State v. Runge

• Decision Date: 20 March 1978
• Docket Number: 11869,11865,11870 and 11876,Nos. 11833,11850,s. 11833
• Citation: 263 N.W.2d 876
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Dennis L. RUNGE, Lonnie Whiting, Royce Whiting, Vaughn Whiting, Becky Kapsch, and Becky Bollack, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 876

263 N.W.2d 876

STATE of South Dakota, Plaintiff and Respondent, v. Dennis L. RUNGE, Lonnie Whiting, Royce Whiting, Vaughn Whiting, Becky Kapsch, and Becky Bollack Defendants and Appellants.

Nos. 11833, 11850, 11865, 11869, 11870 and 11876.

Supreme Court of South Dakota.

March 20, 1978.

Clyde Saukerson, Davison County State's Atty., Mitchell, Peter H. Lieberman, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on the brief.

Lloyd J. Mahan, Parkston, for defendant and appellant Dennis L. Runge.

Carl F. Haberstick of Jacobson & Haberstick, Parkston, for defendant and appellant Vaughn Whiting.

Randolph F. Stiles, Mitchell, for defendant and appellant Becky Kapsch.

LeRoy S. Lassegard, Mitchell, for defendant and appellant Lonnie Whiting.

John F. Cogley of Morgan, Fuller, Theeler & Cogley, Mitchell, for defendant and appellant Becky Bollack.

Patrick J. Kirby, Mitchell, for defendant and appellant Royce Whiting.

CHEEVER, Circuit Judge.

Shortly before dawn on June 1, 1975, Mrs. Ed Liddeke of Mitchell, South Dakota, was awakened by what she described as a metal-like noise outside her bedroom window. She thought someone was tampering with their automobile which was parked just outside the bedroom. She woke her husband; the noise was repeated. She then got out of bed to go to the phone to report the matter to the police. The telephone had a long cord on it and after dialing the call, she returned to the bedroom door, looking out of the window of her bedroom while she talked to the dispatcher. At that time, she noticed an individual standing by the east side of the South Side Liquor Store which she testified was approximately 40 feet from her bedroom window. After completing the call, she continued to watch this person and testified that at one time when a couple of trucks were going by on the street in front of the liquor store, he "scooted down." He then went back of the store, then turned around, back to the east side, and walked down a road to the south. Because of the light conditions, she was unable to see this individual clearly but described him as being about the same size as her own son who was 240 pounds and six feet tall. She was unable to describe the clothing that he was wearing.

Within a couple of minutes, Officer Doug Feltman of the Mitchell Police Department arrived at the scene in his patrol car. His testimony was that it was then 4:56 a. m. He drove by the north side of the store and then around the east side where there was a drive-in window. Here he observed that a small pane of glass had been broken out of the window just beside the shuttered drive-in window. He also observed three cans of Budweiser beer on the ground just below the drive-in window. No one was in the area, and after communicating with the dispatcher, he started cruising the area in the vicinity of the liquor store, traveling in an easterly direction. At a point about two blocks from the liquor store, he met a vehicle. He turned around and followed this vehicle for approximately a block and a half. At this point, the vehicle pulled over to the side of the street and stopped. The officer testified he had not turned on his red lights or siren and that the vehicle stopped of its own accord. He pulled up behind the vehicle, got out and walked up to the vehicle. He had a flashlight in his hand and shone the light into the vehicle. He recognized by name the four males but did not know the names of either of the two females who were in the vehicle, although he indicated he had previously seen them. Dennis Runge was driving the vehicle Later that morning at about 10 a. m., Officer Feltman returned to the area of the South Side Liquor Store, made further examination there, and then drove the general area. At one point, approximately a half block east of the store, he noticed three full cans of Budweiser beer lying on the ground. He then contacted a detective in the Police Department. Together they conducted a further search of the area and located on a machinery parking lot, as they described it, two other areas where there were three cans of Budweiser beer lying on the ground. Near each of these beer cans, they noticed some distinctive footprints. They took photographs of these prints. They later returned to the liquor store, took samples of the broken glass and of the soil and broken glass beneath the window. At a later time, at the jail, clothing was removed from Lonnie Whiting and boots from Lonnie and Vaughn Whiting. A blood sample was taken of Lonnie Whiting. The blood sample, the glass particles, boots, and clothing were subsequently sent to the FBI Laboratory for identification.

