State v. Weatherford, 15559

• Decision Date: 02 December 1987
• Docket Number: No. 15559,15559
• Citation: 416 N.W.2d 47,74 A.L.R.4th 307
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Jimmy Don WEATHERFORD, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 47

416 N.W.2d 47

74 A.L.R.4th 307

STATE of South Dakota, Plaintiff and Appellee, v. Jimmy Don WEATHERFORD, Defendant and Appellant.

No. 15559.

Supreme Court of South Dakota.

Argued Sept. 1, 1987.

Decided Dec. 2, 1987.

Mark Smith, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., and Richard D. Coit, Asst. Atty. Gen., Pierre, on brief.

John Feehan, Bettmann & Feehan, P.C., Rapid City, for defendant and appellant.

WUEST, Chief Justice.

Defendant, Jimmy Weatherford, appeals his conviction on two counts of murder in the first degree and one count of attempted murder in the first degree. We affirm.

STATEMENT OF FACTS

In early March of 1986, the defendant, Jimmy Don Weatherford (Weatherford), arrived in Rapid City with his common-law wife, Angela Koricanek (Angela). Defendant became acquainted with David Engelbrecht (Engelbrecht). On or about March 10, 1986, defendant and Angela moved to Talia Haefs' residence at 615 St. Patrick Street in Rapid City. Engelbrecht, a friend of Talia's, had been living at the house since the end of February.

Testimony indicates on the evening of March 22, 1986, the defendant, Angela, and Engelbrecht went to the Outer Limits Bar several miles north of Rapid City. Upon arriving at the Outer Limits Bar the Defendant, Angela and Engelbrecht played some pool and then seated themselves at a booth near the dance floor. After sitting through about three or four dances, defendant asked Angela if she would dance with him. Angela, who had been drinking quite heavily, refused. Defendant waited awhile and again asked her if she would dance. In response, Angela then told defendant to get out of her face and warned him that if he didn't do so she would round up a bunch of bikers and have them beat him up. Defendant decided to leave her alone for awhile and went to his pickup truck where he sat until about 11:30 p.m. At that point, defendant returned to the bar but before doing so he removed a .22 caliber pistol from the footlocker inside the camper of his pickup and placed it under the front tire.

Upon reentering the bar defendant returned to the booth near the dance floor and observed Angela seated by Engelbrecht. Defendant grabbed Angela, Engelbrecht intervened, and all three started arguing and fighting. Defendant then tried to persuade Angela to leave with him but again she indicated that she did not want anything to do with him and refused to leave. Defendant picked Angela up and proceeded to forcefully remove her from the bar. Defendant drug her out and shoved her into his pickup. Moments later, she jumped out the driver's side door and ran back to the bar. Defendant returned to his pickup, grabbed his gun from behind the tire, got into the vehicle and drove off.

Defendant drove to Talia's house where he and Angela had been staying. He parked his pickup, grabbed his gun and went into the kitchen to wait for Engelbrecht and Angela. At approximately 2 a.m. Angela and Engelbrecht arrived and immediately the three began arguing. Defendant grabbed Angela by the hair and pushed her down the stairs toward the basement exit through the utility room. Engelbrecht tried to grab Angela and pull her away, but was unsuccessful. Talia went down the stairs and positioned herself between the defendant and Angela. She then heard Engelbrecht yell, "He's got a gun." Defendant pulled the gun and commenced firing.

When the shots were fired Erick Metz (Metz) was in the living room headed toward the kitchen from his bedroom. Upon hearing the shots he immediately picked up the phone and called the police. While on the phone he observed, through a kitchen window, the defendant walking toward his pickup with a revolver in his hand.

Law enforcement officials and medical personnel were immediately dispatched to the residence at 615 St. Patrick Street. Angela was found dead at the scene. Engelbrecht and Talia were rushed immediately to the Rapid City Regional Hospital for surgery. Portions of a bullet were removed from Engelbrecht's head and a bullet was removed from Talia's spine. The bullet had severed her spinal cord and, as a result, she was rendered paralyzed from the waist down. Both Engelbrecht and Talia survived their operations. However, approximately three months later, Talia died from complications arising as a result of her paralysis.

A short time after leaving Talia's residence on March 22, 1986, defendant's pickup was seen on Highway 16, near Rockerville, by Deputy Brunner of the Pennington County Sheriff's Department. Brunner called for assistance and followed the vehicle into a grove of trees near Old Keystone. Backups arrived and the vehicle was surrounded. Approximately one-half hour later, the Rapid City Tactical Team arrived, and after negotiation, the defendant gave himself up peacefully.

