State v. Moeller

Decision Date30 August 2000
Docket Number No. 20154., No. 20127
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Donald Eugene MOELLER, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Mark Barnett, Attorney General, Craig Eichstadt, Deputy Attorney General, Sherri Sundem Wald, Gary Campbell, Grant Gormley, Assistant Attorneys General, Pierre, for plaintiff and appellee.

Michael J. Butler, Sioux Falls, David R. Gienapp of Arneson, Issenhuth & Gienapp, Madison, for defendant and appellant.

MILLER, Chief Justice

[¶ 1.] Donald Moeller was previously tried, convicted and sentenced to death for the 1990 rape and murder of Rebecca O'Connell. We reversed that conviction in State v. Moeller, 1996 SD 60, 548 N.W.2d 465 (Moeller I). At his second trial Moeller was again convicted of first-degree rape and first-degree murder and was sentenced to death. He challenges, among other things, the denial of various continuance requests, the jury selection process, the admissibility of expert testimony, and several aspects of the sentencing phase of his trial. We affirm.


[¶ 2.] Nine-year-old Rebecca O'Connell (Becky) of Sioux Falls was last seen on the evening of May 8, 1990. The next day, two men found her body in a wooded area in Lincoln County, South Dakota. An autopsy revealed that she had been vaginally and anally raped, and had sustained knife wounds to her neck, back, shoulder, chest, hip, arms and hands. A pathologist concluded that she died as a result of a cut to her jugular vein.1

[¶ 3.] Donald Moeller was charged with rape and murder in connection with Becky's death. He was tried, convicted and sentenced to death. On appeal, we reversed the conviction because prior bad acts evidence had been improperly introduced. The second trial commenced in April 1997.2 He was again convicted and sentenced to death. He appeals.


[¶ 4.] Unless otherwise stated, every issue raised by Moeller is reviewed under an abuse of discretion standard. State v. Letcher, 1996 SD 88, ¶ 29, 552 N.W.2d 402, 407 (continuance requests); State v. Darby, 1996 SD 127, ¶ 36, 556 N.W.2d 311, 321 (juror qualifications); State v. Smith, 477 N.W.2d 27, 33 n. 4 (SD 1991); State v. Miller, 429 N.W.2d 26, 38 (S.D.1988) (juror voir dire); State v. White, 1996 SD 67, ¶ 19, 549 N.W.2d 676, 681; State v. New, 536 N.W.2d 714, 718 (S.D.1995); State v. Olson, 408 N.W.2d 748, 752 (S.D.1987); State v. McNamara, 325 N.W.2d 288, 291 (S.D.1982) (admissibility of evidence); Moeller I, 1996 SD 60, ¶ 87, 548 N.W.2d at 485 (expert opinions). We will not overturn the trial court's ruling absent an abuse of that discretion.


[¶ 5.] The trial court did not abuse its discretion in denying Moeller's requests for a continuance of the trial date.


[¶ 6.] Prior to trial, Moeller's counsel filed four requests for continuance of the trial date, all of which were denied. He contends that, as a result of these denials, his attorneys were unable to be adequately prepared for trial. He argues that the trial court placed scheduling and expediency of trial over his fundamental rights to due process and effective assistance of counsel.


[¶ 7.] "`A continuance may properly be denied when the party had ample time for preparation or the request for a continuance was not made until the last minute.'" Corson Village Sanitary Dist. v. Strozdas, 539 N.W.2d 876, 878 (S.D. 1995) (quoting Fanning v. Iversen, 535 N.W.2d 770, 776 (S.D.1995)) (other citations omitted). However, an accused is entitled as a matter of right to a reasonable opportunity to secure evidence on his behalf. If it appears that due diligence has failed to procure it, and where a manifest injustice results from denial of the continuance, the trial court's action should be set aside. State v. Dowling, 87 S.D. 532, 534, 211 N.W.2d 572, 573 (1973) (citing State v. Wilcox, 21 S.D. 532, 535-36, 114 N.W. 687, 688-89 (1908)).

[¶ 8.] Other factors trial courts must consider in deciding whether or not to grant a continuance include: (1) whether the delay resulting from the continuance will be prejudicial to the opposing party; (2) whether the continuance motion was motivated by procrastination, bad planning, dilatory tactics or bad faith on the part of the moving party or his counsel; (3) the prejudice caused to the moving party by the trial court's refusal to grant the continuance; and (4) whether there have been any prior continuances or delays. Evens v. Thompson, 485 N.W.2d 591, 594 (S.D.1992) (citations omitted). Additionally, when a continuance is requested for lack of time to prepare, the court must consider (1) whether the accused has had ample time to prepare for trial and (2) whether additional time would allow the defendant to be any better prepared to go to trial. 22A CJS Criminal Law, § 624 (1989).

