State v. Volk
| Decision Date | 09 March 1983 |
| Docket Number | No. 13791,13791 |
| Citation | 331 N.W.2d 67 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Todd M. VOLK, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Mikal Hanson, Asst. Atty. Gen., Mark V. Meierhenry, Atty. Gen., Pierre, on brief, for plaintiff and appellee.
Randolph J. Seiler of Krause & Seiler, Mobridge, for defendant and appellant.
A Walworth County jury convicted appellant of both arson and burglary in the third degree. Appellant was sentenced to terms of five to ten years on each conviction to
run concurrently. Due to prejudicial errors in the jury proceedings, we reverse and remand for a new trial.
On October 16, 1981, at 5:18 a.m., a fire was discovered in the teachers' smoking lounge of the high school in Mobridge, South Dakota. Subsequently, authorities found an open window on the school building. Fingerprints and a partial shoe print were taken from the window ledge. An investigation ensued, culminating in the arrest of appellant, a 19-year-old male, on October 19, 1981. A search warrant for appellant's premises yielded a pair of sweat pants, a down jacket, and a Mobridge cheerleading skirt. There were no eyewitnesses to an arson or a burglary.
Authorities also confiscated appellant's tennis shoes and forwarded the above materials (except the skirt) along with debris from the fire to the State Crime Lab in Pierre for analysis. Results from the State Crime Lab as testified to at trial, by defense witnesses, were inconclusive: a) hydrocarbon accelerants were not detected on any of the articles; b) lime, the type of soil around the school, was not found on the bottom of appellant's shoes; c) it was impossible to exclude shoes other than appellant's from the window sill impression; and d) there were insufficient points of identification on the fingerprints to make a positive identification or elimination of appellant. Mobridge authorities disputed the State Crime Lab findings. Both the Mobridge Fire Chief and the State Fire Marshall noted that disjunctive fires had started in four separate places. The furniture and the walls in the teachers' lounge contained what is known as "burn patterns" normally associated with a flammable liquid or an accelerant placed upon an object and then ignited. Although no one could conclusively say the fire was arson, both fire officials testified that the burn patterns indicated arson. The State Fire Marshall, in the course of his investigation, found nothing to lead him to believe that the fires were ignited by natural causes. A fact question on arson, based on circumstantial evidence, was posed for the jury.
As to the cheerleading skirt, testimony established that two skirts were missing from the school prior to the fire. Appellant's grandmother testified that he had the skirt for a year. On the third day of trial, one of the jurors disclosed in chambers that she knew the whereabouts of one of the missing skirts as her daughter had been a Mobridge cheerleader and the skirt was ruined while she had it. Appellant's counsel forthwith moved for mistrial which was denied after the juror told the trial court that such knowledge would not affect her judgment and she would not divulge the information to other jurors.
Testimony was elicited from Jeff Torevell, also a suspect in the school fire. Torevell testified that a couple of days after the fire he had been drinking heavily and was driving his automobile when he was pulled over by Officer Biel of the Mobridge Police Department. Officer Biel told Torevell that if he did not talk with him about the school fire he would be thrown in jail. Consequently, Torevell told the officer that during the evening of October 15, 1981, appellant proposed that the two start a bonfire on top of the school. Torevell testified that he advised against starting the fire and nothing more was mentioned about a fire. Appellant attempted to cross-examine Torevell using Torevell's juvenile record. The trial court denied appellant's motion to use the juvenile record as a means to impeach Torevell. Steadfastly, the trial court ruled: "I am going to preclude the defense from going into this witness' juvenile record ...." Although appellant raises ten issues in his brief, we treat three issues, deeming each to be meritorious grounds for reversal.
DID A JUROR'S REVELATION AT THE OUTSET OF THE THIRD DAY OF TRIAL OF PERSONAL KNOWLEDGE OF A FACT IN ISSUE VIOLATE
During the third day of trial, one of the jurors revealed to the trial court that she had independent knowledge of a fact in issue before the jury. Although appellant's counsel motioned for a mistrial, it was denied. This independent knowledge of the juror established the whereabouts of one of two missing Mobridge cheerleading skirts prior to the fire, namely that her daughter had been issued a cheerleading skirt and it was not returned to the school.
Jurors in our system of jurisprudence must take an oath before they serve. This oath requires that a juror as the finder of fact base his decision solely upon the evidence introduced at trial. By the terms of our South Dakota Constitution Art. VI, Sec. 7, appellant was entitled to a trial by an impartial jury. An accused's right to an impartial jury requires that the minds of jurors be without bias or prejudice. State v. Belt, 79 S.D. 324, 111 N.W.2d 588 (1961).
Trial courts are allowed broad discretion in decisions regarding the bias of jurors. We will not reverse the trial court's decision unless it clearly appears from the evidence that a contrary decision should have been made. State v. Pickering, 245 N.W.2d 634 (S.D.1976).
This is a situation where a contrary decision should have been made. The cheerleading skirt found in appellant's residence was the most powerful tangible evidence the prosecution had to link appellant to the school fire. Testimony established that two skirts had been missing for some time prior to the fire. One juror possessed knowledge of the whereabouts of one skirt. Her knowledge reduced by fifty percent the probability of appellant having a skirt which was missing before the fire. To expect this juror to totally ignore such knowledge, was asking the impossible. No matter how sincere or in good faith the juror deliberated to reach her decision on a verdict, imbedded in her mind was a crucial fact derived outside the arena of justice. This taint infected the proceedings. Thus, we reverse and remand on this basis thereby permitting appellant to have a new trial with impartial jurors.
In compliance with SDCL 23A-8-3, appellant filed motions in limine to exclude specific evidence or testimony and to suppress appellant's statement, or in the alternative, for an evidentiary hearing on the voluntariness of a statement made by appellant during the booking process. The trial court summarily denied appellant's motions after reading a portion of the preliminary hearing transcript and concluding appellant's statement was voluntary. An evidentiary hearing on appellant's motion to suppress was never held. Findings of fact and conclusions of law were not entered or made on the record.
When an incriminating statement allegedly made by the accused is offered by the State and objected to, the State has the burden of proving beyond a reasonable doubt that the statement was given knowingly, intelligently, and voluntarily. State v. Lyons, 269 N.W.2d 124 (S.D.1978). Our standard of review on voluntariness hearings is to uphold the trial court unless its ruling is clearly erroneous. State v. Hintz, 318 N.W.2d 915 (S.D.1982); State v. Lewis, 90 S.D. 615, 244 N.W.2d 307 (1976); State v. Aschmeller, 87 S.D. 367, 209 N.W.2d 369 (1973). Trial courts should enter findings of fact and conclusions of law on voluntariness hearings. State v. Janis, 321 N.W.2d 527 (S.D.1982) ...
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