State v. Burtzlaff

Dakota, Plaintiff STATE of South Appellee, BURTZLAFF, Defendant

Gloria Appellant.

No. 17718.

Supreme of South Dakota. Court

Argued Sept. 1992. Nov.

Decided Barnett, Gen., Atty.

Mark Sherri Sundem Gen., Pierre, Wald, plaintiff Atty. Asst. appellee. Morman, Smit, Michael W. Strain Strain, Haivala, Hughes, Molstad & Stur- appellant. gis, for defendant and HENDERSON, Justice. HISTORY/ISSUES PROCEDURAL Defendant, 11, 1991, April Gloria On Burtzlaff, for: I—First was indicted Count Design; Degree Murder—Premeditated alternative, and, II—First De- in the Count 19, 1991 and gree Manslaughter. On June 29, 1991, prelimi- the trial court heard June (1) concerning suppression of nary motions evidence, (2) to offer “other acts” intent (3) preclude testimony, motions limine victim, (4) psy- autopsy of the psychiatric regarding Burtzlaff’s chiatric shooting, at the time of the mental state (5) during voir prohibition of comments penalty. concerning the death dire August 20 Jury held from trial was re- through August I, guilty on Count a verdict of turned Degree Man- II—First guilty on Count but slaughter. 22, 1991.

Sentencing was held on October Burtzlaff to twen- The trial court sentenced (20)years Springfield at the Correctional ty pending appeal was denied. Facility. Bond THE b. DID TRIAL COURT CON- currently incarcerated TO RETREAT WHEN SIDER DUTY Springfield. THE IMPOSING SENTENCE? Entry of Sen- Conviction Notice X. DID THE TRIAL CONSID- COURT 1991. No- filed October tence was ER THE BATTERED SYN- WOMAN on October Appeal tice was filed A DROME AS MITIGATING CIR- WHEN CUMSTANCE SENTENCING following Burtzlaff raises the appeal, On AND DID THE IM- SENTENCE issues: POSED CONSTITUTE CRUEL AND I. DID THE SUFFI- EVIDENCE PUNISHMENT? UNUSUAL SUPPORT A VERDICT OF

CIENTLY XI. DID A BURTZLAFF RECEIVE MANSLAUGHTER? FAIR TRIAL? IN EX- DID THE ERR

II. COURT issue We address each seriatim. THE PSYCHOLOGICAL CLUDING OF THE DECEDENT? AUTOPSY FACTS BY THE ERR AL- April 5, 1991, DID COURT approximately III. On 10:30 THE TO p.m., phoned STATE USE Burtzlaff LOWING Gloria Lawrence County AFFAIR AS PRIOR Crotty Sheriff Charles and stated BURTZLAFF’S husband, Larry. just EVIDENCE? she shot her BAD ACTS had Deputies reported to Charles and Russell BY THE ERR NOT DID COURT IV. house, scene, and found the Burtzlaff’s EXPERTS TO TESTI- PERMITTING room, lying on living Mr. in the Burtzlaff A BAT- FY THAT BURTZLAFF WAS couch, knees, his face down TERED WOMAN? chest. dead. gaping hole in his He was TESTIMONY, DID THE DURING V. wearing wet Mrs. Burtzlaff stood outside EXAMINATION, CON- REBUTTAL clothing. HEARSAY? STITUTE PREJUDICIAL rights, Upon of her Miranda waiver DID THE TRIAL COURT ERR: VI. following: Larry reported the THE IN JURY a. INSTRUCTING physically late- had been drunk and abusive THE HAD THAT DEFENDANT TO (The autopsy night. ly, especially that BE IN IMMEDIATE DANGER IN to be showed alcohol content his blood TO SELF-DE- ALLEGE ORDER .358%.) they had from a After returned FENSE, AND THEN FAILING TO bar, according story, he to her local THE DEFENDANT’S PRO- GIVE fully dragged family hot tub her into the INSTRUCTION ON THE IS- POSED her the water under clothed and shoved SUE; AND so, her doing per When several times. IN ALLOWING AN ASSAULT b. facts, me say he “Tell version IN “USE OF FORCE” INSTRUCTION you “Do you me” and would ask love CASE A JUSTIFIABLE HOMICIDE pulled love said he then still me?” She THE BATTERED WOM- INVOLVING floor, tub, threw her on out AN SYNDROME? stated, go- her, I’m “You think kicked THE this, DID COURT PROPERLY VII. I’m ing you? like don't you to kill MOTION DENY BURTZLAFF’S FOR going to you right it’s not going tell now MISTRIAL? easy.” THE FAIL VIII. DID STATE TO room, Burtzlaff, According he left the A REASONABLE PROVE BEYOND re- whereupon she went downstairs THAT BURTZLAFF DID DOUBT him shotgun. found She turned with IN ACT SELF-DEFENSE? NOT in one sitting drink on the couch with a control in hand the television remote DID THE PROSECUTION ERR IX. a. go- announced, “Larry, I’m THE THAT the other. She BY ARGUING TO JURY if to glass his ing you.” to kill He lifted HAD A DUTY TO RE- BURTZLAFF (from said; TREAT; her, then fired AND toast she she guilty degree of first jury found Burtzlaff feet, according distance of six judge sentenced manslaughter; and the unarmed. testimony). The husband years, twenty not- Crotty, to confinement then went telephoned Sheriff She imprisonment. withstanding faced life Department the Sheriffs outside where the date that victim From found her. year affair with four learned of his wife’s DECISION him, only killed until co-worker sup- evidence to 1. There was sufficient days passed. two months and three manslaughter. degree port first degree charged with first She was later manslaugh element of The third alternative, degree first murder, in the perpetrator to be without requires the ter as claimed self-defense manslaughter. She 22-16-15(3). design effect death. SDCL a battered woman. telling the vic Burtzlaff admitted Because history of testimony alleged a Her trial tim, you,” to kill she “Larry, going I’m by her mental, and sexual abuse physical, design to ironically alleges that there was preceding husband, during the especially death, eliminating the third ele thus effect com- that this was asserted

