State v. Holmes
464 N.W.2d 612
S.D.
1990
Check Treatment

*1 supporting this (1970) a similar case for enforcement offi- Acts of the law us,

cials, are condemned case before California, per Rochin Three 96 L.Ed. 183 opinion in diversity cheers for land; competing thoughts courts of this healthy for the law. Dakota, Plaintiff STATE Appellee, HOLMES, Roger Defendant James Appellant. No. 16849. South Dakota. Gen., Gary Campbell, Atty. Rog- R. Asst. May 1990. Considered on Briefs Gen., Tellinghuisen, Atty. A. on the er brief,. Pierre, plaintiff appellee. Dec.

Decided 1990. Johnson, Falls, L. for de- Richard Sioux Rehearing Denied Jan. appellant. fendant and MILLER, Chief Justice. Roger convicted James Holmes

(Holmes) separate on three influence, driving charges: while under the possession possession marijuana, and a loaded firearm while intoxicated. We affirm.

DECISION trial, At of inno given to the cence instruction was not jury.1 After the had returned ver dict, realized this omission and noted “inadvertently omitted” been jury. Although instructions (Criminal) Jury must con- defendant 1. S.D. Pattern Instruction 1-4-1 you reads: all the tinue unless are satisfied from beyond principle doubt that he is reasonable It a fundamental guilty. case is a criminal be innocent. This follows *2 error, admitting judge the the trial conclud- overwhelming, relevant no jury’s ed that it had effect on the ver- factors—to determine whether the defen- Similarly, appeal, argues dict. on state dant constitutionally received a fair trial. (harmless that under SDCL 23A-44-14 er- Kentucky Whorton, 441 U.S. ror), given overwhelming the 60 L.Ed.2d Holmes, against jury’s the verdict would (1979). proper have been no different had in- the present case, In the judge gave the the given. judge’s po- struction been The trial jury instructions, numerous including the sition is similar to this Court’s following: case, the recent [Timothy J.] An statutory Indictment is the method of {[Timo- accusing a defendant aof crime. Holmes), thy where we held that SDCL not evidence and does not create any presumption the articulated presumption permit you or to form innocence, but did not mandate inference of guilt. sumption every instruction be case. The proof burden of rests the State every the trial prove mate- Since our issuance of [Timothy the rial charged element of the offense be- decision, Holmes the yond a reasonable doubt. burden of “In states: proof never shifts to the defendant. A case, the preponderance of the evidence is insuffi- that the defendant is cient. of a reasonable doubt as cent.” The of SDCL 23A-25-3.1 whether the defendant’s mandatory. See Matter In evidence, shown he is entitled to tern., Inc., be acquitted. Thus, South Dakota law now mandates presumption be given Despite the failure to instruct the on in all criminal cases. presumption judge, evaluating after the situation in

However, failure presumption light totality circumstances, instruction, mandated, albeit does not auto- matically determined that the defendant received a result an unfair trial. A find- constitutionally ing fair trial.2 Our assuage harmless error still review of failure record indicates that the trial instruction. concluding As the United not err in States Court has that Holmes received and this adopted: Court has constitutionally fair trial. We affirm. a requested failure instruc- [T]he

