State v. Arguello

• Citation: 502 N.W.2d 548
• Decision Date: 23 June 1993
• Docket Number: No. 17835,17835
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Fidel H. ARGUELLO a/k/a Fred Arguello, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 548

502 N.W.2d 548

STATE of South Dakota, Plaintiff and Appellee, v. Fidel H. ARGUELLO a/k/a Fred Arguello, Defendant and Appellant.

No. 17835.

Supreme Court of South Dakota.

Argued March 16, 1993.

Filed June 23, 1993.

Mark Barnett, Atty. Gen., Charles D. McGuigan, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Terry L. Pechota of Viken, Viken, Pechota, Leach & Dewell, Rapid City, for defendant and appellant.

SABERS, Justice.

This case arises out of a fight involving Fred Arguello (Arguello), David High Crane (High Crane) and Dale Poor Thunder (Poor Thunder) during the early morning hours of August 3, 1991 in the parking lot of DD's Shortstop, a bar in Rapid City. Both High Crane and Poor Thunder sustained stab wounds. The stab wound to High Crane resulted in his death.

FACTS

The State's version and Arguello's version of the facts differ substantially. The State's version is that during an argument, Arguello attacked and stabbed High Crane and Poor Thunder. According to Arguello, he stabbed High Crane and Poor Thunder in self-defense because they wanted his truck. We consider these differences resolved by the jury's verdict in favor of the State.

Following a five-day jury trial, Arguello was found guilty of first-degree manslaughter for the death of High Crane and aggravated assault upon Poor Thunder. He was sentenced to ninety years in the state penitentiary for manslaughter and fifteen years for aggravated assault. The sentences run concurrently.

Arguello appeals, raising ten issues.

1. Whether the State's release of his pickup and the claimed loss of exculpatory evidence denied him a fair trial.

According to Arguello, after he was attacked by Poor Thunder and High Crane, he ran to his pickup in the parking lot of the bar in an attempt to escape. When he arrived at his pickup, he claims he found the driver's side door open and the back window on the passenger side broken. After throwing the knife and tire iron into the back of the pickup, Arguello fled the scene in the pickup. The police took possession of the pickup after Arguello's arrest. There was testimony that none of the windows on the pickup were broken. The pickup was later released by the State to the mortgagee bank.

Arguello filed a motion to dismiss due to destruction of evidence. According to Arguello, the State's failure to follow release of evidence procedures as to his pickup denied him a fair trial. He argues that, because his attorney was never notified that the pickup was going to be released, he was unable to conduct an independent examination of the pickup for evidence, including fingerprints and fibers placing Poor Thunder, High Crane, Tony Cook (Cook) or others inside or near the pickup. The trial court denied his motion, finding that, while the State did release the pickup without notifying him, the State was acting in good faith and any evidence that may have been lost by the release was not exculpatory.

SDCL 23A-37-15 provides:

Before any property is returned to the owner pursuant to Sec. 23A-37-14, the law enforcement personnel in possession of the property shall notify the defendant that the property will be returned to the owner. Upon a motion made by the defendant and upon good cause shown that the property contains exculpatory evidence of the defendant's innocence, the court may order the law enforcement personnel in possession of the property not to release it to the owner.

The State's violation of SDCL 23A-37-15 "does not automatically vitiate the conviction." State v. Lyerla, 424 N.W.2d 908, 911 (S.D.1988) (citation omitted). The State's destruction of evidence favorable to Arguello is a violation of due process if the evidence requested by Arguello and destroyed by the State is material either to guilt or punishment. Id. at 910 (citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)). The state's duty to preserve evidence is

limited to evidence that might be expected to play a significant role in the suspect's defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.

California v. Trombetta, 467 U.S. 479, 488-89, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413, 422 (1984) (footnote omitted) (citation omitted) (emphasis added). Additionally, Arguello must show that the State acted in bad faith in releasing the pickup. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281, 289 (1988).

