State v. Engesser

Decision Date23 April 2003
Docket NumberNo. 22149.,22149.
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Oakley B. ENGESSER, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Lawrence E. Long, Attorney General, Sherri Sundem Wald, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Timothy J. Rensch, Rapid City, South Dakota, Attorney for defendant and appellant.

KONENKAMP, Justice (on reassignment).

[¶ 1.] Defendant was tried by a jury and convicted of vehicular homicide and two counts of vehicular battery. He was sentenced to prison. He appeals asserting that the trial court erred in (1) denying the suppression of his blood draw result; (2) allowing a police officer to testify whether he thought defendant was untruthful during an interview; (3) refusing hearsay evidence; and (4) failing to instruct the jury on spoliation. We affirm on all issues.

Background

[¶ 2.] In the early evening of July 30, 2000, the defendant, Oakley B. Engesser, and Dorothy Finley were at the Full Throttle Saloon, near Sturgis, South Dakota. Roanna Clifford visited with Finley for approximately 30 to 45 minutes. She did not see Finley drink any alcoholic beverage, but noticed that Engesser was drinking beer. Through the course of the conversation, Finley said that she and Engesser had her red Corvette. Although she did not see Engesser and Finley leave the Full Throttle, Clifford estimates that they left at approximately 6:00 p.m.

[¶ 3.] Between 7:30 and 7:45 p.m. that same evening, Beau Goodman was driving east on Interstate 90 when he saw a red Corvette entering the Interstate a few hundred feet behind his vehicle. Goodman estimates that he was traveling between 75 to 80 miles per hour. When he looked into his rearview mirror, he could not see the red Corvette. Then, he looked to his side and saw the Corvette zip by him. Describing the car as a "red blur," Goodman was unable to see who was driving. As the Corvette raced down the road, Goodman saw it slam into the back end of a white minivan. The collision occurred at approximately 8 p.m.

[¶ 4.] In the white minivan were Todd and Jackie McPherson, along with their two children, three-year-old Cassie and one-year-old Alex. They were traveling eastbound on Interstate 90 between Sturgis and Rapid City. Todd was driving. He had the cruise control set at 70 to 75 miles per hour. The only passenger in a seatbelt was Alex, who was riding in his car seat. As they were driving, the McPhersons noticed that two vehicles ahead pulled onto the shoulder of the interstate. Consequently, Todd pulled into the left lane. At this point, he described the traffic flow as ordinary, explaining that all the vehicles appeared to be traveling at the same pace. After he passed the parked vehicles on the shoulder of the road, Todd moved back into the right lane. Checking his rearview mirror, Todd did not see any vehicles approaching at a fast rate of speed.

[¶ 5.] Just beyond the parked vehicles, Todd felt a tremendous impact when his vehicle was hit from behind by the red Corvette. As the minivan careened into the ditch, Todd was thrown from the driver's seat to the back of the van, landing with his head in the backseat and his feet facing the driver's seat. Jackie remained in the front passenger seat, her right leg wedged between the seat and the door. Cassie, who had been sitting on Jackie's lap, was also thrown to the backseat of the van. She had shattered glass all over her head and dress. Jackie reached over and turned off the ignition. She was also able to push her door open. Once out of the car, she was unable to open the side door of the van, so she reached inside the broken windows and pulled her children from the vehicle. Initially, Todd was pinned inside. He was eventually able to free himself and climb out of the van. Cassie complained that her leg hurt and Jackie also noticed a large bump on Cassie's head. Todd was transported to the hospital in Rapid City, where he was diagnosed with broken ribs, whiplash, a bruised ankle, and body stiffness. Jackie was also diagnosed with severe whiplash. That same evening, Jackie and Cassie were released from the hospital, but Todd remained there for four days.

[¶ 6.] According to the State's accident investigator, the Corvette was traveling approximately 112 miles per hour when it slammed into the back of the minivan, spun off the road, and rolled several times before coming to rest on its roof in the median. The passenger side of the Corvette was crushed on impact with the minivan. Engesser was thrown from the car and was found face down in the grass six to ten feet away from the open driver's door of the car. One of the first people on the scene was Mary Redfield, an off-duty emergency room nurse. Using her medical training, Redfield cleared Engesser's airway, allowing the unconscious man to breathe. The nurse noted that Engesser had a strong pulse. As she continued to aid Engesser, she noticed that he had a gash on the right side of his head. She also noticed that he had the odor of an alcoholic beverage. Engesser was taken by ambulance to the hospital.

