*1
is
pro
American Bankers
situation that
pretext
on the
foreign corporations
greater
imposed upon
than that
other in-
industry
the state
moting
within
domestic
surers,
equal protection clause.
that statute is unconstitutional.
by the
prohibited
is
Ward, 470
Ins.
v.
Metropolitan
Co.
Life
judgment
the case is
is reversed and
1681-82,
-,
105 S.Ct.
U.S. at
remanded to the circuit court with di-
WHYY,
(citing to
Inc. v.
L.Ed.2d at 759-60
complaint.
rections to dismiss the state’s
117, 119-20,
Glassboro,
89 S.Ct.
393 U.S.
242,
(1968);
286, 287, 21 L.Ed.2d
244-45
HENDERSON, JJ., and
MORGAN and
Glander,
Corp.
337 U.S.
Wheeling
Steel
WUEST,
Justice,
Acting
concur.
1291, 1296,
562, 571,
93 L.Ed.2d
69 S.Ct.
FOSHEIM, C.J.,
part
concurs in
and dis-
1544, 1551(1949); Hanover Fire Ins. Co. v.
part.
sents
179,
494, 511, 47 S.Ct.
Harding, 272 U.S.
FOSHEIM,
(concurring
Justice
Chief
(1926);
49 A.L.R.
71 L.Ed.
380-81
dissenting
part).
part,
Greene,
(1926);
Rwy. Co. v.
Southern
216 U.S.
S.Ct.
agree
majority
I
with the
SDCL
(1910)).
536, 541
See Reserve
L.Ed.
10-44-2(3)
constitutionally defective and
Life
Bowers, 380 U.S.
85 S.Ct.
Ins. Co.
remanded. How-
that the case should be
(1965).
951,
tificate of in South Dakota so
long only existing as it services insurance Thus, foreign
policies. very class of exempt- legislature has
insurers which requirement regulatory
ed from the state’s foreign is the same class of insurers sin- Dakota, Plaintiff STATE South gled higher out for a tax burden because Appellee, of au- they not obtained a certificate have discriminatory premium tax thority. The REUTTER, Defendant Robert seemingly pro- very conduct penalizes the Appellant. 58-6-4(5). appar- It is moted under SDCL No. 14612. ent, therefore, purposes that the stated imposition higher tax on unlicensed of a Dakota. Supreme of South Court high- foreign pretextual. The insurers are Argued 1985. Jan. raising appears er tax to be a revenue Sept. Decided device, discrimi- impermissible basis for nating against foreign insurer. hold, therefore, inasmuch as
We 10-44-2(3) a tax on insurers imposes
SDCL
QJ9 *4 generally during available these visits and was used Trygstad. both Reutter and early late October or November of Trygstad Reutter informed of his de- cision to distribute cocaine in the Sioux Falls area. These place discussions took the Kotas residence. On two occasions in early Trygstad November received quantities limited of cocaine from Reutter Trygstad Cole, for resale. solicited Rich friend, associate, sometimes business Erickson, Gen., Pierre, Atty. Jon R. Asst. client, to retail the cocaine. plaintiff appellee; Mark V. Meier- Gen., Pierre, henry, Atty. on brief. arranged through drug Cole informant Ovérturf, to sell cocaine to Robert the state Johnson, Rick Charles Johnson Eklund drug agent named in the indictment. Davis, Gregory, appel- for defendant & lant. Agent Overturf first met Cole on Novem- ber at a Sioux Falls restaurant.
WOLLMAN, Justice. They apartment drove to Cole’s in Sioux appeal judgment Falls, This is an from a where Cole Trygstad by contacted appellant, telephone. conviction that found Robert Overturf and pro- Cole then (Reutter), guilty Trygstad’s of two counts of ceeded to law office. While Ov- *5 aiding abetting car, and the of distribution co- erturf waited in the Cole entered conspiracy office, caine and one count of to Trygstad’s returning dis- moments later 22-3-3, 22-42-2, tribute cocaine. gram SDCL with a of cocaine. Cole remarked to and 22-3-8. We affirm. they just Overturf that had missed a sub- cocaine, stantial amount of but that Over- engaged enterprise While in an to mine gram might turf was welcome to the so he gold Oroville, California, near Reutter con- inspect They agreed test and it. to meet transport a ceived scheme to to and distrib- again. County, ute cocaine in Minnehaha South plan 28, 1982, Dakota. initially imple- Reutter’s pur- On November Overturf during period January mented from approximately quarter chased from Cole a through conjunction March 1982 in ounce of cocaine that Cole had obtained Soto, employed with one John who was Trygstad, subsequently paid from who Reutter’s company, Oroville-based S & R Reutter for cocaine sold to $700.00 agreed Minerals. Reutter and in Soto Overturf. Reutter, exchange payment for from Soto 24, 1982, Trygstad On December re-
would obtain cocaine from a
in
source
San
ceived an ounce of cocaine from Reutter.