week. She conviction. manslaughter a ment and Larry recent- that pounded by the fact However, shooting is not an admission to having colon cancer ly diagnosed as been killing confession to with an automatic ileos- permanent forced to wear and was Dokken, 385 design. v. premeditated State testimony, According her tomy bag. (S.D.1986). proves “While it N.W.2d 493 January supposedly escalated abuse trig pulled the that the defendant fact Larry his wife had been learned that when guilt in murder or not concede ger, it does co-work- four-year in a affair with involved degree manslaughter.” Id. at 505. first then The Burtzlaffs Roger er Schoon. Furthermore, discloses the record counseling. briefly sought marriage that she did Burtzlaff also testified that being drinking history of Despite his This, intentionally. not shoot her husband parent, testi- disciplinarian as a a strict testimony that she did her combined with could mony other than Gloria Burtzlaffs actually carrying the shot not remember history of violence. corroborate finder of fact with suffi gun, presented the testimony of three sons of the includes the design had no that Burtzlaff cient evidence testify that he saw a marriage; one death, thus will sustain to effect origin, on his mother. of unknown bruise (cid:127) manslaughter be degree conviction of first the reali- However, experts testified as to will doubt. This Court yond a reasonable syndrome and of battered woman ties evidence, the most favor accept possessed consis- the defendant symptoms fairly drawn that can be inferences able syndrome. At Burtzlaff tent with the therefrom, support the verdict. which will her threatened Larry repeatedly testified Lewandowski, N.W.2d v. State admitted, how- evening. Burtzlaff life that ever, shortly after Deputy Charles she told review, of this standard recall that she did not shot her husband she in the conflicts will not resolve her this Court had threatened whether her husband credibility the wit evidence, pass testified she shot night. life While nesses, These func weigh the evidence. life, or she also to save own husband province solely lie within tions not know how or when testified she did trier of fact. State jury as ultimate Deputy Sher- Larry kill her. When (S.D.1992); Wall, scene, 481 N.W.2d Burtzlaff at the iff Charles arrived (S.D. Huettl, my State repeatedly stated “I killed husband. by this 1985). established long It has been it, On my I killed husband.” can’t believe shall be set homicide, jury verdict Court that a following day reason and the where the evidence and a small aside examined a doctor from the evi drawn inferences to be upper able found on her chest bruise was theory rational dence do not sustain larger hip. on her arm and a bruise 344; 301; blatantly goes ultimate issue of the at Huettl at guilt. Lewandowski (S.D. Wedemann, defendant’s self-defense claim. 339 N.W.2d 112 1983). Our trial courts broad discre admissibility of regarding expert tion properly limited the 2. The trial court testimony. of that Absent abuse discre testimony. scope expert tion, the trial court’s decision will not be (Issues II and IV have been combined 291; 676; reversed. Hill at Werner expert testimony.) both concern because (S.D. Logue, 372 sought the trial court’s testimony of a present expert Dr. permission to Fairbairn and another autopsy permitted testify decedent also in court “psychological” were Although spouse syn had never inter jury. he the realities of battered about decedent, Dr. Richard nor met the drome. Both witnesses discussed the viewed prepared misconceptions, to “reconstruct” well truths as the Fairbairn was personality possessed, and behavior on con symptoms decedent’s Gloria Burtzlaff testify night syndrome. Though death and ex of his sistent hypotheticals perts testify self-defense. did on that cor defendant acted testimony related with Burtzlaff’s concern autopsies have been admit- Psychological actions, court not ing her husband’s the the victim’s state mind was ted where permit expert testify either to that Burtz- relevant, such as suicide victims {Jackson was, fact, suffering from battered laff State, (Fla.1989); Thomp- 719 v. 553 So.2d syndrome. woman (Tex.Ct. 951 v. 707 S.W.2d Mayes, son 1986)) argument, where the mur- App. self-defense the issue —Eastland State, perceived suicide v. herself to der defense was is whether Burtzlaff {Bartram (1976)). danger. Md.App. A.2d in imminent 22-16-35. be SDCL Though these mental evaluations have been the trial court erred Burtzlaff maintains purposes, for Fairbairn admit- imminent perceive used other because battered women danger differently average per- of a decedent’s than ted the reconstruction the Thus, not common in the field of Burtzlaff to the personality was son. desires tell to jury, might danger “It not be imminent psychiatry. to it be a battered woman you but would 19-15-2, expert may an Under SDCL is such woman.” and Gloria Burtzlaff knowledge testify specialized to on allowed expert testify was to that Burtzlaff For determining a the which will assist goes the heart of the a battered woman to permit- Although fact in the court issue. above, expert As stated ultimate issue. testify Dr. to about Burtz- ted Fairbairn province jury. of the must not invade the night mind the laff’s state of on the shooting Thus, purported the victim’s that the trial court did violent we find tendencies, testify limiting scope as the he was allowed its abuse discretion psychological expert testimony. to the victim’s behavior and specific night death. status the his evi- The did not introduce State Thus, the did not its discretion court abuse However, when prior bad acts. dence of expert opinion concerning the by refusing concerning opened up evidence Burtzlaff mental state. decedent’s affair, the State had her