State v. Esslinger

• Decision Date: 06 December 1984
• Docket Number: No. 14442,14442
• Citation: 357 N.W.2d 525
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Jon E. ESSLINGER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 525

357 N.W.2d 525

STATE of South Dakota, Plaintiff and Appellee, v. Jon E. ESSLINGER, Defendant and Appellant.

No. 14442.

Supreme Court of South Dakota.

Argued Sept. 12, 1984.

Decided Nov. 14, 1984.

Rehearing Denied Dec. 6, 1984.

Jon R. Erickson, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Richard Braithwaite of Braithwaite Law Offices, Sioux Falls, for defendant and appellant.

WUEST, Acting Justice.

Appellant Jon E. Esslinger (appellant) was convicted by a jury on two counts of murder in the first degree and one count of receiving stolen property. He received two life sentences and one five-year sentence, to run concurrently. We affirm.

On August 6, 1982, appellant escaped from a jail in Kearney, Nebraska. He stole some clothing and a Plymouth car and drove to South Dakota. On the evening of August 7, he was seen near Dixon, South Dakota, talking to Paul Eagle Star (Eagle Star) and Alvin Willard (Willard), two young Indian men.

On August 8, 1982, Bob Van Zee (Van Zee) called the State Police Radio. He reported talking with an individual by the name of "Jon" at the D & D Marina, a few miles from Dixon. Jon told Van Zee that he had broken out of jail in Kearney, Nebraska, stole the gray Plymouth Volare automobile he was driving, picked up a couple of Indians at the North Star Saloon and beat them up with a pipe and jack wrench, which he threw in the river. Van Zee gave the police radio a description of Jon, the automobile, and its Nebraska license number. Other people at the marina later confirmed overhearing parts of the conversation.

After calling the police radio, Van Zee visited with Jon until a Highway Patrolman arrived. When the patrolman arrived, he chased Jon down a dirt trail behind the marina where appellant abandoned the stolen automobile. A search of the vehicle disclosed a knife under the driver's seat, a screwdriver and a pair of prison-type coveralls. On August 9, the two victims were reported missing. Also, on August 9, appellant surrendered to a deputy sheriff at a roadblock near the marina. He was returned to the Nebraska State Penitentiary. The stolen Plymouth Volare, which had been impounded, was searched again on August 13 and Sheriff Oliver removed a jack handle. On August 14, an air and ground search was conducted for the two missing men near Dixon.

On August 27, appellant made incriminating statements to the chaplain at the Nebraska Penitentiary, which statements were relayed by the chaplain to Sheriff Oliver.

On September 3, while tilling his field, a local farmer found two badly decomposed bodies which, by the use of dental records, were identified as Eagle Star and Willard. Dr. Brad Randall, a forensic pathologist, who performed autopsies on the two bodies stated the cause of death was multiple trauma or injuries to the skull and head.

The first issue on appeal is whether the indictment alleging seven counts is defective because the grand jury voted on the indictment, in its entirety, and not separately as to each count.

At the time of the indictment in this case, SDCL 23A-5-18 provided: "An indictment may be found only upon the concurrence of six or more jurors." The minutes of the grand jury show six grand jurors concurred in the indictment against appellant.

An indictment is "a plain, concise and definite written statement of the essential facts constituting the offense charged." SDCL 23A-6-4. "Two or more offenses may be charged in the same indictment ... if the offenses charged ... are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together ...." SDCL 23A-6-23.

Appellant cites Eubanks v. State, 5 Okl.Cr. 325, 114 P. 748 (1911), in support of his claim that the indictment should have been dismissed. In Eubanks, sixteen indictments were returned and only three votes were taken. The clerk of the grand jury was unable to state which indictments were voted upon, nor could any of the other grand jurors. The Oklahoma Court said:

In the proceedings had in this case, evidently the grand jury did not proceed with that deliberation that the law requires. The law requires that the concurrence of the necessary number of grand jurors be indicated by a vote or ballot on each indictment, and, if a separate vote or ballot is not taken, then there can be no lawful concurrence of the necessary number of grand jurors.

