State v. Hoadley

2002 SD Dakota, Plaintiff of South

STATE Appellee, HOADLEY, Defendant

Darrell Appellant.

No. 22000. of South Dakota.

Supreme Court May

Argued Aug.

Decided General, Barnett, Attorney Craig

Mark Eichstadt, General, Attorney Deputy M. Pierre, Dakota, Blazer, Attorneys plain- Poage’s Chevy South traveling Page’s house.2 appellee. tiff and there, Page exposed Once the .22 Kosel, M. Joseph Northern Hills Public pistol, Poage’s which he had stolen from Office, Deadwood, Defender’s South Dako- residence, Poage mother’s room at the

ta, Attorney appellant. for defendant and Poage get ordered on the floor. Once floor, Poage was on the kicked him Piper, Justice RICHARD W. SABERS face, knocking him unconscious. majority opinion delivers the unconscious, Poage While the three 1, 2, 3, 4, writing Court on Issues and the up tied him him upright and sat in a chair. Issue on which controls result. to, Piper After he came laid a tire iron prevent across his feet to him from mov- Konenkamp [¶ Justice John K. de- 2.] ing, Page while made him drink a mixture writing livers on which con- Issue containing pills, hydro- crushed beer and trols the rationale. Poage chloric acid. repeatedly asked them 12-13, 2000, On March Darrell [¶ 3.] why they doing were In response, this. others, Hoadley Elijah Page and two and Piper hit him in the face and told him to Briley Piper, kidnapped and killed Chester up. shut The three discussed their to plan Poage Allan in Spearfish, South Dakota. Poage, Poage pleaded kill and for his life Hoadley by jury was tried and convicted of and give everything offered to them he murder, degree first kidnapping, first de- in exchange owned for his Page release. gree robbery, degree burglary first and Poage asked for the PIN number for his grand theft. He in was sentenced to life card, ATM Poage complied. and prison parole without for the first group Poage [¶ The took to his own convictions, kidnapping murder and twen- Blazer, placed him in the back seat and ty-five years for degree robbery first and threatened his life if he attempted to es- degree burglary years first and ten cape. Piper group drove the to Higgin’s theft, grand all terms run consecutively. to remote, in County, Gulch Lawrence Hoadley affirm. appeals. We wooded area about seven miles from

Page’s They house. arrived between 11:30 FACTS pm midnight. and Poage was forced out of the Blazer into twelve-inch deep snow 12, 2000, Hoadley, Pip- 4.] On March clothes, and instructed to remove his ex- er, Page and met with Poage at his house.1 t-shirt, cept his shoes and socks. The Piper Poage asked to show him some of three Poage’s then took wallet. guns Poage’s Poage mother owned. only knew the location antique of one .22 Hoadley, Piper Page [¶ 7.] tried pistol. Piper suggested caliber then kill- holding Poage covering down and him with ing Poage stealing property. Pip- his snow. Poage attempted escape, to but the er, Page Hoadley Poage convinced to recaptured three him and continued to house, Poage’s leave in creek, and the four left beat him. Poage was taken to the sister, LSD, Poage buy lived with his mother and Piper pulled Page who could or whether were on vacation in Florida at this time. going outside to inform him he was to steal equipment Poage's stereo from vehicle. It is Testimony origin plot varies as to the they initially planned also unclear whether Poage property. to kill and steal his It is Poage, just kill beat him. unclear whether all three of the assailants planned stealing they in items the house so 22, 2000, body April 10.] On was fifty feet from' the road. approximately beating. in the in Higgin’s involved discovered near Gulch Law- Ail three were 24, 2000, Poage that he stabbed Hoadley April rence Dr. County. admitted On light Page held a Habbe, at least pathologist once Donald a forensic from in the Poage head. while kicked Page Laboratory Rapid City, Clinical per- an autopsy formed and identified re- beating, Poage asked During the Poage. mains as Habbe discovered nu- up. the Blazer warm to be allowed into injuries merous head and stab wounds. sentencing hearing indi- Testimony at the of death Habbe determined the cause was preferred he Poage said cated that force inju- the “stab wounds and the blunt warmth, rather than bleed death ry to head.” group agreed freeze death. long so as he washed grant request, his 25, 2000,4Danny On Burk- April body the creek. the blood off of hart, a law Hoadley, friend of told enforce waters, icy group After in the rinsing involved ment him warm himself in the refused to let body of the person death whose was dis Instead, they beating continued

