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Song was written in honor of artist's daughter, Emily. You were sent to me by angels up above, I'm certain Along came you to teach me about love You're here to show me what love can be Tribute to the Nile river. Along the Nile The pyramids, Reminded us of ancestors And what they did. Along the Nile My people live Because of all The life it gives Already One By Neil Young.

A relationship or marriage has ended but the couple are still joined or bound by a common interest , their child. I can't forget how love let me down Every time I look in his face I can't believe how love lasts a while But we're already one. Now only time can come between us. Always By Bon Jovi. A person has a difficult time accepting or coming to terms with the end of a relationship.

He feels that his love for the other person will last forever. It's been raining since you left me, now I'm drowning in the flood. You see I've always been a fighter but without you I give up I'll be there till the stars don't shine.

Till the heavens burst and the words don't rhyme. I know when I die you'll be on my mind. And I love you, always This song is about optimism and the power of positive thinking.

From the Monty Python film "Life of Brian" this song stands out in stark contrast to the "heavy, political stuff" normally associated with the artist. If life seems jolly rotten, there's something you've forgotten And that's to laugh and smile and dance and sing When you're feeling in the dumps, don't be silly chumps Just purse your lips and whistle, that's the thing, and Always look on the bright side of life Always look on the bright side of life About regret, taking someone's love for granted, and trying to redeem yourself.

And maybe I didn't treat you quite as good as I should have And I guess I never told you I'm so happy that you're mine. Little things I should of said and done. I just never took the time Always the Cause By Al Stewart. Song is about the Spanish Civil War and the people who fought for the "Cause" of democracy.

Still hope won't be denied. There was always the Cause. There was always the Cause Setbacks come at every turn. New ways are hard to learn. Tonight I saw Guernica burn Always Tomorrow By Gloria Estefan.

Song is about optimism, having a positive outlook on life and believing in yourself and others. Instead of just giving up, I use the power at my command I'll face whatever comes my way, savor each moment of the day. Love as many people as I can along the way That's why there's always tomorrow to start all over again This song is a tribute to Sir Thomas More , song deals with the rule of law , the legitimacy of authority, and staying true to your conscience or principles.

Henry Plantagenet still looks for someone to bring good news in his hour of doubt. While Thomas More waits in the Tower of London watching the sands running out. And measures the hours out from here to oblivion in actions that can't be undone So what if you reached the age of reason only to find there was no reprieve? Would you still be a man for all seasons or would you just disbelieve? Look What They've Done to You Inspired by actual events. On February 4, four NYC police officers fired 41 shots at unarmed Guinean immigrant Amadou Diallo striking him 19 times and killing him in the entrance way of his apartment.

John Wayne shooters rockin' hard dressed in blue. Abner Louima and now Amadou countless others paid the price for you Song By Phil Ochs. We will fight against disease when the money comes with ease. And when we get together we say hooray for A. If you can't afford my bill, don't tell me you're ill Every day we specialize more and more.

But we really love to stitch the diseases of the rich. We are sure there is a clinic for the poor Song is about the cycle of drug addiction, hitting "rock bottom", and then working towards recovery.

When I lost my grip and I hit the floor. Yeah, I thought I could leave but couldn't get out the door. I was so sick and tired of livin' a lie. I was wishing that I would die. With the blink of an eye you finally see the light When the moment arrives you know you'll be alright About Amelia Earhart , an American aviatrix who was one of the world's most celebrated and the first to fly alone over the Atlantic Ocean Amelia Earhart flying that sad day. With her partner Capt. Noonan on the second of July.

Her plane fell in the ocean, far away According to the artist I wrote this indirectly for Kurt Cobain, but more precisely for the angst he represented. But even more exactly for the hopelessness so many felt after his death. Where's my golden one? Where's my hope now that my heroes have gone?

Pieces of us die everyday Song is about how the hopes, dreams and ideals of many American people have not been realized. New world, new people. New dreams for all of the children. Back in the summer of ' I met a young girl, her heart was in flames War had changed her whole world. Her daddy died in Vietnam. She lost her husband in Lebanon And she saw hungry people in the streets. Young mothers who could not eat And it all goes on.

Yeah, the dreams go on America By Neil Diamond. Song is about immigration and how our country is seen as a melting pot. On the boats and on the planes. They're coming to America Freedom's light burning warm Everytime that flag's unfurled. America, America By L.

About the displacement of Native Americans as the white man slowly took everything they had. You conquered what you called a savage people. Drove them to their knees beneath pointed steeples. You stripped them of their great and noble spirit A politician or public figure , caught in the act.

Then they caught you with the girl next door, people's money piled on the floor, accusations that you try to deny, revelations and rumours begin to fly Reporters crowd around your house. Going through your garbage like a pack of hounds Song was written as an inspiration for our American people to never stop striving for peace and prosperity. Dream on children, dream on. Don't let anybody tell you the dream is gone.

As long as there's a God Above. Keep praying we never wake up. Keep on dreaming the American dream American Heroes By Adam Wyle. A response song to the September 11th tragedy in New York City. What a mistake they have made. Take for granted American people today. Within the scene you look around.

All the love with both hands out This parody tours the human history of determining the value of pi. Song is a tribute to the people and cultures who contributed to our understanding of pi. In the Hebrew Bible we do see the circle ratio appears as three The Chinese got it really keen: More joined the action with arctan series and continued fractions I can't remember if I cried When I read about his widowed bride But something touched me deep inside, The day the music died.

Inspired by actual events , this controversial song includes important political and social commentary dealing with race and the criminal justice system in America. Lena gets her son ready for school. She says now on these streets Charles you got to understand the rules. Promise me if an officer stops you'll always be polite.

Never ever run away and promise mama you'll keep your hands in sight The secret my friend. You can get killed just for living in your American skin American Triangle By Elton John. Song was written as a tribute to Matthew Shepard the victim of a brutal and vicious hate crime. Don't make no sense. I've seen a scarecrow wrapped in wire. Left to die on a high ridge fence It's a cold wind blowing. This song is about excessive corporate sponsorships and the commercialization of baseball.

There's the NBC Peacock right fielder He threw the Exxon's runner out in the dirt And you really can't tell Who's playing for Shell 'Cause they've all got different logos on their shirts It's the sport that built this country A great pitch by any other name and it won't take long to sell you on America's national game Bank America's national game". America's Unsung Heroes By L. Song is a tribute to Native Americans. References made to many Native American tribes.

The Cheyenne, Apache, Cherokee and Navaho Wanted to only live in peace. For starvation and deprivation of their lands to cease A song of patriotism. Proceeds from the song will aid the Red Cross.

America, the land of freedom. Still the home of the brave A song of patriotism and hope. Our flag is up, the stock markets are down. But we're all united from the county to the town. About achieving success in life and losing jealous friends because of it. And it's so strange when you get just a little money. Your so called friends want to act just a little funny. He thinks you changed because of a dollar sign A man neglects his wife as he climbs the ladder of success.

To gain the world and lose our love is too high a price to pay. A parody song of Coolio's "Gangsta's Paradise". A satire of Amish culture , with numerous references to specific beliefs and practices. But that's just perfect for an Amish like me, Ya know, I shun fancy things like electricity At 4: If you come to visit, you'll be bored to tears We haven't even paid the phone bill in years Hitchin' up the buggy, churnin' lots of butter Raise a barn on Monday, soon I'll raise anutter Among The Living By Anthrax.

This song is said to be inspired by the Stephen King novel, The Stand. With some help from Captain Trips, he'll bring the world down to his knees. He'll show them all his power. It pulses through his ice cold blood, a whole world to devour! Amoreena By Elton John. From the "Dog Day Afternoon" soundtrack this song is about yearning and desire. Amphetamine Annie By Canned Heat. About the dangers associated with the use of the stimulant drug amphetamines.

References made to paranoia and the health consequences of drug use. They call her amphetamine Annie Your mind might think it's flying baby on those little pills. But you oughta know it's dyin' 'cause speed kills AM Radio By Everclear. Song is a flashback to the 's with references made to am radio, eight track tapes and popular culture of that era. Just picture yourself on a beautiful day. With the big bell bottoms and groovy long hair You could hear the music on the am radio By The Beach Boys.

