State v. Ashker

• Decision Date: 19 August 1987
• Docket Number: No. 15389,15389
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Lewis ASHKER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 97

412 N.W.2d 97

STATE of South Dakota, Plaintiff and Appellee, v. Lewis ASHKER, Defendant and Appellant.

No. 15389.

Supreme Court of South Dakota.

Argued Feb. 18, 1987.

Decided Aug. 19, 1987.

Jon R. Erickson, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

Thomas E. Alberts, Avon, for defendant and appellant.

SABERS, Justice.

Lewis Ashker (Ashker) appeals his conviction for first-degree murder. We affirm.

Facts

Jerry Plihal (Plihal) was found dead on the living room floor of his Delmont, South Dakota home on June 16, 1985. He died as a result of multiple stab wounds. The State's witnesses placed the time of death somewhere between 6:30 p.m. on Thursday, June 13, 1985 and 2:30 a.m. on Friday, June 14, 1985.

The State's case was purely circumstantial. No fingerprints were found inside the house and no murder weapon was ever recovered. Ashker did not testify nor did he present any witnesses. The State linked Ashker to the incident in Delmont through his association with co-defendant Kurt A. Novaock (Novaock), a former neighbor of Plihal in Delmont.

Ashker and Novaock were residents of Wayne, Nebraska. The State's witnesses testified that Novaock was seen in Delmont on the evening of June 13, 1985, accompanied by an unidentified man. Novaock and his companion were driving around the vicinity of Plihal's house in a vehicle alternately described as a light green or turquoise green pickup truck or a white van. One witness described Novaock's companion contrary to Ashker's appearance. None of the State's witnesses identified Ashker as Novaock's companion. Additionally, there were witnesses who testified that they had seen Plihal alive as late as 6:30 p.m. on Friday, June 14, 1985.

According to the deposition testimony of Novaock's wife, Sharon, Ashker and Novaock were together at the Novaock residence in Wayne, Nebraska, on the afternoon of the murder. Sharon left the house at 3:00 p.m. and when she returned at 5:00 p.m., Ashker and Novaock were gone. Earlier that afternoon, Ashker's green pickup truck had been parked in Novaock's driveway. The truck belonged to Ashker's wife. It was also gone when Sharon returned. She stated that Novaock got home late that night. She further stated that she had a conversation with Ashker at his home on June 14, 1985. Sharon questioned him about where he and her husband had been the previous night. Ashker stated that they had gone to Omaha, Nebraska and had gotten into a "discussion" with some guys at a Burger King restaurant. He did not say what the discussion was about. On June 19, 1985, law enforcement officers interviewed Ashker in St. Luke's Hospital, Sioux City, Iowa, as to his whereabouts on June 13, 1985. Ashker stated that he and Novaock had gone to Laurel, Nebraska and Omaha, Nebraska. He further stated that he had an accident with his pickup truck in front of a liquor store in Laurel.

Following Plihal's death, law enforcement searched the area outside of his residence. They recovered some paint chips found near a bent clothesline pole. The damage to the pole corresponded with damage on the right rear bumper and tailgate of Ashker's pickup truck. The paint chips were compared to paint from the tailgate. Both exhibited a surface topcoat of metallic green with a grey primer. White paint was also taken from the pole and compared to white paint from a scrape on the bumper of the Ashker pickup. Both contained a single layer of white paint over rust. At trial, the State's expert testified that the paint chips may have come from Ashker's tailgate but that he could not tell conclusively. No bloodstains were found inside Ashker's pickup truck.

On December 3, 1985, Ashker and Novaock were indicted for Plihal's murder. They were tried separately. Ashker's jury trial was held on June 2-10, 1986. The jury found him guilty of first-degree murder in violation of SDCL 22-16-4. Ashker was sentenced to life imprisonment.

Ashker's Claims

Ashker's assignments of error include: the State's impeachment of its own witness, prosecutorial misconduct, insufficiency of the evidence, denial of motions for judgment of acquittal, the jury instruction on aiding and abetting, and change of venue.

1. IMPEACHMENT OF STATE'S OWN WITNESS

Prior to trial, the State took Sharon Novaock's deposition in Wayne, Nebraska. She stated that on the afternoon of June 13, 1985, her husband was wearing tan pants and a black tee shirt. She further stated that the following morning, these clothes were in the laundry basket without any blood on them. Sharon denied that she ever told anyone that she destroyed the clothes her husband was wearing on June 13, 1985.

