State v. Walton

hands, arrays, unduly within separate photo prejudiced from three tied defendant’s crimes, him perpetrator thereby, prevented months of the as and a fair trial. evidence. of Although happened concept were admitted into Whatever eyewitnesses playing of these misidentified level field? one later, year one him in the courtroom their

testimony positive and their identifications contemporaneous pro- him to the crimes

of

vided sufficient evidence convince the

jury beyond a doubt that Bing- reasonable guilty charged. was

ham shows that unques-

[¶ 11.] record tionably 1999 SD 80 signature reliable evidence was jury Bingham before and was not re- Dakota, STATE of South Plaintiff from any way presenting strained his Appellee, and using defense and this evidence to support testified, denying charges it. He and explaining that his billfold and identifica- Benjamin WALTON, Defendant papers were to him during tion unavailable Appellant. and just the commission these crimes. He No. 20403. jury. was not able to convince the He has shown on more appeal not of the same Supreme Court South Dakota. helped evidence would have or that court trial abused its discretion in exclud- Argued March 1999. ing it. Decided June We affirm. MILLER, Justice, Chief and KONENKAMP, GILBERTSON, and

Justices, concur. Justice, SABERS, dissents.

SABERS, (dissenting). Justice I trial clearly

[¶ 15.] dissent. The its in rejecting

abused discretion exhibits provided

which would have the jury sam-

ples signature. of defendant’s It be a should not condition of

admissibility in this State evidence is only by

admissible if offered the State.

inHow the world could additional samples signature

of defendant’s be so confusing misleading jury deny

and them to see it. The is literate yesterday. born you 17.] Can for a imagine minute this rejected

type being evidence the trial

court if it had been offered the State to I

convict? would reverse remand on

the basis that the denial of this evidence Barnett, Gen.,

Mark Atty. Craig Ei-M. chstadt, Deputy Atty. Gen. and Paul Cremer, Gen., Pierre, Atty. Asst. plain- for tiff appellee. and Edward Albright, Pennington G. County Office, Public Defender’s Rapid City, for appellant. defendant and MILLER, Chief Justice. appeals his conviction of first-degree manslaughter of Daniel

Lehmkuhl. We affirm.

