*1 \ Dakota, STATE of South Plaintiff Appellee, WIEGERS,
Donald Appellant.
No. 14304.
Supreme Court of South Dakota.
Argued April 1984. July 31,
Decided
Willfully, unlawfully and feloniously, be- tween the months of March and Novem- ber, 1981, conspire with Scott Whitesell Waff, and David to commit the offense premeditated murder, an offense *3 against the Dakota, State of South and that David Waff did following overt acts, did, to-wit: David Waff on or about October, day 1981, the 22nd of without law, authority of perpetrate and with a premeditated design to effect the death person killed, of the kill Russell Keller in Smith, Gen., Pierre, Mark Atty. Asst. for County, Lawrence South Dakota. Con- plaintiff appellee; and Mark V. Meierhen- trary to SDCL 22-3-8. Gen., ry, Atty. Pierre, on brief. Ct.III: PREMEDITATED MURDER: Pugh, Kenn A. Northern Hills Public De- Willfully, unlawfully and feloniously on fender, Deadwood, ap- for defendant and October, or about the 22nd day 1981, pellant. authority law,
without perpetrate and WOLLMAN, Justice. premeditated design with a to effect the killed, person death of the kill Russell appeals from his conviction Defendant Contrary Keller. to SDCL 22-16-4 and County jury a Brule of two counts of con- 22-3-3. spiracy to premeditated commit murder and of the lesser included offense of man- Brown, Keller and Melvin who was the slaughter in the degree.1 second We af- stepfather wife, partners Keller’s were part firm in part. remand in in a in business Deadwood known as B & K charges against early arose Wrecker defendant out Service. Brown killing Iwan, of Russell Keller of called Keith Dead- whom he for had known wood on January October 1981. years, On some sixteen or seventeen and asked County a Lawrence grand jury re- anyone whether knew of Iwan who could turned an charging indictment defendant perform a in turn murder. Iwan called as follows: defendant, whom Iwan had known for fif- Wiegers years, Donald did: to appliance teen seventeen at his
[T]hat Rapid store in City and told defendant that Ct.I: CONSPIRACY TO COMMIT PRE- he, Iwan, had a man who “wanted MEDITATED someone MURDER: off,” knocked and then asked if defendant Willfully, feloniously, unlawfully and be- replied he was interested. Defendant tween the months of March and Novem- he get would back to Iwan. Within two ber, 1981, conspire Timothy J. Holmes, weeks defendant informed Iwan that the pre- commit the offense of job murder, could done and that he wanted meditated an offense $2,500 Dakota, Brown, State of for it. Iwan then called who South and that said Holmes, Timothy $1,500 give J. did the told Iwan that he would him following acts, Timothy Holmes, overt to-wit: J. the outset and “the rest when it was over did, with the intent to effect the April May death of with.” in Sometime Keller, Russell lure and entice said Rus- brought $1,500 Rapid City Brown in cash to sell Pahasapa Campground Keller to the Iwan, gave along picture it to with a County, located Lawrence South Dako- telephone Russell Keller and a number. ta. Contrary to SDCL 22-3-8. $1,000 kept gave Iwan for himself and de- $500, Ct.II: along CONSPIRACY TO PRE- fendant picture COMMIT with the MEDITATED MURDER: telephone number. changed County County. Venue from Lawrence Brule meantime, Scott Whitesell had contact- contacted defendant
In the May April or of 1981 determine Timothy to determine whether Holmes ed per- whether Whitesell was interested performing interested Holmes was forming the murder. Whitesell agreed that he After Holmes murder. selling guns and television sets stolen $500, gave job, him do the defendant would years in approximately two Keller, shot- picture of sawed-off support drug his money obtain order to suggested Holmes gun. Defendant also Waff, David habit. Whitesell contacted killing way up the best set performing principal drug supplier, about on fake wreck- call Keller out would be the murder. Waff said that call. er doing job. la- Sometime interested Holmes, later, weeks who had Some two ter, however, if Waff asked Whitesell shotgun, accom- repairs on the made some friend still someone Whitesell’s wanted Kirschenmann, whom by one Chuck panied inquired in turn de- killed. Whitesell *4 jail some had bailed out of with of Holmes person he still the fendant whether wanted defendant, money from the he had received killed, replied in the to which defendant camp in up an near a Girl Scout set ambush Whitesell affirmative. Defendant then told Keller arrived at the Black Hills. When was to be that was Russell Keller who response a fake wrecker the scene in paid price killed that the to be was and call, however, go through Holmes could not $2,000. gave Keller’s Defendant business killing. Whitesell, the phone with of- and home numbers to used, gun suggested a that fered to be later, or three weeks after discuss- Two perform person who was to the murder the defendant, ing Holmes the matter with on in a should call Keller out a wrecker call for Keller. again up set another ambush him, area, “plant and then a secluded shoot handgun, .44 Holmes Armed with a caliber bag grass on him.” Whitesell of bad lay responded to the in wait while Keller A