State v. Loeschke
| Decision Date | 14 September 2022 |
| Docket Number | 29449-a-JMK |
| Citation | 2022 S.D. 56 |
| Parties | STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. ROBERT HAROLD LOESCHKE, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
CONSIDERED ON BRIEFS JANUARY 10, 2022
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE SUSAN M. SABERS Judge
CHRISTOPHER MILES of Minnehaha County Public Defender's Office Sioux Falls, South Dakota Attorneys for defendant and appellant.
MARK VARGO Attorney General
JONATHAN K. VAN PATTEN Assistant Attorney General Pierre South Dakota Attorneys for plaintiff and appellee.
[¶1.] Robert Loeschke was indicted and subsequently tried in August 2020 for six counts of assault against his girlfriend, Melissa Greenwalt, arising out of two separate incidents. He was charged with one count of aggravated assault and two counts of simple assault arising from a stab wound inflicted on Greenwalt on February 20, 2019. He was also charged with one count of aggravated assault and two counts of simple assault arising from an assault with fists on June 17, 2018, which left Greenwalt with a broken jaw. The jury convicted Loeschke on the assault counts arising from the February 20, 2019 stabbing but acquitted him of the charges from the June 17, 2018 broken-jaw incident. Prior to trial, Loeschke had moved to sever the charges based on the dates of the offenses, but the court denied his motion. At trial, Loeschke objected on hearsay grounds to the admissibility of Greenwalt's statements contained in recorded phone conversations between Greenwalt and Loeschke while he was in jail. The circuit court overruled the objection and admitted the statements as context to aid the jury in understanding the conversation but gave the jury a limiting instruction. Loeschke appeals the circuit court's order denying his motion to sever and the admission of the challenged statements at trial. We affirm.
[¶2.] On February 20, 2019, Greenwalt was stabbed in the abdomen at the trailer house in which she lived. Law enforcement responded to a 911 call reporting the stabbing, and Sioux Falls Police Department Officer Greg Logan was the first to arrive on the scene. Officer Logan observed Loeschke standing outside of the residence with another male subject. Before Officer Logan entered the trailer, he talked with Loeschke who told him that he had been invited to the house by Greenwalt. According to Loeschke, at some point Greenwalt told him to leave but then told him to stay, and Loeschke said that what happened "was an accident." Once inside, Officer Logan observed Greenwalt lying on the kitchen floor with a stab wound to her abdomen with bodily material oozing from the wound. Greenwalt was transported by ambulance to the hospital for emergency surgery.
[¶3.] After her surgery, but while she was still hospitalized, Detective Maria Munkvold, with the Minnehaha County Sheriff's Office, spoke with Greenwalt and observed the injury to Greenwalt's abdomen. During this conversation, Greenwalt disclosed that she had previously been treated for a broken jaw. Greenwalt's medical records confirmed that she was treated for a broken jaw on June 17, 2018, caused by an assault, but refused to disclose the perpetrator.
[¶4.] During the investigation at the scene of the current incident, Officer Jason Burns observed, photographed, and collected a black knife with orange paracord wrapped around the handle that was located in the living room. Officer Burns also observed a black knife sheath laying on the ground in the driveway between the residence and Loeschke's car, which he photographed and collected as evidence. There was no blood trail or other physical evidence within or near the residence indicating where the assault occurred.
[¶5.] Law enforcement took Loeschke into custody and transported him to the Minnehaha County Law Enforcement Center, where he waived his Miranda rights prior to submitting to a taped interview by Detective Adam Zishka. During the interview, Loeschke explained that he was in a romantic relationship with Greenwalt and that they had attempted to break up the weekend before the stabbing incident but were still hanging out together. He claimed that he and Greenwalt were outside the residence on February 20 when he slipped and fell. He explained that Greenwalt bent over to help him up and must have stabbed herself in the process of bending over.
