State v. Lyerla

Dakota, South Plaintiff STATE Appellee. LYERLA,

Gerald K. Defendant Appellant. No. 15446. Supreme Court of Dakota. May

Argued 1987. June Decided Gen.,

Roger Tellinghuisen, Atty. John W. Bastían, Pierre, Atíy. Gen., Asst. plain- appellee. tiff and E. Carlon, Pierre, James for defendant appellant. KONENKAMP, Judge. Circuit

A convicted (Lyer- Gerald K. la) degree of second two counts of murder. We affirm the second murder con- viction, reverse the convictions for at- tempted murder. night of January On the while driving east on 90 in Interstate Haakon County, fired shots three magnum pistol his .357 aat truck carrying teenage girls. three One was Only injured. formed number of tests on it. Afterward were killed, two the other cab, glass the one they disposed parti- cleaned it and pickup entered the one bullet Tammy Jen- seventeen-year-old cles and the blood stained seat covers. killed On that from recovered February was notifying Another bullet de- sen. was block; never counsel, the third engine the fense in contravention scene, was later but the Lyerla law, fled attorney found. Dakota the state’s authorized in the alter- charged He was apprehended. family. truck’s to the the release Jensen or degree murder with first native Lyerla argues exculpatory that evidence Tammy death of for the murder irretrievably was lost as a result: evidence of attempted each two counts Jensen and impeached credibility which could have the alternatively two first in riding of the two sisters who were the counts pickup shooting. at the time of the Jensen surviving girls. of the two Although he he testified could see teenagers shooting, the the Before pickup truck he fired who was when in traveling the same di- Lyerla were it, Tammy Lyerla at believes that Jensen each passed other a The vehicles rection. surviving The was not the driver. two Lyerla point At when tried few times. teenagers maintained she was. From the so girls, their truck accelerated pass the to body lay position of the the seat Lyerla them. not overtake he could that of blood stains the and the location about interstate. When leave the decided to in taken at photographs the cab as shown exited, pickup pulled to the side the Jensen scene, Lyerla Tammy Jensen deduces that Lyerla entry ramp. the of the road near she shot passenger at the time was was a pistol, reentered the interstate loaded his girls of the other two was and that one pickup. When the passed the Jensen pathologist for the driving.1 A testified him, at the pass he fired girls passenger on the defense. If a blood stain passenger side of their truck. came from rear window side of the truck's trial, jury that the Lyerla his told the At shot the when she was the deceased harassing teenagers him to such head, may have been able pathologist the life and fired that he feared extent presence of brain matter to detect pickup. The their two the shots disable taken, sample had been if a the blood stain girls gave a different rendition showing Tammy Jensen was that possibly leading up shooting, events was passenger.2 Because closing argument prosecutor conceded family Jensen and returned cleaned play Tammy “trying was Jensen request the neces- could the defense before letting by him games” tests, fully demon- opportunity to sary Lyerla’s pass. version and Both Blood theory was undermined. strate this discrepancies. girls had a number in the truck analysis other stains stain these inconsistencies to have been We view were inconclusive. jury’s verdicts. resolved shat- Also, particles from the glass if been window had right passenger tered BREACH OF STATE’S argues they preserved, RULES DISCOVERY angle bullet of the have revealed she sat and where killed the deceased local law of- The enforcement D.C.I. Had he her. struck the bullet the time per- repaired ficials the Jensen vehicle and hypothesized that the blood pathologist defense teenagers de- two testified that after the 1. The shot, window of the rear they body passenger side moved the in order stain on ceased presence of brain try to the tele- The to phone and drive the truck closest the deceased. was from get help, but the truck was disabled. further cement- would have in this stain matter matter brain hypothesis. Yet whether ed this surviving seriously in- teens was 2. One stain, if it had not been found could have jured glass fragments and some of the blood cleaned, speculation. remains been undoubtedly her wounds. stains were that the deceased was prove dence favorable to an accused been able violates due driver, Lyerla the credibili- process not the believes where the requested evidence girls surviving would ty of have guilt the two the accused is material either to such an extent that he Brady Maryland, impeached punishment. been 373 U.S. acquitted. would been have 83 S.Ct. 10 L.Ed.2d 215 States Agurs, United U.S. prohibits the law release South Dakota (1976). 49 S.Ct. L.Ed.2d 342 Im- notice the defendant of evidence without peachment evidence Brady within falls the pro- SDCL in a case. 23A-37-14 criminal rule. State v. Hartley, 326 N.W.2d 226 vides: (S.D.1982). Collier, We held in State v. contraband, is not Any which property, (S.D.1986): 381 N.W.2d 272 by law enforcement seized or confiscated jury’s estimate the of truthfulness ostensibly personnel, for use as evidence reliability given of a may witness prosecution, pre- in be a criminal shall guilt well be determinative of or inno- served, or maintained stored at the ex- Therefore, cence. the nondisclosure of county pense of the where criminal the affecting credibility evidence the of wit- occurred. If the property offense (Cita- process. also nesses violates due and is contraband owned victim of omitted.) tions being investigated, proper- crime the the ty photographed by appropri- shall be the determining prosecution’s the whether personnel ate enforcement law and re- suppression of pro- evidence due violates victim of turned to the the crime within cess, focus the should be the influence completion thirty days forensic nondisclosure had on the outcome of the analysis, attorney the prosecuting unless Bagley, trial. United States v. 473 U.S. prosecution deems it essential to the of 667, 105 S.Ct. 481 87 L.Ed.2d the case to retain the evidence. The Clabaugh, v. (S.D. State N.W.2d photographs accurately shall and correct- 1984); Cody, (S.D. State ly represent property the and are admis- 1982). A remedy new trial is for the usual pursuant sible chapter evidence 19-18 prosecutorial exculpatory nondisclosure any resulting in proceeding. criminal Annotation, Withholding or evidence. SDCL provides: 23A-37-15 Suppression Evidence Prosecution any property Before is returned the in as Vitiating Criminal Convictions pursuant 23A-37-14,

