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February 14, 1990



Henderson, Justice (on reassignment), Wuest, Chief Justice, & Miller, Justice, concur. Morgan & Sabers, Justice, Dissent.

The opinion of the court was delivered by: Henderson

HENDERSON, Justice (on reassignment)


This criminal case arose after the body of a three and a half year old girl, Abby Jenner (Abby) was discovered mutilated and stabbed to death in her bed on April 5, 1987. Evidence indicates she tried to ward off her attacker. The Beadle County Grand Jury issued an indictment charging Abby's mother, Debra Sue Jenner (Debra), with one count of second degree murder (SDCL 22-16-7) and one count of first degree manslaughter (SDCL 22-16-15(3)). After a trial in the Circuit Court for Beadle County, the jury found Debra guilty of second degree murder. She was sentenced to life imprisonment. Debra appeals her conviction (Notice of Appeal 16211) denoting eight separate issues which we observe are allegations that the trial court erred in essentially four regards:

I. Debra's motion to suppress her statements made during police questioning, on April 7, 1987, should have been granted;

II. The jury was not correctly instructed regarding unconsciousness, amnesia, and insanity;

III. A state-requested motion in limine regarding third party perpetrator evidence was improperly granted; and,

IV. Evidence was insufficient to support her conviction.

- Holding -

We affirm Appellant's conviction, rejecting her arguments. We do not reach the issues raised by the State's notice of review (16240), wherein the State urges that second degree murder and first degree manslaughter are not alternative counts, as the trial court instructed the jury. We therefore uphold the jury's verdict.


Appellant is the wife of Lynn Jenner, (Lynn) and the mother of a daughter, Abby, born November 10, 1983, and a son, Stuart, born July 27, 1982. Abby had an allergy to milk products, and had difficulty sleeping at times. During the evening of April 3, 1987, Abby awoke in the night, requiring the attention of her parents. During a trip on April 4, 1987, she soiled her pants twice. Shortly before 9:00 a.m. on Sunday, April 5, 1987, Lynn entered Abby's bedroom to awaken her. He found her in bed, lying totally still, with her mouth full of blood. He screamed, whereupon Debra came over from the master bedroom, approximately twenty feet away. Debra sat on the edge of Abby's bed and touched her. Abby's body was cold, her eyes dilated. Debra telephoned "911" at 8:59 a.m., gave her address, then relating that a three year old girl was there, with blood and "organs" coming out of her mouth. Debra's tone of voice, during this conversation, was very loud. An ambulance was dispatched.

Before the ambulance arrived, at 9:05 a.m., Debra made an additional telephone call to Doctor Cynthia Kortum, M.D., her family doctor, during which her tone of voice was quite calm. She informed Dr. Kortum, matter of factly, that Abby had died during the night and requested an autopsy. Debra, in the six minutes between her 911 call and the ambulance's arrival, also telephoned her parents, Bruce Schafer and Janet Schafer, and her pastor, Darrel Wagner. At the time the ambulance arrived, she was engaged in still another call, to her friends, the Brink family. The ambulance, her parents, and officer William Ehlers, of the Huron Police Department, arrived at the Jenner home within moments of each other. An emergency medical technician entered the Jenner home, found no signs of life in Abby, and carried her, still enwrapped in bloodstained bedding, out to the ambulance. The ambulance then proceeded to the Huron Regional Medical Center.

The ambulance crew noticed numerous cuts on Abby's body. Later examination revealed that seventy stab wounds were inflicted on Abby. Dr. Brad Randall, the forensic pathologist who performed Abby's autopsy, testified at trial that some wounds were of a slashing type, consistent with a blade sharpened on one edge and dull on the other. Other wounds were punctures, which could have been made by a model airplane owned by Stuart which was found next to the sink in the Jenners' kitchen. In particular, the geometry of one wound was described by Dr. Randall as "relatively unique", matching the model plane, as markings around the wound corresponded to a protrusion on the back of the plane and its rear fins. Dr. Randall characterized numerous cuts on Abby's arms and hands as "defensive" in nature, i.e., inflicted as Abby, who laid on her stomach, attempted to fend off the blows. He termed the attack a "frenzy type", evidenced by repeated blows with no particular target. He estimated that Abby died during the early morning hours of April 5, 1987.

