State v. White

• Citation: 549 N.W.2d 676,1996 SD 67
• Decision Date: 05 June 1996
• Docket Number: No. 19021,19021
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. David Keith WHITE, Jr., Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 676

549 N.W.2d 676

1996 SD 67

STATE of South Dakota, Plaintiff and Appellee, v. David Keith WHITE, Jr., Defendant and Appellant.

No. 19021.

Supreme Court of South Dakota.

Argued Nov. 30, 1995.

Decided June 5, 1996.

Mark Barnett, Atty. Gen., Frank Geaghan, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Delmar Walter, Minnehaha County Public Defender's Office, Sioux Falls, for defendant and appellant.

AMUNDSON, Justice.

¶1 David Keith White, Jr. (White), appeals his conviction of two counts of first-degree murder, two counts of grand theft, one count of first-degree robbery, and one count of second-degree rape. We affirm in part, reverse in part and remand.

FACTS

¶2 After work on Saturday, April 23, 1994, White went to the Frontier Bar in downtown Sioux Falls. After being thrown out of the Frontier Bar, White decided to stop at the Sun Down Bar for one more beer. It was at this bar that the paths of White and James Wallenstein (Victim) crossed. Victim and his roommate, Jack Sturgeon (Sturgeon), went to the Sun Down Bar at around 5:30 p.m. on April 23, 1994. As the evening progressed, beer and marijuana continued to be consumed by all of the parties involved. Sturgeon and his girl friend, Kari Volk (Volk), left the bar around 2 a.m. and went to a house party where they remained until 4 a.m. Sturgeon then went with Volk to her home where he remained until 7:30 a.m. Sunday morning.

¶3 Meanwhile, Victim and White were becoming acquainted at the bar. Victim needed a ride home at closing time. Upon arrival, Victim invited White into his trailer. The two smoked marijuana and White passed out on Victim's bed. White claims he was awakened by Victim sexually attacking him. Because of the attack, White hit Victim and grabbed Victim's throat. White left and checked into the Sunset Motel, although his home was in close proximity.

¶4 Sturgeon arrived home around 7:30 a.m. Around 2 p.m., Sturgeon opened the Victim's bedroom door and discovered Victim's naked body on the floor covered in blood. According to Sturgeon, Victim's empty wallet was on Victim's bed. Sturgeon knelt down to see if Victim was alive. Realizing Victim was cold and rigor mortis had set in, Sturgeon telephoned 911 for emergency assistance.

¶5 Law enforcement arrived on the scene and made the determination to treat Victim's death as a homicide. During the course of their investigation, police officers seized several items for evidence, including a rubber dog-toy with blood and hair samples on it, a Harley Davidson bandana, which was later determined to belong to White, and blood samples from all over the room.

¶6 White arrived home around 11 a.m. on Sunday morning. He told his family that he had gotten into a fight with a man at the bar to protect a woman. In addition, he stated the woman rewarded him by staying with him that night in a motel room. White, his stepbrother, and a friend took the pickup entrusted to White for work to run some errands. While in the pickup, White's stepbrother and the friend observed blood stained clothing on the floor. These bloodstains were later analyzed and were found to be consistent with Victim's blood type. Later, White was observed in the garage trying to pry open a bank resembling a Campbell's soup can. Victim owned a similar bank which was never found during the search of the trailer.

¶7 The next morning, Mike Happeney (Happeney) stopped by White's house. While Happeney and White were conversing, Happeney told White about an article in the paper regarding Victim's death. White told Happeney he had to go to work, but he never did show up for work. After leaving a message on his employer's answering machine stating he was ill, White went to a pawn shop and pawned several tools belonging to his employer. Using the money he received for the tools, White fled to Hobart, Indiana, in the pickup owned by his employer.

¶8 White contacted and turned himself in to the Indiana authorities. During questioning, White's original story was that when he awoke Victim was already on the floor naked and bleeding. By the end of the interview, White told the detectives he was sexually attacked by Victim. White said he did not tell the truth in the beginning because he was embarrassed.