owner Conviction, law For ALR3d 16 inad- personnel possession enforcement in evidence, vertently destroyed on the other the property shall notify the defendant hand, Supreme the United States Court ob- property that the will returned to the Trombetta, be in served California Upon owner. motion the de- made 2528, 2533, U.S. S.Ct. upon good fendant and cause shown that (1984): L.Ed.2d 420-421 the property exculpatory contains evi- development The absence of doctrinal innocence, dence of the defendant’s reflects, part, difficulty this area may court order the law enforcement developing rules to deal with evidence personnel possession property destroyed through prosecutorial neglect not to release it to the owner. oversight. potentially or ex- Whenever lost, culpatory permanently There is no indication evidence is that the acted state in sup- calculated effort the courts face the task of treacherous destroy press exculpatory Yet, divining regard- import evidence.3 of materials whose and, often, less of prosecutor’s good very contents are unknown or bad faith faith, government’s (Citations omitted.) disputed. of evi- More- destruction this, noting way releasing 3. In give we in no the vehicle in of the statute. wish to violation impression approve we the state’s careless act of

9U prosecution illegal after the for the matters until rested fashioning remedies over, Furthermore, except its case. as material pose trou- can of evidence destruction impeachment, is it critical who was cases, a In nondisclosure bling choices. all, driving? he After said shot trial grant the defendant a new court can to disable it to avoid further vehicle suppressed previously evi- at which occupants. from its If harassment faceless when But evi- be introduced. dence passenger rather than shot a the driver destroyed violation of has been dence contends, such as he does enhance Constitution, court must choose argument. self-defense barring prosecution or further between comparable able to obtain Was proba- most suppressing ... the State’s by reasonably evidence available means? tive evidence. destroyed If he intended to use the evi- witnesses, impeach Although we are satisfied dence to the state’s Lyerla grist plenty had of other for that. authorizing state law prosecutor violated presented through Lyerla testimony cross- vehicle, we hold the release the Jensen examination the state’s witnesses and automatically vitiate that it does not his own witnesses which the v. Glin Commonwealth conviction. Cf. not could concluded the deceased was have 744, 1324 iewicz, 500 N.E.2d 398 Mass. photographs of the Numerous driver. negligently concerning de (1986). The rule immediately taken after the vehicle were provides: stroyed evidence shooting showing the location of the blood imposes duty the Constitution Whatever placement of the deceased’s stains and the evidence, preserve that to on the States photographs body. Lyerla used of stains that limited to evidence duty must be door, passenger side passenger on the significant a expected play might be board, rear window and the the floor suspect’s defense. To meet seat, experts’ role along defense passenger materiali- pickup, argue of constitutional that this standard on the Jensen tests omitted) in the driver’s seat (citation both was not evidence must deceased ty, Discrepancies in the shot. when she was exculpatory value that was possess an happened girls’ of what two versions evidence was de- apparent before the on the issue ably used cast doubt also of such a nature stroyed, and also be Al- driving vehicle. the Jensen who was to ob- defendant would be able that the evidence, lost though not identical to the comparable evidence other rea- tain for evidence was available comparable (Footnote sonably means. available fully his defense. Lyerla to assert omitted.) remedy take action Did the trial court 488-489, Trombetta, 104 S.Ct. U.S. at 467 As prejudice? minimize problem and 81 L.Ed.2d at brought to the was soon as the matter of the evi exculpatory value Was the re- the truck’s it ordered court’s attention destroyed? apparent before was dence family. The from the Jensen trieval prosecutor Through oversight the autho experts to defense over then turned pickup truck. rized release of the Jensen the results their own tests conducted who however, known, that not have Lyer- He could to bolster were used at trial of which theory there Lyerla a about theory. would assert la’s driver and a blood being a different im- although the state We conclude might demon on the rear window stain evidence, court the trial destroyed properly could the state Nor hypothesis. strate motions defendant’s denying not did err apparently an anticipate that reasonably dismiss. suppress and teenage girl on shooting of senseless a SECOND ATTEMPTED highway generate a claim interstate would MURDER DEGREE Bradley, justification. People v. See impossi- legal Cal.Rptr. 485 it is argues Cal.App.3d in tibe attempt commit bility (1984). not assert these defendant did second two convictions trator intent to commit the acts should be reversed. constituting this offense the offense. State v. Pri meaux, object did to the court’s instructions (S.D.1982); 328 N.W.2d 256 State degree murder.4 Ordi Poss, attempted second v. (S.D.1980); 298 N.W.2d 80 State v. questions narily not consider we will Rash, (S.D.1980); 294 N.W.2d 416 State v. unless allegedly erroneous instructions Martinez, 88 S.D. 220 N.W.2d 530 objection to timely made a them. defendant v. (1974); Judge, State S.D. 15-6-51; Fales v. 23A-25-4; SDCL SDCL N.W.2d To second de 487, 161 Kaupp, 83 S.D. N.W.2d 855 gree must intend to have a Mountain, 332 N.W.2d 726 v. White State mind, criminally reckless state of i.e. perpe (S.D.1983). trating imminently dangerous act while evincing mind, depraved regardless of are offenses only created Criminal life, human a design to kill 22-1-8. If SDCL statute. particular person. degree murder is not a crime in Dakota, then defendant’s failure to Whether there can be such a crime object cannot establish crime. Juris murder has dictional defects are waived failure never been determined South Dakota. State, Honomichl object. Interpreting a similar statute the Minneso (S.D.1983). Honomichl we held: Supreme ta State Dahlst Court ruled Subject jurisdiction matter cannot be con- rom, (1967): 276 Minn. N.W.2d consent, by agreement, ferred or waiver. do any practical We not conceive of basis (Citation omitted.) reviewing A court is upon which the could have found required subject to consider the issue of guilty defendant attempted murder in jurisdiction matter where it is even not degree. the third Philosophically, it raised below in order to avoid an unwar- might possible be attempt perpe judicial authority. ranted exercise of imminently