State v. Owen

• Decision Date: 28 February 2007
• Docket Number: No. 24011.,24011.
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Lance G. OWEN, Defendant and Appellant.
• Court: South Dakota Supreme Court

729 N.W.2d 356

2007 SD 21

STATE of South Dakota, Plaintiff and Appellee, v. Lance G. OWEN, Defendant and Appellant.

No. 24011.

Supreme Court of South Dakota.

Argued January 8, 2007.

Decided February 28, 2007.

Lawrence E. Long, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Peter R. Jones, Debra Flute, Gregory J. Garvey, Sisseton Wahpeton Oyate, Public Defender, Agency Village, South Dakota, Attorneys for defendant and appellant.

SABERS, Justice.

[¶ 1.] Lance G. Owen (Owen) was convicted by a jury of aggravated assault and first degree murder arising out of the stabbing death of Adrian Keeble (Keeble). He raises several issues on appeal. We affirm.

FACTS

[¶ 2.] About 2:30 a.m. on January 19, 2005, Owen and his girlfriend, Dawn DeMarrias (DeMarrias), joined a group of people at Heather DeCouteau's (DeCouteau) home in Peever, SD. In the group were DeCouteau, Vanessa LaFromboise (LaFromboise), Ray Shepherd (Shepherd), Curt Snow (Snow) and the victim, Keeble. DeCouteau and LaFromboise had been drinking alcohol and smoking marijuana for the last several hours. Snow and Keeble had arrived a few minutes prior to Owen and had brought more alcohol and beer. Owen had brought some marijuana.

[¶ 3.] The group proceeded to drink and smoke Owen's marijuana. As the night progressed, Owen asked DeCouteau if she knew anyone who would trade him methamphetamines for his marijuana. Owen also talked about selling the rest of his marijuana.

[¶ 4.] At some point that night, Keeble allegedly stole some of Owen's marijuana. According to Snow, Owen was looking directly at Keeble when he stole it. According to Shepherd, Owen did not see who took it, but noticed it was gone. Owen became angered and repeatedly asked who took his "weed."

[¶ 5.] Shepherd saw Owen "grab the side of Keeble's head and make `a lot' of jabbing motions," which struck Keeble. DeCouteau saw that Owen had the fillet knife from her sink and saw him stab Keeble several times in the neck. Snow did not see Owen stab Keeble but saw the knife in Owen's hand after Keeble fell to the floor. Snow went after Owen and ended up with a serious cut on his hand. Owen managed to escape after his girlfriend, DeMarrias, threw herself on Snow and then fled with Owen. The remaining members of the group called 911 and attempted to perform CPR on Keeble. He was pronounced dead at the Indian Health Service Hospital in Sisseton.

[¶ 6.] A warrant was issued for Owen's arrest. He was found and arrested in Montevideo, Minnesota on January 20, 2005, late in the evening. Department of Criminal Investigation (DCI) agent, Craig Price (Price), drove to Minnesota and began interviewing Owen at 8 a.m., January 21. During this interview, Owen admitted he stabbed Keeble repeatedly in the throat, head and face. He was brought before a magistrate for an extradition hearing at 1:30 p.m. that afternoon.

[¶ 7.] Owen was indicted with first degree murder for the death of Keeble and aggravated assault charges for the cut to Snow's hand. Prior to the trial, Owen moved to suppress his statements to Price. After a suppression hearing, the trial court denied the motion. Owen also made a motion to dismiss the indictment alleging Peever housing was a dependant Indian community and the State had no jurisdiction over his crime. The court denied this motion finding Peever was under the jurisdiction of the State of South Dakota.

[¶ 8.] After a jury trial, Owen was found guilty of both first degree murder and aggravated assault. He received a life sentence for Keeble's murder and fifteen years for the aggravated assault, to run concurrently. He appeals and raises the following issues:

1. Whether the trial court abused its discretion in admitting other acts evidence.

2. Whether the trial court erred in denying the suppression of Owen's statements to law enforcement.

3. Whether the trial court erred by denying Owen's requested self-defense instruction.

4. Whether there was sufficient evidence to prove first degree murder.

5. Whether the State had jurisdiction over Owen's crimes.

6. Whether there was a Batson violation in the State's exercise of its peremptory challenges.

STANDARD OF REVIEW

[¶ 9.] Evidentiary decisions of a trial court are presumed correct. State v. Boston, 2003 SD 71, ¶ 14, 665 N.W.2d 100, 105. We review evidentiary decisions and the denial of a proposed jury instruction for an abuse of discretion. Id. (citing State v. Goodroad, 1997 SD 46, ¶ 9, 563 N.W.2d 126, 129). We determine "whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion." Id.

[¶ 10.] Questions of jurisdiction are legal questions reviewed under a de novo standard. Grajczyk v. Tasca, 2006 SD 55, ¶ 8, 717 N.W.2d 624, 627. Likewise, whether statements made to police were voluntary is a legal question and is reviewed de novo. State v. Holman, 2006 SD 82, ¶ 13, 721 N.W.2d 452, 456 (quoting State v. Tuttle, 2002 SD 94, ¶ 20, 650 N.W.2d 20, 30).

