State v. Brandenburg ( 1984 )

POSHEIM, Chief Justice.

Larry Brandenburg appeals a perjury conviction. We reverse and remand for a new trial.

This appeal developed from the factual background found in State v. Wellner, 318 N.W.2d 324 (S.D.1982). In Wellner we upheld the criminal convictions of Steven and Stanley Wellner for cultivation of several tons of marijuana on Hand County farmland rented from Ellwood Brandenburg, appellant’s father. Appellant was then purchasing that land.

Appellant was called as a witness at the Wellners’ preliminary examination on October 2,1980. He testified in part as follows:

QUESTION: Did you know ... do you have any knowledge that any marijuana was grown on any of that land that you were purchasing from your father? ANSWER: No, I didn’t.

QUESTION: And you, yourself, did you ever see any marijuana growing there? ANSWER: No.

The perjury conviction rests on this testimony.

Appellant unsuccessfully moved for change of venue. Media coverage of these proceedings was not unusually extensive. His assertion of county-wide bias was founded almost entirely on a survey of 201 area residents, 72 of whom signed form affidavits attesting to their belief that Brandenburg could not get a fair trial in Hand County.

We held in State v. Wellner, 318 N.W.2d 324, that a similar survey conducted for the Wellner defense did not require a change of venue. The Wellners exercised only one peremptory challenge during voir dire and thus failed to show that the community bias or prejudice could not adequately be exposed and remedied during voir dire. Brandenburg notes this Wellner dictum:

Had this case come to us in the posture of defendants’ exhausting their peremptory challenges with jurors still on the panel who had indicated a pretrial bias, followed by a refusal of the motion to change the place of trial, the result would undoubtedly be different.

Id. at 331. Appellant argues that his survey’s showing of county prejudice, his exhaustion of peremptory challenges during voir dire and his renewed motion for change of venue justified moving the place of trial under the Wellner hypothetical.

A change of venue shall be ordered upon motion if the court is satisfied that there exists, in the county where the prosecution is pending, so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county. SDCL 23A-17-5. Generally, the law presumes that a defendant can receive a fair and impartial trial in the county in which the offense is committed. State v. Reiman, 284 N.W.2d 860 (S.D.1979); 21 Am.Jur.2d Criminal Law § 387 (1981). The test is whether there is, in fact, prejudice in the minds of the county residents sufficient to raise a reasonable apprehension that the accused will not receive a fair and impartial trial in that county. The burden of establishing that a fair and impartial trial cannot occur in such county is upon the applicant. Granting or refusing a change of venue involves the discretion of the trial court, and we will reverse that decision only upon a showing of discretion abuse. Wellner, 318 N.W.2d 324; Reiman, 284 N.W.2d 860; State v. Austin, 84 S.D. 405, 172 N.W.2d 284 (1969).

Brandenburg has not established an abuse of discretion. He did not introduce evidence of unfair publicity and his survey appears to have been unscientific and self-serving. The interviews did not occur in random fashion, but, as Brandenburg’s investigator conceded, the next subject to be contacted was often recommended by the person being interviewed as one likely to sign the desired statement. The State’s investigation of the 72 persons who did sign affidavits revealed that: (1) seven were not residents of the county; (2) forty-six were married to each other; (3) two were appellant’s sister and brother-in-law; (4) some admitted being social friends or business associates of the appellant; (5) some did not read the affidavit before signing it and others did not understand what the form affidavit said. If there was county-wide bias, it was not exposed in the voir dire examination or the showing presented. While it may have been preferable to move the place of trial to insure a higher degree of fairness, we cannot conclude from the record that the trial court abused its discretion in denying the motion for a change of venue.

Appellant also alleges error in the court’s refusal to admit two tape recordings into evidence. The first recording was made secretly by Brandenburg on October 30, 1980, when he was talking to the former Hand County State’s Attorney, who later became special prosecutor in the Brandenburg trial. Brandenburg claims the tape would have revealed to the jury that he informed the State’s Attorney not to expect him to say he knew that which he had not seen. In the tape he stated:

I’m going to go up there and say what I know, and if it is something I don’t definitely know, I’m not going to say I know it one way or the other ...

It is important to note that this conversation occurred after the preliminary examination from which the perjury conviction springs. Brandenburg was then ostensibly attempting to explain to the State’s Attorney why he had denied knowledge of the marijuana cultivation at the preliminary examination and why his answer would be the same at a grand jury hearing the following day and also at the upcoming trial. The court did not abuse its discretion in refusing to admit this after-the-fact explanation.

Brandenburg also asked leave to play the first tape to the jury to impeach the testimony of the special prosecutor and State witness Jerry Lindberg. The special prosecutor had been called as a defense witness to confirm a statement he made to Brandenburg during the tape-recorded conversation. During that taped conversation he stated:

... if I get a conviction [the Wellners] are going to start squealing like stuffed pigs ... They’re gonna drag you in, Larry. They’re out there sweet talking you all the time now. But you wait. You mark my word. When it’s over and done, they ain’t going to take that two years in the pen alone. They’re going to try to drag other people in and lie to do it. I’m not saying they wouldn’t lie to get you in trouble ... What’s the obvious alternative? To make them think Larry Brandenburg did it. [Emphasis added]

The special prosecutor testified he did not recall saying the Wellners might lie to convict Larry Brandenburg. While this was not a denial, it was less than an admission and thus put in issue what exactly he said. Lindberg, who was present at the tape-recorded conversation, also testified he could not recall hearing him make that statement. Brandenburg and his wife were permitted to testify concerning the contents of the tape, but permission to play the tape to the jury was refused.

