State v. Wilkins, No. 18677

CourtSupreme Court of South Dakota
Writing for the CourtSEVERSON; MILLER; SEVERSON, Circuit Judge, for KONENKAMP; GILBERTSON
Citation536 N.W.2d 97
PartiesSTATE of South Dakota, Plaintiff and Appellant, v. Lenny WILKINS, Defendant and Appellee.
Decision Date23 August 1995
Docket NumberNo. 18677

Page 97

536 N.W.2d 97
STATE of South Dakota, Plaintiff and Appellant,
v.
Lenny WILKINS, Defendant and Appellee.
No. 18677.
Supreme Court of South Dakota.
Argued March 20, 1995.
Decided Aug. 23, 1995.

Jay Miller, Chief Deputy States Atty., Rapid City, for plaintiff and appellant.

Dave Huss, Office of Public Defender, Rapid City, for defendant and appellee.

SEVERSON, Circuit Judge.

This is an appeal from an order granting a new trial. We affirm.

FACTS

On January 28 and 29, 1993, a jury trial was held in which the state charged Lenny Wilkins with alternative counts of first degree rape and sexual contact with a child under sixteen years. After the jury had reached a verdict, but prior to the verdict being announced, the foreperson of the jury advised Trial Judge Roland Grosshans that he checked out from the library, read, took into the jury room and used suggestions from the book entitled What You Need to Know for Jury Duty. Judge Grosshans notified the parties that there was a problem and thereafter received the jury's verdict of guilty to the first degree rape charge. After the jury was excused Judge Grosshans advised the parties of the specifics of the foreperson's actions. Wilkins moved for a mistrial and requested a new trial.

Judge Grosshans subsequently ordered and presided over an evidentiary hearing in which the state granted the jurors immunity from prosecution under SDCL 22-11-17, the statute which makes it a Class 1 Misdemeanor for a juror to knowingly receive "any book" or relevant information. 1 Eleven of the twelve jurors testified at this hearing; the twelfth juror was unavailable.

In response to questioning at the hearing, the foreperson testified he scanned the entire book but stated he focused on and used the concepts regarding jury organization. He admitted bringing the book into the jury room and telling the jurors about the book and the procedures it suggested a jury follow. He also testified that the book was used to enhance or supplement the jury instructions. In addition, he stated he believed that had the book not been used the jury would have been hung or would have had to deliberate at least another four hours. He further testified he cut jurors off when they were discussing a topic.

Regarding the other jurors' answers to the investigation at the hearing, it was revealed that no one besides the foreperson read the book or recalled the book being opened in the jury's presence. In addition, the testimony demonstrated the jurors generally believed the book was used only to organize them and that it neither affected their deliberations nor influenced their verdict. In addition, the consensus of the testimony was that all jurors were allowed to express views and concerns. One juror, however, testified she felt pressure to suppress views or topics which she wanted to express or discuss and felt pressure due to time constraints. Another juror stated a hung jury might have existed had the book not been used.

At the conclusion of the hearing Judge Grosshans found that based upon the totality of the circumstances and evidence presented, the foreperson's conduct had a harmful effect

Page 99

upon the rest of the jury panel and had prejudiced the defendant's right to a fair and impartial jury trial. Judge Grosshans then held the foreperson's actions of bringing the book into the jury room resulted in juror misconduct which the state could not show was a harmless effect to rebut the presumption of prejudice. Judge Grosshans granted Wilkins a new trial pursuant to SDCL 23A-29-1 and 15-6-59.
STANDARD OF REVIEW

When reviewing a trial court's factual determination regarding juror misconduct, the standard to be invoked is the clearly erroneous standard. Shamburger v. Behrens, 418 N.W.2d 299, 303 (S.D.1988). "A finding is 'clearly erroneous' when after reviewing all of the evidence, we are left with a definite and firm conviction that a mistake was made." State v. Almond, 511 N.W.2d 572, 574 (S.D.1994) (citing Selle v. Pierce, 494 N.W.2d 634, 636 (S.D.1993)). We will uphold the trial court's resolution of the facts unless, upon our viewing of the evidence in a light most favorable to the trial court's finding, we are convinced the finding was clearly erroneous under this definition. Id.

