State v. Woods

92

damage.” Peterson, Alsager v. 31 S.D. (1913). N.W. Dakota, STATE of South Plaintiff Appellee, majority opinion’s

I concur with the as- sessment of judicata par- the res issue and ticularly its Black Jewelry citation to Hills WOODS, Wayne Defendant Ind., Mfg. v. Felco Jewel N.W.2d 153 Appellant. (S.D.1983),which, applied to when the facts 14536. No. case, of this sustain the majority opinion’s viewpoint. Supreme Court of South Dakota. Argued Jan. 1985. FOSHEIM, (dissenting). Chief Justice Sept. 4, Decided present dissent. Lees’ action is res 15, 1985. Oct. Rehearing Denied judicata. The judicata prevents doctrine of res

relitigation actually litigated of an issue properly

which could have been raised

determining proper action. Black Hills

Jewelry Manufacturing Co. v. Felco Jew-

elry Industries, Inc.,

(S.D.1983). key question is whether wrong sought be redressed is the

same in both Id. actions.

Here it is wrong sought clear that the

be remedied in Lees’ both of actions is the

same: stopped want Schultz from

draining water from his land onto their

land. Following action, first

court found “there no evidence that gather

water would and form a slough new unreasonably otherwise damage [the Though land.” Mother Nature has

Lees’]

perhaps proved finding now to be

wrong, doing nothing Schultz is more now

than at the time of the first action. The

Lees’ have day had their in court. That

judgment Cundy conclusive. See

Weber, 68 S.D. 300 N.W.

(S.D.1941); see also Raschke v. DeGraff, 295-96, S.D. Pugh

Kenn A. of Northern Hills Public Office, Deadwood, Defenders’ for defend- appellant; ant and Marie E. Clark Office, Northern Hills Public Defenders’ Deadwood, on brief.

HENDERSON, Justice.

ACTION This appeal is an from a Judgment final of Conviction of Murder in the De- First gree. We affirm.

FACTS On p.m., November at 12:00 Woods, Wayne herein, appellant-defendant burglarized the home of James Everett rural County Lawrence and stole several including items pistol. three rifles and a Woods then left Everett’s home and re- Rapid City turned to where he met his friend Ruben Garcia. Garcia was fourteen years juvenile probation old and on for burglary. The two then decided to bur- glarize again. Everett’s home pair p.m. arrived at at 5:00 Everett’s At this scenario, point in the the testimony be- Deputy comes conflicting. Neis Juso County the Lawrence Sheriff’s Office testi- fied that Woods stated that both of them entered the house and were in a bedroom they headlights when and heard saw a car approaching. Juso testified that Woods pair said the ran out then the front door and into behind some trees the house from they where watched Everett. Woods fur- ther told Juso Everett initially sur- veyed house, the losses inside the then plates examined Woods’ car license Deputy returned to the house. Juso fur- ther testified that Woods said he knew approached Everett and that he the back door of purpose apolo- the house for the gizing for burglarizing to Everett home. Woods told Juso that he entered coming back door and saw Everett Ledbetter, Gen., B. Atty. position Clair Asst. around a corner in a crouched Pierre, plaintiff appellee; for pointing gun him. to According Mark V. Gen., Pierre, Meierhenry, Atty. Juso, story attempted on brief. Woods’ Woods say pulled “Jim” and Woods out a TO then FIRST- AND SECOND-DEGREE revolver and fired at Everett. once WE THAT MANSLAUGHTER? HOLD IT DID NOT.

Garcia, however, trial that testified at only Woods house and entered Everett approached,

when the car he ran to the Before a South Dakota trial court joined trees and was there Woods. As can instruct the toas lesser-included losses, Everett examined his Garcia said offenses, separate two tests must be met. offered, plans. made Garcia “Let’s First, requires: test get off,” car and take to which (1) elements of the included of [T]he “No, replied, already got my he’s fense must be fewer in number than the said, “Well, license number.” Woods then (2) greater offense, elements caught want get going don’t so we’re penalty for the included offense must be have shoot him.” Woods asked Gar- greater less charged offense, than the cia if he to would like shoot Everett and (3) the two offenses must contain not, said, when said could Garcia Woods common elements so that the included “Well, going I’m have to do it.” to Woods offense must be greater such that the door, peeked then approached the back offense cannot be committed without window, through the and waited for Ever- committing also the lesser. State v. Kaf gun ett with drawn. Garcia testified ka, (S.D.1978)(Zas swung open, that Woods then the door trow, J., concurring specially). in, stepped and fired. This shot ended the life of James Everett. Oien, (S.D. 1981). Second, the factual test must be dispute pair