Sharon was unable to testify at trial due to health reasons. Following an in-chambers hearing, the State read an edited version of her deposition into the record which included the above statements. This occurred despite repeated defense objections. The State then called Lisa Jensen (Jensen) who was a former neighbor of the Novaocks in a Wayne, Nebraska trailer court. Jensen related a conversation she had with Sharon Novaock in June of 1985. Jensen testified that Sharon came over to Jensen's mobile home and told her and several others that Novaock came home with blood on his clothes and boots, and that Sharon either burned them or threw them away. Before the jury heard this evidence, the trial court gave a limiting instruction which advised them that Jensen's testimony was offered solely to impeach the credibility of Sharon Novaock and that it was not proof of Ashker's guilt or innocence.

Ashker claims that Sharon Novaock was used as a "strawman" to get Jensen's otherwise inadmissible hearsay before the jury. State v. Gage, 302 N.W.2d 793 (S.D.1981); State v. Rufener, 401 N.W.2d 740 (S.D.1987) (Rufener II ). He argues that despite the fact that the State may be permitted to impeach its own witness, SDCL 19-14-8, this does not allow the rule to be used as a mere subterfuge to get to the jury evidence otherwise inadmissible. Gage, 302 N.W.2d at 799, citing United States v. Morlang, 531 F.2d 183, 190 (4th Cir.1975); Rufener II, supra at 744. Ashker claims that such "back dooring" of hearsay denied him a fair trial.

In Gage, we adopted the four-point test set out in United States v. Rogers, 549 F.2d 490 (8th Cir.1976), which must be satisfied before prior inconsistent statements may be used for impeachment at trial. ¹ 302 N.W.2d at 798. As noted in Rufener II, the Gage decision added another requirement by adopting the Morlang rule which prohibits impeachment of one's own witness when it is used as a subterfuge to get otherwise inadmissible evidence before the jury. 401 N.W.2d at 743-744. This court has applied the Morlang rule as a limitation to SDCL 19-14-8 which provides that "[t]he credibility of a witness may be attacked by any party, including the party calling him." Id. at 744.

A review of the factual circumstances surrounding the witnesses' testimony in Gage and Rufener II is necessary in resolving this issue. In Gage, the prosecutor asked the defendant on cross-examination whether he had telephoned his girl friend and admitted the robbery in question. He denied this. On rebuttal, the State called defendant's girl friend only to question her about whether the defendant told her about his alleged intent to commit the robbery, and whether she told the informant about this conversation. The girl friend denied any such conversations. The State then called the informant as a witness to testify that the girl friend had in fact had such a conversation with her. This testimony was admitted by the trial court on the basis of impeaching the girl friend through a prior inconsistent statement. 302 N.W.2d at 798. In reversing defendant's conviction, we wrote:

[T]his case is one in which a witness (the girl friend) was called by the State only to serve as a 'strawman' for the introduction of inadmissible hearsay (by the informant). The State called the girl friend on the pretense of having her impeach [defendant], but she did not do so, and there is nothing in the record to indicate that the State actually thought she would do so.

Id. at 799.

In Rufener II, the State called defendant's girl friend who denied making statements to a law enforcement agent about the defendant's own statements of drug involvement and distribution. The State then called the agent who testified over hearsay objection that the girl friend told him that defendant stated he was bringing hundreds of pounds of marijuana into South Dakota. 401 N.W.2d at 742. ²

In holding the agent's so called "impeachment testimony" improper under Gage and its adoption of the Morlang rule, we found that the prosecution knew before the testimony was presented to the jury that the girl friend was going to deny making the statements to the agent. Id. at 745. We further found that the prosecutor knew full well what the girl friend was going to say and in fact depended on her denial to gain admittance of the inadmissible hearsay through the agent's testimony. Id. In Rufener II, we quoted with approval from United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984), which discussed Rule 607 of the Federal Rules of Evidence (SDCL 19-14-8), and provides in part:

[I]t would be an abuse of the rule, in a criminal case, for the prosecution to call a witness that it knew would not give useful evidence, just so it could introduce hearsay evidence against the defendant in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence--or, if it didn't miss it, would ignore it. The purpose would not be to impeach the witness but to put in hearsay as substantive evidence against the defendant, which Rule 607 does not contemplate or authorize.

Id. 401 N.W.2d at 744. Following the Webster rationale, it is clear that the witnesses (i.e., the girl friends), in Gage and Rufener II were called solely to deny...