[¶ 7.] Finley was trapped inside, on the passenger side of the Corvette. She was pronounced dead at the scene. Mike Walker, a Meade County Deputy Sheriff, arrived on the scene. After checking on the McPhersons, he walked over to the Corvette where he had been informed that there had been a fatality. Crawling inside the open driver's door, Walker checked Finley's pulse. With the car lying on its roof, he found Finley's body underneath the passenger seat, her body in line with the seat. The upper part of Finley's body was lying over the top of the seat. She was facing the ground. Her feet were underneath the dash. Her face was pointing toward the driver's side. Shortly thereafter, emergency workers used the Jaws of Life tool to extract Finley from the wreckage. Her body was removed through the driver's door because the passenger side of the vehicle was so damaged the passenger side door could not be opened.

[¶ 8.] The officer designated to lead the investigation was Trooper Ed Fox of the South Dakota Highway Patrol. Preliminary information given to Fox erroneously reported that Finley was found in the driver's seat and his initial report reflected that information.1 Fox inspected the passenger compartment of the car to determine whether there was any blood or trace evidence. It was dark and he was unable to see any blood. He ordered the vehicle impounded to test it for trace evidence, including blood.

[¶ 9.] After investigation at the scene, Fox went to the hospital to interview Engesser. Having suffered a head injury, Engesser was combative and incoherent. The only coherent thing Engesser said to the trooper was that he had not been driving. Smelling the odor of an alcoholic beverage on Engesser, Fox ordered a blood draw to determine his blood alcohol concentration (BAC). Fox did not read the implied consent warning to Engesser. The officer was unsure who had been the driver. At the time of the test, Engesser was not in custody or detained by the officer; in fact, he was not arrested until approximately seven months later. The test later revealed that Engesser's BAC was .081. Extrapolated back to the time of the accident, the BAC would have been.125, according to the chemist who testified for the prosecution.

[¶ 10.] Meanwhile, the Corvette was taken to a private lot where it was left outdoors and uncovered through the time of the trial. The first attempt at an in-depth inspection of the vehicle took place approximately three weeks after the accident when the State's expert went to the lot.2 Fox had requested that the State Crime Lab examine the vehicle to attempt to determine placement of individuals in the car through blood or trace evidence. The State's expert testified that he did not find any blood in the car and only a trace amount on the roof. He decided that because the vehicle had rolled, the value of any blood that could be found in the vehicle was diminished. Instead, the expert decided to seek an accident reconstruction.

[¶ 11.] On September 13, 2000, Fox contacted Engesser and interviewed him in Fox's cruiser. The interview was videotaped. The following day, Fox finished his report, concluding that based on Finley's injuries, he believed Engesser was the driver. In February 2001, Engesser was charged with vehicular homicide under SDCL 22-16-1, an alternative charge of second degree manslaughter, and two counts of vehicular battery under SDCL 22-16-42.

[¶ 12.] Before trial, the defense gave notice of intent to use exculpatory hearsay. The proffered evidence was the testimony of Engesser's civil attorney who was prepared to testify that he had interviewed Sean Boyle, a security guard at the bar where Finley and Engesser spent time the evening of the accident. The attorney would testify that an interview over the phone with Boyle revealed that Finley had been driving at the time the two left the bar and further, that Finley rarely, if ever, allowed others to drive her Corvette. The trial court refused to admit this hearsay.

[¶ 13.] The defense also moved to suppress the result of Engesser's BAC. The trial court denied the motion. Engesser proposed two jury instructions dealing with the State's duty to preserve evidence and the inferences that may be drawn from failure to do so. Both jury instructions were rejected. Engesser was convicted of vehicular homicide and two counts of vehicular battery. He was sentenced to fifteen years in prison for the homicide conviction and ten years each on the two convictions of vehicular battery. The ten-year sentences were to run concurrently, with the fifteen-year sentence running consecutively. Thus, he received a total of twenty-five years in the penitentiary.

[¶ 14.] Engesser appeals, raising four issues: (1) Whether the trial court...

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