It is not in that the then fled requires: met and it the scene car Woods’ and while re- turning Rapid City, the wrecked vehicle request “Where a has been made to calling and continued on foot before for a charge jury the on a lesser-included of- night, report- ride. Later that same Woods fense, duty of trial judge the the deter- ed his car stolen. the mined If evidence. evidence has 18,1983,

On November Woods was taken presented been support which would a custody interrogated into at the Pen- charge, conviction of a lesser refusal to nington County Department by Sheriff’s give requested the instruction would be Pennington County and County Lawrence There suf- reversible error.... must be Deputies. During the course of the inter- evidence, however, ficient read in when rogations, Woods made certain incrimina- light the most to the favorable defend- ting writing statements and consented in ant, justify jury which would a in con- search his home and car led to which cluding greater that the offense was not discovery weapon. of the murder was, committed and that a lesser offense February On a jury found fact, committed.” guilty First-Degree Woods Murder. Oien, (citation omitted). 302 N.W.2d at 809 did Woods not take the stand in his defense during the trial. Woods was sentenced to in South longer It is no law prison life in and it is from his conviction of trials, in all the trial Dakota that murder First-Degree Murder that Woods now instruct the automatically court must peals. degrees as to all of homicide. See lesser (S.D. 18, 21-23 Waff, 373 N.W.2d

State v. 1985). If evidence does not admit DECISION support degree a lesser an instruction on I. it. homicide, give need not the trial court development of the law DID THE TRIAL COURT BY RE- ERR Waff. result; reasoning FUSING TO THE sound has led this INSTRUCT JURY AS thus, past expressed cases which have then up con- came with his self-defense/apology tradictory story overruled.1 after realizing views have been Garcia had also been interrogated.

Under the factual test outlined above, duty to instruct court’s however, Garcia, testified “is lesser-included offenses determined rejected Woods knocking the idea of Ever If evidence the evidence. has been out, ett suggested, which Garcia because presented support a which would conviction Everett would still remember the license charge, give of a refusal to lesser re plate said, number and that Woods then would quested instruction be reversible er “Well, get caught don’t want to so we’re (citation Oien, ror.” N.W.2d at 809 going to have to shoot him.” Woods there omitted). argues Woods upon asked Garcia if he wanted shoot both the the factual tests have no, him said, and when said Garcia Woods support of been satisfied. In his conten “Well, going I’m to have to do it.” Garcia presented tion that evidence approached testified that then manslaughter supported have con house gun peeked with his drawn and viction and thus the factual test has been through the and eventually windows en met, appellant points to the testimony of tered the house and fired the shot that County Deputy, Lawrence Sheriff Neis argues killed Everett. The State that the Juso.2 evidence, whole, taken as a showed that Deputy Juso testified Woods indi- Woods had intent to kill and approached apol- cated that he the house to Deputy that testimony concerning Juso’s ogize to and the decedent that he shot in Woods’ statement was insufficient evidence self-defense or out of instinct when he saw to jury manslaughter. instruct on pointing gun decedent at Appellant a him. contentions, agree. With the State’s we contends that this evidence support manslaughter a conviction of in The trial does not that the court have to interpret supported it to instruct on could be reckless con- matters not or war by Fender, ranted dangerous weapon duct or the use of a the evidence. State v. 248, (S.D.1984); premeditated without 358 N.W.2d design a 252 State v. effect 468, Huber, (S.D.1984); death and the trial 356 472 therefore court’s refusal N.W.2d State, 673, (S.D. manslaughter to instruct as to Miller v. 338 N.W.2d 676 constituted 1983); Chamley, 153, 310 reversible error. State v. N.W.2d State, contravention, argues (S.D.1981); in Oien, 809; 155 302 N.W.2d at Deputy Curtis, 807, (S.D. Juso’s recollection Woods’ State v. ever- 298 N.W.2d 810 changing 1980); Wilson, 477, version of Everett’s death is sim- State v. 297 N.W.2d ply evidence, enough (S.D.1980); Feuillerat, not sufficient 482 not v. State 292 evidence, 326, (S.D.1980); read in light even when most N.W.2d 334 and State v. defendant, Bean, 886, (S.D.1978). favorable to the to justify jury a 265 N.W.2d 891 As concluding manslaughter above, in stated in applies was com- this homicide cases mitted first-degree instead if sup murder. the evidence does not admit or Upon arrest, initially port degree denied hav- a lesser instruction on ing anything homicide, give to do with Everett’s death and the trial court need not it. 22, sar, Waff, (S.D.1979); 1. See N.W.2d at 373 overruled 279 N.W.2d and State 678 Lohnes, (S.D. 1982). expressed inconsistent in views State v. Hub- 324 N.W.2d 409 bard, 148, (1905); 20 S.D. N.W. 104 1120 State v. 50, Stumbaugh, (1911); 28 S.D. 132 N.W. 666 argued January 2. This on case was Godlasky, State v. 47 S.D. 195 N.W. 832 Although this was seven months before the ren- Painter, (1923); 70 State v. S.D. 17 N.W.2d Waff, dition of our decision in counsel for Violett, (1944); 12 State v. 79 S.D. 111 pellant, apparently foreseeing reasoning, our ar- (1961); Zobel, N.W.2d State v. 81 S.D. gued in that the the alternative dictates of the (1965); Grooms, 134 N.W.2d State v. 85 S.D. Kafka, of State v. factual tests (1971); Lewis, Oien, 186 N.W.2d 889 State v. (S.D.1978), had been met (1976); S.D. State v. Vas- in this case. Here, construing facts most fa- home, returned and Woods ran from the Waff. appellant, vorably toward we are not con- burglary not was over and Woods was present- vinced that sufficient evidence was suddenly not pre-aggression restored to his ed justify jury concluding which would a Everett, of self-defense. upon dis- that murder was not committed and that covering burglary strange and the ve- manslaughter was committed. We there- outside, parked hicle was under the reason- manslaughter fore conclude that instruc- presumption burglar able that a still properly by tion was refused Therefore, on or premises. near the if the court. evidence reflected that any Everett used repel intruder,