Song is a tribute to many of the fun packed amusement parks across the United States. You'll crash and burn in the bumper cars at Jersey's steel pier. You'll crack'em up when you stand in front of all the crazy mirrors Let's take your car and mess around at the park all day Anagram for Mongo By Rush.

A fun tribute to the anagram. The letters of one word in each line of the song are rearranged to form other words. End the need for Eden. Chase the dreams of merchandise. There is tic and toc in atomic. Leaders make a deal Miracles will have their claimers. More will bow to Rome Ana's Song By Silverchair. Lead singer Daniel Johns wrote this song after being diagnosed with anorexia. Only a small percentage of anorexics are males.

In my head the flesh seems thicker And you're my obsession I love you to the bones Like an anorexic life Song is about corruption of government and the justice system. Halls of Justice painted green, money talking Angel Dust By Sodom. About the dangerous drug angel dust or as it is also called PCP. References to drug addiction. Searching, hoping for the right connection coz I need it Need a shot to get me through the day About sacrifice, and the temporary, sometimes circumstantial nature of love.

If you would not have fallen then I would not have found you And I patched up your broken wings And I knew someday that you would fly away So leave me if you need to. I'd rather see you up than see you down Angel Of Death By Slayer. Known to have performed pseudo-medical and scientific experiments on many of the victims. Slow death, immense decay. Showers that cleanse you of your life Human mice, for the Angel of Death Sadistic surgeon of demise Destroying without mercy to benefit the Aryan race Song is about the sixteenth century prophet Nostradamus who was believed to have predicted many of the great catastrophies fires, earthquakes, weather disturbances that occured in the twentieth century.

In the sixteenth century there was a French philosopher by the name of Nostradamus. He prophesized that in the late twentieth century an angel of death shall waste this land Angel Of Harlem By U2.

This song is a tribute to singer Billie Holiday. So long Angel of Harlem Blue light on the avenue God knows they got to you An empty glass, the lady sings Eyes swollen like a bee sting Blinded you lost your way Artist wrote this song from the point of view of Lynyrd Skynyrd members and what they may have been thinking right before their plane crashed. These angels I see in the trees are waiting for me. The engines have stopped now. We all know we are going down Artist wrote this song for her two brothers, Alan and Shawn, who died from cystic fibrosis.

They were angels in waiting. Waiting for wings to fly from this world. Away from their pain Sometimes the body is weaker than the soul This song is a tribute to Annie Jump Cannon the woman who developed the system for classifying stellar spectra. She was a human computer at the Harvard College Observatory classifying stellar spectra she was the world's leading expert.

She created the spectral class system we all love and use today! Annie's Anorexia By The Huntington's. About a "perfect" girl who seems to have everything going for her in life.

In reality she is suffering from the eating disorder anorexia. The star of every young boy's dream. I surely would not have guessed she starved herself to fit that dress She never skipped class in her life but she skipped dinner everytime Annie's Song By John Denver. Song was written by the artist as a tribute to his wife Annie. Come let me love you. Let me give my life to you Let me always be with with you A man with a drinking problem tries to remain sober but gives in to his cravings for alcohol.

Everybody's having fun, so why be the one left out in the cold? You said you'd never take another drop.

Your craving's big, your liver's shot You've got to dry out But it's martini time Anorexic Beauty By Pulp. Song is about society's unhealthy obsession with weight and how many models have developed eating disorders. We don't need no thought control. No dark sarcasm in the classroom. All in all it's just another brick in the wall Song reveals a person's disregard for another who is less fortunate.

About the importance of community and social responsibility and compassion for the homeless. He walks on doesn't look back, he pretends he can't hear her. Starts to whistle as he crosses the street seems embarassed to be there Reference to using alcohol as a remedy for solving problems. A person in denial. Countin on a remedy I've counted on before. Goin' with a cure that's never failed me.

What you call the disease , I call the remedy. What you're callin' the cause, I call the cure Looking back and reflecting on the significance or importance of one's life and work. I don't know, I may go down or up or anywhere. But I feel like this scribbling might stay So when you think of me, if and when you do. Just say, well another man's done gone Another Spill By Human Greed.

Another spill battered environment Sinking tanker, encrusted beaches, dying seabirds coated in oil. Another ecosystem you've just destroyed Antarctica By Al Stewart. Song is about the human desire and urge to explore uncharted lands and regions, in particular, Antarctica. I felt the chill of mystery with one foot on your shore, and then and there resolved to go where no man had before Seduced by this ambition I easily forget, the hopeless quest of Shackleton , the dreamlike death of Scott The Anthem By Good Charlotte.

An anti-establishment or teen angst song about about identity, individuality, and rebellion. At my high school It felt more to me Like a jail cell, a penitentiary My time spent there, it only made me see That I don't ever wanna be like you I don't wanna do the things you do I'm never gonna hear the words you say And I don't ever wanna, I don't ever wanna be I'm gonna get by And just do my time Out of step while They all get in line I'm just a minor threat so pay no mind A protest song about the Vietnam War and government proceedings of that time period.

I'm the fool, I'm waiting. Twenty five years of anticipating. I'm tired of your treating all of my children the same. Spending all that money on a stupid war in Vietnam. When we need it at home. I'm an anti-establishment man Anti-Homophobe By Brutal Truth.

Song speaks out against homophobia and homophobics in general. You don't have the right to force your own opinion We believe in freedom. Whatever turns you on An environmental awareness song. Main theme of the song is about recycling and taking care of our planet. Keep your planet clean and neat. Put your wrappers in the round bin. Recycle cans that are made of tin Apache By Nuclear Valdez. About the longing for youth and the safety and security associated with childhood.

Life was different in so many ways And the wind always blew away my fears Now I'm always looking back. Why happiness got a little off track. Why simple things just disappear. And the wind stopped blowing away my fears Even though I'm lost inside. Then I'll find my road. I'll find the wind. Find the missing boy within Apache Tears By Johnny Cash. About the mistreatment and painful legacy of Native Americans.

Song is about the love and special bond between a father and his infant daughter. And when you turned into two, I was happy when you said I love you. Held you in my arms so tight.

I'd never forget the best years of my life April 29, By Sublime. About the Los Angeles Riot that erupted after the announcement of the verdict in the trial of the officers accused of beating Rodney King.

I was participating in some anarchy. First spot we hit was my liquor store, finally got all that alcohol I can't afford Arachnophobiac By Michael Schenker Group. About arachnophobia , the fear of spiders. This is an infestation Changin the sheets won't do! It needs a fumigation And I don't wanna be there when they come out!

Argon Mill By Si Kahn. Song is about the closing of a mill and the effect on people's lives. Army Dreamers By Kate Bush. An anti-war song about a grieving mother and her son's loss of innocence. Mourning in the aerodome Four men in uniform carry home my little soldier Never made it into his twenties. Arthur, he does as he pleases. All his life he's mastered choices. Deep in his heart, he's just, he's just a boy. Living his life one day at a time Artificial World By J.

A song about how we create images of the natural things we love, but don't seem to realize that we are destroying them at a terrifying pace. It used to be a special place to walk among the trees and listen to the falling of the leaves. But that's no more, its all gone now About self esteem and breaking free of unhealthy relationships. You tried to make me doubt, to make me guess, tried to make me feel like a little less, Oh, I liked you when your soul was bared, I thought you knew how to be scared, And now it's amazing what you did to make me stay, But truth is just like time, it catches up and it just keeps going.

And so I'm leaving About job dissatisfaction and feeling or receiving little recognition for your efforts from your superiors. I'm working at my job More boring by the day. But they pay me. All that time spent at school Glad you gave us your best years About "sock hops" , popular high school dances held during the 's. Well you can rock it, you can roll it. You can stop it and you can stroll it at the hop.

