State v. Muetze

• Decision Date: 22 May 1985
• Docket Number: No. 14258,14258
• Citation: 368 N.W.2d 575
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Kenneth Paul MUETZE, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 575

368 N.W.2d 575

STATE of South Dakota, Plaintiff and Appellee, v. Kenneth Paul MUETZE, Defendant and Appellant.

No. 14258.

Supreme Court of South Dakota.

Argued April 18, 1984.

Decided May 22, 1985.

Richard Dale, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Allen J. Eide of Gribbin, Burns & Eide, Watertown, for defendant and appellant.

MORGAN, Justice.

A grand jury investigated the death of Darwin Florey (Florey) and indicted Kenneth Paul Muetze (Muetze) for first-degree murder. Muetze was tried and convicted by a jury. He appeals that conviction. We affirm.

Florey's death was allegedly the culmination of a series of events that began on January 1, 1983, when Todd Florey (Todd), the victim's son, and a friend, Mike Friske (Friske), met Muetze in a Watertown, South Dakota, bar. Todd, Friske, and Muetze left the bar and went to Muetze's car where he opened his trunk and showed Todd and Friske a box of marijuana. Friske later broke into Muetze's car trunk, damaged the trunk cover in the process, and stole the marijuana. Todd then drove Friske to his pickup truck, which was parked at the Florey residence. Before Friske left for the evening, he left approximately one ounce of the stolen marijuana with Todd.

When Muetze and two companions, John Paulson (Paulson) and Brad Froke (Froke), discovered that the marijuana was gone, Paulson and Froke obtained a shotgun, the eventual murder weapon, which Muetze apparently intended to use in order to intimidate Todd. Muetze and his companions then visited the Florey residence twice in the early hours of January 2, 1983. On Muetze's first visit, Florey gave him permission to search Todd's car for a fictitious set of lost keys. On the second visit, Muetze spoke to Todd and told him he had discovered evidence in Todd's car which indicated that the marijuana had been in that car. Muetze telephoned the Florey residence and spoke to Todd four times after the second visit. Todd testified that "[h]e [Muetze] said that he was going to get me and not only was he going to get me, he was going to get my family." Todd made arrangements with Friske to return the marijuana to Muetze. The marijuana fell into Froke's possession before it reached Muetze. Froke was subsequently arrested and the police confiscated Muetze's marijuana.

Several of Muetze's friends testified that at various times between January 1, the night Friske stole the marijuana, and January 26, 1983, the night of the murder, Muetze made threats against Todd and the Florey family. Muetze allegedly told at least two people that he was going to shoot the Floreys with the shotgun Paulson and Froke had obtained for him.

Todd eventually returned to Brookings and resumed classes at South Dakota State University. The night of the murder, Muetze, Paulson, Brenda Strohfus (Strohfus) and Brenda Matteson (Matteson) drove to Brookings, South Dakota, in Muetze's car. Todd testified that Muetze walked up to him in a Brookings bar that evening, grabbed him by the throat and requested payment for the damage to his trunk. Todd struck Muetze with his fist, breaking his glasses and cutting him over the eye. Todd then left the bar. As a result of the altercation, the bar management told Muetze and his companions to leave the premises. They drove around Brookings looking for Todd and when they did not find him they drove back to Watertown.

Between Brookings and Watertown, Muetze said, at least twice, that "he was going to kill Todd's parents...." Upon returning to Watertown, Muetze insisted they drive past Florey's house before going to the trailer that Muetze and Paulson shared. When they finally arrived at the trailer, Strohfus and Matteson waited in the car while Muetze and Paulson went inside. Muetze returned to the car with the murder weapon and told Strohfus and Matteson that he was going to Florey's by himself because he did not want anyone else involved. The two women left the car and entered the trailer.

Muetze returned to the trailer with the shotgun within a few minutes and said "I just blew old man Florey away...." He then ejected a spent shell from the shotgun. Analysis demonstrated that the shell was fired from the shotgun Muetze was carrying and that it had contained the type of rifled slug which killed Florey. Muetze and Strohfus then went to her apartment. Muetze cleaned himself off in Strohfus' bathroom and told her to empty her garbage because there were "blood and guts" in it that could be evidence against him. While in Strohfus' apartment, Muetze telephoned a friend and explained that he had killed Florey and needed an alibi. The following morning, on January 27, 1983, the police evacuated and surrounded the apartment building. Muetze surrendered and was taken into custody.

