State v. No Heart

experts’ opinions was warranted. In this

case, both law enforcement officers ren- opinions

dered personal based their

perceptions of the defendant and recited establishing they

facts previously persons intoxicated

observed and had train-

ing regarding identification of intoxicated

persons. Training and characterization as expert required are not in order to de- person

termine whether a is under the in-

fluence of alcohol. The State did not re-

quest to either qualified officer as an

expert object and Hall did not to their

opinion testimony or to the admission of

opinions by nonexperts. SDCL 19-15-1

provides nonexperts may testify re-

garding opinions rationally or inferences perceptions. evidence,

based on their

therefore, did not warrant the instruction.

The trial court’s denial of Hall’s motion suppress incorporated with the exclusion referring

of recorded statements to the re-

fusal of the incriminating chemical test or

recorded statements made to Miran- warnings

da and the trial court’s refusal of proposed jury

Hall’s instructions were cor-

rect and judicial were not abuses of discre-

tion.

The conviction is affirmed.

All the Justices concur. Dakota,

STATE of South Plaintiff Appellee, (# 14151)

Stanley NO HEART and Anna (# 14160), Defendants Appellants.

Nos. 14160.

Supreme Court of South Dakota.

Argued Oct. 1983. July

Decided Miller, Deputy Atty.,

Steve States Sioux Falls, plaintiff appellee; Joaquin for K. Hanson, Falls, Atty., State’s Sioux brief. Falls, Parliman, Thomas W. Sioux appellant Stanley No Heart.

Joseph Jongeling, Neiles and Dan Sioux Falls, appellant Anna Williams. MORGAN, Justice. (No Heart)

Stanley No Heart and Anna (Williams) appeal their first-de- gree robbery convictions. The issues (1) raised on their are: Whether the seized- the warrantless search suppressed; the motel room should be (2) whether the trial court should have sev- defendants; (3) ered the trials of the two simple petty whether assault or theft are looking for first-degree rob- at the motel lesser included offenses Heart. The police manager, upon noticing light of a in room 22 bery; admission whether knowing the vic- and the room opinion officer’s on the cause of was unas error; signed, prejudicial investigate asked the officers to injury tim’s testimony regard- argues manager room. No Heart whether a officer’s ing are inadmissi- had no to consent to a statements witness warrantless hearsay. The trial court ruled room and cites ble Stoner Cali negative 483, 889, on all issues and we affirm. fornia, 376 U.S. 84 11 S.Ct. L.Ed.2d 856 The Stoner stated: Court 1982, 10, and Ra- On November “[ in nothing the record to T]here Elk) High (High Voigt Elk met chel James police indicate the that had basis what victim, Falls, (Voigt), in bar in the a Sioux night soever to believe that the clerk had They proceeded High Dakota. to South permit petitioner been authorized the to apartment party to a Elk’s have and while police petitioner’s the to search the room.” they joined group. No were there Heart the 489, U.S. at 84 at 376 S.Ct. 11 L.Ed.2d Voigt that in the of testified course the 860. distinguishable at This case is from evening Heart him on the of No hit side the case, In this manager Stoner. the motel head, rendering him unconscious. When merely to did consent a search of No consciousness, Voigt regained face he was manager Heart’s room as did the in Ston sitting on floor No Heart on down the with us, In the police er. case before the were choking Voigt his back him. testified that authorized, only they requested were to pinned he the he while was floor felt supposed search a that room was to be hip pock- his from someone take wallet his was apparently occupied. vacant but finally Voigt No et. Heart released that, through was not discovered until later Williams, girl him leave told to No Heart’s errors, comedy a the room had been friend, Voigt alone. When asked Heart No appropriated and occupied the defend wallet, to return his Heart No turned ants. Voigt could Williams. who not see Wil- view, liams because No Heart blocked his States, In Katz v. United 389 U.S. apparently testified that Williams reached (1967), S.Ct. L.Ed.2d 576 the gave something inside her blouse for it Supreme adopted United States Court a