passed this information on to Waff. however, Again, fake call. wrecker that or so later Waff told Whitesell week attempt kill Keller Holmes made no gone up to check the area where he had appeared when Keller scene. might told be killed. Waff also Keller calling a times Iwan half dozen After money he some be- that needed Whitesell inquire why the murder had not been com- Whitesell then went cause he was broke. mitted, finally return Brown demanded the appliance store and obtained to defendant’s money. in turn asked defend- of his Iwan defendant, $1,000 which Whitesell from repaid return the $500. ant to gave in of gave $500 to Waff. turn Waff funds, telling his Iwan out of own Iwan In addition money back Whitesell. him Waff, that Holmes “had stiffed [defendant] from to the that he received $500 $1,500 Iwan then returned the power $500.” a received from defendant Whitesell early July wire, 1981. booster, in late of speaker to Brown June and a discount some part in the on a for Whitesell’s stereo September defendant called planned murder. he a who would saying Iwan had man point during At his conversations some get job and that Iwan should do the Whitesell, Whitesell with Waff showed again. called Brown and money Iwan then He pistol. a .25 caliber also showed White- $3,000 told him that it would cost total bullet, had tip of which he sell killed. then met to have Keller Brown “x,” explanation inscribed with the $2,000, him Rapid City gave Iwan upon impact and explode the bullet would understanding balance of that the with the therefore be untraceable. would $1,000 paid after Keller had been would be dayA later Iwan called killed. or two that he also told Whitesell Waff planned he had ob- defendant and told him that Keller to the scene called appeared money, defendant re- murder but that Brown tained which place. two men discussed go we’ll Keller’s plied, “Okay, ahead.” planned killing, telling with Brown Waff for the payment. remainder of his White- good day that a to commit murder sell in turn contacted defendant. Defend- be at time would when Brown Iwan, ant contacted asking for the rest of wife were out of town. Brown and Waff money. gave $1,000 Iwan to defend- agreed upon then a suitable date. ant, gave who later it to Whitesell. White- sell in money turn delivered the to Waff. incident,
With to this last Iwan approx- testified that Brown had him called A .25 caliber bullet with an “x” inscribed imately ten days before Keller was killed tip on the was removed from Keller’s skull him responded and told that he had during autopsy. spent A cartridge was Waff’s call because Keller’s wrecker truck roadway found on the behind Keller’s ve- had broken Brown down. also told Iwan hicle. The and cartridge bullet were identi- he arrived when at the scene of Waff’s having fied as from a fired .25 caliber allegedly disabled van he called out that he pistol pawned Waff had gun shop was Mel Brown and then had a conversa- Rapid City on November tion with Waff. Iwan Brown told to deliv- Whitesell, who was years some 20 $1,000 er because was confident that the age at the time this case tried job gave would be done. Iwan then de- July June and long had had a $1,000 fendant pass instructions to history drug abuse, starting alcohol money persons toon who were to com- yet junior when he high school. In murder, replied mit the to which defendant December of 1981 he admitted himself to that he had persons been told that those *5 an facility, alcohol treatment where ulti- he $1,000. were to receive mately told his counselors about his in- approximately p.m., At 8:00 October in volvement the murder of Keller. White- 1981, Mrs. Russell Keller a answered tele- charged conspiracy sell was later phone call at their residence. The caller premeditated pre- commit murder and with requested that a wrecker be sent to the meditated Following murder. his testimo- vehicle, location of his disabled some two ny grand a jury, before Whitesell entered miles gave outside Rochford. Mrs. Keller a plea agreement State, into with the under phone husband, the to her who then talked of plea terms which he entered a of to the caller. Russell then Keller went out charge guilty first-degree a of man- call, never to return. slaughter understanding with the that the morning 23, 1981, On the of October law State would recommend that he receive no enforcement officers found Keller’s wreck- years forty more than and no less than parked Highway er approximately thirty years in penitentiary. the state At of 19 miles south Deadwood. There were case, the time trial in the of instant White- highway blood stains on the behind the guilty plea yet sell’s had formally not been drag Following vehicle. marks and blood accepted by court, and still Whitesell stains, investigating officers discovered charged conspir- stood of with the counts body lying a Keller’s in wooded area some acy to commit murder and murder. 200 feet from the wrecker. Keller had granted immunity exchange Iwan was in once in been shot the head from a distance for his at trial. Holmes was of less than six inches and had also granted immunity exchange in use for his eight stabbed times in the chest and abdo- testimony at trial. pathologist men. A forensic testified that Melvin Brown committed suicide in the gunshot either the wound or the stab jail County May Lawrence in of 1982 after wounds could have been sufficient to cause being placed protective custody in at his death. request. own 23, 1981, On October Waff told Whitesell that he had shooting August killed Keller him in On a found Waff dragged guilty conspiracy head and that he had of Keller’s to commit murder body degree into the ditch. first-degree Waff asked Whitesell the first and of murder the truck driver arising of Keller’s Defendant testified upon charges out
