State v. Jenner

• Decision Date: 28 December 1988
• Docket Number: No. 15780,15780
• Citation: 434 N.W.2d 76
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Michael JENNER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 76

434 N.W.2d 76

STATE of South Dakota, Plaintiff and Appellee, v. Michael JENNER, Defendant and Appellant.

No. 15780.

Supreme Court of South Dakota.

Argued Sept. 1, 1988.

Decided Dec. 28, 1988.

Craig M. Eichstadt, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on brief.

Christopher Baumann, Spearfish, for defendant and appellant.

WUEST, Chief Justice.

Defendant, Michael Jenner, appeals his conviction of murder in the first degree, conspiracy to commit murder in the first degree, and accessory after the fact to murder. We affirm.

On the afternoon of August 6, 1986, the body of Jackie Sjong (Sjong) was discovered under a bridge near the KOA campground north of Spearfish, South Dakota. An autopsy revealed that Sjong had been shot twice above the right ear and twice in the chest. Powder burns indicated that the wounds to Sjong's head had been inflicted from an estimated distance of one foot. The chest wounds appeared to have been caused by shots fired from approximately two to three feet away. Either set of wounds would have been independently fatal.

Two bullets, one found at the scene and the other recovered from Sjong's body, indicated that the shots fired into Sjong's head came from a .38 caliber weapon. This weapon was never recovered. Two .45 caliber shell casings were also discovered near Sjong's body, but no .45 caliber bullets were found. The diameter of these casings, however, corresponded to that of Sjong's chest wounds. Subsequent ballistics tests determined that these casings had been fired from a weapon in defendant's possession.

The record indicates that Sjong's death apparently stemmed from his association with members of the Vagos, an outlaw motorcycle club of which defendant was a chapter president. ¹ Sjong was a prospective member of the club.

In late December, 1984, Sjong and another Vagos member, Ricky Fenstermaker (Fenstermaker) were driving down a California highway when a hitchhiker "gave them the finger." Fenstermaker immediately confronted the hitchhiker and fatally stabbed him. Sjong witnessed these acts and subsequently informed the police of Fenstermaker's involvement in the slaying. A warrant was issued for Fenstermaker's arrest, but he managed to elude the police for over one and one-half years until his arrest on July 22, 1986. ²

While he was a fugitive, Fenstermaker attended the funeral of a fellow Vago in the summer of 1985. Other Vagos members knew he was "on the run" and it was at this funeral that one of them, J. Richard Elliott (Elliott), asked him if there was anything that could be done to "take care of the witnesses." To this inquiry, Fenstermaker replied, "I don't think so."

Prior to Fenstermaker's arrest, he also spoke to defendant and Leonard Barella (Barella), the international president of the Vagos, about the hitchhiker's death and Sjong's involvement in the killing. After Fenstermaker was arrested, he telephoned Barella and told him that he wanted Sjong "picked up." Barella informed Fenstermaker that they already had "custody" of Sjong and that he should contact defendant. Fenstermaker then telephoned defendant and inquired about what was being done with Sjong. Defendant replied, "Don't worry about it. I'll take care of it," and instructed Fenstermaker not to contact any other club members until they had first contacted him.

Shortly after Fenstermaker's arrest, the Vagos travelled to South Dakota for the annual Black Hills Motorcycle Rally. Defendant, Sjong and four other members of the Vagos from California stopped in Wyoming where they met other club members from Arizona, Texas and Wyoming. Among the members travelling from Texas was Elliott. On August 5, 1986, thirteen Vagos, including defendant, Elliott and Sjong, proceeded from Wyoming to the KOA campground north of Spearfish. They arrived sometime during the late evening of that same day.

In the early morning hours of August 6, 1986, defendant, Elliott and Sjong left the campground in defendant's van. Elliott drove the van approximately one thousand feet and stopped. Defendant and Sjong then got out of the van and walked down an embankment to talk. After ten to twenty minutes, Elliott heard two shots. He then went down the embankment to look for defendant and Sjong. Elliott took with him a .38 caliber revolver he brought from Texas. He found Sjong's body under a bridge. Defendant came up behind Elliott and instructed him to also shoot Sjong. It was a Vago policy to involve another person in the commission of a crime to prevent that person from informing the authorities. Either defendant or Elliott then fired two more shots into Sjong's head. ³

When defendant and Elliott returned to the campground, they were questioned as to Sjong's whereabouts by another Vagos member, Bill Cross (Cross). Defendant informed Cross that Sjong had stolen a motorcycle and was returning to California.