to No No Heart. Heart turned back two-prong justifying test the invasion Voigt Voigt and handed him the wallet. constitutionally protected privacies. apartment, left discovered cash and Harlan Justice delineated test fol missing credit were cards from his wallet concurring opinion: lows in his whether reported police. loss to Later (subjective) the defendant had an actual evening a search of motel room in expectation privacy; recog society’s High which No Williams and Elk expectation nition of the defendant’s produced staying Voigt’s were one of credit expectation. the reasonableness of that cards. Heart and Williams were 516-17, 360-62, 389 U.S. at at 88 S.Ct. charged first-degree robbery with and were L.Ed.2d at 587-88. charged by jury. convicted as applied The trial court this test and The first issue No Heart raises subjective concluded that No Heart is whether the court should expectation hold, privacy. It went on to suppressed evidence seized from the however, peculiar that under the circum motel room because the and seizure society stances of this case would not rec illegal were lack of search warrant. ognize expectation No Heart’s as reason affirm We the trial court’s refusal. manager able because the had the motel The record shows Heart checked to authorize police to check and occupied into room number room supposedly unoccupied but enter the room number investigating 22. The officers The trial court further concluded that they were directed to room when supporting exclusionary arrived rationale assault, Simple rule—deterrence of misconduct— as defined at SDCL 22-18-1(1) (5), inclusive, requires by suppression would not be advanced as an attempt bodily element causation of challenged the evidence in this case. injury, necessary which is not a element of opinion, our the trial court correct in first-degree robbery. This element of sim assuming society recognize would not assault, fact, ple principal element expectation privacy defendant’s un- thereof, is not a common element under the der these unusual circumstances and the test; therefore, phase legal third réfusing trial court was not in error in simple assault a necessarily is not included suppress the evidence seized search. first-degree offense of robbery. Because The second issue is based on No Heart’s simple first-degree robbery assault and fail test, request legal at trial for a instruction that we need not consider the assault, simple 22-18-1(5), SDCL is a nec- factual test. essarily lesser included offense of first- Williams asserts that the trial court degree robbery by force and Williams’ re- refusing erred in jury to instruct the on quest jury for a instruction that second- second-degree theft, petty set out at SDCL theft, degree petty SDCL 22-30A-1 and -17, 22-30A-1 and necessarily as a included

-17, necessarily is a included lesser offense first-degree lesser under the offense rob robbery. The trial court denied both bery charge. apparently The trial court requests and both defendants raise this agreed necessarily that theft was a includ issue on ed offense it jury because did instruct the grand is, however, on theft. There a wide As was in Kafka, stated State v. 264 grand distinction petty theft between and 702, (S.D.1978) (Zastrow, J., N.W.2d theft in degree by the second as defined concurring specially), “[tjhere are two tests SDCL 22-30A-17.1 The former is a Class determining for whether an offense ‘nec- felony and the latter is a Class 2 misde essarily greater (1) included’ in a offense: objection meanor. Williams raises no on (2) legal and factual. Both tests must be appeal 17, giving of instructions ‘necessarily satisfied before a included of- theft; fact, grand on in it is entire (Em- fense’ given.” instruction should be ly ignored in her brief. In view of the fact added.) phasis jury that the opportunity had an to con sider a lesser (grand included offense theft), legal guilty test has but returned a variously been verdict of on The offense, described, greater succinctly prejudi we can see no requires: but stated it cial error in (1) the trial court’s failure to also the elements of the lesser offense must instruct petty degree theft first (2) greater; than penalty be fewer petty degree. theft second for the included offense must be lesser greater; (3) than the the two offenses The third issue considered in this great contain common so elements that the was raised questions Williams. She er offense cannot be committed without whether the trial failing court erred in committing Kafka, supra; also the lesser. sever her trial from No Heart’s. SDCL O’Connor, State v. 86 S.D. 194 23A-11-2 expressly requires that it “[i]f (1972). appears that a defendant or the state is provides: 1. SDCL property, 22-30A-17 property or the value of the stolen theft, (sic) grand Theft is exeeds two if: hundred dollars in value. (1) property The petty value of the stolen Theft exceeds in all other cases is theft. Grand dollars; two hundred felony. Petty theft is Class 4 theft is divided property stolen is livestock or a fire- degrees. Petty into two theft of one hundred arm; degree dollars or more is in the first ais (3) Property value is taken from the Petty 1 misdemeanor. .Class theft’ of less than another; person of or degree one hundred dollars is in the second by receiving In the case of theft stolen is a Class 2 misdemeanor. property, the receiver is a dealer in stolen joinder against prejudiced by offenses or of once when the evidence or again defendants an indictment information was introduced and in- jury joinder together, or presume such structions. We must fol- may separate order election or lowed limiting instruction. State v. counts, grant 390, 396, of de- Reddington, trials of a severance 80 S.D. 125 N.W.2d provide fendants whatever other relief Consequently, 61-62 in- those 23A-8-3(6) justice requires.” protected re- against SDCL prej- structions quires request that a for severance of udice against from evidence admitted charges or defendants under 23A- SDCL Heart. 11-2 made trial. Williams did argues Williams also that the trial

