*1 gеntly respond to the issue and assist the finding process. the fact hereby am authorized to state that joins spe-
Chief Justice FOSHEIM
cial concurrence. Dakota,
STATE of South Plaintiff Appellee, REED,
Stanley Owen Appellant.
No. 15023.
Supreme Court of South Dakota.
Argued Feb. 1986. April
Decided 1986.
Rehearing May Denied
H clothing. While he was in a state of un- dress, girl the other entered the bedroom way bathroom, on her and discover- appellant pants ed with his and underwear down. The softly victim testified she called to girl the other but was afraid to speak loudly. She claimed appellant told girl room, the other which she leave Appellant did. had then sexual intercourse with the victim. told him She to refrain Gormley, Deputy Gen., Atty. Grant Chief responded placing he but his hand over Pierre, plaintiff for appellee; and Mark V. they her mouth. engaged While were Pierre, Meierhenry, Gen., Atty. on brief. intercourse, a car came to the trailer house Benjamin D. Debra Watson and J. Eicher appellant get and told the victim to her Offices, Rapid City, for Law of Wallahan clothes as he ran into the bathroom to appellant. and people dress. Three entered the trailer as appellant and the victim came out of the WUEST, Justice. fully bedroom dressed. Appellant, Stanley (appel- Owen Reed According version, appellant’s he and lant), attempted was found sec- girls sitting the two living room
ond-degree rape by jury verdict and sen- visiting him, when the victim stated to penitentiary. tenced to the ap- state He “Come on.” him She took the hand and peals and we affirm. him led into the bedroom the trailer September 1984, girl house while talking was invited the other trailer telephone. they house of Baker Debra Brown When entered the bed- (Brown) room, lay carpet. some clothing Later that victim took off her and day, taking he was left alone under daugh- got began with Brown’s He bedcovers. ter, victim, and the daugh- got a friend of the off his clothes his and underwear and girls ter. Both years pants were fourteen old down to his knees. He had an erec- tion, graders. and seventh girl which time the othér entered said, “God, you guys.” the bedroom and dispute is a There in the testimony of immediately He and the victim dressed and appellant and the victim. Victim testified room, living went into the at which time sitting she bag on a bean chair when three friends arrived. further began to tickle her. He said “I’m he went testified when into the bed- horny,” replied, go.” and she Ap- “Let’s room with the victim commеnced tak- pellant grabbed her, pulling her up, and ing off his he intended to have sexual she back sat down on chair. He then victim; however, intercourse with the got up her back they walked toward girl the other into the came room he lost went, him, the bedroom. As she told erection, mind, changed his his and immedi- Upon entering bedroom, “Don’t.” ap- ately dressed, nothing occurring be- pellant placed began her on the bed and tween himself victim. The and the three lifting her up remove shirt from the nothing friends came into trailer again She appellant, bottom. said to said about the incident for several “Don’t,” replied, and he “I won’t take no weeks. for an answer.” She he claimed unhooked bra, and removed her incident, as she tried to appel- hold it Several weeks after on; he unzipped then and unbuttoned lant and visiting others were at the Brown jeans pulling down, her although them According people present house. trailer up tried hold them by hanging occasion, appellant began boasting onto the at that loops. Appellant belt on her sat arms to he had sexual intercourse with the victim position keep her while removed again. and would do it Sometime after this conversation, again.” do it Brown contacted victim’s The court then observed the girl girl told her the witness a fourteen-year-old mother and who raped. apparently mother The court Victim’s refused believe nervous. did not believe daughter prejudicial she had her the statement was Brown until asked Afterward, denied the motion for repeatedly it was At first the mistrial. true. victim trial, fact, on a motion for a new the court said finally denied the admitted *3 the answer was not a result “bad faith raped her. inсident The was re- governmental overreaching or or neg- even ported police department, which re- to the ligence prosecutor’s part.” the on The prosecution second-degree sulted in this for court concluded: rape. finding I my am that from recollection of trial, appellant Prior made a motion occurred, the events as and al- prevent state or of its witnesses though error, going this was I am to find testifying directly or indirectly from either error, irregularity that this defect or or past concerning his criminal record for the substаntially variance not does affect reason that all the offenses other than a rights of the Defendant. That the imme- charge third-degree burglary were misde- diate admonishment and the curative in- alleged The meanors. motion further struction were sufficient.
third-degree burglary conviction would be
Appellant claims the
order
court’s
was
prejudicial
probative
more
than
and could
response
violated
the unsolicited
of the
charge
lead the
believe that
was
victim. The comments of counsel and the
day
trial,
rape.
another
On the
аssumption
court
an
on their
indicate
reserving
ruling
court
its order
its
entered
However,
that an order was violated.
a
immediately prior
“until
to the time the
careful examination of the record and tran-
witness,
is called as
defendant
a
on his own
scripts
no such
reveals
order
entered.
behalf,
he decide
take the
stand.”
