued her, additionally slashed and moving, so he tied his arms were Schaef- shoulder, chest, her Becky stabbed fer’s hands behind him. Rhines estimated back, other hip, arms hands. Unlike breathing continued for Schaeffer’s battery, involving aggravated cases inflicting after approximately two minutes severity case similar in to Rhines is most the final knife wound. infliction of in that both cases involved the sought penalty, the death that were intended to cause knife wounds aggravating four circumstances: alleging injury beyond required pain money, it was the murder was done for Indeed, accomplish the murder. witness, it done to silence a involved tor- by Becky sig- here were wounds suffered ture, depravity and it involved of mind. nificantly more numerous than those suf- aggrava- invalidated the fourth This Court at the hands fered Donnivan Schaeffer jury in- ting factor because of insufficient of Rhines. mitigating No circumstances structions. wounds Compounding knife family ap- but presented, were Rhines’ Becky raped, vaginally the fact that sentencing plead- peared phase at the anally, by Moeller. The record shows jury imposed ed for life. The a sen- death, vagina penetrated and tore her tence and we affirmed. he 45, Anderson, currently appeal 16. on to this 17. See also State This case is Anderson, Su- Court. State v. South Dakota 608 N.W.2d 644. preme Court No. Tacoma, to Washington Even more disturb- Moeller fled on was alive. while she penetrated 1990, he anally 13, the fact that ing May just day is one after his initial Becky deposited inside after and semen police death, concerning Becky’s interview dead, the lack by evidenced of she was where he lived under the fictitious name of torn bruising around the anus. blood (6) Larson; John after David Moeller fled slashed, abducted, raped, he stabbed After May to Washington police on raped Becky again, he left her and then searched, his room found and under his bed broken, body a dirt bloody alongside road May section of the Falls Sioux mitigating in rain. He offered no evi- newspaper containing composite sketch actions, argu- other than dence his of Becky’s assailant and an article discuss- being dealt a “bad regarding ments hand” (7) crime; clothes, ing the which Moeller’s doubt, life, morality in residual and the subjected analysis, would been to have soil penalty. the death in freshly were found washed otherwise proven this case was Although room; (8) messy, filthy soil on Moeller’s evidence, that does not circumstantial vehicle was soil consistent with from any way validity affect the of the sen- scene; (9) pro- crime and DNA evidence among Included the evidence link- tence. vided an of how often char- estimation a showing to crime was ing Moeller acteristics were common to Moeller (1) despite denying that he that: Moeller’s and the sperm Becky’s found rectum acquainted Becky, with one her would be seen population; Causasian Moeller occasionally Mends testified that indi- every result was 130 million (2) Becky; her bought popsicles for and viduals. a man eyewitness resembling had seen Becky talking Moeller to near the location atrocity Faced with the of the (3) seen; according where she was last to crime the solid case circumstantial Mends, Moeller visited the entrance to the showing clearly culpable, that Moeller was prior days secluded crime scene two to imposition we death conclude murder; (4) a Becky’s rape and vehicle dispro- neither nor sentence was excessive leaving similar Moeller’s seen portionate. Becky’s body location where was found at (5) crime; time approximated Affirmed.18 (6) 23A-27A-1(6) have other SDCL uncon- 18. We considered Moeller’s issues Whether is lacking and find them merit or resolved stitutionally vague and overbroad? our decisions in Moeller I or Rhines. Those (7) penalty proscribed Whether the death include: issues VI, § by Article 23 of the South Dakota (1) Whether the trial court its dis- abused Constitution? allowing testimony cretion in (8) SDCL ch 23A-27A is unconsti- Whether expert? State’s soil provides tutional that it insufficient (2) allowing Whether the trial court guidance to the sentencer? channel the sentencer’s discretion vio- unnecessary We deem it consider also right lates Moeller’s to fair notice under issue and we find State’s notice of review process separation pow- the due ers the United States and 4 are clauses of of review issues notice South Dakota Constitutions? moot. Those issues were: (3) trial its Whether the court abused dis- (1) court its dis- Whether the trial abused refusing proposed cretion in Moeller's allowing present cretion in regarding instructions residual against religious arguments moral doubt? argu- penalty during closing the death (4) trial its Whether the court abused dis- sentencing phase? in the ments allowing prosecution cretion in (2) grant it was allocution Whether error argument give a rebuttal sentenc- Moeller? ing phase? its dis- the trial court abused Whether (5) Whether the trial court erred in admit- depose allowing Moeller to cretion ting DQ-alpha typing DNA results of trial? twice before evidence? witness 466 Carroll, States v. In United 2000 [¶ 183.] and KONENKAMP 177.] [¶ (E.D.La.) 45870, omit- (quotation JOHNSON, WL *8 Justices,