When the record starts spinnin' Atlantic City By Bruce Springsteen. About people struggling to get by and hoping for redemption and a second chance in life. Song also deals with the rejuvenation of Atlantic City , N. Now I been lookin' for a job but it's hard to find. Down here it's just winners and losers and don't get caught on the wrong side of that line Well I guess everything dies baby that's a fact.

But maybe everything that dies someday comes back Atomic Power By Uncle Tupelo. Song is about the potential destruction caused by the use of nuclear weapons.

Atticus By Doug Hoekstra. Based on a true story. A social responsibility song about the importance of compassion, empathy, love, and kindness. It didn't take much for her to show this man some dignity. I had to ask myself if I'd danced so gracefully. On the clouds around a corner somewhere in the night. Where angels fly and grown men cry, it's such a pretty sight. A piece of human kindness , unrequited love. A beautiful white pigeon, a charcoal-colored dove.

Attila By Iced Earth. Attitude Dancing By Carly Simon. About rediscovering oneself, reclaiming a positive attitude and improving your self-esteem and self. You just leave yourself behind Cop a different pose SHine a different attitude from underneath your skin Song raises concerns about the scientific practice of "test tube" babies. We had natural child births From test tube to womb, a new life beginning.

Sterile injected but doomed to be freak. Experiment with life, genetic confusion Song relates to social health. About the importance of good friendships and forming bonds with other people. And you need a friend just to be around. I will comfort you, I will take your hand. And I'll pull you through, I will understand The Auction By Tanya Tucker. Song is about a farmer who loses his livelihood due to high operation costs and poor crop prices.

Johnson, we're sorry to inform you. You're request for a second loan has been refused. And the board of directors in the city have instructed us to take the farm from you The fallin' price of wheat's not our concern Authority Song By John Mellencamp. About nonconformists , rebellion, and the age old adolescent struggle for autonomy, freedom and independence.

They think they're so cute when they got you in that condition I fight authority , authority always wins. I fight authority , authority always wins Awakened Tears By Mandy Brakel. Inspired by actual events , song is dedicated to a friend who died from Cystic Fibrosis in The artist is also living with this disease.

We were singing and laughing as if life was fine. Suddenly I felt a tear streaming down my face. I turned around to say goodbye but it was just too late A-Whalin' By Roy Zimmerman. A protest song raising awareness about whaling. We'll wipe out the whales in a couple short years. And then we'll start killing Greenpeace volunteers When the whales have been wiped out from both hemispheres then we can spend our retirement years harpooning and skinning Greenpeace volunteers Song was originally conceived as part of the Lifehouse Project.

A teenage angst song, lyrics address a variety of adolescent issues including; acceptance, freedom, identity, independence, and rebellion. I don't need to fight to prove I'm right. I don't need to be forgiven The exodus is here. The happy ones are near. Let's get together before we get much older It's only teenage wasteland Song is about child labor an all too common practice of factories in the early 's during the early stages of the Industrial Revolution. To their jobs those little one's was strictly forced to go.

Those babies had to be on time through rain, sleet and snow Many times those little ones was kicked and shoved around They never learned to read and write, they learned to spin and spool This song is about the Cuban boy Elian Gonzalaz who was at the center of an international custody dispute between Cuba and the United States. The Bay of Pigs or baby Elian. America the devil's playground.

Baby Elian Baby Elian About the extinction of small businesses as corporations slowly kill off specialty stores. Well, the hardware store was the first to go. Those prices just got way too low. Soon the other stores were closed. And the lights went out on main street. Whatever happened to our little town? Wal-Mart has run it into the ground About using alcohol to deal with your problems. I'm heading for the lost and found.

If I have just one more round. So sad to see me this way. This song was written by the artist for "Project Reach", a program designed to help kids think about cigarette advertising which was aimed at them. References made to Joe Camel, a marketing tool used by RJ Reynolds in order to get young kids hooked on cigarettes. I run into a camel next to register four. He's wearing a tuxedo and a sneaky pair of shades Buy two packs, I'll give you the lighter free.

I said back off camel Song is a tribute to former band mate James Honeymoon-Scott who tragically died from a heroin overdose. Written in response to the massive floods of in the state of Mississippi that killed many and left , homeless.

I got up one morning, poor me I couldn't even get out the door Thousands of poor people at that time didn't have no place to go The song is a a not so flattering tribute to President Bill Clinton. Like JFK but like Elvis too. Wearing those shades playing saxophone. With secrets to hide, sins to atone for About the brutality of incest, molestation and sexual abuse.

Bad Connection By Cheryl Wheeler. A married couple stays together even though they are both unhappy. He's wearing the same old face. She hates him half the time and swears he doesn't mind.

No kind word, no fond embrace According to lead singer Michael Stipe this song is an indictment of 24 hour news media. Shits so thick you could stir it with a stick- free Teflon whitewashed presidency We're sick of being jerked around Wear that on your sleeve Bad Habit By Offspring. About "Road Rage" and the problem of aggressive driving. But when I'm in my car don't give me no crap. Cause the slightest thing and I just might snap. When I go driving I stay in my lane, but getting cut off makes me insane Well they say the roads a dangerous place.

If you flip me off I'm the danger you'll face Badlands By Bruce Springsteen. Song is about feeling trapped or stuck in a situation, waiting for something better to come along, and wanting more out of life. Talk about a dream, try to make it real. You wake up in the night, with a fear so real. Spend your life waiting, for a moment that just don't come. Well, don't waste your time waiting Badlands By Metal Church. About a person wandering aimlessly in the Badlands region range of the United States.

Badlands is also the title of a movie that was inspired by actual events. I feel a dry wind, dust in my eyes, the arctic cold at night God in heaven my only friend, will I live to see my journey's end Patiently waiting, they wait for me to die About the dangers of alcohol. Make you lose your money. Make you lose your best friend Wake up in the morning feeling bad Better stop that drinking before it goes to your head.

Wake up some morning, find yourself dead About using alcohol to help solve your problems. The liver is the primary organ in the body that breaks down alcohol. Yes, I drunk me a river since you tore me apart. And I have a drinking problem 'cept when I can't drink About despair and struggling through disappointment and difficult times. Bad Magick By Godsmack. All of these issues were material to the State's circumstantial case.

Therefore, his identity as the assailant was clearly in issue. Furthermore, the identity exception to the extrinsic evidence rule is closely related to other exceptions contained in the rule; showing that a similarity exists in method or motive between the other acts and the charged offense, or that the other acts and the charged offense were part of a larger plan or scheme, tends to identify the defendant as the perpetrator.

See also Thomas, N. Hence, offering the other acts evidence as proof of motive, a common method, plan or scheme all related to identifying Moeller as the perpetrator.

Finally, whether Moeller possessed a murderous intent, i. When seeking to prove identity through a common criminal method, the probative value of prior bad acts evidence is directly related to the factual similarities between the other acts and the charged offenses. Here, the similarities between the other acts and the alleged crimes against Becky are so slight and unremarkable, and the dissimilarities are so great, that the probative value of the extrinsic evidence is negligible.

Moeller did not have an acquaintanceship with or knowledge of all the victims. Beshaw testified Moeller was a stranger at the time he allegedly assaulted her, and she did not testify to any prior connection between herself and Moeller. The trial court's finding that Moeller had an acquaintanceship or knowledge of Becky is also highly questionable. The trial court found that shortly before Becky's disappearance, she and Moeller were in a convenience store at approximately the same time.

The trial court also found that Moeller and Becky lived within blocks of each other in the same general neighborhood in North Sioux Falls. This meager evidence hardly supports the conclusion that Moeller was acquainted with or knew of Becky. State argued to the jury that Moeller's motive for killing Becky was to prevent her from identifying him as her assailant.

As to the assault on Warner, State noted the lapse of time between Moeller's introduction to Warner and his visit to her home on the night of the assault. The trial court stated that Moeller's object was always to obtain sex. However, any sexual assault crime involves a perpetrator who seeks sexual gratification. Permitting other acts evidence on the basis of this broad similarity invites the jury to draw the forbidden propensity inference.

