State v. Pickering, 11034

• Decision Date: 25 May 1973
• Docket Number: No. 11034,11034
• Citation: 207 N.W.2d 511,87 S.D. 331
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Patrick PICKERING, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 511

207 N.W.2d 511

87 S.D. 331

STATE of South Dakota, Plaintiff and Respondent, v. Patrick PICKERING, Defendant and Appellant.

No. 11034.

Supreme Court of South Dakota.

May 25, 1973.

Gordon Mydland, Atty. Gen., Walter W. Andre, Asst. Atty. Gen., Pierre, S.D., George Weisensee, State's Atty., Minnehaha County, Sioux Falls, for plaintiff and respondent.

Sidney B. Strange, Sioux Falls, for defendant and appellant.

WOLLMAN, Justice.

Defendant was charged with the murder of one Lila Mae Scott. He was convicted by a jury of first degree manslaughter and was sentenced to 42 years' imprisonment in the state penitentiary.

Viewed in the light most favorable to the verdict, the evidence revealed that Lila Mae Scott, age 15, was dropped off by a friend at Boyd's Grocery, located on Highway 77 just north of Sioux Falls, South Dakota, at approximately 6:45 p.m., Sunday, September 27, 1970. Sometime prior to 8 o'clock that evening, defendant and his brother Michael left defendant's home and drove to Boyd's Grocery for the purpose of buying some soft drinks. After the purchase had been made, defendant engaged in a conversation with Miss Scott, who was then standing outside the store. Miss Scott got into defendant's car. Defendant, Michael and Miss Scott drove to a tavern where defendant purchased some beer. After the three of them had spent some time driving around Sioux Falls drinking beer, they drove to Dell Rapids, South Dakota, where they purchased some more beer. From Dell Rapids they drove to Colton, South Dakota, and then back to Sioux Falls, where they arrived at approximately 10:30 p.m. that evening. Upon returning to Sioux Falls, the trio went to the Playboy Tap on North Phillips Avenue where they drank some more beer. As the three left the Playboy Tap at approximately 11 p.m., they met defendant's employer, Harvey Karlin, Jr., who had a short conversation with the defendant. Defendant then drove Michael to his home, which was located approximately one block from defendant's home. After Michael left the car, Miss Scott got into the front seat of the car from where she had been sitting in the back seat and she and the defendant drove away.

Shortly before noon on Tuesday, September 29, 1970, a fisherman found Miss Scott's body floating face down in the Big Sioux River at a point approximately 200 feet south of the bridge on Interstate Highway 90 north of Sioux Falls. External injuries consisted of many cuts on the face and several on the back of the head, bruises on the left forearm and a compound fracture of the middle finger on the left hand. The coroner (a pathologist) testified that it appeared as though Miss Scott had been struck with some blunt object. He testified that Miss Scott had suffered skull fractures and that there was a very good chance that she was unconscious at the time she was put into the river. He stated that the cause of death was drowning and that death had occurred during a period from 18 to 38 hours prior to 2:30 p.m. Tuesday, September 29, 1970.

The state's principal witness was Michael Pickering, defendant's brother. When Michael was first questioned by the Sioux Falls police on October 12, 1970, he gave a written statement that implicated two of his friends in the slaying of Miss Scott. He gave another statement to the officers on October 13, 1970, which implicated defendant in the killing.

Michael testified that at approximately 9 a.m., Monday, September 28, 1970, defendant and his wife came to Michael's home. Defendant asked Michael to come with them and they drove north and east of Sioux Falls on Interstate 90. During the course of this drive defendant told Michael that he had killed Miss Scott by striking her with a flashlight and then with a tire iron. He pointed out to Michael the place where he had killed Miss Scott, which was at a point neat the Interstate Highway bridge over the Sioux River north of Sioux Falls where the body was later found near a city water well. Michael testified that he could see some blood on the cement near the well house complex, blood that was later observed by the investigating officers.

The three returned to defendant's home at approximately 10 a.m. ¹ Defendant showed Michael the clothes that he had worn on the previous evening; they appeared to have blood on them. Defendant took the clothes and shoes outside the house, poured some gasoline on them, and burned them. He then came into the house and got a styrofoam fishing bucket and took it outside. Defendant then returned to the house and asked Michael to come with him. Defendant placed the styrofoam bucket in the trunk of the car. Michael observed that the bucket contained what appeared to be ashes. Defendant, accompanied by his wife and Michael, drove to an area outside of Sioux Falls known as Cactus Hills. Defendant took the styrofoam bucket from the car and carried it over a hill into a ravine. ²

Michael testified that he had seen a tire iron and a flashlight between the front bucket seats of defendant's automobile on Sunday, September 27, 1970. He did not see the tire iron on Monday, September 28th, but he did see the flashlight between the front seats of defendant's car and observed that it was dented on the handle end. On Tuesday, September 29, defendant told Michael that he had gotten rid of the tire iron and flashlight by throwing them into the garbage truck that he drove at his place of employment.

According to defendant's version of the facts, he drove to his home at approximately midnight after the trip to the Dell Rapids-Colton area and the brief stop at the Playboy Tap. He told Michael that he could take Miss Scott home if he wanted to. Defendant went to bed and fell asleep. He was awakened sometime later when Michael returned in defendant's car and brought the car keys into the house. Defendant testified that he had never seen Miss Scott prior to the evening of September 27, 1970, and that he did not recall hearing her name during the course of their travels later that night.

Although defendant raises numerous claims in his assignments of error, only several of them warrant any extended discussion.

Defendant's claim that the evidence was insufficient to support the verdict is without merit. Although there were certain variances and inconsistencies between Michael's statement of October 13, 1970, and the testimony that he gave at the trial, the jury could well have found from his trial testimony, together with that of other witnesses for the state, that the events of the evening and night of September 27, 1970, as well as those of the following days, occurred as set forth above.

Prior to trial, defendant made a motion for an order requiring the state to furnish defendant virtually everything in the way of tangible and intangible evidence that the state might have concerning the case against defendant. The court's order entered pursuant to this motion granted defendant substantially what he had asked for; it denied that portion of the motion which had requested all investigative reports of members of the police department and other investigating officers, the names of any persons privy to any statements of any proposed witnesses for the plaintiff and the substance of the statements overheard, and an opportunity on the part of defendant's counsel to view, and if requested, obtain copies of police logs, indexes and records kept in the ordinary course of police filing and recording. Defendant contends that the court erred in denying this portion of the motion to produce. We conclude that there was no abuse of discretion on the part of the trial court in refusing discovery of the above mentioned materials. State v. Wade, 83 S.D. 337, 159 N.W.2d 396. Much of what defendant desired to view and copy would of necessity have contained the subjective, impressionistic notes of the officers assigned to the case. We believe that the state divulged to defendant that which defendant was properly entitled to. We agree with the proposition that, 'We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.' Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706, 713. Accord, United States v. Brumley, 10 Cir., 466 F.2d 911.

During a conference in chambers at the conclusion of the state's case in chief, defendant's counsel renewed his motion that the state be required to disclose to the defendant any evidence favorable to the defendant. In response to this motion, the court extensively interrogated the state's attorney as to any specific items of evidence of which the state had knowledge that might be favorable to the defendant and was informed by the state's attorney that he knew of no such evidence. The state's attorney also informed the court and defense counsel that the state had talked to Michael Pickering's girl friend prior to trial and had learned from her that Michael had told her that defendant had killed Miss Scott....