State v. Etzkorn
| Decision Date | 14 March 1996 |
| Docket Number | No. 19335,19335 |
| Citation | 552 N.W.2d 824,1996 SD 99 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Allen ETZKORN, Defendant and Appellant. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Mark W. Barnett, Attorney General, Jeffrey P. Hallem, Assistant Attorney General, Pierre, for plaintiff and appellee.
Lee C. "Kit" McCahren of Olinger, Lovald, Robbennolt and McCahren, Pierre, for defendant and appellant.
¶1 Allen Etzkorn (Etzkorn) appeals his conviction for driving while under the influence of alcohol (DUI). We reverse and remand.
¶2 On March 7, 1995, state filed an information charging Etzkorn with DUI. The charge was filed in the alternative under SDCL 32-23-1(1) or 32-23-1(2):
A person may not drive or be in actual physical control of any vehicle while:
(1) There is 0.10 percent or more by weight of alcohol in his blood as shown by chemical analysis of his breath, blood or other bodily substance;
(2) Under the influence of an alcoholic beverage[.]
¶3 Etzkorn's jury trial commenced before a magistrate judge on May 10. During voir dire, the following exchange occurred between Etzkorn's counsel and potential juror Kristina Kenney:
Q [By Etzkorn's counsel] This is a criminal case and the defendant is, Mr. Etzkorn is presumed to be not guilty. Is there anyone for whatever reason that has any difficulty or any hesitation whatsoever in presuming Allen to be not guilty at this time? It's a long question. There's a couple different variables. Let me try and simplify it.
Can you all presume Allen to be not guilty? Ms. Kenney?
A (BY KRISTINA KENNEY) Yeah, well, I've had experiences before with my ex-boyfriend being a drunk driver so I've kind of--I think it's kind of hard to not be caught for it, you know, if you were actually arrested for it.
Q So you feel you have a difficulty--based on your personal life you have a difficulty in presuming Mr. Etzkorn to be not guilty at this time?
A Right.
Q And that's not fair in this particular type of case?
A Yeah, I know but I just--
Q No, you'd love to serve as a juror, it's just that this type of case isn't appropriate for you then?
A Right.
Q And you're unable to presume him to be not guilty at this time?
A Yes.
Q [ETZKORN'S COUNSEL] But ma'am, this is very important. I don't mean to single you out or act like I'm drilling upon you but the law requires that the complete jury is able to presume an individual to be not guilty. Complete honesty and candor is necessary when answering the questions in the jury selection process.
A (BY KRISTINA KENNEY) Yes.
Q It's what makes the system work. Can you state with no hesitation that Mr. Etzkorn is not guilty?
A No.
Q [ETZKORN'S COUNSEL] Do you think it's fair that you would serve as a juror if you couldn't presume the defendant to be not guilty in this particular type of case?
A (BY KRISTINA KENNEY) Well, I wouldn't know until I heard the evidence.
Q But you said that you've already formed an opinion in your mind.
A I've just got that, you know, in my mind. You know, if I heard the evidence and there is a reasonable doubt then, yeah, I could probably say he's not guilty.
Q But, you're assuming the worst at this time?
A Yes.
Q You're assuming he's guilty?
A Yes.
Q [ETZKORN'S COUNSEL] So you would require Mr. Etzkorn to put on some evidence of his innocence?
A (BY KRISTINA KENNEY) Yes.
¶4 At a later point during voir dire, Etzkorn's counsel had a similar exchange with potential juror Peggy Hofmeister:
[ETZKORN'S COUNSEL]: Thank you, your Honor. Good morning, Mrs. Hofmeister. Were you able to hear the questions that have been asked thus far?
A (BY PEGGY HOFMEISTER) Yes, I was.
Q And would you have responded to some or any of those questions?
A I would have had to respond. I was married to an alcoholic for 12 years who was arrested on five DUIs and he was excused from some and probably shouldn't have been. I believe in the system, you know, that people are innocent until proven guilty. I am concerned about whether I would be a fair and impartial juror.
Q And you understand that some types of cases are not suited for some types of jurors?
A Yes.
Q Let me ask you this. If you were in Mr. Etzkorn's seat would you not want 12 jurors such as yourself hearing the facts of the case?
A Not knowing the whole case, I think I probably wouldn't.
Q You don't feel that this is the type of a case that you can be impartial?
A I'm just concerned about that.
Q You have hesitation in presuming this defendant to be not guilty?
A I do. I assume that since he's in this courtroom there was reason for him to be here.
Q So you have great hesitation in assuming him to be not guilty?
A Yes.
Q And you understand that we want 12 jurors that are able to presume him to be not guilty?
A Yes.
Q And it's very, very difficult for you to set your personal feelings aside when coming into this courtroom?
A I really think I could but when I heard what the case was about my instant thought was, "I've been through this before on a more personal level."
Q In fact, so you're saying that not only are you having hesitation in presuming this defendant to be not guilty, you're assuming the worst and assuming that he would be guilty?
A Yeah.
Q And would you require him to put on evidence of his innocence?
A Yes, I guess that's what I'm saying.
Q Even though our system does not require that, you yourself would?
A Yeah.
Q [ETZKORN'S COUNSEL] What you're saying, Mrs. Hofmeister, is that you don't think Mr. Etzkorn would get a fair trial if you were seated as a juror?
A I think I can be fair[.]
Q Even though you are presuming him to be guilty?
A Yes.
Q And the scales are tipped against his favor at this time?
A Yes.
Q Were there other questions that you would have responded to, ma'am?
A No. I don't know the defendant and I don't know the policeman or the lab person so I would have been quiet until we got to that point.
Q And aside from that, anything else?
A No.
¶5 Etzkorn's counsel subsequently exhausted his peremptory challenges to remove Kenney, Hofmeister and a third potential juror from the panel. The jury that was ultimately seated returned a guilty verdict against Etzkorn. Etzkorn filed a motion for a new trial based upon the trial court's refusal to remove Kenney and Hofmeister for cause. The motion was denied and a judgment of conviction and sentence was entered in June 1995. Etzkorn appealed his conviction to the circuit court, again questioning the trial court's refusal to remove Kenney and Hofmeister for cause. The circuit court affirmed and Etzkorn now appeals to this Court.
¶7 Etzkorn again asserts the trial court erred in the denial of his challenges for cause as to potential jurors Kenney and Hofmeister. He contends he was prejudiced because the denial of his challenges for cause forced him to exhaust peremptory challenges on Kenney and Hofmeister when there were others he would have sought to remove from the panel by use of peremptory challenges.
¶8 One of the primary responsibilities of a trial court is to make certain that a fair and impartial jury has been selected for the defendant's trial. State v. Muetze, 368...
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...or the Constitution. United States v. Martinez-Salazar, 528 U.S. ___, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000). But see State v. Etzkorn, 1996 SD 99, 552 N.W.2d 824 (reversing and remanding a DUI conviction where: (1) the court erroneously refused to remove two jurors for cause; (2) Etzkorn ex......
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