State v. Banks
Decision Date | 22 October 1985 |
Docket Number | No. 14769,14769 |
Citation | 387 N.W.2d 19 |
Parties | STATE of South Dakota, Plaintiff and Appellee, v. Dennis J. BANKS, Defendant and Appellant. . Considered on Briefs |
Court | South Dakota Supreme Court |
Bruce Ellison, Rapid City, for defendant and appellant.
John Guhin, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.
This is hopefully the final chapter of the Custer Courthouse riot which occurred in Custer, South Dakota, in February 1973. Dennis Banks (Banks) was convicted of riot while armed, SDCL 22-10-5, and assault with a dangerous weapon, SDCL 22-18-11 (since repealed). The factual background has been presented before and will not be reiterated here unless pertinent. See State v. Bad Heart Bull, 257 N.W.2d 715 (S.D.1977). On appeal, Banks basically raises three issues. First, that he was denied his right to a fair trial. Second, that the trial court failed to properly charge the jury on the count of riot while armed with a dangerous weapon. Third, that the conviction for assault with a dangerous weapon was against the weight of the evidence. We affirm.
Banks initially contends that the trial court should have dismissed his indictment because of an inability to seat an impartial jury. Every defendant charged with a serious felony has a constitutional right to be tried by an impartial jury in the county in which the offense is alleged to have been committed. In re Nelson, 19 S.D. 214, 102 N.W. 885 (1902); S.D.Const. art. VI, Sec. 7. In Nelson, this court stated: 19 S.D. at 221, 102 N.W. at 887. Banks claims that no impartial jury could be found in Custer County and therefore the indictment should have been dismissed. Banks makes this claim on the basis of: (1) a stipulation by the attorney general in two separate cases that it would be difficult for the defendants in those cases to receive a fair trial in Custer County; (2) an order of the United States District Court transferring Banks' Wounded Knee trial from South Dakota because of the enormous prejudice against him in South Dakota; and (3) the dismissal of charges against Nuwi Nini, a defendant in a case involving the Minnehaha County Courthouse riot. Finally, on this issue, Banks contends that the dismissal of 247 veniremen for cause constituted a showing of the impossibility of seating an impartial jury in Custer County. Banks, however, cites no authority for this final proposition.
In this case, the trial court painstakingly undertook to seat an impartial jury. The court, sitting through voir dire, found that the publicity, although it was unfortunate, did not so invade the jurors' minds or cause them to form opinions or beliefs which would affect their judgment in this particular case. The United States Supreme Court in Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984), found that whether or not the veniremen were acquainted with the case was 467 U.S. at 1035, 104 S.Ct. at 2891, 81 L.Ed.2d at 856. In Patton, "[j]ury selection ... took 10 days, seven jury panels, 292 veniremen, and 1,186 pages of testimony." 467 U.S. at 1027, 104 S.Ct. at 2887. 81 L.Ed.2d at 851. The Court held that the circumstances surrounding Patton's case did not reveal a " 'barrage of inflammatory publicity immediately prior to trial, ... amounting to a " 'huge ... wave of public passion'[.]" 467 U.S. at 1033, 104 S.Ct. at 2889, 81 L.Ed.2d at 855 (citations omitted).
Under Patton, the trial court's findings of juror impartiality may be overturned only for manifest error. See Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). See also Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975) ( ). Here, approximately 28 months elapsed between the Custer riot and Banks' trial. "[P]assage of time ... can be a highly relevant fact." Patton, 467 U.S. at 1035, 104 S.Ct. at 2891, 81 L.Ed.2d at 856.
Banks claims that the case of State v. Nuwi Nini, 262 N.W.2d 758 (S.D.1978), mandates that his indictment should have been dismissed. In Nuwi Nini, a Minnehaha County trial court dismissed the informations on the ground that a fair and impartial jury could not be obtained for the defendant within Minnehaha County. The charges in that case arose from a riot incident at the Minnehaha County Courthouse. That case, however, is of little precedential value for this court. On appeal, this court dismissed the State's contention that the informations should be reinstated only because we did not have jurisdiction to hear the appeal. The court specifically noted: "We do not reach a consideration of the merits in this case because without jurisdiction we are powerless to do so." Nuwi Nini, 262 N.W.2d at 762. In addition, this court has recently considered the question of pretrial publicity vis-a-vis an accused's right to a fair trial. State v. Reutter, 374 N.W.2d 617 (S.D.1985). In Reutter, we noted that "[t]he burden rests with the accused to establish that an impartial trial is not possible in the face of pretrial publicity." Reutter, 374 N.W.2d at 628 citing State v. Reiman, 284 N.W.2d 860 (S.D.1979). We noted that the voir dire examination is the better forum for ascertaining the existence of hostility towards the accused. Reutter, supra.
