State v. Jensen

• Decision Date: 27 May 1998
• Docket Number: Nos. 19923,19926,s. 19923
• Citation: 579 N.W.2d 613,1998 SD 52
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Paul Dean JENSEN, Defendant and Appellant. People in the Interest of P.D.J., Jr., An Alleged Juvenile Delinquent.
• Court: South Dakota Supreme Court

Page 613

579 N.W.2d 613

1998 SD 52

STATE of South Dakota, Plaintiff and Appellee, v. Paul Dean JENSEN, Defendant and Appellant People in the Interest of P.D.J., Jr., An Alleged Juvenile Delinquent.

Nos. 19923, 19926.

Supreme Court of South Dakota.

Argued Oct. 23, 1997.

Decided May 27, 1998.

Mark Barnett, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, for plaintiff and appellee.

Timothy M. Engel and Robert K. Sahr of May, Adam, Gerdes & Thompson, Pierre, for defendant and appellant.

AMUNDSON, Justice.

¶1 After being transferred to adult court, fourteen-year-old Paul Dean Jensen, Jr., was convicted of murder for the death of Michael Hare, a Pierre, South Dakota, taxi cab driver. Jensen appeals. We affirm.

FACTS

¶2 The evidence presented in the transfer hearing and at trial disclosed the following sequence of events. Prior to the night of the murder, Jensen had already established a troubling history of unacceptable behavior. Though only fourteen, his experience in criminal activity already included shoplifting, vandalism, burglary, arson, stalking, and more. His record at school included excessive tardiness and absences, verbal abuse of staff and students, physical abuse of students, intimidation of students and school staff, destruction of school property, and failure to perform required academic activities.

¶3 The facts leading up to and around the time of the murder are relatively clear. On January 14, 1996, at about midnight, the Pierre taxicab dispatcher received a call requesting a ride from Buhl's Laundry. When the cabdriver arrived, she was met by Jensen and his friend, sixteen-year-old Shawn Springer. Jensen entered the passenger door and slid all the way across to a position directly behind the cabdriver while Springer sat in the front seat. At the request of the passengers, the driver took them to the Steamboat Apartments--a distance of two blocks. Once there, Springer exited the cab and entered the apartments, leaving Jensen in the cab sitting directly behind the driver. Because Jensen's seating location was making the cabdriver uncomfortable, the cabdriver turned around to make conversation with Jensen. However, he was uncommunicative. When Springer returned, he told the cabdriver to take them to a restaurant called the Happy Chef--a distance of two blocks. On the way, Springer asked if anyone had ever stolen or tried to steal the cab money bag. The cabdriver responded that if anyone did try to steal it, they could have it, as it only contained thirty dollars. Finally, the boys exited the cab at the Happy Chef, ending their ride about a block from where they met the cab in the first place. This sequence of events was later pointed to by the prosecution as a kind of "dry run" before the actual robbery and murder that would take place twelve days later.

¶4 On January 21, 1996, at around 2 p.m., Jensen, his older sister, and Springer entered a friend's apartment with the intention of stealing money which they thought might be there. Jensen and his sister had been in the apartment before and knew from their prior invitations that the door would be unlocked. Once inside the unlocked apartment, the group stole seventy to eighty dollars, a necklace, a handgun and a shotgun. The handgun turned out to be the weapon that would be used to kill the taxicab driver five days later.

¶5 On January 26, 1996, at approximately 7 p.m., Springer called a friend of Jensen's sister to get permission to come over with his dog, which the friend consented to allow. Right after this conversation, Jensen came on the phone and secured permission from the friend to borrow a bandanna or handkerchief. Jensen and Springer then departed for the friend's house, arriving between 7:30 and 8:30 p.m.

¶6 Once there, Jensen went to a back bedroom to get a compact disc. Because it took so long and because recently money had been missing from the house, the friend went to the back bedroom to check on Jensen. The friend then discovered that Jensen was carrying a gun in his pocket. This was the same gun that Jensen had stolen five days earlier.

¶7 Eventually, Jensen showed the gun to the friend along with two or three ammunition clips. The friend then suggested that Jensen leave the gun in the house for safekeeping and Jensen returned to the bedroom, ostensibly to do so.

¶8 After a while, the friend, Springer, and Jensen went to a truck stop, approximately three blocks away, to get some things. Although it was bitterly cold, none of the three wore anything over their faces, including Jensen, who had previously asked to borrow the bandanna.

