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Pierre, SD 57501


STATE OF SOUTH DAKOTA,
Plaintiff and Appellee,
v.
JOSE ANGEL GARZA,

aka Mario Santiago, Defendant and Appellant.

[1997 SD 54, __ NW2d __]
South Dakota Supreme Court
Appeal from the Second Judicial Circuit, Minnehaha County, SD
Hon. Gene Paul Kean, Judge
#19332 — Affirmed

Mark Barnett, Attorney General
Grant Gormley, Assistant Attorney General, Pierre, SD
Attorneys for Plaintiff and Appellee.

Rhonda C. Lockwood, Minnehaha County Public Defender, Sioux Falls, SD
Attorney for Defendant and Appellant.

Argued Oct 22, 1996; Opinion Filed May 14, 1997

AMUNDSON, Justice.
[¶1] Jose Garza (Garza) appeals convictions of murder in the first degree (felony murder) and arson in the first degree. He claims error by the trial court in not disqualifying certain jurors, denying his motion for change of venue, disallowing third-party perpetrator evidence, and denying his motion to suppress the photographic identification lineup. We affirm.


FACTUAL BACKGROUND
[¶2] At approximately 9:00 a.m. on the morning of February 24, 1995, Jose Sanchez (Sanchez) hosted a party at his apartment located at 231 South Spring in Sioux Falls, South Dakota. Throughout the morning and early afternoon hours, a large amount of alcohol was consumed by the occupants and guests. Garza arrived at Sanchez’ apartment around 4:00 p.m. and found the majority of the participants intoxicated. Garza consumed alcohol with the other guests after his arrival.
[¶3] Later, Ansellmo Montinegro (Montinegro) and Garza had an altercation. After Montinegro broke the strings of a guitar, Garza grabbed it and broke it further. Another participant at the party attempted to stop Garza and a further altercation ensued. Next, the evidence showed that Garza went to the stove, turned on the gas, lit all four burners, and threatened he could burn down the house. Also, Garza was observed putting his lighter up to the fuse box in the apartment, but the fuse box door was closed by another person at the party to deter this act.
[¶4] At approximately 9:30 p.m., Garza left the party. Garza was later identified as having purchased forty-five cents worth of gasoline at a nearby 7-11 store at 11:00 p.m. Within twenty minutes of his purchase, the apartment building at 231 South Spring was on fire. All of the occupants escaped the burning building, except for John Doe, who died of carboxyhemoglobin poisoning. {fn1}
[¶5] Thereafter, charges were filed against Garza. After a jury trial, Garza was convicted of murder in the first degree and arson in the first degree. He was then sentenced to life imprisonment on each count, to be concurrently served. He appeals, raising the following issues:
I. Did the trial court abuse its discretion when it denied Garza’s challenge to excuse certain jurors for cause or for additional peremptory challenges?
II. Did the trial court abuse its discretion when it denied Garza’s motion for a change of venue?
III. Did the trial court err when it denied the presentation of third-party perpetrator evidence?
IV. Did the trial court abuse its discretion when it found the photographic identification lineup procedure was not impermissibly suggestive?
DECISION