ship
Franciscо and
it to Reutter in Sioux
Cole,
Trygstad
gave
in turn
the cocaine to
Falls.
evening
who later that
sold half of it to
Although
$1,400
Reutter’s activities in
paid
Califor- Overturf
cash. Cole then
portion
nia
Trygstad,
paid
consumed a considerable
of his
thereafter
who
Reutter an
early
time in late 1981 and
1982 he
money.
never-
undetermined amount of
principal
theless retained Sioux Falls as his
1983,
In early January of
ar-
Overturf
wife,
Separated
residence.
from his
Reut-
ranged
purchase
quarter pound
a
to
in
ter lived
the home of Dr. Michael Kotas
Trygs-
cocaine from Cole.
informed
Cole
in
while
Sioux Falls.
tad,
who then contacted Reutter
tele-
1982,
early
In
Trygstad,
lawyer
phone.
Trygstad
David
a
Reutter advised
that he
Reutter’s,
and former law associate of
be- would
inbe Nebraska on business and in-
home,
gan spending time at the
him
Kotas
os-
structed
to discuss the deal with Dr.
tensibly for social
Trygstad
reasons. Cocaine was Kotas. Kotas and
met on Janu-
ary 6,
tor)
cocaine,
Bin
at the Grain
Bar located in
to distribute
a derivative or
preparation
Sioux Falls. Kotas indicated
he
that would
coca leaves.
fly
following day
to
Francisco the
San
argues
that because the indict-
purchase
quarter pound
of cocaine for
charges
ment
him
conspiracy
with
to dis-
Trygstad
to Sioux
and return
Falls
tribute cocaine
in
County,
Minnehaha
following day, January
Sunday
8. On
proscribed
the state should have been
from
morning, January
Trygstad called Kotas
presenting any
connecting
him
office
he
his
and stated that
needed
drug
related
activities
California.
shortly
after
day.
cocaine
noon that
pаrt
rests
on the fact
claim
Trygstad
Reutter delivered the cocaine to
that the
acts
alleged
overt
the indictment
that afternoon.
solely
refer
occurring
events
in Minne-
Trygstad and
met
Cole
at a bar
Sioux
County during
period
haha
from late
Falls
same afternoon.
Overturf ar-
early
October or
November 1982
Janu-
joined in
rived and was
his automobile
ary
produced
quarter pound
Cole. Cole
Bingen,
cocaine,
gave
and in return Overturf
Cole
(S.D.1982),
we said:
$10,000 in specially marked bills. Cole re-
(1)
To be sufficient an indictment must
bar,
Trygstad
turned
he
where
contain the elements of the offense
arrest,
were arrested. At
time of his
charged
fairly
inform the defendant
possession $9,600
Trygstad had in his
charge
him;
against
(2)
of the
enable
$10,000 given
Cole
Overturf.
plead
him to
an acquittal of
conviction
12, 1983,
Trygstad
On
enterеd a
prosecutions
bar of future
for the same
plea
guilty
conspiracy
to two counts of
offense.
to distribute cocaine. He then identified
Sinnot,
See also
State
S.D.
as his
source
cocaine and stated
(1947),
N.W.2d 455
cert. denied 334 U.S.
that Reutter had indicated
source
(1948);
68 S.Ct.
were indicted
*6
by
County
Minnehaha
with those
by
established
the United States
Jury.
Grand
Their cases were later sev- Supreme
Bailey,
Court. United States v.
ered for trial.
394,
624,
444
100
U.S.
S.Ct.
(1980); Hamling
States,
v. United
418 U.S.
87,
2887,
(1974);
94 S.Ct.
623
1977);
Harris,
required
committing
in an indictment for
v.
