State v. Owens

Decision Date10 April 2002
Docket NumberNo. 21583.,21583.
Citation2002 SD 42,643 N.W.2d 735
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Lavance OWENS, Defendant and Appellant.
CourtSouth Dakota Supreme Court

ZINTER, Circuit Judge.

[¶ 1.] Lavance Owens (Owens) appeals from his conviction of the murder of Marvene Ross (Ross). We affirm.


[¶ 2.] On September 2, 1999, Owens came home from work around 4:00 p.m. He shared the home with his girlfriend, Amber Poppenga (Poppenga) and their child. Charles Tillman (Tillman), Carrie Tschetter (Tschetter), and Tschetter's two children also resided in this home.

[¶ 3.] Shortly after Owens arrived, Owens and Tillman left to purchase cigarettes for Poppenga. The men did not, however, come directly home. Instead, they went to a bar. Tillman believed both men were intoxicated when they finally returned around 2:00 a.m. on September 3.

[¶ 4.] When they arrived, an argument broke out between Owens and Poppenga. Poppenga testified that Owens struck her in the face and back. Owens also put his arm around her neck and put his hands on her mouth. Owens opened Poppenga's mouth in a way that she could not scream or make any noise. Moreover, while this assault was taking place, Owens told Poppenga to "shut up"; he threatened that if she "wasn't quiet, he was going to hurt [her] worse than what he was doing." Poppenga ultimately blacked out.

[¶ 5.] When Poppenga regained consciousness, she told Tschetter and Tillman what had occurred. Tillman testified that the right side of Poppenga's face, eye and lip were swollen, and the white of her eye was purple and red. Tillman and Owens then began to argue. Tillman asked Owens to leave. When Owens refused, a fight broke out between the two, and Tschetter left to call the police. Tillman again asked Owens to leave, but he refused. The fighting continued, and Owens ultimately left the home running as the police pulled into the driveway. Owens was not apprehended, and he did not return to the home until approximately 9:00 a.m. that morning of September 3.

[¶ 6.] Shortly after he returned around 9:00 a.m., Owens was detained for his assault on Poppenga. Owens agreed to go to the police station for questioning. He was subsequently arrested for the assault. During the booking process, Owens' personal property was inventoried. Two rings were recovered from Owens' pocket. These rings were later determined to belong to the decedent Ross.

[¶ 7.] Earlier that morning of September 3, at 5:30 a.m., Ross' body was discovered near some railroad tracks.1 A police officer testified that her body was found in a location under weeds where it was hard to see. It appeared that Ross' body was intentionally placed there to be out of view. The body was nude from the waist down.

[¶ 8.] The coroner, Dr. Randall, discovered large rocks inside Ross' mouth. Dr. Randall testified that the cause of Ross' death was either "obstruction of the airway from foreign objects being placed in the mouth or from obstruction from the neck, the voice box, in either an asphixial or strangulation process from injury to the neck, or both." Dr. Randall estimated that the time of death was between 4:00 a.m. and 8:00 a.m. on September 3.

[¶ 9.] On the evening of September 4, Joe Russell called the police after he watched a news report of Ross' death. Russell informed the police that he had observed Ross and Owens together near a Get-N-Go convenience store around 3:30 a.m. on the morning of September 3. A clerk at the Get-N-Go also testified that Ross and Owens were together that morning. A security camera in the store confirmed that Ross and Owens were both at the store at 3:37 a.m.

[¶ 10.] On September 4, the police executed a search warrant on Owens and his personal property at the jail. They recovered Ross' two rings that were previously inventoried. While executing the search warrant, one of the officers asked Owens whether he had some information regarding a homicide. A short time later, Owens asked to speak with a detective.

[¶ 11.] Detective Openhowski (Openhowski) questioned Owens at approximately 7:00 p.m. on September 4. The interview took place in the detective bureau's interrogation room. The interview was videotaped. Owens initially denied any participation in the homicide. He then gave several conflicting stories. Owens ultimately admitted that he inflicted the injuries that killed Ross, but he denied acting with any criminal intent.

[¶ 12.] After the interview, Openhowski left the room. Owens then called his mother from a portable phone in the interview room. Owens told his mother that he murdered someone. This phone call was also videotaped.

[¶ 13.] On September 7, 1999 Owens was charged with first-degree murder. Six days later he escaped from jail while in custody on the murder charge. He was captured around 11:30 a.m. that same day.