extra-marital right cross-examine. must not invade Werner, a motion The State submitted province jury. State (S.D.1992); Hill, affair as use Burtzlaff’s extra-marital N.W.2d 286 State prior bad acts motive Fairbairn’s testi granted the Although neces the court mony that Burtzlaff’s actions were murder. motion, never mentioned the af sary and reasonable substanti State Instead, during version of the victim’s ac fair its case-in-chief. ate Burtzlaff’s night enlightened killing. tions on the defense that first Overruled. de- Court: improprieties. Several jurors to witnesses, including her- fense Q. ahead. Go affair and thus self, to the testified Okay. It was told that the A. of evi- The admission “opened the door.” phone that Gloria that answered such evidence prejudicial when dence is not gone Roger had out to Gloria’s by defendant. State is conceded during in the hot their house to sit tub (S.D.1992); Brown, Larry on hour. When she told lunch (Iowa Leonard, 243 N.W.2d 887 “I ask phone, Larry just said didn’t granted a Thus, not be the defendant will he he was or what you where failed trial upon her own based reversal me talk to someone doing. Now let strategy. employ- and he asked for another else” ee. permit any did not trial court 4. The Q. he concerned at all about Did seem hearsay. prejudicial message? combined (Issues VII have been V & No, A. he didn’t. admissibility of concern because both inspection, judge as the trial Upon initial hearsay testimony.) alleged indicates, testimony appears hear- to be her husband was testified that statement, than Hearsay is a other say. Expert marriage. wit- insecure about testifying while made the declarant one typically testified that batterers nesses prove the truth of offered spouse keeping the prone to jealous and Howev- SDCL 19-16-1. matter asserted. testi- During rebuttal under surveillance. er, question does answer the statement Mercer called Sharon mony, Larry Burtzlaff why Mercer did not view Larry Burtzlaff had dispute inferences jealous as a man. these characteristics. “hot- this Burtzlaff asserts examination, per- court the direct prejudi “clearly unduly tubbing” remark is testimony: following mitted the highlight the af only to cial” and serves Larry appear you Q. Did that she testified discloses fair. Evidence person person jealous or a suspicious occurred with one Schoon that her liaisons to Gloria while it came when error day. Prejudicial middle of the there? worked must have probability in all is error which A. No. upon jury’s ver some effect produced Q. you think that? What made rights to the substantial dict and is harmful Larry and case when A. There was one v. Phil party assigning it. State employees myself and several other 613, (S.D.1992); 617 State 489 lips, N.W.2d Moines, Iowa to go to Des had to down (S.D. 815, Michalek, 818 407 N.W.2d v. During headquarters. corporate Des from Larry time called back office the Whitewood Moines to However, fact that Burtzlaff Roger on speak had asked already indiscretions was committed answered the person phone. proceedings. in these knowledge common accounting to the phone called over cumula phone call were The details of the there that office and the to deem If this Court were evidence. tive said that ... worked with Gloria inadmissible, it would the statement hearsay this is Hughes: Mr. Your Honor inadmis error. “Where only find harmless three times removed. about cumula at trial is admitted sible admissible evidence It to be. and other The Court: seems tive result, evi the cumulative supports the Honor, not I’m Bloomberg: Mr. Your inadmissable, non-prejudi dence, though prove the truth going to offer it to Brown, 480 N.W.2d cial.” State going to It’s the matter asserted. Tribitt, 327 (S.D.1992); con- 764 of this show what the affect [sic] (S.D.1982). 135 N.W.2d Larry. versation had Jury has discretion in instructions are be con broad This Court decision of the whole. mistrial. The sidered as a O’Connor at 256. If granting a be disturbed absent a they correctly court lower will state the law and inform the discretion and an actual abuse of clear jury, instructions sufficient. showing Bogenreif, prejudice. at 256. Burtzlaff O’Connor claims that (S.D.1991); 777, 783 State v. N.W.2d the instruction was error it did because McDowell, 661, 666 not consider the effect of battered woman tubbing” testimony, During there the “hot syndrome under circumstances. We by specta apparently some reaction (not strongly disagree. # Instruction evinced the follow tors the trial. to) objected jury told the to view the evi by the court: ing admonition trial eyes through dence of a reasonable guess one comment to make as I have prudent woman. Instruction # 17 is concerned. This is far as the audience properly jury informed that the burden jury consider jury is to trial. proving that Burtzlaff did not act in self- here, upon received case based what’s upon prove defense rests the State to be any any- comment from upon not based Solem, yond a reasonable doubt. Satter So, you cert, I remind in the audience. one (S.D.1988), de you if have reaction to spectators that nied, U.S. S.Ct. testimony, keep your reaction to L.Ed.2d 989 yourself ... Furthermore, as Burtzlaff concedes by the court These comments trial were brief, concerning the instruction use of jury. presence made outside correctly states 22- force the law. SDCL error in prejudicial Because find we 16-35, Though she finds in- 22-18-4. testimony or abuse discretion unnecessary, she clusion of this standard judge, will disturb lower trial we specifically objected applying to # 17 for ruling which denied the mistrial. court’s this standard. Because the instructions as law, correctly 5. There were no instruction er- we find no a whole state rors. error these instructions. specifically objected to