Rather,
transcript
pretrial hearing
a
of the
first
The
witness for the state was
prior
clearly
and another
to trial
show the
After the
preliminary
victim.
usual
order,
court refused
enter such
but
name,
address,
questions
age,
toas
ruling.
reservеd its
victim was asked if she knew Mr. Reed.
recognize
We
there are situations when a
answering
affirmative,
After
the fol
gives
witness
answer
unsolicited
which
lowing occurred:
prejudicial nothing
is so
but a new trial can
Q
you
Do
know
Mr.
how old
Reed is?
process.
assure the defendant due
Yes,
A
He’s in his twenties.
Schlittenhardt,
State v.
made a for motion chambers gave wherein witness an unre claiming sponsive the state had violated the court’s that the answer van order, highly prejudicial ap- robbery charge in on a arrested pellant. response stolen, In to the motion for a we “The said: trial has wide mistrial, deputy attorney determining prejudicial state’s told discretion in ef statements, the court the witnesses were instructed fect only of a witness’ and it is Upon clearly commеnt defendant’s record. when this discretion is abused that specific inquiry from the court whether he this court overturn will a decision.” 290 witness, Winckler, citing v. deputy had admonished the N.W.2d at 494 replied: right, (S.D.1977). “That's I Your Honor. will Closs, (S.D.1985), object we mitigation 366 N.W.2d to this until alteration “ showing prejudice sentencing hearing, said: ‘An actual when moved granting justify must exist to for a trial change. new because Clabaugh, replied objection mistrial.’ N.W.2d trial court to her time, saying: courts have you Trial con “So if refer back ruling upon pattern you you’re reading siderable discretion a mis see when trial.” you instructions аloud and notice that there’s a typo and that’s I cor- when denying trial court’s decisions in my rected that handwriting, you for lant’s motion a mistrial later a new following assume, were I along, were abuses of discretion. It ob- reading weren’t served firsthand the effect remark you?” replied, Counsel for the defense upon jurors and determined the “No, working my closing, I was considering remaining capable *4 final touches on it.” despite evidence in an unbiased manner the remark. We find no of abuse discretion The court shall in no qualify, case there. or modify, any explain manner to the jury any given, written instruction unless instructions Appellant contends num- qualification, modification, explana such impermissibly bered 5 and were mod- tion shall first have been reduced to writ ified trial the court after the instruc- ing part and made a of such instructions tions had been settled. After both sides 15-6-51(a). and settled. SDCL This rule rested, appellant appeared state and applicable to both civil and criminal judge before trial the the to settle instruc- cases. 23A-25-4. SDCL See also tions, were orally which to be read to the Roberts, (1932). S.D. N.W. 389 presented and then to it in written patently disregarded, When these rules are Appellant form for its deliberations. made the will be inquiring case reversed without objection no to instruction number 5 at this questions Roberts, any prejudice. into of pertinent time. The of this instruc- supra. regard We do not the modification tion, settled, as stated: patently of instruction 5 as dis number The proof upon burden of rests the regarding the rule. harm We consider it prove allegations state to all of material error, defect, “Any irregularity less error. every the Information and each and or variance which does not affect substan doubt, such of proof and burden never rights disregarded.” shall tial SDCL Defendant, shifts to the upon rests Remacle, 23A-44-14. See State v. throughout the State trial of the the case N.W.2d 38 prove charged by proof beyond challenges
offense a rea- also instruction added.) (Emphasis sonable claiming impermissibly number it was doubt[.] modified words addition fifteen judge As the trial read the instruction to into the judge’s inserted instruction he realized the word “doubt” handwriting. During settling first line the instruction was an error in- appellant objected to “element,” and should have been sо grounds number struction 13 on read the first sentence of the instruction there justify sufficient evidence to with the word “element” in it of a inclusion lesser included offense. rather than “doubt.” The also drew objection The court overruled the through a line the word “doubt” and wrote presented jury. instruction to the above it the word “element.” Appellant’s deliberations, object During counsel did not its this sent change question one-word in the instruction nor did the court a transcribed approach permis- bench and ask for No. follows: “Instruction 13 and No. 15 sion to make a record сonflicting outside the hear- seem to be with each other. Is ing Indeed, counsel did not there source help that could us solve Signed Walling.” Although the dilemma? Steven omitted were words jury requested and his discovered when the