5 Okl.Cr. at 333, 114 P. at 752. In Eubanks, there was no way for the court to determine which indictments had been voted upon, and the grand jury had only voted upon three of them.

In the case at bar, there was only one indictment and the minutes disclosed that it was voted upon as required by SDCL 23A-5-18. SDCL 23A-5-6 provides: "The clerk shall keep a record of the number of the jurors concurring in the finding of every indictment ...." This was also done. The trial court did not err in overruling the motion to dismiss.

Dr. Randall was furnished a printed copy of the dental records of Willard and telephonically given dental records of Eagle Star. Over objection, he was permitted to testify the dental records were consistent with the bodies he examined. The trial court relied upon SDCL 19-15-3, ¹ Federal Rule 703, which provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Appellant made it very clear in his rebuttal brief that he does not claim dental records do not fall within the type reasonably relied upon by experts in the field of body identification. Rather, he claims that because the dental records of Willard were ten years old, and those of Eagle Star were four to five years old, both mouths were still in a growth period and dental change could be expected. Further, since Dr. Randall testified that records of this kind were relied upon by experts "sometimes," these particular records did not meet the test "of a type reasonably relied upon by experts in the particular field[.]" It was stated in appellant's reply brief thus:

We simply claim that these particular dental records are not of a type reasonably relied upon. The State's own expert testified that whether the age of dental records would affect comparison depended upon the circumstances (T 862). He admits that dental records such as the ones involved here are of a type sometimes relied on--and ...

We believe the objection of appellant went to the weight of the evidence as distinguished from its admissibility. Whether or not a dental record can be relied upon to identify a body necessarily depends upon the circumstances. A fair interpretation of Dr. Randall's testimony indicated a dental record may or may not be helpful in the identification of a body, as distinguished from the interpretation of his remarks urged by appellant. Accordingly, the trial court did not err in overruling the objection.

During the course of the trial, several persons identified appellant and testified concerning things they had seen him do or heard him say. Eighteen individuals were asked to identify appellant as having been at either the North Star Saloon, Dixon Housing, the D & D Marina, the Verdral farm, or the Chocholousek residence on the weekend of August 7 through August 9, 1982. Motions to suppress these identifications were held both prior to trial and during trial. The trial court refused to suppress any of the out-of-court or in-court identifications.

Four separate out-of-court identification procedures were used, including a one-photo and four-photo display and two seventeen-photo displays. Following the disappearance of the victims, Deputy Sheriff Darrell Pepper displayed a single photograph of appellant to eleven of the eighteen persons asked to identify appellant at trial. Subsequently, Deputy Pepper showed three of the eighteen persons a display containing four photographs. Later, a seventeen-photo display was shown to six of the individuals, and finally, another seventeen-photo array was shown to all eighteen individuals asked to testify at trial.

Appellant contends that the one-photo and four-photo displays were so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification and should therefore have been suppressed. Appellant further contends that inasmuch as the remaining seventeen-photo displays were tainted by the one and four-photo displays, they too should have been held inadmissible at trial.

In State v. Iron Thunder, 272 N.W.2d 299, 301 (S.D.1978), this court stated:

It is well settled that in-court identifications are not admissable at trial when they stem from a photographic identification lineup procedure that is so impermissibly suggestive as to result in a very substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); State v. Barcley, 225 N.W.2d 875 (1975); State v. Sahlie, 245 N.W.2d 476 (1976). The burden of establishing the impermissable suggestiveness of the photographic lineup is upon the party seeking to suppress the evidence.... However, even though the photographic lineup may be considered to be impermissibly suggestive, the in-court identification is admissible upon the state's showing, by clear and convincing proof, that the in-court identification had an independent origin, i.e., based upon observation of the witness other than the photographs shown to the witness. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); State v. Sahlie, supra.

The initial determination as to whether a photographic lineup was impermissibly suggestive is, to a great extent, a subjective one. Iron Thunder, supr...