Later that day, the Vagos prepared to go into Sturgis. Most of the members carried weapons with them in the event an altercation arose with another motorcycle club. Before they left, Elliott asked Cross to retrieve his gun from a trash dumpster. Cross, however, was unable to find Elliott's gun. ⁴ He later overheard Elliott tell Barella that the "throw away piece" had been abandoned. ⁵

A Lawrence County Deputy Sheriff visited the Vagos camp the day after Sjong's body had been discovered. He inquired of defendant whether anyone was missing from the group. Defendant stated that no one was missing. The deputy sheriff then showed defendant drawings representing tattoos found on Sjong's body and asked him if he recognized them. Defendant again gave a negative response.

After the deputy sheriff left, the Vagos broke camp and departed for Casper, Wyoming. Defendant stopped en route to make several telephone calls. During one of these telephone conversations, Cross overheard defendant state, "The witness has been taken care of and we have a few loose ends to tie up." Because Elliott and another Vagos member confronted Cross and questioned his loyalty to the Vagos and individual members on the previous evening, he feared that he was a "loose end." ⁶ Cross reported Sjong's disappearance to the police when the Vagos reached Casper. Defendant and Elliott were arrested shortly thereafter.

On October 10, 1986, defendant and Elliott were indicted for murder in the first degree and conspiracy to commit murder in the first degree. Defendant was individually indicted for being an accessory after the fact to murder. Prior to trial, defendant filed a motion to sever his case from Elliott's. Defendant asserted that his and Elliott's defenses were antagonistic. The trial court denied the motion.

Trial commenced on March 30, 1987, during which defendant renewed his motion for severance. The motion was denied. At trial, both defendant and Elliott denied shooting Sjong and each implicated the other. The jury, however, convicted both of the crimes charged against them. Defendant was sentenced to life imprisonment without parole in the South Dakota State Penitentiary on the first degree murder and conspiracy to commit first degree murder convictions, and five years in the South Dakota State Penitentiary on the conviction of accessory to murder.

Defendant now appeals his conviction, asserting through counsel and pro se several claims. In his pro se brief, defendant contends that (1) the trial court erred in allowing hearsay declarations of co-conspirators; (2) the trial court erred in its instructions to the jury; (3) the trial court abused its discretion in instituting trial security measures, allowing the introduction of Fenstermaker's guilty plea without objection, allowing introduction of a .38 caliber pistol, permitting what defendant has termed "prosecutorial misstatements," allowing the prosecutor's "badgering" or questioning of Elliott, and allowing evidence of defendant's phone call from Wyoming; (4) the state's attorney was guilty of prosecutorial misconduct with regard to Fenstermaker's testimony; and (5) the conspiracy charge was defective. We hold that these assertions lack merit and affirm them on the basis of settled law, no abuse of discretion, and clearly sufficient evidence to support the determinations of the trial court. We separately address defendant's contentions raised by counsel that (1) the trial court abused its discretion in denying motions for a separate trial; (2) defendant was entitled to entry of a judgment of acquittal due to insufficiency of the evidence; and (3) the trial court abused its discretion in admitting certain evidence against defendant.

We first address defendant's contention that the trial court abused its discretion in refusing to sever the trial. Defendant contends he was prejudiced at trial because of Elliott's interest in inculpating him for the slaying of Sjong. Defendant claims he was asleep at the time of Sjong's death and when he awoke, Elliott and another Vagos member were driving into the campground with his van and Sjong was missing. Elliott testified that although he was present at the scene of Sjong's death, he did not shoot Sjong. Elliott, however, refused to name at trial the person who ordered him to shoot Sjong and then allegedly shot Sjong twice in the head when he was unwilling to comply. ⁷ Only after the prosecution had elicited testimony from Elliott eliminating the other Vagos members was the jury able to ascertain that it was defendant who accompanied Sjong down the embankment.

The well-settled rule in South Dakota is that persons indicted jointly for the commission of an offense should be tried together. State v. Andrews, 393 N.W.2d 76, 78 (S.D.1986). As Justice Henderson recently stated for this court in State v. Jaques, 428 N.W.2d 260, 267 (S.D.1988), the granting of severance "is not a matter of right, but rests in the discretion of the trial court, to be exercised in the interests of justice." See also ...