[¶ 9.] In United States v. Medlin, 353 F.2d 789, 793 (6thCir.1965),cert. denied, 384 U.S. 973, 86 S.Ct. 1860, 16 L.Ed.2d 683 (1966), the court was presented with a similar issue. There defendant's counsel claimed he had inadequate time to prepare, detailing the long hours he had already spent on the case and stressing the attention diverted to other obligations of his practice. The trial court denied the motion, and the court of appeals affirmed, relying on the fact that the attorney had been engaged close to a year before trial and in that period of time had employed numerous pretrial procedures to prepare for the accused's defense. Further, the court noted that counsel had not shown what might have been done to enhance his preparation for trial. Finally, it affirmed because it found that no prejudice to the defendant resulted from the denial of the continuance.

[¶ 10.] Here, a period of ten months elapsed between the time Moeller's first conviction was overturned and the time his second trial commenced. The record shows that both of his defense attorneys worked diligently to prepare an effective defense and did an admirable job in presenting a thorough case. Cf. State v. Lang, 354 N.W.2d 723 (S.D.1984)

(stating that despite defendant's claim of unpreparedness, he was able to procure and present seven alibi witnesses at trial). Moreover, it must be remembered that both defense attorneys also represented Moeller in his first trial and therefore were familiar with State's case and the concededly voluminous file. There was no specific showing how additional time would have aided the defense any more in its preparation.

[¶ 11.] Moeller's counsel place great emphasis on the fact that they did not wait until the last minute to request a continuance. Indeed, they filed the first request almost eight months in advance of the trial date. They claim their combined experience in defending five death penalty cases, and over twenty murder cases, led them to conclude that eight months was an inadequate amount of time to prepare for trial. We do not find their argument persuasive.

[¶ 12.] Moeller also argues that the trial court violated his constitutional rights by interpreting SDCL 23A-44-5.1 to require that both parties must stipulate to a waiver of the 180-day rule. His argument seems to be that only the defendant must waive the 180-day rule, and that by requiring State to consent to such a waiver, his rights to due process and effective assistance of counsel were violated. This position is untenable. First, the 180-day rule is a procedural rule of court and not a constitutional requirement. State v. Sorensen, 1999 SD 84, ¶ 12, 597 N.W.2d 682, 684; State v. Fowler, 1996 SD 79, ¶ 11, 552 N.W.2d 391, 393; State v. Erickson, 525 N.W.2d 703, 711 (S.D.1994). "Violation of the 180-day rule is not synonymous with violation of a constitutional right to a speedy trial." Sorensen, 1999 SD 84, ¶ 12, 597 N.W.2d at 684 (citing Erickson, 525 N.W.2d at 711). What Moeller essentially contends is that he not only has a constitutional right to a speedy trial, but he also has a constitutional right to not have a speedy trial. This argument wholly lacks merit.

[¶ 13.] Moeller had approximately ten months from the date the remittitur was filed in Moeller I to prepare his defense. This is an adequate amount of time. The trial court did not abuse its discretion in denying his continuance requests.


[¶ 14.] The trial court did not abuse its discretion in denying Moeller's request for a continuance of the pre-trial DNA admissibility hearing.


[¶ 15.] After we reversed Moeller's first conviction, a status hearing was held and a proposed scheduling order was presented to the parties. The court established January 13, 1997, as the date for a Daubert3 admissibility hearing pertaining to anticipated DNA evidence. On August 23, 1996, Moeller filed an objection to such date, claiming that it afforded insufficient time to prepare. The objection was overruled.

[¶ 16.] On December 11, 1996, State filed motions identifying the DNA evidence it planned to introduce at trial, which was to be the subject of the scheduled January hearing.4 Six days later, Moeller's counsel filed a request for the continuance of the Daubert hearing, claiming that they would not have adequate time to discover and review the results because State had not yet completed testing on all anticipated DNA evidence. After a hearing, the trial court granted Moeller's motion and re-scheduled the Daubert hearing to March 3, 1997.

[¶ 17.] On February 19, 1997, Moeller filed a third Daubert hearing continuance request. He claimed that his counsel had not received the DNA test results in time to conduct a meaningful review, that they had underestimated the amount of time necessary to prepare, and that there now existed a conflict between the hearing date and the defense expert's schedule. The trial court denied the motion as untimely, stating in a letter opinion that the defense had approximately three months' advance notice of the specific DNA testing...

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