FACTS On [¶ 2.] November Justin Wood Geliga, drove Emmanuel Jorge Geligjaand Benjamin Walton to the Parkishop- Baken ping plaza Dakota, in Rapid City, South where the group planned to meet'some girls. parked Wood in front of the Conoco station, gas he| and Emmanuel and went inside, they inside. While were Jason Tschakert, an individual with whoijji days later as a result of run-in, He died ten approached a prior group wound to the heart. altercation ensued.1 stab and a verbal vehicle and chal- car spit on Wood’s Tschakert Wood, Emmanuel, Jorge, and Wal- leave the car Jorge lenged Walton left the scene and drove immediately ton left the vehicle. but neither fight, Black Crystal area of the Cave Wood departed, After Tschakert Hills, Shortly hid the knife. where Walton to the car and returned and Emmanuel thereafter, custody. into was taken of the Baken Park the other end drove to Pen- On November Tschakert girls. wait for the plaza lot to Attorney filed a County State’s nington near the area where his vehicle drove with juvenile petition charging Walton proceed- and then car was located Wood’s manslaughter. On same first-degree station, the Conoco the area behind ed to date, made a motion to transfer Tony Akers. Tscha- picked up where he The motion was to adult court. charges to the location and Akers drove back kert 12, 1997, and on March on March granted Tscha- parked, car was where Wood’s complaint charging filed a Walton 13 State passen- his vehicle near parked kert and, in the second-degree murder2 After he and car. ger’s side of Wood’s alternative, manslaughter.3 first-degree vehicle, alterca- a verbal Akers exited counts. guilty to both pleaded tion occurred. 1, 1997, jury a trial December [¶ 7.] On gath- soon A of individuals group guilty of Walton was found commenced. and Tschakert vehi- near the Wood ered and sentenced first-degree manslaughter Lehm- was Daniel Among group cles. thirty years penitentiary. in the state kuhl, and Akers joined Tschakert who car and also side of Wood’s passenger’s raises the fol- On appeal, Lehmkuhl exchange. in joined the verbal lowing issues: side, driver’s where approached then in its the trial court erred 1. Whether in the front driver’s seat was seated Wood justifiable regarding instructions directly behind was seated and Walton homicide. the driver’s side opened him. Lehmkuhl by erred the trial court 2. Whether out of the car. and ordered Wood door allowing the introduction testimo- and Lehmkuhl entered the complied Wood character. ny regarding Walton’s Thereafter, inside the fight ensued car. by erred the trial court 3. Whether car, front kneeling on the with Lehmkuhl request pri- use denying Walton’s Walton, who was seated fighting seat of a State’s witness. or acts evidence a knife carrying the backseat. Walton erred the trial court 4. Whether heart once in the and stabbed Lehmkuhl be tried on allowing Walton to stabbed, being After and once the face. charge. murder second-degree car, hit the got out of Wood’s Lehmkuhl reference to Wal- State’s car, Par- 5. Whether ground. fell to the and then violated silence post-arrest ton’s and Lehmkuhl was were called amedics process rights. due City Regional Hospital. Rapid taken to design any premeditated though without Conflicting testimony as to the indi- exists 1. any particular individual. the death of who effect actions and as to viduals’ words and instigated and other confrontations. manslaughter a violation of 3.First-degree 22-16-15(3), provides part: which SDCL Second-degree violation of murder is a 22-16-7, provides as follows: which de- manslaughter the first Homicide is perpetrated: gree when degree murder in the second Homicide is ‡ n n n imminently by any perpetrated act when death, design but to effect evincing Without a de- dangerous to others and life, dangerous weapon[.] mind, means of a regardless human al- praved (citations omitted). OF REVIEW “‘[J]ury STANDARD instruc when, adequate tions are considered as a A trial evidentiary- court’s whole, they give the full and correct state “presumed are correct and are re rulings ” ment of the law applicable to the case.’ abuse of viewed under an discretion stan ¶ Rhines, 55, 111, State v. ¶ Larson, dard.” State SD denied, cert. 519 U.S. (citing 582 N.W.2d Good 522, 136 117 S.Ct. L.Ed.2d 410 ¶ road, “ Horse, (quoting Fast omitted)). (other ‘The citation test is not (S.D.1992) (citation omitted)). To whether would have made the we same reverse a trial court’s give refusal to an ruling, judicial but whether we believe a instruction, the defendant unfairly must be mind, in view of the law and the circum prejudiced by Moreover, the refusal. Id. stances, have reasonably could reached the “ ” the defendant must show that ‘the (citations omitted). Id. same conclusion.’ might probably would have returned a A proposed jury trial court’s refusal of a different verdict if instruction had [the] instruction is also reviewed under an abuse given.’ been Id. (quoting State v. Bart of discretion standard. State v. Eagle lett, (S.D.1987) (other Star, 1996 SD omitted)). citation DECISION viewing [¶ 13.] When the instruc 1. The trial court did err in [¶ 10.] not whole, as a they tions we find that ade denying proposed jury Walton’s in- quately provided a correct statement of structions. the law. jury was justi instructed on fiable homicide and self-defense. Even The trial court refused [¶ 11.] four of though the given instructions were not instructions, jury proposed Walton’s two Walton, identical proposed by to those the justifiable homicide instructions and two trial court properly instructed jury the on burglary fourth-degree instructions. Wal- the law applicable to the case. As we have ton claims the instructions were essential stated, previously is not error “[i]t for the theory to his defense that he was defend- trial court to requested refuse a instruc Lehmkuhl, ing against himself who was amplifies tion which principle the embod committing fourth-degree burglary. He given Star, ied in a Eagle instruction.” argues that the court’s adequate- failure to ¶ 143, 13, (cita 1996 SD 558 N.W.2d at 73 ly provide jury the with a full and correct omitted). Furthermore, tions as this statement applicable of the law to the case Court stated in Holloway, State v. 482 denied him a to a fair guaran- trial as (S.D.1992), N.W.2d 310 “[w]hile the teed the United States and South Dako- justifiable homicide instructions and self- ta disagree. Constitutions. We identical, defense instructions are not “Trial possess courts giving of either one require would jury broad discretion in instructing jury.” to consider whether or not it believed ¶ Pellegrino, 39, 9, State v. 1998 SD 577 was defending [Walton] himself[.]” (citations omitted). N.W.2d It is the trial duty court’s “to jury addition, instruct the In jury was on the law applicable to the Eagle case.” instructed that prove State needed to be ¶ Star, 143, 15, 1996 SD yond 558 N.W.2d at 73 a reasonable doubt that Walton was Gardner, (citing Black v. acting N.W.2d jury self-defense. The heard (S.D.1982) (citations omitted)). In testimony ad that Lehmkuhl entered Wood’s dition, “[u]pon proper request, defendants fight car and a It ensued. also heard are entitled to on instructions their de testify Walton that he acted self-defense fense theories if supports evidence them.” when he stabbed Lehmkuhl. After hear ¶ Pellegrino, ing instructions, N.W.2d at the evidence and the