United States
542 F.2d
Sinnot,
1283,
(7th Cir.1976).
State v.
the substantive offense.
1300
Nor must the
457;
104,
government
Wong
72 S.D. at
to
prior
disclose
defendant
to
77,
States,
273 U.S.
47 S.Ct.
every
Tai United
trial
overt act
furtherance of the
300,
(1927). All
71 L.Ed.
that is neces-
prove.
545
conspiracy it
intends
United
.
sary
“certainty,
charging conspiracy
Sellers,
(8th
States v.
603 F.2d
Cir
intent,
identify
1979),
common
sufficient
grounds,
vacated on other
447 U.S.
conspired 932,
the offense which the defendants
(1980).
100 S.Ct.
States had been mailed behalf that *7 1982). Scanlon, See also States v. United California, John Soto from was listed on (8th Cir.1981); F.2d 144 640 United States appearing the indictment as a witness be- (5th 109 Montemayor, v. 703 F.2d Cir. Reutter, course, grand jury. fore the of 1983); Sedlak, 720 United States v. F.2d had access to the indictment and the accom- (1st Cir.1983). 715 panying Although list of witnesses. he is the if
Additionally, there considerable was instructed to contact court he authority any difficulty for had access proposition gaining the that the to the witnesses, government proof state’s did not do so. not limited at trial he Reut- alleged of those acts in the ter’s counsel allowed to overt interview Johnson, Trygstad prior penitentiary indictment. v. 575 in the to trial. United States (5th Cir.1978); Reutter to file a F.2d 1357 United elected not motion for Morales, (1st 2 discovery. F.2d We further note that Reutter States 677 Cir. 1982); Bolzer, continuance, request despite did United 556 F.2d not his States (9th Cir.1977); immediately 950 United contention that before trial the States v. Netterville, (5th 918 state its sudddenly 553 F.2d Cir. disclosed intention to
624
present of Reutter’s scheme to evidence II. Moreover, obtain cocaine from California. Prior Testimony Bad Acts presented record that Reutter reveals Reutter next that the contends trial court an elaborate defense in effort to alibi in admitting erred testimony prose- of refute the state’s evidence. cution witness Kim Her Soto. points Reutter out also state was offered as evidence of Reutter’s inten- plan tion and acquire cocaine in respond failed Califor- timely to the court’s order subsequently nia and distribute it in Minne- granting part request his of for bill County. haha particulars. have We reviewed Reutter’s specific requests set forth the bill of Mrs. Soto testified she first met particulars. Although Oroville, California, we do not condone Reutter in the sum- through husband, mer of 1981 her respond promptly, the state’s John failure we Soto, who at employee the time was an of reject suggestion Reutter’s that this failure company, Reutter’s RS & Minerals. Reut- compounded inability prepare a de- ter visited the Soto home Oroville fense. early first time in 1982 and on several visit, During occasions thereafter. one showing Reutter has made no Soto Mrs. observed her husband and Reut- that the state any exculpatory withheld or During ter visit, use cocaine. another oc- Parker, material evidence. State v. 263 curring sometime between (S.D.1978). 682 A mere alle March she overheard a conversa- gation by the preparation accused that Reutter, tion her between husband and dur- impeded by effective defense was ing which stated that he would late disclosure is insufficient to money husband, send to her who in turn establish a constitutional violation. Rich would mail cocaine to Reutter in Sioux Solem, (8th Cir.1982). ards v. F.2d 760 John Falls. Soto’s sоurce of cocaine was (8th See Ogden Wolff, also F.2d located San In Francisco. March Cir.1975); Dog, United States v. Crow give Mrs. Soto observed Reutter her hus- (8th Cir.1976); F.2d 1182 United States v. $10,000. band Mrs. Soto later witnessed Smith, (8th Cir.1977). F.2d packaging her husband cocaine in a West- speed ern Airlines pack, which he subse- sought information Reutter’s bill quently mailed from At San Francisco. particulars pertained to the four counts trial, Mrs. Soto her sig- verified husband’s of aiding abetting distribution receipts nature several from Western cocaine in Minnehaha County. As for the Speed Airlines Pack Service. These same count, conspiracy sought informa- receipts point showed Sioux Falls as the pertinent tion to the overt acts enumerated origin and “shipper.” Reutter as Mrs. Soto in the indictment. Reutter makes no claim July 25, testified that her died on husband particular this evidence was concealed prior Indeed, him to trial. the evi- Reutter contended that Mrs. Soto’s testi- dence Reutter claims he did not have ac- mony, true, even if nothing had to do with prior cess to to trial was the state’s evi- specific charged. crime The trial court dence alleged purchases of cocaine made rejected argument, admitting California, reject. short, a claim we testimony pursuant 19-12-5, to SDCL Reutter has prejudice. failed to show *8 which states: We hold that the indictment the crimes, Evidence of wrongs, other or present impair case not did Reutter’s Sixth is not prove acts to admissible the char- trial, right Amendment to a fair nor did the person acter of a in order to show he deprive state opportunity Reutter of the to in conformity may, acted therewith. It prepare adequate concealing defense however, be pur- admissible other evidence. poses, motive, such proof opportu- as
625 intent, preparation, plan, knowl- nity, capacity persuade of the evidence identity, edge, illegitimate or absence of mistake or means.