[¶6] I. Excusing Jurors for Cause and Peremptory Challenges.
[¶7] Garza asserts the trial court erred by denying his challenges for cause as to six potential jurors and two jurors who actually sat on the jury. He maintains the trial court erroneously denied the challenges for cause after each of the eight individuals merely "recite[d] the mantra that they could follow the judge’s instructions." Despite these statements, Garza claims there was evidence of verbal as well as written bias by each of these potential jurors. Further, he claims he was prejudiced because the denial of his challenges for cause forced him to exhaust all twenty peremptory challenges which would have been used on other jurors. (A subsequent request for additional peremptory challenges was denied.)
[¶8] The trial court has broad discretion in determining juror qualification. State v. Hansen, 407 NW2d 217, 220 (SD 1987). Actual, material prejudice resulting from the trial court’s refusal to excuse a juror for cause must be shown for a reversal. State v. Blue Thunder, 466 NW2d 613, 620 (SD 1991).
[¶9] Although seven of these jurors heard information regarding this case from the news media, the record reflects they were able to "‘set aside preconceptions and render an impartial verdict.’" Hansen, 407 NW2d at 220 (quoting State v. Muetze, 368 NW2d 575, 585 (SD 1985)). Potential juror Pederson initially stated that she would not be a fair juror due to the knowledge she had of this case via the media. After an explanation was given to Pederson regarding the possibility of inaccurate reports from the media, Pederson stated that she would be able to decide the case based on the evidence presented and make a fair decision.
[¶10] Potential juror Whiting simply heard information of the case on the news. After further inquiry, he stated that he could hear the evidence without thinking of the information he acquired. Similarly, juror Blocher mentioned that he heard a report on the news regarding this case. He too stated that the report would not affect his view of the evidence presented at trial. Potential juror Manke also heard information regarding the case on the news, but she stated that she could listen to both sides because "you can’t always believe everything you see and read."
[¶11] Garza contends that because potential juror Yesda’s response on a questionnaire included the conclusion that Garza was guilty, he should have been excused for cause. During voir dire, however, Yesda stated that he could put everything he heard from the media aside and decide the case only on the evidence presented in court. Juror Graff also mentioned that she heard information about the case on the radio, but had not come to any conclusions. She further stated that the news report would not affect her view of the evidence presented.
[¶12] Potential juror Hanson noted that she heard a report on the news concerning a case in which the defendant pled guilty and then wished to change his plea. With that information in mind, she stated during voir dire that if Garza pled guilty he probably was guilty. After further discussion, however, Hanson said the guilty plea would not enter into her mind or affect her judgment as she heard the evidence in this case.
[¶13] Garza asserts that because potential juror Anderson admitted his "problems with ‘illegals,’" he would not be fair and impartial. However, Anderson testified that he could decide the case based on the evidence presented at trial, and his feelings would not impede his ability to find Garza not guilty.
[¶14] The United States and South Dakota Constitutions guarantee trial by an impartial jury.USConstAmend VI; SDConstArt VI, §7; SDCL 23A-16-3; State v. Etzkorn, 1996 SD 99, ¶8, 552 NW2d 824, 828; Hansen, 407 NW2d at 220; Muetze, 368 NW2d at 585; State v. Volk, 331 NW2d 67, 70 (SD 1983). However, there is no specific test to be applied when determining a juror’s impartiality. Etzkorn,1996 SD 99 at ¶8, 552 NW2d at 828; Hansen, 407 NW2d at 220. The established guidance is that "[a] potential juror should be excused for cause if that juror is unable to ‘set aside preconceptions and render an impartial verdict.’" Id. (quoting Muetze, 368 NW2d at 585); see also 2 W. LaFave & J. Israel, Criminal Procedure, §21.3(c) (1984). Furthermore, to determine whether a juror should be disqualified, the voir dire examination must be judged in its entirety. Etzkorn, 1996 SD 99 at ¶9, 552 NW2d at 828; State v. Flack, 77 SD 176, 180, 89 NW2d 30, 32 (1958). This court has repeatedly stated that "[s]ingle isolated responses are not determinative." Id.
