*1 Dakota, of South Plaintiff STATE Appellee, BLACK,
Bradley Dean Defendant Appellant.
No. 17551.
Supreme Court of South Dakota.
Argued Rehearing May Sept.
Decided Barnett, Gen., Atty.
Mark Frank E. Pierre, Geaghan, Atty. Gen., Asst. plain- for appellee. tiff and Nesson, Michael J. Butler of Butler and Falls, appellant. Sioux for defendant and MILLER, (on rehearing). Chief Justice January On mur- Bradley der conviction of Dean Black was upheld by plurality decision of this Court. Black, (S.D.1993) (Black I). petitioned rehearing. granted petition. Upon his reconsidera- tion, although ratify the result of Black I resulting judgment affirming and its *2 conviction, earlier DECISION abandon this Court’s rationale. the It is evident from difficulties encoun courts, by writings
tered
the trial
that our
(S.D.
BACKGROUND
Waff,
since State v.
1985),
sufficiently guide
do
bench
lengthy
engage in a
recitation
need not
question
bar to a
of how to
resolution
case, as
background of this
it is
of the factual
jury
to be
determine what
instructions are
fully
in Black
It is sufficient for
I.
detailed
is,
given in a particular homicide trial.
It
to
that Black was
purposes
our
recall
therefore, appropriate
previous
to review our
first-degree
in
murder
the De-
charged with
clarify
in
area in an
decisions
this
effort to
Hymore.
death
Robert
cember
of
methodology
in
to be followed
determin
trial,
jury
argued
Black
At
close of his
to
ing
are
in a
appropriate
which instructions
court,
presence of
the trial
outside the
particular case.
jury,
although
charged
he
that
was
first-
murder,
degree
that
included
offense
held, through
the writ-
Court
manslaughter.
first-degree
of
lesser offense
Wollman,
ing of
first-
Justice
that neither
Therefore,
asserted,
was
he
he
entitled to
degree manslaughter
second-degree
nor
jury
first-degree manslaugh-
on
instructions
manslaughter
“invariably”
within
included
ter.
Waff,
charge
murder.
of
parties’
trial court
to the
ar-
listened
possible,
It is
under the
that
guments
apply only
and then
it would
stated
case, one,
particular
a
or
circumstances of
two-part “necessarily
test of
both, of these lesser offenses could be found
determining
test”
included offense
in
wheth-
“necessarily”
to be
included
within
on
er Black was entitled to instructions
first-
charge
murder. Whether this is true
of
degree manslaughter:
any particular
in
case would be determined
after
court
going to
factual
individual basis
the trial
I’m not
rule on the
basis
applied
and a
I
to
test
factual test
on this matter. want this test
remain
determination,
if
my
Only
prongs
it.
both
solely,
in
on the
before
therefore,
portion thereof,
these
test
met could
two offenses
and that
man-
charge
mur-
“necessarily included”
of
slaughter,
though
even
our Court has not
any
particular
Id. at
directly,
a lesser
der
situation.
addressed
is not
in-
Despite
prongs
degree
recitation
the two
cludable
murder.
Waff’s
offense
first
added.)
test,
“necessarily
express-
included”
(Emphasis
Waff
stating:
ly
prong
declined to
determined,
Thus,
court
the trial
as matter
deciding
the offense
“Without
whether either
law,
first-degree manslaughter
nev-
first-degree
or of second-
first-degree
er
a lesser
offense
degree manslaughter, as defined
The case
then submitted
murder.
was
22-16-20,
22-16-15
... satisfied
and SDCL
which,
jury
receiving
in addition to
instruc-
beyond
peradventure
clear
it is
murder,
first-degree
tions on
also received
that neither offense satisfied
justifiable
instructions on
homicide. The
test.”
Black,
against
finding
returned
verdict
first-degree
him
murder.
two-part “necessarily included” test
Waff’s
specifically
special
A
from
con-
appealed
plurality
Black
his conviction.
was
taken
Zastrow in
the trial
currence of
this Court determined
court did
Justice
Kaf-
(S.D.1978).
ka,
refusing
It is
not err in
instruc-
first-degree manslaughter.
noteworthy
Black
observed
tions on
Waff
clearly
in this
petitioned
rehearing.
petition
“two-part
is now
the law
His
was
since,
state,”
again
argument
as we
granted
Waff,
oral
heard
below,
fully
Zastrow’s
presented
issue as
I:
discuss more
the same
recent
refusing writing
trial
not this Court’s most
Whether the
court erred
was
two-part
nor
request
given
prior
articulation of
manslaughter.
