State v. Jenner

• Decision Date: 26 March 1990
• Docket Number: 16240,Nos. 16211,s. 16211
• Citation: 451 N.W.2d 710
• Parties: STATE of South Dakota, Plaintiff and Appellee/Cross-Appellant, v. Debra Sue JENNER, Defendant and Appellant/Cross-Appellee.
• Court: South Dakota Supreme Court

Page 710

451 N.W.2d 710

STATE of South Dakota, Plaintiff and Appellee/Cross-Appellant, v. Debra Sue JENNER, Defendant and Appellant/Cross-Appellee.

Nos. 16211, 16240.

Supreme Court of South Dakota.

Argued March 20, 1989.

Decided Feb. 14, 1990.

Rehearing Denied March 26, 1990.

David R. Gienapp of Arneson, Issenhuth & Gienapp, Madison, for defendant and appellant/cross-appellee, William E. Matheson, Sioux Falls, on the brief.

John W. Bastian, Asst. Atty. Gen., Pierre, for plaintiff and appellee/cross-appellant, Roger A. Tellinghuisen, Atty. Gen., on the brief.

HENDERSON, Justice (on reassignment).

PROCEDURAL HISTORY/ISSUES

This criminal case arose after the body of a three and a half year old girl, Abby Jenner (Abby) was discovered mutilated and stabbed to death in her bed on April 5, 1987. Evidence indicates she tried to ward off her attacker. The Beadle County Grand Jury issued an indictment charging Abby's mother, Debra Sue Jenner (Debra), with one count of second degree murder (SDCL 22-16-7) and one count of first degree manslaughter (SDCL 22-16-15(3)). After a trial in the Circuit Court for Beadle County, the jury found Debra guilty of second degree murder. She was sentenced to life imprisonment. Debra appeals her conviction (Notice of Appeal 16211) denoting eight separate issues which we observe are allegations that the trial court erred in essentially four regards:

I. Debra's motion to suppress her statements made during police questioning, on April 7, 1987, should have been granted;

II. The jury was not correctly instructed regarding unconsciousness, amnesia, and insanity;

III. A state-requested motion in limine regarding third party perpetrator evidence was improperly granted; and,

IV. Evidence was insufficient to support her conviction.

--Holding--

We affirm Appellant's conviction, rejecting her arguments. We do not reach the issues raised by the State's notice of review (16240), wherein the State urges that second degree murder and first degree manslaughter are not alternative counts, as the trial court instructed the jury. We therefore uphold the jury's verdict.

FACTS

Appellant is the wife of Lynn Jenner, (Lynn) and the mother of a daughter, Abby, born November 10, 1983, and a son, Stuart, born July 27, 1982. Abby had an allergy to milk products, and had difficulty sleeping at times. During the evening of April 3, 1987, Abby awoke in the night, requiring the attention of her parents. During a trip on April 4, 1987, she soiled her pants twice. Shortly before 9:00 a.m. on Sunday, April 5, 1987, Lynn entered Abby's bedroom to awaken her. He found her in bed, lying totally still, with her mouth full of blood. He screamed, whereupon Debra came over from the master bedroom, approximately twenty feet away. Debra sat on the edge of Abby's bed and touched her. Abby's body was cold, her eyes dilated. Debra telephoned "911" at 8:59 a.m., gave her address, then relating that a three year old girl was there, with blood and "organs" coming out of her mouth. Debra's tone of voice, during this conversation, was very loud. An ambulance was dispatched.

Before the ambulance arrived, at 9:05 a.m., Debra made an additional telephone call to Doctor Cynthia Kortum, M.D., her family doctor, during which her tone of voice was quite calm. She informed Dr. Kortum, matter of factly, that Abby had died during the night and requested an autopsy. Debra, in the six minutes between her 911 call and the ambulance's arrival, also telephoned her parents, Bruce Schafer and Janet Schafer, and her pastor, Darrel Wagner. At the time the ambulance arrived, she was engaged in still another call, to her friends, the Brink family. The ambulance, her parents, and officer William Ehlers, of the Huron Police Department, arrived at the Jenner home within moments of each other. An emergency medical technician entered the Jenner home, found no signs of life in Abby, and carried her, still enwrapped in bloodstained bedding, out to the ambulance. The ambulance then proceeded to the Huron Regional Medical Center.

The ambulance crew noticed numerous cuts on Abby's body. Later examination revealed that seventy stab wounds were inflicted on Abby. Dr. Brad Randall, the forensic pathologist who performed Abby's autopsy, testified at trial that some wounds were of a slashing type, consistent with a blade sharpened on one edge and dull on the other. Other wounds were punctures, which could have been made by a model airplane owned by Stuart which was found next to the sink in the Jenners' kitchen. In particular, the geometry of one wound was described by Dr. Randall as "relatively unique", matching the model plane, as markings around the wound corresponded to a protrusion on the back of the plane and its rear fins. Dr. Randall characterized numerous cuts on Abby's arms and hands as "defensive" in nature, i.e., inflicted as Abby, who laid on her stomach, attempted to fend off the blows. He termed the attack a "frenzy type", evidenced by repeated blows with no particular target. He estimated that Abby died during the early morning hours of April 5, 1987.