On January 28, 1983, Muetze made several discovery requests. A circuit court judge partially granted Muetze's requests and ordered the prosecutor to turn over a copy of the Department of Criminal Investigation's (DCI) report and a detailed summary or transcript of Muetze's January 27 conversation with the police. On March 7, 1983, Muetze made further discovery requests. The trial judge again granted a number of the requests and denied others. This appeal is based in part on the trial court's partial denial of Muetze's discovery requests. The relevant motions will be discussed below as they become pertinent.

A jury found Muetze guilty and he was sentenced to life imprisonment. He raises ten issues on this appeal: (1) whether a defendant is entitled, upon motion, to the investigating officers' original notes; (2) whether a defendant is entitled to any information the prosecution may have which might be used to impeach the credibility of prosecution witnesses; (3) whether a trial judge may refuse to admit testimony which alleges that a police officer instructed a witness not to cooperate with a court authorized defense investigator; (4) whether the appointment and the grant of additional funding for a defense investigator is within the trial court's discretion; (5) whether a trial judge may restrict the scope of voir dire by requiring the attorneys to question fifty-four prospective jurors simultaneously; (6) whether a trial judge may properly prohibit voir dire questioning on the prospective jurors' beliefs regarding drug users' propensity for violence; (7) whether the trial court erred when it refused to permit defendant's counsel to question a prospective juror, who admitted prejudice, on the juror's beliefs regarding the presumption of innocence and the burden of proof; (8) whether the trial court properly weighed the probative value against the prejudicial effect when it admitted colored photographs of the victim's body into evidence; (9) whether a trial court may prohibit a defendant's testimony regarding out-of-court statements made by prosecution witnesses; and (10) whether polygraph results or prior inconsistent statements, both of which discredit a prosecution witness, should be admitted into evidence in order to impeach the witness' credibility.

From almost the date of his appointment, defense counsel beset the trial court with an array of motions, the bulk of which were granted in full or in part. In the first two issues, Muetze attacks the denial of two of the discovery motions.

Muetze first contends that a defendant is entitled, upon motion, to the original notes of the investigating officers. Muetze was given typed or handwritten reports from each investigating officer on February 8, 1983. On March 7, he moved for an order allowing him to examine, inspect, photograph, or copy the officers' original notes. This request was apparently made in search of information which could be used to impeach prosecution witnesses. On March 10, he petitioned for an order to accelerate the provisions of SDCL 23A-13-7 through 23A-13-9 and SDCL 23A-13-10(3) in order to allow him access in advance of trial to testimony given before the grand jury. The trial court granted his motion for access to the grand jury transcript and under the same order denied his motion for production of the investigating officers' original notes; his request for the names and addresses of all persons known by the prosecutor to have, seen, or heard anything unusual in the vicinity of the crime; and, his request for any information which could be used to impeach prosecution witnesses.

SDCL 23A-13-5 states:

Except as provided in Secs. 23A-13-1, 23A-13-2 and 23A-13-4, this chapter does not authorize the discovery or inspection of reports, memoranda, or other internal prosecution documents made by the prosecuting attorney or other employees of law enforcement agencies in connection with the investigation or prosecution of the case, or of statements made by the prosecution witnesses or prospective prosecution witnesses except as provided in Secs. 23A-13-7 to 23A-13-10, inclusive.

This statute has two parts. First, the statute explicitly prohibits authorization of "discovery or inspection of reports, memoranda [notes], or other internal prosecution documents made by ... employees of law enforcement agencies" except for (1) statements made by the defendant which are in the prosecutor's possession or intended for use at trial, discoverable under SDCL 23A-13-1; (2) the defendant's prior criminal record, discoverable under SDCL 23A-13-2; and (3) the results and reports of all examinations, tests and experiments, discoverable under SDCL 23A-13-4. The investigating officers' notes clearly do not fall within the foregoing categories.

The second part of SDCL 23A-13-5 precludes authorization for discovery of statements by a prosecution witness until after the witness has testified on direct examination per SDCL 23A-13-6. SDCL 23A-13-10 defines the term "statement," as used in SDCL 23A-13-7 to 23A-13-9, inclusive, in relation to any witness called by the prosecuting attorney, to mean

(1) A written statement...