vehicle. (cid:127) Law Higgin’s covered Gulch. enforce into him the creek dragged him and back a recording ment outfitted Burkhart with attempted to drown him. De- they where and speak device asked him to Hoad-l attempts, stabbings, drowning spite the conversation, ey.5 During Hoadley their stoning, Poage was still alive. - beatings and Poage’s made several about admissions Piper Hoadley threw final rocks claims killing. Hoadley by was then contacted hours after the Poage. Several killed agent DCI and taken to Lawrence Gulch, beatings Higgin’s Poage at began County He was sheriffs office. advised creek, left around 3-4 was for dead agreed his Miranda and rights waive a.m. he, Piper them. He and .indicated (cid:127) and Hoadley, Piper Page dis- [¶ 9.] Page agreed killed Poage. He accom Poage’s property, cussed the division Higgin’s Gulch pany officers to where house and stole numerous returned to his answered about the murder. questions he Hannibal, items. then drove group 2000, 26, Hoadley April On was [¶ 12.] sister, Piper’s Missouri, they visited where by law enforcement. again interviewed stay, to let them upon but her refusal agreed and rights He was of his advised City, Dakota. Rapid returned to South them with the officers. speak waive card for They ATM cash Poage’s used An amended indictment was Even- Poage’s property.3 pawned some of 2000, 7, Hoadley September charging way. filed tually, each went his own Hoadley, Piper were involved in Poage’s and another bank show the ATM Records from conspiracy in card used six times various locations LSD. was to distribute Nebraska. Some of in South Dakota Poage's pawn- found property was later 5.Burkhart law enforcement informed shops Wyoming and Missouri Hoadley contacted at Deadwood could be Hotel, laying carpet. was Gulch where he day, 4. On an arrest warrant the same recording equipped with a he been After had charge Hoadley on a unrelated to issued for transmitter, Burkhart located device and murder, Poage’s Prior to the murder. engaged Hoadley at hotel and him 2000, 6, enforcement executed a March law Hoadley several incrimi- made conversation. Page’s Spearfish. home in search warrant at nating which law enforcement statements subsequent As a views, the search and inter- result of overheard. enforcement determined law (1) with: Degree First Premeditated De- [¶ 16.] Whether a new trial should (SDCL 22-16^1), sign alternative, granted or in the judicial left to the sound Murder, court, First discretion of Degree Felony the trial Murder this Court (SDCL will not engaged kidnapping while 22- disturb the trial court’s decision 16-4), alternative, absent a clear showing or in the of abuse Degree First of discre ¶ Perovich, Murder, 96, 11, tion. v. State Felony Murder while SD engaged (SDCL (2) 632 N.W.2d 22-16-4); 15-16 robbery (citing Tunender v. Kidnapping, Minnaert, 62, ¶9, (SDCL 1997 SD Physical Gross 563 N.W.2d Injury Permanent 851) (citation omitted). 22-19-1), alternative, inor Kidnapping (SDCL 22-19-1) (Class (3) 1 Felony); [¶ 17.] “[E]videntiary rulings (SDCL Degree Robbery 22-30-1); First by made the trial court presumed are cor (4) (SDCL Degree First Burglary 22-32- rect and are reviewed under an abuse of 1(3)); (5) (SDCL and Grand Theft 22-30A- discretion standard.” Id. (citing v. 22-30A-17QL)). 1 and Goodroad, 46, ¶ 9, 1997 SD 563 N.W.2d 129). Any error “must also be shown by was tried jury in prejudicial to be error.” Id. (quoting State Dakota, Rapid City, May South from ex rel Dept. Transp. Spiry, 1996 SD through May 2001. He was convicted 14, 11, 263) (citation murder, first kidnapping, first e “Th test is not whether we degree robbery, first degree burglary and would have made the same ruling, but grand Although theft. facing he was mind, whether we judicial believe a in view sentence, death he was sentenced circumstances, of the law and the could prison to life in parole without for the reasonably have reached the same conclu first murder conviction. He was ¶ Goodroad, sion.” 9, 1997 SD 46 at 563 by sentenced the court prison to life in N.W.2d at 129 (citing Rufener, State v. 392 parole without for the kidnapping convic- 424, (S.D.1986)). N.W.2d 426 tion, twenty-five years for first degree rob- bery and degree burglary, first and ten WHETHER THE TRIAL years grand theft, all terms to run COURT ERRED IN ADMITTING consecutively. THE TAPE RECORDED CON- BETWEEN HOAD- VERSATION

STANDARD OF REVIEW LEY AND DANNY BURKHART. “A motion to suppress Hoadley argues 19.] that the trial based on an alleged violation aof constitu court’s denial of the motion to suppress tionally protected right is a question of law tape Fourth, Fifth, violated his Sixth reviewed de Myhre, novo.” State v. 2001 and Fourteenth rights Amendment under ¶ 109, 9, 186, SD (citing 188 the United States Constitution and the Stanga, 129, State v. 8, 2000 SD 617 comparable provisions of the South Dakota 488). 486, N.W.2d See also Ornelas v. Constitution.6 argues He police that States, 690, 699, United 517 U.S. 116 S.Ct. violated his Fourth rights Amendment 1657, 1663, (1996) 911, 134 L.Ed.2d 920 they when asked Burkhart to wear a wire (stating standard of questions review for and engage Hoadley in conversation. He Amendment). under the Fourth claims that his Fifth rights Amendment purpose brevity only For the provi- of throughout. ferred to sions federal constitution will be re-