force to the felonious this force, would have been lawful and would II. give rise to a self-defense defense DID THE TRIAL COURT ERR BY RE- the intruder. SDCL 22-16-34. FUSING TO INSTRUCT THE JURY ON JUSTIFIABLE HOMICIDE? WE Woods, burglar, who could IT HOLD THAT DID NOT. away have driven his car after Everett justifiable is “Homicide when com returned, hardly danger can claim him by any person mitted in the self by remaining premises on the defense lawful person of such ... when there reason stalking peering homeowner ground apprehend a design able to com through the waiting op for the window— felony, great mit a personal do some portunity kill. ele wishes to injury, and danger design imminent of such himself, law, vate to a sta self-defense (em being accomplished.” SDCL 22-16-35 tus belonging such to Everett. phasis court, supplied). however, The trial This cannot be. The trial court’s refusal to self-defense, need not on instruct excusable justifiable on instruct homicide not in homicide, homicide, or justifiable if the evi error. support dence does not an instruction Huber,

thereon. See III. 473-74; Zemina, State v. 87 S.D. 299-300, 819, (1973); and DID RE- THE TRIAL COURT ERR BY Johnson, 608, 600, 81 S.D. IN- FUSING TO SUPPRESS WOODS’ (1965). Upon a review of CRIMINATING AND STATEMENTS herein, the no support record we find for a THE THE OBTAINED IN EVIDENCE justifiable homicide instruction. WE HOLD CONSENT SEARCH? IT THAT DID NOT. gun- Woods awas wielding burglar p.m., who entered Everett’s On November at 7:00 pellant house not once—but taken custody twice—to steal there Woods was into beyond It interrogated Pennington County from. is therefore at contention the aggressor. Department Pennington that the Generally, Woods was Sheriff’s Coun- aggressor, produces ty County Deputies. the the who one the and Lawrence Woods necessary warnings. circumstances make it the He said to was read Miranda life, he rights signed take another’s is not entitled assert understood the his self-defense. 40 Am.Jur.2d card. See Homicide Miranda When asked whether (1968); Scott, rights LaFave & Handbook not he to waive his and talk wished § Law, officers, appellant on ch. he talk Criminal at 394-95 the said would § (1972); Anderson, interrogation and 1 Crimi to them.3 This first session Wharton’s Procedure, 228, 229, began p.m. nal Law and 7:00 8:45 at and lasted until §§ p.m. surprisingly 499-503 When Everett requested never of Woods the assistance coun- briefs. sel and this is not raised an issue in the Law, Order, session, dated Febru- first Woods denied elusions