accident.
Shell,
See
v.
State
Iron
Determining whether trial the closely related to events connected the properly court Mrs. testi admitted Soto’s charged. conclude, therefore, offense We First, mony inquiries. involves two wheth trial that the court did not abuse its discre- er the evidence is relevant to one of the admitting tion in this evidence. exceptions stated in SDCL 19-12-5. State Willis, 193, (S.D.1985); v. 370 N.W.2d 197 trial proposed cautionary The court in- (S.D. Rose, 894, 324 State v. N.W.2d 895 limiting jury’s struction consideration 1982). relevant, Secondly, if whether the testimony of Mrs. Soto’s to “whether it prejudicial effect of the evidence substan tends show that had defendant tially outweighs probative its value. State scheme, design, system plan or to commit Wedemann, Rose, supra; v. v. 339 State crimes of the with sort which he is now 112, (S.D.1983). N.W.2d 115 SDCL See charged.” proposed The instruction fur- appeal 19-12-3. standard review on “[y]ou ther continued are required not is whether the trial court abused its discre evidence, you consider this and whether do admitting tion the evidence. State so not is your or a matter within exclusive Pedde, Willis, supra; State v. 334 N.W.2d province. may You not consider as tend- it (S.D.1983). 43 ing other any respect to show the de- guilt any fendant’s offense with which crimes, Evidence of other charged proceedings.” he is now wrongs, “any or if acts is relevant it has instructions, however, On settlement of tendency any to make fact the existence of instruction, objected argu- to this consequence that is of to the determination ing that it improperly jury would allow probable proba the action more or less legal question. proffered to decide a He no ble than it would be without the evidence.” instruction, 19-12-1; however, Johnson, alternative did he SDCL 316 nor State (S.D.1982). specify in in- proposed what manner the N.W.2d 654 We observed was insufficient. struction “[a]ny Johnson that fact that tends to connect accused with the commission vague objection to the probative crime relevant and has val proposed coupled instruction with his fail Dace, ue.” See also State v. 333 N.W.2d ure to offer an alternative instruсtion re (S.D.1983). being properly pre sults in this issue not testimony Mrs. Soto’s satisfies the appeal. 6—51(b); served on SDCL See 15— relevancy test of in that it constituted evi 183-86, Greene, S.D. State dence of Reutter’s dis overall scheme to (1972); Pop 716-17 State v. County, tribute cocaine in Minnehaha in (1957). penga, S.D. N.W.2d 518 cluding the planning prepa correlative carry necessary ration it out. III. The prejudicial effect Mrs. Accomplice Testimony Corroboration of testimony
Soto’s does not warrant the con Reutter’s third contention is that tes- clusion that the trial court abused its dis timony accomplices Trygstad Cole admitting cretion in it. Hol sufficiently was not corroborated. land, (S.D.1984), we stated: provides: 23A-22-8 SDCL
Prejudice in upon SDCL 19-2-3 does mean A conviction be had not cannot damage opponent’s accomplice to the re- case that of an unless it is legitimate probative sults from the face other which corroborated rather, evidence; of the it refutes to the tends to connect the defendant advantage unfair that results from the commission of offense. corrobo- *9 626 merely
ration is not sufficient if it
shows
John Soto introduced Reutter and Kotas
offense,
the commission of the
or the
Francisco,
to one Gail Sholiton of San
who
circumstances thereof.
allegedly supplied
co-conspirators
with
cocaine, including the cocaine ultimately
Accomplice testimony need not
purchased by agent Overturf from Cole on
by
be corroborated
evidence sufficient to
9,
January
1983. Reutter acknowledged
Grooms,
sustain a conviction.
v.