No members of the Jenner family accompanied Abby to the hospital. At 9:17 a.m., six minutes after delivering Abby to the hospital, the ambulance driver, Mike Ball, returned to the Jenner home to retrieve equipment. Ball testified that appellant was talking on the telephone normally, in an utterly calm manner. Debra and Lynn went to the hospital only after Janis LaMont, a registered nurse, called them at home requesting information. Once at the hospital, according to LaMont, Debra appeared restless, and paced in the hallway. Lynn stayed in the waiting room, head in hands. Shirley Jenner, Debra's mother-in-law, remarked that she wished Debra would cry. David Bender, a hospital maintenance worker, spoke to Shirley, who was, herself, a hospital worker, for about 20 minutes. At one point, Shirley Jenner left him to converse with Debra. He testified that he heard Debra remark that it was a "screwed-up day", and asked "why couldn't this have been a simple death?" He also heard Debra remark, "I don't know how the hell it happened", in reference to the cuts, wounds and scratches upon Abby's lifeless body. At one point, Debra asked Shirley who Bender was. When Shirley identified him as a hospital maintenance worker, Debra responded: "Oh shit."

While at the hospital, Beadle County Sheriff Tom Beerman (Beerman) spoke to Debra and Lynn. According to Beerman's testimony at trial, he asked Debra if Abby had been sick, and Debra replied that Abby had been "hyper" for a couple of days, that she had stayed up with Abby on Friday night (April 3, 1987), and that Abby had soiled her pants a couple of times on Saturday afternoon. Debra also related that she checked on Abby at midnight Saturday night, when Abby was asleep, and did not see her again until after Lynn found her the next morning. Debra and Lynn, Beerman was told, then went to bed, only to be disturbed by noise from a party next door. They arose, looked out a window, and watched three intoxicated individual's enter a car and drive away. Per Debra, they then returned to bed and slept until the next morning. Lynn, who discovered Abby's body, informed Beerman that he went into Abby's room to waken her for church, noticed something wrong, turned her over onto her back, and saw blood. He looked in Abby's eyes and knew that she was dead.

Meanwhile, when the Jenners, mother and father of the victim, were at the hospital, Deputy Chief Robert McQuillen (McQuillen) and Sergeant William Ehlers (Ehlers) of the Huron Police Department went to their home. There they found Lynn's father, Merlin Jenner, and Ruby Wagner, wife of the Jenners' pastor. Examining Abby's bedroom, they immediately noticed that her bedding had been replaced. After Mrs. Wagner told him she had already cleaned the room, as she did not want the Jenners to come home and see the mess, McQuillen told those present to leave the room and house alone. McQuillen and Ehlers briefly went to the hospital, and then returned to the Jenner home. They noticed that the bedding in Abby's room had been changed again. McQuillen told everyone to leave. The bedding, not taken to the hospital with Abby, was recovered that morning from defendant's father, Merlin Jenner, who had placed it in his car.

Huron police detective Dave Rand, Dr. Ilya Zeldes, a forensic scientist, and Rex Riis, a criminalist from the State Forensic Laboratory in Pierre, examined the Jenner home later that day. They found no evidence of forced entry. Bloodstain's were discovered on the headboard of Abby's bed, on the wall behind the bed, on the bathroom floor, on a wall-mounted light switch in Abby's room and on a telephone near the kitchen. Abby's blood was therefore found in different parts of the Jenner home. Abby's mattress was turned over before they arrived, with the bloody side facing down. A knife which was consistent with some of Abby's slashing wounds was in a silverware tray atop a microwave oven near the kitchen sink. These officers removed clothing, similar to clothes Debra claimed to have worn to bed on the night Abby was slain, from a hamper next to a washing machine in the basement. No identifiable fingerprints were found.

Debra and Lynn went to Merlin's house after they left the hospital that day. While there, Mary Brink, a family friend, noticed that Debra washed her hands several times that morning. When asked what the problem was, appellant responded: "I can't get the smell off of my hands." Debra and Lynn eventually left Merlin's for Debra's parent's home, where Beerman reached them by telephone, sometime after 5:00 p.m. Beerman asked them to come down to his office to be interviewed by Jerry Lindberg (Lindberg), a Division of Criminal Investigation (DCI) agent.