dangerous trate an act attempt crime, In evincing depraved order and commit a others mind re there must exist in the perpe- gardless mind of the of human life within the mean- 4. In various place alleged instructions the trial court framed 2. That at the time and in the attempted degree elements of second mur- Indictment he did a direct act in the execution der: specific of such and intent toward the execu- crime; Instruction No. 15 tion and The essential elements in the murder prevented That he failed or was or was degree ... are: intercepted perpetration in of the crime. place 1. That the defendant at the time and alleged 4. That the conduct in the Indict- alleged injury in the Indictment inflicted an attempt as an ment to commit a crime was injuries upon Tammy Jensen which justification without or without excusable Tammy the said 2. That the defendant did so Jensen died. cause. by perpetrating Instruction No. 37 imminently dangerous an act and others In the crimes of murder in the second de- mind, evincing depraved regardless of hu- gree attempted murder in the second de- life, although man premeditated gree, a criminal intent must exist the time design to any particular effect death of the act or acts are committed or individual. To constitute criminal intent it is not neces- killing justifiable 3. That the was not homi- sary that one intends violate the law. cide or excusable homicide. intentionally Where one does which Instruction No. 20 crime, says acting law is a he is with criminal The essential elements the offense of intent, though may actually even know attempting to charged, commit crime as each is prove beyond of which the conduct unlawful. The intent with state must a rea- doubt, sonable is are: which an act done is shown the circum- act, 1.That the defendant attending has intent in stances the manner done, used, commit the crime murder in first which it is the means and the degree charged as in counts III and V or person sound mind and discretion of the com- degree charged murder the second as added.) mitting (Emphasis the act. VI; IV counts 609.195, Commonwealth, phrase Merritt v. ing as used Va. of the 180 S.E. 395 degree.... defining in the third situ- of a factual conceive But we cannot concerning also asserts error in- conduct at- such which could make ation for degree sufficient evidence the second third tempted murder conviction, improper jury instruc- intend the death did not where the actor intent, open tions on failure to one teen- occurred. no death anyone and where ager’s juvenile record, failure to disclose a alleged forty-year-old felony, witness’s lack case, a death oc- Unlike the Dahlstrom transcript, grand jury eyewitness of a iden- here, jury obviously decided curred but tification, and character evidence. These of the intend the death Lyerla did not arguments lack merit for sufficient discus- guilty found he was since deceased attempt- sion. Defendant’s convictions for degree murder. of second lesser count ed second murder are reversed. In girls kill the other two he intend to Nor did respects, judgment all other of the trial de- for the verdicts court affirmed. gree murder confirm. at- have likewise found Other courts MORGAN, HENDERSON, JJ., logical impos- tempted homicide a reckless concur. Perez, People 108 Misc.2d sibility. WUEST, C.J., specially. concurs (1981) stated: N.Y.S.2d However, murder in the second SABERS, J., dissents. 2, involves under PL 125.25 subdivision KONENKAMP, Judge, Circuit requires culpable no intent instead J., MILLER, disqualified. recklessness. One mental state of intentionally to cause the WUEST, (special Chief concur- Justice (Cita- by a reckless act. death of another rence). omitted.) tions majority opinion. Evi- I concur Supreme The Court held: Colorado driving girl was the dence of which negligent attempt An to commit criminal part as a of the transaction was admissible requires proof that the homicide thus however, evidence, is gestae. or res Such perpetrate an unin- defendant intended to guilt on the defendant’s not relevant to logical killing impossibility. tended —a degree Defend- charges murder. of second “negligence” “attempt” and The words girls harassing were the ant testified that another; they are are at war with for his an extent that feared him to such internally and cannot sensi- inconsistent to their the shots disable and fired life bly co-exist. addition, prosecutor con- the pickup. girls closing argument the his 161, ceded Hernandez, Colo.App. People v. Thus, the harassing the defendant. 900, (1980). v. State 614 P.2d See also killed the defendant was whether issue Melvin, 49 Wis.2d 181 N.W.2d im- “an act Tammy perpetrating Jensen (1970) Carter, 44 Wis.2d State evincing minently dangerous others (1969) held 170 N.W.2d where it life, mind, of human regardless depraved a the a statute similar our own that under design premeditated although any without attempted second murder crime particular indi- to effect the death agree exist. with the reason- does not We and, 22-16-7), killing in so (SDCL vidual” ing Stating rule most of these courts. the or excusable her, justifiable did not commit succinctly: homicide. murder, one need To commit not intend life; guilty of to take but to be an (dissenting). SABERS, Justice murder, so It tempt he must intend. opinion on act, majority it from the I dissent is not sufficient had degree murder.” “attempted fatal, second murder. proved would have been Lyerla argues legal impossi- it is a —if together, A misses all consti- bility attempt to murder commit tute second-degree un- degree and his two convictions for second der South Dakota law. should reversed. this offense be Since agree I majority jury that the object did not instruc- obviously decided that did not in- second-degree murder, tions tend the death of deceased since he was However, plain argues he now error. an guilty found of the lesser count of second- argument plain error cannot based suc- degree murder. Nor did he intend kill no error. ceed where there is girls other two as the verdicts for at- question majority frames tempted second-degree murder confirm. manner, attempt- “If different as follows: However, had his acts resulted in their is not a crime in ed deaths, directly either the case of Dakota, then a defendant’s failure to Jensen, Tammy or indirectly, through a object cannot establish that crime.” I resulting accident, car he would have been agree with that statement the law the guilty second-degree murder. Since majority and with their statement that “[i]n did deaths guilty result he was at- crime, attempt order to to commit a there tempted second-degree murder under perpetrator must exist in the mind South Dakota law. intent to commit the acts con- offense.” Citing State v. stituting provides: SDCL 22-4-1

