State v. ClothierState v. Clothier
This is аn appeal from a judgment of conviction following a guilty verdict of first-degree manslaughter. We affirm.
On Friday evening, November 16, 1984, Mike Hawkins (Hawkins) and Muriel Rig-gins (Riggins) met with Cheryl Jackson (Jackson) at the Playgirl Retreat Club in Rapid City, South Dakota. Jackson was forced to close the club and the two were helping her dismantle its stage. Hawkins and Riggins had been drinking beer and smoking marijuana before their arrival at the club, and the threesome had a few beers while there. After approximately an hour, they decided to visit a friend at the Gold Dust Bar in Lead, South Dakota. During the trip to Lead, Hawkins and Rig-gins shared another marijuana cigarette and each of the three drank another beer. They arrived at the Gold Dust Bar at ap *255 proximately 10:00 p.m., and after a round of drinks, Riggins left to sleep in their Jeep, while Hawkins and Jackson remained at thе bar until closing time.
The three started on the trip back to Rapid City at closing time, via Highway 385 and Sheridan Lake Road. While en route, however, they decided to stop at the trailer home of Share and Guy Clothier (appellant), to get money for a water pump Hawkins had sold to appellant. At trial, Riggins testified that they also went to the trailer to warn the Clothiers to stay out of their lives, as Riggins believed that Share Clothier had informed local authorities that Riggins was involved in prostitution and that Hawkins was dealing drugs.
They arrived at appellant’s trailer at approximately 2:00 a.m. Hawkins and Rig-gins knocked on the door while Jackson slept in the Jeep. Jim Richards, appellant’s brother-in-law, answered and informed the two that appellant and Share Clothier were asleep in the back bedroom. Hawkins and Riggins entered and woke the Clothiers, who came out into the living room. Appellant told Hawkins that he did not have the money owed for the water pump, at which time Riggins confronted Share Clothier with having informed the police that Rig-gins was a prostitute and Hawkins a drug dealer. A heated argument ensued and, after several minutes, Hawkins and Rig-gins returned to the Jeep. Riggins was seated in the center of the front seat with Jackson on her right and Hawkins behind the wheel.
Apparently, Hawkins intended to reclaim the water pump from appellant’s pickup. Upon discovering that he did not have the tools needed, however, he decided to push the pickup into a nearby creek with the Jeep. Appellant had followed the two out of the trailer, carrying a .25 caliber pistol, which reportedly prompted Hawkins to remark “if you want to pop caps, we can pop caps too.” Appellant returned to the trailer, claiming that Hawkins had tried to run over him. Shortly thereafter, appellant heard a crashing sound and, through the bedroom window, he saw his pickup being pushed across a field by the Jeep.
Appellant ran from the trailer and reached the Jeep as Hawkins was pushing the pickup into the creek. Shоrtly thereafter, the pistol appellant was carrying discharged, striking Hawkins in the left temple, killing him instantly. While the facts are inconclusive as to whether the gun was fired deliberately, appellant claims that as he approached the driver’s door, Hawkins tried to open it into him, and the gun discharged accidently when appellant’s arm hit the door jam as he attempted to strike Hawkins with the gun handle. Both Rig-gins and Jackson testified, however, that neither of them saw any arm movements or heard anything hit the Jeep when the gun fired. Furthermore, appellant testified that, before leaving the trailer, he cocked the gun when he pulled the action back to determine that it was loaded.
Riggins testified that after the gun fired killing Hawkins, appellant stated “that’s what he gets for messing with my truck.” Riggins also testified that Share Clothier began pulling Jaсkson from the Jeep screaming, “take these dumb bitches up on the hill and slit their throats. I don’t need no witnesses.” This statement was further substantiated at trial by Jackson.
Appellant and Share Clothier took Jackson and Riggins into the trailer and discussed the incident. While Riggins and Jackson remained in the trailer with Jim Richards, appellant and Share Clothier went to the woods and disposed of Haw-kin’s body, the gun, and the bloody clothing. Thеy returned to the trailer and a plan was devised to explain Hawkin’s disappearance. Thereafter, Jackson and Rig-gins were driven to Jackson’s home in Rapid City and the Clothiers fled to Sheridan, Wyoming, where they were apprehended.