not raise this motion until mid-trial. court should have severed the be trials cause her defense was inconsistent with No chambers, discussion the trial Heart’s. She contends that No Heart’s timely court noted that the motion was not testimony at trial forced her to take made,2 deny but did not the motion on that argument light witness stand. Her fails in basis. The trial court denied the motion testified, the fact that she failure show Williams’ sufficient jury would have been instructed to draw no prejudice Reiman, and cited State v. inference from her testify. failure to (S.D.1979), N.W.2d 860 and State v. Winck Moreover, argument that defenses are ler, (S.D.1977), 260 N.W.2d 356 as the basis “inconsistent” is a generally accepted for the denial. In order to economize on basis severance. look Courts instead to administration, judicial time in general strategies whether defense of co-defend persons jointly rule has evolved that indict antagonistic ants are or preju whether real together. ed should be tried 284 N.W.2d at dice results from irreconcilable defenses. especially 865-66. This is applicable 610 F.2d at 526. where, here, may one proved crime be against two or more defendants the from A motion to sever trials ad same evidence. 284 N.W.2d at 865-66. discretion, dressed the to trial court’s See Boyd, United States v. 610 F.2d prejudice therefore clear an abuse of (8th Cir.1979). 525-26 are required justify discretion to reversal 525; of for denial severance. 610 F.2d at Williams first contends that she was 284 A N.W.2d at 865. defendant must prejudiced because certain in evidence was show more than a acquit better chance for against solely troduced No Heart. This trial, separate tal in a he must demonstrate held, however, court has that admission of affirmatively joint prejudiced that the trial against only of one several de the possibility of fair trial. 610 F.2d at does fendants its own create suffi prejudice justify reversing cient the trial limiting court proper jury when instruc The test here is whether Williams given. 866; 284 affirmatively tions are N.W.2d at State joint demonstrated that the Bonrud, (S.D.1976). v. 246 N.W.2d 792 prejudiced her fair trial. Here, trial court jury the instructed the 610 F.2d at 525. We hold that she has solely twice that the evidence was prejudice admitted demonstrated that here. From provides: (3) objections 2. SDCL 23A-8-3 Defenses and based on defects (other or the indictment information than defense, Any objection request or which is jurisdiction that it fails to show in the court capable of determination without trial of the charge objections or to an offense which shall general may by issue be before raised trial mo- by be during noticed at time may tion. Motions be written or at oral pendency proceedings); of the judge. following discretion of the The must be (4) evidence; suppress Motions to raised to trial: (5) (1) Requests discovery chapter objections under Defenses and based on defects 23A-13; or prosecution; institution Requests objections charges upon prior Defenses for a based severance acquittal; conviction or defendants under § 23A-11-2. technical, “scientific, record, its was admitted because this the trial court did not abuse knowledge” was need- specialized or other denying this motion to sever. discretion evidence, or because ed to understand Heart has raised the fourth issue skill, “knowledge, experience, officer’s questions He in this considered qualified him as an training, or education” investigating police offi- admission of the weight expert. SDCL 19-15-2. See opinion Voigt’s injuries were not cer’s that credibility opinion was of the officer’s by caused a fist. The officer testified See, jury for the to determine. State Voigt’s a cut on left ear and a there was Beek, 88 S.D. Van the ear. Based bump on his head behind (1974). objection to the ab- No Heart’s experience, and his on these observations goes proper of a foundation sence opined Voigt’s injury the officer was weight opinion, but not to of the officer’s sharper by object than a fist. caused competence. court has said that its This bump the officer ob- The diameter of the judge some latitude in the trial is allowed was, opinion, in his too small to served Russell, admitting testimony. Ewing v. caused a fist or other flat have been 563, 565-66, 137 N.W.2d S.D. the offi- object. The trial court admitted objection testimony No Heart’s cer’s over No Heart’s that admission of assertion opinion improperly invaded the opinion province the officer’s “invades province proper and lacked jury” the fact that all overlooks foundation. conclusory goes opinion testimony is opin argues No Heart that the ultimately must questions of fact which beyond given ion the officer’s “realm determined the trier of fact. This expertise” nothing and therefore more 19-15, adoption SDCL ch. derived court’s conjecture speculation. No