State v. Garza

• Decision Date: 14 May 1997
• Docket Number: No. 19332,19332
• Citation: 563 N.W.2d 406,1997 SD 54
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Jose Angel GARZA, aka Mario Santiago, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 406

563 N.W.2d 406

1997 SD 54

STATE of South Dakota, Plaintiff and Appellee, v. Jose Angel GARZA, aka Mario Santiago, Defendant and Appellant.

No. 19332.

Supreme Court of South Dakota.

Argued Oct. 22, 1996.

Decided May 14, 1997.

Mark Barnett, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, for Plaintiff and Appellee.

Rhonda C. Lockwood, Minnehaha County Public Defender, Sioux Falls, for Defendant and Appellant.

AMUNDSON, Justice.

¶1 Jose Garza (Garza) appeals convictions of murder in the first degree (felony murder) and arson in the first degree. He claims error by the trial court in not disqualifying certain jurors, denying his motion for change of venue, disallowing third-party perpetrator evidence, and denying his motion to suppress the photographic identification lineup. We affirm.

FACTUAL BACKGROUND

¶2 At approximately 9:00 a.m. on the morning of February 24, 1995, Jose Sanchez (Sanchez) hosted a party at his apartment located at 231 South Spring in Sioux Falls, South Dakota. Throughout the morning and early afternoon hours, a large amount of alcohol was consumed by the occupants and guests. Garza arrived at Sanchez' apartment around 4:00 p.m. and found the majority of the participants intoxicated. Garza consumed alcohol with the other guests after his arrival.

¶3 Later, Ansellmo Montinegro (Montinegro) and Garza had an altercation. After Montinegro broke the strings of a guitar, Garza grabbed it and broke it further. Another participant at the party attempted to stop Garza and a further altercation ensued. Next, the evidence showed that Garza went to the stove, turned on the gas, lit all four burners, and threatened he could burn down the house. Also, Garza was observed putting his lighter up to the fuse box in the apartment, but the fuse box door was closed by another person at the party to deter this act.

¶4 At approximately 9:30 p.m., Garza left the party. Garza was later identified as having purchased forty-five cents worth of gasoline at a nearby 7-11 store at 11:00 p.m. Within twenty minutes of his purchase, the apartment building at 231 South Spring was on fire. All of the occupants escaped the burning building, except for John Doe, who died of carboxyhemoglobin poisoning. ¹

¶5 Thereafter, charges were filed against Garza. After a jury trial, Garza was convicted of murder in the first degree and arson in the first degree. He was then sentenced to life imprisonment on each count, to be concurrently served. He appeals, raising the following issues:

I. Did the trial court abuse its discretion when it denied Garza's challenge to excuse certain jurors for cause or for additional peremptory challenges?

II. Did the trial court abuse its discretion when it denied Garza's motion for a change of venue?

III. Did the trial court err when it denied the presentation of third-party perpetrator evidence?

IV. Did the trial court abuse its discretion when it found the photographic identification lineup procedure was not impermissibly suggestive?

DECISION

¶6 I. Excusing Jurors for Cause and Peremptory Challenges.

¶7 Garza asserts the trial court erred by denying his challenges for cause as to six potential jurors and two jurors who actually sat on the jury. He maintains the trial court erroneously denied the challenges for cause after each of the eight individuals merely "recite[d] the mantra that they could follow the judge's instructions." Despite these statements, Garza claims there was evidence of verbal as well as written bias by each of these potential jurors. Further, he claims he was prejudiced because the denial of his challenges for cause forced him to exhaust all twenty peremptory challenges which would have been used on other jurors. (A subsequent request for additional peremptory challenges was denied.)

¶8 The trial court has broad discretion in determining juror qualification. State v. Hansen, 407 N.W.2d 217, 220 (S.D.1987). Actual, material prejudice resulting from the trial court's refusal to excuse a juror for cause must be shown for a reversal. State v. Blue Thunder, 466 N.W.2d 613, 620 (S.D.1991).

¶9 Although seven of these jurors heard information regarding this case from the news media, the record reflects they were able to " 'set aside preconceptions and render an impartial verdict.' " Hansen, 407 N.W.2d at 220 (quoting State v. Muetze, 368 N.W.2d 575, 585 (S.D.1985)). Potential juror Pederson initially stated that she would not be a fair juror due to the knowledge she had of this case via the media. After an explanation was given to Pederson regarding the possibility of inaccurate reports from the media, Pederson stated that she would be able to decide the case based on the evidence presented and make a fair decision.

