State v. Feuillerat

• Decision Date: 21 May 1980
• Docket Number: No. 12879,12879
• Citation: 292 N.W.2d 326
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Dana W. FEUILLERAT, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 326

292 N.W.2d 326

STATE of South Dakota, Plaintiff and Appellee, v. Dana W. FEUILLERAT, Defendant and Appellant.

No. 12879.

Supreme Court of South Dakota.

Argued Feb. 22, 1980.

Decided May 21, 1980.

Margaret Crew, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

David R. Gienapp of Arneson, Issenhuth & Gienapp, Madison, for defendant and appellant.

BERNDT, Circuit Judge.

The defendant was found guilty of murder by a jury on June 30, 1979. ^* This is an appeal from his conviction which resulted in a mandatory sentence of life imprisonment.

Defendant, James Lee Perdue III, and Jeffrey K. Gill left Wichita, Kansas, for South Dakota in Gill's pickup on March 16, 1978, to steal some furs. They arrived in South Dakota on March 17, 1978, and stopped at a filling station after having checked out several places which sold furs. While Gill was making some telephone calls, defendant and Perdue had a conversation. According to Perdue's testimony, he indicated an unwillingness to go through with the thefts, and defendant said, "Well, we could kill Jeff. He has two or three thousand dollars and take his money." There was no other conversation in this regard. After Gill returned to the pickup, they continued driving and arrived at Arlington, Kingsbury County, South Dakota, on the evening of March 17, 1978, where they checked into the Pheasant Motel.

On March 18, 1978, at 2:30 a. m., a Dana Feuillerat registered at the Airport Holiday Inn, Sioux Falls, South Dakota, and paid the room rate for two people.

On March 18, 1978, North Central Airlines sold tickets to D. Feuillerat and L. Perdue, to Wichita, Kansas, on a flight departing Sioux Falls at approximately 4:00 p. m. on that date.

On March 19, 1978, some items of clothing and knives, later identified as belonging to Gill, were found along a road about six miles southeast of Arlington.

On March 23, 1978, a body was discovered behind a snowdrift alongside a road about a mile or two from where the above items had been found. There was a shoelace tied around the left wrist. A washcloth tied with a shoelace, shoes, parts of shoelaces, and an empty liquor bottle, were found near the body. The pockets of the blue jeans were turned inside out.

On April 19, 1978, Gill's pickup was located at the Sioux Falls, South Dakota, airport with the license plates missing.

On May 4, 1978, a statement was given by defendant, which was admitted into evidence over objection, in which he implicated himself in Gill's death. He denied any intent or design to effect the death, but admitted to disposing of the body with the help of Perdue. In essence, defendant's statement was as follows: They were "high" on drugs after arriving at the Pheasant Motel, and he got into a violent argument with Gill about how to take out a certain alarm system without getting caught. This led to fighting, wrestling, tearing up the room, and loud yelling and cursing by Gill. Defendant, with the help of Perdue, tried to hold Gill in an effort to quiet him down, and a pillow was put over his face to muffle his yells and thus avoid an investigation for a disturbance. According to defendant's statement, "He (Gill) just passed out and nothing we did would make him come back. He wouldn't wake up. We sat there and he went cold and we didn't know what to do; and so we decided we better get rid of him because if we told anybody, we would get caught for killing him, but we didn't kill him on purpose."

Perdue took Gill's money, a little over $1,000.00, before loading the body into the pickup. Defendant said they also loaded up pieces of a chair which had been broken in the fight. After unloading the body out in the country, they drove down the road, throwing out any items which might connect them with the pickup. Defendant said they also threw some items into garbage cans at a Sioux Falls gas station. They did not want to take the pickup back, so they decided to split the money and fly home.

The manager of the motel in Arlington testified that she cleaned the room the morning of March 18, 1978, and noted that one bed was quite messed up and had a blanket missing. The other bed looked like someone had lain on it but had not used the covers. The manager also testified that the furniture was all right and that none of the chairs were missing.