255 a de- be- noncustodial conversation between were violated self-incrimination against agent acting as a state fendant individual as a law acting and an Burkhart cause agent). record conver- agreed tape he enforcement when inter- sation, thereby creating a custodial Hoadley does not claim he was of the administration requiring rogation compelled talk with Burkhart. He free that his warnings. He contends Miranda divulged Poage’s ly details of murder. See to counsel was right Amendment Sixth Hamm, 507, 512, 89 S.D. 234 not advised of his because he was violated (1975) 60, (noting that defen counsel to his conversation right prior compelled dant was neither to allow ac Burkhart. quaintance acting government agent as a Hoadley argues that him). [¶20.] speak into her nor See also home to be free from right Amendment Fourth 465, States, Lopez v. United U.S. and seizures was searches unreasonable 1381, 1402, 83 S.Ct. L.Ed.2d protec In to invoke order violated. (1963) being that of (holding “[t]he risk Amendment, one must of the Fourth tions betrayed overheard an eavesdropper expectation “a reasonable demonstrate by an informer or deceived as to the iden prepared be society that should privacy tity proba with whom one deals is one Vogel, 428 N.W.2d State v. observe^]” human bly inherent in the conditions of (S.D.1988) Katz v. (citing Unit 276-77 not society”). Accordingly, Hoadley did States, 88 S.Ct. ed 389 U.S. justifiable expectation privacy have a (1967)). L.Ed.2d has and he this conversation not shown rights. violation of his Fourth Amendment justifi had no Hoadley [¶21.] his conversa expectation able privacy argues also 'his [¶23.] an Burkhart. estab tion with “There rights' violated. Fifth Amendment were expectation an difference between lished Fifth Amendment of the United unknown, person uninvited third some provides Constitution relevant States eavesdrop the risk even will shall part person compelled, “[n]o or allow repeat friend will others trusted be, case, a witness criminal v. you what have said.” State hear to Hoadley argues against himself[.]” (S.D.1985). Woods, 620, 361 N.W.2d 621 a vio- with Burkhart was his conversation States, v. 385 U.S. also United See Hoffa right against lation of his self-incrimination (1966) 293, 408, 17 L.Ed.2d 374 87 S.Ct. warnings have should Miranda justified no (holding expecta7 that there is given. been person with whom privacy tion of when Amendment Fifth reveals that con converses defendant is are when an individual rights implicated “In the latter police). to the versation interrogation. situation, subjected to a the risk of custodial defendant assumes ¶ 74, Anderson, 45, 2000 SD 608 disclosure, v. justified no ex State as there exists Rhines, Woods, 644, (citing 665 State v. 361 N.W.2d N.W.2d privacy.” of pectation 426) 415, 55, ¶ 11, 548 N.W.2d that “when 1996 SD This Court has stated at 621. (citation omitted). warnings are consents, Miranda justified is no there person one being inter individual is required will when an the communication expectation or other custody “in at station rogated also intercepted.” Id. See United not be White, 745, of action deprived wise of his freedom 91 v. 401 U.S. S.Ct. States Hamm, 507 (1971) S.D. any significant’way.” 89 1122, (holding that 28 L.Ed.2d 453 514, (quoting Miranda at 234 at 64 protect not N.W.2d does the Fourth Amendment 256 Arizona, 436, 477, him arresting purposes denying

v. U.S. 86 S.Ct. him 384 (1966)). 1602, 1629, 694, L.Ed.2d 725 rights interrogating 16 his constitutional ¶ 15, Myhre, 2001 See also SD 109 at 633 charges. him on other His statements were (stating N.W.2d at 189 that Miranda warn- voluntarily made and he was free leave ings given suspect must be “whenever a is any time. is no at There evidence that ”). subject interrogation’ of ‘custodial Hoadley was compelled coerced into custody Whether an individual is in is de- with Burkhart. A speaking reasonable termined “how a man in the by reasonable position man his no would have had suspect’s would position have understood rights to believe that his re- reason were Anderson, his SD 45 at situation.” 2000 in any way. This was an un- stricted ¶ 79, at 666 (quoting 608 N.W.2d State v. noncustodial coerced conversation. See ¶12, 13, 863, Herting, 2000 SD Hamm, 514-15, 89 S.D. at 234 at N.W.2d 866). all circum- “We examine of the 64. He has failed to show that his Fifth surrounding stances the interview and right against Amendment self-incrimina- ‘whether [was] there formal arrest or tion was violated. restraint freedom of of the movement ” with a associated formal arrest.’ contends his [¶ 26.] He ¶¶ Morato, 149, 17-18, State v. 2000 SD rights Fifth Sixth Amendment 619 660-61 (quoting N.W.2d State v. were counsel violated because he was not ¶6, 17, Gesinger, 1997 SD N.W.2d 559 of his right prior advised to counsel to his 551-52) (additional citations and internal with purpose conversation Burkhart. The omitted). quotes Darby, See v. also State Fifth right Amendment counsel ¶ 127, 25, 1996 SD 556 319 protect from individuals self-incrimina (stating that the test for custodial interro- tion and assist in custodial interroga gation is the interrogators whether de- Anderson, tion 2000 at process. SD 45 leave) prived suspect the freedom to (citations omitted). 74, 608 N.W.2d at 665 (internal quotations and citations person A is not entitled counsel if the interrogation is noncustodial. Id. The was not custo Sixth Amendment provides right dy at the time his with conversation prosecution. right counsel criminal Burkhart.7 He was not that a even aware judicial to counsel attaches after pro warrant had been issued for arrest on Hamm, ceedings begin. an See charge. unrelated not S.D. being He was 515-16, 234 questioned (citing Kirby law N.W.2d at enforcement officers Illinois, and had no U.S. S.Ct. reason believe that Burkhart (1972)). working law L.Ed.2d Wayne enforcement. Even See also R. LaFavre, Seizure, 8.2(k) though § the officers were aware that a war Search and at (3rd 1995). rant Hoadley’s arrest on an 693 ed. It LSD attaches to issued, charge was there showing charged is no offenses does not and attach to they or purposely knowingly delayed uncharged factually crimes or unrelated custody. The trial court determined: not in Defendant’s statements to voluntary beyond Burkhart were a reason- [Hoadley] custody not in was at the con- times, doubt. able Defendant’s Fourth Amend- Hoadley struction site.At all rights Hoadley ment were not violated as building was free to leave the and free to cannot claim the construction site a end the conversation at as ‘con- time. He was stitutionally protected way custody deprived area ... [in no or of his which he protected Warnings governmen- freedom of movement. Miranda from unwarranted is] required were not because Defendant was tal intrusion.'