I. Change of Venue

Defendant filed with the trial court a motion for change of venue pursuant to the provisions of SDCL 23A-17-5. Defendant introduced a copy of an article from the front page of the Rapid City Journal dated September 5, 1986, and a report containing statistics on the circulation of the Journal in the Rapid City area. Defendant's counsel argued that the Rapid City Journal article was so inflammatory and knowledge of it so widespread that Defendant could not possibly receive a fair and impartial trial in Pennington County.

The trial court denied defendant's motion but not unconditionally. The trial judge indicated he would reconsider the ruling if there was difficulty selecting an impartial jury through voir dire.

The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment. Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). In a criminal case, a change of venue shall be ordered upon motion if the court is satisfied that there exists, in the county where the prosecution is pending, so great a prejudice against a defendant that he cannot obtain a fair and impartial trial in that county. SDCL 23A-17-5. The test is whether there is, in fact, prejudice in the minds of the county residents sufficient to raise a reasonable apprehension that the accused will not receive a fair and impartial trial. State v. Christians, 381 N.W.2d 214 (S.D.1986); State v. Brandenburg, 344 N.W.2d 702 (S.D.1984); State v. Wellner, 318 N.W.2d 324 (S.D.1982).

The law presumes that a defendant can receive a fair trial in the county in which the offense is committed. Christians, supra; State v. Luna, 378 N.W.2d 229 (S.D.1985); Brandenburg, supra. The burden of establishing that a fair and impartial trial cannot be had is upon the applicant. Christians, supra; Luna, supra; Brandenburg, supra. Whether a change of venue should be granted is a matter within the sound discretion of the trial court, and we will not disturb the trial court's decision unless there is an abuse of discretion. Christians, supra; State v. Reutter, 374 N.W.2d 617 (S.D.1985); Brandenburg, supra.

Pretrial publicity alone is not enough to deny a fair trial or, in other words, to warrant a change in venue. Luna, supra; Reutter, supra; State v. Reed, 313 N.W.2d 788 (S.D.1981). Courts have acknowledged that prospective jurors will have some knowledge of pending criminal cases by the pervasive influence of the communications media. United States v. Delay, 500 F.2d 1360 (8th Cir.1974). Pretrial publicity does not per se provide a sufficient basis for a change of venue; there must be additional evidence tending to show that such publicity was so prejudicial as to prevent the defendant from receiving a fair and impartial trial in the county. United States v. Buttorff, 572 F.2d 619 (8th Cir.1978), cert. denied 437 U.S. 906, 98 S.Ct. 3095, 57 L.Ed.2d 199 (1978); Delay, supra; United States v. Ringland, 497 F.2d 1250 (8th Cir.1974); Brandenburg, supra; Reed, supra. The burden rests with the accused to establish that an impartial trial is not possible in the face of pretrial publicity. State v. Reiman, 284 N.W.2d 860 (S.D.1979).

If the jurors were unaware of the pretrial publicity or could not recall it, or if knowledge of the publicity did not cause a prejudicial opinion to be formed, a change of venue would be unwarranted. United States v. Young, 553 F.2d 1132 (8th Cir.1977), cert. denied, 431 U.S. 959, 97 S.Ct. 2686, 53 L.Ed.2d 278; Ringland, supra; United States v. McNally, 485 F.2d 398 (8th Cir.1973), cert. denied 415 U.S. 978, 94 S.Ct. 1566, 39 L.Ed.2d 874. Furthermore, while entitled to an impartial jury, a defendant is not deprived of that right if a juror has knowledge of the case as long as the juror is willing to lay aside any opinion he has formed and base a verdict totally on the evidence received in court.

To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.

Murphy v. Florida, 421 U.S. 794, 799-800, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589, 595 (1975), quoting Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). See also, McNally, 485 F.2d at 403.

In Irvin, supra, the United States Supreme Court held that adverse pretrial publicity can create such a presumption of prejudice in a community that the juror's claims that they can be impartial should not be believed. The Court in Irvin reviewed a number of factors in determining whether the totality of the circumstances raised such a presumption. The Court noted, however, that the trial court's findings of impartiality might be overturned only for "manifest error." 366 U.S., at 723, 81 S.Ct., at 1645. The Court has also presumed prejudice under the extreme circumstances under which other trials were...