Moeller v. Weber

• Decision Date: 06 October 2004
• Docket Number: No. 22510.,22510.
• Citation: 689 N.W.2d 1,2004 SD 110
• Parties: Donald E. MOELLER, Petitioner and Appellant, v. Douglas L. WEBER, Warden, South Dakota State Penitentiary, Respondent and Appellee.
• Court: South Dakota Supreme Court

689 N.W.2d 1

2004 SD 110

Donald E. MOELLER, Petitioner and Appellant, v. Douglas L. WEBER, Warden, South Dakota State Penitentiary, Respondent and Appellee.

No. 22510.

Supreme Court of South Dakota.

Argued on March 22, 2004.

Decided October 6, 2004.

Mark F. Marshall of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for appellant.

Lawrence E. Long, Attorney General, Grant Gormley, Assistant Attorney General, Craig M. Eichstadt, Robert Mayer, Deputy Attorneys General, Gary Campbell, Sherri Sundem Wald, Assistant Attorneys General, Pierre, for appellee.

KONENKAMP, Justice.

[¶ 1.] Petitioner, Donald Moeller, was tried, convicted, and sentenced to death for the rape and murder of a nine-year-old girl. He applied for a writ of habeas corpus in the circuit court. We affirm the circuit court's denial of relief.

Background

[¶ 2.] On May 8, 1990, nine-year-old Becky O'Connell was abducted after she visited a local store in Sioux Falls. Moeller had also been a customer there. After Becky left the store, a witness saw her presumably heading home. The witness also testified that he noticed Moeller moving toward Becky and Becky shying away from him. Becky never made it home. Shortly after the witness had seen Becky and Moeller, three men driving through a secluded tract south of Sioux Falls noticed a light blue pickup with South Dakota license plates leaving the area. They later described the driver of the vehicle as matching Moeller's general description.

[¶ 3.] The next day, two men discovered Becky's body south of Sioux Falls in the area the blue pickup had been seen. An autopsy revealed that Becky had been sexually assaulted and stabbed to death. Three days later, as part of the murder investigation, a police detective spoke with Moeller about Becky's disappearance. Moeller admitted owning a blue pickup truck. He denied any involvement with the disappearance and provided the detective with blood and hair samples. The following day, Moeller fled South Dakota. He left behind his ill mother and his truck. While in the State of Washington, he used at least two aliases.

[¶ 4.] On Moeller's disappearance, the police obtained a search warrant for his home. Under his bed, they discovered a section of the Sioux Falls Argus Leader containing a composite sketch of Becky's murderer and an article discussing the crime. Moeller's clothes, which would have been subject to soil analysis, were found freshly washed in his otherwise messy, filthy room.

[¶ 5.] Moeller was eventually apprehended and returned to South Dakota. On July 31, 1991, he was indicted by a Lincoln County Grand Jury on one count of first degree rape, one count of felony murder, and one count of first degree murder. The State filed a death penalty notice alleging four aggravating circumstances.

[¶ 6.] Moeller's first trial began in July 1992. On September 1, 1992, the jury returned a verdict of guilty of one count of rape in the first degree, and one count of premeditated murder in the first degree. After a presentence hearing, the jury imposed the death sentence.

[¶ 7.] The conviction was reversed on appeal and remanded for a new trial. State v. Moeller, 1996 SD 60, 548 N.W.2d 465 (Moeller I). The same attorneys who represented Moeller in the first trial represented him in the second trial. In the second trial, the State presented testimony that Moeller had visited the entrance to the secluded crime scene two days before Becky's rape and murder. The State offered expert evidence that soil samples taken from Moeller's vehicle and the crime scene were similar. Also DNA evidence was offered relating to semen taken from Becky's body that demonstrated `That the probability of a person in the Caucasian population having DNA characteristics common to Moeller's would be 1 in 130 million if the' APO-B DNA analysis was not included and a 1 in 14.8 billion probability if the APO-B DNA analysis was included.

[¶ 8.] The jury convicted Moeller of rape in the first degree and murder in the first degree. After a presentencing hearing, the jury found three aggravating circumstances and imposed the death sentence. On direct appeal, we affirmed. State v. Moeller, 2000 SD 122, 616 N.W.2d 424 (Moeller II).

[¶ 9.] On February 16, 2001, Moeller filed an application for habeas corpus. The matter was heard by Circuit Judge Gene Paul Kean of the Second Judicial Circuit. The habeas court appointed counsel to represent Moeller. Also, the court granted Moeller's request to depose the State's soil expert, obtain a new defense soil expert, and hire a new DNA expert. The habeas hearing was held on February 27, 2002. Following the hearing, Moeller requested and was granted leave to add additional claims. The habeas court issued its memorandum opinion denying relief and quashing the writ. After additional arguments and motions, the court also issued Findings of Fact and Conclusions of Law.