Debra was interviewed by Lindberg for approximately an hour and a half, starting at 8:30 p.m. During this interview, she repeated much of the factual background she had earlier given to Beerman. There was one significant difference, however, as she told Lindberg that she did enter Abby's room that morning just before Lynn discovered Abby's body, but noticed nothing unusual. Also, according to Lindberg's trial testimony, Debra claimed that she could not remember whether the outside doors of her home were locked the night Abby died. Lindberg observed that Debra was very calm and collected during the interview. After the Jenners left, Beerman, Riis, and Dr. Zeldes went to the Jenner's home, where hair and blood samples were given by the Jenners, by consent.

The next day, April 6, 1987, Debra offered to turn over her class ring, which she thrice assured him had not been "scrubbed". As she later testified that she wore it from Saturday night, April 4, through Sunday night, April 5, the ring, per her statements, must have been washed at least four times while she wore it (three times while at Merlin's house, according to Kay Brink's testimony, and once, additionally, in the bathtub at her home after Lynn discovered Abby's body). During this conversation, she asked Beerman why the police were not checking persons who had been at the party next door. Beerman replied that they were being investigated. Lynn, later that day, turned the ring over to McQuillen and Rand, together with other personal jewelry.

Beerman telephoned Lynn Jenner, on Tuesday, April 7, 1987, and asked that he and Debra come to his office for a few more questions. They agreed and arrived shortly after 2:00 p.m., accompanied by Lynn's parents and their Pastor, Darrell Wagner. DCI agent Lindberg spoke to them together, for five to ten minutes, and asked them to submit to a polygraph test. Lindberg explained that the tests were strictly voluntary, and that the polygraph was used as an investigative tool to help eliminate or generate suspects. Lynn readily consented to testing, and Debra consented after being assured that her grief would not affect the test results. The Jenners were then separated, and DCI agent Fred DeVaney (DeVaney) presented a polygraph consent form to Debra for signature. As she read the form, he advised her that she did not have to take the test, and discussed the test procedure. She signed the consent form. DeVaney then administered the polygraph test, which lasted 90 minutes. During the test, Debra showed no reluctance or hesitation to answer questions. According to DeVaney's trial testimony, Debra theorized that two men had broken into the house and killed Abby. She opined that it had to be two men - one to kill, and one to open doors without getting blood on the doorknobs. Between 3:30 and 4:00 p.m., having finished the test, DeVaney left Debra alone in the room for five to ten minutes, while he reviewed the polygraph charts. The charts indicated that she had been deceptive in her responses. DeVaney asked Lindberg to follow this up.

Lindberg then talked with Debra for 15 to 20 minutes. During this interview, Debra admitted past problems with physical discipline upon the deceased child, including one specific incident where she spanked Abby with a wooden spoon so hard that the spoon broke. She also stated that she and Lynn locked their bedroom door at night to prevent their children from crawling into bed with them. When asked if she hurt Abby, she replied: "I don't remember[,]" and "I didn't do this, but I could have psyched out during the night." When asked, outright, if she killed Abby, she simply denied remembering it. At one point, according to Lindberg's trial testimony, she said: "A person could just go click and go in and do this and clean up the mess and not remember it." She denied noticing any smell of blood, even after touching Abby after Lynn found her dead, and related that she noticed nothing unusual when she entered Abby's room immediately before that (at trial, Debra testified that she only glanced at Abby, and focused entirely on the floor when passing around the bed on the way to the closet). During this Discussion, Debra's demeanor fluctuated between being calm and visibly upset with great rapidity.

At 4:00 p.m., DeVaney replaced Lindberg and interviewed Debra for another hour. She exhibited no reluctance or hesitancy to continue the interview. According to DeVaney, Debra repeated that she might have "psyched out" and done it, and asked him if he was a psychologist (he was not). She also volunteered to him that she wanted to use any means in DeVaney's words, "to get the truth out of her if she had done it[,]" including the use of a psychologist or hypnosis. DeVaney testified that he left the room at one time, and came back to find that she had gone to the bathroom and returned while he was out. He also procured a Diet Coke for her, after she declined an offered Coca-Cola. At approximately 5:00 p.m., he discontinued his questioning because he perceived that she was looking down on him after he responded negatively to her inquiry as to whether he was a born-again Christian. He asked her if she was willing to continue the interview with another DCI agent, Ken Giegling (Geigling). She agreed.

