State v. Kaseman

• Decision Date: 22 December 1978
• Docket Number: No. 12282,12282
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Steven Alexander KASEMAN, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 716

273 N.W.2d 716

STATE of South Dakota, Plaintiff and Respondent, v. Steven Alexander KASEMAN, Defendant and Appellant.

No. 12282.

Supreme Court of South Dakota.

Argued Sept. 19, 1978.

Decided Dec. 22, 1978.

Marc Tobias, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen. and Harry W. Christianson, and Thomas Welk, Asst. Attys. Gen., Pierre, on brief.

Richard Hurd, Sioux Falls, for defendant and appellant; Thomas P. Tonner and John L. Maynes of Maynes, Tonner, Maynes & Tobin, Aberdeen, on brief.

DUNN, Justice.

This is an appeal from a conviction of kidnapping in the Third Judicial Circuit. Defendant was found guilty by a jury on May 15, 1977, and was sentenced to a term of life in the state penitentiary. We affirm.

On October 6, 1976, Mrs. Mary Tschirley, a 78-year-old Roscoe, South Dakota woman, visited her daughter in Aberdeen, and that evening she had a telephone conversation On October 12, 1976, Pressler entered Mrs. Tschirley's residence in Roscoe with the cleaning lady and another individual. The door was open, the kitchen light was on, a burner on the stove and the oven were on, all the food on the stove and in the oven was "burned to a crisp," and Mrs. Tschirley's purse was in the bedroom. Her automobile was parked in the garage and water was running from a hose in the yard. A search of the house revealed nothing more. Mrs. Tschirley remained missing until October 23, 1976, when her body was found by a group of hunters some 15 miles east of Ellendale, North Dakota, about one-half mile north of the South Dakota border.

with Ralph Pressler who rented her farmland and was in touch with her by telephone almost daily. This was the last day that Mrs. Tschirley was seen or heard from. Pressler, Roscoe policeman Lechner, and a neighbor testified that on October 7, 1976, they saw a maroon automobile with a square back end parked in Mrs. Tschirley's driveway sometime after the lunch hour but before 2:30 p. m. The policeman testified that the automobile had out-of-state license plates which were white with blue on the top. The neighbor testified that she observed a large individual with dark shoulder-length hair come out of the house and go to Mrs. Tschirley's mailbox; that she later observed the maroon automobile pull out of the driveway; that the driver of the automobile had dark shoulder-length hair; and that the passenger in the front seat was Mrs. Tschirley. The neighbor stated that she knew it was Mrs. Tschirley because she noticed her gray hair and she was kind of slumped down a little bit in the front seat. Defendant's car was shown to be a maroon 1966 Chrysler Newport having a square back end with white and blue Colorado license plates.

On the 7th of October, between 10:30 a. m. and 12 noon, defendant stopped at an Aberdeen gun shop to pay for and to pick up a Model 66 RG .22 caliber, single-action pistol that he had selected on the 5th of October. ¹ Also, on October 7, 1976, at approximately 12:35 p. m., defendant picked up his automobile at an Aberdeen garage where the transmission was overhauled, the water pump replaced and the right front wheel bearings fixed. An attendant at an Aberdeen gasoline station testified that defendant was there between 12:30 and 1 p. m. to have his automobile filled with gasoline. The attendant stated that defendant acted kind of nervous, looked around a lot, and seemed to be in a hurry.

Later on the afternoon of October 7th at 4:38 p. m., defendant placed a collect phone call to his prospective employer in East Grand Forks, Minnesota, from a public phone in Ellendale, North Dakota. The employer testified that defendant was supposed to have shown up at 3 p. m. but had called to say he would be late because he had car trouble, i. e., dirt in the carburetor. Defendant told law enforcement investigators that he had left Aberdeen between 11 a. m. and 1 p. m. enroute to East Grand Forks and had arrived at about 8 p. m. that evening. In reply to an inquiry as to the reason that he took over three and one-half hours to travel as far as Ellendale, which is only 39 miles from Aberdeen, defendant stated that he had to drive slowly because he was having trouble with his wheel bearings and motor mount. This contradicts with the statement made to his prospective employer over the telephone and with the fact that the wheel bearings had just been repaired earlier that day in Aberdeen.