A more specific factual showing is required to allow admission of extrinsic evidence. While Moeller lived next door to Moore, the State concedes he lived as far as ten to fifteen blocks from Warner. The trial court found that Moeller and Beshaw lived within the same general neighborhood, but Moeller's assault of Beshaw occurred in downtown Sioux Falls and proceeded to a corn field east of the city.

Likewise, while Moeller lived within several blocks of Becky's home, the crime scene was located in a secluded area approximately fourteen miles south of Moeller's home in Sioux Falls. In seeking admission of the prior bad acts evidence, the State specifically represented to the trial court that the knife wounds on Becky's body were inflicted by the same type of knife used against the other acts victims.

State's brief to the trial court reads in relevant part: The most obvious common element between the crime charged in this Indictment and the other acts is the use of a folding pocket knife, whether denominated a jack knife or buck knife.

Moeller was apprehended in Tacoma Washington, with two of the same type of knives in his possession. The knife wounds on the body of Rebecca O'Connell are also consistent with the use of this type of knife. The State further argued: Moeller invariably uses a folding pocket, or buck, knife to commit his sexual assaults.

In its memorandum decision permitting the admission of the other acts testimony, the trial court made particular note of the State's representation concerning the type of knife used to murder Becky. The most distinctive common mark between the crimes charged in the indictment and the other crimes-act evidence sought to be introduced is the use by the defendant of the same type of knife in all three incidents.

The assault in , the assault against a nine year old boy, Kenneth Everett Moore, and the Tracy Warner assault in , all involved a pocket knife or some kind of buck knife. Furthermore, when defendant was apprehended in Tacoma, Washington, in , he had two of the same type knives in his possession.

The State represents that the knife wounds on the body of Rebecca O'Connell will be shown as consistent with the use of this type of knife. The knife in each of the other acts cases was a folding knife, described by two witnesses as having a three to three-and-a-half inch blade. In contrast, the knife used in the murder of Becky was never found, and State's witnesses could not identify either the type of knife or the length of blade involved in her death.

However, there is no testimony identifying either of these pocket knives as the murder weapon. In fact, as noted above, there is no proof at all that Becky died from a folding or buck-style knife.

Whether such a knife was used against Becky remains unknown. Any assertion by the minority opinion that Becky's assailant used a folding or buck-style knife is pure conjecture.

The minority opinion points to testimony of a forensic pathologist, Dr. Randall, concerning a four-inch chest wound and an indication that the knife blade had been inserted to the hilt in making the wound.

Randall testified as follows:. Were you able to estimate roughly the length of the blade that would have caused that wound? As I mentioned, the depth of the wound was four inches but a shorter blade could have produced that due to the compression of the chest. So you really can't make any estimation of the exact length of the blade. Randall again testified that he was unable to establish the length of the blade: And from either the slashing wounds or any of the puncture wounds, you can't tell the length of the knife or other sharp object that was utilized, is that correct?

Randall was unable to determine the length of the blade used to kill Becky. However, the use of a knife as a weapon is not so distinctive or of such an unusual pattern to distinguish Moeller as the assailant from the many other perpetrators who rape and murder by knife.

The minority opinion refers to sixteen reported cases of rape, assault, and murder in South Dakota that involved the use of a knife as a weapon. Focusing on only reported cases is an unrealistic and unscientific means of deciding whether the use of a folding or buck-style knife is a unique characteristic. Importantly, other courts have regarded the use of a knife as insufficient to establish a modus operandi, even when considered together with other identifiers like an accompanying verbal threat.

See United States v. Martin, Idaho , P. That is clearly not the holding in Martin. In fact, the Martin court identified a long list of similarities between the other acts and the charged offense: The numerous and distinctive similarities detailed in Martin are noticeably absent in this case. Here, the only similarities present in the prior bad acts and the crimes against Becky are the use of a knife, the desire to obtain sex, and the location of Moeller's residence within fifteen blocks or less of his victims' homes.

As noted previously, these few facts are not so distinctive as to identify Moeller as the man who raped and murdered Becky O'Connell. In allowing bad acts evidence to prove either identity or specific intent, our cases have routinely focused on two important factors: As we observed in Thomas, N.

Becky was a nine-year-old girl. The condition of her body and the presence of semen suggested that she was raped vaginally and anally She was also brutally knifed and sustained several wounds to her hands trying to fend off her attacker. In contrast, two of the other acts victims were adult women, each twenty-one years of age.

The third victim was a thirteen-year-old boy. The prior bad acts involved only attempts at sexual contact, with no vaginal or anal penetration.

Except for a single cut to Moore's leg and Warner's hand, Moeller did not inflict any physical injuries on these victims. Moeller's demands for sexual gratification were thwarted when the assault victims showed resistance to his threats. At trial, the State presented additional evidence to suggest Moeller was acquainted with Becky. According to one witness for the State, Moeller gave Becky a toy at a neighborhood rummage sale.

Moeller sharply disputed any claim that he knew Becky and presented strong evidence indicating he was not present at the yard sale. Even if we accept State's contention that Moeller knew Becky, that does not create a similarity between Becky and the other victims. Moeller was a stranger to Beshaw, a neighbor of Moore's and a social acquaintance of Warner's. What is apparent is that Defendant draws no distinction among his victims other than the opportunity to commit a sexual assault.

Moeller assaulted Beshaw in her car. According to Beshaw's testimony at trial, he entered her vehicle uninvited and forced her to drive to a secluded area at knife-point.

In contrast, Moore's assault occurred in Moeller's home. Rather than immediately threatening Moore with a knife, Moeller invited him into his home and even secured his father's permission for him to stay the night. He used artifice rather than threats to get him to drink large quantities of liquor and to submit to having his hands tied.

He only pulled a knife on Moore after the boy refused to engage in sexual relations with him. He did not immediately threaten her with a knife as with Beshaw nor did he attempt to trick her or intoxicate her as with Moore.

Instead, he paid a social visit and, after securing permission to return another time, came back later that evening to commit the assault. FN3 Yet Moeller's purported offer of a ride does not reflect a method similar to those used in his earlier crimes.

Unlike his assault of Beshaw, Moeller's alleged attack against Becky did not involve immediate force. Nor did he secure her parent's permission to visit his home or ply her with alcohol and bets as he did with Moore. Nor did he preface the attack with a social visit, as in Warner's case. It is abundantly clear that no modus operandi emerges from these disparate crimes.

The State premised this claim on the absence of bruises or marks which might suggest Becky was forced into a vehicle. When you think about these crimes you have to look at the crime scene.

Where did these things happen? What are the factors that go into this? What time do these crimes happen? You have to compare the offender's personality, the person that is doing this.

Was this crime a product of an opportunity? Acting out a fantasy? Or was it planned? How does the offender approach his victim? Does he jump them? Is it surprise or blitz? You think about, and you're entitled to, on your experiences and what you know about in terms of the daily affairs of life, think about what you know about this type of crime in terms of those categories: A con, surprise or blitz. You see something interesting when you look at Mr.

Unable to define concrete similarities among the other acts and the charged offenses, State failed to give the jury any clear guidance concerning the relevance of the other acts to legitimate issues in the case.

Without more compelling direction from the State, the jury's verdict almost certainly rested on the forbidden inference that because Moeller was involved in other sexual assaults, he likely committed the offenses against Becky.

This Court cannot permit a man to be convicted of rape and murder simply because he has committed other crimes in the past. Further, as one commentator aptly observed in regard to the plan or scheme exception: If they are not sufficiently similar to the charged offense or not distinctive enough to be admitted to show modus operandi hence identity , admitting other crimes to show plan or scheme merely because they bear some resemblance to the charged offense cannot be defended.

Particularly when other crimes or acts occurred long before the charged offense, admitting them on the theory that they prove plan often smacks of a thin fiction that merely disguises what is in substance the forbidden general propensity inference, which should not be allowed. As to the rape charge, forensic evidence indicating anal and vaginal penetration and the presence of semen in nine-year-old Becky's body sufficiently established the assailant's general intent to commit rape.

The perpetrator's motive, to satisfy a sexual need, is also abundantly clear by proving the rape itself. Moeller's assaults on Beshaw, Moore, and Warner, where all three victims escaped with few or no physical injuries, provide scant evidence of a premeditated intent to murder.