¶10 Potential juror Whiting simply heard information of the case on the news. After further inquiry, he stated that he could hear the evidence without thinking of the information he acquired. Similarly, juror Blocher mentioned that he heard a report on the news regarding this case. He too stated that the report would not affect his view of the evidence presented at trial. Potential juror Manke also heard information regarding the case on the news, but she stated that she could listen to both sides because "you can't always believe everything you see and read."

¶11 Garza contends that because potential juror Yesda's response on a questionnaire included the conclusion that Garza was guilty, he should have been excused for cause. During voir dire, however, Yesda stated that he could put everything he heard from the media aside and decide the case only on the evidence presented in court. Juror Graff also mentioned that she heard information about the case on the radio, but had not come to any conclusions. She further stated that the news report would not affect her view of the evidence presented.

¶12 Potential juror Hanson noted that she heard a report on the news concerning a case in which the defendant pled guilty and then wished to change his plea. With that information in mind, she stated during voir dire that if Garza pled guilty he probably was guilty. After further discussion, however, Hanson said the guilty plea would not enter into her mind or affect her judgment as she heard the evidence in this case.

¶13 Garza asserts that because potential juror Anderson admitted his "problems with 'illegals,' " he would not be fair and impartial. However, Anderson testified that he could decide the case based on the evidence presented at trial, and his feelings would not impede his ability to find Garza not guilty.

¶14 The United States and South Dakota Constitutions guarantee trial by an impartial jury. U.S. Const.Amend. VI; S.D.Const. Art. VI, § 7; SDCL 23A-16-3; State v. Etzkorn, 1996 SD 99, p 8, 552 N.W.2d 824, 828; Hansen, 407 N.W.2d at 220; Muetze, 368 N.W.2d at 585; State v. Volk, 331 N.W.2d 67, 70 (S.D.1983). However, there is no specific test to be applied when determining a juror's impartiality. Etzkorn, 1996 SD 99, at p 8, 552 N.W.2d at 828; Hansen, 407 N.W.2d at 220. The established guidance is that "[a] potential juror should be excused for cause if that juror is unable to 'set aside preconceptions and render an impartial verdict.' " Id. (quoting Muetze, 368 N.W.2d at 585); see also 2 W. LaFave & J. Israel, Criminal Procedure, § 21.3(c) (1984). Furthermore, to determine whether a juror should be disqualified, the voir dire examination must be judged in its entirety. Etzkorn, 1996 SD 99, at p 9, 552 N.W.2d at 828; State v. Flack, 77 S.D. 176, 180, 89 N.W.2d 30, 32 (1958). This court has repeatedly stated that "[s]ingle isolated responses are not determinative." Id.

¶15 The answers of each person disclose they would be able to "set aside preconceptions and render an impartial verdict." Hansen, 407 N.W.2d at 220. Furthermore, only two of the questionable jurors, Blocher and Graff, actually sat on the jury and rendered a guilty verdict. Arguing prejudice existed, Garza cites Flack, 77 S.D. at 180, 89 N.W.2d at 32, stating that prejudice is presumed when a disqualified juror remains as a juror after a challenge for cause is denied. In Flack, however, the denial of a challenge for cause was affirmed because "[n]one of the jurors appeared to have a fixed and unqualified opinion about the case; none had talked to anyone who purported to know what the facts of the case were; and none expressed any bias or prejudice against the defendant personally." Id. Similarly, neither Blocher nor Graff had set opinions about this case due to the media. They simply acquired general information and stated that they could hear the evidence in this case without being affected by outside information. Therefore, there was no prejudice.

¶16 Furthermore, Garza failed to demonstrate that any of these eight jurors did not understand all three of the following: "(1) State had to prove guilt beyond a reasonable doubt; (2) a defendant is presumed innocent until proven guilty; and (3) a determination of guilt must be based only upon evidence and testimony introduced during trial." Hansen, 407 N.W.2d at 220. Applying these factors in Etzkorn, we held that two of the potential jurors should have been disqualified because the voir dire evinced their inability to set aside guilt preconceptions. 1996 SD 99, at p 13, 552 N.W.2d at 828-29. However, the testimony in Etzkorn is clearly distinguishable from the voir dire testimony involved in this case. Here, not one of the jurors ever stated they could not presume Garza's innocence; whereas, in Etzkorn, a review of the record indicated that a potential juror stated twice she could not presume innocence. Id. at pp 10-11, 552 N.W.2d at 828. We hold there was no abuse of discretion by the trial court when it refused to excuse these jurors for cause. Garza has not shown any prejudice in this case.

¶17 II. Change of Venue.

¶18 On the first day of the trial, Garza made a motion for change of venue, contending he...