it our first articulation of that
structions on
Indeed,
comparison of the test as stated
the use of force or violence is not an
earlier articulation
with its
element of
crime of second
merely recited an
rape,
statutory rape,
shows that
abbreviat-
sometimes termed
Waff
complete
test. This is
ed outline of
dependent
thus an
thereon is
we were con-
understandable
necessarily
not a
included offense. Ac-
Waff
*3
with,
only applied, the factual
cerned
cordingly, the trial court did not err in
prong of the test to conclude that no error
refusing
battery
to instruct on assault and
by
trial
was occasioned
that
court’s refusal to
as an included offense.
give requested
instructions on the of-
Id.,
293,
83
at
158
at
S.D.
N.W.2d
second-degree manslaugh-
fenses of first or
decision,
reaching
that
we recalled that
Clearly,
ter.
N.W.2d at 18.
373
previous
on a
occasion we had held was not
develop
had no need there to
and discuss
give requested
error to refuse to
instructions
fully
legal prong test.
where the “two offenses are not the same
Today,
upon
we are called
nor,
opinion,
in our
are
such related
question
open by
decide
left
our
decision offenses as to include one within the oth-
reason,
in
For
we find it neces-
Waff.
er....
[We continued:] The two offenses
sary
lineage of
to examine the
two-
Waff
simply stem from
same
occurrence but
part
lineage
An
of
examination
they are not
in
the same either
law or fact.
past
makes it clear that for at least
Id.,
They
grade
differ both
and kind.”
83
century,
engaged
this Court has
(citing
S.D.
158 N.W.2d
871
inquiries
requested
factual
toas whether a
Rasmusson,
400, 403,
State v.
72
34
S.D.
given by
instruction should be
the trial court.
(1948)).
923,
N.W.2d
924
Further,
even
brief examination of that
previous
We went
to examine two
cases
lineage indicates to us that
abbreviat-
Waff’s
rape allegations.
which involved
We ob-
may
ed outline
be the source of much of
degree
rape
served
where the
of
today’s difficulty
in the
charged
force,
did not include the
of
use
legal prong of the test
to determine the
requested
properly
instruction on assault was
propriety
granting
request
of
a defendant’s
Id.,
292,
refused.
158 N.W.2d at
instructions on a lesser offense than
503, 506,
(citing
Pepka,
871
State v.
72 S.D.
charged.
that with which he has been
(1949)).
189,
theOn
other
special
origin
concurrence had its
Kafka’s
hand,
degree
if
rape charged
did
language
taken from our unanimous deci-
force,
requested
clude the use of
instruc-
294, 298,
sion of State v.
86 S.D.
properly granted.
tion on assault was
(1972).
248-49
O’Connor
Crofutt,
State v.
Barber,
itself cited verbatim from
(1955)
(observing
that as-
289, 292-93,
S.D.
871-72
rape)).
sault is not a
of the offense of
(1968),
a unanimous decision authored
cited,
approval,
We then
a number of
Judge Homeyer.
charged
Barber had been
succinctly
decisions from California which
with,
of,
guilty
statutory rape.
and found
methodology
stated the
apply-
we had been
alleged
Barber
the trial court’s re-
ing through
years
in our own Court to
grant
request
fusal to
his
that the
determine whether a defendant could be con-
instructed on the offense of assault and bat-
charged
victed of a lesser offense than
if the
tery.
upon
We were called
to consider SDC
defendant
an instruction on the
34.3669,
23A-26-8,1
precursor
to SDCL
charge.
We looked to California since
jury may
then recited that “[t]he
find
its statute on conviction of lesser offenses
offense,
guilty
any
defendant
the com-
was “identical with our
statute
essential
necessarily
mission of which is
included in
particulars[.]” Id. We said there that
Barber,
charged[.]”
that with which he is
necessarily
S.D. at
871. We there
the test of a
included offense is
held that
simply that where an offense cannot be
necessarily
1. The modern version of this statute recites- in
an offense
charged....”
included in the offense
may
"[a]
defendant
be found
SDCL 23A-26-8.
restated,
verbatim,
necessarily committing
the Barber
committed without
crimes,
offense,
necessarily
compared the elements of the two
latter is a
another
If,
and reaffirmed that “the two offenses are
in the
included
commission
offense.
Id.,
separate and
distinct crimes.”