occa- carry previous a knife on first-degree Walton guilty jury found testimony was claims this say, cannot and Wal- sions.5 Walton manslaughter. We established, in- testimony that had the and was improper character ton has not it would 19-12-46 and proposed, as he under SDCL been instructed admissible There- a different verdict. disagree. have reached 19-12-5. We SDCL fore, in the court’s refusal we find no error Initially, for evidence to instructions. proposed of Walton’s admissible, it must be relevant. See ¶39, 18, N.W.2d Pellegrino, 1998 SD evidence is “evi 19-12-2. Relevant at 598. tendency to make the having any dence did not err 2. The trial court consequence fact that is of any existence of admitting had evidence of the action more to the determination a knife. previously carried than it would be probable probable or less 19-12-1; evidence.” SDCL without trial, moved Prior to ¶ Litschewski, see State v. pre had introduce evidence Walton 902; Knecht, knife, it on more viously carried a wielded ¶ 417. When SD about, occasion, spoken than one act considering admissibility to, he way in which gestured evidence, has stated “no Court if The trial would use the knife needed. showing necessary before ‘preliminary that, under SDCL 19- court determined may be introduced for such evidence 12-5,4 regarding the evidence Wright, proper purpose.’ knife not relevant to other acts with a (citation 50, 13, 593 SD case, and its material issue any (404(b)) omitted). The rule is a rule substantially outweighed effect prejudicial that such evi inclusion and “establishes such, it value. As denied probative its if to only inadmissible offered dence is motion. State’s (citation omitted). prove character.” Id. trial, filed a prior Also to in limine the admission prevent motion to con- We find that the evidence carried having previously evidence of his of carrying a history of cerning Walton’s a knife. The trial court denied evidence improper character knife was motion, that the evidence would be stating evidence, was evi- but rather or acts if, at the time of its introduc- admissible intricately related dence that was tion, it was relevant. and, such, was admissi- facts of the case as 19-12-5 or reference to SDCL trial, ble without objection, At over Walton’s Loftus, 1997 19-12-4. See State testimony of two allowed the the court ¶ 825, 94, 18, (citing 566 N.W.2d they had seen SD witnesses who stated conformity pose proving that he acted in of provides: 4. SDCL 19-12-5 occasion, except: particular crimes, therewith on wrongs, other or acts Evidence of (1) pertinent trait his char- Evidence of a of prove the character of a is not admissible to accused, by by the acted in acter offered an person in order to show that he however, same; may, conformity prosecution therewith. It to rebut purposes, such as admissible for other pertinent trait charac- of a of Evidence motive, intent, opportunity, prepa- proof of by crime offered the victim of the ter of ration, plan, knowledge, identity, or ab- accused, prosecution re- by the to an accident. sence of mistake or same, of a character or evidence but peacefulness the victim offered trait of of provided testimony no re- 5. The witnesses to prosecution in a homicide case gestures garding Walton’s or actions with the that the victim was rebut evidence knife. aggressor; first witness, provides: the character of 6. SDCL 19-12-4 Evidence of 19-14-16, §§ to provided in 19-14-8 person’s trait of a character or a Evidence pur- inclusive. admissible for the of his character is not ¶ Barber, they 1996 SD were in their vehicles. The trial 820). N.W.2d The evidence was di request. refused Walton’s to rectly stabbing connected Walton’s claims [¶ 24.] Walton the trial court’s Knecht, killing of Lehmkuhl. SD denial right violated his to effectively ¶ 418; at see also cross-examine Akers. He further claims ¶ Goodroad, 46, 10, 563 N.W.2d at that the court abused its discretion when it omitted) (citations (stating that evi prohibited calling him from witnesses for logi dence is admissible would “tend purposes of impeachment and to introduce crime[.]”). cally prove an of element prior acts evidence. disagree. We charged Walton was with second-degree previ As this Court has first-degree manslaughter. murder and stated, ously an accused’s to confront that he carried Establishing a knife was “guaranteed by witnesses is the Sixth charges. proving essential See Lar Amendment to the United ¶ States Constitu son, 582 N.W.2d at 21 VI, § tion and Article 7 of the South (citation omitted) (stating State must Dakota Constitution.” v. Koepsell, prove every of charged element of (S.D.1993). 594-95 How doubt); Knecht, beyond fense a reasonable “ ever, trial court ¶ ‘[t]he retains broad dis (cita SD cretion concerning the limitation of cross- omitted) (“When tion a defendant raises examination and it only will be reversed self-defense, of affirmative defense it is showing when there is a clear of abuse of upon prove beyond incumbent the State to discretion a showing prejudice killing reasonable doubt that Steichen, the defendant.’” State v. law.”). authority without Because the SD 878 (quoting intricately evidence was related to the (citations Koepsell, 508 N.W.2d at 595 crime, the trial court did not omitted)). “The defendant has the burden abuse its discretion in it. admitting establishing ‘a reasonable probably would a significantly have differ [¶ 21.] 3. The trial court did not err in impression ent if appropriate otherwise denying Tony admission of Akers’ cross-examination had been permitted.’ prior acts. (citations omitted). Id. Walton has failed trial, to meet this burden. [¶ Prior 22.] Walton sub mitted a notice of intent to prior use acts permitted [¶ 26.] Walton was to cross- Akers, evidence that one of State’s wit examine Akers about attempt his to as- nesses, previously assaulted individu sault Walton inside Wood’s vehicle. Akers als while such individuals in were their action, denied such but admitted to reach- vehicles. The trial court ruled that ing into grab the car to Walton as the car evidence could not be admitted as prior leaving was the scene stabbing after the testimony, acts but ruling reserved its on occurred. The trial court prohibited then whether the evidence could be used for Walton from expanding the cross-examina- impeachment purposes. tion questions regarding Akers’ acts against others not involved in litiga- trial, During objected State when tion. hit, Walton if asked Akers he had ever or hit, attempted to someone in a vehicle. find it [¶ 27.] We was within the trial objection. The trial court sustained the court’s discretion to limit Walton’s cross- re-cross, On Akers denied hitting anyone examination of Akers in this manner. Id. ¶ in Wood’s car. attempted Walton then at Moreover, 588 N.W.2d at 878. witnesses, introduce and made an offer of Walton has not established that this limita- proof court, that, to establish that him prejudiced Akers tion if the had previously evidence, assaulted presented individuals while been with would something may that have occurred at some significantly impres different have had id.; prior place time or at some distant is not 508 N.W.2d at Koepsell, sion. Clearly, exception 595; impeachment.” Bogenreif, (S.D.1991). apply. Accordingly, does not we find no recognized We have 782 “ error. an guarantees ‘the Confrontation Clause for effective cross-examina opportunity addition, In claim that

