*1 body. physician A testified that he exam- testimony by Ms. any further objected 21, 1990 and noted a she ined A.C. on March danger that was Peil, was as there square in a centimeter an area on indirectly comment on bruise directly or going to right genital lips. side of her Sexual or some other veracity the victim of penetration certainly occurred. Direct and argued state state. The for the witness pointed to circumstantial evidence all to one testimony was rebuttal Peil’s that Ms. State, person perpetrator Floody. as the Flint, deputy Attor- Bryce a State’s of — record, proof “beyond met its procedures under this testified as to ney, who had Reviewing interviewing this entire County reasonable doubt.” in Meade followed Floody I sexual abuse. am struck with view that subjects possible young would have been convicted of these two however, the state’s difficulty, rape regardless crimes of evidentia- specifically did not that Flint position was opinion ry join error. its techniques on the interview comment in result due to the affirmance but concur fact, any did not have case. he this liberality, viewpoint expansion, nay tech- interview knowledge of the actual workers, not, that the social certified or can or, for that mat- actually employed, niques usurp courtroom and the func- come into a ter, surrounding pro- this any other facts jury. despise It is a far tion of the it. Nonetheless, trial court overruled ceeding. safeguard of cry from the constitutional then objection, allowed defense counsel’s “facing your accuser.” We have another testimony, and standing objection to Peil’s example prosecutorial by prose- overkill opin- to elicit an allowed state further Knowing that cutors of this state. quality of as to the ion from said witness girl going testify, why little was interviewing techniques. I fear trial Kathy Peil called as a witness to character- supposed to be experts. Trials are testimony? you’ve Now “the ize her heard Ameri- are the soul of the jury. Jury trials vigilant, Let us story.” rest of the justice. system can Rights, birthday 200th of the Bill of right hope- a fair trial Floody’s Was deep respect Rights for the Bill of instill a Surely compromised? I doubt it. lessly legal infinity. liberty our dribble into lest I will damaged his defense. this evidence servant, F. Henderson. Your go did not so far that this witness concede that Jus- hereby I am authorized to state permitted But the trial court Logue. inas joins this concurrence. tice AMUNDSON evidentiary It go Peil to too far. on such the case be reversed error. Should Well, appellant to is on
error? burden only prejudicial error also but
show
error, to the effect that and it must be evidence, might under the Dakota, Plaintiff of South STATE returned a different probably would have Appellee, Wimberly, 467 N.W.2d verdict. Davis, (S.D.1991); 499, 721, WALL, Marguerite L. Defendant trial, to a fair A defendant is entitled Appellant. States, perfect one. Brown v. United No. 17458. 1570, 231, 1565, 223, 93 S.Ct. 411 U.S. of South Dakota. Supreme Court 208, (1973); see v. Ben L.Ed.2d (S.D.1990) 843, (quot nis, Briefs Oct. Submitted States, 411 U.S. ing Brown v. United 12, 1992. Decided Feb. 1565, 1570, 36 L.Ed.2d 93 S.Ct. 23, 1992. Rehearing Denied March (1973)). juryA saw and heard testimony was vivid girl testify. Her little testimony before the
in detail. upon reflecting A.C.’s horrid conduct
Jeffrey Hallem, Gen., Atty. P. Asst. Pierre, plaintiff appellee, for Mark Bar- nett, Gen., Atty. on the brief. Craig Jackson, Lynn, A. Pfeifle of Lebrun, P.C., Rapid City, Schultz & appellant. defendant and HENDERSON, Justice. PROCEDURAL HISTORY/ISSUES appeal This arises from an automobile fatality. accident and We affirm. On Au- gust 6, (Wall) Marguerite Wall charged Manslaugh- Degree with Second ter, jury in violation of A SDCL 22-16-20. trial was held in December of 1990. The jury ultimately guilty returned a verdict on degree manslaughter charge. the second subsequently Wall was sentenced and a Judgment of Conviction was entered January Following sentencing, of 1991. filed a motion for new trial in Febru- Wall ary, 1991. The trial court entered an Order denying new trial in March of 1991. On following is- appeal, Wall raises the three sues:
I. sufficient Was there support presented conviction? denying
II. Did the trial court err request for a lesser instruction? III. Did receive a fair trial? Wall