Without hearing the tape, the jury was ’ asked to choose whether to believe the special prosecutor and a state witness or the accused and his wife. The stock instruction was given that, in weighing credibility, the jury could take into consideration the interest of the witness in the result of the case. Since the defendant and his wife obviously had a great interest in the verdict, only the tape could objectively impeach the testimony of the special prosecutor and Lindberg. It was relevant. It was not collateral, but bore directly on the credibility of the evidence supporting the perjury charge. Because the recording existed, it was the evidence required to establish the special prosecutor’s statement that the Wellners might lie. See SDCL 19-18-2. In all probability the ruling produced some effect upon the final result which adversely affected appellant’s rights. Refusing the tapes into evidence thus exceeded harmless error. K & E Land and Cattle, Inc. v. Mayer, 330 N.W.2d 529 (S.D.1983); Larson v. Locken, 262 N.W.2d 752 (S.D.1978); State Hwy. Com’n v. Beets, 88 S.D. 536, 224 N.W.2d 567 (1974).

This taped conversation raised another problem. The trial judge ruled that he would permit the tape into evidence only if there was no objection. The special prose'-cutor objected because he felt his taped words might prejudice the State’s case. By then objecting the special prosecutor thereby, in effect, precluded admission of the tape into evidence, a tape which may have impeached state’s evidence including the testimony of the special prosecutor.

A prosecutor has an overriding obligation, shared by the court, to see that a defendant receives a fair trial. State v. Sahlie 90 S.D. 682, 245 N.W.2d 476 (1976). This burden weighs as heavily on prosecutors as it does on judge, jury and defense counsel. State v. Gage, 302 N.W.2d 793 (S.D.1981); State v. Kidd, 286 N.W.2d 120 (S.D.1979); State v. Havens, 264 N.W.2d 918 (S.D.1978). In this vein, we must be ever mindful that a prosecutor’s duty is not simply to prosecute, but to obtain justice with a fair trial. Id.; Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935).

Ethical Consideration 7-13 of the Code of Professional Responsibility set forth in SDCL 16-18, Appx., provides:

The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict. This special duty exists because: (1) the prosecutor represents the sovereign and therefore should use restraint in the discretionary exercise of governmental powers, such as in the selection of cases to prosecute; (2) during trial the prosecutor is not only an advocate but he also may make decisions normally made by an individual client, and those affecting the public interest should be fair to all; and (3) in our system of criminal justice the accused is to be given the benefit of all reasonable doubts. With respect to evidence and witnesses, the prosecutor has responsibilities different from those of a lawyer in private practice: the prosecutor should make timely disclosure to the defense of available evidence, known to him, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment. Further, a prosecutor should not intentionally avoid pursuit of evidence merely because he believes it will damage the prosecutor’s case or aid the accused. [Emphasis added]

We do not insinuate the special prosecutor had unethical motives.^* He knew in advance, however, that his objection would effectively stifle evidence, which did preclude a fair trial. Because using the tape might hurt the State’s case was not a valid reason to prevent its introduction. The tape-recorded statement was important to the defense. It put in question the credibility of the Wellner brothers who had been released from prison in exchange for their testimony against Brandenburg. The trial court has a continuous responsibility to assure a fair trial. Degen v. Bayman, 86

S.D. 598, 200 N.W.2d 134 (1972). That responsibility may not be interrupted. It was less than continuous when the admissibility of the taped evidence was conditioned on no objection. The obligation of the trial judge to independently and objectively decide all the issues perseveres throughout all stages of the trial.

Brandenburg also attempted unsuccessfully to have the jury hear in its entirety a tape recording of a conversation between Brandenburg, his wife, and the two Wellner brothers, shortly after the Well-ners were released from prison. The trial court permitted the jury to hear three short excerpts from a forty-five minute recording, tending to impeach Steven Wellner’s denial that he told the Brandenburgs there was no substance to the charges against them and that their testimony was all the special prosecutor’s idea. Although Brandenburg concedes much of the conversation was irrelevant, he maintains the jury should have been allowed to hear what was not said. We perceive no abuse of discretion in the refusal to play the entire tape for this purpose. The jury heard the relevant portions.

Brandenburg also claims error in the trial court’s refusal to give several proposed jury instructions. Because we reverse on other grounds, we decline to discuss proposed instructions which may never reappear. Cf. Blumhardt v. Hartung, 283 N.W.2d 229 (S.D.1979).

Reversed and remanded for new trial.

DUNN and MORGAN, JJ., concur. HENDERSON, J., concurs specially. WOLLMAN, J., concurs in part and dissents in part.

* Our reference to Ethical Consideration 7-13 is not designed to chastise the special prosecutor. Rather it is an unavoidable decisional step for determining a lapse in the trial court’s continuing responsibility to ensure a fair trial. In State v. Black Feather, 266 N.W.2d 563 (S.D.1978), for example, an attorney general’s actions were placed in question only for the purpose of deciding a criminal appeal.