State's assertion that Moeller's motive for murder was to silence his victim can also be readily inferred from the murder itself, and Moeller's prior bad acts provide little additional probative force. Iron Shell, N. In this case, the likelihood that the other acts evidence would persuade by illegitimate means was particularly high.

State's case against Moeller was a circumstantial one. To link Moeller to the rape and murder of Becky O'Connell, the State relied on evidence showing that: Because there were no living witnesses to the rape and murder of Becky, the testimony of Beshaw, Moore, and Warner provided the only depiction of Moeller as a man engaged in sexual and physical aggression. Through their testimony, State transformed Moeller from a man who could have committed the crime, based on circumstantial evidence, to a man who would have committed the crime, based on a propensity for sexual predation and physical violence.

Because Moeller had sexually assaulted others, the jury could readily infer that Moeller was the type of man who would rape and murder a child.

This is precisely the type of propensity conclusion that is prohibited under SDCL 19—12—5. Additionally, Moeller's purported intent and motives could be readily inferred from the circumstances surrounding Becky's rape and murder; the other acts testimony provided little, if any, additional insight on these issues.

At the same time, given the offensiveness of the other acts and the brutality of the charged crimes, the likelihood of a prejudicial effect on the jury was exceedingly high. We therefore reverse his conviction and remand for a new trial. Due to the likelihood that other issues raised by Moeller will resurface on remand of this case, we will proceed to address these issues.

The purpose of these tests was to determine the presence of body fluids that were foreign to Becky. For purposes of comparison, State also performed serological tests on blood samples drawn from Becky, Moeller, and other suspects.

None of these tests involved DNA analysis. State's experts countered that the blood type and enzyme results exactly matched Becky's test results and, therefore, most likely reflected the victim's, rather than the perpetrator's, contribution to the sample.

State claimed the serological tests revealed no conclusive or reliable information about the perpetrator and, therefore, Moeller could not be excluded as a suspect on the basis of these tests. Blake further opined that population studies show this particular DQ Alpha type 1.

The Frye test refers to the standard of admissibility for scientific testimony which was established in Frye v. United States, F. Moeller asserts the Frye standard applies to this case: However, in State v. Merrell Dow Pharmaceuticals, Inc.

See also State v. Pertinent evidence based on scientifically valid principles will satisfy those demands. He contends the evidence does not rest on a reliable foundation, because PCR DNA typing is not valid in forensic settings and because Blake lacks sufficient qualifications and methods. Moeller also asserts that the evidence was not relevant, because serological tests had already excluded him as the perpetrator.

DNA is contained within every nucleated cell in the human body. Because DNA is unique among individuals, analyzing the DNA contained in skin, hair, blood, semen or saliva found at a crime scene can be helpful in identifying the perpetrator of the crime. Because RFLP is so discriminating, it is possible to derive phenomenal probability statistics regarding whether a particular person is responsible for the crime under investigation. MacKnight, supra, at For example, in one recent case using RFLP analysis, the frequency of the defendant's DNA profile in the Caucasian population was determined to be one in million.

In Wimberly, N. See also Schweitzer, N. MacKnight, supra, at — Unfortunately, many crime scenes, including the one involved in this case, yield only a minute amount of genetic information about the perpetrator. It is a laboratory technique that can increase the amount of testable DNA in a crime sample.

As one treatise explains: Although the term PCR often is used loosely to refer to the entire process of replicating DNA and testing for the presence of matching alleles, the term properly refers only to the replication portion of that process.

After amplifying a DNA sample with PCR, technicians must use other methods to determine whether a known and unknown sample match. Standard RFLP analysis can be used in many circumstances, but other techniques often are used, including a process using sequence-specific oligonucleotide SSO probes. Reference Manual on Scientific Evidence, supra, at —88 and n. The probability that another, unrelated individual would also match the evidence is equal to the frequency of that genotype in the relevant population.

MacKnight, supra, at —12; MacKnight supra, at There are twenty-one different DQ Alpha types which range in frequency in the population from less than one to fifteen percent.

Consequently, the likelihood of a coincidental match between different samples is far higher with PCR than with DNA profiling tests. Thompson, supra, at 28— Nevertheless, our review of the trial record, relevant case law, and scientific literature convinces us that PCR DQ Alpha typing is a reliable method of forensic identification.

As one court observed: The PCR method was, and is, being used in an increasing number of forensic situations. The absence of widespread forensic use of the PCR method is not determinative of the admissibility of DNA evidence produced by the method. Furthermore, as of March , over thirty forensic labs were performing DQ Alpha typing.

One commentator noted that concerns unrelated to the reliability of the technique, namely financial constraints, personnel shortages, inadequate space and equipment, and insufficient demand, prevent other forensic labs from using the technology. Evidence presented at trial indicated that literally thousands of scientific articles have been written about PCR amplification and the DQ alpha gene complex. Catherine Theisen Comey et al. The report was prepared by a committee of scientists and jurists to address concerns associated with forensic DNA typing.

NRC Report at ix. The report acknowledges questions about the reliability of PCR-based methods, including potential contamination of samples, uneven amplification of DNA, and misuse of PCR kits and equipment.

NRC Report at 2—20 and 2— However, it does not translate to the broad condemnation urged by Moeller. Instead, we read the report as simply focusing on the importance of quality controls to ensure reliable testing.

It recommends blind proficiency testing, individual certification, laboratory accreditation, and state or federal regulation to achieve that end. NRC Report at 4—13 to 4— As one court observed, the report's emphasis on quality control measures does not undermine the admissibility of PCR DNA typing: While accreditation and regulation may be desirable in the medical as well as the forensic setting, it is not necessary to bar the use of DNA technology until such safeguards are in place.

Crime scene evidence may contain a number of contaminants, including DNA from the victim and others present at the crime scene or from laboratory workers handling the sample. Moeller suggests that forensic PCR tests may reveal only genetic information from the contaminating source, thereby masking the DNA composition of the true perpetrator.

Our review of scientific literature and the trial record indicates that the risk of contamination is not so great as to bar admissibility of PCR DNA results. To test the risk of contamination, FBI researchers conducted PCR analysis after deliberately exposing samples to environmental insults.

Potential contaminants were introduced by combining samples, mixing blood samples with perspiration, exposing samples to coughing, dandruff, and unclean laboratory equipment, and testing blood samples that were already mixed with other substances, such as saliva.

The DQ Alpha amplification and typing system was shown to be relatively unaffected by various environmental insults to bloodstains. Chemical and microbial contaminants that may be encountered in connection with evidentiary stains do not prevent obtaining interpretable typing results. The DQ Alpha alleles present in a sample at the level of sensitivity of the test were reliably detected, and no false results were produced as long as the test was carried out under conditions that prevented allele dropout.

The typing system appears relatively resistant to a variety of environmental insults, and factors that do influence the test serve to give no results rather than false results. They concluded as follows: This study provides additional support that the HLA DQ Alpha typing procedure is a valid procedure for typing forensic samples.

All interpretations for cases were compatible with interpretations using the RFLP procedure. The HLA DQ Alpha typing system has been shown to be a valid and reliable approach for analysis of biological evidence.

To prevent contamination of laboratory samples, Blake confined all handling of PCR material to one physical location in the lab and processed reference samples at different times than evidentiary samples. Blake also reserved at least one-half of all evidentiary samples for possible retesting by his lab, defense experts, or referees.

As Moeller suggests, uneven amplification could lead to inaccurate conclusions about the DNA makeup of the assailant. However, research suggests that proper use, calibration, and maintenance of equipment can prevent this problem. Further, the trial record indicates that Blake employed various precautions to ensure accurate amplification of samples.

For example, Blake used control samples that had been previously typed to ensure that testing methods were capable of responding to all DQ Alpha types. Because uneven amplification of DNA is associated with inadequate heating of samples, Blake also monitored the temperatures maintained by the amplification equipment to ensure proper heating during the PCR process.