tion, effective not cross-examination is the trial court should have allowed the extent, way, in and to whatever whatever prior introduction of evidence of Akers’ might Bogenreif, wish.’ the defense operan- acts to establish intent and modus (quoting Delaware v. Fen also without merit. The trial court di is 292, 294, sterer; 106 S.Ct. U.S. prior acts evidence determined (citations (1985) omit 88 L.Ed.2d because it was not rele- was inadmissible ted)). Therefore, no error. we find vant. We find no abuse of discretion Steichen, such a determination. See also claims that the Walton 874; Barber, 126, 16, 588 N.W.2d at SD request to call denying court erred his ¶ 14, 552 N.W.2d at 820. purposes impeach three witnesses for Akers’ ment and to introduce evidence of 4. The trial court did not err mer argument acts. This without denying Walton’s motion to dismiss it. second-degree charge. murder provides 19-14-10 that: [¶ 29.] SDCL November [¶ 33.] On of the conduct of a Specific instances juvenile court with Walton

witness, attacking purpose for the first-degree manslaughter. State moved credibility, his other than supporting court to have transferred to adult ... may conviction of crime not be and, juvenile on March They proved by extrinsic evidence. March granted State’s On motion. however, may, in the discretion of the complaint charging filed a court, if of truthfulness or un- probative and, in the second-degree murder truthfulness, inquired into on cross- alternative, first-degree manslaughter. examination of the witness his character for concerning truth- hearing, preliminary Prior to the untruthfulness, or fulness or over proceedings and after the were bound court, for dismiss concerning the character to circuit Walton moved to second-degree charge. truthfulness or untruthfulness murder charac- motions. Wal- another witness as to which trial court denied Walton’s for an intermedi- being petition ter the witness cross-exam- ton then filed a ruling. trial court’s This appeal ined has testified. ate of the trial, petition. Prior to Court denied Moreover, recognized has this Court his motion to dismiss Walton renewed may under evidence that be inadmissible second-degree charge request- murder “may 19-14-10 be admissible to SDCL objection standing throughout ed a impeach by contradiction as allowed again trial court denied the trial. The Byrum, v. 399 14—8[.]”7 19 — was convicted of first- motion. Walton (S.D.1987). 334, 337 the crime for which degree manslaughter, excep- claims the narrow juvenile in charged he was court. here. Byrum applicable tion stated in is transfer of claims that the disagree agree with Walton We juvenile to adult proceedings from trial court’s statement that fact “[t]he credibility may of a witness be attacked provides as follows: The by any party, 7. SDCL 19-14-8 including party calling him. 532 juris- grant (stating the circuit court that “the circuit court to which the