[¶ 14.] On June 2, 2000, a jury found Owens guilty of three counts of first degree murder: one count of premeditated murder, one count of felony murder in the course of rape or attempt to commit rape, and one count of felony murder in the course of robbery or attempt to commit robbery, all2 in violation of SDCL 22-16-4.3 Other facts will be discussed in the analysis of the issues.

[¶ 15.] Owens raises eleven issues on appeal:

1. Whether the trial court should have permitted individual-sequestered voir dire of all prospective jurors.
2. Whether the trial court should have granted additional peremptory challenges.
3. Whether the trial court should have excused certain prospective jurors.
4. Whether the trial court should have excluded evidence of the assault on Poppenga.
5. Whether Owens' statements made in the interview with Detective Openhowski were involuntary and therefore inadmissible.
6. Whether Owens had a subjective or objective expectation of privacy in a telephone call made to his mother in a police interrogation room.
7. Whether the trial court should have permitted the jury to view a transcript of the videotaped interview with Detective Openhowski and the phone call to Owens' mother.
8. Whether the trial court should have excluded evidence of Owens' escape.
9. Whether the trial court should have excluded certain autopsy photographs of the victim.
10. Whether the trial court should have granted a motion for judgment of acquittal at the close of the state's case.
11. Whether the trial court should have granted Owens' motion for a mistrial.

[¶ 16.] 1. Whether the trial court should have permitted individual-sequestered voir dire of all prospective jurors.

[¶ 17.] Because this homicide generated a great deal of publicity, Owens introduced an "attitudinal survey." The survey revealed that many prospective jurors were familiar with the facts of the case. The survey also suggested that jurors familiar with those facts might hold preconceived opinions that could undermine the trial's fairness. Under those circumstances, Owens contends that individual-sequestered voir dire of every prospective juror was required. We disagree.

[¶ 18.] SDCL 23A-20-6 provides that "the court may in its discretion allow examination of one or more jurors apart from the other jurors." (emphasis added). There is, however, no "right" or "requirement" that prospective jurors be individually examined out of the presence of other jurors. State v. Tapio, 459 N.W.2d 406, 413 (S.D.1990); State v. Bad Heart Bull, 257 N.W.2d 715, 723 (S.D.1977). Individual voir dire is only a "precautionary procedure which may be permitted, in the discretion of the trial court...." (emphasis added). Bad Heart Bull, 257 N.W.2d at 723.

[¶ 19.] Moreover, Owens fails to recognize that a potential juror's high degree of familiarity with a case is not, by itself, dispositive. SDCL 23A-20-13.1(11) allows a challenge for cause only if a prospective juror with knowledge of some or all of the material facts of the case also has "an unqualified opinion or belief as to the merits of the case." (emphasis added).

[¶ 20.] In this case, the trial court granted Owens' request for two juror questionnaires: the first addressed general background information, and the second dealt with pretrial publicity and the jurors' familiarity with the case. Defense counsel was then allowed to question a prospective juror individually if doing so was justified by his or her responses to the questionnaires or voir dire. The actual voir dire was exhaustive, and individual voir dire was permitted where justified. The trial court's procedure permitted a meaningful inquiry of each prospective juror. The denial of Owens' motion for individual-sequestered voir dire of all prospective jurors was not an abuse of discretion.

[¶ 21.] 2. Whether the trial court should have granted additional peremptory challenges.

[¶ 22.] Owens argues that the nature of the case and the pre-trial publicity required the grant of additional peremptory challenges. The trial court granted Owens one additional peremptory challenge. Owens, however, contends that he should have received ten additional peremptory challenges. He alleges prejudice because he was forced to use his peremptory challenges to remove other potential jurors who he contends expressed opinions concerning his guilt.

[¶ 23.] We have recently overruled prior authority which permitted the establishment of prejudice simply by a defendant's use of all peremptory challenges. State v. Verhoef, 2001 SD 58, ¶ 18, 627 N.W.2d 437, 440 (overruling State v. Etzkorn, 1996 SD 99, 552 N.W.2d 824). A defendant must now show prejudice arising from the seating of jurors who actually served. Id. at ¶ 14, 627 N.W.2d at 440. In this case, the mere fact that Owens used all of his peremptory challenges fails, without more, to establish prejudice.

[¶ 24.] Owens also failed to establish trial court error. It is the trial court's responsibility to ensure that a fair and impartial jury is selected. Id. at ¶ 12, 627 N.W.2d at 440. To assist...

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