During this ary specifically the trial court case and said he in the Everett involvement alia, found, appellant ad- during inter was house at a friend’s had been rights his under Mi- vised of constitutional told time of the murder. When Arizona, 384 U.S. 86 S.Ct. randa v. all wanted interrogating officers that (1966); he 16 L.Ed.2d 694 know- truth, Woods appellant to tell is for ingly, intelligently, voluntarily waived everything gonna I’m replied, “I’ve said right his to counsel and to make state- later, again told say.” he was Moments ments; that, exer- thusly, appellant did not opportunity to tell his side that this was his did not right cise his to remain silent and he would not have a story and that statements; end his volun- “I responded, don’t second chance. Woods search; tarily and that the consented to say.” asked if he anything to When have beyond a State had established these facts hap- say some more about what wanted to reasonable doubt. Further, when pened, Woods said “No.” say anything again if he wanted to asked Appellant contends the trial court erred story, responded more or add to his incriminating failing suppress my story is that he did not “Because what rea- statements and the evidence for two each of the already you.” told After above First, appellant asserts that his sons. interrogation continued. responses, interrogation statements in the first ses- session, Woods also said During this first exercising right sion his were statements previously that he had taken five times the silent, and since the officers to remain dosage of an over-the-coun- recommended right, the exercise of that failed honor During this first inter- ter sinus medicine. anything thereafter was obtained obtained incriminating rogation, appellant rights. made no of his constitutional violation statements; Second, the thrust of statements appellant argues his that his consent defense, i.e., voluntary he was that he had alibi to the search was not and was remain procured at a friend’s house at the time of the in violation of his that his murder. silent. Woods maintains written voluntary consent to search was be- interrogation p.m., At 8:45 the first ses- interrogation given cause it was when the polygraph sion ended and examination heated; had while he had taken become polygraph administered. This exami- medicine; and four and excess sinus after p.m., nation continued until 11:00 when a police interrogation. one-half hours interrogation began.4 Prior second session interrogation, to this second Woods was initially note that a trial court’s We rights if he findings resulting suppression asked still knew his Miranda from a hear erroneous, ing upheld clearly and he said that he did. When asked if he will be unless West, rights again, read to him 504-05 wanted State (S.D.1984), This until and that our function under stated no. second session lasted During interroga- that standard is to determine whether the p.m. 11:36 this second weight tion, findings clearly against are the of incriminating made statements Johnson, testimony. 320 the State v. signed a consent to search form and 142, (S.D.1982). 147 discovery weapon. of the led to the murder interrogation A third session was conduct- Although admissibility “the of day produced the next in- ed which also person after the in statements obtained criminating statements. custody has decided to remain de silent suppress pends ‘right Woods moved to the statements on whether his under Miranda questioning’ ‘scrupulously the evidence trial court denied and but the to cut off was ” Fact, honored[,]’ Findings Michigan Mosley, the motion. In its of Con- 423 U.S. elicited; polygraph testimony polygraph 4. No was no examination. posed by concerning issues are the briefs a

