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White v. Weber

June 17, 2009

DONALD RAY WHITE, PETITIONER AND APPELLANT,
v.
DOUGLAS WEBER, WARDEN OF THE SOUTH DAKOTA STATE PENITENTIARY, AND THE SOUTH DAKOTA BOARD OF PARDONS AND PAROLES, RESPONDENTS AND APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA. HONORABLE PETER H. LIEBERMAN Judge.

The opinion of the court was delivered by: Meierhenry, Justice

CONSIDERED ON BRIEFS ON APRIL 27, 2009

[¶1.] Donald Ray White appeals the habeas court's decision denying his petition for habeas corpus relief on a robbery conviction in Minnehaha County. We affirm.

[¶2.] The underlying facts involve the robbery of a Kum & Go convenience store in Sioux Falls, South Dakota. Earlier, the State had brought an unrelated, separate charge against White for grand theft. The grand theft charge proceeded to jury trial (first trial) on August 9, 2004, and the robbery trial (second trial) was held sixteen days later on August 25, 2004. Both trials resulted in a guilty verdict. The same attorney represented White in both trials.

[¶3.] One of White's issues in this habeas appeal concerns Juror 24, who was summoned for jury duty for both trials. In the first trial, Juror 24 was part of the panel of prospective jurors but was not called for examination. Juror 24 was, however, present in the courtroom during the questioning of other jurors. In the second trial, Juror 24 was again on the panel of prospective jurors. This time, Juror 24 was called for examination and ultimately was selected to serve on the jury. When White's attorney examined Juror 24 during voir dire, he did not inquire if the juror knew or recognized the defendant. White claims that his rights to due process, a fair trial, and effective assistance of counsel for the second trial were violated because Juror 24 was present during the jury selection process in White's first trial. White also claims that Juror 24's testimony was inadmissible under SDCL 19-14-7 (Rule 606(b)).

[¶4.] Our review of habeas corpus proceedings is limited and is not "a substitute for direct review," nor "a remedy to correct irregular procedures." Steichen v. Weber, 2009 SD 4, ¶4, 760 NW2d 381, 386 (quoting Erickson v. Weber, 2008 SD 30, ¶17, 748 NW2d 739, 744). We only review: "(1) whether the court has jurisdiction of the crime and the person of the defendant; (2) whether the sentence was authorized by law; and (3)... whether an incarcerated defendant has been deprived of basic constitutional rights." Id. The applicant for habeas corpus has the initial burden to prove the need for relief by a preponderance of the evidence.

Id. We review the habeas court's findings under a clearly erroneous standard. Id.

[¶5.] White first claims a due process violation because of Juror 24's presence as a prospective juror at his first trial. The Fifth and Sixth Amendments to the United States Constitution guarantee the accused the rights to due process of law and a fair trial by an impartial jury, respectively. US Const amend V, VI; see also US Const amend XIV. "Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen." Smith v. Phillips, 455 US 209, 217, 102 SCt 940, 946, 71 LEd2d 78 (1982). Further, the United States Supreme Court "has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias." Id. at 215, 102 SCt at 945. In this hearing, the habeas judge must "'determine the circumstances, the impact thereof upon the juror, and whether or not [they were] prejudicial.'" Id. at 216(quoting Remmer v. United States, 347 US 227, 230, 74 SCt 450, 451, 98 LEd 654 (1954)).

[¶6.] Juror 24 was called to testify at the habeas trial. White claims that the trial court erred in allowing the juror to testify as to her thought processes during deliberations in the second trial. We find White's claim without merit. SDCL 19-14-7 (Rule 606(b)) prohibits a juror from testifying "as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions..." However, SDCL 19-14-7 (Rule 606(b)) also provides that "a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror." (Emphasis added.) We have said that a juror may testify to:

[W]hether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. A juror may not testify about statements made during the course of the jury's deliberation nor may he testify about the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to the verdict or about his mental processes in connection with the verdict.

Shamburger v. Behrens, 418 NW2d 299, 304 (SD 1988) (quoting 11 C. Wright & A. Miller, Federal Practice and Procedure, §2810).

[¶7.] Juror 24 testified that she had not realized White was the defendant in both the first and second trials until defense counsel informed her after the second trial. The State asked Juror 24 the following questions:

The State: When you came in for jury duty on the second case, the one where you sat and eventually returned a verdict to the charge of robbery, did ...


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