State v. Zemina

• Citation: 206 N.W.2d 819,87 S.D. 291
• Decision Date: 04 May 1973
• Docket Number: No. 10926,10926
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Fred R. ZEMINA, Defendant and Appellant.
• Court: Supreme Court of South Dakota

Page 819

206 N.W.2d 819

87 S.D. 291

STATE of South Dakota, Plaintiff and Respondent, v. Fred R. ZEMINA, Defendant and Appellant.

No. 10926.

Supreme Court of South Dakota.

May 4, 1973.

Rehearing Denied June 18, 1973.

Charles Rick Johnson, Gregory, for defendant and appellant.

Gordon Mydland, Atty. Gen., David Stanton, Asst. Atty. Gen., Pierre, Mike Grossenburg, State's Atty., Tripp County, Winner, R. James Zieser, Tyndall, for plaintiff and respondent.

WOLLMAN, Justice.

Defendant was charged with murder. He was convicted of the lesser included offense of first degree manslaughter and was sentenced to life imprisonment in the South Dakota State Penitentiary.

The victim of the offense, one Kenneth Fernen (Fernen), resided with his family on a ranch located approximately 15 miles southeast of Mission, South Dakota. Sometime after noon on November 8, 1969, Fernen drove to the nearby Nebraska towns of Kilgore and Crookston to purchase some parts for his hay baler. At approximately 5:15 that afternoon, Fernen stopped to visit with a neighboring rancher, James Epke, and the two men each had one can of beer while they sat in Fernen's pickup truck and visited.

At approximately 5:45 that afternoon, Constance Fernen Grablander, who was living with her parents at the time while her husband was serving in Vietnam, left the Fernen residence to drive to her place of employment in Mission. As she drove west toward the main road to Mission, Connie met and passed defendant's eastbound tractor and hay baler. She then approached a tractor being driven by defendant's brother, Bruce Zemina (Bruce), which was pulling a cable type stack mover, referred to by all of the witnesses as a hay sled. As Connie approached the eastbound tractor and hay sled the tractor started angling toward her vehicle. She testified that Bruce shook his hand in the air and shouted at her. Frightened, Connie drove into the ditch on the north side of the road to avoid being struck by the tractor. After pulling around the hay sled she met her father, who was driving east in his pickup directly behind the tractor and hay sled. She stopped and had a conversation with him, during which she referred to defendant and Bruce as 'that crazy outfit,' to which her father replied, 'Yeah, they are a dumb outfit. I have been trying to pass them and they won't let me pass.' Upon being told by Connie that Bruce had yelled at her, Fernen became rather upset. After some further conversation, Fernen told Connie to proceed to work since it was then approximately 5:55 p.m. and she was supposed to start work at 6 o'clock. Connie testified that by the time her three or four minute conversation with her father came to an end Fernen had gotten over his irritation at the fact that Bruce had apparently tried to run Connie off the road and had yelled at her. As Connie started to drive away, she noticed in the rear view mirror of her car that defendant was coming back toward her father's pickup. At no time during his conversation with his daughter did Fernen make any threats toward either the defendant or Bruce, nor did he indicate to Connie that he was going to do anything about the fact that they had apparently tried to force her off the road.

At approximately 6 p.m. that evening, Kenneth Fernen, Jr. and John Chauncey left the Fernen ranch and started toward Rosebud. They came upon Fernen's pickup truck parked on the road behind the Zemina tractor and baler. The door on the driver's side of the pickup was closed. The two boys discovered Fernen lying wounded on the ground near the open right door of the pickup. Although Fernen was still alive he was unable to talk. When Kenneth, Jr. attempted to move the pickup in order to shine lights on the scene, he discovered that the keys were missing. They were later found lying in the weeds at a point 20 to 25 feet north and slightly west of the driver's door of the pickup. The soil in the area where Fernen's body was found indicated that there had been a good deal of scuffling on the passenger's side of the pickup. The tubular magazine from Fernen's .22 caliber rifle was found lying on the ground near the body. The rifle itself had been seen by Mr. Epke and Connie Grablander in the pickup at the time they spoke with Fernen.

There was blood spattered about on the interior of the pickup and on the door on the passenger's side. A scoop shovel was stuck handle down behind the driver's seat. This was not present at the time Connie and Mr. Epke talked with Fernen. The headliner on the ceiling of the pickup behind the driver's seat was bent in.

