State v. McDowell
| Citation | 391 N.W.2d 661 |
| Decision Date | 24 July 1986 |
| Docket Number | No. 14590,14590 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Edward McDOWELL, Defendant and Appellant. |
| Court | Supreme Court of South Dakota |
Craig M. Eichstadt, Asst. Atty. Gen., Mark V. Meierhenry, on brief, Atty. Gen., Pierre, for plaintiff and appellee.
Sidney B. Strange, of Strange & Palmer, Steve Miller, on brief, Sioux Falls, for defendant and appellant.
This is an appeal by Edward McDowell (defendant) from a Judgment of Conviction and Sentence for first-degree murder. Defendant was charged under SDCL 22-16-4, found guilty by a jury in Pennington County, and sentenced to life imprisonment. We affirm.
Defendant and Barbara McDowell were married in 1972. After several moves and career changes for defendant, defendant and his wife settled in southeastern South Dakota. In early 1981, defendant was hired as the Chief of Police for Tea, South Dakota. Tea is in southeastern South Dakota, situs of the murder, and the trial of this case took place in Pennington County, South Dakota, which is in the extreme western part of our state. During this aforementioned employment, defendant met Mrs. Darlene Plucker (Plucker). Defendant and Plucker became close friends. Plucker had surgery in August 1980, wherein her colon was removed. She necessarily wore equipment on her side for disposal of waste. It appears her husband simply could not accept her as a woman following this surgery and a serious rift developed between them. She sought, and obtained, a position as the finance officer of the City of Tea. Plucker was given emotional support by defendant. Defendant confided unto Plucker that his marital life was devoid of sex. This companionship and exchanged confidences begot an intimate relationship. This intimate relationship then begot a sexual/financial/business affair or relationship wherein Plucker would loan defendant money from her personal accounts and also from the business account in which defendant, Plucker, and their respective spouses were partners. *
In late 1982, and on through 1983, defendant was spending more money than he was earning. To make up this deficit, defendant obtained various loans, and, as stated above, he received money from Plucker--some personal, some business.
In February 1983, defendant and Plucker devised and attempted a plan to kill defendant's wife by exchanging some medication. Defendant's wife had a vested retirement account and $100,000 in life insurance from her employment. According to Plucker, who testified for the State and against her paramour, Plucker obtained a three-months' prescription of Brevicon and gave these tablets to defendant. Supposedly, the scheme between Plucker and defendant was to kill defendant's wife by substituting Brevicon for Synthroid tablets. Defendant's wife took Synthroid tablets to maintain a hormone balance. Brevicon tablets are an oral contraceptive which have a like appearance to Synthroid tablets. We are unable to state, from the evidence, whether defendant ever substituted this medicine, but the plan to kill defendant's wife by medicine went awry.
When this scheme did not work, a second plan involving a hammer was devised to kill defendant's wife but apparently was not attempted. This plan partook of Plucker purchasing a hammer for defendant. Defendant was to hit his wife on the head and make it appear as though she had a dizzy spell and fell upon the stairs, causing her death. Obtaining a new hammer grew from the idea that an old hammer would have rust particles and would be found on the wound. Killing defendant's wife by a hammer blow was not attempted but was planned as stated aforesaid.
A third plan then evolved to bring about the death of defendant's wife. This one involved a gun, and by this plan, defendant's wife was murdered in her kitchen. In April 1983, defendant asked Plucker to meet him behind her house, which she did. He thereupon displayed an old city gun, belonging to the City of Tea, and he asked that Plucker go to defendant's apartment and shoot his wife. He could not do it himself, he explained, for if he did so, he would be the first suspect. As a corollary, if not reciprocating act, defendant told Plucker that he would shoot and kill Plucker's husband if it became necessary at a later date. Again, in May and June 1983, defendant explained to Plucker that killing his wife, by using the old city gun, had definite advantages. Plans were finalized for the murder on June 15, 1983. And it was on this date, that defendant's wife was killed. Evidence reflects that defendant was sorely in debt and was being hounded by his creditors, and his ex-wife was asking for child support. He had written a number of insufficient funds checks. Defendant's gambling activities, in addition, had caused him more financial woe and Plucker was unable to furnish him with money to extricate himself from his debt-ridden background. Plucker had quit her job as the city finance officer and had decided to run for the city council. Defendant had decided that he was going to go into a bookmaking operation with his uncle. Capitalization was needed, and defendant was well aware of the $100,000 life insurance policy impressed on his wife's life.