At 6. The was instructed that there 7, 10, 17, retreat, # # and pro- # and to and the duty Instructions was no State During argument posed two instructions. doubt proved beyond reasonable court, counsel to the trial defense made did not act in self-defense. Burtzlaff 21, objec- # reference to Instruction but (Issues and combined VIII IXa have been tion to it or other instruction was made concern elements of self- because both 10, 7, than # # and # 17. court other defense.) objections proposed in- denied and the special excep- The defense took structions. raises the affir a defendant When ruling objection. to on the self-defense, tion of incum mative defense beyond prove the State upon bent to Now, that jury Burtzlaff contends killing doubt that the was with reasonable through # 17 # 21 were in er instructions authority out of law. Francis Frank they were not tailored to a ror because 1971, 314, 1965, lin, 307, 471 105 S.Ct. U.S. self-defense. Of this woman battered (1985); 353 State v. Wil L.Ed.2d instructions, only # 17 group of was chal cox, 204 N.W. S.D. object to lenged at Failure to an trial. in properly stated This burden was preserve trial will not instruction at jury # in 17. The was also Instruction Holloway, appeal. error State Instruction structed as self-defense. (S.D.1992); 306, 309 State v. N.W.2d provided part: # 21 (S.D.1985); O’Connor, N.W.2d person A who has attacked and who West, been 344 N.W.2d 502 State exercising Therefore, through right her of lawful self- # 18 # 21 Instructions required retreat, appellate Only defense is not and subject not review. only may ground her # 17 will be considered. she not stand and instruction assault, justified using a is not she the attack but against defend herself weapon in self-defense. deadly until she may pursue her assailant also danger if that from has secured herself against defends herself person A who her, appear and would appears course stop the use of unlawful attack must same situa- person to a reasonable danger attack has as soon as of force apparently tion, and reasonably to be appear to a reason- ended. If it would right even is her necessary; and this position person the same able easily have though might more she danger, there no further then there is withdrawing from the safety by gained further force. should be no scene. in the midst not a situation where This was did not that the State contends Burtzlaff attack, weapon she reached for of disproving self-defense. meet its burden alleged attack at defended herself. argued that the State also claims upon husband wife had the hot tub duty retreat had a implied that she or retreated to another ended. The husband herself. than defend from her home rather couch and part the house to sit on the references to made several The State television, and the wife went down- watch attack, left the fact that after shotgun. get the She was stairs to rooms, room, through other hot tub went trapped inside the she pursued nor was downstairs, upstairs and returned went Instead, upstairs returned house. ignoring through rooms while passed other It is fatally her husband. obvious shot shooting from the house before three exits accept the self-defense notion that Despite the the victim. claim of Burtzlaff. “duty to re- planting seeds state of North note that sister We the court jurors, in minds of the treat” existence of a has held that the jury that she properly instructed the in a syndrome may exist woman Instruction ground. her right to stand not, itself, marriage this does estab- but to) (not provided: objected #21 kill the legal right of a wife to lish the attacked person A who has been Rather, must still the evidence husband. right of lawful self- exercising who context of self-de- be considered retreat, and required to defense is not Leidholm, 334 fense. ground only may stand she not must (N.D.1983). A defendant’s evidence against but the attack defend herself in the minds to create or leave be sufficient until she pursue her assailant may also doubt as to wheth- a reasonable danger if that herself from has secured taking the justified in victim’s er she was her, appear appears to course life. situa- the same to a reasonable apparently tion, reasonably and to be jury the that Glo- Provided that believed right even necessary; and this is psy- physically and ria Burtzlaff had been easily have might more though she peri- chologically abused over an extended withdrawing from the safety by gained by dominance of her hus- od of time the scene. i.e., band, spouse, question the a battered made an assault is with Where this: would a reasonable comes down to with such force hands and fists but the prudent and battered woman have believed pro- likely is in manner as and such injury immi- bodily or death was serious bodily injury, person at- great duce jury The received instructions nent? lawfully resist the attack may tacked in # 18 and question Instructions reasonably and force is whatever Jury the trial court’s 19. We set forth necessary. apparently in toto. # # 18 and # 19 Instruction hands or the fists or If an assault with great likely produce means not by NO. 17 INSTRUCTION person, being made on a bodily injury is A commit- justifiable not de- homicide is when attacked is if the one thus and by any person resisting an ted when character of such as to the ceived (sic) sees, person bodily would that serious ar believe attempt to murder such person by any injury immediately in or death result committed would when person, of his aggressor of such or lawful defense if the were not killed. wife, child, husband, parent, mas- or In the case wherein “Battered ter, mistress, when there is or servant raised, Syndrome” you if Woman and design apprehend a ground reasonable find Defendant is a fact that battered great do felony, a or to some to commit woman, you at the are to look evidence danger of imminent personal injury; and eyes of presented through the a reason- accomplished. design being such prudent and woman. If a able however, defendant, must have The and prudent reasonable battered woman and con- upon acted an honest reasonable bodily injury would have believed serious good a faith necessity be- viction imminent, killing then or death intended to kill or lief that decedent But, you if find a was lawful. rea- injure hav- seriously him. defendant prudent sonable battered woman appre- and reasonable ing such honest bodily not have believed serious danger to de- may hension of such act imminent, killing then injury or death himself in such manner and with fend unlawful. may to him reason- such means as seem circum- ably necessary in view INSTRUCTION NO. 19 degree of force The kind and stances. syndrome a in de- battered woman person may lawfully use which by limited what a series common characteristics fense of himself is may appear who are person in the same situation women abused reasonable person, seeing physically psychologically what he sees and over an as such knows, knowing period by the what he then would be- extended of time dominant necessary. Any force figure to be use of their lives. lieve male by beyond regarded the law that is evidence; Here, heard all of Although may be- excessive. upon the and the instruc- decided evidence act, acting, may lieve that he is justified in tions that Burtzlaff was himself, justified he is not defense taking the life of her husband. degree using clearly of force in excess supplied supporting The State evidence apparently reasonably neces- of that Burtzlaff retreated from its burden: existing circum- sary under the facts and area, kill her hus- then returned hot tub raised as When self-defense is stances. Burtzlaff, during testified that band. same, showing issue her, kill going to but she the victim was produced by or defendant whether or where. not know when state, proving burden not act self-defense defendant did in properly Where the upon prove beyond rests the state so of self-defense structed on elements reasonable doubt. of proof, we and the State meets its burden jury’s to the verdict and affirm defer will