Heart than Evidence, from the Federal Rules dem- on the State’s failure bases assertion jury’s province its that the onstrates belief lay proper foundation for the officer’s infringed by expert is not admission of expert qualification as an and for the basis nonexpert opinions. and/or opinion, of the officer’s thus he relies gave opinion The officer his re expert. the officer’s status as an Nonex- injury garding the manifested result of an however, testimony, requires pert no foun injury, opinion and his on the cause of the (Federal dation and under 19-15-1 SDCL upon injury. based his observation of 701) nonexpert may of a Rule Evidence opinion not state his on the medical He did testify regarding opinions her his or or symptoms or traumatic cause of the of perceptions inferences which are based on Voigt’s injury and therefore was not be understanding and which facilitate a clear yond experience. the realm of common testimony of the or the determination of a injury that of is is true when cause an fact in issue. Fire Ins. Co. United States ordinary experi far so from the usual and (S.D.1981). Dace, v. 305 N.W.2d The needed, however, expert testimony ence is gave opinion upon officer his based his question requires recognition here of injury perception and his observation by the distinction between a wound caused attempt clarify of the situation in an his by sharper object. fist one a and caused a testimony help overall for the beyond This distinction is not the realm of them determine a fact in issue—the cause average person’s experience. Voigt’s injury. and motivation behind Voigt’s question memory of the events in The final issue considered on this unclear; opinion was thus the officer’s was involves No Heart’s assertion that the trial light conflicting prejudicial needed to shed on testimo court committed error when it ny jury. that The testimony regarding was before the State refused to admit state- quali attempt High made no to have the officer ments Elk made to a officer expert gave investigating fied as an and the trial court was who crime. The offi- opinion testimony High night no indication that his cer talked to Elk later that However, evening’s economy High journeyed. events Elk if and effi- about the ciency preclude him the fair allegedly that went administration of told road, they pockets. justice, must take the while through Voigt’s The trial court low high justice case, takes the road. this proof. of also refused No Heart’s offer efficiency economy high road, grounded took the trial court’s refusals were justice a on while took backseat the low hearsay specifically ques- rule. When referring I road. am failure trial, High Elk tioned at testified that she court trial to sever trials of No Heart did not see Williams take the wallet from and Williams. Voigt’s pocket. appeal, On Heart con- No testimony tends officer’s concern- that the provides: appears SDCL 23A-11-2 “If it ing High Elk’s statement admissible was prejudiced by a that defendant ... a 19-16-28, hearsay under SDCL Rule joinder ... of defendants ... for trial to- 803(24) 19-16-35, 804(b). Rule or SDCL gether, may separate the court order ... counts, grant a trials severance of de- court, prior The trial to No Heart’s asser- provide fendants or whatever relief other 19-16-28, -35, tion a of SDCL as basis for ” justice requires.... provision, Under this admissibility, High Elk’s statement treated appellant Williams made a motion for sev- prior to the officer as a inconsistent state- opening erance based statement pointed testimony ment and out that the attorney of No Heart’s and the cross-exam- theory on was inadmissible because ination the State’s first two witnesses High given Elk notice had been attorney. No point, Heart’s At this it be- used, might op- nor the statement apparent No came Heart and Williams explain portunity deny the statement Appellant inconsistent defenses. Wil- required 19-14-24, SDCL -25. State liams contends it was an abuse discre- (S.D.1981). v. Gage, 302 N.W.2d 793 tion the trial court to refuse to sever get attempted Heart’s around counsel her trial from that of No and that requirements notice for use of I prejudiced agree. she was as á result. by requesting inconsistent statements case, Under the facts this I would re- get High opportunity to Elk into back grant appellant separate verse a trial. comply in order to with 19-14-25. SDCL Heart, however, specifically waived this “Notwithstanding the need for efficien- approach, the trial court established that cy, joint inappropriate trial is if it sacri- his voluntary knowledge- waiver was fices defendant’s fair trial.” argued able and No Heart has not Reiman, State theory on (S.D.1979). instance, prejudi- highly In this motel cial obtained from the room rely No Heart cannot SDCL 19- against appellant’s was admitted at admissibility 16-35 as authorization codefendant, No Heart. The