S.D. at
by one
acts
unlawful
statute
made
Hence,
another,
these
N.W.2d at 249.
always violate
offender must
varying only
degree.
crimes
necessarily
in the
then
one offense is
forth in
can
held: “Under the test set
be said
other.
a lesser offense
Before
Barber, supra, we conclude that the
necessary part
misde-
greater
to constitute a
necessarily
meanor offense ...
ingredients
includ-
offense,
all
degree burglary[.]”
ed
offense of third
corpus
must be
delicti
elements
included in the
necessary
If
to estab-
an element
offense.
Alternatively,
reiterated a still
older
*4
corpus
delicti of the lesser offense
lish
required
holding that “the trial court is not
proof
of the
is irrelevant
to the
to instruct
even as
those offenses
offense,
be held
the lesser cannot
to be
might
which the
which
be included but
evi-
necessarily included offense.
(citing
dence would not warrant.”
State
Id.,
292-93,
591, 598,
Kapelino,
structions were
engaged in
of the ele-
an examination
again
The Barber
test was
cited in its
themselves.
ments
the crimes
entirety in the
special concurrence
Justice
Subsequent
in
statements
Barber of
Kafka,
to our
in
Zastrow
wherein
test,
upon
language,
its
we relied
previously
raised
issue
Kafka
the identical
including
above-emphasized language, in
its
in
resolved O’Connor. His
was resolved
opinion
by Judge
there,
authored
holding.
the unanimous
As
alternative
O’Connor’s
O’Connor,
86 S.D.
against
Wollman
Kafka was such that his
the evidence
alleged
case involved an
N.W.2d 246. That
degree
either to third
actions “amounted
court due to its failure to
burglary
error
the trial
no crime
or
constituted
what
give
jury requested
instructions on a
...
reasonable view the
soever.
Under no
third-degree burglary,
than
the [misde
would a conviction of
evidence
was
with which the defen-
which
the offense
meanor] offense ... have been warranted.”
(citations omitted).
charged.
grounds,
alternative
dant was
On
at 703
We found no
by
there was no error.
we determined
was
the refusal
occasioned
requested instruction be
the defendant’s
first
an earlier decision where-
We
recalled
required to in
trial court is not
“[a]
cause
the lesser
determined that
misdemean-
support
find no
struct on matters that
the instruction was
or offense for which
omitted).
(citations
O’Con
evidence^]” Id.
degrees
sought is
of the
“not one
the determination of
nor’s
test for
entirely indepen-
is an
burglary,
crime of
but
specifically
necessarily
was
included offense
dent crime.”
S.D.
not addressed.
Vierck,
(1909)
Zastrow,
specially
(holding
con-
Justice
120 N.W.
verbatim,
ap-
then
first
and
curred to
recite
independent,
that because the crimes
turn,
in was
ply, the O’Connor
separated
degree, rather than crimes
He elaborated
taken from Barber.
statutory
that a
convict on
requirement
and
test2
formulated
applicable)).
degree
was
legal prong outlined in Barber and
met the
applied
recited
issue
2. Justice
Barber’s
as
Zastrow
concluded,
O'Connor,
contrary
third
offense of
was a lesser included
Court,
subsequent
Kafka,
decisions of
at 705-06.
burglary.
O'Connor
Court,
misdemeanor offense
that the lesser
he determined that The crime of
falls within the
a factual test from which
giving
jury an
of crime known
homicide:
support
class
the facts did
the lesser misdemeanor of-
instruction of
killing
human
Homicide is the
of one
at 706. Much of
fense.
being by another.
It is either:
discussion, though
accepted
neither
nor
his
(1) Murder;
by Kafka,
adopted by
later
then
rejected
(2) Manslaughter;
Fosheim for this unanimous
Justice
Chief
(3)
homicide;
Excusable
Blakey,
Court
(4)
homicide;
Justifiable
or
(S.D.1983). A much abbreviated version of
(5)
recit-
Zastrow’s
discussion was
homicide.
Vehicular
Kafka
later, Waff, though
as stated earli-
ed still
Although
may
SDCL 22-16-1.
homicide
er,
applied. Although Bla-
it was not there
(2)
criminal,
22-16-1(1),
(5),
SDCL
& or non-
language upon
key contains the
which we
22-16-1(3)
criminal,
(4), only
&
two
today, it
resolve the issue
is instructive to
corpus
homicides have the same
delicti:
closely at
look more
Justice Zastrow’s discus-
person
No
can be convicted of murder or
sion,
often cited that discus-
as we have more
suicide,
aiding
or of
unless
sion.
person alleged
the death
to have
killed,
killing by
Justice Zastrow said there:
fact of
*5
the accused are each
inde-
established as
Before a lesser offense can be said to
pendent
beyond
facts
a reasonable doubt.