based his stopped pick up affirmed those C.B. radio several day have this death. We he would Waff, days later and told defendant that convictions. State stop by couple in a of weeks see defend- (S.D.1985). replied he ant. Defendant would be of the events Defendant’s account down in Mexico. Defendant testified that charges he him was that led upon his return from Mexico one guns six from White- purchased five or had employees told him that a man fit the who he acknowledged that in 1981. He also sell stopped had and description of the trucker ring from purchased Whitesell envelope an for defendant. Within the left auto- that he had traded an in-dash testified envelope were five one hundred dollar bills system, speakers, set of mobile stereo twenty bill. testi- dollar Defendant for speaker some wire Whitesell placed envelope money he fied that rifle. Defendant also acknowl- automatic safe, they in his remained until Au- where set edged purchasing a used television September gust or when defendant from Whitesell. turned them then Lawrence over acknowledged that in late Defendant Attorney County State’s latter’s re- January early February of 1981 Iwan or apd quest at the advice of defendant’s then anyone him if he who had asked knew attorney, Connelly. Randall killing someone would be interested shotgun With sawed-off money. Defendant testified that given that Holmes testified defendant had thought joking and that he that Iwan was Keller, killing him to defendant testi- use knew of no one had then told Iwan that he acquired shotgun fied that he do this. Defendant testified who would by trading a the fall of 1980 used C.B. again Iwan that some two weeks later killing, it. then brought subject placed radio for up the a contract condition, poor replied shotgun, very that he did which was to which store, things. appliance anyone did those in the room of his know who back May April until where it remained Upon defendant’s return from vacation *6 At that time Holmes told defendant in trip to Mexico late March of Iwan he, Holmes, to take the shot- wanted given any if again asked defendant he had repair kept the gun home and it. Holmes thought to more the matter of the contract shotgun until sometime in June of killing, replied in the to which defendant saying defendant when he returned negative. early that in Defendant testified get it fixed. that he could not a April of 1981 Iwan and he had conversa- appliance during tion at the store which en-
Iwan handed defendant sealed white ISSUES it to velope give and asked that he Holmes five Defendant’s initial brief raises is- time that Holmes came to the the next in sues. We will discuss them the order envelope store. Defendant delivered presented. evening Holmes that same either morning. next I. Defendant also testified that sometime Intimidation Witnesses of Defense February of 1981 a truck driver who was three-day After a recess Inde- stopped at en route to Wisconsin defend- weekend, Day holiday pendence appliance his C.B. radio ant’s store have 5, 1983, Tuesday, July on with the time, resumed present repaired. at the Holmes continuing with its witnesses. defense presence and and afternoon, defense counsel called one driver, That Holmes the truck defendant’s Helmey response In words, J ete to the stand. bring up a offer like similar “[D]id Helmey However, question whether brought up. this defense counsel’s Keith Iwan $50,000 on the talking like deal.” to defense counsel offer was he said a recalled telephone Saturday, July Helmey, on tomorrow, on and being probation, on if attorney, of his advice who had been charged I was and perjury— convicted of appointed by the court that same after- says, and I lying “That’s on the stand.” noon, declined to on ground answer said, And says he “Yes.” And he if I’m might that his answer incriminate him. tried said, and of perjury, convicted hearing There then followed a out of the spend “You’ll years down at Sioux presence during which defense plus Falls another five that you’re on counsel informed the court that he had probation.” telephone received a Helmey’s call from response deputy attorney’s state’s Friday night, wife on July which caused question about what he had heard White- Helmey defense Saturday counsel call on say sell lying trial, about Ventling morning. Helmey told defense counsel replied, “Honestly, I thing. didn’t hear a Whitesell, who had returned to thing that I—I just heard some- County jail the Lawrence Friday on eve- thing in background where he said ning, watching had said after the news on something, but I