In making this ruling, we note the benefit of PCR testing extends equally to the defense as well as the prosecution. Because test results can exclude a person on trial from being the perpetrator of the crime, PCR DNA evidence can be a valuable source of exculpatory evidence. None of Moeller's observations show an abuse of discretion by the trial court in permitting Blake to testify. Rather, evidence indicated Blake has the requisite knowledge and experience to qualify as an expert. The record shows that, when studying for his doctorate in criminology, Blake specialized in forensic science.

Most of his work involves DNA analysis. He has also given over fifty presentations on various aspects of forensic serology. Blake and his laboratory are not accredited or licensed because no such accreditation or licensing mechanisms exist. However, his laboratory participates in voluntary proficiency testing. Further, although Blake deviates from the manufacturer's protocol by subjecting samples to three additional replication cycles, he testified that these additional cycles simply increase the sensitivity of the sample.

See Hill, P. His alleged professional and technical deficiencies go to the weight and credibility of his testimony rather than admissibility. See Swallow, N. State presented expert testimony disputing Moeller's claim of exclusion. State's experts opined that the serological tests reflected Becky's blood type and enzymes and therefore provided little, if any, information which could identify the perpetrator.

State witnesses further opined that PCR DNA typing could differentiate between contributions from the perpetrator and the victim and thereby provide more information about the assailant. Faced with conflicting expert testimony and allegations that the serological tests were inconclusive, the trial court did not abuse its discretion in admitting evidence concerning the DNA makeup of the perpetrator.

Based on the trial record, relevant case law, and scientific literature, we hold PCR analysis for forensic purposes is reliable, the testimony with respect to the technique and its application was offered by a qualified expert who used adequate scientific procedures, and the evidence was relevant to the material issue of the identity of the perpetrator. Wehrenberg, a retired professor of geology who specializes in forensic examinations of soils.

Moeller contended Wehrenberg's testimony was highly speculative and therefore had no probative value. The trial court denied the motion and Moeller entered a standing objection to the testimony at trial. He stated he had examined soil samples taken from the wheel wells of a pickup belonging to Moeller. He had also studied several unpaved roads located near Sioux Falls, South Dakota, including the road leading into the area where Becky's body was found.

In an on-site examination of this road located south of Sioux Falls, he noted the colors and general characteristics of the soil on parts of this road were quite similar to soil samples taken from the left side of Moeller's pickup. Wehrenberg compared these samples to soil found on two other roads where Moeller claimed to have been driving.

One road that lies across the river from the crime scene showed gravel and soils that were considerably lighter than any of the soils examined at the crime scene.

Similarly, an examination of a gravel road north of Sioux Falls revealed gravel and soils that were much lighter than were present in the crime scene area. Wehrenberg opined that the soil on the left side of Moeller's pickup could not have come from the road he examined north of Sioux Falls. Wehrenberg also stated there was a low probability that the soils found on Moeller's pickup came from the road located across the river from the crime scene. Further, Wehrenberg stated that samples from the left wheel wells of Moeller's pickup contained very sharp, clean hornblende crystals.

On cross-examination, Wehrenberg testified in part as follows: And basically your ultimate conclusion is that it is possible that soil in the left wheel well. And it's also possible that it came from another scene; isn't that correct? And it, and without a database you don't know how many other scenes there would be which would have this similar-type composition? And it could be, the range could be rather significant, couldn't it?

And you can't say to any kind of scientific certainty that the soil in the wheel well and the soil at the crime scene are from the same source, would that be correct? All you're telling us is that as far as that wheel well it's possible? And it's also, as you indicated, possible that it could be from any number of other sources?

He therefore asserts the testimony did not assist the trier of fact and unfairly prejudiced Moeller. State responds that Moeller's assertions go to the weight of Wehrenberg's testimony, not admissibility. State notes that Wehrenberg found numerous consistencies between crime scene soil and the mud on Moeller's pickup and excluded locations Moeller identified as probable sources of the mud.

South Dakota Department of Agriculture, N. We will reverse the trial court's decision only where there has been a clear showing of an abuse of discretion. In this case, Wehrenberg's testimony indicated that soil found on Moeller's pickup was consistent with the crime scene. This testimony formed part of State's circumstantial case and tended to connect Moeller with the commission of the crime. Assertions that others may have been driving the pickup when the soil was deposited on it, or that Wehrenberg could not estimate the number of other locations where the soil could have been found, go to the weight of the testimony rather than its relevance.

Under our system, molded by the tradition of jury trial and predominantly oral proof, a party offers his evidence not en masse, but item by item. An item of evidence, being but a single link in the chain of proof, need not prove conclusively the proposition for which it is offered. It need not ever make that proposition appear more probable than not. Whether the entire body of one party's evidence is sufficient to go to the jury is one question.

Whether a particular item of evidence is relevant to his case is quite another. It is enough if the item could reasonably show that a fact is slightly more probable than it would appear without that evidence. Even after the probative force of the evidence is spent, the proposition for which it is offered still can seem quite improbable.

It poses a standard of conclusiveness that very few single items of circumstantial evidence ever could meet. A brick is not a wall. In drafting an identical Federal Rule, the advisory committee observed: Most of the literature assumes that experts testify only in the form of opinions. The assumption is logically unfounded. The rule accordingly recognizes that an expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to the facts.

FedREvid advisory committee's note. Moeller's counsel artfully demonstrated the weaknesses and limitations of Wehrenberg's testimony, and Wehrenberg himself was quite candid in this regard. Furthermore, the subject matter of his testimony was not beyond the reach of the jury's critical faculties and common sense.

It is highly unlikely that testimony concerning soil composition appealed to the jury's emotions or otherwise clouded their ability to weigh the probative value of the evidence. Consequently, we hold that the trial court did not abuse its discretion in permitting Wehrenberg to testify.

In this case, the trial judge did instruct the jury that they must find the existence of an aggravating circumstance beyond a reasonable doubt before returning a verdict of death.

We note that the jury received a proper definition of reasonable doubt at the guilt phase of their deliberations. However, this fact does not diminish the importance of repeating the instruction prior to penalty deliberations that occur several days later. In the future, failure to instruct the jury on this issue could result in reversible error. See also James R. Importantly, the very same constitutional document that prohibits the infliction of cruel punishment contains provisions implicitly recognizing the appropriateness of the death penalty.

The death penalty has been in effect for most of this state's history. Capital punishment existed from statehood until it was abolished in Opinion of the Judges, 83 S. It was reinstated in and continued until , when the United States Supreme Court effectively invalidated the then-existing capital sentencing scheme. Hoffman, Death Among the Shifting Standards: The legislature reenacted the death penalty in , and it has remained in effect to the present.

Eleven individuals have been executed in South Dakota. Constitutional analysis is dynamic and evolving; it cannot rest solely on historical underpinnings. We therefore adopt a three-part analytical framework derived from the United States Supreme Court's plurality decision in Gregg.

To survive constitutional scrutiny, the death penalty: To begin with, the death penalty comports with South Dakotans' contemporary standards of decency. Because the legislative branch is most representative of the views of the people, legislative enactments are one of the most accurate indicators of societal mores.

The South Dakota Legislature reenacted the death penalty in , and has made occasional amendments to the statutory scheme since that time. These statutes have remained undisturbed by the electorate, despite the power of the people to vote death penalty proponents out of office or to reject legislative enactments through a referendum election. This public acquiescence is strong evidence that capital punishment reflects the will of the people of South Dakota.

Since the reenactment of the death penalty in , eight capital cases have been submitted to juries for sentencing. In two of these cases, South Dakota juries have recommended death sentences. In our sparsely populated rural state, with its relatively small number of capital crimes, these two verdicts are significant.

Rather, the reluctance of juries in many cases to impose the sentence may well reflect the humane feeling that this most irrevocable of sanctions should be reserved for a small number of extreme cases.

In evaluating contemporary values, we are also mindful of the fact that thirty-seven other states have adopted statutes authorizing capital punishment for certain crimes. See Campbell, P. Under South Dakota law, kidnapping may be punishable by death when the defendant has inflicted gross permanent physical injury on the victim.