¶9 Later, back at the house, at approximately 10:45 to 11 p.m., Jensen and Springer prepared to leave. Jensen then prompted the friend to lend him the bandanna that he had asked for earlier on the phone and the friend complied. When they left, both Jensen and Springer were wearing bandannas over their faces. After Jensen and Springer had gone, the friend checked the back bedroom for the handgun, but there was no sign of it.

¶10 At approximately 10:50 to 11 p.m., the Pierre taxi dispatcher received a call from Springer requesting a ride from the "north back door" of the Days Inn. When told that the taxi would wait at the Days Inn office, Springer insisted on being picked up "in the back." The dispatcher refused, saying the cab would arrive at the office door. The dispatcher then asked how many passengers and Springer said two. The dispatcher then asked where they were going, but was interrupted by a barking dog. After being asked by the dispatcher again, Springer said, "Paul, where are we going?" Jensen replied, "I don't know. Fort Pierre, I guess. I don't know."

¶11 When the cabdriver, Michael Hare, arrived at the Days Inn, there were no passengers in sight. A little later, Hare noticed Springer and Jensen coming from the back of the Days Inn. They entered the cab and directed Hare to take them to Fort Pierre.

¶12 Eventually, Springer and Jensen had directed Hare to take them down a gravel road near Fort Pierre where the cab stopped. At this same time, the dispatcher was trying to call Hare's cellular phone. Hare did not directly respond to her call, but the dispatcher could hear over the cell phone Hare say, "That's all I have is thirty bucks. Take it. Take it all." The dispatcher then heard Springer say, "That ain't all you got." Then, Jensen and Springer could be heard to demand "everything." Hare replied, "That's all I have. They only give us thirty bucks. You can have it. Take it, take it all."

¶13 Jensen got out of the cab with his gun drawn and ordered Hare to exit the vehicle. Shortly thereafter, Jensen shot Hare in the chest with the handgun Jensen had previously stolen. Hare fell down and yelled, "Please God, don't kill me." Then, Jensen approached Hare and shot him once more on each side of the head, killing him.

¶14 Jensen then grabbed Hare's billfold and other items, which had been set on the cab's hood, and jumped into the cab's passenger seat. Springer had already sat down in the driver's seat and he proceeded to drive the car farther down the road as soon as Jensen had entered it. Soon after this, they turned around and were headed back to the main road when they met a police car. The officer had been alerted to the robbery by the dispatcher and, on meeting the cab, turned around and gave chase. Springer drove the cab too fast for the wintry conditions and missed the turn onto the main road. The cab came to rest in a snowbank and Springer's efforts at spinning the wheels to get the cab to move were fruitless.

¶15 Officers were on the scene within seconds. Jensen and Springer departed the cab as the officers approached. When asked questions by the officers at the scene, Jensen was less than truthful in his responses. He denied that there was a gun, but the gun was found in the snow next to the passenger door of the cab. When asked where the taxicab driver was, Jensen said they had dropped him off in town. When searched, Jensen had $36.48 in his pocket.

¶16 Later, Jensen was transferred to the Juvenile Corrections Center in Rapid City. While there, Jensen bragged to the other juveniles in his holding area that he had killed a taxi driver by shooting him three times, and that the robbery and killing were planned. Jensen related the story of his cold-blooded execution-style murder in a calm and unfeeling manner, as described in the testimony of one of the other juveniles at the center.

¶17 On January 29, 1996, a motion was filed to transfer Jensen, who was only fourteen at the time he shot Michael Hare, to adult court. After a week-long hearing, the motion was granted. Following a jury trial held from September 23 through October 4, 1996, he was found guilty of first-degree murder, among other charges, and sentenced to life in prison.

¶18 Jensen appeals, raising the following issues:

1. Whether the transfer to adult court was an abuse of discretion.

2. Whether his due process rights were violated by denying him

the opportunity to present evidence at sentencing.

3. Whether life imprisonment without the possibility of parole

constitutes cruel and unusual punishment because of his age, background and likelihood of rehabilitation in the juvenile system.

4. Whether the defendant was improperly charged with and convicted of multiple counts of homicide.

5. Whether the prosecution improperly stated its personal opinions and vouched for the veracity of its witnesses.

DECISION

¶19 1. Transfer to Adult Criminal Court

¶20 Jensen claims the court erred in transferring the proceedings to adult criminal court. While it is well established that "a transfer hearing is a 'critically important' action determining vitally important statutory rights of the juvenile," it is also true that "it is within the discretion of the trial court to determine whether to transfer juvenile proceedings to adult court." In re A.D.R, 499 N.W.2d 906, 907 (S.D.1993) (...