Appellant was tried before a jury and convicted of first-degree manslaughter. He was sentenced to forty-five years in the South Dakota State Penitentiary and he appeals.
Prior to trial, the trial court granted appellant’s motion in limine prohibiting the
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State from introducing Share Clothier’s statement that appellant should take Rig-gins and Jackson “up on the hill and slit their throats.” In compliance with
[I]n granting this motion, I want to warn you that if the issue is broached by you by attacking the credibility of the witnesses to the extent that they were attacked at the Preliminary Hearing, to the effect that they had no cause to be afraid, that their actions are not explainable or their credibility is somehow impaired because they weren’t in fact in danger, I want to warn you that if you bring thаt — take that attack, or take that position, you may very well be opening up those remarks and those prior bad acts to show and to explain why those witnesses acted the way they did act after the shooting.
After defense counsel’s cross-examination of Jackson, the State moved the court to reconsider its earlier ruling on Share Clothier’s statement, contending that defense counsel presented a scenario to the jury which intimated that Jackson and Rig-gins had no reason to be afraid after the shooting. The trial court agreed and admitted the statement, holding that appellant’s cross-examination of Jackson opened up the issue “sufficiently to bring that statement in to balance the scales toward relevancy and against prejudice.” The trial court determined that Shаre Clothier’s statement was admissible as either a contemporaneous statement or condition under
Appellant contends that the statement in issue was not admissible under the excited utterance exception to the rule against hearsay,
Rule 803(2) is in accord with Wigmore in not requiring that the statement elucidate or explain the occurence, a condition which was incorporated in thе Model Code and perhaps the Uniform Rules. Use of the word “relating” in the federal rule does limit the subject matter of the statement to some degree. The fact that a matter wholly unrelated to the event in question springs to mind through free association does not make the statement about the thought admissible.... If the subject matter of the statement is such as would likely be evoked by the event, the statement should be admitted. This determination cannot be made mechanically without assessing the facts of the particular case.
A review of the facts surrounding this tragic incident show that Share Clothier’s statement to the effect that appellant should kill Riggins and Jackson and thereby prevent them from testifying to the shooting was not a statement “wholly unrelated” to the incident, which sprang to mind through “free association.” Indeed, the contents of the declaration demonstrate its relation to the shooting, as it manifests Share Clothier’s thoughts of self-preservation immediately after she realized what had occurred. As stated in 22A C.J.S. Criminal Law § 662(5) p. 673:
[A]n act done or a declaration made after the happening of the principal fact may be admissible as part of the res gestae where it is ... so intimately interwoven with the principаl fact by the surrounding circumstances as to warrant the conclusion that it was made or done under the immediate influence of the principal *257 transaction or event and is the spontaneous utterance or expression of thoughts created by, and springing out of, the transaction itself. Subsequent conduct and statements are admissible as part of the res gestae where they follow at oncе after the principal event and serve to characterize it[.]
While we acknowledge that such assessments are to be made on a ease-by-case basis, we believe that the statement in issue, when viewed in the context of the surrounding circumstances, was related to the principal event, namely, the death of Michael Hawkins. Moreover, the trial court allowed the admission of this statement after defense counsel, despite the court’s warning, put the credibility of Rig-gins and Jackson into question by intimating that the two girls were on friendly terms with the Clothiers after the shooting incident. The record shows that Share Clothier was screaming when she made the statement and it appears that she was extremely agitated by the incident. Consequently, the two remaining requirements of the statute are satisfied; that is, that there be a startling event and that the declarant was under the stress of said event when the statement was made. Thus, we conclude that the declaration was admissible under
Appellant’s next contention is that Share Clothier’s statement was inadmissible under
[The issue] was raised yesterday with Murial Riggins, and I felt it was close at that time, but I didn’t feel the issue had been sufficiently brought up by defense counsel. But today the cross-examination opened up that issue, I think, sufficiently to bring that statement in to balance the scales toward relevancy and against prejudice. Counsel asked the witness if she was sure that it was Share Dunn Clothier and not Mr. Richards that opened the door. One of the ways thаt she could know that it was Share Clothier that was there by her door was the fact that she heard her make this remark. There was an examination of this witness concerning her fear and offering money as a result of her fear, and the Court feels that to leave out that remark and have the jury get the impression that her fear was generated only from the shooting incident and not the remark, to me, takes awаy a very essential and integral part of what happened at that moment.