State
339
that John Soto
him
introduced
to Gail Sholi-
318,
(S.D.1983);
N.W.2d
320
State v. Erick
ton and that subsequently he maintained
son,
332,
(S.D.1982);
315 N.W.2d
335
State
frequent contact
by telephone
with Sholiton
Nelson,
777,
(S.D.1981);
v.
310 N.W.2d
778
by
traveling to San Francisco to visit
Feuillerat,
326,
State v.
292 N.W.2d
330
personally.
her
Reutter introduced Dr.
(S.D.1980);
Ko-
Martin,
State v.
287 N.W.2d
Sholiton,
tas to
whom Kotas also re-
(S.D.1980);
Brown,
State v.
frequent contact,
mained in
(S.D.1979);
person
both
State v. Burk
phone.
and over the
man,
Schneider,
Pam
(S.D.1979);
281 N.W.2d
close friend and
Moellar,
employee
Kotas,
(S.D.
ac-
State
knowledged
1979);
that
Giulano,
Kotas had
State v.
informed her
N.W.2d 33
that
(S.D.1978).
Sholiton was
The mandate of
his source of
the statute is
cocaine in
California.
satisfied where the corroborative evidence
in some
degree
substantial
tends to affirm
The evidence
Trygstad’s
verifies
testimo-
testimony
the truth of the
of the accom ny
that
January
on
he met with
plice
guilt
and establish the
of the accused. Kotas at the Grain Bin Bar and that the
Moellar, supra;
State v.
State v. Erick
following day
Francisco,
Kotas flew to San
son, supra.
requirement
There is no
that where he contacted Gail Sholiton. Kotas
every material
by
fact testified to
the ac
later,
flew back to
day
Sioux Falls one
complice
by
be confirmed
corrobative evi
cocaine,
Trygstad
This
Feuillerat,
dence. State v.
supra; State
testified, was
delivered to him Reutter
Erickson, supra.
The accused himself
Sunday
morning, January 9, which was
provide
can
the necessary corroboration.
later sold
Agent
that afternoon to
Over-
Erickson,
State v.
supra. Finally, wheth
turf.
er corroboration
question
is sufficient is a
The evidence further establishes that
jury.
for the
Erickson,
State v.
supra,
throughout 1982
generally
cocaine was
Feuillerat, supra.
See also State
present in
during
the Kotas home
the time
Wiegers,
(S.D.1985).
orated Mrs. Soto’s that on sever IV. al occasions in 1982 money he did mail Trial Court’s Ruling Restricting John Soto in speed Western Airlines pack Cross-Examination State’s ets from Sioux Falls to San Francisco. The Witness Bias state introduced documentation to confirm these transactions. acknowledged argument Reutter’s fourth is that packages he mailed on Western Air unduly trial court restricted his cross-exam- lines from San Falls, Francisco to Sioux prosecution ination of witness Rich Cole. Dakota, South at least one of which Specifically, Reutter claims that he was not picked up in Sioux Falls Dr. Kotas adequately allowed to examine Cole for request. bias. *10 offered,
At the time testimony was against state’s case Reutter. We are serving Cole was two ten-year consecutive therefore satisfied that the trial court did sentences in the South Dakota State Peni- not abuse its by discretion ruling. its tentiary on his conviction on two counts of We notе with interest that although distribution of cocaine. Cole entered his argues Reutter that establishing Island’s pleas guilty exchange for the state’s Trygstad connection with and Cole was agreement prosecute not to him as a habit- defense, central to his he did not call Island ual offender. as a although witness subpoenaed he had During opening argument Reutter’s him. counsel stated that the evidence would Trygstad show that and Cole had obtained V. Reutter, cocaine from sources other than Trial Court’s to Grant Reutter’s Refusal including one Frank Island. Island was Motion to Dismiss or Change of generally by characterized Reutter’s coun- Venue Due to Pre-trial Publicity sel major drug supplier as a in South Dako- Reutter moved for dismissal of the ta. charges against him “because of unfair and questioned