State v. Aesoph

• Decision Date: 19 June 2002
• Docket Number: No. 21872, No. 21887.
• Citation: 647 N.W.2d 743,2002 SD 71
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. David George AESOPH, Defendant and Appellant.
• Court: South Dakota Supreme Court

647 N.W.2d 743

2002 SD 71

STATE of South Dakota, Plaintiff and Appellee, v. David George AESOPH, Defendant and Appellant.

Nos. 21872, 21887.

Supreme Court of South Dakota.

Argued March 28, 2002.

Decided June 19, 2002.

Mark Barnett, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, for plaintiff and appellee.

Reed Rasmussen, Jeffrey Sveen of Siegel, Barnett and Schutz, Aberdeen, for defendant and appellant.

GILBERTSON, Chief Justice.

[¶ 1.] David Aesoph (Aesoph) was charged with first degree murder and alternate counts of second degree murder and first degree manslaughter for the November 18, 1999 death of his wife. On October 5, 2000, the jury found him guilty of first degree murder. Aesoph was sentenced to life imprisonment on November 8, 2000. Aesoph now appeals, raising issues regarding: (1) the nature of the interviews with investigators; (2) the admission of expert testimony; (3) the admission of prior statements of the victim; (4) the selection of jurors; (5) the use of a jury instruction on concealment; (6) the denial of his motion for new trial; and (7) the revocation of his bond. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Aesoph and his wife, Tania, were married in October 1975. By 1994, amidst allegations of physical, verbal and mental abuse, Tania sought the help of attorney Lee Burd (Burd) to begin divorce proceedings. But Tania indicated to several people that she feared Aesoph would kill her and make her death look like an accident if she were to get a divorce. Aesoph told a number of people that he wanted to kill Tania. Tania dropped the 1994 plans to divorce Aesoph and moved back to their farm outside Highmore, South Dakota.

[¶ 3.] By the fall of 1999, however, the marriage had deteriorated to the point where Tania was again planning to divorce Aesoph. The 50-year-old mother of five children bought her own car in October 1999 and began secretly moving her personal belongings to a friend's house. On November 7, 1999, Tania and her youngest child, 16-year-old J.A., left the farm while Aesoph was sleeping and moved to an apartment in Faulkton, South Dakota. On November 16, 1999, she again contacted Burd to reinstate divorce proceedings.

[¶ 4.] Unknown to Tania at the time, Aesoph had two life insurance policies on his wife totaling $1.7 million which were payable to him in the event of her death by accident. He obtained the second policy by telling the agent that he wished to cancel the first policy on Tania in favor of a cheaper one. Aesoph, however, never cancelled the first policy and continued to make payments on both. He also added an accidental death rider to the first policy.¹ On November 12, 1999, Aesoph called the insurance agent who sold him the policy and informed him about Tania's plans for divorce. Aesoph told the agent "I'm going to kill the bitch." He also told the agent to "remember that she was the one that wanted the life insurance."

[¶ 5.] On November 18, 1999, the day of Tania's death, Tania and Aesoph met with a Court Services Officer in Highmore, to discuss their son's juvenile case. Next, Tania made a deposit at the bank and went with Aesoph to meet an attorney in Highmore to discuss divorce proceedings.² Hyde County Sheriff, Michael Volek, observed Aesoph and Tania in a pickup headed back to the family farm at about 11:10 a.m. Once they reached the house, the two telephoned their eldest daughter, who was a foreign exchange student in Italy. This call lasted from 11:43 to 11:55 a.m. Aesoph called Greenline Implement in Miller at about 1:08 p.m. and picked up a radiator cap one hour later. At 3:01 p.m., Aesoph contacted the former Hyde County Sheriff to tell him that Tania had fallen down the stairs and was dead. He also called Volek at 3:16 p.m. and informed him that Tania was dead.

[¶ 6.] Volek was the first to arrive at the farmhouse at about 3:55 p.m. and found Aesoph coming out of the bathroom. Aesoph told Volek that he had moved Tania's body so that the kids would not see her and he was washing her blood off his hands. Volek discovered a washing machine with Aesoph's work coat inside and a dryer containing a pair of jeans, mismatched work gloves, underwear, shirts, socks and a towel. When Volek turned off the washing machine and asked Aesoph who had started it, Aesoph turned the machine back on, claiming it must have been started by someone else. Volek did not immediately pursue the issue.

[¶ 7.] Other law enforcement personnel and family members began arriving early that evening. Department of Criminal Investigation (DCI) Agents Jerry Lindberg (Lindberg), Brian Zeeb (Zeeb) and Mike Braley (Braley) arrived shortly after 5 p.m. State Crime Lab personnel, including Coroner Mike Luze, Lab Director Rex Riis and Criminalist Christine Reitsma, arrived at about 7 p.m. Two of Aesoph's adult children also arrived and visited with Aesoph about who would do the farm chores the next morning.

