Marshall v. State

• Decision Date: 20 May 1981
• Docket Number: No. 12982,12982
• Citation: 305 N.W.2d 838
• Parties: Richard MARSHALL, Petitioner and Appellant, v. STATE of South Dakota, Appellee.
• Court: South Dakota Supreme Court

Page 838

305 N.W.2d 838

Richard MARSHALL, Petitioner and Appellant, v. STATE of South Dakota, Appellee.

No. 12982.

Supreme Court of South Dakota.

Argued Sept. 9, 1980.

On Reassignment May 20, 1981.

James D. Leach, Rapid City, and Kenneth E. Tilsen, St. Paul, Minn., for petitioner and appellant.

Miles F. Schumacher, Asst. Atty. Gen., Pierre, for appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

FOSHEIM, Justice (On reassignment).

Petitioner Richard Marshall was convicted of murder on April 6, 1976, and sentenced to life imprisonment. We affirmed that conviction in State v. Marshall, 264 N.W.2d 911 (S.D.1978). On June 15, 1978, petitioner filed a petition for post-conviction relief in the circuit court. This appeal is from an order denying such relief. We affirm.

The evidence shows that Martin Montileaux, an Indian male, entered the Longhorn Bar in Scenic, South Dakota, sometime in the afternoon of March 1, 1975. He was accompanied by several persons. They gathered at a booth and drank beer throughout the afternoon and evening. During the evening, there were approximately twenty customers in the bar.

At approximately midnight, a group of American Indian Movement members entered the bar and started "milling" around. The group included Richard Marshall and Russell Means. The owner of the bar became concerned and instructed his grandson to call the sheriff.

Shortly thereafter, Martin Montileaux went into the men's room located in the rear area of the bar. He was allegedly followed by petitioner and Russell Means. Soon afterwards, a "thump" was heard and then a shot. Petitioner and Means then came out of the restroom. After a brief interval, petitioner and the other members of his group left the bar, entered cars, and started toward Rapid City, South Dakota. Petitioner and Means were passengers in a Ford automobile, which was pursued for seventeen miles by the sheriff in a pickup with a red light and by a patrol car with a siren and red lights operating. The Ford proceeded erratically from one shoulder of the road to the other at speeds varying from 40 to 80 miles per hour. The chase ended on the outskirts of Rapid City when the Ford entered a trailer court. As it attempted to leave, the sheriff struck and stopped it with his vehicle. Petitioner and Means were placed under arrest.

In the car occupied by petitioner and Means, the officers found two rifles and three pistols. All were fully loaded, except a "22 long rifle revolver," which contained five loaded cartridges and one empty cartridge in its cylinder.

Martin Montileaux was found lying on the floor of the restroom with a small hole in his neck. When asked at the scene by a deputy sheriff whether he knew who shot him, he replied, "Russell Means' friend." Montileaux died several days later from the effects of the bullet, which had entered the front of his throat, severed his spinal cord, and lodged in the back of his neck. While in the hospital, Montileaux told the deputy sheriff the man who shot him was "shaggy haired" and wore "an army jacket."

The bullet removed from decedent's neck and the 22 revolver were sent to the Federal Bureau of Investigation for examination. The special agent who examined the exhibits testified that the fatal bullet was a 22 long rifle caliber lead bullet containing shearing marks caused by a misalignment of the cylinder of the weapon from which it had been fired. He also testified that the revolver had a cylinder misalignment that could cause a shearing mark on bullets fired from it. However, he could not state that the bullet removed from the decedent's neck was fired from the revolver removed from appellant's car "to the exclusion of all other weapons," because shearing is a common occurrence in cheaply-made guns.

The petition for post-conviction relief centers on the testimony of Myrtle Poor Bear. She testified at the trial that she attended a party at the Marshall home shortly after he was released on bail. During the course of the evening, petitioner came over to the table where she was sitting and said:

"You know, that guy that got killed at Scenic?" I said, "Yeah." He said "I asked the guy if that was the right one and he said, 'yeah,' it was," so he said, "We waited for him and we followed him in the bathroom," and then he said, "I pulled the trigger." He said, "I'll never forget the look on the son-of-a-bitch's face as he went down."

Myrtle Poor Bear stated that petitioner told her at a later party: "I don't know why I shot him." She has recanted that testimony.

Petitioner contends that he is entitled to a new trial in light of Poor Bear's recantation. Petitioner also notes a statement made by a United States Attorney to the United States Court of Appeals for the Eighth Circuit that Poor Bear was an incompetent witness in federal proceedings ¹ taking place at approximately the same time as petitioner's murder trial. In addition, petitioner argues that medical records of Poor Bear, which were not available at the murder trial, together with the testimony of her family, indicate that Poor Bear is a seriously mentally-disturbed woman, who often fantasizes and lies. At the post-conviction hearing, petitioner introduced Poor Bear's hospital records, which show that she frequently needed medical attention and had a problem with alcohol and drugs.

