State v. Connor, 10962
| Decision Date | 26 July 1972 |
| Docket Number | No. 10962,10962 |
| Parties | STATE of South Dakota, Plaintiff and Respondent, v. Fred CONNOR, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Sidney B. Strange, Sioux Falls, for defendant and appellant.
Gordon Mydland, Atty. Gen., William J. Srstka, Jr., Asst. Atty. Gen., Pierre, for plaintiff and respondent.
Defendant was convicted of grand larceny by a circuit court jury in Minnehaha County, South Dakota. He was originally charged conjointly with William (Bill) Rober, but was granted a separate trial pursuant to motion. Rober was convicted by a circuit court jury of grand larceny on February 17, 1971. His conviction was recently affirmed by this court, State v. Rober, S.D., 197 N.W.2d 707. Defendant's trial took place on February 23 and 24, 1971. Present counsel was appointed to represent him on appeal.
On September 18, 1970, an appliance dealer purchased two new 23-inch color TV sets from Warren Supply Company in Sioux Falls, South Dakota. The boxes containing the TV sets were placed in the box of the dealer's pickup truck. The dealer parked the pickup truck in the parking lot behind a Sioux Falls bar at approximately 7 or 8 o'clock that evening. Upon returning to his truck some two hours later, the dealer discovered that the boxes containing the TV sets were gone.
Some time between 10 and 11 p.m. on September 18, 1971, defendant called a Mrs. Lane Kuper in Sioux Falls and told her that he had 'a real good deal on a television set.' Mrs. Kuper and her husband were slightly acquainted with defendant, having met him earlier in the year when he was working in the neighborhood. Sometime prior to September 18, 1971 defendant and Mr. Kuper had had a conversation to the effect that defendant was to obtain a TV set for the Kupers.
Shortly after the telephone conversation, defendant and Rober delivered the TV set to the Kuper residence. Mrs. Kuper paid defendant $75 for the TV and also agreed to trade him a used black and white TV set.*
Upon learning the next day that two TV sets had been stolen from a pickup truck, Mr. and Mrs. Kuper contacted the Sioux Falls police department. It was subsequently determined that the TV set that defendant had sold to Mrs. Kuper was one of those that had been stolen.
Defendant took the stand in his own behalf and testified that as he left his hotel at approximately 10:30 p.m. on September 18, 1971 on an errand for another guest at the hotel, he met a man on the street who offered to sell him a TV set for $100. After some haggling, defendant bought the TV set for $60. Defendant then called Rober who arrived five or ten minutes later and helped defendant load the TV in Rober's car and deliver it to the Kuper residence.
Defendant was unable to name or specifically identify the person from whom he said he had purchased the TV set, although he testified that he had purchased a shotgun and a TV set from this individual approximately a year earlier. The Sioux Falls police department was unable to locate anyone answering the general description given by defendant or driving the pickup truck described by the defendant.
Defendant assigns as error the trial court's failure to grant his motion for a continuance over the term. Defendant argues that he could not receive a fair trial because the jury which convicted him was selected from the same panel from which the jury was drawn which a few days earlier had convicted defendant's codefendant. Defendant invites us to take judicial notice of the fact that the entire panel is present in the courtroom during voir dire examination. He argues that it would be illogical to suppose that his name went unmentioned during the voir dire examination in Rober's trial; consequently, the panel from which defendant's jury was selected must have been made aware of his alleged connection with the crime at the time Rober's jury was selected.
The jurors who sat in Rober's case were all excused from the courtroom and were not present at the time of the selection of the jury in defendant's case. Moreover, the first 12 jurors who were called from the panel in defe...
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