The trial court called further information, the together complied state court SDCL and counsel for the counsel 15-6-51(a) (b), giving op pro- jury’s question, consider the object addition, solution, portunity which he posed resettle instruc- However, objection did. no made on discussion, agreed After tions. grounds the addition to the instruction parties all thаt the court would ad- judge’s was in handwriting instead of “the are not con- vise instructions being typed. objection If this had been flicting, but definitional. Number de- time, easily made at it could have been explains fines and a term the first used retyped. judge’s issue of element Instruction No. 12. Number 13 raised was not until later at the motion for explains phrase used in the defines a new trial. not be No. 12.” second element of Instruction permitted quietly acquiesce, thereby pre parties court then advised serving an error for later use in the event inadvertently fifteen words omit- provide of an adverse verdict. Our rules from ted instruction number which was objection must be made drafted accordance South Dako- with the settled, are instructions otherwise error is proposed Pattern ta Instruction. The court 15-6~51(b); preserved. SDCL that these words be added the instruc- Mountain, White N.W.2d 726 simply Appel- to make it tion read better. Nor, 1983). does this incident constitute objected to the addition of the deleted *5 “plain purview error” within the of SDCL words, arguing improper it would be 23A-44-15. “Plain error” cau applied is give jury a new instruction at that only in tiously exceptional and circumstanc the objection, time. court overruled Mountain, supra. es. White jury in it the called and read above Finally, appellant court contends the trial proposed question. answer to its instructing objec- erred over his The trial court then advised the the lesser of tion on included offense at- words, about addition of the deleted tempted second-degree rape, pursuant stating: your “In your addition to note and SDCL 22-4-1. 13, request, in Instruction fifteen Number met, Two tests must the first erroneously words were omitted. factual, legal and the second before your tаken Instruction 13 and in Number can of trial court submit an instruction a my own inserted those words. lesser included offense to the They go question you put do not to the that Heumiller, v. N.W.2d 126 Court, appeal, appel- to the however.” On “legal not Appellant does contend the test” contends, first, was error for that it contend, however, met. He does not court to modify even if instruction factual test that was not met. The law, and, a correct statement adopted by is factual test this court found second, that the fifteen addition of Karasek, v. 706, People Mich.Apр. in was unduly emphasized words the fact 712-14, (1975), 234 N.W.2d and judge’s were submitted in the in provides, part: “There suffi must be handwriting. evidence, however, in cient when read defendant, light most favorable to the may, giving court after justify concluding a which would in verdict, any instructions and at time before greater offense that the was not committed for recall further fact, was, a lesser and that offense com which, given compli shall be full Heumiller, supra. mitted.” provisions with the ance of SDCL 15-6- 51(a) (b). applies This Appellant rule also claims the evidence case, light criminal cases as well SDCL 23A- rеad in the as civil. most favorable him, merely preparation 25-4. shows distin- 22-4-1, POSHEIM, C.J., guished attempt. MORGAN, from an J., SDCL HERTZ, “attempts,” “Any Judge, acting which describes states: Circuit as a Su- preme Justice, person attempts who a Court commit crime and concur. any
in the
does
act toward the
HENDERSON, J., dissents.
crime,
commission of the
fails
but
or is
SABERS, J.,
prevented
perpetra-
having
intercepted
a member
thereof,
Court
punishable[.]”
at the time this
tion
is
action was
statute
Court,
submitted
Judge,
participate.
interpreted
S.D.
