State v. Sean Leader Charge, 010621 SDSC, 29159-a-DG

Docket Nº:29159-a-DG
Opinion Judge:GILBERTSON, RETIRED CHIEF JUSTICE.
Party Name:STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. SEAN LEADER CHARGE, Defendant and Appellant.
Attorney:JASON R. RAVNSBORG Attorney General. BRIGID C. HOFFMAN Assistant Attorney General Pierre, South Dakota, Attorneys for plaintiff and appellee. ROBERT T. KONRAD Pierre, South Dakota, Attorney for defendant and appellant.
Judge Panel:JENSEN, Chief Justice, and KERN, SALTER, and DEVANEY, Justices, concur. MYREN, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.
Case Date:January 06, 2021
Court:Supreme Court of South Dakota

2021 S.D. 1

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

SEAN LEADER CHARGE, Defendant and Appellant.

No. 29159-a-DG

Supreme Court of South Dakota

January 6, 2021

ARGUED OCTOBER 6, 2020

APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT MELLETTE COUNTY, SOUTH DAKOTA, THE HONORABLE JOHN L. BROWN Retired Judge.

JASON R. RAVNSBORG Attorney General.

BRIGID C. HOFFMAN Assistant Attorney General Pierre, South Dakota, Attorneys for plaintiff and appellee.

ROBERT T. KONRAD Pierre, South Dakota, Attorney for defendant and appellant.

GILBERTSON, RETIRED CHIEF JUSTICE.

[¶1.] A jury found Sean Leader Charge (Leader Charge) guilty of sexual contact with a child under sixteen. During voir dire, Leader Charge challenged a potential juror for cause. The trial court denied the challenge, and the juror was placed on the jury. After the trial, Leader Charge moved for a new trial claiming he was convicted by a biased jury. The court denied the motion. Leader Charge appeals claiming the trial court abused its discretion by failing to remove the potential juror for cause. We affirm the trial court's decision.

Background

[¶2.] In May 2018, the State charged Leader Charge with two counts of sexual contact with a child under sixteen. The victim is the younger sister of Leader Charge's girlfriend/mother of his children, T.M. On two occasions, when T.M. was out of the house, Leader Charge rubbed the victim's vaginal area over her clothing while they sat on the couch.

[¶3.] On April 29, 2019, a jury trial commenced in White River, South Dakota. Donna Brandis (Brandis) was a potential juror for the case. During voir dire, Brandis, the court, and Leader Charge's counsel, participated in the following exchange: COUNSEL: Is there anybody who has, you know, a plane ticket to Maui tomorrow morning, you know, some other pressing reason that makes you think, you know, I just cannot sit here in this courtroom for the next day and a half, two days possibly and not have that on my mind? . . .

BRANDIS: I'm the city finance officer and I am the only person in my office.

COUNSEL: Okay.

BRANDIS: I got water bills, payroll. I know both sides of the family and I just don't feel I can be a fair juror.

COUNSEL: So it sounds like the city of White River is going to stop if you're --

BRANDIS: Yeah, it will. These people won't get their water bills.

COUNSEL: Well, you know, don't say that. They might ask me to keep you all week. But it sounds like it would put you quite a bit behind in your job?

BRANDIS: Yes, it would, sir.

COUNSEL: And in addition, something we haven't really gotten to yet but you said you know the family?

BRANDIS: Yeah. I deal with them when they come in my office.

COUNSEL: Is there anything about your interaction with the family that you think would make it difficult for you to be here today?

BRANDIS: The victim comes through my alley because I live right across from the high school. She goes to the playground and I visit with her. I just don't feel I can do this.

COUNSEL: You don't think you could be fair --

BRANDIS: No.

COUNSEL: -- and judge this case based just on what you hear here today?

BRANDIS: Right.

COUNSEL: I guess I would ask that Ms. Brandis be excused, Your Honor.