257 Cobb, his trial. The impartial during v. 532 U.S. crimes. Texas charged 1335, 1342-43, 149 171-72, Piper Page pled 121 arid argues because S.Ct. (2001) (holding guilty, judge 331-32 the trial was.not the factfin- L.Ed.2d charges to pertaining evidence “to exclude der. to right the Amendment as which Sixth 32.] This Court has stated [¶ at the time the had not attached counsel opportunity judge a is disqualify “[t]he obtained, simply because oth- was evidence statutory, ... and not constitutional time, at charges pending er were may be in a right, except implicit as it public’s frustrate the unnecessarily

would Goodroad, fair SD to a trial.” right criminal investigation of interest ¶ 25, at 132 (citing Scott activities”) (citation (S.D.1995)) Class, v. 532 N.W.2d stated, con Hoadley’s [¶ 27.] As (additional omitted). “The deci citations with Burkhart noncustodial versation the preside a case lies within sion over under attorney no to an right he had judge.” discretion of the trial Id. sound Additionally, Fifth Amendment. the (citing Ray, v. Hickmann no to counsel under the Hoadley right had (S.D.1994)). The Code of Judicial Con All of acts com Sixth Amendment. provides that: duct further of the initiation plained prior occurred or her- judge disqualify A shall himself Hoadley any judicial proceedings. judge’s in which proceeding self in a violation of either to establish failed reasonably ques- impartiality might be right coun Amendment Fifth or Sixth tioned, in- including but not limitéd to sel. (a) judge per- has a stances where: argues that his Hoadley also 28.] [¶ concerning or prejudice sonal bias 'Amendment due Fifth and Fourteenth .... party violated process rights were when 3E.(1). “judge presumed A Canon Burk- State recorded his conversation disqualifi party seeking and the impartial, established, already As the state- hart. bears the substantial burden cation during he made conversation ments v. States proving otherwise.” United involuntary nor neither coerced were (8thCir.1990) Walker, 920 F.2d violative admission cannot be deemed their Nat’l Bank Tosco (citing Ouachita Fifth and Fourteenth Amendment of his (8th Cir.1982)). 1291, 1300 Corp., 686 F.2d process. to due rights has stated: Eighth Circuit 33.] has failed to establish claim of respect to [defendant’s] With Fourth, Fifth, Sixth any violations of his bias, has Court judicial Supreme rights. Fourteenth Amendment “opinions made clear that formed or introduced judge on basis TRIAL 2. WHETHER THE offacts occurring in. course events IN ERRED NOT RECUS- JUDGE prior proceed- proceedings, current FROM ING HOAD- HIMSELF bias a basis ings, do not constitute LEY’S TRIAL. display they unless partiality or motion trial Hoadley argues that the [¶ antagonism or deep-seated favoritism a judge committed an abuse of discre- court judgment impossi- that would make fair from when he did not remove himself tion ble.” judge the Hoadley claims trial the case. States, 783, Kahl v. 242 F.3d co-defendants, Von United Piper two sentenced (8th Cir.2001) Liteky v. Unit- (quoting fair unable to be 793 Page, to death and was States, 540, 1147, evidence, ed 510 U.S. 127 tice of intent to S.Ct. offer other acts (1994)) added). evidence (emphasis including charge L.Ed.2d of the of con- Prejudice spiracy Following argu- has been to distribute defined as: LSD. evidence, admissibility ments on the of this attitude personal enmity to-

[T]he the trial court the determined that evi- party wards the or favor the ad- prejudicial probative dence was more than party verse detri- party’s the other trial, During and denied its admission. It ment. is not the possession mere tape the submitted State evidence of a regarding views the law or the conduct transcript of a police interview with party. Prejudice personal of a Hoadley. tape transcript con- rather than in judicial sense sense questions tained references to concerning and refers to a mental attitude or a whether and the were un- others of the disposition judge party. towards der the influence of drugs at the time of In order for alleged preju- bias murder, why they fled the after state dice be it must disqualifying, stem murder, why they chose to murder extrajudicial an from source and result Poage, and a reference to the LSD con- opinion in an on the on merits some spiracy charge. Hoadley’s did not counsel other than judge basis what the learned object evidence, to the but later moved for participation in case[.] from mistrial, which was denied. Hoadley (Mo. C.N.H., 553, In re 998 S.W.2d argues trial court in not erred App.S.D.1999). declaring mistrial after the State submit- Hoadley’s argument tape ted and transcript evidence. into disqualification “do[es] not constitute [a] Evidence may of “other acts” reasonable question bas[is] to the [trial evidence, gestae as admissible res which is judge’s impartiality[.]” court] Canon an exception SDCL Federal 19-12-5 or 3E.(1). that, He has failed to show be 404(b). Rule This Court has stated that the trial judge cause sentenced his co- of uncharged activity “[e]vidence criminal death, defendants to judge that the had a is not considered other crimes evidence if “deep-seated antagonism favoritism or it out arose of the same transaction or would make fair judgment impossible.” charged series of transactions as the of Furthermore, the trial judge made no de Andrews, fense.” State v. 2001 SD guilt termination as to the or innocence of ¶¶ 9-11, (citing Good Hoadley. This responsibility was the road, 1997 SD 46 at 563 N.W.2d at province of the jury. Hoadley has faded 130). have “approved We admission judge establish the trial had a other crimes where such evidence is ‘so personal bias or that his impartiality was blended connected’ one[s] with the questionable. proof trial ... of one incident involves other[s]; or explains the circum 35.] 3. WHETHER THE TRIAL stances; or tends logically to prove ERRED IN COURT NOT GRANT- (cita charged.” element crime Id. A ING MISTRIAL AFTER CER- tion TAIN TO AL- REFERENCES LEGED OTHER ACTS OR 38.] Three of the four refer CRIMES. complained ences of in the and tran tape July 36.] On Hoadley’s [If within script fall the res gestae exception counsel filed a motion prior notice of to SDCL 19-12-5. These references arose “other acts” evidence. The filed no- from same transaction or criminal ac-