INSTRUCTION NO. the conviction. Satter circumstances, certain law- Under

ful to take the life of another. One who clearly with- 7. s sentence was may acting in the life self-defense take statutory limits. in aggressor aggressor poses a of an if the (Issues have been IXb and X combined bodily injury or serious risk of serious sentencing.) because both concern bodily injury The risk of serious death. sentence, reviewing a we imminent, When is it or death must be court must consid have held the lower pru- must be such that a reasonable alia, er, unique circumstances of standing in the inter dent shoes Lohnes, Defendant, 77 knowing the case. what the Defendant State v. (S.D.1988). seeing According Defendant sentence knows and what the MILLER, (concurring spe- Justice Chief judge did so transcript, the trial hearing cially). woman the battered considered and also unique case in the is a This syndrome. 7, Burtzlaff’s upholding in Issue history. judicial Dakota history of South sentence, majority holds: twenty-year judge stated: sentencing, trial

At the sentence) (the 20-year does has every letter that read I have ... reason men of conscience of shock the I read your on behalf. written been so disproportionate is not generally and I have lis- report. presentence entire tests of proportionality as to activate your sons twice testimony of tened to the 277, Helm, 103 S.Ct. 463 U.S. Solem reading the But after now ... (1983); v. Bad 3001, 77 L.Ed.2d I con- syndrome, was woman on battered (S.D. 715, Bull, 257 N.W.2d Heart supplement the that I needed vinced 1977). you to in order for law South that, at least compelled I feel to observe be a fair trial. I felt would have what authority, binding federal decisional within manslaughter convic degree first With a proportionality Eighth Amendment subject to a sentence tion, Burtzlaff was exist outside continues to guarantee Instead, received a prison. life in pen- jurisprudence unless the penalty death clearly with which is twenty-year sentence disproportionate to alty imposed grossly 22-6-1(3). This statutory limits. SDCL Michigan, 501 the crime. Harmelin of men of the conscience does not shock U.S.-, L.Ed.2d 836 111 S.Ct. disproportion generally and is reason proportionality as to activate ate so Helm, 463 U.S. join his although tests Solem I do not Additionally, (1983); State v. 77 L.Ed.2d 637 dissent, S.Ct. Wuest that agree I Justice (S.D. Bull, 257 N.W.2d Bad Heart for us to consider has come the time now 1977). Despite Rule 704. adoption of Federal I seen no topic, reading on much consider judge the trial We find that retaining argument for logical persuasive, and did not of this case unique factors issue rule. current ultimate sentencing within his discretion abuse statutory punishment. State maximum Bonrud, part WUEST, (concurring Justice dissenting part). trial. received a fair long list of received a written his usual

This Court Henderson has Justice prevented opinion.1 Burtzlaff claims dissent majority errors that excellent here receiving trial. As stated from a fair only one issue. therefrom or abuse of in, errors we find no such of fact that is an issue An ultimate issue many stated times It has been discretion. decide, as whether “such must not enti many The accused is by courts: culpable state of possessed the defendant one. only a fair perfect tled to a charged is an element mind that (S.D. Solem, 447 N.W.2d 646 McDowell v. prevents issue rule’ The ‘ultimate offense. 1989). opinion on expressing an from a witness trial court stands judgment of the to be decided ultimate issues one of the affirmed. on Evidence McCormick trier of fact.” (3rd ed. at 30-32 § AMUNDSON, JJ., concur. SABERS issue the ultimate Dakota retains South MILLER, C.J., specially. concurs Doctrine”) and (as Fact the “Ultimate rule to ex expert witness permit an does not WUEST, J:, part and dissents concurs issue, ultimate opinion upon the press an part. writings. and often colorful his excellent for is the senior mem- Frank Henderson 1. Justice recognized nationally court and is ber of this

H Owen, 444 N.W.2d at 715. So it serve it.” holding jury. usurps of the province 286, (S.D. failure to the “Ulti- abandon Werner, State v. with 482 N.W.2d 674, 1992); Hill, N.W.2d adopt State v. and mate Fact Doctrine” version (S.D.1990). Dakota Although South Federal Rule 704. adopted the Federal of Evidence Rules only Dakota is the state The fact South 704, per they existed Rule which refusing adopt a version of the rule opinions, specifically exclud mits such something. teach us The rule does should only ed. Dakota is the state that “South practice: it is difficult to distin- work adopt any declined to version of Rule guish ultimate between and non-ultimate Stephen Gregory Joseph P. & A. 704[.]” facts; try- it causes needless confusion in Salzburg, In The Feder Evidence America: fact; ing separate matters of law and States, al Rules In The ch. great difficulty express- may witness have opinion decided in an Logue When ing opinion using an without ultimate writer, we followed authored fact; simply ignored rule is often Jenkins, (S.D.1977), and practice; finally, an cannot and rejec- into consideration this State’s took usurp province of the because the to the ultimate tion of rule 704 and adhered expert. always ignore free Logue, issue rule. 372 N.W.2d 151 All modern authorities criticize the rule (S.D.1985). Logue, authority In cited we prohibiting opinions on ultimate issues as criticizing the ultimate issue rule but did discussing logic In being archaic. of a may modified it not overrule it. We have “usurping witness the functions of the so; expressly saying in Bachman without jury” Wigmore phrase states: “the is so permits psychiatric opinions South unsound, misleading, as as so that it well mental illness is in criminal cases where entirely repudiated. should be It is a mere Bachman, 446

