State v. Springer-Ertl

• Decision Date: 26 April 2000
• Docket Number: No. 20723.,20723.
• Citation: 2000 SD 56,610 N.W.2d 768
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. Debra Kay SPRINGER-ERTL, Defendant and Appellee.
• Court: South Dakota Supreme Court

610 N.W.2d 768

2000 SD 56

STATE of South Dakota, Plaintiff and Appellant, v. Debra Kay SPRINGER-ERTL, Defendant and Appellee.

No. 20723.

Supreme Court of South Dakota.

Argued October 20, 1999.

Reassigned January 6, 2000.

Decided April 26, 2000.

Mark Barnett, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Pierre, for plaintiff and appellant.

Pamela K. Ireland, Kadoka, for defendant and appellee.

KONENKAMP, Justice (on reassignment).

[¶ 1.] The State of South Dakota appeals the grant of a new trial to the defendant. We affirm.

A.

[¶ 2.] The defendant, Kay Springer-Ertl, is the mother of Shawn Springer. Sixteen-year-old Shawn and another juvenile were charged with the January 26, 1996, murder, kidnapping, and robbery of taxicab driver Michael Hare near Fort Pierre, Stanley County, South Dakota. Extensive publicity convinced the judge to move Shawn's trial to Martin in Bennett County. It was scheduled to begin on August 5, 1996.

[¶ 3.] Two weeks before her son's trial date, the defendant created multiple copies of an 8½ x 11 inch laminated poster. In large letters at the top, the poster declared: INNOCENT!! Beneath was a photograph of a smiling young man, with a caption identifying him and his hometown. Below that was the message:

Shawn Springer is accused in the murder, kidnapping and robbery of Michael Hare, a Pierre taxicab driver.

Shawn took a Polygraph (lie detector test) and this proved he knew nothing beforehand of the events that took place that night, or that he took part. The court will not allow this evidence into trial. The people of South Dakota must know an innocent young man is being persecuted. Shawn's trial starts August 5TH 1996.

(emphasis in original).

[¶ 4.] On July 20, 1996, the defendant, her husband, and her oldest son drove to Martin. They rented a motel room and the defendant set about distributing her posters. She approached various businesses in town, asking each to display one. Most agreed. Some of the businesses were closed, so she hung the posters on their windows. On her way out of town on July 21, she also deposited posters on some vehicles outside a church. In total, she distributed approximately thirty. No posters were distributed in any other community but Martin.

[¶ 5.] On July 22, Agent Gortmaker of the South Dakota DCI and a detective from Minnesota contacted the defendant at her home in Marshall, Minnesota. As they sat at her kitchen table, the defendant, in response to the officers' questions, admitted to circulating the posters, saying she "wanted people to know about the polygraph and the polygraph results." Within forty-eight hours, a number of the posters had been seized by law enforcement officers. Many others had been discarded by the business owners. Nonetheless, the judge, perceiving that the jury pool had been contaminated, postponed the trial. Shawn later pleaded guilty under a plea bargain.

[¶ 6.] The defendant's poster was not addressed to anyone in particular. It could not have been directed specifically to any juror because no prospective jurors had been summoned. One hundred fifty persons had been "drawn" from the county master list, but no one had yet been called for duty on Shawn's case. According to Linda Larson, the Bennett County Clerk of Courts, prospective jurors for the August 5 trial would not have been summoned until ten days beforehand. Because the trial was later cancelled, no jurors were ever summoned.

[¶ 7.] The defendant was charged with three counts of attempting to influence jurors under SDCL 22-11-16, a Class 6 felony, each offense punishable by a maximum of two years imprisonment in the state penitentiary or a fine of two thousand dollars, or both.¹ SDCL 22-6-1(8). After a preliminary hearing, the defendant was bound over to circuit court to stand trial. Upon the arraignment, however, the circuit court dismissed the information and the State appealed. We reversed because after the case was bound over, the circuit court did not have authority to dismiss an information for lack of probable cause. The case was remanded for trial. See State v. Springer-Ertl, 1997 SD 128, 570 N.W.2d 39

.

[¶ 8.] Crucial to imposing criminal penalties under SDCL 22-11-16 is a finding that the accused attempted "to influence a juror, or any person summoned or drawn as a juror[.]" At trial, the defendant repeatedly denied any intent to influence jurors. In finding her guilty of Count 2, a violation of SDCL 22-11-16(2), the jury apparently concluded that because she distributed her posters only in the town of Martin, she did intend to influence people "drawn" as potential jurors. After the verdict, the court granted the defendant a new trial. As the poster was publicly distributed, the judge reasoned, the jury should have been advised on what distinguishes the crime of attempting to influence jurors from protected speech under the First Amendment.