,,259 judge credibility the the witnesses explain to the cir- can be used tivity and examine the evidence. surrounding Poage’s murder. cumstances to whether Hoad- pertaining reference The Eighth has The Circuit [If43.] drugs the the influence of at was under ley typed that use tran “[t]he determined as murder is relevant to the of the time scripts jury as to in listen visual aids the (cid:127) Hoadley. The ref- and mindset of motive to com ing playback the recorded Hoadley reason to the pertaining erence is a matter within the sound munications after the the others fled the state judge.” discretion the trial United the of guilt. is relevant on issue murder (8th John, v. 508 F.2d States the pertaining to reason The reference Cir.1975). This Court has also concluded relevant to Poage explain was murdered is that it is within the court’s dis well trial challenged and state mind. motive transcripts. cretion allow the use of to transcript pro- tape references Faehnrich, v. N.W.2d it- relating to the murder vided evidence (S.D.1984). The trial the tran court read self. scripts the from which and watched video transcripts the were made. It concluded concerning While the reference 39.] [¶ transcripts that the were as accurate not charge does relate conspiracy the LSD representation of the as could be video may not be relevant to the murder to their use achieved and determined that the surround- any of circumstances explain prejudicial. not murder, to Hoadley’s counsel failed ing problematic would Furthermore, any trial, the trial court corrected waiting to its admission at object pro could proved which have inaccuracies following day to until the move instead jury. failed Hoadley blematic has addition, In error “must a mistrial. trial its to that the court abused establish to error.” be prejudicial also be shown allowing the of the tran discretion in use Perovich, 11, 632 2001 SD 96 at scripts. Honeywell, (quoting 15-16 Shaffer (S.D.1976)) (cita- Inc., 251, 258 THE TRIAL 44.] 5. WHETHER [¶ to Hoadley has failed estab- tion ERRED IN DENYING COURT sufficiently that its admission was lish LESS- HOADLEY’S PROPOSED trial. prejudicial to warrant a new IN- ER-IN CLUDED OFFENSE Hoadley has failed show that 40.] [¶ ON HOMICIDE. STRUCTIONS its discretion in de- trial court abused argues he' was en- Hoadley that for mistrial. nying the motion instruc- titled offense lesserdncluded degree, premeditated tions on first THE TRIAL 4. WHETHER 41.] which convicted. murder count on he was ERRED IN ADMITTING COURT denying He trial court erred claims the HOADLEY’S TRANSCRIPTS OF on second jury instructions proposed n STATEMENTS: murder, degree manslaughter first because degree manslaughter that it im- and second argues support was evidence he claims there provide jury transcripts proper kill did not intend He his contention he police. with the claims of his interview Poage. The trial court concluded transcripts only drew “the not have jury rational would found away from the best jury attention of inaccurate, offense evidence,” supported thereby evidence but were Hoadley was convicted. which properly it making difficult for 46.] The crime Hoadley argues that the lesser- charged and of is defined convicted of degree included offenses second murder 22-16-4. It provides: SDCL manslaughter and should have been con- he never kill Homicide is murder in first because intended to degree sidered perpetrated authority Poage. throwing when without He claims that his act of of and with premeditated design heavy Poage’s law a not rocks head should be him, person effect death of the killed or as an intent interpreted to kill but as any being, attempt of other human when com- stop moaning or an him from by a person engaged facts, mitted argues He moving: that the inter- of, perpetration attempt perpe- or light, this preted sup- in are sufficient trate, arson, any robbery, rape, burgla- port lesser-included offense instructions ry, kidnapping, throwing, or unlawful he lacked a “design because effect or placing, discharging aof destructive required death” as is under the first de- explosive. device or is also Homicide gree murder instruction. degree