On the 23rd of October, Mrs. Tschirley's body was found in a shelter belt in North Dakota. She had been stabbed twice in the back with a knife from her own kitchen. The knife was embedded in her back and the handle had been broken off. Her skull was severely fractured and the scalp on top of the head was missing. At the scene, investigators found an empty Marlboro cigarette package, blood-stained green floral tissue paper, a hammer strut and a piece of On October 24, 1976, an affidavit was executed which requested a search warrant for a 1966 maroon Chrysler with Colorado license plates located at the residence of the defendant's parents in Aberdeen. Upon a showing of probable cause, the search warrant was issued to search the automobile. Among other items, the search resulted in the seizure of a broken piece of plastic appearing to be the piece of a butt of a pistol with the letters "RG" on it and a front seat cover. These items were subsequently admitted into evidence at the trial.

brown plastic showing the letters "RG" from the gun grip of a Model 66 RG .22 caliber pistol, and six rounds of .22 caliber ammunition of the CCI brand.

On November 4, 1976, an affidavit was executed requesting a search warrant for an additional search of the 1966 maroon automobile. A search warrant was issued upon a showing of probable cause, and execution of the warrant resulted in the seizure of another brown piece of plastic material from a gun grip and a piece of a Marlboro cigarette carton. Also on November 4, 1976, an affidavit was submitted requesting a search warrant for the residence of defendant's parents. Upon a showing of probable cause, the warrant was issued and execution of the warrant resulted in the seizure of CCI brand ammunition .22 caliber cartridges.

At the trial, an individual from the company that manufactured the pistol defendant had purchased on the 7th of October testified that the two pieces of brown plastic with the letters "RG" on each, which were found at the scene of the body and in the defendant's automobile, were from the right and left sides, respectively, of the plastic grip of a Model 66 RG .22 caliber pistol. He further testified that the hammer strut found at the scene of the discovery of the body was definitely from a Model 66 RG .22 caliber pistol manufactured by his company.

An FBI laboratory expert testified that he had scientifically examined fibers taken from defendant's car seat cover and Mrs. Tschirley's body; that he had found numerous red nylon fibers and a significant amount of red rayon fibers on her clothing; and that these fibers were consistent with the car seat cover fibers. The FBI expert testified that while he could not positively say that the fibers on her clothing were from the car seat cover, he could definitely say that it was unlikely that the fibers came from anywhere else.

A law enforcement investigator further testified that upon a search of defendant's automobile he discovered that the passenger side of the automobile, including the seat, door panel, and dashboard, had been wiped completely clean, apparently with a damp rag, but that the driver's side had still been dusty and dirty. When the defendant was questioned about this, he stated that the right side of the car had become dirty as it was sitting in front of the motel in East Grand Forks while he was working there. When officials questioned defendant as to the whereabouts of the Model 66 RG .22 caliber pistol he had purchased on the 7th of October, defendant indicated that the pistol had been stolen out of his room at the motel in East Grand Forks. No thefts or burglaries, however, were ever reported to the police or the motel owners.

Other pertinent testimony will be discussed under our treatment of the issues raised by defendant.

Defendant presents ten basic issues in his assignments of error. The first such issue is whether the affidavits of October 24, 1976, and November 4, 1976, were sufficiently particular regarding the items sought and whether they were such that a reasonable man would conclude that those items were connected with criminal activity and would probably be found in the place to be searched.

In this regard, Article 4 of the Bill of Rights in the United States Constitution (federal article) states that

"(t)he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause The South Dakota Constitution Bill of Rights, Article VI, Section 11 (state article) guarantees that

supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

"(t)he right of people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause supported by affidavit, particularly describing the place to be searched and the person or thing to be seized."

Defendant argues that these constitutional directives necessitate that the affidavit and the search warrant derived from the affidavit both contain the same particularity and specificity in the description of the items to be sought and a description of the place to be searched. Defendant reasons that if the item is not specifically and particularly set forth in the affidavit there can be no basis for probable cause for the inclusion of such an item in the search warrant and there can be...