Cole was extensively on prejudicial comments about his case” cross-examination about profes- both his Attorney General Mark Meierhenry. sional and social relationship with Island dismissal, lieu of sought change including drugs the extent to which were of venue. involved in relationships. these In an ef- Reutter’s requested motion also fort to establish that that the Cole was fearful of trial court order Island, personnel state incriminating “to discon- counsel attempting tinue asked to affect testimony Cole whether he had ever made a witnesses or to representatives statement to cause untrue and unfair the state in publicity a matter about unrelated to defendant sug- this criminal false action gestions publication that Frank Island defendant, was “cold blooded.” The trial court pаrty sustained the was a objection state’s other unnamed and ground unproven on the relevancy crimes.” and materiali- ty had not been established. Reutter ar- Reutter’s motion stemmed from events gues ruling that this constitutes reversible following the untimely death of named co- disagree. error. We conspirator Dr. Michael Kotas. Kotas was found dead in his home on the scope morning and extent of cross-ex 27, 1984, approximately days amination is a matter ten within the sound before his discretion of scheduled trial. Later day, the trial court. State v. Head, Attorney Wounded General Mark (S.D. Meierhenry ap- 1981). peared press at a We will overturn conference in Sioux the trial Falls court’s at which he only upon apparent decision commented on an showing that this dis plea bargain cretion has between the Brown, been abused. state and Kotas. In an (S.D.1979). appearing article the Sioux Falls We have Argus following examined in Leader the day, January detail Cole’s testimony and reported find it was that Reutter that Attorney was afforded considera Meierhenry General ble latitude in had stated at examining press Cole respect conference expected to his that Kotas was relationship with to en- Island. Further more, plea guilty ter a Friday 27). testimony (January Cole’s was not offered reported The article further the state as that: direct evidence of Reutter’s involvement in conspiracy. Rather, Although Meierhenry didn’t indicate Cole testified that his sole source of co plea bargain whether the having included caine Trygstad; was it Trygstad’s tes testify against Kotas others in the co- timony that directly implicated investigation, Reutter. caine he T said would nev- Cole was thus not a crucial witness accept plea negotiation er unless the
person
pled guilty bared his
actual
who
soul.’
the coroner’s in-
Meierhenry
say
he was unable to
quest.
said
reporter
No
even hinted at Mr.
*11
what,
anything,
if
Kotas could add to the
guilt
possible
any
fashion
investigation.
a fool
‘Only
say
would
prior
present
being
to the
motion
filed.
there’s not some
between Dr.
connection
The content
article merely para-
of that
ongoing
investiga-
Kotas
cocaine
and our
phrases the
of the
content
motion.
Dakota,’
tion in
he
South
said.
In
findings,
view of its
the court concluded:
Argus
Reutter introduced this
Leader sto-
There has
no
produced
been
evidеnce
ry, in
covering
addition to
others
a
several
impact
any
upon
shows
this commu
January 28, 1984,
period of time from
to
prevent
nity
might
which
the defendant
support
February
of his motion
receiving
from
a fair trial. There were
introduced a video-
dismiss. Reutter also
to
neither
affidavits nor
from cit
tape copy of four
broadcasts occur-
news
county
izens of the
demonstrating any
ring
January
February
from
1984 to
by
influence or bias caused
these re
produced
marks.
poll
prove
No
was
to
argues
although
he
was to
prejudice.
Marshall,
actual
See State v.
Kotas,
separately
tried
the
be
from
Attor-
(S.D.1978).
