State v. Stumes

Decision Date06 May 1976
Docket NumberNo. 11470,11470
Citation241 N.W.2d 587,90 S.D. 382
PartiesSTATE of South Dakota, Plaintiff and Respondent, v. Norman STUMES, Defendant and Appellant.
CourtSouth Dakota Supreme Court

William J. Janklow, Atty. Gen., Marc Weber Tobias, Asst. Atty. Gen., Pierre, for plaintiff and respondent.

Joe W. Cadwell, Braithwaite & Cadwell, Sioux Falls, for defendant and appellant.

COLER, Justice.

Appellant was charged with murder, SDCL 22--16--4, and found guilty of manslaughter in the first degree, SDCL 22--16--16, and he appeals. Appellant asserts as error (1) lack of foundation for admission of certain exhibits; (2) insufficiency of the evidence to support the verdict and (3) failure to suppress admissions against interest made by appellant to police officers.

The information charged that appellant

'on or about the 17th day of September, 1973 in the County of Minnehaha and State of South Dakota aforesaid then and there did wilfully, unlawfully, feloniously, without authority of law and with a premeditated design to effect the death of one Joyce Hoff, a human being, did kill the said Joyce Hoff, and the said Defendant did then and there, and by said means, commit the crime of murder in violation of the provisions of SDCL 22--16--4 * * *.'

The victim in this case was found lying on her back on the floor beside her bed in her apartment during the noon hour on Monday, September 17, 1973. When discovered the body of the victim was clad in a shorty nightgown and covered with a blanket. The county coroner of Minnehaha County, a pathologist, performed an autopsy on the body at approximately 1:45 p.m. on September 17, 1973. His external examination revealed a bruise on the victim's right cheek and cuts on the bridge of her nose and on her lips. Further examination revealed that a finely ribbed, plastic-type, spray can top, some one and three-fourths inches in diameter and in length, had been forced into the victim's vagina. The coroner concluded that the cause of death was not natural but was caused from a lack of oxygen, either anoxia or asphyxiation. There were no visible marks of strangulation nor were there any material signs of struggle in the apartment. The coroner determined that the victim had had intercourse at some time between midnight and 2:00 a.m. prior to her death. He took samples of hair from the head and pubic areas of the decedent. Hairs from various portions of appellant's body, secured under a warrant, and pubic hair which was found to have adhered to the dried blood at the corner of the victim's mouth and certain other hairs which were discovered beneath the victim on her left buttocks were forwarded to the F.B.I. laboratory in Washington, D.C. for comparison.

Appellant has challenged the chain of evidence in respect to the handling of these exhibits at the F.B.I. laboratory. We have reviewed the record and find the showing of the chain of custody in the process used by the F.B.I. laboratory was sufficient to justify the admission in evidence of the challenged exhibits under the standards enunciated by the court in State v. Christmas, 1968, 83 S.D. 506, 162 N.W.2d 125, and determine that that challenge is without merit.

Pursuant to the instructions given and to which no objection was made, the jury returned a verdict of guilty of manslaughter in the first degree. The instructions given, including one on the lesser included offense, manslaughter in the second degree, were essentially the text of South Dakota Pattern Jury Instructions (Criminal) 3--7--320, 3--7--320a, 3--7--320b, 3--7--320d and 3--7--320e, which are, as indicated in the notes accompanying the pattern instructions, statements gleaned from statute, SDCL 22--16--16, and decisions of this court. Appellant takes the position that the evidence adduced in the trial is not sufficient to sustain a conviction under the language of the instruction.

The particular instruction which is meaningful for the purpose of our decision since it instructs on the law, particularly SDCL 22--16--16, is Instruction No. 14 reading as follows:

'14.

'The phrase 'in a cruel and unusual manner' as used in our law defining manslaughter in the first degree means that the commission of the homicide must be done with some excess of cruelty or refinement or unusual cruelty under the circumstances sufficiently marked to approach barbarity and to make it especially shocking, and the unusual character of the manner displayed in the killing must stand out as sufficiently unusual and unique or peculiar as to astonish and shock persons of normal sensibilities.'