[¶15] The answers of each person disclose they would be able to "set aside preconceptions and render an impartial verdict." Hansen, 407 NW2d at 220. Furthermore, only two of the questionable jurors, Blocher and Graff, actually sat on the jury and rendered a guilty verdict. Arguing prejudice existed, Garza cites Flack, 77 SD at 180, 89 NW2d at 32, stating that prejudice is presumed when a disqualified juror remains as a juror after a challenge for cause is denied. In Flack, however, the denial of a challenge for cause was affirmed because "[n]one of the jurors appeared to have a fixed and unqualified opinion about the case; none had talked to anyone who purported to know what the facts of the case were; and none expressed any bias or prejudice against the defendant personally." Id. Similarly, neither Blocher nor Graff had set opinions about this case due to the media. They simply acquired general information and stated that they could hear the evidence in this case without being affected by outside information. Therefore, there was no prejudice.
[¶16] Furthermore, Garza failed to demonstrate that any of these eight jurors did not understand all three of the following: "(1) State had to prove guilt beyond a reasonable doubt; (2) a defendant is presumed innocent until proven guilty; and (3) a determination of guilt must be based only upon evidence and testimony introduced during trial." Hansen, 407 NW2d at 220. Applying these factors in Etzkorn, we held that two of the potential jurors should have been disqualified because the voir dire evinced their inability toset aside guilt preconceptions. 1996 SD 99 at ¶13, 552 NW2d at 828-29. However, the testimony in Etzkorn is clearly distinguishable from the voir dire testimony involved in this case. Here, not one of the jurors ever stated they could not presume Garza’s innocence; whereas, in Etzkorn, a review of the record indicated that a potential juror stated twice she could not presume innocence. Id. at ¶¶10-11, 552 NW2d at 828. We hold there was no abuse of discretion by the trial court when it refused to excuse these jurors for cause. Garza has not shown any prejudice in this case.
[¶17] II. Change of Venue.
[¶18] On the first day of the trial, Garza made a motion for change of venue, contending he was unable to obtain a fair and impartial trial because the trial court "ignore[d] not only the pretrial publicity, but also the evidence of prejudice and bias presented by the jurors." The motion was denied.
[¶19] To change venue, there must be "‘prejudice in the minds of county residents sufficient to raise a reasonable apprehension that the accused will not receive a fair and impartial trial.’" Boykin v. Leapley, 471 NW2d 165, 168 (SD 1991) (quoting State v. Martin, 449 NW2d 29, 34 (SD 1989) (citing State v. Lohnes, 432 NW2d 77, 83 (SD 1988); State v. Brandenburg, 344 NW2d 702, 704 (SD 1984))). The presumption is that Garza can receive a fair trial in the county where the offense was committed. Id.; State v. Weatherford, 416 NW2d 47, 50 (SD 1987). There must be a clear abuse of discretion by the trial court in order to disturb a decision on a motion for change of venue. Boykin, 471 NW2d at 167; Weatherford, 416 NW2d at 50.
[¶20] As stated in Boykin, "‘[p]retrial publicity alone is not enough to deny a fair trial or, to warrant a change of venue.’" 471 NW2d at 168 (quoting Martin, 449 NW2d at 34 (citing Weatherford, 416 NW2d at 50-51; State v. Luna, 378 NW2d 229, 236 (SD 1985))). It has long been recognized that potential jurors will have some knowledge of pending criminal cases by the media coverage. Id. (quoting Martin, 449 NW2d at 34 (citing Weatherford, 416 NW2d at 51)). Therefore, additional evidence demonstrating that "‘such publicity was so prejudicial as to prevent the defendant from receiving a fair and impartial trial in the county’" must be shown. Id. (quoting Martin, 449 NW2d at 34 (citing Weatherford, 416 NW2d at 51; Brandenburg, 344 NW2d at 704; United States v. Buttorff, 572 F2d 619, 627 (8thCir), cert. denied, 437 US 906, 98 SCt 3095, 57 LEd2d 1136 (1978))).
[¶21] Additionally, this court has recognized that "voir dire examination is the better forum for ascertaining the existence of hostility towards the accused." Id. (citing State v. Reiman, 284 NW2d 860, 867 (SD 1979)). In this case, the voir dire examination reveals that pretrial publicity did not prevent Garza from receiving a fair trial in Minnehaha County. A large part of the examination revolved around the issue of pretrial publicity. In addition, each individual juror completed a questionnaire regarding his or her knowledge of the case. All the potential jurors were examined concerning pretrial publicity and prejudice. The selected jurors indicated they could set aside any information they heard from the media and decide the case solely upon the evidence presented during the trial.
[¶22] Garza failed to demonstrate he could not receive a fair trial in Minnehaha County. The trial court did not abuse its discretion in denying this late motion for change of venue.
[¶23] III. Third -party Perpetrator Evidence.
[¶24] Garza asserts that two witnesses, John Sharpfish (Sharpfish) and Jose Sanchez (Sanchez), should have been allowed to testify regarding the possibility of a third-party perpetrator.
[¶25] This court established the rule regulating the admission of such evidence in Luna, 378 NW2d at 232

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