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Driver's brake response slow, expert testifies

LAKE ANDES -- A crash reconstructionist said Tuesday during testimony that Ronald Fischer Jr. braked for 29 feet prior to striking two people, two vehicles and two boats last summer.

Fischer, who is now 30, stood trial for the deaths of Dr. Rob Klumb and Maegan Spindler, both U.S. Fish and Wildlife Service employees. The pair were killed July 8, 2013, when the van Fischer was driving ran into them in the Dakota Inn parking lot in Pickstown.

Fischer, of Lake Andes, allegedly failed to stop at a stop sign at the intersection of U.S. Highway 18 and S.D. Highway 46. According to testimony, his vehicle went directly into the parking lot at highway speeds and struck the victims.

"They were standing there, defenseless, when he barreled into them," said Brent Kempema, assistant South Dakota attorney general in his closing statements Tuesday. "He needs to be held responsible for that."

The trial ended Tuesday afternoon. It lasted two days at the Charles Mix County Courthouse in Lake Andes. Judge Bruce Anderson will give a written decision on the matter 90 days after final briefs have been filed.

The prosecution rested after sharing an hour-long recorded interview between Fischer and South Dakota Division of Criminal Investigation Agent Josh Twedt. The interview took place July 9, 2013, in Fischer's hospital room at Avera McKennan Hospital in Sioux Falls.

Judge Anderson asked the prosecution to pause the recording twice during the trial to address courtroom concerns. The first time, a few minutes into the interview, the judge received a note from a victim's family regarding a black T-shirt a woman was wearing that said "Hit & Run." The woman was sitting with supporters of Fischer. After talking to the attorneys, Anderson asked the woman to approach the front of the courtroom.

"I've decided the shirt you're wearing is inappropriate for this trial," Anderson said. "You can go to the restroom and turn it inside out."

The woman complied with the judge's order.

Later, Judge Anderson asked the prosecution to pause the recording so he could address Fischer's supporters.

"I can hear mumbling and laughing coming from that area over the recording, as loud as it is," Anderson said. "If you can't follow proper decorum, I'm going to remove you."

When the recorded interview continued, Fischer maintained he didn't remember the crash at all. According to the interview, Fischer first said he went home from work due to heat exhaustion on July 8, 2013. He said he drank his last alcoholic beverage that day at 3 p.m. -- a 24-ounce Steel Reserve beer, which has 8 percent alcohol -- at Pumpr Nik's in Lake Andes.

Later in the recording, he slightly changed his story and said he went directly from work to Pumpr Nik's to gamble and drank a beer. Afterward, he gave his uncle, sister and their friend a ride. He said his uncle bought a 40-ounce Steel Reserve beer and the four of them went to his uncle's house and drank some of the alcohol.

"I had a little too much to drink," Fischer said on the recording. "I can't remember crashing at the intersection, but I feel bad for what I did because I didn't know I did it until I woke up and people started telling me about it. I'm not that type of person. I've got a job, a kid and a wife. I'm trying to live life good."

The defense

Fischer's attorney, Tim Whalen, called his only witness to the stand Tuesday.

Brad Booth, an accident reconstructionist from Rapid City, testified Fischer braked prior to hitting Klumb and Spindler in the hotel parking lot.

"There was a long delay in his reaction process. I don't know what was going through his mind, but it's not inconsistent with somebody that is presumably under the influence," Booth said.

Booth added Fischer was using his "full braking capacity" in the 29 feet before impact.

"Is that sufficient braking distance to stop him from hitting a vehicle when he's going in excess of 50 miles per hour?" Kempema asked Booth.

"No, sir," Booth replied.

Whalen argued that for the state to prove Fischer guilty of first-degree manslaughter, it first needed to prove he had an intent to use the vehicle as a weapon to cause injury or harm. He said Fischer had no intent to harm anyone -- that's why he hit the brakes before the crash. Whalen added that Fischer's speed was not excessive, and therefore did not make the vehicle a weapon.

Whalen told the court Fischer could not be found guilty of vehicular homicide. He argued the blood tests allowed as evidence were not properly tested. According to testimony, the tests administered by lab technicians to find blood alcohol content were done using plasma. Whalen argued this is not admissible because the tests did not use whole blood, and suggested the court should dismiss the evidence. Whalen argued blood alcohol content must be determined from whole blood only or is not an accurate test, according to a paper written by Dr. Kurt Dubowski, a professor at The University of Oklahoma.

Without that evidence, the state cannot prove Fischer was drunk, and Whalen said Fischer cannot be convicted of drunken driving.

Whalen motioned, and the judge granted, a request for the court to consider two lesser charges of second-degree manslaughter in its decision. The charge is the "reckless killing of one human being" and carries a maximum penalty of 10 years in prison and a $20,000 fine.

Whalen also moved for a judgment of acquittal on the first-degree manslaughter, vehicular homicide and drunken driving charges. He claimed the state did not meet its burden to prove Fischer's guilt beyond reasonable doubt.

Anderson ruled the state provided sufficient evidence on each count.

The state will have until Oct. 20 to submit its brief and Whalen has 30 days after that submission to get his brief to the judge.

Gregg Spindler, Maegan's dad, spoke for for his family and said they still hope for a first-degree manslaughter conviction. They want Fischer to serve hard prison time.

"We're glad it's over," he said regarding the trial. "It was hard to sit through."