FACTS 4, 1990, Wall, August driving a On motorhome, pickup end of a struck rear camper Starkey. truck driven Ronald Highway attempting pass on Wall was High- proceeding 16. As Wall was west proceeding way the vehicle traffic west passed an accident. Wall was slowed for leaving or four cars after the area three attempted pass accident. When she this pickup, collision occurred. Starkey place long a mile collision took Highway two miles east stretch on Wyoming This stretch road border. of SDCL dry pavement. Wall with violation sharp no curves and had had provision treats homicide, 22-16-20.1 This statute sight it was narrow At the wide) “[a]ny killing” as (19 no shoulder. feet 7 inches degree. appeal, Wall Starkey The collision with finding essentially jury’s disputes passed and a car Wall a van occurred after This Court has had occasion recklessness. approximately two-thirds of and returned Olsen, 462 in the recent case of State v. way proper into her lane. Accord- back (S.D.1990), to review 476-477 Lynn Litizzette, ing to an eyewitness, in context automobile SDCL 22-16-20 of an the east- pulling back out into then started also, Therein, “reck- the issue of accident. pass Starkey when she lane to bound *4 less” was raised. Eye- camper the shell. the rear of struck driving at that Wall was witnesses testified the of for definition “reckless” ducking in and high speed, out a rate of degree manslaughter of is purpose This caused Star- passing and vehicles. 22-l-2(l)(d). defi forth in That set ditch; key’s pickup pushed be into the provides: nition Starkey was rolled and was demolished. “reckless, recklessly” and words wife, boys killed in the accident and his two thereof, a con- import all derivatives injured. Appellate and an infant were disregard of unjustifiable scious and a not counsel at trial court level. counsel was substantial risk offender’s may may or duct cause a certain result DECISION person nature. A is reck- be certain respect less with to circumstances when I. evidence the Was there sufficient dis- consciously unjustifiably he support record to the conviction? regards risk that such cir- a substantial determining sufficiency In the of may cumstances exist[.] review, question the the evidence 476, See, Olsen, supra at State v. presented there is evidence in is whether Martin, (S.D.1989). State v. N.W.2d which, by if the fact the record believed Olsen, supra As we stated at 476: finder, finding is sufficient to sustain a of ordinary requires more than “Recklessness guilt beyond a reasonable doubt. State v. negligent cogni- conduct.” Awareness and Lewandowski, 343-344 463 N.W.2d risk, disregarding of zance the that (S.D.1990). review, accept must In this we risk, bring are actor’s con- factors evidence, and the favorable infer most “The duct to the level of recklessness. therefrom, fairly ences to drawn of risk and reckless actor is aware the (cita support verdict. at 344 will Id. it; disregards negligent is actor omitted). determining the suffi tions of aware the risk but should have been evidence, ciency of will this Court “ Olsen, supra aware of it.” at 476-477 evidence, pass in the ‘resolve conflicts (citations omitted). The be- difference witnesses, weigh of credibility ” negligent tween reckless and behavior Hanson, evidence.’ state of of the indi- measured mind (S.D.1990) (quoting State v. vidual. Id. (S.D. Faehnrich, 1984)). ele guilty verdict be set State must demonstrate the No will aside evidence, including ment of of the risk to establish if the circumstantial ev awareness This can idence reasonable inferences drawn reckless conduct. be established establishing therefrom, theory indirectly that a defen sustains a reasonable of Bartlett, dis guilt. dant’s indicates a reckless conduct Olsen, regard safety for of others. homicide, justifiable provides: nor nor 1. SDCL 22-16-20 excusable degree. manslaughter Man- being in the second Any of reckless one human which, procurement degree Class in the second is a act or of another provisions chapter, felony. of this is neither degree, first murder nor However, producing potential accident, a merely aware the risk of supra at carelessness, disregarded inadvertence or yet that risk. The risks of insufficient to sus- thoughtless omission is passing There were obvious. is sufficient reckless conduct is a conviction where tain evidence in the record to conclude that of a motor ve- required. Operation Id. Wall’s conduct reached the level of reckless law, more, in violation of the without hicle in operating conduct her motor vehicle. sufficient to constitute reckless con- is not traffic, Her ducking high in and out of at a duct, fatality if is a result even there speed, passing vehicles, rate of other dis- Id.2 thereof. played disregard safety persons Although of other on the road. present In the after review case use does not involve of alcohol or drawing the ing the evidence and most substance, those are controlled factors therefrom, we inferences hold favorable requirement finding not a to a of reckless support there is sufficient evidence purposes degree conduct for of second jury’s verdict. The evidence does rise manslaughter. There is sufficient evidence The State intro the level of “reckless.” determination, support in the record to of the narrow width of duced evidence doubt, beyond a reasonable a violation vicinity Highway 16 collision *5 22-16-20, degree manslaugh- SDCL second wide of the RV. and of the frame State ter. introduced evidence of Wall’s numerous at passing tempts pass to vehicles and of mul This lengthy pass. cars in one was all
tiple
II.
