South Dakota man loses latest appeal of murder conviction

By Chet Brokaw
Pierre, South Dakota (AP) 3-08

A South Dakota man serving a life sentence for a 1981 murder conviction has lost his latest legal bid for freedom.

The South Dakota Supreme Court rejected Roscoe Primeaux’s arguments that his rights were violated because the pool of potential jurors for his trial did not include enough American Indians.

Primeaux could not raise the jury-selection issue in his latest appeal because he could have raised that issue in a previous appeal, the high court said in a unanimous decision. In any event, he failed to show that the jury selection process was unconstitutional, the justices said.

Primeaux was convicted of second-degree murder for the stabbing death of Rodney Provost during a party in Wagner on Oct. 15, 1981. He also was convicted of two counts of aggravated assault from the same fight.

The Supreme Court upheld Primeaux’s conviction in his first appeal in 1982. He also filed several subsequent appeals in state and federal courts, but he lost all those appeals.

Primeaux filed another appeal in 2005, arguing that his constitutional right to an impartial jury was violated because the pool of potential jurors did not represent a fair cross section of the community, and his rights were violated because one person was excluded from the jury because of race. He also contended he was denied effective assistance of counsel when his trial lawyer failed to object to the makeup of the jury.

A circuit judge denied Primeaux’s claims.

The Supreme Court upheld the circuit judge’s ruling, saying Primeaux could not raise the jury-selection issue because he failed to show why it was not raised in an appeal filed in 1988. Primeaux presented no evidence to establish his lawyer in the 1988 appeal was ineffective because that issue was not raised, the high court said.

Even though Primeaux is legally barred from raising the issue, he failed to show the number of Indians in the jury pool was unfair and unreasonable in relation to the number of Indians in the community population, the Supreme Court said.

Evidence showed the American Indian population of Charles Mix County at the time of Primeaux’s trial was 16.9 percent of the total population, and the three Indians in the pool of potential jurors represented 5.5 percent of the jury panel, the high court said.

A previous case found that a difference of 15 percent between the Indian population and the Indian representation on a jury panel would require supplementation of the jury panel, the Supreme Court said. The difference in Primeaux’s jury panel was only 11.4 percent, which does not amount to an unfair and unreasonable under-representation, the justices said.

“Moreover, despite the disparity, the under representation was not the result of any inherent discrimination in the jury selection process or systematic exclusion of Native Americans,” Justice John K. Konenkamp wrote for the court.