State v. Disbrow

Citation266 N.W.2d 246
Decision Date27 April 1978
Docket NumberNo. 11947,11947
PartiesSTATE of South Dakota, Plaintiff and Respondent, v. Mary DISBROW, a/k/a Mary Roggenkamp, Defendant and Appellant.
CourtSupreme Court of South Dakota

Peter H. Lieberman, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on the brief.

Harold C. Doyle of May, Johnson & Burke, Sioux Falls, for defendant and appellant.

WUEST, Circuit Judge.

Appellant Mary Disbrow was convicted of arson and murder. She was married to Cassius Disbrow in 1973. They lived together about five weeks. By mutual agreement they separated and he moved to Deadwood, South Dakota, where he remained for over a year. As a result of this marriage Casey Disbrow was born on February 26, 1974. Mr. Disbrow returned to Sioux Falls in March of 1975. He never contacted his wife but employed an attorney to commence divorce proceedings. On April 14, 1975, he was hired as a truck driver and on April 24, 1975, he was driving a truck in the state of New Jersey. On his return from that trip he had an accident in Cleveland, Ohio, wherein he lost the eyesight of his left eye and was temporarily blind in his right eye for several months. The divorce from appellant was granted on June 25, 1975, and on July 1, 1975, Mr. Disbrow married her sister.

On April 24, 1975, appellant was living in the downstairs apartment at 1024 South First Avenue, Sioux Falls, South Dakota, with her son, Casey Disbrow. She had rented this apartment on a monthly basis and was behind on the April rent. Another payment was due on May 1st and the landlord was threatening to evict her unless she paid the rent. Appellant had developed a close relationship with Jean Carnicle, a younger girl whom she had lived with part of the time. Jean had stayed with appellant on the night of April 23, 1975. She got up and went to school at about 7:30 a. m. and returned after 1:30 p. m. She went with appellant who had an appointment with a lawyer to discuss the divorce proceedings commenced by Mr. Disbrow. The lawyer showed them an affidavit which had been filed in the divorce case. This affidavit concerned the fitness of appellant as a mother, and this agitated appellant. 1 After they left the lawyer's office they went to the Sunshine Food Store where they saw a brother of Mr. Disbrow. At the time appellant thought it was her husband. Appellant and Miss Carnicle returned to the apartment and appellant said she was going to call the welfare department to have them come and take Casey. Miss Carnicle was fond of Casey and she became upset with appellant. Appellant then started walking toward the Dew Drop Inn for the purpose of calling the welfare department, and Miss Carnicle took Casey and followed appellant with her automobile. At one point she tried to run over her. After they got to the Dew Drop Inn they played a couple of games of pool and Jean then took appellant and Casey home about 5:00 p. m.

Mrs. Welsh lived across the street from appellant. Sometime after 6:00 p. m. on April 25, 1975, she went outside to check on her children. She smelled smoke. About five minutes later she was asked to call the fire department, which she did. After she called the fire department she went outside where a man broke a window and Mrs. Welsh then saw the fire.

Don Wasmoen lived near Sioux Falls on April 24, 1975. His girlfriend (now wife) met him after work. He proceeded to drive on First Avenue, and approximately two blocks ahead he saw smoke. He drove to that location and was told that there was a baby inside the house. The front door was shut. He went to a window and kicked it out. The smoke and flames were so bad he couldn't enter, so he returned to his vehicle and obtained a small fire extinguisher. He tried to extinguish the fire but it was useless. The fire was two or three feet in height. The curtains were on fire and he pulled one of them out, burning himself slightly. Within three to six minutes the fire engines arrived. He saw the appellant, who was upset. As soon as the fire truck arrived he told the firemen a baby was in the house and directed them toward the corner where he had been trying to get in. The firemen put out the fire. They found the body of Casey Disbrow in a crib in one of the bedrooms. Most of the fire had occurred near the crib and the child was dead. The body was removed to the emergency room of the Sioux Valley Hospital. The next day Dr. Schultz, a pathologist, performed an autopsy on the body of Casey Disbrow. It was his opinion the child had died as a result of the fire. The body was badly burned. Appellant was informed at the hospital the child was dead and she was upset. After the fire the firemen sealed the building by nailing a plastic cover over the door and windows.

Shortly after 7:00 p. m. on April 24, 1975, Max Madsen, a detective with the Sioux Falls Police Department, went to the Sioux Valley Hospital and interviewed appellant, who was not a suspect, regarding the fire. She told him her son was sleeping and she was watching the local television news, that she saw a party walking back and forth outside of her apartment with a gun about fourteen to sixteen inches long in his hand. She said it was neither a rifle nor a handgun. She went to the window to more clearly observe the person and he went east on 19th Street and got into a small green car which was parked next to the alley. That he got into the passenger side and proceeded west on 19th Street, then turned south on First Avenue. She stated she left the house, locked the door and went around to the back of the house to call the police department. She told him she and Casey were the only persons in the house. She further said she went to the rear of the house to contact a tenant in the upstairs apartment, and the tenant told her smoke was coming out of the house. She said not more than five minutes elapsed from the time she left the house to the time she talked to the upstairs tenant. She told him that earlier in the day she had seen her husband and his sister, Linda, at the Sunshine Food Store. She told Mr. Madsen she thought Mr. Disbrow was responsible for the fire because he hated her and didn't think he was the father of the child.