Perdue had previously been tried and convicted of manslaughter in the second degree in connection with Gill's death and was serving a sentence in the South Dakota State Penitentiary at the time of defendant's trial. His testimony varied greatly from that of defendant. According to Perdue, the following events happened after they arrived at the motel in Arlington on the evening of March 17, 1978: There was no conversation with Gill, who came into the room, went to the bathroom, took off his shoes and then went to bed without removing the rest of his clothes. Defendant lay on a second bed, and Perdue sat on the edge of the bed watching tv. Gill was asleep in five or ten minutes. None of the three had consumed any controlled substances or liquor that day. In a conversation that followed between defendant and Perdue, Perdue said he did not want to go through with stealing furs. Defendant then outlined a plan to frighten Gill into giving them some money to get back to Kansas or into taking them back. Perdue followed instructions to tie one of Gill's hands to the bed with a shoelace and tied up a washcloth to silence Gill if necessary. Perdue was to grab Gill's feet while defendant was restraining Gill and ordering him to give the two some money or take them back to Kansas. Perdue went on to testify that defendant said,

on the count of three, grab his ankles and I will jump on top of him. . . . Just as soon as Dana (defendant) jumped on top of him Jeff (Gill) started kicking real bad and I let go and then I heard Jeff gasping for air and he says, "Dana, please," and I told Dana to stop but he says, "if I stop now," he says, "he will have me killed" and then they fought to the floor and the next thing I knew he wasn't moving.

During this struggle, defendant had Gill around the throat.

The remainder of the accounts told by defendant and Perdue concerning the post-death events substantially coincide.

Defendant's appeal raises ten issues, only some of which we will discuss in detail.

I

The trial court erred in denying defendant's motion for judgment of acquittal for the following reasons:

a. That there was not sufficient corroboration as a matter of law, of the testimony of accomplice, James Lee Perdue III.

The law applicable to this case prohibits conviction upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. SDCL 23-44-10 (now SDCL 23A-22-8). It is not required that corroborative evidence be produced which, by itself, would sustain a conviction. State v. Moellar, 281 N.W.2d 271 (S.D.1979); State v. Rauscher, 267 N.W.2d 582 (S.D.1978); State v. Stecker, 79 S.D. 79, 108 N.W.2d 47 (1961). The statute is satisfied if such evidence in some substantial degree tends to (1) affirm the truth of the testimony of the accomplice, and (2) establish the guilt of the defendant. State v. Moellar, supra; State v. Drapeau, 45 S.D. 507, 189 N.W. 305 (1922); State v. Levers, 12 S.D. 265, 81 N.W. 294 (1899). Corroborative evidence need not confirm every material fact testified to by the accomplice. State v. Larmond, 244 N.W.2d 233 (Iowa 1976); State v. Trogden, 258 Iowa 574, 139 N.W.2d 393 (1966); State v. Binns, 194 N.W.2d 756 (N.D.1972). The degree of evidence deemed sufficient is for the determination of the jury. State v. Walsh, 25 S.D. 30, 125 N.W. 295 (1910). The defendant himself can provide the necessary corroboration. State v. Jochims, 241 N.W.2d 25 (Iowa 1976).

Although denying intent or premeditation, defendant by his statement placed himself in the room with the accomplice and decedent and admitted participating in action which led to the death. In addition, the evidence includes the tied-up washcloth found with the body, the motel registration of defendant near the airport where the abandoned pickup was found, the flight tickets, and the testimony of the pathologist that there were hemorrhages in the back and both sides of the neck, which the jury could consider in weighing the evidence of strangulation. In our opinion, there is ample corroboration.

b. That there was insufficient proof as a matter of law of the corpus delecti.

SDCL 22-16-2 states: "No person can be convicted of murder . . . unless the death of the person alleged to have been killed, and the fact of the killing by the accused are each established as independent facts beyond a reasonable doubt."

The corpus delecti in a murder case consists of (1) the fact that a human being is dead, and (2) the fact that the death was caused by the criminal act or agency of another person. 40 Am.Jur.2d Homicide § 432 (1968).

The fact of Gill's death is undisputed. The eyewitness, Perdue, presents a picture of death by criminal act. The pathologist's testimony of hemorrhages and bruises about the neck substantiate Perdue's testimony that defendant had grasped Gill around the throat until he quit moving. Accordingly, there is sufficient proof of the corpus delicti.

c. That there was insufficient evidence as a matter of law as to the element of premeditation.

The jury was properly instructed on premeditation and found by its verdict that it existed. We review the evidence to determine its sufficiency in a light most favorable to the verdict. State v. Marshall, 264 N.W.2d 911 (S.D.1978).

In determining the sufficiency of evidence to establish a premeditated design to effect death in murder cases, the courts generally consider the following factors of...