the
Wall asserts
trial court
vicinity
shortly
leaving
after
the
of a
done
refusing
erred
to
in
instruct
traffic
separate
accident where
was
Wall’s lesser
included
in-
offense
driving
done in
was all
an
slowed.
struction,
i.e.,
driving.
careless
attempt
up
traveling
keep
to
with a
obvious
trial,
court
At
the
denied Wall’s
vehicle,
companion in
who was
another
instructions,
12,
proposed
11 and
numbers
high
speed.
rate of
pulling a boat at a
relating
driving,”
both
to “careless
deter
by eyewitness
also provided
Evidence
mining that the instructions did not meet
driving
They testified that Wall’s
came
es.
legal
giving
the
and factual tests
causing
over the
close to
accidents
course
Heumiller,
In
included offenses.
State
upon
miles
she came
of several
before
Star
126,
(S.D.1982),
stated:
we
as
key’s pickup. Evidence was introduced
in this
Under the law as established
speed that Wall
an excessive rate of
to
state,
upon
incumbent
the trial court
is
passing of
traveling
imprudent
and of
oth
requested,
jury,
upon
if
a
instruct the
er
Witnesses testified
vehicles.
in
offense
lesser offense included
the
an erratic
passing at times involved
duck
if the evidence warrants a
pass
in the
ing in and out between cars
evidence,
included offense. There
upon
viction
oncoming lane. From this
other
in
are two tests that must
satisfied
record,
from
in the
reasonable
evidence
therefrom,
the trial court
determining
is
whether
drawn
there
suffi
inferences
should
a lesser included offense
that Wall was
submit
cient evidence
conclude
dissent,
Sabers, J.,
Any person
B.
who commits homicide
in
bears exam-
A case cited
2.
Barela,
violating
The
in State v.
or
ination.
statute
Section 66-8-102
while
(App.1980)
622 P.2d
is
guilty
felony.
N.M.
is
66-8-113
of a
N.M.S.A.
distinguishable from SDCL 22-16-20. The
contra-distinction,
provides:
In
SDCL 22-16-20
statute,
66-8-101,
Mexico
Section
New
Any
killing
being by
of one human
literally
vehicular
is
a
homi-
N.M.S.A.
which,
procurement of
the act
another
or
statute,
22-16-20,
opposed
to SDCL
cide
provisions
chapter,
neither
nor distinction of
contains no mention
which
degree,
murder
the first
nor
vehicles,
homicide, motor
use of
vehicular
justifiable
is man-
homicide
nor excusable no
vehicles,
Section 66-8-101
motor
etc.
degree. Manslaughter
second
in the
1978 reads as follows:
N.M.S.A.
felony.
degree
in the
is Class
second
of a
Homicide
vehicle is
A.
evident,
clearly
are
distin-
As is
the two statutes
being
operation
in the unlawful
human
guishable.
vehicle.
motor
degree
first
as defined
these instruc-
jury.
first
is a
tions; and
test,
the second
factual.
legal
(4)That
killing was not excusable or
See,
Gillespie,
justifiable.
(1)
if
(S.D.1989). The
test is met
Jury Instruction—
offense South Dakota Pattern
elements of
3-24-27.
elements
of Criminal No.
in number than the elements
are lesser
32-24-8,
driving
careless
are:
offense; (2)
for the
greater
penalty
(1)
defendant,
less than
included lesser
must be
at the
time
That
offense;
(3)
(information,
both
greater
indict-
place alleged
that of
(a
ment),
upon
highway,
elements so
must contain common
a vehicle
offenses
drove
public
pri-
commit-
greater
alley,
property
offense cannot be
or
school,
committing
college
university);
lesser of-
or
also
vate
ted without
Gillespie, supra
at 663.
fense. State
(2)
driving
carelessly
done
That said
test,
factual
to meet the
caution;
order
due
without
presented
support
must be
would
(3)
was done at a
That said
charge.
conviction of a lesser
Refusal
endanger any
or in
so as to
a manner
give
such an instruction
the trial court
person
property.
error.
v. Heu
would be reversible
Jury
South Dakota Pattern
Instruction—
miller,
must be
supra at
“There
Criminal No. 3-19-38.