This instruction, the verbatim text of South Dakota Pattern Jury Instructions (Criminal) 3--7--320e, has as its genesis a statement appearing in State v. Lange, 1967, 82 S.D. 666, 152 N.W.2d 635, which, in turn, borrowed from both State v. Knoll, 1905, 72 Kan. 237, 83 P. 622 and State v. Diggs, 1965, 194 Kan. 812, 402 P.2d 300, and from decisions of the New York courts, namely, People v. Vollmer, 1949, 299 N.Y. 347, 87 N.E.2d 291 and People v. Lee, 1950, 300 N.Y. 422, 91 N.E.2d 870. An analysis of these cases and on the other extreme, State v. Zemina, 1973, 87 S.D. 291, 206 N.W.2d 819 and State v. Pickering, 1973, 87 S.D. 331, 207 N.W.2d 511, points up that in each case the cause of death and the means by which the act was accomplished were clearly identifiable and involved, under varying circumstances, provocation and physical combatants. The facts of those cases we do not find controlling in this case.

Research of comparable law reveals that our vintage law, SDCL 22--16--16, carried forward from territorial days beginning in Penal Code of 1877, § 250 and remaining unchanged, has had occasion to be construed by the courts of this state more frequently than like statutes of other states which have been abandoned for newer and more definitive classifications of homicide. 1

While, contrary to his counsel's advice, appellant took the stand and related to the jury the series of events that led up to his presence in the decedent's apartment throughout the early morning hours of the day of her death, the jury need not have believed his version. He testified to having intercourse with the decedent with her consent and then, in a drugged sleep, having been unaware, except for momentary wakefulness, that someone must have entered the apartment and killed Joyce Hoff. Both the version he presented to the jury and to the officers during interrogation would account for hair of characteristic like his own being found on the body of Ms. Hoff. His admissions that he had struck and choked the decedent with his hands does not explain her death as the coroner found no bruise marks on the neck which indicated to him that strangulation, which was the apparent cause of death, was accomplished by use of a cloth or like material which left no discernible mark.

The instruction properly set forth the law. The means used to cause death by strangulation and the duration and extremity of the assault upon the decedent might well be found by a jury to have been cruel and unusual, and indeed, inhuman, in fact. Hence, the trial court was correct in submitting that phase of the issue to the jury. People v. Lee, supra.

Appellant's remaining claim is that certain admissions given by him to detectives of the Sioux Falls Police Department, Sergeant Green and Chief of Detectives Skadsen, while he was in their custody both in jail in Wisconsin and as a passenger in a motor vehicle with three law enforcement officers on the return trip to Sioux Falls from Wisconsin, were improperly admitted by the trial court. In keeping with State v. Thundershield, 1968, 83 S.D. 414, 160 N.W.2d 408 and State v. Kiehn, 1972, 86 S.D. 549, 199 N.W.2d 594, the trial court held a full evidentiary hearing on the suppression motion. The testimony at this hearing covers some 160 pages of the transcript and includes that of both officers to whom the admissions were made and appellant himself as to the circumstances which brought about the challenged admissions. As stated in State v. Thundershield, supra, and reiterated in State v. Kiehn, supra,

'* * * it was the province of the judge to consider, reconcile any differences and decide therefrom if the (admissions), beyond a reasonable doubt, (were) voluntarily made under Miranda guidelines. As with other decisions of a trial court, we consider the evidence in the light most favorable to support it.'

It would be impractical to detail the evidence produced at the suppression hearing but the essential facts before the trial court were that appellant was taken into custody in Green Bay, Wisconsin, on or about September 27, 1973, on unrelated felony charges pending in Minnehaha County, South Dakota. The two Sioux Falls detectives, previously named, and a Minnehaha County deputy sheriff went from Sioux Falls to Green Bay to return appellant to South Dakota.

Appellant was represented by an attorney from Sioux Falls employed by his mother to represent him in the pending felony charges. No charges had been filed against appellant for murder although the officers acknowledged that he was a suspect. The attorney who had been hired to represent appellant advised one of the detectives that he had been in telephone contact with appellant in Wisconsin and that he had advised appellant not to talk, but 'that if he (the appellant) did there was nothing he (the attorney) could do about it.' 2 On the morning of October 1, 1973, appellant was questioned for approximately one and one-half hours and again for approximately one-half hour in the afternoon in facilities provided by the Brown County, Wisconsin, sheriff's office. Officer Green's testimony, supported by Officer Skadsen, was to the effect that during the morning interrogation appellant had been given the Miranda warnings and that appellant had acknowledged that he understood those rights. During that same period, appellant admitted that he had been in the decedent's...

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    ...given to the trial court's decision, as the trial court is better able to determine the credibility of the witnesses. State v. Stumes, 90 S.D. 382, 241 N.W.2d 587 (1976). However, in this case most of the evidence of the interrogation is not disputed. It is undisputed that Jenner was never ......
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