State v. Bertram, 28063

CourtSupreme Court of South Dakota
Citation906 N.W.2d 418
Docket Number28063
Parties STATE of South Dakota, Plaintiff and Appellee, v. Russell Ray BERTRAM, Defendant and Appellant.
Decision Date10 January 2018

906 N.W.2d 418

STATE of South Dakota, Plaintiff and Appellee,
Russell Ray BERTRAM, Defendant and Appellant.


Supreme Court of South Dakota.

OPINION FILED January 10, 2018

MARTY J. JACKLEY, Attorney General, PAUL S. SWEDLUND, MIKAL G. HANSON, Assistant Attorneys General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

MICHAEL J. BUTLER, Sioux Falls, South Dakota, and CLINT L. SARGENT, RALEIGH E. HANSMAN of Meierhenry Sargent, LLP, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

GILBERTSON, Chief Justice

906 N.W.2d 420
¶1.] Russell Ray Bertram was convicted of first-degree murder and sentenced to imprisonment for life in connection with the shooting death of his fiancée, Leonila Stickney. Bertram appeals, arguing the circuit court violated his Sixth Amendment right of cross-examination by refusing to admit evidence that Bertram passed a polygraph examination for the purpose of impeaching another witness's testimony. Bertram also argues the circuit court improperly admitted character evidence used against him. We affirm.

Facts and Procedural History

[¶2.] To escape abject poverty, Leonila Stickney came to the United States from the Philippines in 2004 as the 22-year-old, mail-order bride of 73-year-old David Stickney ("Stickney"). In October of the same year, Stickney and Leonila had a son. The three lived together in Bridgewater, where Leonila worked at a nursing home. Every month, Leonila sent $300 of her earnings to help support her family still residing in the Philippines.1 In late 2008, Leonila left Stickney.

[¶3.] After leaving Stickney, Leonila became involved with Russell Bertram, a 56-year-old, former law-enforcement officer. At the time, Bertram was in bankruptcy and had debt exceeding $100,000. In early 2009, several months after the relationship began, Bertram and Leonila visited an insurance agent and purchased a $750,000 life-insurance policy on Leonila for a term of five years. Bertram also purchased another $170,000 in life-insurance coverage on Leonila by mail. Both policies listed Bertram as the sole beneficiary.

[¶4.] Bertram and Leonila's relationship continued throughout 2009. However, Bertram came to suspect that Leonila—who was still married to Stickney—was involved with another man. In August and September 2009, Bertram discovered several late-night calls made from Leonila's mobile phone. On October 24, 2009, while accompanying Bertram on a roadside hunting trip in Gregory County, Leonila told Bertram that she was late menstruating that month. Bertram, who underwent a vasectomy in the late 1970s, responded by asking Leonila who she had been "messing around with." Unaware that Bertram was not able to father children, Leonila denied being unfaithful.

[¶5.] During the hunting trip, Bertram and Leonila drove to a section-line road about seven miles north of Gregory. After shooting his legal limit, Bertram placed his loaded shotgun into the cab of his truck without engaging the weapon's safety. Bertram swept the weapon across Leonila, and it discharged, striking Leonila in her torso. The blast severed Leonila's aorta from her heart. Bertram called 911 and drove Leonila to the Gregory County Hospital. At the hospital, Bertram spoke with Gregory County Sheriff Charlie Wolf and then left to show Deputy Sheriff Tim Drey the site of the shooting. After returning, Bertram was informed that Leonila had died on the operating table. Sheriff Wolf photographed Bertram's vehicle, confiscated the shotgun, and released Bertram.

[¶6.] Shortly after Leonila's death, in June and July 2010, her estate learned of the life-insurance policies. Stickney retained attorney Doug Dailey to represent

[906 N.W.2d 421

Leonila's estate. The estate challenged Bertram's right to the insurance proceeds, arguing Leonila's death was intentional. Bertram's attorney, Clint Sargent, sent a letter to the estate claiming that Bertram had passed a unilateral polygraph test administered by a former DCI agent.2 The estate decided to settle, citing a desire to avoid protracted litigation. Bertram and the estate agreed that Bertram would retain $320,000 of the insurance proceeds plus $82,000 in interest and that the estate would receive the remaining $600,000. The settlement agreement explicitly provided that the money Bertram was to receive from the larger policy (proceeds plus interest) was "for the benefit of Leonila D. Stickney's family in the Philippines."

