State v. New
| Citation | 536 N.W.2d 714 |
| Decision Date | 23 August 1995 |
| Docket Number | No. 18765,18765 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Theodore D. NEW, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Mark W. Barnett, Atty. Gen., Jeffrey P. Hallem, Asst. Atty. Gen., Pierre, for plaintiff and appellee.
Russell C. Molstad, Jr. of Morman, Smit, Hughes, Strain, Molstad and Haivala, Sturgis, for defendant and appellant.
Defendant Theodore D. New (New) appeals his conviction for second-degree murder resulting from the death of John Mousseaux (Mousseaux). We affirm.
On April 7, 1993, Mousseaux was bludgeoned to death on a Meade County road north of Rapid City, South Dakota. Three men--Larry Black Bear (Black Bear), Augustine White Horse (White Horse), and New--were with Mousseaux at the time of his death. The trio fled the state after Black Bear and White Horse deposited the body. New parted company with the others in Denver, Colorado.
When White Horse and Black Bear returned to South Dakota, they were apprehended and charged with first-degree murder and kidnapping of Mousseaux. Black Bear pleaded guilty to first-degree manslaughter. White Horse was tried and acquitted of first-degree murder, but later pleaded guilty to accessory to first-degree manslaughter.
New was not initially charged with any crime arising out of the incident. Although he admitted being present, New denied personal involvement in Mousseaux's killing. In fact, New was a key source in the investigation of White Horse. Throughout the summer of 1993, New aided law enforcement in the investigation. New fully cooperated with authorities and was given food and lodging for his services.
In late summer, New moved to Minneapolis, Minnesota, to seek employment. Meade County Sheriff Jamie Davis (Davis) requested that New keep in touch so he could be subpoenaed to testify at the White Horse trial. New agreed and contacted Detective Robert Krebs (Krebs) of the Minneapolis Police Department upon arrival in the city. Pursuant to New's request, Krebs relayed New's whereabouts to Davis. When New spoke to Davis on the phone, he asked Davis to check on the possibility of two warrants against him in Pennington County for failure to pay a fine and comply with a DWI sentence. New indicated that if he returned to South Dakota to testify for the State, he did not want to be subject to arrest. Davis informed New that, based on his check of the records, there was no problem with the Pennington County warrants.
On September 21, 1993, Krebs delivered a subpoena to New which had been sent to him by the Meade County State's Attorney. There was no hearing before a judge considering the materiality of New's testimony or potential hardship for him to return to South Dakota to testify. New returned to South Dakota, testified, and was paid mileage, food and a witness fee.
On October 4, 1993, the last day of the White Horse trial, Pennington County officers arrested New on two outstanding warrants. Meade County authorities filed a complaint against New for Mousseaux's murder on the same day, which was served on him while he was incarcerated for these Pennington County warrants.
On October 21, 1993, while being held in jail, New allegedly made incriminating statements about the murder to another inmate, Rodney Young (Young). Young testified that New admitted to striking Mousseaux with a ball peen hammer.
New filed a pretrial motion for psychological evaluation to determine his mental competency to stand trial. Dr. Frank Buzzetta (Buzzetta), a psychologist, examined New and filed findings with the court. Buzzetta suggested New undergo further psychological testing. After considering the issue on February 15, 1994, the trial court denied this request.
A jury convicted New of second-degree murder on May 2, 1994. He was acquitted of all remaining charges. New appeals his conviction.
I. DID THE TRIAL COURT ERR IN DENYING NEW'S MOTION TO DISMISS BASED ON PROCEDURAL DEFICIENCY?
II. DID THE TRIAL COURT ERR IN ALLOWING EVIDENCE OF WHITE HORSE'S ACQUITTAL TO BE HEARD BY THE JURY?
III. DID THE TRIAL COURT ERR IN DENYING NEW'S REQUEST FOR ADDITIONAL PSYCHOLOGICAL TESTING AND A COMPETENCY HEARING PURSUANT TO SDCL 23A-10A-3?