Furthermore, we have not been provided with a complete transcript of the voir dire proceedings. If we draw any presumption from an incomplete settled record, the presumption is that the trial court acted properly. State v. Hall, 272 N.W.2d 308 (S.D.1978). Accordingly, we cannot conclude that manifest error occurred which resulted in an unfair jury. See Patton, supra. Banks has not met his burden in establishing that the jury as seated was not impartial. Therefore, his claim must fail.
The second issue Banks raises regarding voir dire is that the court committed error when it refused to allow sequestered voir dire. In examining the jury, Banks was allowed to examine jurors individually, albeit with other jurors in groups of thirty-two persons present. Banks claims due to pretrial publicity he needed to voir dire by examining venirepersons concerning their knowledge of the case. Banks claims that by refusing sequestered voir dire, an entire panel became tainted when he asked these questions.
Bad Heart Bull, 257 N.W.2d at 723. This court has recently reiterated that standard. State v. Muetze, 368 N.W.2d 575 (S.D.1985). As this court noted in State v. Shull, 331 N.W.2d 284, 286 (S.D.1983), "individual voir dire is not a right but a procedure permitted in the discretion of the trial court."
A trial court has not abused its discretion in conducting voir dire when there is sufficient questioning to produce, in light of the factual situation involved in the particular trial, some basis for a reasonably knowledgeable exercise of the right to challenge. United States v. Hasting, 739 F.2d 1269 (7th Cir.1984). Here, the trial court ordered the jurors could be individually questioned but that the other jurors would be present. Thus, Banks was provided with a basis for a reasonably knowledgeable exercise of his right to challenge. See Hasting, supra. In view of the fact that the trial court found that an impartial jury was impaneled to hear Banks' case and Banks does not point to any specific juror who was seated to his prejudice, we cannot say that the trial court abused its discretion in refusing to allow individual sequestered voir dire examination.
As his third issue, Banks claims that a personal vendetta by the prosecutor, then attorney general Janklow, existed and that therefore the case should be dismissed. Banks, however, fails to cite to any case law warranting reversal on the basis of an alleged vendetta. Failure of the brief to cite any supporting authority is a violation of SDCL 15-26A-60(6) and any issue thereby is deemed waived. Corbly v. Matheson, 335 N.W.2d 347 (S.D.1983). Additionally, Banks' claims of Janklow's personal vendetta are without any basis as there is no evidence in the record of any type of personal vendetta.
As a corollary to this issue, Banks claims that prosecutorial misconduct mandates a reversal of his conviction. He claims that extensive prosecutorial misconduct occurred in three different areas. First, the prosecution intimidated actual or potential defense witnesses. Second, there were improper contacts between the prosecution and these potential witnesses. Third, the prosecution destroyed evidence. Banks, however, fails to document any of the alleged intimidations. In Reutter, supra, this court stated: " 'If there was a factual basis for defendant's (sic) allegations of prosecutorial misconduct, that factual basis should have been presented to the trial court....' " 374 N.W.2d at 630 quoting United States v. Wilson, 715 F.2d 1164, 1170 (7th Cir.1983). Like the defendant in Reutter, Banks did nothing more than make mere allegations of prosecutorial misconduct on the basis of witness intimidation. As in Reutter, there is no factual support in the...
To continue reading
Request your trial-
State v. Akuba
...Court could consider it waived for that reason alone." State v. Sullivan, 2003 SD 147, ¶ 20, 673 N.W.2d 288, 293 (citing State v. Banks, 387 N.W.2d 19, 24 (S.D.1986) (failure to cite supporting authority waives issue on 8. Akuba also concedes that Oxner could have validly taken his drug dog......
-
State v. Owens, 21583.
...N.W.2d 47, 51 (S.D. 1987). [¶ 31.] Consequently, whether jurors are acquainted with the case is "essentially irrelevant." State v. Banks, 387 N.W.2d 19, 21 (S.D.1986). The relevant questions are (1) whether a prospective juror with pre-trial knowledge has an "unqualified opinion or belief a......
-
Bland v. Davison County, 19538
...at 856.... Under Patton, the trial court's findings of juror impartiality may be overturned only for manifest error. State v. Banks, 387 N.W.2d 19, 21 (S.D.1986) (alterations in ¶11 At the time Bland renewed the motion for change of venue, her counsel stated, "We are unable to, of course, e......
-
Sailor v. State, 98-1476.
...these "constitutional guarantees are for the protection of the accused; they do not secure any rights to the state"); State v. Banks, 387 N.W.2d 19, 21 (S.D.1986) (stating that, if the trial court cannot obtain a fair and impartial jury in the county where the crime was committed, the defen......