[¶ 11.] A challenge to the State's use of peremptory challenges is reviewed for clear error, for the finding of intentional discrimination is a factual determination. State v. Martin, 2004 SD 82, ¶¶ 13, 16, 683 N.W.2d 399, 403, 405.

[¶ 12.] 1. Whether the trial court abused its discretion in admitting other acts evidence.

[¶ 13.] Prior to trial, the trial court ruled that it would not allow testimony regarding some of Owen's prior bad acts, but the State could use testimony regarding Owen's statements and actions that happened that night. During trial, the State was allowed to present testimony that Owen brought marijuana and shared it with the group and discussed selling or trading marijuana for methamphetamines. Owen alleges the trial court abused its discretion in admitting this testimony because the prejudicial effect substantially outweighed the probative value. He also argues the trial court did not conduct the required balancing test on the record.

[¶ 14.] The defendant's other acts may be admissible under SDCL 19-12-5 (Rule 404(b)). The trial court must employ a two-step process when determining if prior bad acts should be admissible. First, the offered evidence must be relevant to a material issue in the case. State v. Jones, 2002 SD 153, ¶ 10, 654 N.W.2d 817, 819. Second, the trial court must determine "[w]hether the probative value of the evidence is substantially outweighed by its prejudicial effect." Id.; SDCL 19-12-3 (Rule 403). This balancing must be conducted on the record. State v. Andrews, 2001 SD 31, ¶ 9, 623 N.W.2d 78, 81.

[¶ 15.] The trial court did not conduct an on the record balancing of the offered evidence's probative value against its prejudicial effect. However, this evidence can still be admitted, not as "other acts" evidence, but as res gestae evidence. Andrews, 2001 SD 31, ¶ 9, 623 N.W.2d at 81; Goodroad, 1997 SD 46, ¶ 10, 563 N.W.2d at 130. Other bad acts evidence is admissible "where such evidence is `so blended or connected' with the one on trial . . . that proof of one incident involves the other[s]; or explains the circumstances; or tends logically to prove any element of the crime charged." Andrews, 2001 SD 31, ¶ 9, 623 N.W.2d at 81 (quoting Goodroad, 1997 SD 46, ¶ 10, 563 N.W.2d at 130). Moreover, "evidence of uncharged criminal activity is not considered other crimes evidence if it arose out of the same transaction or series of transactions as the charged offense." Id. Here, Owen's statements regarding the potential sale or trade of marijuana for money or methamphetamines is not "other acts" evidence, but res gestae evidence as it "arose out of the same transaction or series of transactions as the charged offense." See id.

[¶ 16.] In Goodroad, the trial court admitted criminal activities that occurred during the month leading up to the charged crime as res gestae evidence. 1997 SD 46, ¶ 11, 563 N.W.2d at 130. Here, the testimony regarding marijuana use, potential sale and/or trade for other drugs and the "theft" of marijuana occurred in a short amount of time before Keeble's murder. The potential sale of marijuana and its subsequent theft provides a potential motive for Owen's actions. The use of the marijuana and its theft "explains the circumstances" around Keeble's murder and is properly admitted res gestae evidence.

[¶ 17.] At oral argument, the question arose whether the evidence should be admitted when no FRE 403 (SDCL 19-12-5) balancing was conducted on the record. There are two reasons why the evidence is still admissible, despite the absence of an on-record 403 balancing. First, our line of precedent that requires a balancing test to be conducted on the record refers to "other acts" evidence. Andrews, 2001 SD 31, ¶ 9, 623 N.W.2d at 81; State v. Steele, 510 N.W.2d 661, 667 (S.D. 1994) (citing State v. Klein, 444 N.W.2d 16, 18 (S.D.1989)). Res gestae evidence, unlike other acts evidence, does not require a 403 balancing to be conducted on the record in order for it to be admissible. Andrews, 2001 SD 31, ¶ 9, 623 N.W.2d at 81; Goodroad, 1997 SD 46, ¶ 10, 563 N.W.2d at 130; see also State v. Pasek, 2004 SD 132, ¶ 20, 691 N.W.2d 301, 308-09 (admitting res gestae evidence with no balancing mentioned on the record). Second, the balancing test of 403 does apply to the evidence,¹ but there is nothing in our past precedent that requires the 403 balancing test to be conducted on the record.² See Andrews, 2001 SD 31, ¶ 9, 623 N.W.2d at 81 (affirming the admissibility of res gestae evidence despite the lack of an on record balancing test).

[¶ 18.] Owen also argues that Price's testimony that Owen "absconded" after the murder was so prejudicial that the court erred when it denied his motion for a mistrial. Price testified that during the course of his murder investigation he heard that Owen was a "possible absconder." The trial court struck the reference from the record once Owen objected and...