television, couldn’t “I out what he lied about him on make the witness I hung said. can’t sit on stand and the son here this stand say bitch.” Hel- mey anything.” then informed defense counsel that he heard had two other jail witnesses in the who had Defense counsel then called Downen to heard the same statement. Defense coun- Although stand. Downen denied hear- separate telephone sel then held conversa- ing any Whitesell make statement Fri- persons, tions with these two Dave Ven- day night, July he admitted that he had tling Downen, and Mike who both informed told defense counsel that he had heard they him say, had heard “I Whitesell Whitesell make a statement. Downen tes- lied about him on the witness stand and I’m tified that after he was served with a sub- going hang the son of bitch.” Defense poena he was interviewed Deputy Rus- then subpoenaed Helmey, Ventling, counsel sell the sheriff’s office. Downen exer- and Downen as defense witnesses. cised his constitutional not make Defense counsel then informed the trial statement, any after which he was sent court that Ventling he had learned from upstairs placed back in the drunk tank July subpoenas 5 that after the had been Helmey Ventling. with After discuss- served on the three the Lawrence Coun- ing Helmey Ventling with what had jail ty Helmey had received call from them, happened to jailer Downen asked the someone Helmey whom referred to as to take him back downstairs so that he “Jeff,” following jailer which a came and again speak Deputy could Russell. Helmey took from his cell. Ventling testi- Downen then told Russell that it *7 downstairs, fied that he was taken where any true that Whitesell had made state- Russell, to Deputy he talked who read Ven- ment in front regard- of the television set tling rights his Miranda and then asked ing the fact that he had lied on the stand going up him “what was on there.” Ven- concerning defendant. Downen testified “Dwane, tling replied, really just I don’t—I that he had told defense counsel that he don’t anything.” Ventling know was taken such a only had heard statement because upstairs placed back and in the drunk tank Helmey Ventling and had asked him to do Helmey. Ventling later taken so, upon opinion their based downstairs, back where he was interviewed guilty. was not Downen testified that Rus- by Agent Litschewski of the State Division making sell had Investigation. During of Criminal advised him that a false cross- by deputy examination the attorney perju- state’s statement the witness stand was regarding what he had been told about ry normally equal and “that it an carried perjury, Ventling testified: being person sentence as to the tried.” instance,
They get asked, said that if I on the Defense counsel then “For stand and my get you life, ,” lied—with other get sentence out could is to which that — answered, you If take the witness stand and lie “Right, that’s what he Downen oath, personally the Court will see told me.” under goes grand jury your case to the At hear- the conclusion in-camera you perjury be for and will indicted and ing, court denied defendant’s mo- the trial you get the liklihood would [sic] upon a mistrial his claim that tion for based perjury and it be convicted of that would with and intimidat- the State had interfered you already got, stacked onto what have ed his witnesses. you got so that is the matter have to Constitution, VI, Dakota Article South up you get mind If your make on. provides: 7§ lie, probably the stand and it is witness prosecutions all the ac- In criminal going years to mean several and at least right to defend in cused shall have the you going more time that are to have to counsel; person and to demand the against you serve. It also be held will the nature and cause of accusation up pa- penitentiary you’re the when for thereof; him; copy to to have you role to thor- and the Court wants against him face to meet the witnesses oughly you’re understand the chances face; compulsory process to have served taking by getting on that witness stand behalf, obtaining for witnesses may under oath. You tell the truth and public impartial speedy to do, you right, if if you that is all but lie county or district in the jury of the which you get into real can trouble. The court have commit- alleged offense is to you wants to know that. You don’t owe ted. anybody anything testify to and it must discussing right compulsory In the to freely voluntarily and with done guaranteed process obtaining witnesses thorough understanding you the by the Sixth Amendment to the United taking." you the are know hazard Constitution, the United States Su- States de- responding In the claim that the to preme Court has held: rights, fendant’s Sixth Amendment as right offer the wit- by the Amendment guaranteed Fourteenth nesses, attendance, if compel their Constitution, States had been United right necessary, plain is in terms the violated, Court, Supreme the United States defense, present right present opinion, per held: in a curiam the defendant’s version of the facts as case, In of this circumstances the. prosecution’s well as so threatening re- judge’s conclude that -the may where the truth lies. Just as decide