court did not against him on the sec- proceed diction to case is transferred is limited to the consid acts, behavior, charge. murder He further ond-degree specific eration of the him of notify failure to argues subject that State’s petition, matter of the but it is not on a proceed second-degree intent to offense”); its limited specific named was a denial of his charge murder 730, v. Randolph, Kan.App.2d 876 process due under the South Dakota and (1994) 177, P.2d “the trial (stating Again, we United States Constitutions. court did not err it permitted when disagree. the prosecution continuation of of Ran dolph on charges two different criminal governs SDCL 26-11-4 the trans- originally juve that had not in been filed proceedings juvenile fer of from to adult court”); Hoerle, People Mich.App. nile transfer, court. At the time of Walton’s (1966) 593, (stating in provided part:8 SDCL 26-11-4 that a waiver permit prosecution for one in may, The circuit court its discre- permit prosecution offense is not waiver to tion, child, any delinquent in case of a one); State, greater for a Junior hearing, permit after transfer such child (1973) (stat Nev. 507 P.2d proceeded against in to be accordance ing “charging the defendant with a may in with the laws that be force in more serious crime than that which was governing this state the commission of crimes, pending at the time of certification petty mu- offenses violation of error”); Garcia, 93 N.M. ordinances. nicipal (N.M.1979) P.2d (stating the trial The also lists factors statute seven which in denying court did not err Garcia’s mo in may determining the court consider quash, tion to because the indictment cov juvenile whether should be trans- arising ered offenses from the same trans However, silent, ferred.9 is as are all action). provisions chapter, other on the juvenile may charged issue of whether a We reasoning find the court’s with additional offenses after such transfer Randolph persuasive. to be 19 Kan. granted. App.2d Randolph, 876 P.2d 177. In the state Randolph, failed to inform who question filing

[¶ 37.] The additional charged juvenile had been charges granting after the court with the transfer impression attempted aggravated is one of first one count of for South Dakota. rob bery, Although we have not had the that it intended to opportunity bring additional question, jurisdic- this felony charges against address other him in the criminal See, upon tions have ruled e.g., proceedings. issue. After transfer to the State, (1995) court, Knotts v. 686 So.2d criminal the state Randolph prosecutive 8. SDCL 26-11-4 has complaint. since been amended. The merit of the required The state shall not be to estab- probable prosecutive lish merit; cause to show transfer, pro- 9. At the time of SDCL 26-11-4 part: vided in desirability The disposition of trial and following may factors be considered proceeding of the entire offense in one determining the court whether a child when the alleged child’s associates in the should be transferred: adults; offense are (1) alleged The seriousness of the offense to (6) previous history The record and of the community protection the and whether of juvenile; waiver; community requires the (7) prospect adequate protection The for of alleged Whether the offense was com- public the and the likelihood of reason- violent, aggressive, mitted in an or willful juvenile, able rehabilitation the of if he is manner; alleged found to have committed the of- fense, alleged against Whether the offense was by procedures, the use of services persons property greater weight with currently and facilities the available to being given against persons; juvenile to offenses court. may as both a delin- punishment count of other robbery, of one one count a criminal quency hearing proceed- count of at- and battery, and one aggravated robbery. ing’”). He was aggravated tempted battery, which aggravated of convicted juvenile The court determined juvenile court. On

