State v. Boykin

• Citation: 432 N.W.2d 60
• Decision Date: 16 November 1988
• Docket Number: No. 15668,15668
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Jimmy Lee BOYKIN, Defendant and Appellant.
• Court: Supreme Court of South Dakota

Page 60

432 N.W.2d 60

STATE of South Dakota, Plaintiff and Appellee, v. Jimmy Lee BOYKIN, Defendant and Appellant.

No. 15668.

Supreme Court of South Dakota.

Argued March 22, 1988.

Decided Nov. 16, 1988.

Janine Kern, Asst. Atty. Gen., Roger A. Tellinghuisen, Atty. Gen., on the brief, Pierre, for plaintiff and appellee.

John A. Schlimgen, Paul D. Stickney of Breit & Stickney, on the brief, Sioux Falls, for defendant and appellant.

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES

On July 21, 1986, Defendant Jimmy Lee Boykin (Boykin) was indicted by a Minnehaha County grand jury on four counts: First-degree murder, first-degree murder/felony- urder, first-degree robbery, and kidnapping. After a jury trial, Boykin was found guilty on all of the counts except felony murder. The trial court sentenced Boykin to twenty-five years in the State Penitentiary on the robbery count, and life imprisonment without parole on the murder and kidnapping counts. Boykin appeals, arguing that the trial court erred in seven respects:

(1) Unauthorized communications between the bailiff and jurors deprived him of a fair trial;

(2) Admission of an incriminating statement he made to a police officer during a strip-search;

(3) Denial of a motion for mistrial following hearsay testimony regarding a codefendant's statement which was not redacted as the court had directed;

(4) Admission of Boykin's tennis shoes into evidence after the State negligently stored them allowing potentially exculpatory bloodstain evidence to deteriorate;

(5) Allowing testimony from State witnesses who had undergone hypnosis;

(6) Sufficiency of evidence to support the verdicts; and

(7) Denial of Boykin's motion for a change of venue.

Finding no grounds for reversal, we affirm Boykin's convictions.

FACTS

At 3:45 a.m., on June 19, 1986, Jean Larson was awakened by screams. She awakened her husband, and they looked out their farmhouse window. Larsons saw a truck in their driveway, one or more persons walking in front of the vehicle's headlights, and heard loud, angry conversation. Later that morning, on their way to town, the Larsons found a stabbed, beaten corpse in their cornfield. The body was that of DeWayne Jensen (Jensen), an elderly man who disappeared early in the morning of that day, midway through his newspaper delivery route in Sioux Falls.

Boykin and a companion, Howard Joseph Adams (Adams), were arrested the next day, June 20, 1986, in Mitchell, in connection with an unrelated robbery. Later, both were implicated in Jensen's murder, and transported to the Minnehaha County Jail.

Witnesses provided some details of Boykin's and Adams' activities in the time before and after the murder. They were stranded in Sioux Falls on June 18, 1986, when their car broke down. Looking for a friend, Harry Cokens, they encountered Marlene Anawski, who lived about four blocks from the Prairie Market. Anawski offered to let them spend the night in a tent in her backyard, and they accepted.

That night, Boykin and Adams shared a bottle of rum at a party at Mrs. Anawski's home. After the party, which ended at 12:45 a.m., both Boykin and Adams took a shower. Adams changed clothes, borrowing a shirt. He and Boykin then walked to the nearby Stockmen's Bar. Boykin stayed in the bar until approximately 3 a.m. Adams left around 2 a.m., but remained in the parking lot until Boykin joined him. They proceeded on foot to the Prairie Market parking lot where disputed testimony indicates their car was located.

By 5 a.m., they were back at their tent in Mrs. Anawski's backyard, asleep. At 9:30 a.m., Adams' wife picked them up. They had discarded their shirts, including Adams' borrowed one, and Adams' back was covered with scratches and a dark tarry substance. When Mrs. Anawski questioned Adams about losing her husband's shirt, Boykin was very quiet.

Investigation revealed that Jensen had started his morning deliveries at about 3 a.m. on June 19. The newspapers Jensen was to deliver to the Prairie Market were found in a jumble, although the first delivery on his route had been completed normally. He made no deliveries at stops scheduled beyond the Prairie Market. Jensen's pickup truck was found three blocks from the Anawski home, with bloodstains matching Adams' blood on the top, bumper, and side. Similar bloodstains were found on an abandoned stack of Jensen's papers. (Adams and Boykin both have type A blood, though it differs in other respects. Jensen had type O blood.) The fillet knife Jensen kept in the vehicle to cut newspaper bindings was never found, but his stab wounds were well matched to an identical knife.

