State v. Austin, 10472

• Decision Date: 19 November 1969
• Docket Number: No. 10472,10472
• Citation: 172 N.W.2d 284,84 S.D. 405
• Parties: STATE of South Dakota, Plaintiff-Respondent, v. Donna Jean AUSTIN, Defendant-Appellant.
• Court: South Dakota Supreme Court

Page 284

172 N.W.2d 284

84 S.D. 405

STATE of South Dakota, Plaintiff-Respondent, v. Donna Jean AUSTIN, Defendant-Appellant.

No. 10472.

Supreme Court of South Dakota.

Nov. 19, 1969.

Joseph H. Bottum, Rapid City, for defendant.

Gordon Mydland, Atty. Gen., Walter W. Andre, Asst. Atty. Gen., Pierre, for plaintiff.

RENTTO, Judge.

The defendant's 2 1/2 year-old-son, William L. Doty, died on October 8, 1966. She and her companion, Ronnie O. Goode, were separately charged with manslaughter in the first degree arising therefrom. They were also separately tried. She first pleaded only not guilty, but later supplemented it by pleading not guilty by reason of insanity. Under SDCL 1967 23--37--1 the latter plea is now entered by pleading not guilty by reason of mental illness. They jury returned a verdict finding her guilty as charged. She appeals from the judgment sentencing her to life imprisonment.

The physician who first saw the child when it was brought to the hospital about 7:30 p.m. on October 6th stated that it was unconscious and breathing spontaneously but irregularly. He observed that there were numerous bruises on the body. They were spread all over but concentrated on the back from the head to the knees. The stages of discoloration indicated they had been inflicted at different times. He died about 5 a.m. on October 8th. The pathologist who performed the autopsy stated that the probable cause of death was a subdural hematoma sustained by back and forth motion of the head during an act of shaking.

The information filed against her charged that the homicide was perpetrated without a design to affect death but while she was engaged in the commission of a misdemeanor involving moral turpitude, to wit: child abuse. This misdemeanor is defined in SDCL 1967 26--10--1 as follows:

'It shall be unlawful for any person willfully, negligently, or unnecessarily to expose, torture, torment, cruelly punish, or willfully neglect any child under fourteen years of age or deprive such child of necessary food, clothing, shelter, or medical attendance.'

Goode, who had been spending the day with her and her son, was similarly charged.

As grounds for reversing the judgment of conviction she urges that the court committed prejudicial error: (1) in not granting her motion for a change of venue; (2) in admitting into evidence pictures of the child's body taken shortly after his death; (3) in charging the jury that it could find the defendant guilty if she aided and abetted another person in causing the death of her son; and (4) in sentencing her to life imprisonment.

While these parties were charged separately one lawyer was appointed to represent both of them as indigents. The lawyer so appointed is not the one who appears for her on this appeal, also by appointment. Pursuant to stipulation their preliminary hearings were combined. At the conclusion of this she was bound over to the circuit court to answer the charge of manslaughter in the first degree. Apparently she was then admitted to bail and remained at liberty until sentenced. After her trial had been in progress for three days, on motion of her counsel, the jury was discharged so that she could supplement her plea as indicated. This mistrial occurred on February 1, 1967.

Her retrial was commenced on February 20, 1967 with a new and different panel of jurors. At that time she requested that the place of trial be moved from Pennington County. This was based on her claim that she could not have a fair and impartial trial there because of news stories carried by the Rapid City Journal, the only daily paper published in the community. The trial judge indicated that he had some familiarity with these news items and did not feel that they were colored or false. He denied her motion, but indicated he would reconsider it if difficulty were encountered securing an unbiased jury.

The first two of these news items mentioned that charges had been filed against her and Goode in the death of her son and the bonds had been fixed in the sum of $5,000. The next story reported the fact that they had been held for trial after their preliminary hearings with brief mention of the testimony of the state's witnesses, including the acknowledgment by the pediatrician witness that the bruised condition of the body of the Doty child illustrated the 'battered child syndrome', and very briefly summarized his description of them. When her trial started the first published article stated that the selection of a jury had begun; that Goode was to be tried later; and reported the above mentioned statement of the pediatrician witness made at the preliminary hearing. During the course of the trial the newspaper carried daily stories consisting of condensations of the testimony of the witnesses without comment or embellishment, and reported that it had been declared a mistrial and the reason therefor.

The day before the retrial began the newspaper reported that it was to be commenced the following day and mentioned that defendant had been examined by psychiatrists. Apparently the paper carried daily factual reports of the second trial. These could have no bearing on the motion under consideration because they were subsequent to the selection of the jury.

The change of the place of trial of criminal actions prosecuted in circuit court by indictment or information is provided for in SDCL 1967 23--28--7. It may be granted whenever it shall appear to the satisfaction of the court, by affidavits or other evidence, that a fair and impartial trial cannot be had in such county. The burden of establishing this is on the applicant. 22 C.J.S. Criminal Law § 209. Whether a change of venue is granted or refused is committed to the sound discretion of the trial court; State v. Meservey 53 S.D. 60, 220 N.W. 139; State v. Belt, 79 S.D. 324, 111 N.W.2d 588; and its order may not be disturbed on appeal unless such discretion has been abused.

The pretrial publicity here complained of was factual reporting. It contained no expressions as to the guilt or innocence of the defendant, or other comments on the case or the parties involved. The news articles were not out of the ordinary in such cases--in fact their tone and content were unusually restrained. The facts reported concerning the crime were only those that had been admitted into evidence at the preliminary hearing or at the first trial. There is no claim that they were inaccurate or in any manner misleading or unfair. They placed before the jurors who chanced to read them only matters that they were to hear in court from the lips of witnesses and these only in brief factual condensation. On this record we are compelled to the conclusion that the trial court did not abuse its discretion in denying the application. Manifestly, the pretrial publicity here involved is a far cry from the news media 'Roman holiday' condemned in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, and that disapproved in Walker v. People, Colo., 458 P.2d 238, cited and relied on by the defendant.

In securing the trial jury, including one alternate, it appears that only 35 prospective jurors were examined. The defendant challenged nine of these for cause, all of whom were excused without any resistance being made to the challenges. The defendant under SDCL 1967 23--43--28 was entitled to 20 peremptory challenges, but exercised only 10 of them. These observations significantly support the conclusion that the publicity complained of did not deprive the defendant of a fair and impartial trial.

About five hours after the child's death and before the autopsy was performed, five colored pictures of his body were taken in the mortuary by a member of the sheriff's office. The prints of these were 3 1/2 3 1/2 . Enlargements of them measuring 8 10 , marked state's exhibits one through five, inclusive, were received in evidence over objection of the defendant. The originals as state's exhibits 1A through 5A, inclusive, were likewise received in evidence. Defendant complains that these exhibits were such as to arouse the sympathies and the prejudices of the jury and should not have been received in evidence. It is not claimed that they do not accurately represent the facts appearing therein, or that the enlargements in any manner distort them.

In a case involving child abuse of the kind here claimed the physical appearance of the body of the victim is important in determining whether the offense has or has not been committed. While there was oral testimony, medical as well as lay, describing the injuries on the body these pictures convey the condition to the jurors with greater accuracy. They serve to make more meaningful the verbal descriptions given by the witnesses of the same condition. State v. Zobel, 81 S.D. 260, 134 N.W.2d...