In Pickering v. State, 260 N.W.2d 234 (S.D.1977), this Court, for the first time, addressed the standards for granting a new trial based upon a witness' recantation of testimony. In that case, the petitioner's brother recanted and confessed that it was he who had committed the homicide. After careful review of the existing standards in different jurisdictions for granting a new trial based upon a witness' recantation, we adopted the standards set out in Larrison v. United States, 24 F.2d 82 (7th Cir. 1928), and stated that a new trial should be granted when:

'(a) The court is reasonably well satisfied that the testimony given by a material witness is false.

(b) That without it the jury might have reached a different conclusion (emphasis added in original).

(c) That the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial.'

Pickering v. State, supra, 260 N.W.2d at 235, quoting Larrison v. United States, supra, at 87-8. See also United States v. Wallace, 528 F.2d 863 (4th Cir. 1976); Newman v. United States, 238 F.2d 861 (5th Cir. 1956); Gordon v. United States, 178 F.2d 896 (6th Cir. 1949); cert. denied, 339 U.S. 935, 70 S.Ct. 664, 94 L.Ed. 1353 (1950); State v. Compiano, 261 Iowa 509, 154 N.W.2d 845 (1967); 2 Wright, Federal Practice & Procedure § 557 (1969).

We further noted in Pickering that verdicts would be insecure if they could always be set aside upon the testimony of witnesses who recant their former testimony. Recanted testimony is exceedingly unreliable and is to be regarded with suspicion, particularly where the recantation involves a confession of perjury.

The record discloses that the State moved to endorse the name of Myrtle Poor Bear as a witness on March 23, 1976, six days before the trial was to begin, and that petitioner's counsel talked to her prior to her testimony. Myrtle Poor Bear was proficiently and effectively cross-examined at the murder trial.

In addition, the recited strong circumstantial evidence indicates that petitioner brought a deadly weapon to the Longhorn Bar and used it to kill Martin Montileaux in the manner of a planned execution. After a cool and calm departure from the Longhorn Bar, the trip to Rapid City quickly turned into a frantic flight from law enforcement officers during which, in an apparent effort at deception, petitioner and Means exchanged jackets and petitioner apparently removed his ponytail. Ordinarily, evidence of flight and deception, standing alone, is insufficient to convict, but when accompanied by other evidence, it may justify an inference of guilt. United States v. Pennsylvania, 267 F.Supp. 316 (E.D.Pa.1966), aff'd. 378 F.2d 372 (3rd Cir. 1967), cert. denied sub nom. Gaspero v. Pennsylvania, 389 U.S. 870, 88 S.Ct. 151, 19 L.Ed.2d 149 (1967). An attempt by the accused to flee following commission of the alleged crime is circumstantially relevant to prove not only commission of the act, but also the intent and purpose with which it was committed. United States v. New Jersey, 405 F.2d 632 (3rd Cir. 1969), cert. denied sub nom., Yeager v. O'Connor, 395 U.S. 923, 89 S.Ct. 1770, 23 L.Ed.2d 240 (1969). See also: United States v. Blue Thunder, 604 F.2d 550 (8th Cir. 1979), cert. denied, 444 U.S. 902, 100 S.Ct. 215, 62 L.Ed.2d 139 (1979); United States v. Peltier, supra. The 22 caliber pistol found in the vehicle carrying petitioner, which was examined by the F.B.I., was evidence that petitioner possessed or had access to tools, weapons, implements, or other articles with which the crime was or might have been committed and connected the accused with the offense. State v. Schafer, 297 N.W.2d 473 (S.D.1980); State v. Brown, 285 N.W.2d 848 (S.D.1979). That circumstantial evidence was fortified by the solid testimony of witnesses who saw petitioner enter and exit the restroom while it was occupied by the victim and during the time when the shot was heard, thus providing proof of opportunity. Finally, there was the eyewitness statement of the murder victim. Statements made under an obvious sense of impending death are deemed sufficiently reliable as to fall within an exception to the hearsay rule. SDCL 23A-22-12; United States v. Mobley, 421 F.2d 345 (5th Cir. 1970).

All such evidence is independent of the testimony of Poor Bear that after petitioner was released on bail, he braggingly admitted killing Montileaux. Admittedly, the evidence was not without contradiction. There were discrepancies in the testimony of various witnesses, such as the failure of two of the State's witnesses to...