conditions conclusions of the trial court. The exist pretrial ence publicity alone does not While the articles and news broadcasts warrant the conclusion that the accused were widespread, find, the court cannot Reed, was denied a fair trial. State v. upon them, a fair observation (S.D.1981) N.W.2d (citing reporting Murphy such anything but accu- Florida, 421 U.S. 95 S.Ct. rate. There was no statement on the (1975)). L.Ed.2d 589 possible guilt burden defendant. rests with this There the accused appear any impartial does not that an to be scheme or establish trial design opinion possible pretrial is not in the face of public influence about publicity. Reiman, the upcoming report- Most State trial. of the ing (S.D.1979). Furthermore, dealt with the circumstances sur- whether rounding untimely demise, change granted Mr. Kotas’ venue will be is a findings of law enforcement and matter within officials the sound discretion of the requested trial court will the trial evidentiary and we not disturb a closed showing hearing court’s that its on the allegations, arguing decision absent a that it would discretion has been abused. v. Rei be detrimental to introduce State testimo- ny presence man, press. supra. of the The trial court denied the motion. trial court Moreover, the voir dire examina any reasoned that prejudice resulting from ascertaining tion is the forum better open hearing could dealt with be hostility the existence towards ac venue, of a change continuance, means cused. Id. Reutter makes no claim that proper voir dire. Reutter’s counsel remedy he was *12 unable to the effects rejected these alternatives. pretrial publicity through pro adverse this appeal, On Reutter claims that in addi- Reiman, cess. As in test we stated “the Kotas, tion to Schneider and witnesses is, fact, prejudice whether there in in the Becker, Joanne who was a California friend county minds of the inhabitants of suf Reutter’s, of and Mrs. were Soto also intim- apprehension ficient to raise a reasonable a by idated in similar Attorney fashion that the accused will not receive fair and argues office. General’s Reutter that the
impartial
county.”
trial in the
at 867.
Id.
Attorney General’s
actions resulted
See
Meservey,
53 S.D.
220 N.W.
devastating
part
bias on the
of these wit-
(1928).
respect
nesses. With
the testimony
Schneider,
Kotas,
Pam
Mark
and Joanne
We hold that
the trial court
Becker, we fail to
find evidence
properly refused Reutter’s
motion
dis
of “devastating
record
On direct
bias.”
miss
request
change
and his
for
venue.
state,
by the
examination
Pam Schneider
any knowledge
denied
of Reutter’s involve-
Similarly,
ment
cocaine.
Mark
with
Kotas
VI.
having
ever
Reutter
denied
seen
use co-
Intimidation
State Witnesses
caine, testifying
brother,
as
that his
well
Kotas, had
Dr.
never indicated to him that
sought
Reutter also
a court
re-
order
he was involved with Reutter
the use or
straining the
intimidating poten-
state from
fact,
distribution
cocaine.
cross-
tial witnesses. At
hearing,
Reutter
counsel,
examination
Mark
requested
separate hearing
outside the
Kotas stated that Reutter was a close
presence of the media to set
his alle-
forth
friend and
without Reutter’s aid and
gations.
granted
The trial court
the in-
he would
assistance
never have been able
hearing,
only
camera
but
for the limited
to endure the ordeal of his brother’s death
purposes
making
proof.
an offer of
impending
trial. The record also indi-
Reutter claimed that certain state officials
cates that Mark
with
Kotas dined
Reutter
had made
potential
comments
two
wit-
eve of
on the
his trial.
Joanne Becker
prevented
nesses that
him
conducting
from
during
relationship
testified
her
with
a meaningful
Specifi-
interview with them.
any
Reutter she had never
talk
heard
about
cally, Reutter
Attorney
claims that
any
drugs.
nor seen
narcotics or
attempted
General’s office
to influence the
testimony of Pam Schneider and Mark Ko-
four
allegedly
Of the
witnesses who
following
tas
the death of
Kotas.
Michael
state,
Mrs.
were intimated
Soto was
alleges
Attorney
further
that the
directly
one to
link Reutter to
General’s office stated to
Schneider
Prior to
сocaine.
trial she was confronted
Kotas that
had
implicated
been
warning
place
employ-
without
at her
at least five murders.
Reutter stated
investigator
Malloy.
ment
defense
Tim
Schneider was specifically
that she
Malloy
advised
Mrs.
told
that she did
Soto
not
might
in danger
any thing
be
Reutter and
know
about Reutter’s involve-
asked if she
protection.
wanted to have
ment
cocaine and that she did
not
evidentiary hearing.
