State v. Vassar

• Decision Date: 31 May 1979
• Docket Number: No. 12455,12455
• Citation: 279 N.W.2d 678
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Jerry VASSAR, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 678

279 N.W.2d 678

STATE of South Dakota, Plaintiff and Respondent, v. Jerry VASSAR, Defendant and Appellant.

No. 12455.

Supreme Court of South Dakota.

Argued March 19, 1979.

Decided May 31, 1979.

William J. Janklow, Atty. Gen., Judith A. Atkinson, Asst. Atty. Gen., Pierre, B. Elizabeth Godtland Ganje, Asst. Atty. Gen., Aberdeen, on brief for plaintiff and respondent.

Richard D. Hurd, Sioux Falls, on brief, for defendant and appellant.

FOSHEIM, Justice.

Defendant was indicted by a grand jury on four felony counts. Count I charged him with murder, Count II attempted murder, Count III arson in the first degree and Count IV with murder while engaged in the commission of a felony. The court dismissed Count II. The jury returned a verdict of not guilty as to Count I and guilty as to Counts III and IV. Defendant appeals from his convictions based on these verdicts. We affirm.

Defendant and one Jane Hurtgen had been keeping company for approximately three years prior to June 24, 1977. They spent most of that day together. Miss Hurtgen went to work at 4:00 p. m. Defendant had given her $40.00 for safekeeping. At 10:00 that evening, defendant picked Miss Hurtgen up at work. He had been drinking, and they argued about the $40.00, which Miss Hurtgen refused to return. When they arrived at the home, which she occupied with her mother and sister, Miss Hurtgen fled into the house.

Defendant then went to the Sioux Falls Police Station, arriving there at 11:30. He asked the police to help him get back the $40.00 from Miss Hurtgen. The officers told him it was a civil matter, and that he and his girlfriend would have to either settle it between themselves, or take it to court. Defendant said they would be sorry, and that he would take care of the matter himself.

The State introduced evidence that in the early morning hours of June 25, 1977, defendant started a fire at Jane Hurtgen's residence. Jane was not home, but her mother and sister were then in the house. The evidence indicated that defendant realized the home was occupied when he started the fire. Jane Hurtgen's mother and sister were both injured. Her mother, Roberta Hurtgen, died several days later from smoke inhalation.

On June 28, 1977, the Sioux Falls police interrogated Jerry Vassar concerning the fire. He denied involvement. On June 30, 1977, while in custody for another matter, the defendant was asked more questions about this fire. He again denied any involvement. At the request of the police he took a polygraph examination, which indicated that he was lying. After being advised of the examination result, defendant agreed to make a statement. He then signed a confession in which he admitted starting the fire. This statement was taken at 12:16 a. m., July 1, 1977. Defendant signed another statement admitting the crime at 10:02 p. m., July 7, 1977.

Defendant tried to escape several times while at the Minnehaha County jail. As a consequence he was placed in an isolation cell. He was shackled and chained from approximately 6:30 p. m. January 13, 1978, until the morning of January 16, 1978.

Prior to trial, defendant requested that a licensed psychologist be employed at public expense to determine his mental competency at the time of his confessions. He also requested a jury trial on the question of his competency to stand trial. The denial of these motions and whether the court erred in not instructing on the lesser included offenses of manslaughter in the first and second degrees constitute the issues on appeal.

It is defendant's position that the trial court, in denying his request for a court-appointed psychologist at county expense, deprived him of his right to effective assistance of counsel, equal protection and trial by jury pursuant to amendment VI of the United States Constitution ¹ and article VI, § 7 of the South Dakota Constitution ². The right of the accused to have compulsory process served to obtain witnesses in his behalf is fundamental. ³ We agree, however, with the conclusion of United States District Court for the District of South Dakota expressed in Utsler v. Erickson, 315 F.Supp. 480 (D.S.D.1970), that no decision of the United States Supreme Court or of the Eighth Circuit Court of Appeals goes so far as to accord a defendant the absolute right to engage expert witnesses of his own choice at public expense to perform examinations and testify at trial. Where government expense is involved a discretionary standard prevails. Feguer v. United States, 302 F.2d 214 (8th Cir. 1962).

The discretionary standard is also settled law in South Dakota.