not been be transferred to adult that Walton should Appeals of held the Kansas Court appeal, provides Dakota law that court. South the that because proceeded could “be after transfer Walton personal and acquires court criminal with the laws that against accordance case, over the subject jurisdiction matter may governing in this state force try any can addition- criminal court [t]he crimes, petty of offenses or commission arise from the charges might al municipal ordinances.” SDCL violation juve- spawned of facts that same set Therefore, find that 26-11-4. we State case, come charges whether nile prohibited filing from additional filing charges additional from the State charges granted. after the transfer was hearing by preliminary Knotts, 476; Randolph, So.2d at See the defendant binding the trial court Accordingly, the trial 876 P.2d at 181. prelimi- at the charges over on different mo- denying court did not err hearing. nary second-degree murder tion to dismiss the Randolph, 876 P.2d 180-81. charge. Here, juvenile court process rights due 5. Walton’s making its seven factors when considered com- were not violated State’s 26-11- determination. See SDCL

transfer during closing arguments. ments considered the seri Although the court closing argument During offense, it also considered ousness of following made the Jensen, attorney the state’s factors. the other six ¶ 22, statements: 579 N.W.2d Harris, (quoting State think has had months to This individual “ (S.D.1993)) control (stating ‘[n]o story. Thirteen You his months. about ”). any factor’ We ling weight given take the stand heard those witnesses find, did, that these Randolph as the police reports, from their testify and require do “not factors for consideration within hours or which were written bringing every charge be policy strict had 13 hours of the incident. He’s juvenile approval. court for its fore the you tell months to take that stand and judicial juvenile court is to make the what his version was. juvenile should of whether determination juvenile province of the remain within next, tell us ladies What does he charges not determine what court and my put knife] “I on gentlemen? [the Randolph, P.2d at can file.” might I he see it.” lap thought because Horse, 180; Flying generally see know, weak, weak as hell. You That’s (S.D.1990) (stating a It took thirteen months bologna. that’s adjudicato is not

juvenile hearing transfer think of that. which forum only in nature and resolves ry comments vio- Walton claims these its to hold trial on appropriate is most right to remain si- his lated constitutional merits); People in the Interest see also find process. and his to due We lent 126, ¶ 7, Y.C., be without merit. argument his omitted) (citation juvenile court (stating “a has Supreme “The Court in a deter hearing [¶44.] cannot result transfer ... for ‘Fifth Amendment in a stated delinquency, cannot result mination of case, prosecution on either comment guilt in a criminal bids finding of instructions the accused’s silence or in confinement or ‘directly cannot result 534 occasions, that such silence is evidence of on two several months before Class, in