COURT: Ma'am, I typically don't grant excuses for job-related reasons. Obviously, everyone is busy and I appreciate that there are time frames to meet. We've got people here that are in the middle of calving, important issues. There's always an excuse for that. I guess what my question really is[, ] is we are trying to find a jury that can be fair and impartial and judge the facts of the case based solely on what comes in through the evidence presented here in court. I know that a job like you have, you're the only one. It would certainly be inconvenient for you. But you understand that the Defendant and the State are entitled to have a fair and impartial jury and is there any reason why you feel you cannot listen to the evidence here --

BRANDIS: No --

COURT: -- and present a fair verdict?

BRANDIS: -- I can't.

COURT: I'm going to deny the request to excuse then at this point. Thank you.

COUNSEL: Good try . . . . [Leader Charge's counsel continued to question jurors about work related conflicts.]

[¶4.] The jury pool consisted of ninety-five individuals, the parties went through sixty-six, and the court dismissed nineteen for cause.1 Leader Charge's counsel passed the jury panel, containing Brandis, for cause. Each party had ten peremptory challenges. Neither party struck Brandis, and she was seated as a trial juror. Each attorney confirmed his satisfaction with the panel. After the close of evidence and a two-and-a-half-hour deliberation, the jury returned a verdict of guilty on both counts.

[¶5.] Leader Charge filed a motion for a new trial on the grounds of jury misconduct and irregularity. At the hearing, Natasha Bear Heels (Bear Heels), who worked in the same building as Brandis and knows Leader Charge's mother, testified that a year before the trial she discussed the case with Brandis on a weekly basis. According to Bear Heels, Brandis expressed that the allegations were phony, but after the trial commenced, Brandis refused to speak with her. T.M. also testified at the hearing. She relayed that a month before trial, she had spoken with Brandis briefly about the case and Brandis had wished her luck and characterized the case as "a bunch of shit."2 Brandis confirmed that the conversation before trial with T.M. had occurred. However, she claimed that she did not speak with T.M during trial. Brandis also claims that she never spoke to Bear Heels about the case. She stated that she only considered evidence presented at trial and, although she could not remember specific questions, she stated that she answered each voir dire question honestly. She also affirmed that she knew Leader Charge, but not personally, and that she did not know the victim.3

[¶6.] The trial court denied Leader Charge's motion for a new trial holding that Leader Charge failed to show misconduct occurred as a result of the juror's prior knowledge of the case or information being brought into deliberations. Further, the court determined that any presumption of prejudice as to knowledge of the case, a juror's ability to be fair and impartial, or inappropriate contacts between a juror and a witness were rebutted and shown to be harmless.

[¶7.] Leader Charge raises the sole issue on appeal of whether the trial court abused its discretion by denying the removal of juror Brandis for cause.

Analysis and Decision

[¶8.] This Court reviews a trial court's denial of excusing a juror for cause under an abuse of discretion standard. State v. Verhoef, 2001 S.D. 58, ¶ 12, 627 N.W.2d 437, 440. "The trial court has broad discretion in determining juror qualification." State v. Daniel, 2000 S.D. 18, ¶ 16, 606 N.W.2d 532, 535 (quoting State v. Garza, 1997 S.D. 54, ¶ 8, 563 N.W.2d 406, 408). "However, '[a]s a policy matter, when challenges of venirepersons for actual bias arise, trial courts would be wise to err on the side of disqualification.'" Id. (quoting State v. Blue Thunder, 466 N.W.2d 613, 620 (S.D. 1991)). "When the evidence of each juror is contradictory in itself, and is subject to more than one construction, a finding by the trial court either way upon the challenge is conclusive on appeal." State v.

Rhines, 1996 S.D. 55, ¶ 52, 548 N.W.2d 415, 432 (quoting State v. Flack, 77 S.D. 176, 181, 89 N.W.2d 30, 32 (1958)).

[¶9.] The United States Constitution and the South Dakota Constitution guarantee an accused the right to an impartial jury. U.S. Const. amend. VI; S.D. Const. art. VI, § 7. "The purpose of '[v]oir dire examination is to enable counsel to determine whether any prospective jurors . . . are possessed of beliefs which would cause them to be biased in such a manner as to prevent his client from obtaining a fair and impartial trial.'" Daniel, 2000 S.D. 18, ¶ 11, 606 N.W.2d at 534 (quoting People v. Mackey, 521 P.2d 910, 913 (1974)). "The trial court has the primary responsibility to...

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