State v. Sabers, 16287
| Decision Date | 27 April 1989 |
| Docket Number | No. 16287,16287 |
| Citation | 442 N.W.2d 259 |
| Parties | STATE of South Dakota, Plaintiff and Respondent, v. Samantha Jo SABERS, Defendant and Appellant. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Roger R. Gerlach, McCook County State's Atty., Salem, Janine Kern, Asst. Atty. Gen., Pierre, for plaintiff and respondent; Roger A. Tellinghuisen, Atty. Gen., Pierre, on the brief.
James A. Eirinberg of Carlsen, Carter, Hoy & Eirinberg, Sioux Falls, for defendant and appellant.
Samantha Jo Sabers (Samantha) was convicted of second degree burglary, SDCL 22-32-3, aggravated assault, SDCL 22-18-1.1 and attempted first degree murder, SDCL 22-16-4 and 22-4-1. She appeals her conviction alleging three trial court errors. After reviewing the voluminous record and analyzing the issues presented, we affirm the conviction.
On August 10, 1987, Andrew Sabers (Andrew), an 88 year old veteran, was released from the Veteran's Administration Hospital in Sioux Falls following surgery. He returned to live in his apartment in Salem, South Dakota.
On September 6, 1987, Samantha, Andrew's granddaughter, along with her friend Julie Jaeb, a/k/a Julie Hunger (Jaeb), 1 arrived in Salem. The next day, shortly before noon, they drove to a service station to get a flat tire fixed. The owner testified that Samantha and Jaeb left the station on foot in the direction of Andrew's apartment prior to the tire being repaired.
Between 11:00 a.m. and 12:00 noon, Andrew received a visit from a woman claiming to be a representative of the Veteran's Administration (V.A.) who was supposedly there to see how his recovery was progressing. Andrew later identified this woman as Jaeb.
Jaeb asked to use the bathroom twice, claiming she had consumed a lot of coffee that morning. Andrew remained in his living room where he could see neither his bathroom nor his bedroom. After the two bathroom visits, Jaeb said she needed to go down town for a half an hour and would return later.
Upon her second arrival at Andrew's apartment Jaeb again asked to use the bathroom. According to the state's theory, she instead entered the bedroom and took $1,006 in cash from two billfolds in a jacket hanging in Andrew's closet. $500 of this was in $50 bills.
Earl Sabers admitted at trial that he had previously told his daughter, Samantha, that Earl's father, Andrew, kept money in Andrew's apartment. On September 7 Earl saw Samantha and Jaeb at his home around noon. Donnie Sabers, the operator of the gas station, testified that Samantha and Jaeb returned together to his station to claim their car and repaired tire about an hour after they had left.
In the next few days Andrew discovered the money was missing but did not report the matter to the police. On September 11 and 12 Jaeb was known to be in possession of many fifty dollar bills and other cash. Her sole source of income was a monthly A.D.C. check in the amount of $360. During this period of time, no one else was in Andrew's apartment other than his son Earl.
On September 18, 1987, Andrew received a call from the same woman who said she was the V.A. representative. She told Andrew that she would be coming back to see him again. This call was traced to the mobile home where Jaeb lived in Mission, South Dakota. At trial, the other adults who lived in the mobile home or had regular access to the mobile home's phone testified that they did not make that call.
Early in the afternoon of September 18, Jaeb and Bill Antoine (Antoine) drove from Mission to Salem. En route Jaeb admitted to Antoine that she had visited Andrew a few weeks before posing as a V.A. health representative. Upon arrival in Salem, they picked up Samantha.
The trio then headed for Mitchell. On the way, Antoine heard the women discussing their plan to make a duplicate key to Andrew's apartment. Samantha stated that she had surreptitiously obtained the key from her father Earl. After the key was made, the group returned to Salem.
That night, Samantha told Bill Westhoff (Westhoff), "they [Jaeb and Samantha] were going to do something drastic," and that if anybody asked him, he should state that Samantha and Jaeb were at a party all night. About 10:30, Samantha, Jaeb and Antoine left that gathering.