¶7.] Initially, Leonila's death was investigated as an accidental shooting. However, Sheriff Wolf soon began to suspect foul play. Sheriff Wolf learned of several possible motives Bertram could have had for killing Leonila. A series of text messages on Leonila's phone, beginning several days before and ending the day of the shooting, indicated she was involved with another man, Nathan Meeter. The messages also indicated that Leonila was pregnant with Meeter's child and that she was considering leaving Bertram for Meeter. Leonila's autopsy confirmed that she was pregnant at the time of her death. And in December 2009, Sheriff Wolf also learned that Bertram was the sole beneficiary of $920,000 in life-insurance policies on Leonila. Sheriff Wolf enlisted the assistance of DCI agent Guy DiBenedetto. Sheriff Wolf and Agent DiBenedetto interviewed Bertram on January 21, 2011. Adding to Sheriff Wolf's suspicions, Bertram gave several varying accounts of the shooting. And on January 14, 2014, Agent DiBenedetto visited Bertram's residence for an additional interview.

[¶8.] Bertram was not arrested until 2015. On September 8, 2015, Bertram was indicted for first-degree murder for killing Leonila. Prior to trial, the circuit court ruled on a number of preliminary motions. Particularly relevant to this appeal, the court ruled the State would be permitted to introduce evidence that Bertram had multiple sexual encounters with an exotic dancer in September and October 2009 as well as with two other women on October 19 and 20, 2009. The court also ruled Bertram would not be permitted to discuss his polygraph test. But at trial, the State called Dailey as a witness to discuss the estate and Bertram's settlement. Dailey testified that in a phone conversation, he informed Sargent that the estate believed the entirety of the insurance proceeds should be paid into the estate. According to Dailey, Sargent replied, "No way." Dailey also testified that Leonila's estate decided to settle in order to avoid protracted litigation. After the State's examination of Dailey concluded, Bertram asked the court to reconsider its preliminary ruling and admit the letter sent from Sargent to Dailey that included the result of Bertram's polygraph test. The court declined.

[¶9.] A jury convicted Bertram of first-degree murder, and the circuit court sentenced him to imprisonment for life. Bertram appeals, raising the following issues:

1. Whether the circuit court erred by refusing to admit Bertram's polygraph evidence.

2. Whether the circuit court erred by admitting evidence of Bertram's sexual liaisons with other women during his engagement to Leonila.

[906 N.W.2d 422

Standard of Review

[¶10.] "Our review of a circuit court's evidentiary ruling follows a two-step analysis: ‘first, to determine whether the trial court abused its discretion in making an evidentiary ruling; and second, whether this error was a prejudicial error that "in all probability" affected the jury's conclusion.’ " State v. Martin , 2015 S.D. 2, ¶ 7, 859 N.W.2d 600, 603 (emphasis omitted) (quoting Supreme Pork, Inc. v. Master Blaster, Inc. , 2009 S.D. 20, ¶ 59, 764 N.W.2d 474, 491 ).

Analysis and Decision

¶11.] 1. Whether the circuit court erred by refusing to admit Bertram's polygraph evidence.

[¶12.] Bertram first argues the circuit court erred by excluding his polygraph evidence. He contends that under the Sixth Amendment's Confrontation Clause, he was entitled to present the result of his polygraph test as part of an effective cross-examination. The testimony that gave rise to this claim is as follows:

[Dailey] : I had a telephone call with attorney Clint Sargent on November 4th of 2010. I know that we had some back and forth going on with regard to leaving messages and trying to get hold of each other.

At that time, I advised Mr. Sargent that we believed that Mr. Bertram had intentionally killed Leonila and that he should not be entitled to any of the life insurance proceeds and asked for them to pay those over to the estate.

[State] : Did you ask—so, you asked Mr. Sargent to pay the Globe policy over to the estate or the New York Life?

[Dailey] : Just the life insurance policies in general. I don't think it was differentiated between the two or which one we wanted paid over at that time. We were simply asking for all of the proceeds to be paid to the estate.

[State] : Okay. And, what was Mr. Sargent's response to that?

[Dailey] : My notes have the quote of, "no way."

[State] : So, that's a direct quote from Mr. Sargent.

[Dailey] : According to my notes.

[State] : What did Mr. Sargent tell you about his reason for saying, "no way"?

[Dailey] : Just that they disputed that it was an intentional act.

[State] : And, did he say that the proceeds had another—.

[Sargent] : Your Honor, I'm just going to object. If [the State] is going to ask about things we talked about, I have no objection to that. But,

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