State v. Disanto

688 N.W.2d 201 (2004)

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Nature of the Case

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Facts

D and Linda Olson lived together for two years and were engaged for a short time. Olson began a new friendship with Denny Egemo, and in the next month, they moved in together. D began making threatening telephone calls to Olson and Egemo. He told them and others that he was going to kill them. He also sued Olson claiming that she was responsible for the disappearance of over $15,000 in a joint restaurant venture. D told a woman that he intended 'to shoot his ex-girlfriend, to kill her, to shoot her new lover in the balls so that he would have to live with the guilt, and then he was going to kill himself.' As if to confirm his intention, D grabbed the woman's hand and placed it on a pistol in his jacket. The woman contacted a hotel security officer who in turn called the police. D was arrested and a loaded .25 caliber pistol was taken from him. D was sentenced to two years in the South Dakota State Penitentiary with nine months suspended. While in the penitentiary, D met Stephen Rynders. He told Rynders of his intention to murder Olson and her boyfriend. Rynders gave this information to law enforcement and an investigation began. D was released from prison. Rynders, acting under law enforcement direction, picked D up and offered him a ride. Rynders told D that he should hire a contract killer who Rynders knew in Denver. Dale McCabe, a law enforcement officer posing as a killer for hire, met twice with D. D showed McCabe several photos of Olson and gave him one, pointed out her vehicle, led him to the location of her home, and even pointed Olson out to him as she was leaving her home. By chance, D ran into Olson on the street. Olson exclaimed, 'I suppose you're going to kill me.' 'Like a dog,' D replied. At a second meeting, D told McCabe, 'I want her and him dead.' 'Two shots in the head.' With only one shot, he said, 'something can go wrong.' If Olson's teenage daughter happened to be present, then D wanted her killed too: 'If you gotta, you gotta, you know what I mean.' He wanted no witnesses. He suggested that the murders should appear to have happened during a robbery. D had no money to pay for the murders so D suggested that jewelry and other valuables in the home might be used as partial compensation. D said Egemo, was known to have a lot of cash. D also agreed to pay for the killings with some methamphetamine he would later obtain. D and McCabe agreed to the hit. Less than three hours later, D, seeking to have a message given to McCabe, called Rynders telling him falsely that a 'cop stopped by here' and that Olson had spotted McCabe's car with its Colorado plates, that Olson had 'called the cops,' that D was under intense supervision, and that now the police were alerted because of D's threat against Olson on the street. All of this was untrue. Defendant's alarm about police involvement was an apparent ruse to explain why he did not want to go through with the killings. D called a halt to the hit. Despite this telephone call, the next day, McCabe, still posing as a contract killer, came to D at his place of employment with Olson's diamond ring to verify that the murders had been accomplished. D was arrested and charged with attempted murder, and simple assault. D was convicted and appealed.