murder the first if committed “In order to instruct by a perpetrated, who or who person offense, on a both lesser-included attempted arson, any to perpetrate, legal and a factual test must be met. If rape, robbery, burglary, kidnapping or satisfied, one is not test the other test throwing, unlawful or placing discharg- ¶ need be (citing not addressed.” Id. at 23 of a ing explosive destructive device Black, (S.D. State v. who subsequently effects death 1993)). legal The if: test is satisfied any victim prevent of of such crime or prosecution detection of crime. (1) ... the elements of the included of- [¶ 47.] SDCL 22-16-7 murder in [the defines fense are same or]8 lesser num- degree. the second It “Homi- provides: than the greater ber elements of the degree offense; cide is murder in the second when perpetrated by any imminently act danger- (2) penalty for the lesser-included to others evincing depraved ous offense must be than that of less mind, life, regardless of although human offense; greater any premeditated design without to effect (3) both offenses must contain common particular death individual.” SDCL so that greater elements offense 22-16-8, which defines murder the sec- cannot be committed without com- also also, ond provides: “Homicide degree mitting the lesser offense. perpetrated by imminently an act danger- Tammi, depraved ous to others and evincing State v. 621-22 N.W.2d mind, regardless life, (S.D.1994) Wall, human is not the (citing State v. less murder (S.D.1992)). because there was no actual N.W.2d “The legal injure intent to “Manslaughter others.” requires test also the essential ele- degree the second is defined as reckless ments of lesser offense must be incor- killing explicitly another and porated corpus excludes into the great- delicti of the manslaughter in McGarrett, from first its er offense.” State v. Andrews, (S.D.1995) definition.” (additional 2001 SD 31 at 768-69 22-16-20). 623 N.W.2d at 84 (citing SDCL citations counting purpose elements for this ty- substance, should based on not technicali-

261 (S.D.1987) (holding the lesser -evidence was insuffi The elements [¶ 50.] of included manslaughter support be cient to instruction on lesser must offense of offense). offense murder. See greater of the Black, v. at 742 State (quoting N.W.2d The in this (S.D.1978) [¶ 52.] evidence case

Kafka, N.W.2d support not on did instruction lesser-in (Zastrow, J., concurring) (stating “all the Hoadley’s argument offenses. cluded the delicti of legal corpus ingredients not intend to Poage contrary he did kill is must manslaughter] [of the lesser offense sense, actions. In to his this actions greater in the elements of the be included than murder]”)). speak argument louder words. His also SDCL offense See [of rational, support insufficient to is conclu person 22-16-2 “no can be convict (stating other than conviction of first sion ... .unless manslaughter ed of murder or Black, murder. See N.W.2d at 744 to have person alleged the of the death (denying lesser-included offense instruc killed, killing by fact been and the of the “a jury tions because rational would have as inde the accused are each established doubt”). only the evidence the supported found of beyond a pendent facts reasonable of which [defendant] fense convict Here, of the offense of the elements lesser ed”). There is sufficient evidence that greater are included in the manslaughter Hoadley, Piper Page planned and Therefore, legal murder. offense of Poage so could they murder of steal test under these circumstances. is satisfied Poage property. They tortured duty court The the trial killing finally several hours before him. by the evidence. to instruct is determined Therefore, the factual test is not satisfied.9 test, “In meet the factual evidence order to support must has failed to show that presented would Black, refusing lesser trial court erred in charge.” conviction on the instruct (citations as at 744 See on lesser-included offenses 49, 51 Gregg, support also v. evidence was insufficient to them. State writing Konenkamp's Hoadley, Piper Page is a fact that Justice 1. The While analysis problems pistol associat- a .22 caliber not well-written stole and did use it instructions, Poage ed if taken arguably with lesser-included is kill some evidence require new literally, would a reversal and it supporting a offense lesser-included in- [legal/factual] that: test trial. He states “Our on struction homicide. problematic requires it trial and is because Hoadley, Piper Page fact that appellate courts to decide whether evidence is Poage initially planned to steal from support giving the lesser-includ- 'sufficient' arguably sup- is evidence beat him some ed instruction the factual offense under porting a lesser-included offense instruction adoption branch of the test.” He advocates on homicide. legal elements test or branch Hoadley, Piper Page 3. The fact that legal/factual test. laboriously Poage for hours tortured rather killing quickly him is also some evi- than Konenkamp the ele- Justice concludes under supporting dence a lesser-included offense support- there is evidence ments test that no instruction on homicide. ing giving aof lesser-included offense words, although is some In there evi- other however, on homicide. is instruction There dence, support a it is insufficient to lesser- support giving of an some evidence to homicide offense instruction on included offenses of instruction on lesser-included say, as a otherwise, Accordingly, we can mat- this case. Although he Jus- homicide. claims law, that the evidence was insufficient making ter of Konenkamp judgment tice the same require lesser-included instructions we are offense call under the elements test that mak- ing homicide in this case. the factual test. under reasons, For all of the foregoing whether give lesser-included instruc- n we affirm. because, tions. Our test is confusing after Black, (S.D.1993) 506 N.W.2d 738 (Black II), meldirig we have a corpus of a GILBERTSON, Justice, [¶ 55.] Chief delicti test with the preexisting “legal/fac- AMUNDSON, KONENKAMP and tual” test used than less nine months be- ZINTER, Justices, 1, concur as to issues Black, in fore State v. 494 N.W.2d 377 2, 3 and 4.