SDCL 19-6-1, which now appears as SDCL 19-15-9, reads as follows:

Whenever, in a civil or criminal proceeding, issues arise upon which the court deems expert evidence is desirable, the court, on its own motion, or on the request of either the state or the defendant in a criminal proceeding, or of any party in a civil proceeding, may appoint one or more experts, not exceeding three on each issue, to testify at the trial.

In State v. Geelan, 80 S.D. 135, 120 N.W.2d 533 (1963), we held this statute does not create an absolute right to the appointment of an expert witness. It merely permits the appointment of such witnesses in a proper case, and whether the appointment is made is committed to the discretion of the trial court. In Utsler v. State, 84 S.D. 360, 171 N.W.2d 739 (1969) we reaffirmed that an indigent defendant in addition to counsel is not entitled at public expense to "the full paraphernalia of defense" in preparation for a claimed defense. We later cautioned, however, in State v. Murphy, 89 S.D. 486, 234 N.W.2d 54 (1975) that a narrow construction of SDCL 19-6-1 could unjustly deny court-appointed expert witnesses when such are essential to an adequate defense.

In State v. Sahlie, 245 N.W.2d 476 (S.D.1976), we summarized the above and similar cases and again concluded that the trial court has discretion to determine when expert witnesses are essential to an adequate defense. While considerable weight should be accorded to the application, the trial court is not in any way bound by it. The court should make an independent evaluation, taking into consideration all relevant factors. If the application is found to be reasonable, it should be granted, but if it is found to be frivolous, unreasonable, and unnecessary for an adequate defense, or without underlying factual support, it should be denied. As we said in State v. Sahlie, supra, the trial court in either event should specify on the record the granting or denial of the application together with the reasons therefor.

The court ruled as follows on defendant's motion:

In this particular case, just the allegation of the State's Attorney at the time of the suppression hearing, . . . that the defendant has not been tested within the school system for some eight years or thereabouts, I forget the exact number, is not adequate reason for this Court to appoint a psychologist and I do deny the defendant's motion in regard thereto.

The record reveals that after making its ruling the trial court invited defendant to fortify his showing in this regard, but he failed to do so.

In State v. Sahlie, supra, we suggested these guidelines in determining when court-appointed experts are essential to an adequate defense Initially, the request must be made in good faith. The request must be reasonable in all respects. The request must be timely and must set forth specific reasons which seem to make such services needed or necessary to the defendant. The request must specify that the defendant is financially unable to obtain the required service himself and that such services would otherwise be justifiably obtained were the defendant financially able.

245 N.W.2d at 480.

Defendant's request does not set forth sufficient specific reasons why the desired services are necessary. We cannot say, therefore, as a matter of law, that the trial court abused its discretion in denying the motion.

The next assignment of error claims the trial court wrongfully denied defendant's request to instruct the jury that the lesser offenses of manslaughter in the first degree and manslaughter in the second degree are included in the crime of murder as charged in Count I of the indictment.

It is not clear as to precisely how the refused instruction is claimed to have been prejudicial. We conclude that the refusal was error but since the defendant was acquitted on Count I it was harmless as to double jeopardy and we discern no other tenable theory for prejudicial error. SDCL 23-45-23 provides:

The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment or information, or of an attempt to commit the offense charged.

Under SDCL 22-16-1:

Homicide is the killing of one human being by another. It is either:

(1) Murder;

(2) Manslaughter;

(3) Excusable homicide; or,

(4) Justifiable homicide.

Murder and manslaughter in the first and second degrees are defined by statute. ⁴ Whenever a crime is distinguished into degrees, the jury, if it convicts the accused, must find the degree of the crime of which he is guilty. SDCL 23-45-22.

Manslaughter in the second degree is an offense included in both the charge of murder, State v. Hubbard, 20 S.D. 148, 104 N.W. 1120 (1905), and manslaughter in the first degree, State v. Painter, 70 S.D. 277, 17 N.W.2d 12 (1944). In State v. Stumbaugh, 28 S.D. 50, 132 N.W. 666 (1911), we indicated that convictions for either manslaughter in the first degree or manslaughter in the second degree are appropriate under an indictment charging the offense of murder. See also State v. Violett, 79 S.D. 292, 111 N.W.2d 598 (1961), and State v. Godlasky, 47 S.D. 36, 195 N.W. 832 (1923). Our opinion in State v. Zobel, 81 S.D. 260, 134 N.W.2d 101 (1965) cert. denied,382 U.S. 833, 86 S.Ct. 74, 15 L.Ed.2d 76 (1965), discussed this subject in detail and noted that...