Immediately after the fire appellant lived with Jean Carnicle. Appellant then went to the state of Washington where her mother lived, and on approximately May 15, 1975, they both returned to Sioux Falls. She never did live in the burned out apartment again, although she called the police department and indicated she wished to return to the apartment to retrieve some items of property that belonged to her.

After the fire the Sioux Falls Police Department made a thorough investigation of the facts and circumstances of this case. This included several trips to the house to observe the condition of the basement, the apartment and its contents. At the trial evidence was received which eliminated the origin of the fire from beneath the building, electrical origin, and tended to establish the fire started on the inside near Casey's crib. Other evidence inferred the fire was sudden and caused by a highly combustible substance. Evidence indicated gasoline used for a lawn mower was accessible near the apartment.

On May 1, 1975, Detective Johnson removed a piece of inlaid carpet (Exhibit 2) from the area near Casey's crib which was sent to the F.B.I. laboratory for analysis. Evidence admitted at the trial tended to establish this carpet contained minute quantities of gasoline.

Evidence was introduced that appellant had acquired an insurance policy upon Casey several months before the fire. Other evidence established a neighbor's mother drove away from the area alone in a small green car shortly before the fire.

At the trial appellant denied harming her son and starting the fire, and repeated her claim about the man with a gun as originally told to Detective Madsen. She also offered evidence of anonymous threats to her before the fire. We have not related all of the evidence produced at the trial but only as much as is necessary to resolve the issues presented for our determination. Further facts will be discussed as we resolve the issues raised by the Assignment of Errors.

The first assignment of error contends the court should have suppressed certain items seized from the appellant's residence without a search warrant. Prior to trial a motion was made by the appellant to:

" * * * suppress certain items of evidence seized from the defendant's dwelling house during a period from April 24, 1975 through May 1, 1975, and for suppression of any testimony, observations, and photographs taken during said period for the reason said searches were illegal and in violation of defendant's Constitutional rights in that said searches were not made pursuant to a search warrant or by consent of the defendant or the owner of the property."

After a hearing, the motion was denied. The detectives made at least two trips to the apartment after the fire, and on May 1, 1975, Detective Johnson removed a piece of inlaid carpet (Exhibit 2). This piece of carpet was subsequently forwarded by the police department to the F.B.I. laboratory in Washington, D. C., where it was analyzed for combustible materials. At the trial an F.B.I. agent offered testimony indicating the carpet contained minute particles of combustible materials which were gasoline. Objections to the chain of evidence and to the qualifications of the agent were made which will be discussed in a later assignment and in further detail.

Appellant never occupied the premises again. On April 26, 1975, she called Detective Johnson and said she wanted to retrieve some clothing, and he told her that to the best of his knowledge there was no adult clothing left in the house and that their investigation was not quite complete. Detective Johnson did examine the scene of the fire early on April 25, 1975, including the inside of the apartment which contained...

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21 cases
  • State v. Moeller, 18108
    • United States
    • Supreme Court of South Dakota
    • May 22, 1996
    ...be disturbed only in the case of a clear abuse of discretion." State v. Swallow, 405 N.W.2d 29, 42 (S.D.1987) (citing State v. Disbrow, 266 N.W.2d 246, 251-52 (S.D.1978)). None of Moeller's observations show an abuse of discretion by the trial court in permitting Blake to testify. Rather, e......
  • State v. Owens, 21583.
    • United States
    • Supreme Court of South Dakota
    • April 10, 2002
    ...in her mouth. We review the trial court's admission of photographs and slides under an abuse of discretion standard. State v. Disbrow, 266 N.W.2d 246, 253 (S.D.1978); State v. Kaseman, 273 N.W.2d 716, 726 (S.D.1978); State v. Miller, 248 N.W.2d 56, 60 (S.D.1976); State v. Hoover, 89 S.D. 60......
  • Knecht v. Weber, 21846.
    • United States
    • Supreme Court of South Dakota
    • February 13, 2002
    ...(Criminal 3-24-27)). This instruction has been found adequate by this Court on more than one prior occasion. See State v. Disbrow, 266 N.W.2d 246, 254 (S.D.1978); Stumes, 241 N.W.2d at 589. It requires the jury to find excessive cruelty was involved in the killing and that the means of acco......
  • State v. Swallow
    • United States
    • Supreme Court of South Dakota
    • April 22, 1987
    ...the discretion of the trial court, and its ruling will be disturbed only in the case of a clear abuse of discretion." State v. Disbrow, 266 N.W.2d 246, 251-52 (S.D.1978). While Swallow cites cases where the experts have been more qualified than Boyles, we do not believe that the trial court......
  • Request a trial to view additional results

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