(S.D.1993) (Black I).10 proble- Our test is GILBERTSON, Justice, [¶ 56.] Chief requires matic because it appel- trial and ZINTER, and KONENKAMP and late courts to decide whether evidence is Justices, concur as to the result in issue “sufficient” support giving the lesser- 5. included offense instruction under the fac- tual branch of the test.11 No better exam- KONENKAMP, Justice, delivers ple can be found than the one in the 5, writing on Issue which controls the minority writing issue, on this when it rationale. and, weighs effect, the facts here in “finds” It is time to 58.] abandon our con- that Hoadley’s spoke actions louder than fusing problematic deciding test for his words. Tb,e 706, corpus language 761, 10. originally delicti was Mich.App. 63 234 N.W.2d 766 imported from several (Mich.App.1975), California cases and and to Justice Zastrow's Barber, 289, one Utah case in State v. special 83 S.D. Kafka, concurrence in State v. 264 e (1968). 702, Michigan (S.D.1978), 158 N.W.2d 870 Lik N.W.2d 706 in both of which courts, courts, California even precisely after the Su language the same is used. Interest (in preme however, Court's decision ingly, Schmuck v. United only Justice Zastrow’s author States, 705, 1443, 489 U.S. ity 109 S.Ct. 103 for this "sufficient-evidence” test is none (1989)) L.Ed.2d 734 that Federal courts are to other than the same citation to Karasek. (i.e., Thus, legal test, use the labeled, "elements test” branch the sufficient-evidence in test), "legal/factual” test,” of our Gregg, rather than the the "factual imported into test, competing "inherent-relationship” jurisprudence con South Dakota Michigan from a Tucker, decision, tinue to use the latter. Appeals Tim Dallas Court majority not via a Court, State v. Black: in South plurality opinion Dakota's even a only this but Confusion Determination Lesser-Included special via a jus concurrence written one Offenses Cases, courts, Homicide 41 courts, S.D.L.Rev. Michigan 487 tice. like California (1996). test, relationship But the inherent test, use the relationship” "inherent rather corpus which language implicitly delicti test,” which, is "legal/factual than the for all of wed, (at least) fundamentally is different from eight, years Waff, State v. —from legal legal/factual branch of the (S.D. 1985) test. See 1993)— through (early Black I Tucker, Black, State v. 41 S.D.L.Rev. at 482- had been the law in Soiith Dakota. Given the provenance, surpris mish-mash its it is not ing that Justice Wuest found South Dakota

11. The word "sufficient” is to the crucial con law on lesser-included instructions to have here; troversy left, II, its use in this context derives been after Black "in utter confusion.” (S.D. Gregg, (Wuest, J., from State v. 405 N.W.2d 49 506 N.W.2d at concurring 1987). result). "The essence of the factual test is that But the fundamental reason that our evidence, there must be read when problematic lesser-included-offense law is as sufficient defendant, light most favorable confusing to the apply well as is that to tire "suffi justify which concluding (i.e., would strong cient-evidence'' test version of greater test), offense was not committed the factual legal/factual branch of our as fact, and that a lesser offense was in commi this Court doing again did in Black II and is t Oien, (citing case, ted.” Id. at 51 State v. in this question is to "t[ake] -the factual (S.D. 1981)) (emphasis Tucker, away Black, add jury.” from the State v. Oien, ed). turn, Karasek, People cites to 41 S.D.L.Rev. at 501. juris exposed. nal is keeping equally with modern defendant It is In left questions should be clear that such facts must be factual established prudence, Jersey, Apprendi In v. New jury. by proof beyond reasonable doubt.” Id. except 490,120 held that Supreme Court at S.Ct. conviction, any fact that prior “the fact of prevent To the unconstitutional beyond penalty for a crime increases the taking result of criminal cases from the must be statutory minimum the prescribed use “elements” jury, we should beyond jury, proved to a submitted (i.e., legal legal/factual branch test doubt.” reasonable 530 U.S. test) whether to decide the lesser offense 2362-63, 147 L.Ed.2d 435 S.Ct. greater charged included in the of- (2000). reasoning of the The force should the cor- fense.12 We eliminate both extends Apprendi the decision supported II pus delicti test introduced in Black and At of that case. beyond particulars the the test.13 The ele- substantial-evidence Apprendi in were “constitutional stake clearly in Black I. ments test set forth the surpassing importance: of protections (1) test is if all the legal The met of liberty of deprivation proscription elements of the included offense are Amend process (per ‘due of law* without lesser in number than the elements of 14), all guarantee and the that ‘[i]n ment offense; (2) penalty the for greater the shall en prosecutions, criminal the accused the included lesser must be less offense trial, speedy public to a and joy right the (3) offense; greater than that of the and 6).” jury’ Amendment by impartial (per an offenses must common ele- both contain 476-77, 120 at S.Ct. at 2355. Id. greater that the offense cannot ments so Although Court Apprendi the [¶ 60.] committing committed without also may recognized practices trial offense. the lesser and still “change in the course of centuries at emerged principles true to the remain state use jurisdictions Most jury the Framers’ fears ‘that the from test, the version elements and some denial, only by gross not but could be lost ” has test Supreme adopted Court similar erosion,’ unequivocal it was in assert- by in federal offense to be used courts: “one at least adhere to ing “practice must un- ‘necessarily in another is not included’ re- principles undergirding the the basic are the elements the lesser offense less trying facts jury to a all quirements charged the a subset of elements of offense, statutory necessary constitute offense re- offense. Where lesser reasonable proving beyond and those facts required an element not quires 483-84, at 2359 Id. at 120 S.Ct. doubt.” offense, no is to be greater instruction (internal Further- quotation ” Schmuck, at .... 489 U.S. given more, [state] “it is unconstitutional for a 1450, 103 at 746. The at L.Ed.2d jury the S.Ct. from the legislature remove explained the elements test was pre- virtue of of facts that increase assessment a crimi- range penalties to which in Schmuck: scribed test, eliminating de- corpus adopting the we should 13. The reasons 12. In elements clearly set forth persuasively test are and licti adopt Judge suggestion that Tucker's also article, Judge S.D.L.Rev. at Tucker’s components [to be] rea considered [be] “mens 491-495, unnecessary repeat and is them it greater lesser elements contained within eliminating reasons for the suffi- here. The Tucker, Black, 41 offense.” text, provided test are cient-evidence at 496. S.D.L.Rev. infra, at 63. test is far [T]he elements more certain U.S. 110 S.Ct. 109 L.Ed.2d 314 (1990). predictable application its than relationship approach. inherent Be- A in- lesser-included-offense approach cause the elements (1) involves struction given should be when (2) comparison textual of criminal statutes elements test is met and some evidence support of such instructions exists in depend does not on inferences that record. Because the elements test was may be drawn from evidence introduced case, met this question remain- trial, approach permits the elements ing is whether there was some evidence to jury both sides to know in advance what support giving the instruction.14 In reali- instructions will be plan available ty, there was no evidence to justify giving their strategies accordingly. trial lesser-included offense instruction. objective moreover, approach, elements First, say one did not intend the victim’s promotes judicial economy providing say death plead little more than to a clearer rule of decision by permit- denial, guilty. general not A a not like ting appellate courts .to decide whether guilty plea, effectively places in issue each wrongly instructions were refused offense, element in the charged it but does without reviewing evidentiary the entire any not create affirmative evidence to enti- record for nuances of inference. tle a defendant to a lesser-included offense 720-21, 109 Id. at S.Ct. at 1453. simply because the offense is denied. Logically, to justify lesser-included of- [¶ 63.] As for the reasons to discard fense a homicide case there must be test, the sufficient-evidence we owe to Jus- some tangible particulars in the record tice Amundson’s dissent in Black I the tending negate the higher offense. reference to an exemplary passage ex- plaining the simplicity of the elements test: Second, we must consider the stated intent of the three defendants be-