pled as a defense. State v. empty Henry Wig- bit of rhetoric.” 7 John Generally, N.W.2d more, (Chad- Wigmore On Evidence 1920 § however, have continued to follow the we 1978). rev. McCormickdiscusses the bourn rule. applying rule: problems inherent my opinion, In should we abolish concerning change viewpoint ‘ulti- adopt issue rule Federal Rule ultimate opinion from the fact mate fact’ resulted something 704 or similar. realize the excluding opinion of ulti- that the rule committee modified the Federal Rules who restrictive, unduly mate facts otherwise, adoption by this felt Court applica- possible questions close many years passed, the law but fourteen unfairly tion. The rule can often ob- grows, changes hopefully we all be- case, party’s of a presentation struct the Adoption come wiser. of the rule should nothing illogic of the notion say only place take after notice to the members usurp the opinions on ultimate facts of the State Bar for their comments and jurisdictions in jury. In function input. retained, prohibitive rule is which the Owen, In Chief Justice Miller advocated confusing ques- difficult and there [are] “archaic,” abandoning an rule “obsolete” opinion an ul- tions whether an concerns ages” “adopting “out of the middle timate fact. approach which best suits modern times.” (4th Evidence, 12, 48-49 1 McCormickOn § Owen, 714-17 Owen v. advantages Discussing the ed. (S.D.1989) (Miller, J., concurring specially Rule Weinstein states: of the lex loci to advocate abandonment quibbles meaning It eliminates over rule to determine conflict of delicti laws fact, the distinction be- of ultimate questions).2 In the of Chief Justice words Abolition underlying tween fact law. Miller: “The rationales for the endors- rule, spectacle of courts put practice, simply into rule ends when - advanced, ing principle they cite as a pre- thus there is no reason to which time, 2. At that he was an Associate Justice of this court. exception. to and

