State v. Kaiser

• Decision Date: 28 July 1993
• Docket Number: No. 17894,17894
• Citation: 504 N.W.2d 96
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Michael KAISER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 96

504 N.W.2d 96

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

No. 17894.

Supreme Court of South Dakota.

Argued March 16, 1993.

Decided July 28, 1993.

Mark Barnett, Atty. Gen., Scott Bogue, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Leon J. Vander Linden and Kent Delaney of Delaney, Vander Linden & Delaney, Webster, for defendant and appellant.

AMUNDSON, Justice.

Michael Kaiser appeals from his conviction of two counts of conspiracy to commit murder. We reverse and remand.

FACTS

On July 1, 1991, Roger Rohde (Rohde) disclosed to Day County Deputy Sheriff Tim Kwasniewski (Kwasniewski) that he had been part of a plan with Mike Kaiser (Kaiser) to kill Kaiser's ex-wife, Mary Wertman (Wertman), and her boyfriend, Bob Elijah (Elijah). Rohde informed Kwasniewski that he no longer intended to follow through with the plan and revealed items provided to him by Kaiser with which he was to murder Wertman and Elijah and escape undiscovered. Rohde and DCI agent Robert Grandpre (Grandpre) later placed two recorded telephone calls to Kaiser in an attempt to confirm Rohde's allegations.

On July 3, 1991, Kwasniewski and Grandpre approached Kaiser in a parking lot in Webster, South Dakota, and told him they had "bad news for him." They then asked Kaiser to ride to the Day County Sheriff's Office with them because "we don't know who is safe and who is not safe." Grandpre and Kwasniewski both testified that they made no statements at that time about Wertman being dead. However, while riding to the sheriff's office, Kaiser turned to his daughter and said, "I think mom's dead."

Once at the station, Kwasniewski and Grandpre did misrepresent to Kaiser that his ex-wife had been murdered. Kaiser was administered his Miranda rights and questioned. Kaiser admitted to no involvement in a plan to kill his ex-wife and asked for an attorney. Kaiser was subsequently arrested and his home searched subject to a search warrant. He was charged by indictment with two counts of conspiracy to commit murder, entered a plea of not guilty, and proceeded to jury trial.

The first trial on October 28, 1991, ended with the court declaring a mistrial due to the fact there was a hung jury. The second trial commenced on January 21, 1992. The jury began deliberations on the morning of February 7, 1992. Twice on the first day of deliberations, the jury sent notes to the judge indicating they were unable to reach a unanimous decision. The judge answered these questions by directing their attentions to specific jury instructions addressing their deliberations. After spending the night at a local motel, the jury resumed deliberations the next day and again twice indicated to the judge their difficulty reaching a unanimous decision. After the judge again directed the jury's attention to the jury instructions, the jury returned a verdict of guilty on two counts of conspiracy to commit first-degree murder. Kaiser was subsequently sentenced to life imprisonment without parole. Other facts will be referred to hereinafter where applicable. Kaiser appeals his conviction and sentence.

ISSUES

1) Whether the trial court erred by denying defendant's motion to suppress all oral statements made to authorities prior to his arrest?

2) Whether the trial court erred in admitting evidence seized pursuant to a search warrant?

3) Whether the trial court erred in denying defendant's motion for judgment of acquittal based upon insufficient evidence to sustain a finding of guilt beyond a reasonable doubt?

4) Whether the trial court's supplemental jury instructions regarding the continuation of deliberations were proper?

5) Whether the trial court erred in sentencing the defendant to life imprisonment without parole?

ANALYSIS

Since Issue 4 is the pivotal point to be dealt with in this opinion, we will address it first.

Jury Instructions

As previously stated, this was a trial that lasted approximately three weeks. On Thursday, February 6, 1992, the jury was given the court's instructions and listened to the closing arguments of counsel. After the conclusion of closing arguments, the trial court sent the jurors home with instructions to report back to begin their deliberations on Friday, February 7, 1992, 9:00 a.m.

Then, jury deliberations commenced at 9:09 a.m. on Friday. The record reveals the following communications between the court and the jury during the two days of deliberations:

(1) At approximately 8:45 p.m. on the first day a note which reads in part "We cannot agree and the count stands at 11 guilty and 1 not guilty." To this inquiry, the court responded "Dear Jurors, Please continue to deliberate. Your attention is called to Court's Instruction # 43. ¹ In any future notes, please do not reveal your numerical count. Thank you for your efforts."