GILBERTSON, and ted), Court ad- District the United States concur. Judge, Circuit and Kumho the Daubert reliability dressed Justice, AMUNDSON, dissents. Kumho “does not noted prong and the courts to reinvent require district JOHNSON, Judge, Circuit [¶ 179.] testimony is of- every expert time wheel Justice, SABERS, disqualified. sitting for However, this does not in court.” fered by and idly trial court to sit allow the AMUNDSON, (dissenting). Justice testimony. expert’s automatically admit Appeals of dissent as to As the Tenth Circuit Court respectfully I [¶ 180.] Velarde, v. recently stated United States in issues. following (10th Cir.2000), 1204, 1209 214 F.3d trial court 6. Whether [¶ 181.] the trial court is recognize we “[w]hile admitting in a be- its discretion abused in how determining latitude gteat accorded expert, and in report soil lated State’s Daubert findings before reliability to make failing admissibili- to conduct a Daubert testimony, Kumho and admitting expert expert’s ty hearing testimo- on the soil must, Daubert make that the court clear ny. record, make some kind reliabili- on the added). v. Merrell Dow ty Daubert determination.” (Emphasis In Phamaceuticals, Inc., 579, 509 U.S. 592- interpreting the court’s relia- In 469, 2786, 2794, L.Ed.2d 113 125 S.Ct. Kumho, bility determination under (1993), Supreme the United States 480 Co., v. New York in Bacardi & Ltd. court for specific standards Court established Co., Lighter 2000 *3 Inc., WL testimony. expert admission of scientific (E.D.N.Y.) concluded, omitted), (quotation the Daubert gate-keeping deci Recently, expert are [the witnesses] fact that [t]he “ apply to ‘technical’ expanded sion in their re- experienced educated ” testimony, specialized’ expert ‘other fields, however, not end spective does scientific ex testimony as from Rather, as well reliability. inquiry into Carmichael, Tire v. perts. See Kumho Co. whether also must consider Court 1167, 1171, 137, 141, 526 U.S. S.Ct. in the courtroom the experts “employ[ ] (citing Fed.R.Evid. char- rigor L.Ed.2d intellectual same level of Dokken, 702). See also Estate practice expert of an acterizes the ¶ (Amundson, 9, 51, relevant field.” 604 N.W.2d Kumho J., concurring specially) (quoting case, present John Weh- the Daubert expanding gate-keeping professor geology renberg, a retired Kuper function). recognized This Court specializes forensic examinations who Co., Electric SD Lincoln-Union soils, concluding that report submitted a ¶ 748, 760, “when left front sample taken from the the soil admissibility ruling trial court is on the to a pickup was similar fender of Moeller’s the trial court needs expert opinion, of an from the crime sample that he took soil function” to gatekeeping to exercise its Wehrenberg’s justification scene. has a reliable opinion determine of a min- was the existence determination relevant to the case at “very foundation “gahnite” which is eral called gatekeeping func Wehrenberg’s hand. To exercise its results were rare” mineral. tion, geological trial court must determine both forensic not the basis some test, rather, by a were reliability relevancy of the but determined and the to Wehren- id. inspection.”19 “visual Prior See testimony. expert’s namely: testimony majority deci- witness said 19. The cited aspect leaves out a critical what sion testimony, requested [¶ To berg’s expert testify 187.] Moeller allow an hearing Daubert to determine reliabili- this rare mineral existed at the crime ty reasoning of Wehrenberg’s method- scene and on the defendant’s wheel well ology concluding that mineral was any without determination as to the relia- gahnite. The trial court denied Moeller’s bility result, of the expert’s reasoning or request, upon that based concluding his methodology is a clear violation of the trial prior qualifications and our decision in gatekeeping court’s function. I cannot ¶ Moeller, SD State v. condone the of an acceptance expert’s tes- 465, 486, by the evidence tendered timony solely upon based his own self- Wehrenberg was admissible.20 proclaimed least, accuracy.21 very At the concluding In that no Daubert a reliability determination must be made hearing required determine the re on the record to allow this Court to ade- liability Wehrenberg’s testimony, of quately appellate execute its role. This majority opinion hold that would because was not I done here and would hold that gahnite, an expert says it is it must be the trial court in refusing erred to hold a gahnite. enough rely It is not an Daubert make hearing to such a determi- expert’s determination, self-proclaimed nation. required more is to determine the reliabili ty of the expert’s e.g., results. See Ameri State, arguments [¶ 188.] The oral can Tourmaline Fields International Court, before this argued this issue is (N.D.Tex. Co.,