(1964),
We affirm. did not believe the vie- not, therefore, 1980); Bean, Should Court sim- and State v. tim. N.W.2d ilarly reject testimony upon facts the State relies moor the trial i.e., offense, As the lesser-included At- on the court’s instruction tо lesser- tempted Second-Degree sup- Rape, is not Attempted offense of included Second-De- evidence, ported by legally sufficient Rape? gree trial in so instructing court erred Second-Degree In a It Rape word: was prosecutor’s The entire force case or, testimony of the victim under clear- appellant accomplished was that the an act there at all. ly, was no crime young girl of sexual with a who intercourse Brothers, My dry ink is the not, law, Furthermore, could consent. (S.D.1985) Waff, 373 26-30 N.W.2d sought State establish that C.J., (Henderson, J., conсurring; Fosheim, forceful, savage.2 lant’s actions not dissenting)? prosecution never tried to establish sum, presented by In the evidence appellant attempted rape. to commit a rationally supported could have compromise. is convicted via a only a conviction compromise resulting in- from a offenses charged in the indictment. absolutely struction which should not guilty charges either those two given. collected cases above guilty nothing. According- or he was Justice should not be Woods. Waff ly, not err in refusing the trial court did compromised. requested defendant’s instructions on Oien, Under second-degree manslaughter. first and a lesser-included offense instruction can mine.) (Emphasis supplied only ap- be if the evidence law ink Waff, dry N.W.2d at Or plied upon thereto warrant a conviction Woods, on State v. convicted offense. This is still law of 1985)? Woods, held: we The defendant Hence, I this state. would It was reverse. either committed the crime murder or he rape at all. Attempted or no crime Second- crime. any Degree proof. Rape simply not in the We now are faced the samе old proof, When it in the is not it should shotgun advocacy You, State: upon. instructed judge, permitted always are in witness, An unbiased a close friend of and all offenses struct which are victim, that the testified victim was highest charged, lesser included to the one aggressor and solicitor of an act of inter- any given case. Fallacious? Of course! course and the was committed on Judge only Trial Mr. instruct on the True, intention, part. her his from out of the case. is well-settled evidence lips, have intercourse with Fender, in South Dakota. *7 law See v. suggested the victim after she the act and 248, (S.D.1984); N.W.2d 252 358 State v. However, led him to did the bedroom. that
Huber, 468, (S.D.1984); 356 N.W.2d 472 furthermore, place; not take if his testimo- State, 673, v. 338 N.W.2d Miller 676 against ny is to be used him intend- that he 1983); Chamley, 153, 310 N.W.2d State v. ed to have sexual intercourse with the vic- Oien, (S.D.1981); 155 302 N.W.2d tim, then he should also have the 807, (S.D.1981); Curtis, benefit 809 v. 298 807, (S.D.1980); testimony changed his that his mind N.W.2d Wil dressed, son, 477, (S.D.1980); immediately whereupon nothing 297 N.W.2d Feuillerat, 326, (S.D. 292 N.W.2d occurred himself and victim. v. between majority depends opinion 11-year- totally on an 2. The State’s case crumbled under Goll, Michigan, namely, case in the testimony present old State of Peo- of Melissa witness 706, Karasek, Miсh.App. ple crime, 234 N.W.2d alleged jury the scene of the and the so whereas, (1975); aligned dissent is this held. Supreme South two well-reasoned 1985 Dakota Court cases. powerful in this commit This Clearly, the most witness a crime. instruction stuck out strongest her case was Melissa Goll and like a sore thumb and it was no wonder appellant of an implicate statement lawyer fought that the defense the instruc crime, act of a was toward commission “[Ijnstructions give tion. should not undue taking appellant sitting “was on the bed his emphasis any phase of the case favor pants Agаin, off.” it that noted able to either side and even correct state appellant acquitted charge was on the unduly emphasized may ments lawof Second-Degree Rape totally and he is inno- constitute reversible error.” Jorgenson v. cent, law, eyes in the of the an such 219, 143 213, Dronebarger, 82 S.D. Perhaps allegation. there were intentions (1966) (emphasis mine). supplied on the statu- to commit also, Mueller, Mueller v. rape, tory but these intentions did not rise (1974). act, i.e., attempt level of an overt an jury was confused by and troubled Second-Degree Preparation, Rape. yes; language and, par- these instructions attempt, no. Melissa Goll testified that ticularly, Attempted Second-Degree victim was “under the her covers with Rape (which lesser-included instruction covers”; top hands on this indicated should never have been submitted preparation arranging the means for instance). Discovering the first triggered victim, the offense was that words were omitted from the Pat- appellant, per testimony not the Mel- Instruction, Jury tern the trial stated Goll, If issa Goll. believed Melissa going that he was to insert those words. did, obviоusly testimony it then her expressed: He “1 going am to take the accepted was the appellant “was sit- Instruction that to them and ting taking bed his off.” my insert those words.” This, unquestionably, preparation immediately objected Defense counsel Jury under Instruction No. alteration. This found at Trial Tran- devised, might obtained, well ar- Thereafter, script, pages 215-16. ranged the means for a commission of Sec- changes informed of these handwritten ond-Degree yet Rape, would not be judge. now must We examine