(2) At 10:15 p.m. the jury submitted the following note "We are not able to reach a unanimous decision. We are losing ground each time we vote." The court responded to this note in part as follows: "Perhaps a good nights sleep would assist you. Under South Dakota law I cannot allow you to return to your homes until a verdict has been reached. ² Therefore, I have secured motel rooms for you at the Holiday Motel here in Webster.... You are not to communicate with non-jurors or watch the news." (Emphasis added.)

Prior to sending the jurors to the motel, the trial judge stated in part to the jury in the courtroom:

I received your second note, says that you are still unable to make a unanimous decision. I realize that some of you are not as young as you once were and rather than force you to continue, I felt a good night's sleep would help. The state law does not allow me to send you home. That is forbidden by Supreme Court decision.

(3) Next, the jury presumably sent a note to the trial judge after they reconvened the next morning seeking a definition of "prudent." The trial judge answered this inquiry with the definition from Webster's without objection from counsel for the parties.

(4) While the jury was deliberating on the second day, counsel for Kaiser made a motion for mistrial based upon the jury having disclosed its numerical count. This motion was denied and in doing so the trial judge stated:

We weren't gonna quit last night at 10:00. I think both sides want a resolution of this case. A mistrial is in nobody's best interests as far as a hung jury. And, therefore, that was the Court's exclusive reason for that, along with the age of a couple jurors who looked that they were in, shall we say, getting tired or in tough shape, having sat from 9 in the morning until 10 last night in a room with no windows and no ventilation. (Emphasis added.)

(5) At 10:15 a.m. on Saturday, the second day of actual deliberations, the jury again sent the following note to the judge: "If there is a stalemate as to guilty or not guilty what are the jurors supposed to do?" The court responded as follows:

The goal of the jury is to arrive at a unanimous determination as to whether the State had proved beyond a reasonable doubt that the Defendant is guilty of Count I or Count II or both.

This is a complex case. It took three weeks to present the evidence to you. It is understandable that time must be spent by the jury in examination and review of what has been presented to you.

I further call to your attention Instruction 42:

Consider this case carefully and honestly with due regard for the interests of society and the rights of the defendant. You should decide the case fairly and impartially without fear or favor upon the evidence produced and the instructions of the court. It must not be decided from any feeling of bias or prejudice against or sympathy for the defendant. Your duty upon such fair consideration of the case is to determine whether the defendant is guilty or not guilty of the offenses charged in the indictment.

Counsel for Kaiser objected to this response since it did not advise the jury that if hopelessly deadlocked, the court could declare a mistrial. The objection was overruled and the response was submitted to the jury as proposed by the judge.

(6) At 11:30 a.m., the fourth note came from the jury. "Judge ... Do some jurors have to change their minds on a guilty or not guilty plea if all possible avenues of discussion have been used?" The response to this inquiry was: "Dear Jurors. No one is forced to change their minds. Please see Instruction 43."

At 11:55 a.m., the jury returned its verdict finding Kaiser guilty on Counts I and II.

At no time during the lengthy jury deliberations on the first day, did the court bring the jurors back into the courtroom to inquire of them whether or not further discussions would be of any benefit. This was the case even after the court was advised on two separate occasions that the jury could not agree and were losing ground. It appears obvious from the court's comment to counsel that a mistrial this second time around was not an option.

In Fields v. State, 487 P.2d 831 (Alaska 1971), the Alaska Supreme Court held that an unguarded admonition by the trial court that the jury was to deliberate until it reached unanimous verdict was reason to reverse. A requirement that the trial end with either a verdict of guilty or not guilty is not the law, and the court stated that a "hung jury is a legitimate end of a criminal trial, and is the occasionally inevitable result of requiring a unanimous verdict beyond a reasonable doubt." Id. at 837. Further, as held in United States v. Flannery, 451 F.2d 880, 883 (1st Cir.1971), "A jury, any number of juries, have a right to fail to agree."

In State v. Place, 20 S.D. 489, 107 N.W. 829 (1906), this court long ago held that a jury's verdict must not be the result of coercion, but must be a product of each individual juror's free judgment.

No juror should be induced to agree to a verdict by a fear that a failure to so agree would be regarded by the public as reflecting upon...