99 326, 313, 96,104, 321, 96 S.Ct. 46 L.Ed.2d ism.” United v. Rodriguez-Gaste States (1975), important question lum, the 482, (9th 321 herein Cir.1978), 569 F.2d 486 cert. appellant invoked his constitution- denied, 919, whether 2266, 436 U.S. 98 S.Ct. 56 right remain silent. al to (1978). L.Ed.2d 760 interpretation A literal rejected of has Miranda been it because During suppression hearing, the of two would lead to “absurd and unintended re interrogating the officers testified that Mosley, 102, sults.” 423 atU.S. 96 S.Ct. at talk pellant said would to them and that 326, 46 L.Ed.2d at 320. appellant express no time did a to at desire prohibition against blanket quit and terminate conversation talk- tak- [A] ing voluntary of ing. perma- by When confronted defense counsel statements or a Woods, immunity nent as from interroga- with the statements outlined further tion, above, circumstances, they regardless the officers testified that did of would transform the interpret appellant mean that these to Miranda safe- guards quit talking wholly into to or that he in- irrational obstacles to wanted was legitimate police voking right investigative activity, his to remain silent. Both deprive suspects and of opportunity to officers further testified that under- make intelligent to informed and appel- stood these statements mean that assess- ments of going previous lant was to stick his their interests. to explanation going change and was not to (emphasis supplied). concurring Id. In his i.e., story, being his his of at a friend’s alibi opinion Byron in Mosley, Justice White also house. It stated that these conclu- against paternalistic warned a interpreta- were reached on the sions based course safeguards tion the Miranda so as not appellant’s the conversation and ex- facial “imprison to a man privileges,” in his 423 pressions. refuting No evidence the offi- at 96 U.S. S.Ct. at 46 L.Ed.2d at testimony presented. cers’ suspect’s “ability cut off the thus explain particular incriminating to a fact Facially, appellant’s statements supply particular to an alibi a for time are, best, case, ambiguous. This like period would result in his immedi- [which] Hicks, 64, 74, 133 Ariz. case 649 n. ate release.” Id. at ‘Miranda (1982), ap P.2d 277 “is a case where strictly require should not read be so as pellant clearly did not invoke his police accept any as conclusive state- remain silent....” When examined in the act, ambiguous, no ment matter how the interrogating context of in officers’ sign suspect that the desires cut off quiring statements as reflected Perkins, questioning.” 219 State v. Neb. record, reasonably ap it is concluded that (1985). See pellant’s only were statements intended also, State, (Alaska Vail v. 599 P.2d 1371 persistence evince a in an and not to alibi 1979); Roark, People v. 643 P.2d essence, off questioning. cut In after stat (Colo.1982)(Erickson, J., concurring part ing alibi, appel officers would ask dissenting part); House, State v. if going lant he was to tell them the truth (1978); St.2d Ohio N.E.2d 588 appellant respond that he had Commonwealth, Lamb v. Va. already story. told them his The interro S.E.2d gating testimony supports officers’ this conclusion, agree and we with the trial carefully We have reviewed the court that Woods did not exercise Findings of Fact and Conclusions Law right remain suspect silent. When a by the entered trial court and determine alibi, asserting remaining is he is not West, clearly are erroneous. doing opposite; silent. He is is he 504-05; Johnson, talking. There no or is talismanic word N.W.2d at 147. phrase with which to invoke silent, remain safeguards appellant’s and the for Miranda As contention con applied “flexibility must be cerning with and real- the voluntariness of his written Waff, v. ed. See State search, it to without we find be consent to C.J., (Fosheim, dissenting). (S.D.1985) merit. of fact to question is a Voluntariness totality of the from the

be determined v. Busta

circumstances. Schneckloth

monte, 93 S.Ct. 412 U.S. (1973)_ The state must

L.Ed.2d 854 by clear and con

establish voluntariness was the that the search

vincing evidence free, intelligent, unequivocal result of a FOSSUM, Douglas Plaintiff Paul any duress specific consent without Appellant, coercion, implied. State v. actual or (S.D.1977); Kissner, FOSSUM, Cindy Defendant State, 52 Wis.2d Gautreaux v. Appellee. N.W.2d 542 (S.D. 14815. Cody, 293 N.W.2d Nos. 1980). Here, evidence we find no credible Supreme Dakota. Court South against court’s determination to the search was vol appellant’s May consent Briefs 1985. on Submitted threatened or untary. Appellant was not Sept. Decided coerced, voluntarily implied. He actual his auto signed consent form to search interrogation The first and room.

mobile 45 min approximately one hour and

lasted ap

utes; interrogation lasted the second minutes.

proximately 36 to stretch himself. We

permitted breaks browbeating into this factual read a

cannot hosing. psychological or a rubber

scenario suggestion

There is no medicinally

physically exhausted or drained medi nonprescription from

and overcome Rather, appeared alert.

cine. appealed from is affirmed. judgment

The MORGAN, JJ., and

WOLLMAN

WUEST, Judge, Acting Supreme Circuit Justice, concur.

Court

FOSHEIM, C.J., dissents.

FOSHEIM, (dissenting). Chief Justice given the jury should have been degree first and second

instructions on requested by Defendant-

manslaughter statute, jury find the By must

Wood. crime of which a defendant

degree of the 23A-26-7. Since guilty. SDCL

found manslaughter, and their subdi-

murder and crimi-

visions, degrees all are statute homicide, so instruct- must be

nal

Case Details

Case Name: State v. Woods

Court Name: South Dakota Supreme Court

Date Published: Sep 4, 1985

Citation: 374 N.W.2d 92

Docket Number: 14536

Court Abbreviation: S.D.