Primeaux, (S.D.1982); 328 N.W.2d 256 person “Any attempts who to commit a Poss, State v. (S.D.1980); 298 N.W.2d 80 crime and in attempt does any act Rash, State v. (S.D.1980); N.W.2d 416 crime, toward the commission of the Martinez, State 88 S.D. prevented fails or is intercepted Judge, and State v. 81 S.D. thereof, perpetration punishable where specifically, 131 N.W.2d 573 More I provision pun- no is made law for the agree “[t]o ishment of attempt^.]” such murder one must intend have a criminal- mind, ly perpetrating reckless state of i.e. provides: SDCL 22-16-7 imminently dangerous act while evinc- “Homicide is murder in the second de- ing depraved mind, regardless of human gree perpetrated when by any act immi- life, but design any partic- without a to kill nently dangerous evincing others However, person.” ular majority also mind, depraved regardless of human cites Minnesota Supreme Court case of life, although any premeditated Dahlstrom, State v. 276 Minn. design to effect the of particu- death 53, (1967) part as follows: lar individual.” “But we cannot conceive of factual This statute deals with “homicide” which situation which could make such conduct is degree.” named “murder in the second attempted murder in the third spe- Neither statute contains an element of where the actor did not intend death cific simply requires intent. SDCL 22-16-7 anyone and where no death occurred.” required danger- an The act. act must be concept That is not that difficult: (or stupid) ous to others under South Dako- shot, For example, knowing he is A a bad If attempts “dangerous” ta law. one or attempts eyelashes to shoot B’s off from “stupid” only act it is The “in- sufficient. fifty away feet “attempt” voluntary tent” necessary or is a —if B, A misses and kills it constitutes opposed or a non-volitional forced act. second-degree murder under South Dakota case, In clearly attempted this law; dangerous stupid pulling and act shooting trigger gun at —if A and or near the B, misses and wounds it consti- second-degree people they riding. tutes attempted or the car in which murder un- law; der South Dakota This is for sufficient second-de- homicide, law. Dakota as attempted under South also known gree murder second- Accordingly, murder. 22-4-1. and SDCL 22-16-7 SDCL second-degree murder is a crime in South jurisdictions cited other The cases from Dakota, Lyerla’s and convictions for at- In flaw. each a common have tempted second-degree murder should be an ele- attempt statute contains case affirmed. the standard specific while ment of intent required culpability otherwise underlying is offense commission intent. In