Moeller was not charged with kidnapping Becky. He was convicted of murder in the first degree and was sentenced to death for this crime. Therefore, we limit our discussion to the appropriateness of the death penalty for the offense of first-degree murder. Measuring the punishment, death, against the crime, causing death, it is most difficult to appreciate the death penalty's excessiveness First, it satisfies society's need to impose a fitting punishment for grievous crimes.

As the Gregg plurality observed: In part, capital punishment is an expression of society's moral outrage at particularly offensive conduct. This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs.

The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. Retribution is no longer the dominant objective of the criminal law, but neither is it a forbidden objective nor one inconsistent with our respect for the dignity of men. Indeed, the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.

Although the efficacy of capital punishment as a deterrent of crime is hotly debated, this question must be addressed by the legislature, not the courts.

As the Gregg plurality opined: The value of capital punishment as a deterrent of crime is a complex factual issue the resolution of which properly rests with the legislatures, which can evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts. It will not do to denigrate these legislative judgments as some form of vestigial savagery or as purely retributive in motivation; for they are solemn judgments, reasonably based, that imposition of the death penalty will save the lives of innocent persons.

This concern for life and human values and the sincere efforts of the States to pursue them are matters of the greatest moment with which the judiciary should be most reluctant to interfere.

We cannot conclude that the South Dakota Constitution requires such interference. The Eighth and Fourteenth Amendments to the United States Constitution prohibit state sentencing systems that cause the death penalty to be wantonly and freakishly imposed. Part of a State's responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates standardless sentencing discretion. It must channel the sentencer's discretion by clear and objective standards that provide specific and detailed guidance, and that make rationally reviewable the process for imposing a sentence of death.

To satisfy constitutional mandates, an aggravating circumstance must meet two basic requirements. A challenged provision is impermissibly vague when it fails to adequately inform juries what they must find to impose the death penalty and as a result leaves them and appellate courts with open-ended discretion. South Dakota includes the following aggravating circumstance in its statutory scheme: The offense was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.

Because Moeller's alleged offenses occurred prior to the enactment of this amendment, we may not consider this statutory change when reviewing his case. As to the meaning of this statutory provision, the trial court instructed the jury as follows: The State has alleged as an aggravating circumstance in this case that the murder was outrageously or wantonly vile, horrible or inhuman in that it involved an aggravated battery to the victim.

The State has the burden to prove, beyond a reasonable doubt, the existence of this aggravating circumstance. Before you may find that this aggravating circumstance exists in this case, you must find, beyond a reasonable doubt, that each of the following elements of this aggravating circumstance are proven by the evidence: Unless the jury finds that each of the above two elements has been proven by the evidence, beyond a reasonable doubt, then you must give the defendant the benefit of the doubt and find that this aggravating circumstance does not exist.

The jury found the aggravating circumstance was satisfied and sentenced Moeller to death. Although Moeller urges state as well as federal constitutional violations, see S. Moeller argues that a vague and overbroad aggravating circumstance must be amended through legislative action rather than limited through judicial construction.

He contends that limiting instructions crafted by a trial or appellate court invade the legislature's power to define capital offenses. We reject this claim. The United States Supreme Court has expressly approved judicial decisions that impose limiting instructions on otherwise vague aggravating circumstances.

We are convinced by the weight of this authority. In Godfrey, U. The trial court in Godfrey simply quoted the aggravating circumstance in its instructions to the jury and provided no additional definitions or explanations concerning this aggravating factor.

The Georgia Supreme Court affirmed the sentence, without applying any limiting construction to the aggravating circumstance. On appeal, the United States Supreme Court invalidated the death sentence. Justice Stewart, writing for the plurality, condemned the trial court's bare reiteration of the statutory aggravating circumstance in its charge to the jury. He reasoned that the statutory provision, by itself, failed to give the jury adequate guidance in imposing the death penalty and therefore created the likelihood of an arbitrary and capricious result.

Finding the statutory language is vague and overbroad, as the Godfrey Court did, does not necessarily establish a constitutional violation. If a state court further defines and limits those otherwise vague and overbroad terms so as to provide adequate guidance to the sentencer, then constitutional requirements are satisfied.

To begin with, the court's instructions narrow the class of persons eligible for the death penalty. The jury was advised that it could only impose a death sentence if the victim suffered an aggravated battery. Furthermore, the court required a finding that the defendant had the specific intent to maliciously inflict unnecessary pain to the victim. The defendant who intends to kill his victim instantly or painlessly does not satisfy this requirement, nor does the defendant who only intended to cause pain that is incident to death.

See Lewis, U. Leniency may be appropriate when a defendant causes a quick and painless death, but when a murderer dismembers or disfigures his victim with a malicious intent to inflict pain, society is justified in imposing the ultimate punishment of death.

The law need not be merciful in the face of brutal and torturous violence. Rather than relying on pejorative adjectives that appeal to emotion and caprice, see Shell v. The instructions required the jury to make precise factual inquiries regarding the nature of the victim's injuries and the defendant's intent. By establishing these factual requirements, the trial court foreclosed arbitrary and capricious decision-making.

In Walton, U. Likewise, in Arave, U. Creech, Idaho , P. See also Maynard, U. The New Jersey Supreme Court has written: Under Virginia's interpretation, an aggravated battery may include mutilation, gross disfigurement, or sexual assault of a conscious victim prior to death.

In order to find that the offense of murder involved an aggravated battery, you must find that the bodily harm to the victim occurred before death. When the jury returns a guilty verdict in a capital case, the trial court must conduct a presentence hearing before the jury. At that time, the jury may hear additional evidence in mitigation and aggravation of punishment.

Under South Dakota's capital sentencing statutes, the jury must find the existence of an aggravating circumstance beyond a reasonable doubt before it may impose the death penalty. The law permits the jury to consider any mitigating circumstances, but does not impose any standard of proof regarding mitigation. More specifically, Moeller argues the capital sentencing statutes fail to adequately channel the discretion of the sentencer, because there is no standard of proof for mitigation and it is unclear whether a certain number of jurors must decide mitigation exists.

He also contends that discretion exercised by police and prosecutors in deciding whether to charge the defendant with a capital offense contributes to the arbitrary imposition of the death penalty. We consider each of Moeller's contentions in turn. He contends that this lack of guidance creates the likelihood that the jury will impose the death sentence arbitrarily. Requiring a certain number of jurors to agree on the mitigating value of evidence would likely foster rather than prevent arbitrary results.

North Carolina, U. The same rationale would apply if a certain portion of the jury was required to agree on the mitigating value of specific evidence; a handful of holdout jurors could prevent the others from giving effect to evidence that they believe calls for a sentence less than death.

See McKoy, U. It is imperative that the jury be permitted to weigh all relevant mitigating evidence, and any attempt to limit consideration of such evidence is rejected by this Court. Discretion exercised by police, prosecutors and others results in the arbitrary imposition of death sentences.

The United States Supreme Court has rejected similar arguments and we agree with their reasoning. Prosecutorial discretion allows a defendant to be removed from consideration as a candidate for the death penalty. The decision to afford an individual defendant mercy does not violate state or federal constitutional guarantees. Attempts to eliminate discretion in all aspects of the criminal justice system place totally unrealistic conditions on the use of capital punishment.

As the Gregg Court explained:. If a jury refused to convict even though the evidence supported the charge, its verdict would have to be reversed and a verdict of guilty entered or a new trial ordered, since the discretionary act of jury nullification would not be permitted.

Finally, acts of executive clemency would have to be prohibited. Such a system, of course, would be totally alien to our notions of criminal justice. I would affirm the trial court on this evidentiary ruling. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

In so doing, the trial court correctly applied the two criteria necessary to make such a decision: The trial court found the evidence was relevant to show common method, plan or scheme, intent, identity, and motive and that the probative value was not substantially outweighed by the danger of unfair prejudice. A trial court's determination to admit other acts evidence will not be overruled absent an abuse of discretion.