marks, single directed at the wit- right confront an accused has defense, effectively ness for drove prosecution’s purpose for the witnesses stand, thus de- that witness off the testimony, he challenging their has process prived petitioner of due right present his own witnesses to law under the Fourteenth Amendment. This is a fun- establish a defense. The admonition the Texas Court process element of due law. damental might given well have Appeals Criminal Texas, 14, 19, 388 U.S. Washington v. cases, judge guidance for future the trial 1920, 1923, 18 L.Ed.2d S.Ct. repair infringe- it did not serve to but (1967). petitioner’s process due ment 95, 95-96, Texas, 409 U.S. v.Webb rights Amendment. *8 under Fourteenth 351, 352, 330, (1972), 332 34 L.Ed.2d S.Ct. 353-54, 98, 34 at 93 at Id. 409 U.S. S.Ct. the defend- the trial court had admonished L.Ed.2d at 333. as follows: ant’s witness Morrison, In v. 535 F.2d States you a United been called down as “Now have (3rd Cir.1976), prosecutor on at 223 by the It witness in this case Defendant. messages to sent a least three occasions duty you that the Court’s to admonish through defense counsel testify, anything defense witness you don’t have to to against you. warning the witness that she was liable you say can and will be used 9 prosecuted charges, be drug on any the United States District Court for the gave she would be used as evi- Western District Pennsylvania of filed her, against dence and that because she August denying the motion for a eighteen had turned possible it would be to new trial will be reversed. bring perjury federal against her. charges Id. at 228. prosecutor subpoenaed The poten- also In order to ensure that the defendant be appear tial to witness before him his remand, a fair afforded trial on the Court where, office, presence in the of the three of Appeals directed that judgment agents undercover whose testimony the acquittal be government entered unless the contradict, witness would advised her that requested immunity use for the witness’s falsely if she testified she subject could testimony in the event she was called to the a perjury charge. herself When the stand and invoked her Fifth Amendment witness was called to the stand follow- right testify. not to Id. at 229. ing morning, she refused answer some thirty questions on ground In Thomas, United States v. 488 F.2d might Citing answers incriminate her. (6th Cir.1973), an acquitted codefend- cases, Washington and Webb the Court of ant who had been by called as a witness Appeals for the Third Circuit held that in the remaining defendants approached view the fact trial court had during a recess agent secret service at day indicated on the first of trial that request prosecutor. agent The would warn the defense witness of her told the witness that he prose- would be right against self-incrimination: misprison cuted for felony of a if he testi- prosecutor] The actions of to- were [the fied in the case. The witness later indi- tally unnecessary. Ms. Bell could have cated that he testify only would under sub- knowing made a choice of whether to poena, which requested. was not testify or not on basis the formal of Appeals Circuit, Court for the Sixth cit- warning from the pressure court. The ing Washington Webb, held that the brought to bear her the Assistant government’s had substantially action in- Attorney United States interfered with terfered with the witness’s free and un- the voluntariness of her in- choice and hampered testify determination whether to fringed defendant’s right constitutional and also interfered with the content such to have her freely-given testimony. testimony. clearly This case seems ruled Webb. Ammons, In 208 Neb. True, judge it was the that case (1981), N.W.2d 808 a witness who had ad- “effectively who drove that defend- [the prosecutor mitted to the that it hewas who witness off the stand.” 409 U.S. ant’s] robbery had committed the with which the 93 S.Ct. at at L.Ed.2d being charged refused to Here, it was the influence of the Assist- testify prosecutor after the refused com- Attorney, ..., figure ant United States ply plea bargain with the terms of a under hierarchy somewhat lower in the than which pleaded guilty the witness had judge the trial sym- but nonetheless the charge assault and informed the witness prose- bol of the power Government’s charges that if he testified would be filed good cute offenders. However the trial Supreme him. The of Ne- Court judge prose- found the intentions of [the conviction, reversed braska the defendant’s cutor], his bizarre conduct toward wit- holding clearly prejudiced that he had been ness for the defense is not con- by the state’s interference with his Sixth doned. It was responsible without doubt compulsory process Amendment as pursued by Sally for the course Bell Washington. established in refusing testify and to that extent
deprived
Pena,
process
People
Mr. Boscia of
due
383 Mich.
(1970),
prosecuting
law under the Fourteenth Amendment. N.W.2d 767
attor-
ney
Under such
circumstances
order
sent a letter
written
official station-
*9
10
—
-,
Abel,
105
witnesses,
U.S.
inform- United States v.
alibi
ery
defendant’s
to
(1984);
465,
State v.