It is no
The record reveals
basis
to be involved.
want
appeal that defendants
relief on
failed
highly distressed
this
that Mrs. Soto was
opportunity.
avail themselves of that
part
meeting,
perhaps
her distress
due
Malloy
her at her
the fact that
confronted
that she had denied knowl- properly The trial court acted edge of Reutter’s involvement. refusing pub to close the courtroom to the notwithstanding the trial Furthermore allegations. lic on the basis of mere More that he should advise the court’s directive over, granted specific the trial court *13 any problems, court of witness-related requested relief in Reutter’s motion. Reutter made no mention to the court of nothing than to did more
Mrs. Soto. allegation support make an that finds no in recently Schneider, held testimony have that we will record. The of We Kotas, attempts by not countenance the state to and Becker stands direct contra diction to Reutter’s assertion that the state interfere with a defendant’s constitutional prejudiced against these witnesses him. If right to call witnesses on behalf. State anything, testimony their harmed the state. Wiegers, supra. Upon proper show ing, defendant entitled to have trial approach Reutter did not the trial findings respect court make to a claim respect alleged court with to the intimi of witness intimidation. Id. heаring At dation of Mrs. Soto. on this Wilson, In United States v. 715 F.2d motion, Reutter referred to Schneider (7th Cir.1983), the trial court’s refusal transcript hearing and Kotas. grant evidentiary hearing an on defend- shows that the trial court instructed Reut- allegations prosecutorial ant’s miscon- bring any ter to to its attention further (cid:127) ' upheld. duct was Defendant in Wilson problems concerning state witnesses. alleged prosecu- to the trial court that the court, again approached Reutter never potential tion had intimidated witnesses in pursued nor the matter on cross-exam attempt gain testimony. an favorable any ination of of the witnesses. The trial court refused the motion to dis- support there is no factual Because miss, refusing grant in addition to an supporting allegations the record evidentiary hearing, because defense coun- intimidation, of witness we find no evidence support. no factual at 1170. sel offered Id. prejudice. appeal, Appeals the Court of for the On We have considered each of these re- held: Seventh Circuit maining issues raised Reutter’s brief and If there was a factual basis for defend- they present conclude that no issue of re- allegations prosecutorial miscon- ant’s versible error. duct, that should have been factual basis judgment is affirmed. the trial court. The defend- presented to opportunity
ants were afforded MORGAN, J., concurs. present allegations sufficient warrant C.J., J., FOSHEIM, WUEST, Acting and
concur in result.
Simmons,
Flora SIMMONS and John
Appellees,
Plaintiffs and
HENDERSON, J., dissents
for-
without
opinion.
mal
FALLS, Municipal
A
CITY OF SIOUX
FOSHEIM,
(concurring
Justice
Chief
Corporation;
Super
Sioux Falls Park
rеsult).
Munro,
intendent Ken
in his individual
capacity; City Employee Terry Van
I
the majority opinion
concur with
Doren,
capacity;
City
his individual
I., II., IV., V.,
VI.,
Issues
and
and with the
Employee Shawn
McCormick
his in
result on
III. The
testimony
Issue
ac-
capacity;
City Employee
dividual
complices Trygstad and
suffi-
Cole was
Charlton,
Edwin
in his individual ca
ciently
However,
corroborated.
role of
pacity,
Appellants.
Defendants and
jury
under SDCL 23A-22-8 is over-
to the trial courts.
stated
and could
send a misleading
signal
Jerry ENGELHART, Plaintiff
[*]
[*]
[*]
[*]
[*]
Appellee,
23A-22-8,
may
Under SDCL
a defendant
not
testimony
be convicted
accomplice
it is
unless
corroborated
evi
FALLS, Municipal
A
CITY
SIOUX
OF
dence which
more than
com
does
show the
Corporation;
Super-
Park
Sioux Falls
offense,
mission of the
or the circumstanc
Munro,
Ken
in his individual
intendent
degree
es thereof. The
suffi
City
Terry
capacity;
Employee
Van
cient
to corroborate the
of an
Doren,
capacity; City
in his individual
accomplice
question
is an ultimate
of fact
McCormick, in
Employee
his in-
Shawn
See,
jury.
e.g.,
Erickson,
for the
City
capacity;
Employee
dividual
*14
(S.D.1982)
and State v.
Charlton,
individual ca-
Edwin
Walsh,
(1910).
25 S.D.
App.1983), Jones, People v. 76 A.D.2d (N.Y.App.Div.1980).
initial judge necessary role of the trial jury
before the of the function is activated. language majority opinion of the indi procedure
cates that the entire exclu is the n prerogative sive jury.