something than less (as set forth respect, Instruction No. opinion) majority footnote Lyerla than the law re- more favorable implies paragraph quired might required for also be specific intent second-degree murder. opinion People v. Per majority cites 46, 48

ez, 437 N.Y.S.2d Misc.2d Hernandez, 44 (1981) People v. Colo. and (1980), for the App. 614 P.2d BAR, INC., BLUE FOX Plaintiff intentionally cannot that one proposition Appellant, by a attempt to cause the death of another proposition reckless act and for killing is perpetration an unintended YANKTON, Defendant CITY OF Further, logical impossibility. these Appellee. support proposition cases are cited Nos. 15739. “attempt” “negligence” that the words another; they with one are are war Supreme Court of South Dakota. sensibly

internally inconsistent and cannot Argued Oct. place emphasis cases co-exist. These contrary to the the word “intentional” 8, 1988. Decided June attempt. pre As South Dakota statute indicated, viously “attempt” the “intent” or

required is under the South Dakota statute

simply opposed an voluntarily act as involuntary or forced action. other

words, trigger pull gun enough. type This

shoot “dangerous” “stupid” “attempt” and the another; they act are at war sensibly internally consistent and can are co-exist. of the confusion in matter

Much murder, results the use the word implies which intent to take life. What dealing really are with under we homicide, Dakota law is named second-de- intentionally pull trig- gree murder. To ger gun dangerous in this and shoot was not homicide because

manner neither died, girl Gropper it was

Case Details

Case Name: State v. Lyerla

Court Name: South Dakota Supreme Court

Date Published: Jun 8, 1988

Citation: 424 N.W.2d 908

Docket Number: 15446

Court Abbreviation: S.D.