No members of the Jenner family accompanied Abby to the hospital. At 9:17 a.m., six minutes after delivering Abby to the hospital, the ambulance driver, Mike Ball, returned to the Jenner home to retrieve equipment. Ball testified that appellant was talking on the telephone normally, in an utterly calm manner. Debra and Lynn went to the hospital only after Janis LaMont, a registered nurse, called them at home requesting information. Once at the hospital, according to LaMont, Debra appeared restless, and paced in the hallway. Lynn stayed in the waiting room, head in hands. Shirley Jenner, Debra's mother-in-law, remarked that she wished Debra would cry. David Bender, a hospital maintenance worker, spoke to Shirley, who was, herself, a hospital worker, for about 20 minutes. At one point, Shirley Jenner left him to converse with Debra. He testified that he heard Debra remark that it was a "screwed-up day", and asked "why couldn't this have been a simple death?" He also heard Debra remark, "I don't know how the hell it happened", in reference to the cuts, wounds and scratches upon Abby's lifeless body. At one point, Debra asked Shirley who Bender was. When Shirley identified him as a hospital maintenance worker, Debra responded: "Oh shit."

While at the hospital, Beadle County Sheriff Tom Beerman (Beerman) spoke to Debra and Lynn. According to Beerman's testimony at trial, he asked Debra if Abby had been sick, and Debra replied that Abby had been "hyper" for a couple of days, that she had stayed up with Abby on Friday night (April 3, 1987), and that Abby had soiled her pants a couple of times on Saturday afternoon. Debra also related that she checked on Abby at midnight Saturday night, when Abby was asleep, and did not see her again until after Lynn found her the next morning. Debra and Lynn, Beerman was told, then went to bed, only to be disturbed by noise from a party next door. They arose, looked out a window, and watched three intoxicated individuals enter a car and drive away. Per Debra, they then returned to bed and slept until the next morning. Lynn, who discovered Abby's body, informed Beerman that he went into Abby's room to waken her for church, noticed something wrong, turned her over onto her back, and saw blood. He looked in Abby's eyes and knew that she was dead.

Meanwhile, when the Jenners, mother and father of the victim, were at the hospital, Deputy Chief Robert McQuillen (McQuillen) and Sergeant William Ehlers (Ehlers) of the Huron Police Department went to their home. There they found Lynn's father, Merlin Jenner, and Ruby Wagner, wife of the Jenners' pastor. Examining Abby's bedroom, they immediately noticed that her bedding had been replaced. After Mrs. Wagner told him she had already cleaned the room, as she did not want the Jenners to come home and see the mess, McQuillen told those present to leave the room and house alone. McQuillen and Ehlers briefly went to the hospital, and then returned to the Jenner home. They noticed that the bedding in Abby's room had been changed again. McQuillen told everyone to leave. The bedding, not taken to the hospital with Abby, was recovered that morning from defendant's father, Merlin Jenner, who had placed it in his car.

Huron police detective Dave Rand, Dr. Ilya Zeldes, a forensic scientist, and Rex Riis, a criminologist from the State Forensic Laboratory in Pierre, examined the Jenner home later that day. They found no evidence of forced entry. Bloodstains were discovered on the headboard of Abby's bed, on the wall behind the bed, on the bathroom floor, on a wall-mounted light switch in Abby's room and on a telephone near the kitchen. Abby's blood was therefore found in different parts of the Jenner home. Abby's mattress was turned over before they arrived, with the bloody side facing down. A knife which was consistent with some of Abby's slashing wounds was in a silverware tray atop a microwave oven near the kitchen sink. These officers removed clothing, similar to clothes Debra claimed to have worn to bed on the night Abby was slain, from a hamper next to a washing machine in the basement. No identifiable fingerprints were found.

Debra and Lynn went to Merlin's house after they left the hospital that day. While there, Mary Brink, a family friend, noticed that Debra washed her hands several times that morning. When asked what the problem was, appellant responded: "I can't get the smell off of my hands." Debra and Lynn eventually left Merlin's for Debra's parent's home, where Beerman reached them by telephone, sometime after 5:00 p.m. Beerman asked them to come down to his office to be interviewed by Jerry Lindberg (Lindberg), a Division of Criminal Investigation (DCI) agent.

Debra was interviewed by Lindberg for approximately an hour and a half, starting at 8:30 p.m. During this interview, she repeated much of the factual...