Paper 1999 WL *5 insignificant. case, In a murder capital is 1999) Lion, Inc., (citing Black v. Food anything insignificant? say no, I would (5th Cir.1999) (noting F.3d 308 that ex especially expert when hires an pert’s self-proclaimed accuracy is insuffi cient)). later utilizes closing the evidence its Q. (Moeller’s Attorney): you Frye When take more than the liberal standard out the that are ... minerals common under which this was admitted. I'm any place east of the Rockies and going it to find is admissible based expect nearly any- one would find upon qualifications that he's many where in South Dakota how ruling Supreme shown and the of the points comparison were there that regard already in Court to the evi- you? were of substantial interest to dence tendered him. Well, (Wehrenberg):

A. in terms of the I, In Moeller there no determination was, grains mineral themselves there here, reliability under Daubert of there certainly with the hornblende was the reliability was also no as to the existence of one, rutile, biotite, significant there capital rare this mineral. Even in mur- tentatively is a mineral I identified deplorable der case with the facts involved gahnite which is a rather rare miner- here, duty still remains of the courts samples. al which I found in both And testimony paid experts to determine that that, gahnite could conceivable be just rely is reliable and not on credentials. individuating mineral I if knew gahnite more about distribution trial, preparing 21. second for the this ex- that, region. in this I don’t know pert Masten, April wrote a letter on to Jeff though, (Emphasis however. added to Research at RMA Director of Re- depict testimony by the deleted the ma- Falls, Dakota, making jority search in Sioux South opinion.) Wehrenberg following response question at the testified first trial that he testimony did not know and his at the gahnite:” sec- “how rare is ond trial does set forth not additional work done this witness to tell this reader Hence, gahnite very rare. must why he now knows. hearing 20. At the conclusion of trial court physical aspects Other are mineral admissibility insignificant on the of this new mineral, gahnite opinion involving suggestive rare than this the trial more common spinel. court held as follows: certainly fuzzy response equal This Okay, my THE And I think does COURT: view of reliability testing. the Daubert standard is without further somewhat issue arguments. Any argument 2000 SD 121 zany might at best. It is insignificant and Richard Bonnie NICKERSON I in view insignificant have been Nickerson, Plaintiffs and major but point, it was not the fact Appellants, significance have some there must been //-otherwise, and why testimony in Moeller testimony expert’s have focused would this Breitag Day and Catherine Don in II. rarity gahnite Plaintiffs, Breitag, 12. sen- Whether Moeller’s v. lawfully imposed. tence of death was INSURANCE, AMERICAN STATES my in again adopt I dissent filed corporation, a Defendant and Rhines, State 548 N.W.2d v. Appellee, 415. This is an ominous task to un- upon pro- the end result of dertake based Company, Allied Insurance a Mutual performing this portionality review. corporation, Fire and Dakota Insur- function, statutorily mandated this Court Company, corporation, ance Defen- has to determine whether not the death dants. being dispro- in South Dakota is sentence No. 21081. I portionately imposed similar cases. responsibility submit the awesome Supreme of South Court Dakota. performing such a review Court requires that we consider much more Considered on Briefs Jan. 2000. of cases extensive universe then contained 19, 2000. Reassigned June majority opinion. An be- example Aug. CR91-2045, Decided ing, VanEngel, which judicial system is a in our case where murder, charged

defendant with the

kidnapping rape twelve-year old

Argus newspaper Leader carrier and was life

ultimately imprisonment. sentenced to

Therefore, really in order to determine death being

whether the sentence is dis- Dakota,

proportionately applied South

all eligible penalty cases for the death have

to be reviewed to determine if death

penalty being in South Dakota is imposed

fairly uniformly in an arbi-

trary fashion.

Case Details

Case Name: State v. Moeller

Court Name: South Dakota Supreme Court

Date Published: Aug 30, 2000

Citation: 616 N.W.2d 424

Docket Number: None

Court Abbreviation: S.D.