State v. Moeller8/30/2000
Appeal from the Second Judicial Circuit, Lincoln County, SD (Formerly a Part of the First Judicial Circuit) Hon. Arthur L. Rusch, Judge
Affirmed
Argued Oct 21, 1999; Opinion Filed Aug 30, 2000
[ ] Donald Moeller was previously tried, convicted and sentenced to death for the 1990 rape and murder of Rebecca O'Connell. We reversed that conviction in State v. Moeller, 1996 SD 60, 548 NW2d 465 (Moeller I). At his second trial Moeller was again convicted of first-degree rape and first-degree murder and was sentenced to death. He challenges, among other things, the denial of various continuance requests, the jury selection process, the admissibility of expert testimony, and several aspects of the sentencing phase of his trial. We affirm.
FACTS
[ ] Nine-year-old Rebecca O'Connell (Becky) of Sioux Falls was last seen on the evening of May 8, 1990. The next day, two men found her body in a wooded area in Lincoln County, South Dakota. An autopsy revealed that she had been vaginally and anally raped, and had sustained knife wounds to her neck, back, shoulder, chest, hip, arms and hands. A pathologist concluded that she died as a result of a cut to her jugular vein.
[ ] Donald Moeller was charged with rape and murder in connection with Becky's death. He was tried, convicted and sentenced to death. On appeal, we reversed the conviction because prior bad acts evidence had been improperly introduced. The second trial commenced in April 1997. He was again convicted and sentenced to death. He appeals. STANDARD OF REVIEW
[ ] Unless otherwise stated, every issue raised by Moeller is reviewed under an abuse of discretion standard. State v. Letcher, 1996 SD 88, , 552 NW2d 402, 407 (continuance requests); State v. Darby, 1996 SD 127, , 556 NW2d 311, 321 (juror qualifications); State v. Smith, 477 NW2d 27, 33 n4 (SD 1991); State v. Miller, 429 NW2d 26, 38 (SD 1988) (juror voir dire); State v. White, 1996 SD 67, , 549 NW2d 676, 681; State v. New, 536 NW2d 714, 718 (SD 1995); State v. Olson, 408 NW2d 748, 752 (SD 1987); State v. McNamara, 325 NW2d 288, 291 (SD 1982) (admissibility of evidence); Moeller I, 1996 SD 60, , 548 NW2d at 485 (expert opinions). We will not overturn the trial court's ruling absent an abuse of that discretion.
ISSUE 1.
[ ] The trial court did not abuse its discretion in denying Moeller's requests for a continuance of the trial date.
FACTS
[ ] Prior to trial, Moeller's counsel filed four requests for continuance of the trial date, all of which were denied. He contends that, as a result of these denials, his attorneys were unable to be adequately prepared for trial. He argues that the trial court placed scheduling and expediency of trial over his fundamental rights to due process and effective assistance of counsel.
DECISION
[ ] "'A continuance may properly be denied when the party had ample time for preparation or the request for a continuance was not made until the last minute.'" Corson Village Sanitary Dist. v. Strozdas, 539 NW2d 876, 878 (SD 1995) (quoting Fanning v. Iversen, 535 NW2d 770, 776 (SD 1995)) (other citations omitted). However, an accused is entitled as a matter of right to a reasonable opportunity to secure evidence on his behalf. If it appears that due diligence has failed to procure it, and where a manifest injustice results from denial of the continuance, the trial court's action should be set aside. State v. Dowling, 87 SD 532, 534, 211 NW2d 572, 573 (1973) (citing State v. Wilcox, 21 SD 532, 535-36, 114 NW 687, 688-89 (1907)).
[ ] Other factors trial courts must consider in deciding whether or not
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