perjury 138, 109N.W.2d 79 pra; Goff, State v. S.D. perjury. reversing ing convicted of 446, Kenstler, (1961); 44 S.D. v. conviction, 256 State Supreme Court defendant’s (1921). mean, 184 This does not N.W. 259 Michigan stated: of course, there are no restrictions on of that right a defendant of The Constitutional may type of that a defendant evidence in his defense mandates to witnesses call witness, impeachment impeach to use called intimi- they must be without that satisfy general test must also evidence testifying is of- manner of dation. The testimony Helmey, admissibility. The of of testimony persuasive than the ten more Ventling, regarding and Downen White- itself. alleged would jail-cell sell’s statement have impeach a witness prosecutor may A test. satisfied this intimidate him—in may not court but there is a serious or out of court. We conclude that right to call question whether defendant’s 768 175 N.W.2d at Mich. Id. 383 on own behalf and to con witnesses his omitted). (footnote against guaran him as front the witnesses reversing the conviction Although not by Dakota Constitution teed to him South it concluded that it because the case before VI, by the violated State’s Article § by prejudiced had not been the defendant bring perjury charges against to threats improperly misconduct State’s they if tes Helmey, Ventling, and Downen with crimi- threatening defense witnesses they regarding the statement that tified Supreme Court prosecution, nal make in the Law allegedly heard Whitesell accepted rationale of the Pena Iowa evening July County jail on the rence (Iowa 310 Ivy, v. 300 N.W.2d case State 1981). Although we are satisfied de claim prima made out facie fendant has conferring upon In addition to the right his interfered with State call witnesses on right a defendant behalf, on conclude witnesses his we call Arti behalf, Constitution his South Dakota outright necessary. reversal VI, a defendant guarantees also cle § may it conclusion because We reach this key wit right impeach the state’s Ventling’s and Downen’s very well be that showing Da part. on their bias nesses hearing testimony during the in-camera Alaska, 415 94 S.Ct. U.S. vis v. the trial court that their July persuaded 5 (1974); Layton, v. 337 347 39 L.Ed.2d State were defense counsel earlier statements (S.D.1983); Volk, State N.W.2d induced nothing more than fabrications (S.D.1983); N.W.2d 67 Wounded desire to aid Whitesell. Mar Helmey’s Cf. (S.D.1981). Head, White- 305 N.W.2d (S.D.1981); State, N.W.2d 838 shall v. satisfy testimony was essential sell’s (S.D. State, Pickering v. proof on Count and burden State’s Likewise, 1977). may very well be that respect to Count powerful evidence not exercised his Helmey, had he clearly crucial III. He was witness self-incrimination, likewise would Accordingly, defendant those counts. the statement voluntarily recanted have great given latitude should have been to defense counsel con that he had made testimony. seeking impeach According cerning Whitesell’s statement. the case with directions ly, we will remand Likewise, law rules the common hearing and then conclude, the trial court hold evidence, and, our court- findings fact conclu evidence, specific see, enter e.g., SDCL adopted rules of proposed 19-12-2; 19-14-8; 19-14-9; of law with 19-12-1; 19- sions Helmey, Ventling, and Dow- 19-14-19, party 14-10; permit a will bear the burden of showing The State his bias. nen. impeach a witness
11 establishing that its conduct was interrogated not the the sheriff’s of- Helmey’s testify cause of refusal to fice in Spokane. or of The interrogation was Yentling’s by and Downen’s If recorded tape recantations. means of recording. response the trial court finds that the three to witness defense counsel’s motion for voluntarily discovery, es recanted the their earlier State filed a state written disclo- ments, 2, 1983, sure the convictions on March Count II and of in part: stated second-degree manslaughter will af That the State has no written statements Otherwise, firmed. the trial court is direct of the Defendant posses- within it’s [sic] grant ed respect sion, a new trial with custody or relating control to the those convictions.2 above-entitled matter. respect With statements, recorded the State has in it’s are procedure We aware that possession a tape recorded [sic] interview we have outlined is unorthodox per of the defendant during made an inter- haps precedent without in this If state. view of the Defendant Spokane, while in the State chooses to interfere de with a Washington, which the Defendant or his right fendant’s constitutional to call wit permitted counsel will be to listen to at nesses, however, then it prepared must be County the Lawerenee Sheriff’s Office. to live consequences with the of that April On upon State served of prose course action. We would remind defense counsel a memorandum that stated cutors that it is jury’s function—not the part: prosecutor’s credibility determine the —to That the State has