State v. Loftus

• Court: South Dakota Supreme Court
• Writing for the Court: GILBERTSON; KONENKAMP
• Citation: State v. Loftus, 573 N.W. 2d 167, 1997 SD 131 (S.D. 1997)
• Decision Date: 21 October 1997
• Docket Number: No. 19731,19731
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Robert John LOFTUS, Defendant and Appellant. . Considered on Briefs

Page 167

573 N.W.2d 167

1997 SD 131

STATE of South Dakota, Plaintiff and Appellee, v. Robert John LOFTUS, Defendant and Appellant.

No. 19731.

Supreme Court of South Dakota.

Considered on Briefs Oct. 21, 1997.

Decided Dec. 3, 1997.

Mark Barnett, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, for plaintiff and appellee.

Robert J. Carl, Jr. Sioux Falls, for defendant and appellant.

GILBERTSON, Justice.

¶1 Robert John Loftus appeals his conviction on three counts of first degree robbery, one count of commission of a felony while armed with a firearm, and two counts of second degree rape. We affirm.

FACTS AND PROCEDURE

¶2 On April 22, 1995, Video World I, a Rapid City, South Dakota business, was robbed at gun point. The clerk on duty at the time, K.K., testified that a man carrying a gun entered the store at approximately 10:30 p.m., just before she was going to close. She identified the robber as wearing a black sweat suit and a black ski mask. The perpetrator pointed the weapon at K.K.'s face, had her lock the doors, turn off the lights and give him all of the money except for the loose change. Next, the robber demanded to know where the safe was. After removing the money from the safe, the perpetrator took K.K. to a back room, threatened and then brutally raped her. K.K. tried to get the perpetrator to leave by telling him that someone would be by to check on her soon. K.K. was then told to get on her stomach so the robber could tie her hands behind her back with telephone cords. The perpetrator left a short time later. K.K. testified that she had heard the perpetrator's voice several times that evening when he made statements such as: "this is a robbery;" "don't be stupid;" "you're not even worth it, I might as well just kill you;" and not to do anything stupid or he would find out where she lived and hunt her down to kill her.

¶3 Another robbery occurred at a different Video World (Video World II) in Rapid City on June 7, 1995. At approximately 10:00 p.m. the clerks, J.C. and C.H., were in the process of closing the store. C.H. was outside waiting for J.C. to set the store's alarm when a person with a gun, wearing black clothes and a black ski mask approached and made her unlock the door. C.H. testified that she had some knowledge of guns and the one carried by the robber that evening looked like a 9 mm Ruger her parents owned. Once inside the store the robber demanded that the victims show him the safe. After taking the money from the safe he took the victims to a secluded area of the store and had J.C. lie on her stomach. He then used an extension cord to tie J.C.'s hands together. He then asked where the telephone cords were in order to better secure J.C. Next, he attempted to take C.H. to another area of the store. However, C.H. testified that at this point she knew that the clerk at the Video World I robbery was raped, so she started "flipping out" and refused to leave the side of J.C. Frustrated, the perpetrator eventually gave in and tied C.H. up near J.C. The robber left shortly after J.C. told him that her boyfriend would be coming soon. The perpetrator made several statements during the robbery and repeatedly threatened to "blow" the victims "away."

¶4 On June 21, 1995, the Jug Liquor Store (Jug) in Box Elder, South Dakota was robbed at approximately 10:55 p.m. The only clerk on duty at that time, V.N., testified that the robber entered the store wearing a black ski mask and carrying a black 9 mm gun. V.N. was told to take the money from the till and put it in a bag. The robber told her he wanted the cash and "just the quarters" but did not want the loose change. Next, the perpetrator removed the money from the Jug's safe. At this point he had V.N. lay down on her stomach so he could tie her hands and ankles with a telephone cord and extension cord. Thereafter, the robber put the gun to V.N.'s head and said, "now this will be the true test to see if you're gonna live or not." The perpetrator took V.N. to another room and then raped her. V.N. attempted to prompt the perpetrator to leave by telling him that her friends would be concerned if they saw her car outside so late. Before leaving, he retied her wrists to her ankles. She remained in this state until the Jug's owner arrived in the morning. At some point that evening the perpetrator used a magic marker to write "Dirty White Boys" and "TBZ" ¹ on a television and the cooler doors.