[¶6.] Loeschke alternatively claimed that Greenwalt had slipped and fallen and must have stabbed herself then. However, Loeschke also stated that "if Melissa said I did it I must have" and that "if I did it I will pay the consequences." Loeschke claimed that he forgets things or "blacks out" sometimes when he gets angry, and that this was why he could not remember the details of how Greenwalt was stabbed. He reported picking up the knife sheath from the deck attached to the residence at some point after the stabbing and placing it in his car, but law enforcement found the knife sheath on the ground between the car and the residence. He also informed Detective Zishka that Greenwalt would probably not want to press charges against him. When asked, Loeschke admitted to having broken Greenwalt's jaw about a year prior to the stabbing by punching her, but he qualified the admission by stating that he tried to pull the punch back at the last minute and "barely punched her."
[¶7.] The State submitted the knife for forensic testing, which revealed blood on the knife blade matching Greenwalt's DNA. The testing also showed the presence of at least two DNA profiles on the knife handle, but the forensic lab was unable to isolate the profiles on the handle to determine if either of them matched Loeschke, Greenwalt, or someone else.
[¶8.] On February 27, 2019, Loeschke was charged in a 27-count indictment alleging eleven counts of aggravated assault and sixteen counts of simple assault. The charges stemmed from alleged incidents perpetrated against Greenwalt occurring on June 17, 2018, resulting in Greenwalt's broken jaw; February 15, 2019, involving a punch to her face; February 17, 2019, for punching and striking her with a metal pole; and the February 20, 2019 stabbing.[1] While in jail awaiting trial and under a no contact order with Greenwalt, Loeschke called her multiple times from the jail. During some of these calls, all of which were recorded, Loeschke and Greenwalt spoke about Greenwalt in the third person and at times pretended that Loeschke was speaking to someone named "Melanie" instead of to Greenwalt. At trial, the State offered portions of two of these phone calls into evidence.
[¶9.] Loeschke filed several pretrial motions including a motion to sever the 27 counts of the indictment and permit three separate jury trials. Loeschke claimed that separate trials were necessary in order to properly address the charges arising from the alleged assaults, all of which occurred on different dates. At a pretrial hearing on this motion, the circuit court considered the briefs and arguments of the parties and the grand jury transcripts underlying the indictment. The court found that based on this information,[2] Loeschke and Greenwalt had been in a romantic relationship since April 2018, and that Loeschke had allegedly committed multiple acts of abuse and violence against Greenwalt prior to the stabbing. These acts included breaking Greenwalt's jaw in June 2018, punching Greenwalt in the face and repeatedly threatening to kill her while driving with her as a passenger in a car on February 15, 2019, and striking Greenwalt on her hand and back with a metal pole on approximately February 17, 2019.
[¶10.] After hearing the arguments of the parties, the court discussed the three-part test for joinder set forth in State v. Solis, 2019 S.D. 36, ¶ 19, 931 N.W.2d 253, 258, and denied Loeschke's motion to sever. The circuit court later entered findings of fact and conclusions of law and an order denying the motion.
[¶11.] Loeschke was tried on January 22, 2020, on the charges in the indictment. Prior to trial, the State dismissed six of the counts in the indictment. However, midway through the trial, the circuit court declared a mistrial because of the introduction of a "faulty redaction of a recorded video" of Loeschke's statement to law enforcement. Greenwalt was present before and during this first trial and had intended to testify on behalf of the State. However, the mistrial occurred before she was called as a witness.
[¶12.] After the mistrial, Loeschke's case was brought to trial a second time on August 2, 2020. This time, the State was unable to locate Greenwalt to subpoena her, and she did not appear for trial. Therefore, the State dismissed all but six of the remaining charges, which included those stemming from the June 17, 2018 assault resulting in Greenwalt's broken jaw (one aggravated assault charge and two simple assault charges) and the February 20, 2019 stabbing (one aggravated assault charge and two simple assault charges). The second trial focused on the facts surrounding these two incidents, and the State did not offer evidence regarding other prior assaults and abuse.
[¶13.] On the second day of trial, Loeschke moved to exclude, on hearsay grounds, excerpts from two of the phone calls between Greenwalt and Loeschke that occurred while he was in jail and that the State planned to offer into evidence. The circuit court overruled Loeschke's objection, granted Loeschke a standing objection, and admitted the recordings which were later played for the jury.
[¶14.] During the trial, the State called the following witnesses Dr. Matthew Nipe, the emergency room physician who treated Greenwalt's broken jaw on June 17, 2018;...
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