State v. Disanto
| Decision Date | 06 October 2004 |
| Docket Number | No. 22751.,22751. |
| Citation | 2004 SD 112,688 N.W.2d 201 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Rocco William DISANTO, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Lawrence E. Long Attorney, General Craig M. Eichstadt, Deputy Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
Joel P. Landeen, Office of Public Defender for Lawrence County Deadwood, South Dakota, Attorney for defendant and appellant.
[¶ 1.] Defendant told several people of his intent to murder his former girlfriend and her new boyfriend. Unknown to defendant, his design was revealed to the authorities and they had a police officer pose as a contract killer to interject himself in the plan. Defendant and the "hit man" discussed the murders, wherein defendant wanted each victim shot twice in the head. He directed the feigned killer to the former girlfriend's address, gave him a picture of her, provided details on what valuables could be obtained during the killings, instructed him to kill a child witness if necessary, and issued a final command to proceed with the murders. Shortly afterwards, however, defendant communicated with an intermediary that he wanted to "halt" the murders, saying "I'm not backing out of it, I just want to put it on hold." In his trial for three counts of attempted first-degree murder, defendant unsuccessfully sought a judgment of acquittal claiming that the evidence was insufficient to establish that he went further than mere preparation for the offenses. The jury convicted him on all three charges. We reverse the convictions because defendant's actions amounted to no more than mere preparation: neither he nor the feigned killer committed an act toward the commission of the offenses.
[¶ 2.] Defendant, Rocco William "Billy" Disanto, and Linda Olson lived together for two years and were engaged for a short time. But their turbulent relationship ended in January 2002. Olson soon began a new friendship with Denny Egemo, and in the next month, they moved in together. Obsessed with his loss, defendant began making threatening telephone calls to Olson and Egemo. He told them and others that he was going to kill them. He also sued Olson claiming that she was responsible for the disappearance of over $15,000 in a joint restaurant venture.
[¶ 3.] On February 17, 2002, while gambling and drinking at the First Gold Hotel in Deadwood, defendant told a woman that he intended "to shoot his ex-girlfriend, to kill her, to shoot her new lover in the balls so that he would have to live with the guilt, and then he was going to kill himself." As if to confirm his intention, defendant grabbed the woman's hand and placed it on a pistol in his jacket. The woman contacted a hotel security officer who in turn called the police. Defendant was arrested and a loaded .25 caliber pistol was taken from him.
[¶ 4.] In a plea bargain, defendant pleaded guilty to possession of a concealed pistol without a permit and admitted to a probation violation. For his probation violation, he was sentenced to two years in the South Dakota State Penitentiary with nine months suspended. He received a concurrent one-year jail sentence with all but five days suspended for the offense of carrying a concealed pistol without a permit.
[¶ 5.] While in the penitentiary, defendant met Stephen Rynders. He told Rynders of his intention to murder Olson and her boyfriend. Rynders gave this information to law enforcement and an investigation began. In June 2002, defendant was released from prison. Upon defendant's release, Rynders, acting under law enforcement direction, picked defendant up and offered him a ride to Lead. Inevitably, the conversation turned to defendant's murder plans. At the suggestion of the investigators, Rynders told defendant that he should hire a contract killer who Rynders knew in Denver.
[¶ 6.] On the afternoon of June 11, 2002, Rynders and Dale McCabe, a law enforcement officer posing as a killer for hire from Denver, met twice with defendant. Much of their conversation was secretly recorded. Defendant showed McCabe several photos of Olson and gave him one, pointed out her vehicle, led him to the location of her home, and even pointed Olson out to him as she was leaving her home. In between his meetings with McCabe that afternoon, by chance, defendant ran into Olson on the street. Olson exclaimed, "I suppose you're going to kill me." "Like a dog," defendant replied.
[¶ 7.] Shortly afterwards in their second meeting, defendant told McCabe, "I want her and him dead." "Two shots in the head." With only one shot, he said, "something can go wrong." If Olson's teenage daughter happened to be present, then defendant wanted her killed too: "If you gotta, you gotta, you know what I mean." He wanted no witnesses. He suggested that the murders should appear to have happened during a robbery. Because defendant had no money to pay for the murders, he suggested that jewelry and other valuables in the home might be used as partial compensation. He told McCabe that the boyfriend, Egemo, was known to have a lot of cash. Defendant also agreed to pay for the killings with some methamphetamine he would later obtain.
[¶ 8.] At 3:00 p.m., defendant and McCabe appeared to close their agreement with the following exchange:
McCabe would later testify that as he understood their transaction, "the deal was sealed at that point" and the killings could be accomplished "from that time on until whenever I decided to complete the task."
[¶ 9.] Less than three hours later, however, defendant, seeking to have a message given to McCabe, called Rynders telling him falsely that a "cop stopped by here" and that Olson had spotted McCabe's car with its Colorado plates, that Olson had "called the cops," that defendant was under intense supervision, and that now the police were alerted because of defendant's threat against Olson on the street. All of this was untrue. Defendant's alarm about police involvement was an apparent ruse to explain why he did not want to go through with the killings.
[¶ 10.] Despite this telephone call, the next day, McCabe, still posing as a contract killer, came to defendant at his place of employment with Olson's diamond ring to verify that the murders had been accomplished. McCabe drove up to defendant and beckoned him to his car.
[¶ 11.] Defendant was arrested and charged with three counts of attempted murder. He was also charged with one count of simple assault for the threat he made against Olson on the street. The State provided notice that it intended to introduce all the evidence pertaining to defendant's prior arrest and subsequent plea agreement concerning the incident at the First Gold Hotel. Over defendant's objection, the trial court admitted this evidence.
[¶ 12.] A jury convicted defendant of all charges. He was sentenced to three concurrent thirty-year terms of imprisonment in the South Dakota State Penitentiary. In addition, he received a concurrent 365 days in jail. He was fifty-nine years old at the time. These sentences were consecutive to the unfinished two-year term defendant was to serve for his prior felony conviction.
[¶ 13.] On appeal, defendant raises the following issues: (1) Whether the trial court erred in denying his motion for judgment of acquittal and motion for judgment notwithstanding the verdict. (2) Whether his sentence was grossly disproportionate to the crime charged in violation of the Eighth Amendment to the United States Constitution and Article VI, § 23 of the South Dakota Constitution. (3) Whether the State's reliance on evidence of acts committed by defendant for which he had already pleaded guilty violated his double jeopardy protections under the Fifth and Fourteenth Amendments to...
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TABLE OF CASES
...Dillon, People v., 668 P.2d 697 (Cal. 1983), 373, 491 Direct Sales Co. v. United States, 319 U.S. 703 (1943), 412, 413 Disanto, State v., 688 N.W.2d 201 (S.D. 2004), 397 District of Columbia v. Heller, 554 U.S. 570 (2008) , 34, 211 Dixon v. United States, 548 U.S. 1 (2006), 74 Dixon, State ......