attempt. sufficient to constitute an There Jury whether or Instruction No. must have beyond been acts that in order handwriting, modified amended and his that an to commit such crime separate magnitude is a error of in in- actually doing commenced toward the structing jury. criminal deed. phrase The judge’s person “but acts of a When one considers the instruction who intends to commit a crime will consti- mistakes this case and the fact attempt” obviously tute a material counsel, appellant, through objected change instruction; alone, reading it strenuously the addition of deleted words— protruded from when it the balance of the asserting improper that it was give instruction, language state the long a new instruction after the case proper elements which render an le- “act” was submitted to the me as strikes gally attempt. sufficient to constitute an being highly unfair for this Court to assert 22-4-1, If one reads SDCL the elements appellant, impliedly, quietly ac- defining punishable “attempt” are quiesced amended, set giving in the of an particular forth. This statute refers to In- handwritten instruction to the *8 “act deed, toward the commission of handwriting judge of the trial did by specifically highlight very crime....” words added thе trial crime of judge give emphasis undue to photo- which intent. convicted. See copy Jury Please note that static Instruction No. at- take acts “toward by tached hereto and this reference made a commission the crime” are not included. hereof, judge’s Jury handwritten notes In Nos. 11 Instructions statu- inserted, pertain tory language employed stating which to an to specific in the execution of such some. readying
“direct act Counsel at this time is the execution of the arguments, intent and toward coagulating key testimony, required elements or at least crime” were honing plea Counsel final attempt. required element for an How- right rely has the on instructions that ever, judge’s Jury notes in handwritten judge are settled. If the decides he wants away Instruction No. took this from (as change reading the instructions he is Jury Instructions Nos. Certain- jury), them to the he/she had better inform person, suggest- ly any act or acts of a as both counsel as to what he is about to do handwriting, in by judge ed the trial (at quietly—and Bench Conference— “attempt” would not constitute an once hear) jury may for the so that counsel appears “intent” established. It had been anew, thereupon, retire to Chambers and Jury to this author that Instruction No. 13 settle the instructions again, and make a jury and did thus confused the mislead Jury record. was not done on Instruc- lesser-degree A jury as to the correct law. 5, although tion No. I note that it involved proof judge’s was created hand- but one There word. is no more tender writing jury and it stood out for the settling time in a trial than the of instruc- prompted read—all itself—which pressure tions. Great exists on the trial jury returning a verdict of toward judge and counsel. Somewhere in the attempt. Exprеssing way, it another courthouse, jury waiting is and wonder- the court’s inferred that mere ing why delay. judge there is a A trial person “acts of a who intends to commit a night, counsel work late into the often- attempt” legal- crime will constitute an times, get exactly instructions ly attempt, thereby sufficient to find an they mutually agree totally disagree. as requirements eradicate absolute that an noted, disagreement, If there is is act had to be a “direct” act—which had to detail, require in the record. We counsel to beyond preparation mere an act —аnd specific objections why make as to the trial “toward the commission of the crime.” In committing How, then, court is error. dur- effect, long as defendant was shown ing judge instructions to the can a intent, any to have evidenced an act what- logically, legally, spontaneously decide enough permit soever was office, preparation in counsels’ convict this judge defendant.3 The trial courthouse, power hours and brain founded his unilateral modification on Reporter “pro- exerted before Court 15-6-51(c), gives SDCL which him the au- tecting the record” can be cast aside? thority give oral instructions. This was wrong because counsel had settled the in- summation, appellant In acquitted give structions and a trial cannot charged; appellant that with which he was oral instructions after written instructions was convicted of that which was never Furthermore, settled. as man- proof. Considering the errors on in- 15-6-51(c), dated SDCL there was no law, I structions have detailed consent to oral instructions or a trial, above, my opinion, pre- a fair waiver thereof. “A present only vented. trial court must sup- those issues to thе which are precedent? precedent?
Good Or bad ported by competent evidence and set forth What have we here? Let us reflect. applicable Johnson, law.” State v. the milieu of the world and the hubbub of day, sanctuary. reflection can be a reading constitutionally entitled to a fair Must counsel hereafter follow the word, impartial jury. Webb, word for lest before an (S.D.1977). Hence, judge change the trial In- instruction? re- deed, spectfully this would be awkward and cumber- dissent. guilt unquestionably
3. When a verdict of or innocence was handwritten instruction devastating had a tipped mulled—under this set of facts—as to where effect on the It verdict. "attempt” began, ended and scales. "preparation” *9 Dakota, STATE of South Plaintiff Appellee, BANKS,
Dennis J. Appellant.
No. 14769.
Supreme Court of South Dakota.
Considered on Briefs Oct. 1985. April 30,
Decided