*1 SD 29 Dakota, Plaintiff and Barnett, Attorney General, Mark Jeffrey Hallem, General, P. JEMISON, Attorney Assistant
Eugene Pierre, plaintiff for and appellee. Kadi, Mark County Minnehaha Public De- Office, Falls, fender’s Sioux for defendant Supreme Court of South Dakota. appellant. Considered on Briefs Jan. GILBERTSON, Justice. AND FACTS PROCEDURE complaint [¶ A Eugene was filed (Jemison) Jemison on November charging him burglary with one count of degree the fourth and one count of false impersonation. Jemison was indicted on charges by County a Minnehaha Grand Jury on November 1997. He was ar- raigned on December at which time pleas guilty he entered of not to both charges. trial was on March held guilty returned verdicts on both counts. Jemison was sentenced to two years degree burglary charge on the fourth year and one with suspended three months impersonation charge. the false We re- verse and remand a new trial. ap- Jemison raises several issues on peal dispositive: one of which is failing Whether the trial court erred in to the all instructions at the close of the evidence.
ANALYSIS AND DECISION We review a trial court’s refusal proposed of a instruction for abuse of dis Black, cretion. State v. “The trial court has broad
discretion in instructing Rhines, Jury sufficient whole, they considered as a correct ly applicable state the law and inform the Horse, State v. Fast (S.D.1992) (citing Grey Old, It is not error for the trial court to refuse a requested instruction which amplifies the principle given in a embodied instruction. Johnston, *2 (S.D.1991); Gillespie, State v. 439. As by 445 N.W.2d this issue is controlled Nelson Weisenstein, State v. reverse and remand for a trial. new MILLER, Justice, ¶ Chief [¶ 5.] 143, 13, 1996 SD KONENKAMP, Justices, SABERS and concur.
[¶ In this case the trial 3.] court read the substantive instructions to the AMUNDSON, Justice, [¶ 6.] dissents. trial, beginning any at the prior of the to AMUNDSON, (dissenting). Justice evidence being submitted. The trial court gave copy preliminary also a of the instruc respectfully I dissent. [¶ 7.] preliminary tions to the These instruc Refusal to instruct at of [¶ 8.] the close the charges, tions included instruction on the the only preju evidence is reversible if it rises to innocence, presumption of the state’s burden dicial error. State v. 1996 SD proving guilt, of guilt reasonable ¶ 143, 21, 70,75. See also State doubt, what constitutes direct and circum ¶ v. Two 1996 SD among stantial evidence other instructions.1 764, 766. The defendant has the burden of The trial prelimi court did not the re-read proving the trial court’s refusal constitutes nary instructions at the close of evidence. prejudicial error. Id. “[tjhis Judge jury, told the is the reverses, majority The place relying that I preliminary would re-read the Nelson, instructions, just but to save time consider distinguishable Nelson is that I have read them here and refer to them Nelson, present from the case. In you get preju- when into the room.”2 The dicial error resulted from the any Final cumulative Instructions did not include in of failing give to instructions at the presumption struction on the of innocence or effect coupled close of the evidence with the the state’s error proving guilt beyond burden of juror of the thirteenth who was allowed to objected reasonable doubt. Defense counsel deliberate. presentation to N.W.2d at of such instructions at the Nelson, 447. Unlike in the beginning they present of case going the ease if were not there exists no to be such cumulative effect re-read at result- close of evidence.3 ing prejudicial error. Counsel also objection renewed this at the close of evidence. [¶ 10.] The case is similar to recently Court,
[¶ We
addressed this issue in Star where the
considering the totali-
circumstances,
ty
of the
concluded that fail-
31)
instructions included the
Intentionally;
fol-
nition of Intent and
Definition
1) Introduction; 2)
lowing:
Theft; 32)
33)
Function of the
Testify;
of
Failure of
3)
4)
Judge;
July;
Function of the
Sidebars and
34)
Organization
Jury;
and Duties of
Communi-
Recesses; 5)
Document;
Charging
or
"On
cation; 35) Use Verdict Form. We note that there
About”; 6)
7) Penalties;
Charges;
The
How to
was no instruction 27.
Case; 8)
Innocence;
Presumption
Consider the
State; 9)
Beyond
Burden on
Proof of Guilt
Rea-
Honor,
3.Defense Counsel: Your
I
a
have
few
Doubt; 10)
Evidence; 11)
sonable
What is
What
concerns.
It's not so much the instructions
Evidence; 12)
is Not
Receipt of Evidence for
they
given.
but
reviewing
are
13)
Purpose;
Limited
Direct and Circumstantial
code, I believe an instruction
aof
substantive
Evidence; 14)
Witnesses; 15)
Believability of
appropriate
bring
nature is
such instruc-
Statement; 16)
Prior
Expert
Inconsistent
17)
Wit-
ness;
being
tions
the close of all
18)
evidence
submit-
Taking;
Note
Conduct Outside the
Room; 19)
opposed
20)
beginning.
ted as
to in the
I’m
Court
con-
Publicity;
Sequestra-
Trial
Witnesses; 21)
Trial;
being
cerned about
Attorneys’
tion of
this not
read at
Order of
the end of
Statements Not
the case.
Evidence.
give
saying
The Court: I
them instructions
this
22)
only
The final instructions
included:
Intro-
spot
is the
I would reread them but I’m not
duction; 23)
24)
Charges;
The
How to Consider
going to reread them.
25)
Charges;
Two or More
What the State Must
Defense
objection
Counsel: I’ll make an
One; 26)
Prove in Count
What the State Must
the record on that.
Two; 28)
29)
Entry;
Prove in Count
Definition of
Officer; 30)
Definition Law Enforcement
Defi-
give
the close
ure
Schmiedt, 255 N.W.2d Supreme Court of Dakota. South Knoche, also State v. see N.W.2d presumed “Juries are to follow on Briefs Dec. Considered trial the instructions of the court.” ¶ 22, 558 N.W.2d at Thomas, (citing State v. N.W.2d totality court considers prejudice.
circumstances determine at 75. the cumulative effect of errors case, prejudice.
resulted in this er-
defendant has failed show in-
ror. and final
structions, whole, cor- construed
rectly stated the law and informed the
Furthermore, as stated in Star: we
The evidence ... was
overwhelming. circum- Under
stances, unwilling we are conclude case, was unaware the law of the are convinced a reasonable ver-
doubt would have returned a irrespective of guilty
dict of Defendant’s
claimed error. (cita- omitted). dis- A review this record overwhelming
closes evidence to convict.
Therefore, I would affirm.