The lower court's legal decision as applied to the facts is reviewed under the abuse of discretion standard. Id; Shamburger, 418 N.W.2d at 303. " '[A]n abuse of discretion refers to a discretion exercised to an end or purpose...

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17 practice notes
  • In re Sd Microsoft Antitrust Litigation, No. 23506.
    • United States
    • Supreme Court of South Dakota
    • November 16, 2005
    ...697 N.W.2d at 31 (citing In re South Dakota Microsoft Antitrust Litigation, 2003 SD 19, ¶ 5, 657 N.W.2d at 671 (quoting State v. Wilkins, 536 N.W.2d 97, 99 (S.D.1995))). When applying the abuse of discretion standard of review, "we must be careful not to substitute our reasoning for that of......
  • State v. Wright, No. 20364
    • United States
    • Supreme Court of South Dakota
    • December 2, 1998
    ...occurs and warrants an inquiry, not every irregular conduct of a jury is prejudicial and warrants a new trial." State v. Wilkins, 536 N.W.2d 97, 99 (S.D.1995) (citations omitted). See also Jones, 1998 SD 55, p 16, 578 N.W.2d at 160 (citations omitted). A rebuttable presumption of prejudice ......
  • Bland v. Davison County, No. 19538
    • United States
    • Supreme Court of South Dakota
    • July 16, 1997
    ...The lower court's legal decision as applied to the facts is reviewed under the abuse of discretion standard. State v. Wilkins, 536 N.W.2d 97, 99 (S.D.1995) (citations and internal quotations ¶14 Bland contacted several jurors by letter following the trial and subpoenaed some of them for the......
  • State v. Aesoph, No. 21872
    • United States
    • South Dakota Supreme Court
    • June 19, 2002
    ...and the facts, could have reached a similar decision." State v. Fowler, 1996 SD 78, ¶ 12, 552 N.W.2d 92, 94-5 (quoting State v. Wilkins, 536 N.W.2d 97, 99 (S.D.1995) (citations omitted)). Thus, for a reversal on this issue, and any others applying this standard, Aesoph must demonstrate that......
  • Request a trial to view additional results
17 cases
  • In re Sd Microsoft Antitrust Litigation, No. 23506.
    • United States
    • Supreme Court of South Dakota
    • November 16, 2005
    ...697 N.W.2d at 31 (citing In re South Dakota Microsoft Antitrust Litigation, 2003 SD 19, ¶ 5, 657 N.W.2d at 671 (quoting State v. Wilkins, 536 N.W.2d 97, 99 (S.D.1995))). When applying the abuse of discretion standard of review, "we must be careful not to substitute our reasoning for that of......
  • State v. Wright, No. 20364
    • United States
    • Supreme Court of South Dakota
    • December 2, 1998
    ...occurs and warrants an inquiry, not every irregular conduct of a jury is prejudicial and warrants a new trial." State v. Wilkins, 536 N.W.2d 97, 99 (S.D.1995) (citations omitted). See also Jones, 1998 SD 55, p 16, 578 N.W.2d at 160 (citations omitted). A rebuttable presumption of prejudice ......
  • Bland v. Davison County, No. 19538
    • United States
    • Supreme Court of South Dakota
    • July 16, 1997
    ...The lower court's legal decision as applied to the facts is reviewed under the abuse of discretion standard. State v. Wilkins, 536 N.W.2d 97, 99 (S.D.1995) (citations and internal quotations ¶14 Bland contacted several jurors by letter following the trial and subpoenaed some of them for the......
  • State v. Aesoph, No. 21872
    • United States
    • South Dakota Supreme Court
    • June 19, 2002
    ...and the facts, could have reached a similar decision." State v. Fowler, 1996 SD 78, ¶ 12, 552 N.W.2d 92, 94-5 (quoting State v. Wilkins, 536 N.W.2d 97, 99 (S.D.1995) (citations omitted)). Thus, for a reversal on this issue, and any others applying this standard, Aesoph must demonstrate that......
  • Request a trial to view additional results

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