State v. SimonsState v. Simons
- Reporters:
- ,
- Before:
- Morgan
This appeal stems from the jury conviction of James Michael Simons (appellant) for manslaughter in the second degree,
Appellant admitted firing two gunshots which caused his father’s death. Appellant’s family history involved fights and quarrels usually conсerning the victim’s drinking and mistreatment of his wife, appellant’s mother. The details of the argument that precipitated the killing are immaterial to the issues on appeal except insofar as appellant used a handgun to kill his father.
First we examine appellant’s contention that his constitutional and statutory rights against double jeopardy were violated when the State charged him, in separate informa-tions, with both murder,
Appellant cites us to the holdings of the United States Supreme Court in
Blockburger v. United States,
284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and
Whalen v. United States,
445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), for the proposition that double jeopardy permits multiple chаrges for a single act only if each statute requires proof of an additional fact which the other does not. He argues that the allegation in the murder information of using a firearm, or the finding by the jury of
We find appellant’s reliance on Blockfyur-ger and Whalen somewhat misplaced, since these cases are distinguishable from the present case. One lesson these cases teach, however, is summarized in Albernaz v. United States, 450 U.S. 336, 101 S.Ct. 1137, 1145, 67 L.Ed.2d 275 (1981). “The question of what punishments are constitutionally permissible is no different from the question of what punishments the legislative brаnch intended to be imposed.”
Here, the question becomes — what was the legislative intent in enacting
In
Simpson,
defendant was charged under
In reaching this holding the Court examined the legislative history of
The Court reached a like result in
Busic,
446 U.S. at 398,100 S.Ct. at 1747, where the defendant was charged under
We examine this issue in the light of
Simpson
and
Busic.
The elements of the murder statute,
Unlike
Simpson
and
Busie,
in South Dakota the homicide offenses are not enhanced because the perpetrator used a firearm. Although implicitly the degrees of homicide contain аn enhancement scheme, it is based on rankings of intent, not use of a firearm. Identical enhancement provisions are not pyramided in charging murder and commission of a felony while armed. Moreover, the provisions of
Next we examine the appellant’s claim of error in giving the following instruction:
Jury Instruction 31
Under the law of this state, a defendant in a criminal case is permitted to go upon the witness stand and testify in his own behalf, and the fact that he is the defendant is not in itself suffiсient to impeach his testimony or ground for disregarding it, but in determining what weight you will give his testimony, you have the right to take into consideration his interest in the result of the case and that he is the defendant on trial testifying on his own behalf.
This court has approved instruction # 31 as early as State v. Sonnenschein, 37 S.D. 585, 159 N.W. 101 (1916), and as recently as State v. DuBois, 301 N.W.2d 425, 426 (S.D.1981). These deсisions demonstrate that the instruction itself cautions the jury that “the fact that he is the defendant is not in itself sufficient to impeach his testimony or ground for disregarding it[.]”
The Eighth Circuit Court of Appeals, however, criticized the instruction in United States v. Standing Soldier, 538 F.2d 196 (8th Cir.1976). That court said, “[w]e reiterate our preference that a ‘defendant not be singled out’ . . . especially in a case where much depends upon the defendant’s credibility.” Id., at 204. Yet, it refused to ban the instruction as unconstitutional, or, in the circumstances of that case, even prejudicial. We agree with the Eighth Circuit’s view. We also recommend that, in the future, trial courts refrain from giving such an instruction to avoid completely any question of prejudice.
In the instant сase we also hold that the giving of the instruction was not prejudicial. The jury was instructed properly and adequately on the weight and credibility of the evidence. 2 We hold that the giving of instruction # 31 did not constitute prejudicial error.
Finаlly, appellant claims error in the admission into evidence of certain color photographs of the victim’s body when the means and manner in which the death occurred was not in issue. The State was prepared to offer into evidence ten photographs. Defense counsel moved to suppress all photographs arguing that they were not relevant to any material issue. Instead, they merely depicted a dead body lying on thе floor “with part of the head blown away.”
In State v. Rash, 294 N.W.2d 416, 418-419 (S.D.1980) quoting State v. Compton, 48 S.D. 430, 433, 205 N.W. 31, 32 (1925), we discussed admitting into evidence colored photographs of the victim’s injuries.
“[P]hotographs are admissible into evidence ‘when they accurately portray anything which it is comрetent for a witness to describe in his own words, or where they are helpful as an aid to a verbal description of objects or conditions and relevant to some material issue.’ Photographs are not inadmissible simply due tо the fact that the details of the crime are vividly brought to the jury’s attention or because they ‘incidentally tend to arouse passion or prejudice.’ Like any other demonstrative evidence, the admission of photographs lies within the sound discretion of the trial court.”
State v. Kaseman, 273 N.W.2d 716, 726 (S.D.1978) (citations omitted). See also State v. Kane, 266 N.W.2d 552 (S.D.1978); State v. Disbrow, 266 N.W.2d 246 (S.D.1978); State v. Miller, 248 N.W.2d 56 (S.D.1976); State v. Satter, 90 S.D. 485, 242 N.W.2d 149 (1976); State v. Asehmeller, 87 S.D. 367, 209 N.W.2d 369 (1973); State v. Zemina, 87 S.D. 291, 206 N.W.2d 819 (1973); State v. Austin, 84 S.D. 405, 172 N.W.2d 284 (1969); and State v. Zobel, 81 S.D. 260, 134 N.W.2d 101 (1965).
In all of these eases this court found that the pictures, slides, or X-rays were all properly admissible. This was true even if the pictures were somewhat gruesome, cumulative, or cаpable of arousing passion or prejudice in the jury.
At the hearing on the motion, the State argued that each individual photograph was admissible for specific reasons; i.e., to depict the relationship of the body to the surroundings, to show the wounds, and to support the pathologist’s testimony. The trial court examined and ruled on each proposed exhibit individually. It suppressed four of the ten exhibits. We have examined his rulings and cannot say that hе abused his discretion.
We note that after the case was argued orally, appellant sent to the court and requested the filing of, what, at best, is dubbed a supplemental brief. It attacked the character of the trial judge and his family, and made assertions of the conduct of trial and appellate counsel unsupported by any record before us. At most, it attempted to rehash some points that were adequately covered in the аppellant’s brief. We can excuse to some extent this diatribe from one who is facing a considerable prison sentence. Nevertheless, we point out that such efforts are unavailing in the context of a criminal аppeal, and so advise those who attempt to do likewise in the future. Such claims of error or prejudice, allegedly not adequately covered in the appellant’s trial and appeal, are handled best by proceeding for post-conviction relief. SDCL ch. 23A-34.
We affirm the judgment of conviction.
All the Justices concur.
Notes
. South Dakota Codified Laws 22-14-12 proscribes the use of a machine gun or short shotgun in the commission or attempt to commit any felony. Similarly,
. Jury Instruction No. 35 read, in pertinent part,
In determining the weight to be given to the testimony of the several witnesses, you may take into consideration the intelligence of the witness; the opportunity for seeing and knowing the things about whiсh such witness has testified; the interest of the witness in the result of the case, if any; the conduct and demeanor of the witness while testifying, and his apparent fairness or bias, if any such appears. You may also take into consideration the appearance of the witness while on the stand, the reasonableness of his story, and all of the evidence, facts, and circumstances shown, tending to corroborate or contradict such witness.
You should givе to the testimony of every witness such weight and credit as to you it seems justly entitled to receive. If you believe from all the evidence that any witness has willfully sworn falsely to any material fact, you are at liberty to disbelieve that witness in whole or in part, taking into consideration all of the evidence in the case.