When there is evidence whatever victim, they kidnapped fore the hor- tending to statutory establish certain rendous they perpetrated violence against grade homicide, of criminal and the him, the defendant’s admission that he court charge jury refuses to with stabbed the victim and held a light while a thereto, committed; reference error is head, codefendant kicked him in the if but there be a total absence of evi- admission he struck the victim’s head relating dence to the particular grade heavy with two rocks an coup obvious de disregarded, charge cannot be suc- grace, finally, the fact that the defen- cessfully challenged on the ground of dant checked the victim for a pulse and such omission. said to one of his codefendants “dude I (Amundson, J., 494 N.W.2d at 387 dissent dead, think he’s go dude can we now?” In ing) (citing v. People, 12 Colo. Crawford this, light of all defendant’s claim that he (Colo.1889) 20 P. 769 (emphasis add only wanted the victim to “at stop least ed)). If no presented evidence has been moving” proof is no more lack pre- support would a conviction on a lesser than wanting meditation to still charge, then instructions on the lesser heart that beats in Caesar’s proof breast is charge given. shall not be Trial courts of lack of intent Thus, to assassinate. need not instruct on matters unsupported although the elements test should be the Woods, the evidence. State v. 374 only determiner in deciding whether (S.D.1985), denied, cert. offenses, 495 instruct the on the lesser we not, question emphasize, we wheth- er there was evidence. sufficient because the conviction affirm nonetheless must test there elements under the

even a less- support giving evidence

be some instruction.

er offense Tucker demonstrates Judge 66.] As times article cited several

in his excellent

above, cer- provides test elements “[t]he determining

tainty predictability compatible offenses and is

lesser-included principles of double the constitutional and notice while process, due

jeopardy, Moreover, ele- mutuality.

maintaining of less- clarify the doctrine

ments test will and the for the bench offenses

er-included law.” present far better than

Bar Black,

Tucker, S.D.L.Rev. acknowledge the wisdom We now

Judge Tucker’s recommendations. (concurring in

AMUNDSON, Justice dissenting part).

part rea 5 for the I dissent on issue v. in State my dissents

sons set forth (Amund (S.D.1993)

Black, 494 N.W.2d 377 Black, J., and State v. dissenting)

son J., (S.D.1993) (Amundson, dis

N.W.2d 738 issues. on all other

senting). I concur

2002 SD COHEN,

Arlene Claimant Appellant, PIERRE, South Dakota OF

CITY Labor,

Department State of Dakota, Appellees.

South Law DeHueck R. DeHueck of Patricia 21770. No. Pierre, Office, appellant. claimant and for of South Dakota. Supreme Court Hofer, Riter, Mayer, Brown of John May Briefs Considered Pierre, Brown, appellee, & Wattier Aug. Decided City of Pierre. Aberdeen, Johnson, appel- Drew C. of Labor. Department lee

Case Details

Case Name: State v. Hoadley

Court Name: South Dakota Supreme Court

Date Published: Aug 21, 2002

Citation: 651 N.W.2d 249

Docket Number: None

Court Abbreviation: S.D.