evidence, however,
read
sufficient
when
22-16-20,
degree
man-
defendant,
light
favorable to the
most
32-24-8,
slaughter, and SDCL
concluding
justify
which would
driving,
the same
contain none of
elements.
greater offense was not committed
*6
32-24-8,
driving
careless
is not a
was,
fact, com
a lesser offense
and that
degree
lesser included offense to second
Heumiller,
(cita
supra at 132
mitted.”
driving,
manslaughter. Careless
Wall ar-
omitted).
tions
gues, is a lesser included offense to SDCL
proposed
court denied
The trial
Wall’s
32-24-1,
driving.
present
In
the
involving the
included
instructions
case,
charged and
un-
Wall was
convicted
driving, stating
of careless
that
offense
22-16-20,
degree
second
man-
der SDCL
legal
did not meet the
and fac-
instructions
32-24-1,
slaughter,
reckless driv-
not SDCL
agree
above.
with
tual test as outlined
We
driving
ing.
nor
Neither reckless
Wall fails to meet the
this conclusion.
driving
Wall
not
involves a homicide.
does
This ele-
third element of
test.
meet the test for an
of a lesser
provides that the two
must
ment
offenses
of
offense. Because
our conclu-
great-
common elements so
contain
sion,
deter-
we need not discuss
factual
er offense cannot be committed without mination of the test.
committing the lesser
In the
also
offense.
It is
that we have held that a trial
noted
present
greater
second judge
obligated
evi-
to instruct
manslaughter can
degree
be committed dence
not instruct on evidence
and should
meeting all
without also
of the elements
Here,
which
the record.
a careless
belies
necessary to commit the offense of careless
driving
inap-
highly
instruction would be
Indeed,
driving.
the two
do not
offenses
propriate
for the reason
Wall was
contain common elements. The elements
darting
high-
in and out
vehicles
degree manslaughter,
22-
way,
high
speed,
rate of
on a rather
at a
16-20,
charged, are:
upon which Wall was
shoulders, nearly
narrow
with no
road
(1) That the defendant at the time and
accidents, whereby
causing
the driv-
other
(information,
alleged in the
indict-
place
highly
were
ers of motor vehicles
endan-
of_;
ment) caused the death
gered.
they
testified
Eyewitnesses
reckless;
(2)
killing
such
That
Wall,
lives as
her
were
of their
with
fearful
driving, attempted to
(3)
bywas
such means wild and excited
That such
Simply put,
up
catch
another vehicle.
under such circumstances as not to
with
sup-
driving instruction is not
manslaughter
a careless
constitute murder
specifically object to
overwhelming
in ure to
evidence at trial
by the
ported
See,
Weisenstein,
complaint
appeal.
367 forecloses
of the issue on
v.
this case.
State
Olsen,
(S.D.1985).
Star,
v.
State
Red
N.W.2d
(S.D.1991);
at a
boy,
Gallipo,
a tractor
young farm
460 N.W.2d
State
per
approximately
5 to 15 miles
(S.D.1990).
also,
See
hour,
gravel
onto a
made a left hand turn
Handy,
(S.D.1990)
charged with
country
(Defendant
road. Olsen was
preserve
ap-
not
did
issue for
22-16-20,
manslaughter
under SDCL
peal
failing
appropriate
to make
or time-
misconduct).
that Wall is
objection
statute
ly
same
at time of claimed
charge
violating. The
in
We do
believe that the
hearing
preliminary
by the
at a
dismissed
troduction of this evidence rises to the level
magis-
magistrate court. We affirmed
plain
adopted the
error. This Court has
court order.
trate
plain
may,
error
on appeal,
rule and
notice
rights
defects
affect
substantial
trial?
III.
Wall
Was
fair
afforded
though
proper
even
the defendant failed to
certain
asserts that
actions
Wall
preserve
ly
appeal.
such defects
by the State amounted
and statements
Bunnell,
268
costs,
prosecution,
at all
or
refusing
on overzealous
win
proposed
the
in
err
ignorance
professional
of the
con-
rules
driving.”
“careless
adversary
duct in the
environment? Prob-
part
AMUNDSON,
(concurring in
Justice
ably
of the above.
dissenting
part).
in
and
dispute
There is no
from the record of
I
the
I
and concur with
concur
Issue
court,
proceeding
this
that
trial
subse-
the
writing
Miller on
special
of Chief Justice
quent
interjection
low
to the
of this
foul
agree
I
on Issue III.