During this interview, which lasted until 9:00 p.m., Debra told Giegling that neither her husband nor her son killed Abby. As in the earlier interviews that day, she indicated that she could not recall killing Abby, yet repeated that she might have "psyched out." According to Giegling, Debra asked his help in spurring her memory, and offered to undergo hypnosis, take a "truth serum", or talk to a psychologist to that end. Debra related that, in Giegling's words, "from the start of all this that she has had it in the back of her mind that she could have done this." She also informed him that she was afraid she had committed "this horrible premeditated act[.]" At another point, Geigling testified, she grabbed his hand and told him that she recalled her husband locking the front door of her home on the night in question, a fact that she had told nobody else (she claimed at a later suppression hearing, and at trial, that she could not remember if this memory concerned the night Abby died).

DeVaney also testified that Debra described the killing several times, as seen through Abby's eyes. The first such account came, according to Geigling, without any prompting: Abby was not afraid, knew the perpetrator, trusted the person, and saw a knife, a Chicago Cutlery knife which she had seen before. The second time Debra reconstructed Abby's point of view, she indicated that her own hair was down, and Abby grabbed it. (Analysis of hair samples taken from Abby's hands and arms indicated that these hairs were consistent with samples of either Abby's or Debra's hair, but not Lynn's). Debra related that a black object was in Abby's room at the time, and identified it as a black model airplane which belonged to her son. When asked where the plane was then, Debra informed Giegling that it was on the counter in her kitchen. Giegling then left Debra and informed the police of the model airplane and its location. They found it exactly where Debra said it would be (this is the model plane, the shape corresponding to wounds on Abby's body). Up until that point, the police had been unaware of the model plane. At the suppression hearing and trial, Debra disputed Giegling's account. She testified that Geigling had simply asked if there were any sharp toys in the house, to which she replied by identifying the model and giving its location.

The last time Debra described events in Abby's bedroom for Giegling, she changed her position, stating that a man was standing over Abby's bed with a knife in his hand; further, that he took the knife with him when he left.

At approximately 9:00 p.m., Giegling became concerned with Debra's demeanor, which had been changing throughout the interview. He brought Lynn into the room, and Debra, as Giegling told it, cried out, "I did it, I did it, I did it],]" which statement her husband then acknowledged by saying "You did it", (Debra and Lynn later disputed Giegling's account on this point, by testifying that she actually said "I did it, didn't I?"). Debra then asked Lynn if he helped her, to which he replied that he had not. She then said: "If you didn't help me how could I do this, clean up and go outside?" No further questioning was undertaken by the police that night.

At Geigling's request, Duane Majeres, a psychologist and counselor was called in to assess Debra's mental state after the police interviews. He found her to be well-oriented and very calm. After this psychological interview she left.

Before trial, Debra moved to suppress all of her statements elicited during the April 7 interviews on the grounds that she was subjected to custodial interrogation without being given Miranda warnings and that her statements were involuntary. At a suppression hearing on January 6, 1988, Debra testified, inter alia, that she had no basis for feeling that she could not leave the police station. Further, she testified that although she was offered no food during the interviews that day, she was not aware of even being hungry, as she was "concentrating on the other things." The trial court, after issuing detailed findings of fact and Conclusions of law, denied the motion to suppress.

Debra's trial lasted from February 24, 1988, until March 15, 1988. The jurors' verdict determined her to be guilty of second degree murder, but not guilty of first degree manslaughter. The court instructed the jury that these were alternative counts.


Debra's Notice of Appeal (16211)

I. Suppression of Debra's Statements on April 7, 1987.

Debra first asserts that the trial court erred in denying her motion to suppress testimony regarding incriminating statements she uttered during the interviews on April 7, 1987. Her argument is two-pronged: 1) The State failed to prove, beyond a reasonable doubt, that her statements were freely and voluntarily made; and, 2) The interviews were custodial in nature, undertaken without benefit of Miranda warnings. We reject both arguments.