precursor applying It rassing decisions in our inconsistencies for,the clarify means stops to indirect to the the resort Bar. law jury’s matter bring prohibited changing the South Having advocated attention, it importantly, most allows issue, I now Dakota rule the ultimate of to receive the full benefit jury proposed testimony Doctor claim the of judgment. witness’ as Fairbairn and Carol Maicki to whether was, fact, suffering Defendant Margaret Berger, A. 3 Jack B. Weinstein & spouse not syndrome from battered ¶ Evidence, (1992). Weinstein’s 704[02] question on the issue. The ulti- ultimate Larson, Dakota’s Professor John South Burtzlaff, mate without issue was whether evidence, outstanding authority on has own self-defense, guilty of justification rejection Rule 704: criticized our of against charges one the criminal of of Supreme Court South was a battered her—not whether she the first three sections adopted verbatim suffer- spouse. Burtzlaff could have been through thereby ... 703 ... further guilty ing syndrome still from the been philosophy of supporting the overall lib- manslaughter. spouse of A does broadening eralizing and the common possess not kill the license to batterer —I evidentiary law rules in of the ad- favor anyone or she don’t know who claims he missibility Unfortunately, of evidence. it spouse diagnosis does. The of battered rejected the of the more modern balance syndrome jury a fact consider is prac- existing article federal in favor along with other evidence the case—it is tice rejection of FRE 704 has ... not the ultimate issue. confusion resulted irreconcilable time_ testimony explaining While decisions since that South Da- syndrome has Dako- been allowed South kota would do to avoid further con- well courts, diagnosis ta the actual by adopting on this FRE fusion issue syndrome has defendant suffered from 704, thereby placing ultimate issue testi- left to the to decide. We have been in this in the mony state mainstream of competent intelligent jurors in thought subject. on this At modern they not state but trained make present, subject the treatment of the diagnoses physical clinical mental and totally inconsistent. symptoms. diagnosis “beyond Such a Larson, Evidence, John W. South Dakota knowledge aver- experience 700.1, (1991). §§ 704.1[3] Werner, age layperson.” 482 N.W.2d at Adams, Dean of Judge James former 291; Hill, long at 677. As as Law, University of South Dakota School of expert opinion go does so far adoption recommended of FRE 704 comment on the mental state of the defen- just year one failed include after we it act, time should dant at the newly adopted evidence rules permitted. expert’s testimony An that a based on the federal code.3 Christine Hut- suffering defendant from battered ton, University a Professor Law at the spouse syndrome prov- does invade Dakota, pointed South out this court’s the jury ince of the where is not rulings on often reach ultimate evidence competent to make that decision. contradictory results and cannot be recon- Historically, unprotect- women been ciled.4 ed from laws custom. violence strongly urge provides adoption of Rule 704 and Even the Bible that a husband abandonment of his wife. Genesis our obsolete “Ultimate shall have dominion over law, English Fact Doctrine.” a woman simplify It would hard 3:16. At common judges, property rights. work of trial remove the She had: embar- few Adams, Hutton, Mary Logue: 3. James R. South Christine Ulti- Dakota Evidence Testimony (1979). mate in the A State Step?, Issue Absence Code ...A Giant 24 S.D.L.Rev. 1 Equivalent S.D.L.Rev. to Federal Rule protection sued, equity for redress and that