I
II.
dissent
Issue
case,
steps
proper
into
took
the
the
majority’s statement that the
the
issue,
attempt
jury. The
in
to sanitize the
prosecutor
the
in this action was
duct of
mind,
my
trial court’s ef-
is whether the
company with the con-
improper,
part
but
wrong
inflicted
forts did correct the
the
thereafter.
clusion reached
prosecution in this
The answer to
case.
negative
this
must be
the
to ensure
issue
involving the
of an
This is a
death
case
right to
fair trial. State v.
defendant’s
by the manner in which
individual caused
(S.D.1985).
Head,
Big
269
Historically,
has
coverage to
this Court
demanded a
good insurance
had better have
showing
egregious
of conduct far more
not,
injured party or
If
against.
claim
facts
than this set of
to establish a man-
left “hold-
parties could be
interested
other
conviction via reckless driv-
speak. Any individual
bag” so to
ing the
ing.
any
legal profession
involved
(Henderson,
(em
incensed
concurring)
understands how
J.
length of time
Id. at 478
added).
words,
phasis
charge
families be-
In other
a
lay persons or their
injured
second-degree
vehicular
is
is no insur-
they discover there
come when
driving with a resultant death.*
reckless
place to cover the dam-
coverage in
ance
party. Fur-
by
negligent
ages inflicted
The
test met:
ther,
question
attorneys know that
(1)
driving,
of careless
the elements
in
coverage
inadmissible
of insurance
32-24-8, are,
reality,
in
fewer in
cognizant
certainly be
case and should
civil
driving
than reckless
with a
number
it is not relevant
of the fact that
death,
resultant
SDCL 22-16-20 and
manslaughter case.
in a
issues involved
32-24-1.
(2)
penalty
is less for careless driv-
my
prosecutor
of the
The trial tactic
ing.
plain error
this case
opinion constitutes
(3)
contain common ele-
is-
the two offenses
The insurance
23A-44-15.
driving
reckless
ments so that
interjected in an
only have
sue could
been
committed
resultant death cannot be
by offensive
jury
over the
attempt to win
committing
driving.
without
careless
by
foul hit
prodigious
This was a
conduct.
case and should not
prosecution in this
is suffi-
The factual test is also met. There
decision.
go
evidence,
uncalled in this
light
read in the
cient
“when
sup-
defendant” to
most favorable to the
remand this case for
reverse and
would
by
that reckless
port a conclusion
that has not been
trial in front of
driving
not committed and careless
was
highly prejudicial
improper,
polluted with
Heumiller, 317
driving
committed.
was
prosecutor.
verbiage from the State’s
at 132.
N.W.2d
fails
majority’s
version of the facts
SABERS,
(dissenting).
Justice
conflicting testimony of the
to consider the
error for the trial court
It was reversible
opinion
investigating
expert
and the
officer
in-
give
requested lesser
to refuse to
concerning
speed
of Star-
of Dr. Oliver
driving.
careless
instruction on
cluded
Al-
motor home.
key’s pickup and Wall’s
forth
majority opinion clearly sets
Booth testified
though investigating officer
giving a lesser includ-
part test for
the two
Starkey pickup after
also, Gillespie,
offense instruction. See
ed
mph,
promptly
he
impact was 70 or
Heumiller,
663;
445 N.W.2d at
incorrect
estimates were
admitted those
Oien,
132;
essary conflict “with greater that is not an ele- lesser”, i.e., Gil- recklessness.
ment
lespie, using version of the facts most
errs the state.
favorable dispute concerning speed if
Even Wall, against properly determined
were necessarily mean that Wall was
does recklessly. testimony There was strong Booth that indicated
by officer
southerly may contributed to winds have Therefore, driving is
the accident. instruc- included offense given. should
tion should have been We remand for a new trial based
reverse and proper instructions. on Is- join Justice Amundson’s dissent III for the reasons stated therein and
sue resulting that the unfairness
for the reason case the combined errors re-
from
quires Rufener, trial. new See State v. J., (S.D.1986)(Sabers,
dissenting). INC.,
SDDS, Dakota South
corporation, Plaintiff Appellant, Dakota, and Mark Bar
STATE South
nett, Attorney General for the State of Dakota, Appel Defendants and
South
lees.
No. 17545.
Supreme Dakota. Court of South
Argued Oct. 1991.
Reassigned Dec. 1991. 19,
Decided Feb. D. Truhe and Dale R. Cockrell
Marvin Offices, City, Rapid Marvin D. Truhe Law plaintiff appellant.