Antoine testified that the three drove around Salem and Samantha and Jaeb discussed going into Andrew's apartment. The two women left the car for approximately fifteen minutes. They returned nervous and excited. They stated that they "couldn't find it," and had awakened Andrew. They vowed to "try again." After driving around for a while and a possible second attempt at entry into the apartment, Samantha stated that Andrew had
Andrew testified that he locked the inside door before retiring on September 18, but left the outer door unlocked. About 11:45 he awoke and saw a woman in his bedroom rummaging through his dresser drawers. When she saw he was awake, she quickly left the apartment. He did not clearly see her face but, based on her build, thought it was the same woman who claimed to be the V.A. representative.
He discovered that $120 was missing from his wallet. He locked both the outside and inside doors and returned to bed. He did not call the police.
While the trio of Antoine, Jaeb and Samantha drove around, the two women discussed the situation. Samantha convinced Jaeb that Andrew must be killed. Further discussion between the pair resulted in a determination that a tire iron would be used to carry out this plan.
Jaeb was dropped off near Andrew's apartment. Samantha and Antoine continued to drive the car around Salem and were seen by a local policeman around 2:30 a.m. on September 19.
Andrew testified that between 2:00 a.m. and 3:00 a.m. a woman called through his partially open window, Andrew thought the woman was Samantha. He got up, turned on his kitchen lights and unlocked the outer door and inner door.
At this point the woman, who was actually Jaeb, rushed through the doorway. Andrew tried to get to the telephone to call the police. Jaeb pulled out a tire iron or similar device and struck Andrew repeatedly on the head. This attack took place in the lit kitchen. Andrew received eight or nine blows to his head and began bleeding profusely. Although severely injured, he maintained consciousness for most or all of the ordeal. The examining physician who treated Andrew later testified that any of these blows could have been fatal.
Andrew asked Jaeb to call the police. She pretended to make such a call, but she had previously ripped the cord off the telephone. Jaeb then told Andrew that her husband was across the street, and if he attempted to summon help, the husband would shoot Andrew with a gun. Jaeb then left, leaving Andrew lying on the floor bleeding heavily. Despite his serious injuries, Andrew was able to crawl to a neighboring apartment and summon help.
Jaeb returned to Samantha and Antoine who were waiting in the car. Jaeb said that there was blood all over Andrew's apartment and that she just kept hitting him. According to Antoine, they dropped off Samantha at her father's apartment and then headed back for Mission. On the way, at Jaeb's instructions, Antoine tossed the tire iron and telephone cord out the window.
Out of five women in a photo line-up Andrew identified Jaeb as his assailant on September 24. On October 2, 1987, he again identified Jaeb in a live line-up of six women of similar appearance. See State v. Jaeb, supra. At trial, Andrew identified Jaeb no less than six times as his attacker.
Jaeb and Samantha were indicted for second degree burglary concerning the September 7 incident. They were also indicted for first degree burglary, aggravated assault and attempted first degree murder in regard to the events of September 18 and 19. The jury convicted both of second degree burglary, aggravated assault and attempted first degree murder but acquitted them of the first degree burglary.
In dealing with the issues of joinder and severance of counts of criminal charges, South Dakota has enacted legislation which is based on Federal Rules of Criminal Procedure Secs. 8(a), 13 and 14. State v. Closs, 366 N.W.2d 138 (S.D.1985).
SDCL 23A-11-1 authorizes joinder of indictments or informations for trial. 2 The criteria for the trial court to follow when considering this issue is set forth in SDCL 23A-6-23:
Two or more offenses may be charged in the same indictment or information in separate counts for each offense, if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
However, the satisfaction of one or more of these criteria does not automatically result in joinder. SDCL 23A-11-2 mandates that the trial court further analyze the joinder procedure in the context of potential prejudice to the party seeking severance when so requested by that individual:
If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election of separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires ...
The granting of severance is not a matter of right but rests with the discretion of the trial court, to be exercised in the interest of justice. State v. Andrews, 393 N.W.2d 76 (S.D.1986).
If the requirements of SDCL 23A-6-23 for joinder are met, then the burden of...
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