State v. Wiegers

• Decision Date: 31 July 1985
• Docket Number: No. 14304,14304
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Donald WIEGERS, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 1

373 N.W.2d 1

STATE of South Dakota, Plaintiff and Appellee, v. Donald WIEGERS, Defendant and Appellant.

No. 14304.

Supreme Court of South Dakota.

Argued April 18, 1984.

Decided July 31, 1985.

Mark Smith, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Kenn A. Pugh, Northern Hills Public Defender, Deadwood, for defendant and appellant.

WOLLMAN, Justice.

Defendant appeals from his conviction by a Brule County jury of two counts of conspiracy to commit premeditated murder and of the lesser included offense of manslaughter in the second degree. ¹ We affirm in part and remand in part.

The charges against defendant arose out of the killing of Russell Keller of Deadwood on October 22, 1981. On January 28, 1983, a Lawrence County grand jury returned an indictment charging defendant as follows:

[T]hat Donald Wiegers did:

Ct.I: CONSPIRACY TO COMMIT PREMEDITATED MURDER:

Willfully, unlawfully and feloniously, between the months of March and November, 1981, conspire with Timothy J. Holmes, to commit the offense of premeditated murder, an offense against the State of South Dakota, and that said Timothy J. Holmes, did the following overt acts, to-wit: Timothy J. Holmes, did, with the intent to effect the death of Russell Keller, lure and entice said Russell Keller to the Pahasapa Campground located in Lawrence County, South Dakota. Contrary to SDCL 22-3-8.

Ct.II: CONSPIRACY TO COMMIT PREMEDITATED MURDER:

Willfully, unlawfully and feloniously, between the months of March and November, 1981, conspire with Scott Whitesell and David Waff, to commit the offense of premeditated murder, an offense against the State of South Dakota, and that David Waff did the following overt acts, to-wit: David Waff did, on or about the 22nd day of October, 1981, without authority of law, perpetrate and with a premeditated design to effect the death of the person killed, kill Russell Keller in Lawrence County, South Dakota. Contrary to SDCL 22-3-8.

Ct.III: PREMEDITATED MURDER:

Willfully, unlawfully and feloniously on or about the 22nd day of October, 1981, without authority of law, perpetrate and with a premeditated design to effect the death of the person killed, kill Russell Keller. Contrary to SDCL 22-16-4 and 22-3-3.

Keller and Melvin Brown, who was the stepfather of Keller's wife, were partners in a business in Deadwood known as B & K Wrecker Service. In early 1981, Brown called Keith Iwan, whom he had known for some sixteen or seventeen years, and asked whether Iwan knew of anyone who could perform a murder. Iwan in turn called defendant, whom Iwan had known for fifteen to seventeen years, at his appliance store in Rapid City and told defendant that he, Iwan, had a man who "wanted someone knocked off," and then asked defendant if he was interested. Defendant replied that he would get back to Iwan. Within two weeks defendant informed Iwan that the job could be done and that he wanted $2,500 for it. Iwan then called Brown, who told Iwan that he would give him $1,500 at the outset and "the rest when it was over with." Sometime in April or May of 1981, Brown brought $1,500 in cash to Rapid City and gave it to Iwan, along with a picture of Russell Keller and a telephone number. Iwan kept $1,000 for himself and gave defendant $500, along with the picture and telephone number.

In the meantime, defendant had contacted Timothy Holmes to determine whether Holmes was interested in performing the murder. After Holmes agreed that he would do the job, defendant gave him $500, a picture of Keller, and a sawed-off shotgun. Defendant also suggested to Holmes that the best way to set up the killing would be to call Keller out on a fake wrecker call.

Some two weeks later, Holmes, who had made some repairs on the shotgun, accompanied by one Chuck Kirschenmann, whom Holmes had bailed out of jail with some of the money he had received from defendant, set up an ambush near a Girl Scout camp in the Black Hills. When Keller arrived at the scene in response to a fake wrecker call, however, Holmes could not go through with the killing.

Two or three weeks later, after discussing the matter with defendant, Holmes again set up another ambush for Keller. Armed with a .44 caliber handgun, Holmes lay in wait while Keller responded to the fake wrecker call. Again, however, Holmes made no attempt to kill Keller when Keller appeared on the scene.

After calling Iwan a half dozen times to inquire why the murder had not been committed, Brown finally demanded the return of his money. Iwan in turn asked defendant to return the $500. Defendant repaid Iwan out of his own funds, telling Iwan that Holmes "had stiffed him [defendant] for $500." Iwan then returned the $1,500 to Brown in late June or early July of 1981.

