State v. Novaock

• Decision Date: 21 October 1987
• Docket Number: No. 15548,15548
• Citation: 414 N.W.2d 299
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Kurt A. NOVAOCK, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 299

414 N.W.2d 299

STATE of South Dakota, Plaintiff and Appellee, v. Kurt A. NOVAOCK, Defendant and Appellant.

No. 15548.

Supreme Court of South Dakota.

Argued Sept. 3, 1987.

Decided Oct. 21, 1987.

Jon R. Erickson, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on brief.

Kenneth W. Cotton of Wipf & Cotton, Wagner, for defendant and appellant.

SABERS, Justice.

Kurt Novaock (Novaock) appeals his conviction of murder in the first-degree while engaged in the felony of robbery under SDCL 22-16-4.

Facts

Jerry Plihal's body was discovered in his Delmont, South Dakota residence on the afternoon of June 16, 1985. The subsequent investigation revealed that he died as a result of multiple stab wounds inflicted sometime between the evening of June 13 and June 15, 1985. Novaock and Lewis Ashker were indicted on murder charges by a Douglas County Grand Jury on December 3, 1985. Ashker was tried and convicted of premeditated murder on June 10, 1986. See State v. Ashker, 412 N.W.2d 97 (S.D.1987) for details. Novaock was tried and convicted before a Yankton County jury on October 21, 1986.

Novaock claims that the evidence did not establish a prima facie case against him and was insufficient to sustain a verdict of guilt beyond a reasonable doubt. In particular, he claims that there was insufficient evidence to reasonably infer that he "participated" in the crime charged. Novaock makes two other claims of prejudicial error: the admission of photographs, slides, and a mannequin used in the medical examiner's testimony and the denial of his pretrial motion to suppress evidence and commentary concerning Ashker.

1. SUFFICIENCY OF THE EVIDENCE

Novaock argues that lack of evidence concerning theft, disposition of decedent's guns, and lack of connection between Novaock and either the guns or decedent's wallet undermine the State's case on the underlying felony of robbery.

Novaock argues that the disparity between the accounts of witnesses who testified that they saw him in a green pickup or a white van destroys the reliability of these identifications. He asserts that even if he had been seen in Delmont on June 13th, there was evidence that Plihal was still alive on June 14th. Novaock emphasizes the fact that no conclusive physical match could be made between the paint chips found near decedent's clothesline pole and the damaged area on the pickup.

Novaock contends that the absence of fingerprints linking him to the crime scene, of any evidence of "cleaning up," of blood in the pickup, and of any association with the missing guns and wallet, exonerate him on the question of participation.

The State presented evidence that the decedent's wallet--emptied of anything but identification--was found abandoned in a ditch along Betts Road north of Delmont. The fact that decedent's wallet was removed from his person at or about the time of his murder and later discarded is substantial evidence that decedent was robbed. There is no question that he was murdered. It seems logical to infer that these two crimes occurred at approximately the same time. There appears to be sufficient evidence to infer that the underlying felony was committed, and that the perpetrator or perpetrators of the robbery were also participants in the murder.

The State urges that our criminal justice system depends upon "the wisdom and integrity of twelve jurors to determine the credibility and accuracy of the witnesses, and to weigh their testimony accordingly." Four witnesses testified to seeing a pickup similar to Ashker's in Delmont on the evening of June 13th. Three witnesses testified to seeing Novaock in Delmont on June 13th. It was for the jury to determine the credibility of these witnesses.

Although no conclusive match was made between the paint chips and Ashker's pickup, the State elicited testimony as to the similarity in type and color of paint. There was also evidence that the damage to the tailgate of Ashker's pickup corresponded with the damage to the clothesline pole in decedent's backyard. This was factual evidence from which a jury could reasonably infer that Ashker's pickup collided with a clothesline pole in decedent's backyard.

In determining the sufficiency of the evidence on appeal in a criminal case the issue before this court is whether there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt. '[I]n making such a determination this Court will accept that evidence and the most reasonable inferences that can be fairly drawn therefrom, which will support the verdict.' State v. Dale, 379 N.W.2d 811, 814 (S.D.1985); (citations omitted).

State v. Davis, 401 N.W.2d 721, 722-23 (S.D.1987). The jury could reasonably believe, based on the evidence presented and reasonable inferences therefrom, that:

1) Novaock was in Delmont the evening of June 13, 1985.

2) Novaock was there with Ashker.

3) Novaock and Ashker were driving around Delmont in Ashker's pickup.

4) Ashker's pickup collided with, was damaged, and caused damage to a clothesline pole in the decedent's backyard.

5) A ball point pen, from Ashker's home town of Wayne, Nebraska was found on the ground near the damaged clothesline pole. It was found in a spot where it could have rolled out of the pickup when the pickup struck the pole.

6) Plihal was stabbed to death in the living room of his Delmont home on the evening of June 13, 1985.

7) Plihal's murderers robbed him of his wallet and guns.

8) Novaock had motive and opportunity to participate in the murder.

Although this court recently decided Ashker, supra, we do not cite it as completely controlling the factual decision in this appeal. Differences in the evidence require that this appeal be decided on its own facts. The cases cited in Ashker are sufficient authority, however, to sustain the sufficiency of the evidence in this case.

2. PARTICIPATION

"It is the rule that mere presence at the scene of a crime does not make a person a participant. It is, however, a circumstance which tends to support a finding of participation and, with other facts and circumstances, may establish guilt." State v. Wedemann, 339 N.W.2d 112, 116 (S.D.1983). In this case, facts and circumstances existed which, when considered with presence, could support a finding of participation.

Dr. Brad Randall testified that the blood spatter testing done at the crime scene demonstrated that there was an absence of blood in a place where there should have been blood. He testified that this fact could be explained by the existence of an obstruction (such as an assailant). Other testimony by Dr. Randall, based upon the appearance of the wounds, could...