¶5 A few days before the Jug robbery, a Box Elder man approached a red Hyundai with tinted windows parked near the Jug and noticed the driver lay down on the seat. He became suspicious and followed the car for some distance before losing sight of it. After the Jug robbery he heard a news story that the police were looking for information concerning a red vehicle with tinted windows that was seen in the parking lot of a bar and supper club (supper club) northwest of Rapid City that was robbed on April 26, 1995. ² The Box Elder man found the red car he had seen before the Jug robbery near the location he had lost sight of it just days before. He wrote down the license number and gave it to the police. The car was registered to Loftus.

¶6 On June 24, 1995 a warrant was issued for Loftus. The next day a highway patrol officer identified a car matching the description of Loftus' car and turned on his lights and siren. Loftus fled but was eventually apprehended after a high-speed chase. Police recovered currency believed to have been taken from the Jug as well as firearms matching descriptions of the weapons used in the robberies. Loftus was interviewed by the police and eventually stated that he was only the driver, but did not otherwise participate, in the Jug robbery and rape and the robbery of the supper club.

¶7 During the course of the investigation the State performed tests on vaginal/cervical swabs obtained from K.K. and V.N. in order to locate the presence of bodily fluids that were foreign to the victims. The tests were positive and later comparisons disclosed that Loftus had the same enzyme type as that found in the victim samples. Following the serological testing, the State hired an expert, James Liberty (Liberty) of Precision Genetics, to perform DNA testing. Liberty's testimony at trial essentially consisted of two components. First, Liberty concluded that the DNA pattern from the K.K. and V.N. samples matched the DNA pattern obtained from Loftus' blood sample. Liberty used a procedure known as Restricted Fragment Length Polymorphism (RFLP) to obtain the match. The second component of Liberty's testimony concerned the statistical probability that a random person could, by chance, have the same DNA pattern as that located on the samples taken from the victims. Using a standard population genetics equation known as the "product rule" or "Hardy-Weinberg equation," ³ Liberty concluded that the possibility of a random match between V.N. and Loftus was one in forty-six million. With regard to K.K., Liberty testified that the possibility of a random match was one in fifteen thousand.

¶8 On January 8, 1996, Loftus was arraigned on a two-part information. Part I alleged that Loftus committed the crimes at Video World I and II as well as the Jug. Part II alleged that Loftus was a habitual offender. The jury convicted Loftus on all counts in Part I of the indictment. Loftus waived a jury trial on Part II and the trial court found him to be a habitual offender based upon his convictions of attempted escape and grand theft in 1988. Loftus was sentenced to life in prison without parole on all Counts. Loftus appeals his convictions, raising the following issues:

1. Whether the trial court abused its discretion when it denied Loftus' motion for severance?

2. Whether the in-court identification of Loftus' voice by the victims of Video World I and the Jug was unreasonably suggestive and resulted in prejudice to Loftus?

3. Whether the trial court abused its discretion in admitting statistical DNA evidence?

4. Whether the trial court abused its discretion in allowing a police officer to testify about similarities between writings left at the Jug crime scene and writings contained in a notebook found on Loftus' dresser?

5. Whether Loftus was prejudiced through the State's demonstrative use of a pictorial exhibit of a 9 mm handgun?

6. Whether there was sufficient evidence upon which to convict Loftus?

ANALYSIS AND DECISION

¶9 1. Whether the trial court abused its discretion in denying Loftus' motion for severance of the charges.

¶10 We review a trial court's denial of a motion to sever charges under an abuse of discretion standard. State v. Thompson, 1997 SD 15, p 14, 560 N.W.2d 535, 538; State v. Busack, 532 N.W.2d 413, 417 (S.D.1995). "An abuse of discretion arises only where the party requesting severance of joined counts can make a clear showing of prejudice to substantial rights." Thompson, 1997 SD 15 p 14, 560 N.W.2d at 538 (citations omitted).

¶11 SDCL 23A-6-23 provides the standard for joinder of related offenses in

same indictment or information:

Two or more offenses may be charged in the same indictment or information in separate counts for each offense, if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

(Emphasis added). SDCL 23A-11-2 provides the guidelines to the trial court where it appears joinder may result in prejudice to the defendant or to the State:

If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance ...