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05/03/89 STATE SOUTH DAKOTA v. DONALD R. ROUGH

May 3, 1989

STATE OF SOUTH DAKOTA, PLAINTIFF AND APPELLEE,
v.
DONALD R. ROUGH SURFACE, DEFENDANT AND APPELLANT



APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT, WALWORTH COUNTY, SOUTH DAKOTA, HONORABLE LELAND J. BERNDT, Judge

Wuest, Chief Justice, and Miller, Justice, concur. Henderson, Justice, specially concurs. Sabers, Justice, Dissents.

The opinion of the court was delivered by: Morgan

MORGAN, Justice.

Donald Rough Surface (Donald), was tried on a six-count information charging him with first-degree robbery, first-degree rape, first-degree assault, first-degree murder by premeditated design, first-degree murder in the commission of a felony--rape, and first-degree murder in the commission of a felony--robbery. This appeal lies from his conviction on all six counts. We affirm.

The charges against Donald arise from the particularly brutal death of his uncle, Daniel Rough Surface (the victim), who's body was found in the crawl space beneath a grain elevator in Mobridge, South Dakota. The victim's body was naked, bloody, badly beaten, and burned. Evidence revealed that the victim had also been raped. The police discovered Donald sleeping next to the victim. Donald had blood on his jacket, pants, underwear, shoes, and hands. The victim's knife, bill fold and post office box key were found in Donald's jacket pockets.

At 3:05 a.m., October 25, 1986, the Mobridge police, acting on a report, discovered the body of the victim in the crawl space under the abandoned grain elevator. The crime had been reported to the police by Mike Vermillion (Vermillion), who had also been sleeping under the elevator. Vermillion testified that he had crawled under the elevator at about 11 p.m. on October 24, 1986, to sleep. Vermillion further testified that he left the victim and Donald outside the grain elevator where all three had been drinking and visiting. When Vermillion awoke and discovered the body, he immediately went to the police station and thereafter led the police to the scene where the victim and Donald were found.

Donald testified that he had commenced drinking early on the morning of October 24th and continued steadily throughout the day. He testified that he and Vermillion had gone to the elevator at approximately 10:30 p.m. and sat in the crawl space and drank. Donald testified that he had not seen the victim all day and that he had passed out at approximately 11:30 p.m. On October 25th, commencing at about 4:00 a.m., Donald had been given his Miranda warnings and questioned by the Mobridge Police. Questioning continued until approximately 7:00 a.m., when Donald indicated that he no longer wished to talk. Donald testified that he did not remember being questioned during that period of time and remembered nothing until he was placed in a jail cell at 7:00 a.m.

Donald was arraigned on an information charging aggravated assault, robbery, rape, murder in the first degree, felony murder-- rape, and felony murder--robbery. To the charges, Donald pled not guilty and not guilty by reason of insanity. Donald was tried before a jury in Walworth County, South Dakota. The jury returned a verdict of guilty on all six counts and Donald was sentenced to concurrent terms of life imprisonment and fifteen years in the South Dakota State Penitentiary. Donald appeals raising eighteen issues which we have consolidated into fifteen.

We will first look at the alleged pretrial errors, as raised by Donald.

THE RIGHT TO A JURY DRAWN FROM A FAIR CROSS-SECTION OF THE COMMUNITY.

Prior to trial, defense counsel filed a notice of objection to the jury panel, wherein he objected to the under-representation on the prospective jury panel of members of Donald's race, Native Americans. The matter was brought on for a pretrial hearing after which the trial court overruled Donald's objection.

On appeal, Donald urges that the absence of all Native Americans on his petit jury panel, coupled with the presence of only one Native American on the petit jury panel that was at issue in State v. Soft, 329 N.W.2d 128 (S.D. 1983), is prima facie evidence that there is racial discrimination in jury selection in Walworth County. Donald relies on SDCL 16-13-10.1 which, in pertinent part, provides: "It is the policy of the state of South Dakota that all litigants in the courts of this state entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross-section of the community in the municipality, district or county where the court convenes. . . ." He also relies on State v. Hall, 272 N.W.2d 308, 311 n.1 (S.D. 1978), for the proposition that "smaller percentages (those of less than 15 percent) over a long period of time may support a challenge that the selection process does not provide a fair cross-section."

We find Donald's argument unpersuasive for the reason that he relies on only two factors: the fact that there were no Native Americans on the panel from which his jury was chosen, and the fact that there was only one Native American on the panel discussed in Soft, supra. In our opinion, this does not establish a prima facie case. SDCL ch. 16-13, which prescribes the method of selection of jury lists and panels, provides for selection of names for the master jury selection list for the county by the jury selectors, the clerk of the circuit court, the chairman of the board of county commissioners and the county auditor. The election precincts constitute jury districts, each of which is to be represented on the master jury list in proportion to the number of votes cast for governor in the last gubernatorial election. The precinct (voters) registration list constitutes the list from which the selectors shall prepare the master jury list.

In United States v. Clifford, 640 F.2d 150 (8th Cir. 1981), where the federal jury selection process was attacked, the court upheld the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861 et. seq., which provides for random selection of jurors from voter registration lists. Section 1861 tracks word for word the provision of the first sentence of SDCL 16-13-10.1.

In Soft, supra, we noted that statistics showed 5.86% of the Walworth County population and 9.36% of the City of Mobridge population were comprised of Native Americans. The record does not reflect percentages of those who were registered to vote. In Clifford, supra, the Eighth Circuit said:

here has been no showing that juries are not selected from a fair cross section of the community or that there has been exclusion of jurors based on any basis other than failure to register to vote . . . . The mere fact that one identifiable group of individuals votes in a lower proportion than the rest of the population does not make a jury selection system illegal or unconstitutional.

640 F.2d at 156. We affirm the decision of the trial court to deny the objection.

DID THE TRIAL COURT ERR IN FAILING TO SUPPRESS EVIDENCE OBTAINED PURSUANT TO A SEARCH WARRANT DATED THE 25TH DAY OF OCTOBER, 1986?

Donald sought, by suppression motion, to suppress certain evidence which he alleged to have been taken pursuant to a search warrant that was not properly conceived or executed. He presents a laundry list of some ten specific defects ranging from the adequacy of the affidavit upon which it was issued to the failure to return a proper inventory. We have examined the warrant, the affidavit, and the record, and find Donald's contention to be wholly without merit. We affirm the trial court's denial of the suppression motion.

DOES THE SEROLOGICAL ELECTROPHORESIS TECHNIQUE FOR TESTING BLOOD STAINS MEET THE REQUIREMENTS OF THE FRYE RULE?

By pretrial motion, Donald sought suppression of blood stain evidence upon the grounds that the technique employed by State's expert, serological electrophoresis, does not enjoy scientific acceptance among impartial and disinterested experts so as to meet the requirements laid down in Frye v. United States, 293 F. 1013 (C.A.D.C. 1923). Donald urges us to adopt the rationale of the Supreme Court of Michigan found in People v. Young, 391 N.W.2d 270 (Mich. 1986). We disagree. This issue is governed by settled South Dakota law.

The Frye test for admission of testimony relating to a scientific principle or discovery is whether the principle has become "sufficiently established to have gained general acceptance in the particular field in which it belongs." 293 F. at 1014. This court first approved the Frye test for admissibility of expert testimony in State v Helmer, 278 N.W.2d 808 (S.D. 1979). Further, in State v. Dirk, 364 N.W.2d 117 (S.D. 1985), we found electrophoretic testing to be sufficiently reliable to pass the Frye test. See State v. Adams, 418 N.W.2d 618 (S.D. 1988), for a comprehensive analysis of electrophoretic testing and the Frye test.

DID THE TRIAL COURT ERR IN FAILING TO SUPPRESS STATEMENTS MADE BY THE DEFENDANT AND BY FAILING TO ENTER FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE RECORD?

The thrust of Donald's argument is not error in failing to suppress statements made by him, but rather that because the trial court failed to make and enter specific findings of fact and Conclusions of law in conformity with our decisions in State v. Kiehn, 86 S.D. 549, 199 N.W.2d 594 (1972), and State v. Thundershield, 83 S.D. 414, 160 N.W.2d 408 (1968), remand is warranted.