In September of 1981, defendant called Iwan saying that he had a man who would do the job and that Iwan should get the money again. Iwan then called Brown and told him that it would cost a total of $3,000 to have Keller killed. Brown then met Iwan in Rapid City and gave him $2,000, with the understanding that the balance of $1,000 would be paid after Keller had been killed. A day or two later Iwan called defendant and told him that he had obtained the money, to which defendant replied, "Okay, we'll go ahead."

Defendant had contacted Scott Whitesell in April or May of 1981 to determine whether Whitesell was interested in performing the murder. Whitesell had been selling stolen guns and television sets to defendant for approximately two years in order to obtain money to support his drug habit. Whitesell contacted David Waff, his principal drug supplier, about performing the murder. Waff said that he was not interested in doing the job. Sometime later, however, Waff asked Whitesell if Whitesell's friend still wanted someone killed. Whitesell in turn inquired of defendant whether he still wanted the person killed, to which defendant replied in the affirmative. Defendant then told Whitesell that it was Russell Keller who was to be killed and that the price to be paid was $2,000. Defendant gave Keller's business and home phone numbers to Whitesell, offered a gun to be used, and suggested that the person who was to perform the murder should call Keller out on a wrecker call in a secluded area, shoot him, and then "plant a bag of bad grass on him." Whitesell passed this information on to Waff. A week or so later Waff told Whitesell that he had gone up to check the area where Keller might be killed. Waff also told Whitesell that he needed some money because he was broke. Whitesell then went to defendant's appliance store and obtained $1,000 from defendant, which Whitesell gave to Waff. Waff in turn gave $500 of the money back to Whitesell. In addition to the $500 that he received from Waff, Whitesell received from defendant a power booster, some speaker wire, and a discount on a stereo for Whitesell's part in the planned murder.

At some point during his conversations with Whitesell, Waff showed Whitesell a .25 caliber pistol. He also showed Whitesell a bullet, on the tip of which he had inscribed an "x," with the explanation that the bullet would explode upon impact and would therefore be untraceable.

Waff also told Whitesell that he had called Keller to the scene of the planned murder but that Brown had appeared in Keller's place. The two men discussed the With respect to this last incident, Iwan testified that Brown had called him approximately ten days before Keller was killed and told him that he had responded to Waff's call because Keller's wrecker truck had broken down. Brown also told Iwan that when he arrived at the scene of Waff's allegedly disabled van he called out that he was Mel Brown and then had a conversation with Waff. Brown told Iwan to deliver $1,000 because he was confident that the job would be done. Iwan then gave defendant $1,000 with instructions to pass the money on to the persons who were to commit the murder, to which defendant replied that he had been told that those persons were to receive $1,000.

planned killing, with Brown telling Waff that a good day to commit the murder would be at a time when Brown and his wife were out of town. Brown and Waff then agreed upon a suitable date.

At approximately 8:00 p.m., October 21, 1981, Mrs. Russell Keller answered a telephone call at their residence. The caller requested that a wrecker be sent to the location of his disabled vehicle, some two miles outside Rochford. Mrs. Keller gave the phone to her husband, who then talked to the caller. Russell Keller then went out on the call, never to return.

On the morning of October 23, 1981, law enforcement officers found Keller's wrecker parked on Highway 385 approximately 19 miles south of Deadwood. There were blood stains on the highway behind the vehicle. Following drag marks and blood stains, the investigating officers discovered Keller's body lying in a wooded area some 200 feet from the wrecker. Keller had been shot once in the head from a distance of less than six inches and also had been stabbed eight times in the chest and abdomen. A forensic pathologist testified that either the gunshot wound or the stab wounds could have been sufficient to cause death.

On October 23, 1981, Waff told Whitesell that he had killed Keller by shooting him in the head and that he had dragged Keller's body into the ditch. Waff asked Whitesell for the remainder of his payment. Whitesell in turn contacted defendant. Defendant contacted Iwan, asking for the rest of the money. Iwan gave $1,000 to defendant, who later gave it to Whitesell. Whitesell in turn delivered the money to Waff.

A .25 caliber bullet with an "x" inscribed on the tip was removed from Keller's skull during the autopsy. A spent cartridge was found on the roadway behind Keller's vehicle. The bullet and cartridge were identified as having been fired from a .25 caliber pistol that Waff had pawned at a gun shop in Rapid City on ...