Our standard of review regarding voluntariness of confessions or incriminating statements is well established. The State has the burden of proving beyond a reasonable doubt that such confessions or incriminating statements were freely and voluntarily made. State v. Faehnrich, 359 N.W.2d 895, 898 (S.D. 1984); State v. Janis, 356 N.W.2d 916, 918 (S.D. 1984). If the trial court finds the confession or incriminating statement was voluntary beyond a reasonable doubt, such finding is binding upon this Court unless we conclude from our review of the record that the finding is clearly erroneous. State v. Albright, 418 N.W.2d 292, 297 (S.D. 1988); Faehnrich, at 898; State v. Headrick, 357 N.W.2d 268, 270 (S.D. 1984). The trial court must have reviewed the totality of the circumstances surrounding the interrogation. Albright, at 297; Faehnrich, at 898. See also, State v. Caffrey, 332 N.W.2d 269 (S.D. 1983); State v. Lyons, 269 N.W.2d 124 (S.D. 1978). In reviewing the trial court's findings on voluntariness, we consider the evidence in the light most favorable to the finding. State v. Volk, 331 N.W.2d 67, 70 (S.D. 1983). On this record, we do not deem the trial court's finding to be clearly erroneous. We are not unmindful of the plenary (de novo) review rule in the federal courts. Historically, we have not adopted this rule nor do we now. We do not perceive that the fifty sovereign states have been mandated to follow the plenary review rule. Miller v. Fenton, 474 U.S. at 104. We would not have reached a different result under that rule were it heretofore or now adopted. We have thoroughly reviewed the unique facts and conclude that the totality of the circumstances do not justify a Conclusion of involuntariness.

Specifically, in response to Justice Morgan's Dissent on the plenary (de novo) rule in this case, the stare decisis in this Court reveals that our standard of review regarding voluntariness of confessions is well established, as set out in the following cases in which current members of this Court participated, namely:

State v. Albright, 418 N.W.2d 292 (S.D. 1988) (authored by Justice Miller, joined by Justices Morgan and Henderson, with Chief Justice Wuest Concurring in result, and Justice Sabers Concurring on voluntariness but Concurring in result because of a search warrant issue).

State v. Gregg, 405 N.W.2d 49 (S.D. 1987) (authorized by Justice Sabers, on reassignment, joined by Chief Justice Wuest and Justice Henderson, with Justice Morgan Concurring on the suppression issue, and former Chief Justice Fosheim Dissenting on a different issue).

State v. Faehnrich, 359 N.W.2d 895 (S.D. 1984) (a unanimous opinion authored by Justice Henderson, joined by then Chief Justice Fosheim, Justices Wollman and Morgan, and then Acting Justice Wuest).

State v. Headrick, 357 N.W.2d 268 (S.D. 1984) (a unanimous opinion by then Acting Justice Wuest, joined by then Chief Justice Fosheim and Justices Wollman, Morgan and Henderson).

State v. Janis, 356 N.W.2d 916 (S.D. 1984) (authored by then Chief Justice Fosheim, joined by Justices Morgan and Henderson, and Retired Justice Dunn, with Justice Wollman Dissenting, on application of the facts to the clearly erroneous rule).

State v. Caffrey, 332 N.W.2d 269 (S.D. 1983) (authored by Justice Wollman, joined by Justices Morgan and Henderson, with Justices Fosheim and Dunn Concurring in result).

State v. Cowell, 288 N.W.2d 322 (S.D. 1980) (a unanimous opinion authored by Justice Fosheim, joined by then Chief Justice Wollman and Justices Dunn, Morgan and Henderson).

State v. DuBois, 286 N.W.2d 801 (S.D. 1979) (a unanimous opinion authored by Circuit Judge Dobberpuhl, sitting for Henderson, J., disqualified, joined by then Chief Justice Wollman, and Justices Dunn, Morgan and Fosheim).

State v. Lyons, 269 N.W.2d 124 (S.D. 1978) (a unanimous opinion written by Circuit Judge Jones, sitting for disqualified Justice Zastrow, joined by then Chief Justice Wollman, and Justices Dunn, Porter and Morgan).

A finding by the trial court, that a confession or incriminating statement was beyond a reasonable doubt voluntarily made, is binding upon this Court, unless we conclude from our review of the record that the finding is clearly erroneous. State v. Hall, 353 N.W.2d 37 (S.D. 1984), written for this Court by Justice Morgan.

The facts of this case, set out at length above, overwhelmingly indicate that Debra participated in the April 7 interviews of her own accord and cooperated fully. She and her husband, accompanied by his parents and the family pastor, came to the police station on their own volition. She was orally advised that the initial polygraph test was strictly voluntary, and that they were under no obligation to talk to the police. This oral warning was given twice, separately, by Agents Lindberg and DeVaney. See, State v. DuBois, 286 N.W.2d 801 (S.D. 1979). Debra also signed a polygraph consent form before the test was administered, immediately after DeVaney advised her that she did not have to take the test and explained the process to her. See, State v. Adkins, 88 S.D. 571, 225 N.W.2d 598 (1975). The polygraph test was not used as a psychological threat, or figurative "rubber hose", in the manner proscribed in State v. Caffery, 332 ...

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