evidence was testimony. theory officer’s This against not admitted Williams because presented to the trial court and is not nothing there was in this evidence which preserved Watkins, State would link her to the motel room. As the 82, (1975). S.D. 228 N.W.2d 635 majority opinion points out, admission against only evidence one of de- several C.J., FOSHEIM, and WOLLMAN and fendants on its does not own create suffi- DUNN, JJ., concur. prejudice justify reversing cient the to trial HENDERSON, J., dissents. Reiman, 284 court. How- HENDERSON, (dissenting). Justice ever, evidence, coupled the de- with testimony implicating fense of No Heart PREJUDICIAL JOINDER placing room, her in Williams and the motel The business of the not courts is efficien- clearly jeopardized her for a fair chance cy. The business of the is not econ- courts Any cautionary trial. instruction with re- omy. The business of the is to mete gard courts to highly this evidence would inef- be justice. out it can If be done with efficien- fective and would overcome the fact cy and economy, surely should the indirectly apply that road be State was able to fact, marking In all on this door. number damaging toward Williams poorly illuminat- the room numbers were testimony codefendant through the of her key identify. to would ed and difficult although do di- it could not so No Heart — designated the room. open the door to rectly. companion, No Upon suggestion of his Further, it that No when became obvious adjacent, key on the door Heart tried Heart, attorney, through his defense had that, wrong room had thinking perhaps, depict strategy attempting enough, key Sure been indicated. engaged fight, in he was but later found to opened the door to what was High Elk stole and Rachel that Williams compan- #22. No Heart and his be Room instant, wallet, evidentiary real at that occupied that room. ions began to in. Wil- prejudice and actual set know, he No Heart did not nor did totally defense liams inconsistent suspect, that he any reason to facts and her portrayal such a with wrong At no time was he motel room. antagonistic to her co- entire defense was in other than the room aware that he was on, it was man- defendant. Thenceforward registered paid he had for. ifestly to be tried with unfair for Williams testimony No No Heart. Without unusual, Though they in these facts are Heart, place appellant the State could not appellant No Heart’s way no detract from # 22. When No in Motel Room legitimate expectation that his room would in defense Heart took the stand his own illegal free from an search. Katz v. testimony, appel- gave this he forced States, 347, 507, 389 U.S. 88 S.Ct. United likewise, despite her to do lant Williams (1967); Stoner, 376 U.S. 19 L.Ed.2d 576 so, solely to do right and intention not 483, 889, 11 L.Ed.2d 856. The S.Ct. of the adverse inference that because surrounding occupancy circumstances testify from her failure to would be drawn privacy of the room did not vitiate his inter light implications. Heart's in of No Lyons, 706 est therein. United States v. 860, Reiman, 284 N.W.2d such a circum- (C.A.D.C.1983). F.2d 321 specifically stance was held to warrant a Further, by happenstance it was not separate trial. police manager the motel directed the find, facts, I under these that the trial Room # 22. is clear denying its discretion in abused motel, record that the officers came to the motion for severance. manager’s request, not at the but pursuing investigation and course of their UNREASONABLE SEARCH looking for No Heart. The entered AND SEIZURE specifically appellant the room in search of guest in A a motel room is entitled to just investigate the and not protection against constitutional unreason supposedly peculiarity light of a in a unoc- seizures, able searches and v. Cali Stoner cupied room. 483, 889, 11 fornia, 376 U.S. 84 S.Ct. distinguish I would not this case from 856, provided legitimate L.Ed.2d he has a 483, Stoner, 376 U.S. S.Ct. expectation premises. privacy majority L.Ed.2d as the has done. Illinois, Rakas v. 439 U.S. 99 S.Ct. This search was conducted without a war 58 L.Ed.2d 387 Under the cir appellant rant without No Heart’s con case, appellant cumstances of this sent, and did not become lawful because expectation privacy in Heart’s Motel conducted with the consent of the motel legitimate, # Room 22 was reasonable manager to either enter or search the way and was in no lessened the error protection room. The the Fourth surrounding occupancy of the room. disappear Amendment “would if it were registered paid No Heart and for a motel depend upon left to the unfettered discre (what given key he employee room. He was tion of an [motel]. was) thought # Room 23 and was directed that this search follows without warrant Stoner, particular to a door. There no room was unlawful.” 376 U.S. at 893, 11 at L.Ed.2d at 861. 84 S.Ct. found in the motel room should not