¶9 White was indicted on May 5, 1994, and charged with three counts of first-degree murder in violation of SDCL 22-16-4. In addition, White was also charged with second-degree rape, first-degree robbery, and two counts of grand theft. A jury trial commenced on November 8, 1994. On November 21, the jury returned its verdict, finding White guilty of two counts of first-degree murder, one count second-degree rape, one count first-degree robbery, and two counts of grand theft. After a presentence investigation, White was sentenced as follows: (1) life without parole as to premeditated murder (Count I); (2) life without parole as to felony-murder rape (Count III) concurrent with Count I; (3) ten years as to robbery in the first degree (Count IV) concurrent with above; (4) twenty-five years as to rape in the second degree (Count V) concurrent with above; (5) seven years as to grand theft (Count VI) consecutive with above; (6) seven years as to grand theft (Count VII) consecutive to Counts I through V and concurrent with Count VI. From this conviction White appeals, based on these issues:

I. Did the trial court err by not allowing White to introduce evidence of prior bad acts of Sturgeon?

II. Did the trial court abuse its discretion by not admitting evidence of a pornographic video found in Victim's VCR?

III. Whether the cumulative effect of the trial court's rulings denied White a fair trial?

IV. Whether there was sufficient evidence for the jury to convict White of premeditated murder and felony murder?

V. Whether multiple convictions and sentences for a single death are proper?

ANALYSIS

¶10 I. Prior bad acts of Sturgeon.

¶11 An abuse of discretion standard applies when we review a trial court's refusal to admit evidence under SDCL 19-12-5 (prior bad acts). ¹ State v. Krebs, 504 N.W.2d 580, 589 (S.D.1993); State v. Werner, 482 N.W.2d 286, 288 (S.D.1992); State v. Chapin, 460 N.W.2d 420, 421 (S.D.1990). An abuse of discretion occurs when discretion is exercised to an end or purpose not justified by and clearly against reason and evidence. State v. Woodfork, 454 N.W.2d 332, 335 (S.D.1990).

¶12 When deciding to admit prior bad acts testimony, the court is to employ a two-step approach:

(1) Whether the intended purpose for offering the other acts evidence is relevant to some material issue in the case, and

(2) Whether the probative value of the evidence is substantially outweighed by its prejudicial effect.

Werner, 482 N.W.2d at 288 (citing State v. Basker, 468 N.W.2d 413, 415 (S.D.1991); State v. Dickey, 459 N.W.2d 445, 449 (S.D.1990); State v. Klein, 444 N.W.2d 16, 18-19 (S.D.1989); State v. Champagne, 422 N.W.2d 840, 842 (S.D.1988)). The first inquiry is a factual relevancy of the evidence determination. SDCL 19-12-1 (FedREvid 401). This is performed because bad acts evidence is inadmissible to prove bad character. The second inquiry relates to legal relevancy, "[w]hether the probative value of the proffered evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Werner, 482 N.W.2d at 288; SDCL 19-12-3 (FedREvid 403).

¶13 We will not interfere with the trial court's determination of relevancy and materiality unless an abuse of discretion is clearly demonstrated. State v. Blalack, 434 N.W.2d 55, 57 (S.D.1988) (citing Sabag v. Continental South Dakota, 374 N.W.2d 349, 354 (S.D.1985); State v. McNamara, 325 N.W.2d 288, 291 (S.D.1982)). When evaluating prior bad act evidence, we must find that the prior bad act is similar in character in order for it to be relevant. State v. Lodermeier, 481 N.W.2d 614, 625 (S.D.1992); Klein, 444 N.W.2d at 19; State v. Pedde, 334 N.W.2d 41, 43 (S.D.1983). In other words, the prior act must be "reasonably related to the offending conduct." Lodermeier, 481 N.W.2d at 625. The burden is on the proponent to prove the prior bad acts in order for the trial court to grant admission. Chapin, 460 N.W.2d at 422.

¶14 Prior to trial, White moved to admit evidence of prior bad acts of Sturgeon, who was a witness for the State, involving an incident between Sturgeon and Volk. State filed a motion in limine to stop introduction of this evidence as third-party perpetrator evidence. Specifically, the testimony White elicited is that Volk refused to engage in sexual relations with Sturgeon and afterward Sturgeon started to strangulate Volk. The incident occurred after Sturgeon had been drinking. The trial court agreed with State and found said evidence to be in the nature of third-party perpetrator evidence. During the trial, White renewed his request to admit this evidence under the prior bad act rule. The trial court denied White's request, ruling that the prior bad act was not unique enough so as to have any probative value as to the identity of the individual who killed Victim. White made an offer of proof via SDCL 19-12-5 (FedREvid 404(b)), arguing the other acts evidence should be admitted under the identity and modus operandi exception. SDCL 19-12-5. The trial court ruled the evidence was not relevant.

¶15 What makes this case unique is that the defendant, not the State, was seeking to admit this prior bad acts evidence. White requests that we adopt a new standard for admitting prior bad acts evidence by the defense. This standard should be more liberal according to White. The case White relies upon is State v. Garfole, 76 N.J. 445, 388 A.2d 587, 591 (1978), which found prejudice was no longer a factor when it was defendant who offered the evidence. In Garfole, there were six alleged similar sexual assaults. All occurred between 9:45 p.m. and...