posses- within it’s [sic] Texas, Washington witnesses. su tape sion the recorded statement made pra. prosecutor should be content by January Defendant on subject testimony of defense witnesses and the same is for available review to the crucible of the courtroom. It is the Defendant A copy counsel. prosecutor’s duty “not simply prosecute, transcription tape of said is attached but justice to obtain with a fair trial.” hereby hereto and incorporated by this State v. Brandenburg, N.W.2d reference. (S.D.1984). pretrial filed no motion with tape recording to the or the tran- II. script of interrogation. Assistance Counsel Claim Ineffective presented After the State had the testi- Defendant claims that he was denied his mony of some thirteen during witnesses its constitutional to the effective assist- chief, case in Deputy called Russell ance of counsel reason of his counsel’s identify tape recording Spokane of the pretrial failure to sup- make motion to interrogation and then offered the record- press the statements that defendant made ing into evidence. Defense counsel then to agents in Spokane, of the State Wash- asked for a five-minute recess so that he ington. agree. We transcript could reread the of the record- Spokane ing. Defendant was arrested on a There then proceedings followed out charge federal flight presence of unlawful during avoid of the which prosecution following the return of the in- objected defense counsel admission a.m., grand jury. dictment At tape recording grounds, 12:17 on the inter January 30, alia, Deputy Sheriff Dwane that the State had failed to establish Russell, County Attorney Lawrence State’s adequately defendant had been ad- Roger Tellinghuisen, County rights Lawrence vised of his Miranda and that the Deputy Attorney Jeffry Bloomberg State’s given. admissions had been voluntarily 23A-14-29, may power Under SDCL the State in our to direct that the State confer such grant immunity prosecution perjury immunity testimony from a Helmey’s in order to obtain arising grant given Abraham, out false under a on remand. State v. Cf. immunity. 1982). Accordingly, (S.D. it is not with *11 requested be al- point where he that he by pointing out that responded
The State
of the
been notified
attorney.
counsel had
talk
defense
lowed to
to
transcript of
given a
of and been
existence
procedure is
Although
preferred
yet
recording
before trial
tape
well
suppress the
file a motion to
examine claims of ineffective assistance
had failed to
23A-8-3,
pursuant
recording
SDCL
post-con
in the context of
of counsel
pertinent part:
provides
which
exceptions
make
proceedings,
viction
defense,
request
objection or
Any
representation
that rule
cases where
with-
capable
is
of determination
which
the record
so casual that on the face of
may
general issue
be
out the trial of the
a
usur
appears that there was manifest
it
Motions
by motion.
before trial
raised
defendant’s constitutional
pation of the
the discretion
written or oral at
may Tchida, 347
rights.
N.W.2d
See State
following must be
judge. The
of the
(S.D.1984),
therein.
and cases cited
prior to trial:
raised
conclude that the record before
We
evidence;
(4)
suppress
...
Motions
its face that defense coun
us manifests on
representation of defendant on this
sel’s
deputy
response to the
state’s attor-
pretrial
objective
fell
particular
issue
below
ney’s
that
the State’s
statement
on notice
put
defendant
memorandum
Strickland v.
standard
reasonableness.
—
suppress, de-
timely
a
motion to
U.S. -,
to make
104 S.Ct.
Washington,
stated:
fense counsel
23A-8-3(4)
(1984). SDCL
State v.
387,
Williams,
(1964);
430 U.S.
v.
1984),
had failed to
Brewer
held that
State
we
(1977);
confession. At
constituted
admission
that he had
seen,
As can be readily
defendant’s an
approached
by Iwan. The relevant
swers were far less incriminatory than was
portions
transcript
of the
are as follows:
jury
before the
regarding his
Don,
Russell: Well
let me finish okay.
Iwan,
involvement
Holmes,
Whitesell,
Awright,
you know,
now understand
unnamed,
and the
unknown truck driver.
this here is kind of
among True,
a deal
interrogation
included Tellinghui-
got
friends.
It
started off with Melvin sen’s summary of the State’s evidence
using
Brown
Keith Iwan. Keith Iwan
against defendant and Tellinghuisen’s opin
is a friend of his. Your
a friend
[sic]
ion that defendant
pooch,”
was “a screwed
of Keith Iwan’s and so he comes to
but defendant did not acknowledge the
you.
abusing
It’s kind an
of friend-
Tellinghuisen’s
truth of
statements. Ac
ships
you say
here wouldn’t
so?
cordingly, when considered in
light
(no
Defendant:
response)
totality
verbal
evidence,
defendant’s
tape recorded
you
Russell:
statements
Uh? Can
tell me
were so innoc
a little bit
uous that
about how
you
Keith talked
conclude that it
into
is clear be
this?
yond a reasonable
doubt
you
Defendant: I’ll tell
it wasn’t Keith
would have
returned
verdict of guilty
who talked me into it.
if
even the recording had not been admitted
*14
Russell:
you
Who talked
into it?