Becky Kapsch was sitting next to him and Royce Whiting was sitting on the passenger side of the front seat. Vaughn Whiting was on the left side of the rear seat. Becky Bollack was sitting in the middle and Lonnie Whiting was sitting on the right side. When he shone his flashlight into the back seat, he noticed on the floor a large number of cans of Budweiser beer partially covered with two jackets and some cardboard boxes. He also noticed that Lonnie Whiting did not have a shirt on, that he was breathing heavily, and that his right hand was bleeding. About this time, a second patrol car driven by Officer Parrish arrived at the scene. Officer Feltman walked over to Parrish's vehicle, used his radio to communicate with another patrol car driven by Officer Giedd which was at the South Side Liquor Store. He made inquiry as to whether or not there was any evidence of blood on the window at the store and was advised by Officer Giedd that there appeared to be. He then returned to the stopped vehicle, told the occupants to get out, that they were under arrest for burglary. They refused to get out of the vehicle. He then returned to his vehicle to use the radio and as he did so, all the occupants of the car got out and stood in the street, locking the doors as they did so. Officer Feltman radioed for Giedd to come to their assistance, and he and Officer Parrish then proceeded to put the people from this vehicle into their patrol cars. As they were in the process, he noticed that one of the girls, later identified as Becky Bollack, had walked away from the scene of the stop. When Officer Giedd arrived, they placed one prisoner in his car, gave him a description of the girl who had walked away, and he started to search for her, subsequently locating a girl matching her description a couple of blocks from the scene of the stop. Officer Feltman then went to this area, talked to the girl, identified her as being an occupant of the vehicle and took her name, but he did not place her in custody. The other five defendants were taken to the police station and placed in detention. The automobile was hauled to the police station where the doors were opened and the beer and jackets and cardboard boxes removed.

During the trial, there was testimony that all six of the defendants had been seen together at Lake Mitchell about midnight prior to the time that the burglary was discovered. Agents of the FBI testified that some of the glass particles and the glass from the window matched glass particles found in the clothing of Lonnie Whiting. They also testified that the blood samples taken from the glass were of the same blood type as the blood of Lonnie Whiting. They further testified that the bootprints observed and photographed on the vacant lot were of the same size and design and approximately the same amount of wear as the boots taken from Lonnie and Vaughn Whiting. The clerk who had locked up the liquor store about midnight on Saturday preceding the burglary testified that there were a number of cases of Budweiser stacked on the floor immediately beneath and behind the drive-in window just in back of the glass portion which had been broken out during the burglary. Photographs taken None of the defendants testified at the trial. All the evidence produced by the State was of a circumstantial nature. All six of the defendants were tried together and the jury returned a verdict of guilty of third degree burglary as to each of the defendants. All defendants have appealed their convictions on various assignments of error.

of the interior of the liquor store the morning after the burglary showed that there were still a number of cases of Budweiser stacked on the floor but that the stack was in disarray and a number of cans had been knocked to the floor along with two cardboard bottoms of beer cases. No one was able to give any testimony as to the exact amount of beer missing from the liquor store.

Each of the defendants assigns as error that the evidence is insufficient to sustain a conviction. The defendant Becky Kapsch urges as error the fact that the court had denied her application for severance of her trial. Error was assigned also alleging that the original arrest by the officer was illegal because he did not have a basis on which to make the arrest. There were other assignments of error but we do not find any merit in them.

Dealing first with the assignment of error that the officer did not have sufficient cause to make an arrest, let us look at the facts at that stage of the case. The officer had received a radio dispatch that the South Side Liquor Store had been broken into. He arrived on the scene very shortly thereafter. He observed a broken window, he observed three cans of Budweiser beer lying on the ground just beneath the window, there was no one in the area, he started to drive, and within a matter of three or four minutes and at a point approximately two blocks from where the break-in occurred, he observed a car. He followed the vehicle. The vehicle stopped of its own accord. He walked up to the vehicle with his flashlight, observed the defendant Lonnie Whiting sitting in the back seat of the car without a shirt, breathing heavily, and with blood on his arm. He observed a large number of...