Donald's motion for suppression of the statements made by him at the police station immediately after his arrest was brought on for a pretrial hearing. Witnesses who testified indicated that Donald was advised of his Miranda rights, voluntarily responded to questions, and was coherent at the time. Questioning ceased when Donald indicated that he did not wish to continue. The trial court made findings and Conclusions on the record as follows:

The court finds that the State has established beyond a reasonable doubt that the statements were voluntary and made of the Defendant's own free will, after having been duly advised of his Miranda rights, that he waived his constitutional rights and voluntarily responded to questioning, that the questioning ceased immediately upon Defendant's request that he wished to answer no further questions.

There is no indication of any undue force or influence on the part of the police officers. There is an indication that the Defendant had been drinking alcoholic beverages and was under the influence but no evidence to indicate that this was to such an extent that he couldn't comprehend or intelligently answer questions.

The court finds also that the statements were not illegally obtained in violation of the United States or State Constitutions. The motion is denied.

In State v. Hintz, 318 N.W.2d 915 (S.D. 1982), we said that when it is patently clear, on the record, that appellant knowingly, intelligently, and voluntarily waived his rights under the Miranda rule and that the statements made by him were voluntary beyond a reasonable doubt, remand of the case was unnecessary. We find the instant case to comport with Hintz. However, we strongly urge trial courts to enter specific findings and Conclusions in matters of such far-reaching importance. Trial courts are well aware that issues such as voluntariness of statements are often appealed and it would be prudent for them to protect their decisions by filing specific findings of fact and Conclusions of law. This is especially true when the matter is considered at a pretrial hearing, rather than in the course of trial.

We next examine several issues dealing with trial rulings.

DID THE TRIAL COURT ERR IN ALLOWING THE STATE TO AMEND THE INFORMATION O THE FIRST DAY OF TRIAL WITH RESPECT TO THE CHARGES AGAINST THE DEFENDANT?

On the day trial was scheduled to open, and before voir dire commenced, State informed the court that it would be submitting an amended information which separated Count IV of the original information into three separate counts. Donald strenuously objected and the court delayed its ruling until the submission of the amended in formation and a more complete record could be made. The voir dire proceeded through the morning.

At the commencement of the afternoon session, an in-camera hearing was held with regard to the amendment. Count IV of the original information charged Donald with murder in the first degree "in that he did, without authority of law and with a premeditated design, affect the death of Daniel Rough Surface or caused said death when engaged in the perpetration of a rape and/or robbery." The amended information charged three separate counts: premeditated murder, felony murder--rape, and felony murder--robbery. The trial court granted the motion to amend upon the grounds that no new offenses were alleged and the amendment merely stated more clearly that which was originally charged. The trial court also noted that State had indicated they would move for amendment prior to commencement of trial and that the voir dire had begun merely for the purpose of expediency.

On appeal, Donald urges that he was substantially prejudiced because the trial had commenced and that new charges were added. SDCL 23A-6-19 (Rule 7(e)) *fn1 prescribes the standards for amendment of an information before and during trial. In this case, the trial court is correct in its ruling that the amendment may be considered before or during trial. Since the trial court found that the amendment did not charge any new offense, with which we agree, no preliminary hearing was necessary. Considering that no new offense was charged, we cannot see where Donald was prejudiced. Donald does not point to any actual prejudice nor did he make any motion for continuance when the amendment was allowed.

DID THE TRIAL COURT ERR IN FAILING TO ALLOW CROSS-EXAMINATION OF TWO KEY PROSECUTION WITNESSES CONCERNING MATTERS IN THE WITNESS' JUVENILE RECORDS?

At trial, one juvenile testified that he had seen Donald with the victim in the early evening hours of October 24, 1986. Another juvenile testified that he loaned a shirt to Donald on October 24. Donald sought to cross-examine these juveniles based on their record as juvenile delinquents. At an in-camera proceeding, the trial court allowed defense counsel to examine one of the juveniles. At the Conclusion of these proceedings, the trial court ruled that defense counsel would be precluded from cross-examining the juveniles based on their juvenile delinquency status. The trial court concluded that the juveniles' records would not have been admissible, pursuant to SDCL 19-14-15, *fn2 because they would not impeach the credibility of an adult insofar as the underlying offenses were not felonies, nor did they relate to dishonesty or false statements, pursuant to SDCL 19-14-12.

Citing us to Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), Donald argues that a defendant has a constitutional right to cross-examine witnesses as to their juvenile record for bias and prejudice where they were susceptible to acting out of fear or concern of ...


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