[¶ 8.] The three investigators interviewed Aesoph in the dining room of his farmhouse. Three interviews took place between 5:25 p.m. and 11:16 p.m., the first lasting about 13 minutes, the second lasting about 45 minutes and the third lasting about 60 minutes. Aesoph was unaccompanied by an attorney and was not given a Miranda warning. Aesoph was arrested at approximately midnight, upon direction of the State's Attorney. After a hearing on November 19, Aesoph was released on $100,000 bond.

[¶ 9.] The State's pathologists determined that the cause of Tania's death had been manual strangulation and blunt force trauma, injuries they believed could not have come from a fall down a flight of carpeted stairs.³ Crime scene investigators discovered scuffmarks on the garage floor, blood matching Tania's on the lower inside panel of the garage door, a clump of hair matching Tania's under a car parked in the garage, and a tiny amount of tissue (possibly skin) beneath Tania's fingernail that did not match Aesoph's.

[¶ 10.] Aesoph was indicted on March 1, 2000, and charged with first degree murder and alternate counts of second degree murder and first degree manslaughter. Trial commenced on September 18, 2000. Aesoph was convicted on October 5 and sentenced to life imprisonment on November 8, 2000. After sentencing, Aesoph moved for a new trial, which was denied on March 5, 2001. Aesoph now appeals the following issues:

1. Whether the un-Mirandized statements to investigators were custodial and involuntary, were made after a request for counsel, and should, therefore, have been suppressed.

2. Whether the trial court abused its discretion in admitting the expert testimony of Dr. Saami Shaibani.

3. Whether the victim's prior statements should have been excluded as hearsay in violation of the confrontation clause.

4. Whether the method of selection of additional jurors amounted to a violation of procedural due process.

5. Whether the trial court erred in including a jury instruction on concealment.

6. Whether the trial court abused its discretion in denying the post-conviction motion for a new trial.

7. Whether the trial court abused its discretion in revoking the pre-trial bond.

ANALYSIS AND DECISION

[¶ 11.] 1. Whether the un-Mirandized statements to investigators were custodial and involuntary, were made after a request for counsel, and should, therefore, have been suppressed.

[¶ 12.] Aesoph challenges the trial court's refusal to suppress statements he made to investigators at his home on the day of Tania's death. While he never did confess to the crime, Aesoph claims admission of the statements at trial was prejudicial because he repeatedly changed elements of his story during the three interviews. This issue involves a mixed question of fact and law. "We review a trial court's decision on a motion to suppress under a de novo standard." State v. Frazier, 2001 SD 19, ¶ 13, 622 N.W.2d 246, 253 (citing State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488). The underlying circumstances of an interrogation, such as whether the subject is in custody, involve factual determinations reviewed under the clearly-erroneous standard. State v. Meyer, 1998 SD 122, ¶ 16, 587 N.W.2d 719, 722-23. But whether the statements made during that interrogation are voluntary "is a legal question, requiring independent judicial review." Id. (quoting Stanga, 2000 SD 129 at ¶ 8, 617 N.W.2d at 488) (additional citation omitted).

[¶ 13.] a. Whether Aesoph's interrogation was custodial.

[¶ 14.] We must first determine whether Aesoph was in custody at the time of questioning, before this Court will engage in a factored analysis of whether Miranda warnings should have been given, whether Aesoph's statements were voluntary, or whether Aesoph's Fifth Amendment right to counsel was violated.⁴ See State v. Red Star, 2001 SD 54, ¶ 23, 625 N.W.2d 573, 580

. The custody determination is pivotal, as it governs the analysis for all remaining issues regarding Aesoph's statements to law enforcement. We make such a determination based upon "how a reasonable man in the suspect's position would have understood his situation." State v. Anderson, 2000 SD 45, ¶ 79, 608 N.W.2d 644, 666 (quoting State v. Herting, 2000 SD 12, ¶ 13, 604 N.W.2d 863, 866) (additional citations omitted).

[¶ 15.] The objective circumstances surrounding Aesoph's interrogation were not such that a reasonable person would believe that he was deprived of his right to freedom. The questioning took place in Aesoph's own dining room, a familiar setting of Aesoph's own choosing. The officers took no verbal or physical action to restrain Aesoph's movement. He was allowed to go, unaccompanied, throughout the house as long as he did not interfere with the crime scene. He was allowed to take bathroom breaks, smoking breaks and coffee breaks at will. Aesoph's family members came and went. Even at the completion of the three interviews, the officers told Aesoph he was not under arrest and would not be placed under arrest until the state's attorney...