See,
into evidence.
e.g., United States v.
Defendant: Is
guy
that truck
[sic]
499,
461
Hasting,
U.S.
103 S.Ct.
76
it,
and he didn’t talk me into
he talked
(1983);
L.Ed.2d 96
Milton v. Wainwright,
to Tim Holmes. He didn’t talk to me
407 U.S.
92 S.Ct.
33
1
L.Ed.2d
you know.
(1972);
Bittner,
State v.
Holmes. you The merely ration is not sufficient if it shows 16 $2,000 offense, mid-September of 1981 for the or the of the
the commission building purpose of a lean-to thereof. ostensible circumstances his mobile home. for test- forth the standard We have set corroborating evi- sufficiency of ing the Moreover, testimony defendant’s own dence as follows: prove the truth of the accom- tended to accomplice need testimony part
The
testimony that defendant was
plices’
evidence suffi
be corroborated
conspiracy murder Keller. With-
of the
v.
a conviction. State
detail,
cient
sustain
repeating
testimony in
out
(S.D.1980);
Martin,
from the defendant. State
(S.D.1980).
Dominiack,
(S.D.1983);
N.W.2d
Manslaughter
Instructions
that the corroborat
We conclude
above, defendant was found
As stated
State,
ing
introduced
evidence
second-degree manslaughter as
guilty of
though
overwhelming, was sufficient
not
conspiracy to
two counts of
well as of the
23A-22-
satisfy
requirements
SDCL
commit murder.
In addition
cases cited above.
and our
when the trial court
already
note that
detailed
we have
the evidence
We
on first and sec
above,
testimony
proposed
from
the instructions
introduced
the State
degree manslaughter
object
the State
the false
ond
that corroborated
Keller’s widow
ed,
supported, if
arguing that the evidence
Keller to the scene
call that lured
wrecker
all,
only
a conviction first-de
attempt.
anything
Whitesell
murder
of the aborted
however,
counsel,
gree
Defense
accurately
weapon
that Waff
murder.
described
object
proposed
did not
to the
used to
shown to him and which was
stated, “[M]y client would
“x”
instructions but
He
in detail the
kill Keller.
described
prefer
those lesser included of
placed
that was
to leave
bullet
that Waff
Accordingly,
A
lawsuit.”
de
skull.
fenses in the
removed from Keller’s
bank
later
preserve any
error for
failed
Brown had borrowed
fendant
testified that
officer
See,
appeal.
e.g., State v.
Moun-
White
further specially join
opinion
this
for
tain,
(S.D.1983).
tion on
to commit murder Count
I would reverse the conviction for
I.
second-degree manslaughter.*
*
Mountain,
present
(S.D.1983),
The
case is dissimilar to State v. White
18 jury instruct the
The
court can
supported by the evidence. See
matters
(S.D.
Fender,
State State, 673
1984); v. 338 N.W.2d Miller
(S.D.1983); Chamley, 310 N.W.2d v. State (S.D.1981); Oien, 302 N.W.2d State v.
153 (S.D.1981); Curtis, 298 v. State Wilson, (S.D.1980); v.
N.W.2d 807 State Bean, (S.D.1980); State v.
297 N.W.2d (S.D.1978); v. State (S.D.1978). In
Kafka, 264 N.W.2d trials, court
first-degree the trial murder or on first- second-de instruct
can manslaughter, only if the evidence
gree rationally supported a have
presented could the latter offenses.
conviction (S.D.1985). Waff, 373 N.W.2d
Here, construing evidence most favor defendant, impossible to
ably for the presented could the evidence
conclude that second-degree man
rationally support a defendant, as in
slaughter conviction. premeditated murder guilty of
Waff, was Thus, the nothing. guilty he was giving the second-de
trial court erred manslaughter instructions.
gree Dakota, of South Plaintiff
STATE Appellee, WAFF, Appellant.
David
No. 14336.
Supreme Dakota. Court South 11, 1984.
Argued Sept. July
Decided *17 instructions, degree manslaughter plain the evidence apply rule error this Court refused weighs object heavily against that it ample opportunity so the instruction where counsel had give proffered court not to do so. was incumbent on instructions but failed to Here, though those instructions. defendant invited the second- even