tion on the of innocence MORGAN, JJ., WUEST and concur. not in does and of itself violate the Con- JJ., HENDERSON and Taylor Kentucky, stitution. Under [v. 436 U.S. (1978)], such a failure must be evalu- HENDERSON, light totality ated circum- I respectfully dissent. including the instructions stances— counsel, jury, arguments After our [Timothy Holmes J.J decision, below, weight was whether the evidence cite a decision which was require 2. The trial stated: struction and matter to be retried; however, firmly I’m convinced that concluded [I’ve] omission was jury’s the omission no on affect ver- fatal would not affected the result given. dict and that the verdicts which had it returned This was based [been] retrial, would be the same on and for the the fact that the of innocence indicated, going require length during was discussed at dire reasons I’m not voir jurors grant examination of the retrial nor would I as well as motion new jurors proceed during disposi- understood trial and intend trial.... There’s no I’ve tion of this case on the doubt that erred basis the convic- giving tions of innocence reached.... Hence, (good) Da press of South heavily covered Brothers, produced dissent in the kota, a decision which not bad. state, which dis outcry by Holmes responded to the Legislature, sent was heeded our State and, seemingly, passed a quoted which is an old 1895 case worth *3 insure that new statute to mentioning again, concerning presump could not be avoided of innocence statute history “The tion of that though people’s judges. Even be from Deuterono can traced system through repre a of representatives, law, through English Common Roman government, saw fit to immedi sentative and the common of United Law this ately repudiate Court’s States, 156 U.S. States.” v. United Coffin [Timothy Holmes decision was (1895); 394, 403, 39 L.Ed. 481 15 S.Ct. rendered, again squatting is this Court (Wyo. State, 630 P.2d 517 Slaughter v. its decision. down on 1981). Biblical is its root. interpret to the laws function of this Court provides: “In 23A-25-3.1 each passed to are and not overrule laws criminal should not which are enacted. presumed jury that the is inno And, my opin his in the law to will. bend stated, As this section cent.” I ion, doing: exactly what we are We that is shortly of code was enacted after this our disregarding legislative totally are intent in v. Court’s State As bending the law to our will. stated (Henderson, J., dis N.W.2d (S.D. Galati, in 365 N.W.2d 575 State Holmes, I senting). In 1985): to a that the failure of the Statutory begins lan- with instruction was innocence a guage of the statute and absent presump error.* further stated that our legislative intent to the con- expressed integral instruction is an tion ordinarily language trary that must be in criminal law of the considered conclusive.... Courts a and that trial court would be remiss a interpret or construe statute a presump not to inform a choose plain lan- manner inconsistent proposed when a instruc legislature.... tion guage employed opportunity. steadfastly interpretation provides of a statute that tion an Judicial plain language acknowledge position. to this failed adhere to judicial supervision amount would Obviously, agree did not N.W.2d, at legislature. approach in the with Court’s mine). (emphasis supplied adopted case a because always Americans have had a vision We charge statute which forces the court equality of an which stems from our value innocence in self-worth, mentality individual cases. criminal stemming early frontier era and majority opinion makes a opportu person an that belief good argument constitutional based on nity equal to succeed also be Whorton, 441 Kentucky individuals, eyes might As we law. 640, 643 equal always ability but we are be forget it a seems that constitu- equal eyes eyes and in the God argument by (judge-made tional this Court presumed law. We should all be law) in [Timothy was also raised are, really, by jury peers. of our We cent reject idealists, Legislature and the chose century in a Holmes eighteenth schooled it. As the states: “The perfectibility, belief of human good. is good. language But SDCL 23A-25-3.1 manda- nature Not bad. * provides: his reasonable doubt as to whether SDCL 23A-22-3 shown, satisfactorily he entitled be is is A defendant in a action is acquitted. contrary proved, and in innocent until statement, Notwithstanding We must tory.” assume effect, itself majority, reverses hold- had statute mind ing that, although mandatory, a trial mandatory when it decided to enact ruling still be sustained if he Sup- statute. operative fails to it. verb pose spe- general we statute and a is “shall.” Matter SDCL 23A-25-3.1 subject. cific statute on the same Which Intern., Inc., 442 governs? In Meyerink v. North- (S.D.1989). Groseth, we stated that the Co., western Public Service obligatory word or man- “shall” (S.D.1986), the terms Peterson, datory meaning. Person v. See particular (S.D.1980); Linn, Tubbs v. prevail over terms (1955); 75 S.D. 2A held, another statute. also *4 which Sutherland Stat. 57.03 at 643-44 Const. § Court, historic that the more recent (4th 1984); Sutton, ed. Use of “Shall” in controlling. enactment is In re Estate Statutes, L.Q. 4 J. Marshall Smith, (S.D.1987). reprinted in 1A Sutherland Stat. Const. 691 Smith, at that this Court must (4th 1985). clear, unambiguous ed. legislation assume that enacting when question, there- Legislature had mind fore, insists that court statutes matter. instruction to conceptually platform Were join the jury. presumes This Court that the words majority which now stands and convey of a statute have been used to their weighs this conceded error plain, meaning. ordinary Appeal AT & judge, which I not upon, do have to reflect Systems, T Information I would still reverse case because Opperman, majority opinion invoked for the reason the harmless error doctrine to reach its contained therein that this Court result, I believe further error continues to power provide greater an individual with instructing exist future courts to protection under State Constitution of innocence instruc- than does the United States Legislature. tion as mandated also, See, under the Federal Constitution. do not to think that harm- want courts Hass, Oregon v. on regular less error be used basis to up clean fails follow if, country Wouldn’t this be hell of a our enacted law. states, mere trial became a formali- SDCL 23A-25-3.1 is akin to other ty which procedural Co- and its function would deteriorate into a Clearly, dified Laws. body simply stamped rubber a crimi- prior tended to reverse our case law investigation? If nal we eliminate the adopting 23A-25-3.1. Because the SDCL statute, sumption of the core satisfy requirements trial court implicit trials —will fade freedom conviction SDCL Holmes’ away judges, per- for trial faced with their should reversed and remanded to the ception of the evidence as an over- trial court. whelming say “I shall not earlier, apparent As mentioned statutory presumption of innocence.” this author that grounded in the error” rule. “harmless academically opinion, it will not wash. join Justice Henderson’s dissent for above, My position, than recited therein. reasons contained (the harmless statute) SDCL 23A- in nature.

25-3.1, question, the statute was enacted subsequent error statute.