State v. Larson, 17396

• Decision Date: 02 March 1994
• Docket Number: No. 17396,17396
• Citation: 512 N.W.2d 732
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Stacy L. LARSON, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 732

512 N.W.2d 732

STATE of South Dakota, Plaintiff and Appellee, v. Stacy L. LARSON, Defendant and Appellant.

No. 17396.

Supreme Court of South Dakota.

Argued March 17, 1993.

Decided March 2, 1994.

Mark Barnett, Atty. Gen., Craig M. Eichstadt, Deputy Atty. Gen., Robert Mayer, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

John A. Schlimgen, Sioux Falls, for defendant and appellant.

McKEEVER, Circuit Judge.

Stacy Larson appeals from a jury verdict finding him guilty of second degree murder in the May 12, 1990 shooting death of Ron Hilgenberg. Larson raises seven issues on appeal. We affirm.

FACTS

On May 12, 1990 the defendants Stacy Larson, Elmer Pickner, and Louis Medicine Horn, Sr., left Mitchell, South Dakota, sometime between 6:00 p.m. and 7:00 p.m., bound for Sioux Falls in Larson's automobile. While in Sioux Falls, Larson and Pickner dropped Medicine Horn off at the Frontier Bar. Larson and Pickner stopped at the 7-11 store across from the police station on two occasions between 9:32 p.m. and 10:43 p.m. Larson and Pickner picked up Medicine Horn at the Frontier Bar at approximately 10:50 p.m. and left Sioux Falls, returning to Mitchell. They paid for gasoline and beer at the Food-n-Fuel in Mitchell at 12:02 a.m., according to the store's sales tape.

On that same evening, the Bahr residence in Hartford was unoccupied between 9:45 p.m. and 2:00 a.m. At some point during that time it was burglarized. A screen was broken out of a kitchen window through which the burglars apparently gained entrance to the home. A Winchester 20 gauge shotgun, 20 gauge shells with steel shot, and cash were stolen. Before leaving, the burglars shot a television set and a waterbed.

Police took from the scene shotgun shell wads, pellets, and a spent 20 gauge shotgun shell. They also collected cloth fibers from the broken window screen that may have come from the sweat pants that defendant Pickner was wearing that evening. However, none of the unidentified fingerprints, molds of foot prints or tire prints gathered from the home or near area could be connected to Larson or his two friends that were with him that evening.

Again on that same evening, sometime between 6:30 p.m. and 11:45 p.m., the Curtin residence in Hartford, South Dakota, was shot by a shotgun. A shotgun wad and pellets were found at the scene. The wad and pellets were determined by a police expert to be similar to those found at the scene of the Bahr burglary site.

Between approximately 11:30 p.m. and 11:50 p.m. on that same evening, Tanja Ishol and three passengers were traveling on Interstate 90 when they left the interstate at the Humboldt exit. As they sat at the stop sign at the end of the exit ramp, they noticed what Tanja Ishol later identified as Larson's car sitting across the intersection. This car flashed its high beams at Ishtol's car. Tanja was annoyed by the flashing lights. She flashed her lights at the car and slowly passed by it. As the vehicles passed, Tanja Ishol stared at the driver of the oncoming vehicle. After the cars passed at least two shots were fired at the Ishol car, shattering glass and injuring Tanja's passengers. The girls, after a brief stop to discuss the situation, decided to drive into Humboldt where they called the authorities at 12:02 a.m. Tanja was later able to complete a composite drawing of Larson with the help of a police sketch artist. At trial she identified Larson as the driver.

The girls and the police returned to the scene where they found two spent 20 gauge shotgun shells, pellets, and wads. Expert testimony was given that the shells found at this scene were fired from the same gun as the spent 20 gauge shell found at the Bahr residence. This was based on testimony from the state's expert witness.

On May 12, 1990, Ron and Ruth Hilgenberg were returning to South Dakota, from Luverne, Minnesota, via Interstate 90. They were traveling in the right lane of the interstate at approximately 50-60 miles per hour. While traveling west of Humboldt, South Dakota, Mrs. Hilgenberg noted the time to be 11:40 p.m. according to the car's clock. A few minutes later a passing vehicle shot at the Hilgenbergs. Mr. Hilgenberg was struck in the left side of the head and died at the scene. Evidence taken from the scene included a shotgun wad approximately three feet from the driver's door. Later twenty-one pellets were also removed from Mr. Hilgenberg's head. Mrs. Hilgenberg was unable to identify the vehicle from which the shot was fired. No shells were found at the scene of the shooting. The wad found at the scene and the pellets taken from the victim's body were determined to be like those found at the other scenes. Despite an extensive search, no gun used at any of the shooting scenes that evening was ever recovered.