Fernen was taken to the hospital in Rosebud where he died at approximately 8:15 that evening. The cause of death was pulmonary edema resulting from a gunshot wound to the head. The autopsy revealed that Fernen had been shot through the forehead with a .22 caliber rifle from a distance of less than twelve inches. He had also been shot in the neck. Both the left and right jaws had been fractured and several teeth had been broken loose, apparently the result of forceful blows from a blunt instrument.

At about 6:30 p.m. that evening, defendant and his wife and his brothers Bruce and Ed came to the home of one Dan Clapper and asked to use the telephone. Defendant in Mr. Clapper's presence called Peter Pitchlynn, who had retired as a special officer in charge of the law and order division of the Bureau of Indian Affairs on the Rosebud Reservation shortly prior to November 8, 1969. Mr. Pitchlynn was told by defendant that he should go out and immediately investigate the scene of the incident involving defendant, his brother Bruce, and Kenneth Fernen. Defendant told Pitchlynn that he and Bruce had had a set-to with Fernen and that in the fracas Bruce had taken a rifle away from Fernen and that Bruce had gotten shot in the chest. Defendant stated that Fernen had gone for a gun in his belt at the time Bruce took the rifle away from him.

Defendant attempted to telephone his attorney, Charles Johnson, but was unable to get in touch with him.

Later that evening the sheriff of Todd County searched defendant's car at the hospital parking lot in Winner, South Dakota, pursuant to a search warrant and recovered Fernen's .22 caliber rifle from where it was lying on the real floorboard under some clothes. Blood spots found on the butt of the rifle were identified as being of the same blood group as Fernen's blood.

The doctor who examined and treated Bruce in the Winner hospital on the night of November 8, 1969, testified that Bruce had suffered a bullet wound in the right flank just below the ribs midpoint between the abdomen and back; the path of the bullet was parallel to the ground. Bruce also had bruises around the eyes and had suffered a black eye. According to the physician, Bruce did not conduct himself rationally during the time that he was being treated in the hospital. There was further evidence that Bruce remained irrational after November 8, 1969, and that sometime during the spring of 1970 he was committed to the State Hospital at Yankton, South Dakota, although the circumstances of this commitment and by whom it was initiated are not entirely clear from the record. It appears that Bruce has never been brought to trial on any charges arising out of the death of Kenneth Fernen, and so far as we are able to ascertain from the record he is still a patient at the Yankton State Hospital.

The physician who examined and treated the defendant on November 10, 1969, reported that defendant had facial abrasions, a fractured nose and two fractured ribs.

The evidence revealed that until 1966 Fernen was on reasonably friendly terms with defendant and Bruce. Their ranches were within a few miles of each other and the Zeminas occasionally stopped at the Fernen ranch for coffee and rolls. On March 1, 1966, Fernen's lease on a quarter of Indian trust land being administered by the Bureau of Indian Affairs lapsed when he failed to submit a renewal application. Defendant's wife, Clara Zemina, a member of the Rosebud tribe, applied for and secured a lease on the land. This particular quarter section lay immediately south of the property on which Fernen's ranch home and buildings were located.

Defendant put in a fence on the boundary line between the leased quarter and the Fernen property in order to keep Fernen's cattle off the leased land. This caused Fernen to become quite angry with defendant and resulted in an altercation in June of 1966 during which Fernen struck defendant on the face and head several times. Defendant later brought a damage suit against Fernen for assault and battery and for interference with possession of his land and obtained a judgment of some $2500. Defendant's attorney attempted to make arrangements with Fernen for the payment of the judgment and on November 3, 1969, informed Fernen by letter that unless Fernen paid some more money on the judgment further action would be taken to collect the judgment. There was evidence that Fernen had told the Realty Officer at the Rosebud Agency on several occasions that he did not intend to let the Zeminas fence him out. Bureau of Indian Affairs law enforcement officers had received numerous calls to go out and settle difficulties between the Zeminas and Fernen arising from the fencing of the leased quarter.

Defendant took the stand on his own behalf and testified generally as follows: On the afternoon of November 8, 1969, he and Bruce had been baling hay and moving haystacks. Toward sundown they started back toward the defendant's ranch with their equipment. After Connie Grablander's car had met and passed his tractor, defendant looked back and saw Bruce stop and get off his tractor and look under the front of the hay sled. Defendant stopped his tractor and waited for Bruce to come back from where he had walked to the back of the hay sled. Upon Bruce's failure to return, defendant walked back to the hay sled, where he heard air coming out of one...