necessary part
greater
of a
constitute
added). Clearly,
(emphasis
22-16-2
offense,
legal ingredients
all the
the
of
complete legal
an
of this Court’s
corpus delicti
the lesser
must he
of
offense
legal
test leads to the
that “all
conclusion
the
greater
the
included in
elements
the
of
ingredients
corpus
of the
delicti of the lesser
necessary
If an element
to estab-
offense.
manslaughter]
offense
must
[of
corpus delicti of the lesser offense
lish the
greater
in the
[of
elements of the
proof
greater
to the
is irrelevant
(Zas
Kafka,
tion
means
weapon;
of the factual test.
of a
the facts
adequately
are
revealed
the settled record.
(4) Unnecessarily,
resisting
either while
Therefore,
remanding
rather than
this action
attempt by
person
to
killed
application
trial court for an
attempt
commit
or after such
aucrime
factual
we will look to the facts our-
shall have failed.
selves to
prong
resolve
factual
“lesser
again
included offense test.”4 We
We have reviewed the record and find
courts, however,
remind the trial
support
there is evidence to
request
properly
made
the first in-
However,
ed lesser offense instruction.
stance at trial and it is error for the trial
agree with the
conclusion of
refuse,
fail,
court
or
to
prongs
both
I,
in his writing
Henderson
in Black
of the test on the record.
rational
would have found the evidence
only
supported
offense which he was
order
meet
I,
convicted. Black
at is no
refusing
HENDERSON, J.,
There
error in
to
specially.
concurs
previously
belief,
This
deviating
writer has
stated his belief
from that
this writer con-
the better course of action is to remand this
case,
unique
cedes that under the
facts of this
duty
trial court so that it can fulfill its
to
record contains sufficient material to enable this
prongs
both the
and factual
perform
duty
Court to
properly
what is more
I,
"lesser included offense test.” Black
of the trial court.
(Miller, C.J.,
N.W.2d
dissenting).
at 386
While
SABERS, JJ.,
interpreta-
Miller. These
of Chief Justice
concur
WUEST
appear inconsistent with this court’s
tions
result.
Marshall,
in State v.
decision
AMUNDSON, J.,
in part
concurs
(S.D.1993), a 4-1
handed
one
decision
down
part.
dissents
Black
week after
I.
HENDERSON,
(specially concur-
Justice
AMUNDSON,
(concurring
Justice
ring).
dissenting in part).
I,
writing in
my concurring
Black
everything
majority
I concur with
(S.D.1993),
expressed
I
no
writing
analysis.
it
I
as
relates to
analysis
majority’s
on the
opinion
agree wholeheartedly
further
that “there is
Rather, I
affirm trial court
voted to
test.
support
to
evidence
lesser
the facts did not warrant
because
part company
offense instruction.”
I
with
noting “that both
offense instruction
majority,
jumps
when
into
argued
prosecutor and defense counsel
to
that the
would have
box
hold
to include the
factual basis of whether
only
to
Black
the offense
convicted
I
Black
included offense instruction.”
charged.
my previous
I base
dissent on
this
judge, al-
Additionally, the trial
at 384.
Therein, I
in Black I.
relied on
dissent
upon
though posturing his decision
Shaw,
(Colo.1982),
People v.
WUEST, (concurring in but then instruction tled to join majority opinion I cannot goes step finds as a fact that further and I rehear- variety of reasons. voted for When given opportunity to consider jury, if *8 my court reach ing, hope it was could instruction, have would lesser included I Apparently, case. consensus in this some first-degree murder. still convicted Black wrong. long and careful consider- After credibility of exist and If conflicts evidence ation, writing in my I vote still adhere to determined, which is needs witnesses my Black I. It is belief have reached testimony, it of Black’s the case here view just but the law utter confu- result left findings jury’s role to make is the sion—that unfortunate! Wooley, v. matters. State such (S.D.1990); Gallipo, State result). SABERS, Peck, (concurring in (S.D.1990); (S.D.1990). majority I to affirm based vote not, overwhelming or I, evidence is incorporate I here- Whether writing in Black which not the so, jury must whether or doing reject interpretation of decide I in. guilty beyond reasonable present writing defendant as set forth decisions judge doubt and neither a trial nor this court of determining its role the facts and assume such a should role. law those facts. United States v. Horse, (8th Cir.1986).
White
cannot nor will I the role of Therefore, juror in this case. I would
remand this ease back for retrial so that a
jury can manslaugh- consider the case with a Then, instruction. perform
ter can