Larson was indicted for the murder of Ron Hilgenberg on May 24, 1990. On November 21, 1992, a jury returned a verdict finding him guilty of second degree murder. Larson was sentenced to life in prison without the possibility of parole.

ANALYSIS

An individual is not entitled to a perfect trial, but he is entitled to a fair trial. State v. Lybarger, 497 N.W.2d 102, 105 (S.D.1993); State v. Bennis, 457 N.W.2d 843, 847 (S.D.1990). The burden is on the appellant to show prejudicial error such that he did not receive a fair trial. "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." SDCL 23A-44-14.

Prejudicial error, such that it may not be disregarded, "is such error as in all probability must have produced some effect upon the final result of the trial. It must be harmful to the substantial rights of the party assigning it." State v. Wall, 481 N.W.2d 259, 265 (S.D.1992). "Prejudicial error, when constitutional questions are being considered, is error which would have some likelihood of changing the result. A constitutional violation may constitute harmless error, and thus not require reversal, if the court can declare beyond a reasonable doubt that the error was harmless and did not contribute to the verdict obtained. We are thus required to ask whether it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty absent the alleged errors." State v. Schuster, 502 N.W.2d 565, 570-71 (S.D.1993). (citations omitted).

ISSUE I

PRIOR BAD ACTS--SPEEDING

SDCL 19-12-5 (Rule 404(b)) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Admission of evidence under this rule is within the trial court's discretion. "Upon review of whether the trial court abused its discretion in admitting evidence of other wrongs we must be careful not to substitute our reasoning for that of the trial court. The test is not whether judges of this court would have made an original ruling, but whether they believe a judicial mind, in view of the law and the circumstances, could have reasonably reached that conclusion." State v. Rufener, 392 N.W.2d 424, 426 (S.D.1986).

The state's theory of this case required the defendant to have committed the Ishol shooting and the Hilgenberg murder between approximately 11:35 p.m. and 11:45 p.m. and then drive 43.2 miles from the Humboldt murder scene to Mitchell by between 11:52 p.m. and 12:02 a.m. when he purchased beer and gas at a convenience store. This feat would have required the defendant to drive an average speed of somewhere between 95 and 370 miles per hour, depending on what the accurate time was within the varying time ranges indicated. A police officer drove the defendant's car and testified that the car was capable of traveling in excess of 110 miles per hour. The state elicited testimony that Larson is known to drive on city streets in excess of 100 miles per hour and that "if [Larson is] drinking, [he is] like a race car driver."

The state asserts that this evidence goes to show Larson's opportunity to commit the crime, an exception expressly noted in SDCL 19-12-5. The state theorized that only by showing that Larson had the ability to drive at a high rate of speed would he have the opportunity to commit the crime within the time frame required under the state's theory.

Analyzing the admissibility of this evidence requires the trial court to conduct a two step process. "It must first be determined whether the proffered evidence is relevant to proving one of the stated exceptions to SDCL 19-12-5." State v. Klein, 444 N.W.2d 16, 18 (S.D.1989). "If the evidence is found to be relevant, it next must be determined whether its prejudicial effect substantially outweighs its probative value." Id. at 18-19. "[T]his balancing process must be conducted on the record." Id. at 19.

We find that the trial court did not abuse its discretion in finding the challenged testimony relevant to Larson's opportunity to commit this crime. Contrary to the defendant's assertion, it seems reasonable to this Court that not everyone has the nerve and ability to drive through the night at an excessively high speed. Because his car may be capable of going that fast, does not necessarily mean that Larson had the ability to drive that fast. This testimony was relevant to show that Larson had the opportunity to commit this crime.

"SDCL 19-12-5 is a rule of general inadmissibility with limited exceptions." State v. Chapin, 460 N.W.2d 420, 421 (S.D.1990). When applying these limited exceptions, trial courts must be ever vigilant to prevent the exceptions from swallowing the rule. Id. In considering such evidence the parties should identify the specific exception under which they seek to admit such evidence and the court should conduct the required balancing act on the record. Id. "Only by performing a meaningful analysis of each case can the...