State v. Smith

• Decision Date: 30 October 1991
• Docket Number: No. 17118,17118
• Citation: 477 N.W.2d 27
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. James Elmer SMITH, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 27

477 N.W.2d 27

STATE of South Dakota, Plaintiff and Appellee, v. James Elmer SMITH, Defendant and Appellant.

No. 17118.

Supreme Court of South Dakota.

Argued May 20, 1991.

Decided Oct. 30, 1991.

Gary Campbell, Asst. Atty. Gen. (Mark Barnett, Atty. Gen., on the brief), Pierre, for plaintiff and appellee.

Mark Meierhenry and Sabrina Meierhenry of Meierhenry & Meierhenry, Sioux Falls, for defendant and appellant.

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES

On October 17, 1989, James Elmer Smith (Smith) was arrested in connection with the robbery of the First American Bank in Lincoln County, Fairview, South Dakota. A customer, Mary Stensland (Mrs. Stensland) was killed in the course of the robbery. Paul T. Wood (Wood) was also arrested in connection with the robbery. Smith was indicted on October 27, 1989. On January 9, 1990, the State filed a notice of intent to seek the death penalty. A new Indictment was filed on March 13, 1990, after the trials of Wood and Smith were severed. This Indictment charged Smith with First Degree Murder (SDCL 22-16-4, 22-30-1), First Degree Robbery (SDCL 22-30-1, 6), and Commission of a Felony While Armed with Firearms (SDCL 22-14-12). Smith was further charged as an Habitual Offender.

The trial commenced on February 28, 1990, and concluded on March 23, 1990. Smith was found guilty on all counts and sentenced to serve two concurrent life sentences on March 28, 1990. On appeal, Smith argues:

(1) He was unlawfully stopped and searched which required suppression of evidence;

(2) The Court should affirm the jury's decision not to levy the death penalty;

(3) The trial court erred in refusing to grant a transfer of venue;

(4) The trial court erred in refusing to grant the defense request for a pre-trial attitudinal survey;

(5) The trial court erred in allowing evidence of other bad acts during voir dire and at trial; and

(6) He suffered prejudice through the State's late notice that Wood and two other witnesses would testify against him.

We affirm. Due to our decision, we decline to address issue two.

FACTS

In August 1989, Wood gained employment with a traveling carnival concession, working with a man whom he knew only as "Dave." ¹ The carnival moved through various states including Minnesota, Missouri and Arkansas. In October, the pair eventually made their way to Canton, South Dakota, in a blue Chevy Monza, for which they had Alabama and Arkansas license plates. While in Canton, the pair met with one of Wood's friends, Grant Wayne Wilson (Wilson). According to Wilson, it was at this point that Smith raised the subject of robbing a bank, either in Hudson or Fairview, both South Dakota communities. Apparently, Smith tried to recruit both Wilson and his wife. However, they both declined his offer.

After a few days in Canton on the evening of October 8 or early morning October 9, Smith and Wood burglarized a bowling alley. Wood testified that Smith was the instigator and that $100 was taken in this incident. The same night, Smith and Wood burglarized Don's Clover Farm Grocery Store in Inwood, Iowa. Wood testified that Smith made the entry and located the money while he accompanied Smith.

Smith and Wood left Canton early in the morning on October 9 checking into the Cloud 9 Motel in Sioux Falls. ² They eventually left the Cloud 9 Motel and moved to the Nites Inn, also in Sioux Falls.

On October 13, 1989, Smith purchased a "stun gun." On October 14, 1989, Smith purchased a 1976 Plymouth Fury from William Hartman (Hartman). According to Hartman, the two men arrived at his home in a blue Chevy Monza with Arkansas plates. He testified that the older of the two had a southern drawl, a mustache, and long sideburns.

The next day, Sunday, October 15, 1989, Smith told Wood that they were going to rob the bank in Fairview, explaining Wood's role to be that of a "lobby man." The next morning, October 16, 1989, they began the journey to Fairview. Various weapons were placed in the trunk, including a .32 handgun and a .22 handgun. Smith drove the Plymouth while Wood took the Monza. They stopped at an abandoned farm house north of Fairview, parked the Monza and tried to erase any fingerprints off the Plymouth. Smith then drove the Plymouth into Fairview. At first, the pair waited for customers to leave the bank, but when this did not happen, they entered the bank. It was approximately 2 p.m.