B.

[¶ 9.] Granting a new trial lies within a court's discretion and that discretion will not be overridden unless it is abused. Delzer v. Penn, 534 N.W.2d 58, 60 (S.D.1995) (quoting Fullmer v. State Farm Ins. Co., 498 N.W.2d 357, 361 (S.D. 1993) (citation omitted)). We require a clearer showing of abuse of discretion when a new trial was granted than when it was denied. Id. (quoting Fullmer, 498 N.W.2d at 361 (citation omitted)). Trial courts are empowered under SDCL 15-6-59(a)(7) to grant a new trial for errors made in trial. In granting the defendant's new trial motion, the court cited its own error in failing to include jury instructions on freedom of speech under the United States Constitution and the Constitution of the State of South Dakota. The Stateargues that the defendant was not entitled to such instructions.² In the State's view, government may regulate public expression to assure that the administration of justice is free from outside control and influence. Speech intended to influence jurors, the State contends, is constitutionally unprotected, and because the jury found that the defendant did intend to influence potential jurors, the First Amendment avails her nothing.

C.

[¶ 10.] This is no ordinary jury tampering case. Jurors were not solicited directly or approached indirectly through an intermediary. On the contrary, the defendant was charged with attempting to influence one or more unidentified persons drawn but never summoned for jury service. Her attempt, the State asserts, was consummated by simply putting up her posters. Neither side cites us to any case with even remotely similar facts. More typical are cases like United States v. Ogle, 613 F.2d 233 (10th Cir.1979), where the perpetrator had an acquaintance offer to give a juror a copy of his jury nullification pamphlet. Most offenses are committed directly, when, as in United States v. Jackson, the defendant approached two venirepersons and told them that a friend was on trial and the "federal boys are trying to railroad" the friend, and to listen for the word "harassment." United States v. Jackson, 607 F.2d 1219, 1220 (8th Cir.1979), cert. denied, 444 U.S. 1080, 100 S.Ct. 1032, 62 L.Ed.2d 763 (1980).

[¶ 11.] The defendant's poster approaches fully protected political speech because it was couched as public criticism of the government in its handling of a criminal prosecution. "Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs." Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 838, 98 S.Ct. 1535, 1541, 56 L.Ed.2d 1, 10 (1978) (quoting Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484, 488 (1966)). Government, including courts and judges, possess "no greater immunity from criticism than other persons or institutions." Id. at 839, 98 S.Ct. at 1541, 56 L.Ed.2d at 10 (citation omitted). Americans hold the prerogative to "criticize public men and measures—and that means not only informed and responsible criticism, but the freedom to speak foolishly and without moderation." Baumgartner v. United States, 322 U.S. 665, 674, 64 S.Ct. 1240, 1245, 88 L.Ed. 1525, 1531 (1944).

[¶ 12.] Here, the criticism was focused in one small community where a trial was about to begin. Yet no poster was submitted directly to any juror whose name had been drawn, not even covertly by posting one at a place, such as the courthouse, where only jurors and court personnel would most likely see it. Concededly, the defendant can hardly be characterized as a concerned citizen who was expressing a conventional grievance. But the First Amendment protects speech even if biased or improperly motivated. See First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 776-77, 98 S.Ct. 1407, 1415-16, 55 L.Ed.2d 707, 717 (1978)

; Eastern RR Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 139, 81 S.Ct. 523, 530, 5 L.Ed.2d 464, 472 (1961). If freedom of speech insulated comments only from those whose motives were pure, it would protect very little. A democracy relies on its citizens to judge and evaluate "the relative merits of conflicting arguments." Bellotti, 435 U.S. at 792,

98 S.Ct. at 1424,

55 L.Ed.2d at 727.

[¶ 13.] The poster's vice was that it revealed to the community where the case was about to be tried what the court ordered excluded from the trial. No gag order, however, barred the defendant from revealing this information. In her trial, the State offered no evidence that any prospective juror ever saw or even heard of her poster. In closing argument, nonetheless, the prosecutor told the defendant's jury that the poster was "illegal" and "it does not matter if one or two or fifty of the jurors, or none of them that were on the panel saw that poster. It is the attempt to influence that causes the problem." As the State never identified any prospective juror who saw or heard about the defendant's poster, whoever in particular was the...