articles sum, into evidence. In have been entered war-

this search was conducted without a room, occupied a motel

rant of rented Heart, the Fourth Amendment

protects that room and its lessee from accompanying seizure absent an probable cause.

search warrant based 11, 1984, I take note that on June in Nix — Williams, U.S. -,

v. S.Ct. (1984),

81 L.Ed.2d 377 a Sixth Amendment case, Supreme Court to counsel exception

adopted discovery an inevitable exclusionary essence, rule. In it was illegally if

held that obtained evidence inevitably

would have de been discovered

spite illegality, the taint of no rational basis excluding exist

could evidence.

Under the circumstances of No

there would have be a factual determina regardless

tion below that over

reaching by police, the evidence would inevitably by legitimate been obtained

means. 43-3,

SALEM SCHOOL DISTRICT Appellant, Plaintiff and S.D., See also 347 N.W.2d 594. INC., CONSTRUCTION, PUETZ Defendant, Fritzel, Kroeger,

Wendell C. Jean R. Ed- Griffin, Berg, Billy L. ward L. Milton Beck, Fritzel, Kroeger, R. dba Griffin & Berg, Partnership, and United Pacific Company,

Insurance Defendants

Appellees.

No. 14339.

Supreme Court of South Dakota.

Argued May 1984. Aug. 8,

Decided

Case Details

Case Name: State v. No Heart

Court Name: South Dakota Supreme Court

Date Published: Jul 11, 1984

Citation: 353 N.W.2d 43

Docket Number: 14151, 14160

Court Abbreviation: S.D.