and was right sue or be to] [No appeal her legal entity with her husband has to his name single a considered husband, is, During property. his alone[.]” accepted time, beating was an wife this Hoekstra, 78 98 N.W.2d at 675- S.D. common law practice. Consider Dakota, 76, (quoting ch. Territorial Laws England, in which “Rule Thumb” (1887); Dakota, Compiled Laws § to his man allowed beat wife was Code, (1887)). The current Civil § “no than his a thicker thumb.” rod chapter of this state contain an entire laws moderate at the This rule was considered protection from domestic abuse. SDCL imposed restrictions on time because longer 25-10. ch. Women consid- do in his own home. what a man could the chattel or servants of their hus- ered Note, Step Hannel, a Joy Missouri Takes persons to equal but entitled bands Spouse “Battered The Status Forward: protection and benefit law. Missouri, 56 Mo.L.Rev. Syndrome” requires per- a law South recognized infe- This court perceive reasonably to himself or her- son occupied had in the law position rior women danger self to be imminent before act when it stated: is considered self-defense. SDCL 22-16- law, By primitive member here 35. The ultimate issue was by harmed an un- family deemed to be spouse awas whether justifiable family relations disturbance of guilty whether she of murder or but family head. omit- was the [Citations manslaughter justification of without the primitive this and Black- ted.] Dr. Fairbairn should have self-defense. regard- law the wife was stone’s common diagnoses of give to his been able chattel, servant, or a who owed ed as should spouse. as a battered Carol Maicki master, husband, service to her her her to testify as her belief have been allowed to injuries any and she could not sue spouse. The Burtzlaff was a battered her, as sustained an individual^] testimony. ignore their jury was free 82, 85, 98 Helgeland, 78 S.D. Hoekstra v. experts, it Even if the believed (1959) (recognizing a 670-71 if it found might convicted Burtzlaff have right recovery for of consor- wife’s loss reasonably perceive herself to did not she husband). injury her For too tium for danger at the moment she imminent long, violence was considered domestic acted. family law enforcement and matter where Expert testimony courts no business.5 the Defendant syn- diagnosed suffering as from changed Fortunately, society has its fully necessary for the drome was legislature primitive In attitude. spouse defense. In consider the battered Territory recognized women as of Dakota my opinion, judge trial erred in sustain- separate legal persons: expert’s objections to the ing the state’s passage of “From and after the testimony or not Defendant as to whether act, legal women shall retain same Therefore, spouse. I would was a battered legal personality after existence and issue. reverse on this marriage, marriage as and shall before her protection of all receive the same woman,

rights which husband as man; any injury and for sus-

does person, proper- reputation,

tained to right,

ty, character or natural appeal in her right

shall the same or name alone to the courts law

own Home, Walker, Why Against in Private Violence Terrifying Women in the Love: Battered 5. L. Policy: Society Responds Needs Of Battered Wom- Public Kill and How 236-37 Women (1989); Browne, Response Of The Public Services Kill en And The A. When Battered Women (J. (1987); Fargher, Response Pahl ed. Police to Violence 110-124

Case Details

Case Name: State v. Burtzlaff

Court Name: South Dakota Supreme Court

Date Published: Nov 25, 1992

Citation: 493 N.W.2d 1

Docket Number: 17718

Court Abbreviation: S.D.