IV. IS THERE SUFFICIENT EVIDENCE TO SUPPORT NEW'S CONVICTION?
New filed a motion to dismiss, arguing that he testified at the White Horse trial under immunity from prosecution pursuant to SDCL 23A-14-22 and, therefore, was not subject to arrest. The trial court held that, even though New's arrest was improper due to a procedural deficiency in failing to follow the Uniform Act To Secure The Attendance Of Witnesses From Without A State In Criminal Proceedings (Uniform Act), SDCL 23A-14-19, dismissal of the charge was not warranted. 1 State argues the trial court clearly erred in setting forth inconsistent conclusions of law. We agree with State and recognize the inconsistency. "In reviewing the trial court's denial of a motion to dismiss, our inquiry is whether the circuit court abused its discretion." Opp v. Nieuwsma, 458 N.W.2d 352, 356 (S.D.1990); see also State v. Winckler, 260 N.W.2d 356 (S.D.1977).
New alleges he entered the state with immunity under SDCL 23A-14-22, prohibiting the issuance of any warrant or service of process against him while testifying as the State's witness. 2 We agree with New that this section grants immunity for witnesses testifying under the Uniform Act. However, it is clear this statute must be construed "in pari materia" with the rest of SDCL ch. 23A-14. Sander v. Geib, Elston, Frost Prof. Ass'n., 506 N.W.2d 107, 122 (S.D.1993). In this case, State did not implement the Uniform Act under SDCL 23A-14-19, since there was no certificate sent to a Minnesota judge stating that New's testimony was material and necessary for a fair adjudication of the trial, and therefore, he should be compelled to return to South Dakota to testify. 3 Faced with a similar procedural deficiency, the court in In re Schuler, 120 N.J.Super. 79, 293 A.2d 404 (1972), held that immunity from process is not available to a witness when the statutory requisites of the Uniform Act are not met. "In the absence of compliance with the procedure prescribed by [the Uniform Act] the exception from arrest and service of process ... does not exist." Id. 293 A.2d at 407.
As in Schuler, New relies on a "subpoena" which "amounted to no more than a letter or written request from someone in the prosecutor's office" that he return to South Dakota to testify against White Horse. The last sentence of SDCL 23A-14-19 provides that a certificate stating New was a material witness "shall be presented to a judge of a court of record in the jurisdiction in which the witness is found." New has presented no evidence that a judge signed or acknowledged the subpoena requesting his assistance. The subpoena presented to New was void of any force and effect to compel him to return to South Dakota to testify.
New also cites Wright v. State, 500 P.2d 582 (Okl.1972), in claiming he was granted immunity under SDCL 23A-14-22. In Wright, however, the provisions of the Uniform Act were followed, whereas, in New's situation, the trial court found they were not. Id. at 585. In order to interpret this chapter "in pari materia," a necessary condition for SDCL 23A-14-22 immunity to attach is that the witness be compelled to testify. State did not proceed under the Uniform Act. The trial court's conclusion that the statute was applicable was in error and immunity did not apply in this case.
New voluntarily entered South Dakota to cooperate in State's prosecution of White Horse. See Schuler, 293 A.2d at 404. He had adequate knowledge of criminal procedures. The fact that he knew and was clearly concerned with the consequences of returning to South Dakota amid outstanding warrants shows sufficient knowledge of the consequences in returning to the state. Furthermore, at no time did the police or prosecutors give New assurances that he would not be arrested if he testified against White Horse. New's motion to dismiss was properly denied.
New argues the court erred in allowing White Horse to testify that he had been acquitted of Mousseaux's murder and kidnapping. New claims this evidence was unduly prejudicial, and implicated him as Mousseaux's killer. We review a trial court's evidentiary rulings on an abuse of discretion standard. In State v. Moriarty, 501 N.W.2d 352 (S.D.1993), this court stated:
Id. at 355 (quoting State v. Devall, 489 N.W.2d 371, 374 (S.D.1992)).
New filed a motion in limine to prohibit State from presenting testimony of White Horse's acquittal before the jury. The trial court initially granted the motion. However, the trial court later changed its ruling based on references made by New's attorney in opening statement that White Horse was involved in Mousseaux's death. The court said that excluding evidence of White Horse's acquittal "suggests to the jury that Mr. White Horse has a lot more at stake in the outcome of this trial then he, in fact, does."
The court stated that denying the jury this evidence would mislead them into believing that White Horse's testimony against New was based upon a plea arrangement. "I can see where the jury might draw the conclusion that Mr. White Horse avoided a murder prosecution by [ ] agreeing to testify and taking the guilty plea on the accessory charge." On redirect examination, White Horse testified that he had been acquitted of the first-degree murder and kidnapping of Mousseaux.
New alleges error because he claims the prejudicial effect of this...
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