At the time of the robbery, six people were present in the bank, Doris Harms (Harms) a bank employee, Mrs. Stensland, Lorraine Niemeyer (Niemeyer), and Dolores Brown (Brown) who was accompanied by her two children. According to testimony, Smith called out, "This is a bank robbery," then ordered everyone to get down on the floor. Harms complied but Niemeyer, Mrs. Stensland and the Brown family did not. Smith struck Brown on the shoulder then turned toward Mrs. Stensland and fired his gun, hitting Mrs. Stensland at the base of the neck. Mrs. Stensland bled to death at the scene within a few minutes. At this point, Smith leaped over the bank counter, ordering Harms to give him all the money in the vault. He left footprints on the countertop which matched his tennis shoes taken from him after his arrest. Approximately $14,000.00 was taken. Many of the bills were "bait money" with their serial numbers on file.

Smith and Wood left the bank and drove away. On the way out of town, they nearly collided with a car driven by Alice Van De Stroet, who saw two men in a large car. She testified the Plymouth, as depicted in a photograph taken by the State, looked like the car which passed her. The pair drove to the place where they left the Monza and switched cars. They proceeded to Sioux Falls, with Wood in the backseat, for concealment. According to Wood, it was at this point that Smith smilingly told him, "We had better get out of here, in case I hit her."

After arriving at their motel, Smith telephoned a man who had a 1978 Ford Mustang for sale. They drove the Monza to purchase the new car. Upon completion of the sale, Wood drove the Monza to the Empire Mall. Enroute, the Monza was spotted by Daryl Wagner, who heard radio reports that a suspect was being sought in a blue Monza with Arkansas plates. Wagner immediately reported his brief encounter to the police.

Smith and Wood parked in the Empire Mall parking lot and moved their possessions to the Mustang. Wood attempted to remove any fingerprints on the Monza. They then drove to Mitchell, South Dakota, leaving the Monza in the parking lot. The Sioux Falls police located the Monza that evening and informed the Lincoln County Sheriff, Kenneth Albers (Albers), of their discovery by radio message.

Prior to the robbery, Albers was looking for a man identified as "Dave" and Wood for questioning in a number of burglaries in the Canton area. He was told by one Grant Wilson (Wilson) of his encounters with "Dave" and Woods. He aided the police on composite sketches of Smith, working with Brown and Niemeyer.

After receiving the telephone call from the Sioux Falls Police indicating that the Monza was found abandoned in the Empire Mall lot, Albers was informed that Wood had checked into the Super 8 Motel in Mitchell. Albers hurriedly left for Mitchell. By the time Albers acquired a search warrant for the motel room, the room was empty.

Albers returned to Canton at approximately 5:30 a.m. on Tuesday, October 17, 1989. Albers updated the radio message, adding that the suspects were believed to have been in the Mitchell area before midnight on October 16 and that they had purchased a 1978 white and blue Dodge Aspen with South Dakota license plates. It was believed that the suspects left Mitchell. Later that day, Albers received word that the Aspen had been spotted west of the Missouri River and was being followed by the Highway Patrol. A roadblock was arranged at which the Aspen was stopped and the driver, Smith, was ordered out of the vehicle. Smith was advised of his rights and placed under arrest. After a search of his pockets, a large amount of currency was removed from Smith's pockets.

At the time of his arrest, Smith was carrying an Oklahoma driver's license in the name of "David Ellis McCalip." One bag of sixty $100 bills was taken from Smith. Twenty-five $20 bills found in Smith's possession had serial numbers matching marked bills taken from the bank in Fairview. The Aspen was subsequently searched pursuant to a warrant and $4,350 was found in a bag in the trunk. The trunk also contained a police equipment belt with a .357 Magnum revolver. A box of .22 Super X long rifle hollow point bullets was found in a cassette tape box in the backseat of the Aspen. Also, in the car were a police radio call book, a radio scanner, a stun gun, and police uniform clothing. Wood was eventually arrested in Canby, Minnesota.

DECISION

I. Smith was not unlawfully stopped and searched.

Smith argues that the facts, when taken together, do not constitute probable cause for his arrest. The trial court's findings of fact resulting from a suppression hearing will be upheld unless they are clearly erroneous. State v. Pfaff, 456 N.W.2d 558 (S.D.1990). Here, Smith points to no finding of fact which is alleged to be clearly erroneous. Here, we must uphold the trial court's findings because they are not clearly erroneous and are absolutely supported by the record.

Whether these facts, taken together, add up to probable cause is a separate question, and we review the trial court's determination under a different standard of review. This Court will overturn the trial court's decision to suppress or not to suppress if we find the trial court has exercised its discretion to an end or purpose not justified by, and clearly against reason and evidence. State v. Zachodni, 466 N.W.2d 624 (S.D.1991).

Moreover, the definition of probable cause employed by this Court is a question of law, not of fact or of discretion, and, as such, is fully reviewable de novo, with no presumption...