An abuse of discretion has been defined by this Court as a decision which is not justified by, and clearly against reason and evidence. Thus, the question is not whether, had we been the trial judge, we would have admitted the prior bad acts evidence but whether the trial court sitting in this case abused its discretion by doing so. This is most clearly established by the fact that in the entire text of this discussion, the majority devotes not a single paragraph to an analysis of the similarities between the attack on Becky and the prior bad acts.

Instead, the majority focuses entirely on perceived dissimilarities and justifications not to affirm the trial court rather than balancing the facts that weigh for or against admission and applying an in-depth abuse of discretion review.

Contrary to the majority's assertion that the trial court only identified five common marks between the crimes charged in the indictment and the prior bad acts, the trial court actually identified ten. They are as follows: For the most part, this is correct. Moeller had a passing knowledge of Becky, Moore and Warner.

However, the trial court erroneously found Moeller had prior knowledge of Beshaw when he did not. The balance of the finding is correct, however. Moeller did not have a substantial relationship with any of these victims prior to his attacks upon them.

Moeller, however, attacks the trial court's ruling of admissibility of those acts arguing that the dissimilarities between the prior bad acts and the offense charged are so substantial that they overcome the State's claim of relevance. Moeller claims the end result is evidence which was impermissibly admitted to show merely that he is a bad man who has committed bad acts in the past similar to the charge he is now facing.

However, I will focus on the issues of identity and modus operandi, as they are dispositive. The exception is more frequently used where two or more crimes appear to have been plotted by the same individual because they exhibit a similar unusual pattern.

The evidence is useful to identify the accused as the perpetrator of the crime charged. Since the defendant acted in a distinctively similar manner on another occasion, it is more likely he rather than someone else did the act on the occasion of the charged crime. Moeller had an acquaintanceship or knowledge of Becky, Moore, and Warner but not Beshaw.

The trial court found that Moeller committed these acts in close proximity to his residence. The attack against Moore was committed in Wright, Wyoming. Three of the four attacks were against females for sexual purposes. The fourth was against, Moore, a young male, also for sexual purposes. Were this all the evidence given the trial court, I would join the majority opinion that the relevance was minimal at best. When making such factual comparisons to justify admission, the facts must be distinctive, Champagne, N.

Otherwise one could argue that the attacker, in the prior bad acts and in the current charge, wore pants, tennis shoes, spoke English, wanted sex, was right-handed, or any other set of generic factors.

These facts, while similar, are not so unusual and distinctive as to distinguish the modis operandi of the accused from that of many other perpetrators of the same type crime. Beshaw testified Moeller used a black-handled folding knife with a three-inch blade. Moore testified that Moeller assaulted him with a black buck knife. Warner testified that Moeller assaulted her with a folding knife, with a three and a half-inch black and a brown handle.

Following questioning by law enforcement about Becky's murder, Moeller fled to the State of Washington. Randall, the forensic pathologist who performed the autopsy, was unable to testify as to the exact nature of the knife used on Becky to deliver the stab wounds, he did testify that a wound to the chest was four inches deep.

Randall's testimony out of context. Randall further testified that a blade somewhat shorter than the four-inch depth of the wound could have produced such an injury due to the compression of the chest. Clearly however, the blade did not exceed four inches in length and could not have been substantially shorter than that.

This particular wound extended approximately four inches primarily front to back and towards the right And the abrasion around here suggests that the blade was inserted to the hilt.

Because that's usually what we see causing this type of abrasion is a hilt mark. If the blade isn't inserted to the hilt, then we don't see this type of abrasion around the edge of the wound. Were you able to estimate roughly the length of the blade that would have caused the wound? The State delivered on that representation as no inconsistent facts arose at trial. All known facts on the knife wounds on Becky are consistent with the State's claim. Moeller was later arrested with two such knives in his possession.

In apparently Moeller did not have sufficient motivation to carry through with his threats when confronted by Beshaw. However by he was fully capable of cutting Moore with the buck-style knife and did so again in in the Warner incident. Rather, the test is the overall similarities of the two crimes. Clearly if the prior bad acts crimes also contained similar violence, as do two of the three herein, that would be a point in favor of admissibility. In its conclusion of admissibility, the Phillips trial court, like the Moeller trial court, identified ten factors of similarity.

Moeller's initial threat on Beshaw with the knife was done on a busy Sioux Falls street near Axtell Park in broad daylight after he had been loudly ejected from another car. After Moeller failed in his attempted attack on Beshaw, he had her drive him to the Speedy Car Wash where she worked. At this public point, Moeller exited Beshaw's car where she and her car were obviously well known. The attack on Moore with the knife was in a mobile home occupied by Moeller which was right next to Moore's trailer and was occupied at the time of the attack by Moore's father.

Moeller had Moore contact Moore's father about a planned trip to Gillette, Wyoming, and went so far as to demand Moore's father come to Moeller's trailer with a note to give to Moeller approving the trip just prior to Moeller's attack on Moore. This provided Moore's father with the location of his son and the identity of his son's would-be attacker. Moeller was known to Warner when he wandered into her apartment for a visit.

He left after a brief visit only to return a short time later to assault her with intent to forcibly molest her knowing she could readily identify him.

He also parked his car in Warner's driveway prior to the attack thus allowing Warner to obtain his license plate number when he left after the attack. Likewise, the claim that Becky was murdered to hide the identity of her attacker is also off the mark. Moeller had previously overtaken Becky at the intersection of Main and Russell, two of the busiest streets in Sioux Falls at the height of the 5 o'clock rush hour only minutes before the attack upon her. Just prior to that he had been spotted by a clerk next to Becky in a busy store in which he was a well-known customer.

Moeller was known to the clerk as the store stocked an unusual brand of cigarettes for Moeller at his request. Moeller's failure to hide his identity prior to his abduction and attack on Becky is even more bizarre when one considers he did substantial prison time for all three prior bad acts either upon a guilty plea Moore , conviction Warner , or pursuant to a plea bargain concerning other crimes Beshaw.

Rather than attempt to hide his identity, Moeller seems to display it. Most rape victims know their attacker on more than a passing basis. Recent statistics indicate rape victims know their assailants well in eighty-four percent of the cases.

It is apparent that the indicated inference does not arise On the other hand, the inference need not depend upon one or more unique or nearly unique features common to the charged and uncharged offenses, for features of substantial but lesser distinctiveness, although insufficient to raise the inference if considered separately, may yield a distinctive combination if considered together.

Thus it may be said that the inference of identity arises when the marks common to the charged and uncharged offenses, considered singly or in combination, logically operate to set the charged and uncharged offenses apart from other crimes of the same general variety and, in so doing, tend to suggest that the perpetrator of the uncharged offenses was the perpetrator of the charged offenses.

The comparison of victims is not dispositive, by itself, of the admissibility issue. Houghton is particularly instructive as it was decided by the same Court who had only five months earlier adopted SDCL 19—12—5 as a court rule.

The opinion identifies no common characteristics of the three purported victims but goes into great detail on the defendant's unusual methodology in carrying out his alleged attacks. The Houghton Court upheld the trial court's refusal to admit the prior bad acts on the basis of undue prejudice to the defendant combined with a minimal probative value. In Houghton, the defendant convinced both the trial court and this Court that identity was not an issue, thus negating any use of the prior bad acts to prove his identity.

The issue became one of consent to sex by the purported victim. Herein, Moeller has admitted to the trial court that identity of Becky's killer is a major issue thus putting into question the matter of modus operandi. Second, in Houghton, the defendant vigorously contested he committed the purported prior bad acts. Moeller, however, did not contest his commission of the prior acts.

Finally, in Houghton, we applied the proper abuse of discretion standard in affirming the trial court's finding of denial of admissibility. Here, we analyze the opposite result—the trial court's finding of admissibility under the same abuse of discretion standard. The sex and age of the victims are merely factors which weigh for or against admissibility along with all other relevant facts. FN6 For if what he claims is true, that this type of knife and the circumstances surrounding its use are common, surely other such common cases must have arisen since However, Moeller fails to cite us to a single South Dakota case which is even remotely similar as to the facts.

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