While in jail, Boykin made two self-incriminating statements. The first occurred during a strip-search, when he remarked to Deputy Sheriff Arntz that his shoes might match shoe prints at the site where Jensen was found. The second came in a conversation overheard by Arntz. When Adams stated "We aren't convicted yet," Boykin replied: "It looks like they've got us now."

Adams and Boykin were given separate trials. Adams was convicted of murder, robbery, and kidnapping. This Court affirmed Adams' convictions in State v. Adams, 418 N.W.2d 618 (S.D.1988). Adams raised the same arguments as Boykin now does regarding testimony of previously hypnotized witnesses. All seven issues are treated seriatim.

DECISION

I. UNAUTHORIZED COMMUNICATION BETWEEN BAILIFF AND JURORS

Boykin first asserts that communication between Bailiff Sandy Friessen and jurors during the second day of jury deliberations was prejudicial and deprived him of a fair trial. We disagree, and affirm the trial court's finding that Boykin suffered no prejudice.

The communication in question took place on Thursday, January 29, 1987, during the jury's lunch break. According to Bailiff Friessen, Janet Johnson, a juror, asked her: "What happens if we can't come in with a decision?" Friessen replied:

Well if you can't come in with a decision, the Judge and the attorneys talk it over on how long you have been deliberating, then it's up to them whether to send you back into the juryroom and say deliberate some more or they're going to take your answer as whatever you give for an answer.

I don't know when you're going to come in with a decision. My guess is if you're telling me that you're gonna come in after lunch and say you can't make a decision, I think the Judge would probably send you back into the juryroom, you know, and try to talk some more and try to come to a decision.

At no time did any member of the jury indicate that they were deadlocked or having any difficulty reaching a decision, although, according to Johnson, the jurors did discuss, among themselves, what might happen if they did become deadlocked. The jury continued its deliberations, and rendered its verdict the following morning, on January 30, 1987.

Boykin filed a motion for new trial based, in part, on the bailiff/juror communication. A hearing was held on February 2, 1987, whereat Bailiff Friessen testified. The hearing was continued two days later, on February 4, at which time Janet Johnson testified that she did not remember her conversation with Bailiff Friessen. Juror Johnson also testified that no attempt by any juror to communicate with the judge was frustrated by Friessen or anyone else, that no attempt to influence either her vote or the time of the verdict was made, and that there was no discussion among the jurors of Friessen's statement. After Johnson's testimony, the trial court concluded that Boykin, beyond a reasonable doubt, had suffered no prejudice. On February 9, 1987, Boykin submitted an affidavit from Anita Greenhoff, another juror, to the effect that she had overheard the exchange between Friessen and Johnson. After the prosecutor declined to offer new evidence, the trial court indicated that it was still satisfied that no prejudice had occurred, and denied Boykin's motion for new trial.

State and Boykin agree that the bailiff's communication was improper (see SDCL 23A-25-5 ¹ and SDCL 23A-25-8 ²). The standard set forth by the United States Supreme Court in Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), is controlling:

In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant. Mattox v. United States, 146 U.S. 140, 148-150, 36 L.Ed. 917, 920, 921, 13 S.Ct. 50, [52-54] [ (1892) ]; Wheaton v. United States, (CA 8th S.D. [1943] ) 133 F.2d 522, 527.

Remmer, 347 U.S. at 229, 74 S.Ct. at 451, 98 L.Ed. at 656. South Dakota case law is entirely consistent with Remmer. See State v. Swallow, 350 N.W.2d 606, 610 (S.D.1984); State v. Holt, 79 S.D. 50, 51-52, 107 N.W.2d 732, 733 (1961); State v. McCoil, 63 S.D. 649, 652, 263 N.W. 157, 158 (1935).

Boykin maintains that Bailiff Friessen's remarks were in the nature of a "get together" instruction or "Allen charge," a name derived from Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896) (concerning supplemental jury instructions encouraging a deadlocked jury to reach unanimous agreement). This Court disapproved the use of such supplemental instructions urging unanimity in State v. Ferguson, 84 S.D. 605, 612, 175 N.W.2d 57, 61 (1970): "To assure the integrity and independence of criminal jury verdicts in the future the use of supplemental get-together instructions is not commended." The substance of Bailiff Friessen's communication, however, belies Boykin's assertion. The Kansas Supreme Court found no ...