The admission of this statement was within the sound discretion of the trial court and we will not disturb the court’s decision therein unless we are convinced that such discretion was clearly abused.
State v. Bult,
Prior to the trial, the State indicаted it was not asking for the death penalty. As a result, the trial court advised counsel in chambers that it would not discuss the death penalty with the prospective jurors, unless one of them asked about it. During voir dire, one of them expressed concerns
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about punishment. The trial court responded by informing the prospective jurors that this was not a death penalty case and that punishment was not a matter for their concern. Appellant argues that the trial court erred (1) by instructing the prospective jurors that the death penalty was not involved, and (2) by refusing thereafter to further inform them appellant could receive a life sentence without parole if convicted of first-degree murder. The punishment for first-degree murder is death or life imprisonment in the state penitentiary.
“In all cases in which the death penalty may be imposed and which are tried by a jury, upon a return of a verdict of guilty by the jury, the court
shall
resume the trial and conduct a presentence hearing before the jury.” (Emphasis added.)
The court did not err by refusing to instruct the jury that appellant could receive a life sentence without parole if convicted of first-degree murder. At the end of trial, the court instructed the jury they were to weigh the evidence presented and determine appellant’s guilt or innocence solely on the basis of such evidence without any consideration as to the matter of punishment. Under the circumstances, we find no clear abuse of discrеtion of the trial court’s actions.
See State v. King,
In its opening statement, State told the jury that the body of Michael Hawkins was found on a back road, which led to the Yellow Thunder Indian Camp. Appellant requested a mistrial, contending that the sole purpose for the comment was to inflame the jury, as local prejudices existed toward the camp and its inhabitants. The trial court denied appellant’s request for a mistrial and appellant contends that the denial constitutes prejudicial error, requiring a reversal and new trial. The record shows that Hawkin’s body was, in fact, found on a road to the camp. A trial court’s ruling based on misconduct of counsel will not be disturbed unless we are convinced there has been a clear abuse of discretion.
State v. Kidd,
Appellant claims the evidence is insufficient to sustain a verdict of first-degree manslaughter, but does show justifiable homicide in defense of self and others.
Homicide is manslaughter in the first degree when perpetrated:
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(3) Without a design to effect death, but by means of a dangerous weapon;
*259 (4) Unnecessarily, either while resisting an attempt by the person killed to commit a crime or after such attempt shall have failed.
Manslaughter in the first degree is a Class 1 felony. The trial court instructed the jury regarding lesser included offenses of first-degree murder, including first-degree manslaughter, provided by
A verdict will not be set aside if the evidence and the reasonable inferences therefrom sustain a rational theory of guilt.
State v. Faehnrich,
There was sufficient evidence to sustain the verdict under
Homicide is justifiable when committed by any person in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant when there is reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, an imminent danger of such design being accomplished.
This issue was submitted to the jury with appropriate instructions and they resolved it against appellant. The evidence supports their verdict.
Appellant claims the court should have directed an acquittal in his favor on the first-degree murder charge because there was not any evidence of premeditation. Since the jury did not find him guilty of that charge, it is a moot issue.
Finally, appellant argues that the failure of the corоner to send the victim’s blood sample in for testing in compliance with
The burden is on appellant to affirmatively establish prejudicial error.
State v. Fender,
The judgment of the trial court is affirmed.
Notes
If the prosecutor has a recommendation, he may state it at the presentence hearing provided by