This brings us to the afternoon and day of the murder. At or about 2:00 p.m. on June 15, defendant begged Plucker to kill his wife and expressed that if she did not do so, he would either leave the community or kill himself. According to Plucker, she tried to talk defendant out of this conspired murder. She relented, she testified, because defendant was desperate and she was in an emotional state. Defendant loaded the city service gun, showed Plucker how to fire it, and told her how to shoot his wife. He explained that he had chosen this particular gun because it was in the city safe and no one would suspect that the city gun would be used. According to Plucker, defendant told her how to shoot his wife from the stairs. She indicated to him that she would probably not be able to hit defendant's wife from a distance, whereupon, defendant suggested that she just walk up behind his wife and shoot her and kill her. Defendant planned an alibi which consisted of a story that he would go to the dog track and attend some races. Plucker was advised by defendant to hide the gun, take a shower, and wash her clothes after the murder so as to remove all gun powder residue.
At approximately 10:00 p.m. on June 15, 1983, Plucker went to the defendant's residence. She had the gun, given to her by defendant, and loaded for her by defendant. She had hidden this gun in a cowboy boot and ridden to defendant's house on a bicycle. Plucker asked Mrs. McDowell if she would make coffee. Defendant's wife agreed. Thereupon, defendant's wife went to the kitchen sink to run water to make the coffee; Plucker went to the living room, pulled the gun out of her boot, walked up behind defendant's wife, pointed the gun at defendant's wife's head, and pulled the trigger. Immediately, defendant's wife fell to the floor. Plucker stepped over her body and ran out the door. Plucker put the gun back into her boot and rode the bicycle home, placing the murder weapon in her garage. She then showered, put on a robe, and washed her clothes. Expressing that she could not settle down, she testified that she moved the gun from her garage to her car and might have moved it several times after that. When defendant returned, the murder weapon was in Plucker's car.
According to Plucker, defendant telephoned her at about 11:45 p.m., advising her to wash her hands with gasoline to avoid any trace of elements resulting from firing the gun. Later, Plucker requested defendant to take the gun out of her car and put it in his car, which he did.
Defendant took the stand during the trial and denied any participation in the murder, alibiing about times and places he was at during the course of the day and evening. Obviously, the jury placed no credibility in his statements. It was the defendant who called the sheriff, causing the sheriff to come to the home where his deceased wife did now lie, and whereupon an entire investigation began on the cause of death of Barbara McDowell. Cause of death, established by an autopsy, was a single bullet lodged in the brain between the eyes. Throughout the investigation, testimony reveals that Plucker and defendant remained in close contact with defendant making varying suggestions to Plucker so as to cover up the murder.
On October 20, 1983, a Lincoln County Grand Jury indicted defendant for first-degree murder. After a change of venue, trial was held in Pennington County from March 5, 1984, through April 29, 1984. On April 29, the jury returned a verdict finding defendant guilty of first-degree murder. On May 8, 1984, the trial court sentenced defendant to life imprisonment.
We address four separate issues seriatim.
Prior to trial, the State notified defendant that it would seek the death penalty. The trial court therefore permitted the State to inquire whether prospective jurors could follow the trial court's instructions relating to the imposition of the death penalty. During voir dire, eight jury panel members were excused because they expressed an inability to impose the death penalty and one was excused because she indicated she would automatically impose the death penalty. Defendant moved that such inquiries not be allowed but the trial court denied the motion.
Defendant contends the exclusion for cause of prospective jurors who could not vote to impose the death penalty, from the guilt-determination phase of his bifurcated trial, violated his...
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