Analysis and Decision

[¶ 10.] Because a petition of habeas corpus collaterally attacks a final judgment, our review is limited. Hays v. Weber, 2002 SD 59, ¶ 11, 645 N.W.2d 591, 595. Habeas review is not a substitute for a direct appeal. Lien v. Class, 1998 SD 7, ¶ 10, 574 N.W.2d 601, 606. As a general matter, habeas corpus is used to review only: (1) whether the court has jurisdiction of the crime and the person of the defendant; (2) whether the sentence was authorized by law; and (3) whether, in certain cases, a defendant was deprived of basic constitutional rights. New v. Weber, 1999 SD 125, ¶ 5, 600 N.W.2d 568, 571-72. Findings of fact are reviewed under the clearly erroneous standard. Id. Habeas corpus petitions are subject to the doctrines of res judicata and collateral estoppel. Rhines v. Weber, 2000 SD 19, ¶ 59, 608 N.W.2d 303, 316.

I.

[¶ 11.] Moeller first contends that the habeas court erred when it concluded that the trial court's decision to admit testimony concerning gahnite was not a trial error that had substantial and injurious effect on the jury's verdict and thereby deprived him of his rights to due process of law as provided by the state and federal constitutions.¹ In essence, this claim is an attempt to revive an issue presented on direct appeal. In Moeller II, we examined whether the trial court abused its discretion in admitting a belated report by Dr. John P. Wehrenberg, the State's soil expert, and in failing to conduct a Daubert admissibility hearing on whether "Wehrenberg's testimony was scientifically valid and admissible." 2000 SD 122, ¶¶ 71-75, 616 N.W.2d at 445-46. In affirming the trial court's decision to allow testimony concerning the presence of gahnite, we reasoned that Moeller's right to due process of law was not violated because he was "on notice" that gahnite was of "substantial interest" to the State's expert. Id. ¶ 78. Likewise, we held that Moeller's right to due process of law was not abridged by the trial court's decision to forego a Daubert hearing because the State's expert's methodology was neither complex nor novel, and because Moeller presented no evidence that the methodology was so flawed as to be unreliable. Id. ¶ 86-87.

[¶ 12.] Moeller now challenges these decisions on two fronts. First, he alleges that Wehrenberg's conclusions were "demonstrably false." Moeller bases his allegation on new expert testimony presented by Dr. Edward Duke who concluded that gahnite was not present in the sample tested by the State's expert. Second, Moeller alleges that because the grains identified by the State's expert as gahnite were destroyed before his second trial, he was entitled to an inference that the evidence would not support Wehrenberg's conclusions.

[¶ 13.] Duke's analysis has no effect on our earlier decision. The new evidence does not give us reason to reconsider our conclusion that the trial court was correct in refusing to mandate a Daubert hearing before Wehrenberg's testimony and did not abuse its discretion in allowing the gahnite evidence. Furthermore, Duke's findings do not change our view that the gahnite evidence was relevant and that Wehrenberg's testimony rested on a reliable foundation. Duke's conclusions merely question the weight of the evidence presented by Wehrenberg, not its admissibility. As we stated in Moeller II, "there is [still] no evidence in the record that Wehrenberg's methodology or analysis was so skewed as to alter the otherwise reliable scientific method." Id. ¶ 87. At most, Duke's analysis amounts to new evidence. However, newly discovered evidence is not a sufficient ground for habeas relief where no deprivation of a constitutionally protected right is involved. Boyles v. Weber, 2004 SD 31, ¶ 11, 677 N.W.2d 531, 538 (citing Herrera v. Collins, 506 U.S. 390, 390-91, 113 S.Ct. 853, 855, 122 L.Ed.2d 203 (1993)).

[¶ 14.] Moeller asks us to declare, on habeas review, that the evidence destroyed by Wehrenberg would not have been favorable to the State. We are not persuaded that Moeller's right to due process was violated by the destruction of the grains identified by Wehrenberg as gahnite. While the destruction of this evidence is regrettable, it did not taint Moeller's subsequent criminal trial. We find it difficult to envision a constitutional flaw in the proceedings where no party discovered Wehrenberg's destruction until eleven years after the event and where, at the time of destruction, Moeller had in his possession comparable evidence.

[¶ 15.] Even if Moeller had discovered the destruction of the evidence before his trial, it does not necessarily follow that he would have been entitled to such an adverse inference. In State v. Engesser, we held that an adverse inference should not be drawn from missing evidence unless it was disposed of intentionally or in bad faith. 2003 SD 47, ¶ 44, 661 N.W.2d 739, 754-55. We reiterated this position in State v. Bousum: "mere negligence in the loss or destruction of evidence does not result in a constitutional violation." 2003 SD 58, ¶ 16, 663 N.W.2d 257, 263. Our view on...