The record indicates that the State conducted lab tests on various specimens and items including those taken from Arguello's pickup. The results were provided to Arguello. If Arguello felt that the pickup contained additional evidence which may have been exculpatory in nature, he had an opportunity to conduct his own forensic analysis before the pickup was released to the bank. According to the State at the Motions Hearing, the pickup was held by the State for a "considerable period of time." The State released the pickup only after Arguello's creditor brought a civil proceeding to gain title to the pickup. Presumably, Arguello was notified of this proceeding. Additionally, the State offered to assist Arguello in getting the pickup returned. If Arguello believed the pickup contained exculpatory evidence, he should have actively conducted his own forensic examination prior to the release of the pickup or have accepted the State's offer to assist him in getting the pickup returned. We do not find that the release of Arguello's pickup resulted in the loss of "evidence that might be expected to play a significant role" in his defense.

2. Whether the denial of the motion to sever the murder charge from the aggravated assault charge was error.

Arguello moved to sever the counts and separate the trials. In support of his motion, he argued that the charges were different in character, involving different victims and different factual scenarios. Additionally, he claimed severance was necessary because, while he might want to testify regarding the knifing of High Crane, he might not want to testify concerning the knifing of Poor Thunder. The court denied his motion to sever finding that the probative value of holding a joint trial outweighed any prejudicial effect.

"[T]he decision not to sever is firmly within the discretion of the trial court and absent a clear showing of prejudice to substantial rights of the defendant, there is no abuse of that discretion." State v. Dixon, 419 N.W.2d 699, 702 (S.D.1988) (citations omitted).

SDCL 23A-6-23 provides:

Two or more offenses may be charged in the same indictment or information in separate counts for each offense, if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

(Emphasis added.) Contrary to Arguello's claim that "the charges involved different factual scenarios" and "were two distinct acts or transactions under [SDCL] 23A-6-23," we find the two offenses "are based on the same act or transaction or on two or more acts or transactions connected together[.]" Id. This satisfies the statutory test for joinder.

Any joinder of offenses is apt to involve some element of prejudice to the defendant, since a jury is likely to feel that a defendant charged with several crimes must be a bad individual who has done something wrong. However, if the notion of involuntary joinder is to retain any validity, a higher degree of prejudice, or certainty of prejudice, must be shown before relief will be in order.

Dixon, 419 N.W.2d at 703 (citation omitted). Arguello's claim that he might want to testify concerning the murder charge but not the aggravated assault charge and that failure to sever prevented this is insufficient to establish the required "higher degree of prejudice, or certainty of prejudice[.]" Id. Additionally, the jury was instructed by the court to consider each count separately. Arguello has failed to show an abuse of discretion in denying his motion to sever.

3. Whether denial of his motions to change venue was error.

Arguello claims denial of his motions to change venue denied his right to a fair and impartial trial under the Fourteenth and Sixth Amendment to the United States Constitution and Article VI, Sec. 7 of the South Dakota Constitution. He argues change of venue was necessary because of prejudicial pretrial and trial publicity in the local press which was precipitated in part by comments of the State and its officers.

"The law presumes that a defendant can receive a fair trial in the county in which the offense is committed." State v. Weatherford, 416 N.W.2d 47, 50 (S.D.1987) (citations omitted). The burden of establishing the necessity of a change in venue is upon the Arguello. Id. (citations omitted). It shall be granted at the discretion of the trial court and "we will reverse that decision only for abuse of discretion." State v. Wellner, 318 N.W.2d 324, 331 (S.D.1982) (citations omitted).

"Pretrial publicity alone is not enough to deny a fair trial or, in other words, to warrant a change in venue." Weatherford, 416 N.W.2d at 50-51 (citations omitted). "If the jurors were unaware of the pretrial publicity or could not recall it, or if knowledge of the publicity did not cause a prejudicial opinion to be formed, a change of venue would be unwarranted." Id. at 51 (citations omitted).

Arguello's claim that the jury could not have convicted him of aggravated assault on the basis of the evidence presented unless it was affected by the pretrial publicity is without merit. The trial judge granted Arguello's request to conduct...