guilt.’ night question, v. necessary Jones was prove charged an element of the I (quoting v. crimes. Griffin disagree it unnecessary because was California, 380 U.S. 85 S.Ct. (1965)). prejudicially. used 14 L.Ed.2d Therefore, prosecutor’s a comment on such It should be emphasized that the silence is reversible error. See v. two witnesses who testified about Walton Strickland, S.D. N.W.2d carrying a knife prior on occasions did not (1973). 575, 580 testify that they saw Walton carrying day knife on the of the altercation and Here, however, we conclude that were not present the scene of the alter- prosecutor’s comments were not com Further, cation. presented the State testi- silence, ments on Walton’s but rather com mony eyewitnesses at trial of who were regarding ments credibility his and the present at the scene and saw presented. evidence See State Nachti the knife. Geliga Emmanuel testified that (S.D.1980) (cita gall, 296 N.W.2d he saw Walton with in the knife his hand omitted) (stating tions the prosecutor’s and that he saw the knife covered with permissible comments were a summary blood. He made a drawing of the knife for evidence). such, of the state of the As enforcement, law which was admitted into comments did not violate rights. evidence at trial the State. Justin Jacob, 253 Neb. Wood also testified that he saw Walton (1998). Therefore, we addition, with a knife. In Walton’s de- find no error. fense counsel conceded in opening argu- [¶ 46.] Affirmed. ment Walton had a knife and stabbed Lehmkuhl. Walton also testified that he AMUNDSON, KONENKAMP Lehmkuhl, stabbed but claimed in he acted GILBERTSON, Justices, concur. self-defense. SABERS, Justice, [¶ in 48.] concurs [¶ The testimony 53.] that Walton car- part, in in part, concurs result and dissents ried a knife on prior occasions did not in part. prove that he night knife on the did, question. Even if totally it it was SABERS, Justice (concurring part, unnecessary because the State had testi- concurring part result in and dissenting mony eyewitnesses from actually who saw in part). night question. knife on the There- I concur on [¶49.] Issues 4 and 5 and fore, even if I accept, were to the majority concur in result on Issues and 3. opinion’s claim prior that this was not acts However, I dissent on Issue evidence, the evidence should have been because the trial court improperly allowed excluded under SDCL 19-12-3 because its the State to introduce evidence that Wal- probative value was “substantially out- ton carried a knife prior on occasions to weighed by the danger prejudice, of unfair night of the altercation with Lehmkuhl. issues, confusion of the misleading This error prejudiced Walton and denied jury, byor delay, considerations of undue Therefore, him a fair trial. we should time, waste of presentation needless reverse and remand for new trial. added). cumulative evidence.” (Emphasis [¶ The majority opinion 51.] claims that only reason the State intro- this evidence was not prior used as acts duced testimony that Walton carried a Rather, evidence under SDCL 19-12-5. knife on prove occasions was to his claims that the evidence “intricately bad exactly character. And that is how related to they crime.” It claims it. In closing arguments, used that testimony that Walton carried a knife State stated: the trial character evidence which him missible [knife] took Ben Walton on have excluded. Walton was heard he’s done court should you night, that admission of the evi- prejudiced by to that prior even many prior occasions it him as a bad everyone, painted and dence because Unfortunately, for night. condone, looking a knife for person always carrying doesn’t something the State characterization, created fight. that.... This to understand you and I want prior use of the act through the Defen- the State we know about But what do evidence, unfairly prejudicial to his a minute. We Think back for dant? result, he was women claim of self-defense. As you young that saw two know Therefore, fair trial. we should had a habit of denied a say and he take the stand a new trial. many reverse and remand for knife. He did on carrying that Now, Jacey you heard occasions.... it, it kept carried on say

Barnes he He time on his ankle.... all the

sheath carrying this The [knife]. a habit of him said he had ladies that knew

young especially carrying this [knife]

a habit of from California. after ... he back came 1999 SD 82 to show that Wal- testimony was used The Dakota, Plaintiff of South STATE who carried a knife person was a bad ton Appellee, and therefore, have intended to he must v. is intended kill Lehmkuhl. SDCL 19-12-5 GEHM, acts. prior such use of prevent Ranee Defendant Tammra Appellant. majority author was more The 55.] [¶ Moeller, 60, v. convincing State No. 20459. he wrote: where 548 N.W.2d Dakota. Supreme Court South crimes or acts oth “Generally, evidence of which the defendant than the ones with er Briefs Dec. 1998. on Considered inadmissible, unless certain are Decided June Contrary posi exceptions apply.” majority in this case and taken tion ¶50, 13, 593 Wright, v. State 792, 797, I maintain

N.W.2d inadmis general remains a rule

19-12-5

sibility vigilant” and we must be “ever the rule. exception does not swallow (S.D. Steele, v.

State

1994) Chapin, v. (citing State omitted)). (citations (S.D.1990)

420, 421 Ondricek, N.W.2d also (S.D.1995) (Sabers, J., dissenting); Christopherson, (S.D.1992) (Sabers, J., dissenting); R.S.S., 474

Matter of

(S.D.1991). this court’s recent Based on Wright, appears culminating

opinions, season on defendants open

that it is now evidence.

through prior acts testimony car- inad- occasions was a knife on

ried

Case Details

Case Name: State v. Walton

Court Name: South Dakota Supreme Court

Date Published: Jun 30, 1999

Citation: 600 N.W.2d 524

Docket Number: None

Court Abbreviation: S.D.