State v. Andrews, 21415.
| Decision Date | 14 March 2001 |
| Docket Number | No. 21415.,21415. |
| Citation | 2001 SD 31,623 N.W.2d 78 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Aaron ANDREWS, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Mark Barnett, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and appellee.
Becky A. Janssen, Pennington County Public Defender's Office, Rapid City, SD, Attorneys for defendant and appellant.
[¶ 1.] Aaron Andrews appeals from a judgment of conviction of first degree manslaughter, claiming 1) improper admission of other act evidence, 2) improper admission of expert witness testimony, and 2) failure to give a lesser included jury instruction. We affirm.
[¶ 2.] On the evening of July 12, 1999, Andrews, age 19, and his live-in girlfriend, Tasha Davis, age 21, attended a party at a Box Elder, South Dakota residence. This party was later moved to a Rapid Valley residence where a decision was made to purchase a keg of beer. Andrews supplied the keg's tap, which had been given to him by a deceased cousin and had some apparent sentimental value to him. Some of the individuals partying at the Rapid Valley residence began fighting. The party moved to another residence and the revelers attempted to obtain a second keg of beer. At this location, a fight broke out between Andrews and his uncle, Merv Ledeaux, over Andrews' tap which was found in Ledeaux' vehicle after he told Andrews he did not have it. Several others joined this brief fight before everyone drove away in three separate vehicles.
[¶ 3.] Andrews and his passenger, Tom Zephier, drove to the residence of a friend, Nick Vasquez, in Rapid City. Andrews told Vasquez he had been in a fight and asked to clean up in his bathroom. Andrews retrieved his shotgun and shells from behind his friend's couch. He had earlier brought the gun to Vasquez to try to sell it. Vasquez asked him why he was taking the gun and Andrews told him he wanted to scare Ledeaux.
[¶ 4.] Inside the vehicle, Andrews asked Zephier to load the gun. While Zephier was looking for a shell, he handed the gun back to Andrews who loaded it himself. When Zephier asked if he was looking for anyone, Andrews responded "Merv." Andrews and Zephier proceeded to drive through Rapid City where, on Haines Avenue, they met with one of the other three vehicles from the party. They pulled alongside this vehicle and Andrews asked the whereabouts of Ledeaux. The shotgun was observed sticking 4-5 inches out of the driver's side window.
[¶ 5.] Andrews proceeded north on Haines Avenue with the gun still out the window until he came upon the third vehicle. Davis was in the passenger seat; Ledeaux was not in the vehicle. Andrews pulled alongside this vehicle and yelled to the driver to pull over. The gun discharged killing Davis instantly. All three vehicles proceeded a short distance to the residence of Andrews' aunt. Andrews exited his vehicle and began wailing Davis' name and the names of their children. One of the passengers prepared to take Davis to the hospital but Andrews' aunt advised them she had already called the police. Andrews fled and was stopped by police after a brief chase through Rapid City. He walked toward the first officer, making obscene gestures. A second officer approached him from behind and took him to the ground. As he was being handcuffed, Andrews stated, "I didn't mean to do it; I'm sorry."
[¶ 6.] An autopsy revealed Davis died from the shotgun wound, with the barrel of the gun held 3-5 feet from her head. Andrews was charged with first degree manslaughter and pled not guilty. He was found guilty by a jury and sentenced to serve 30 years in the state penitentiary. He appeals.
[¶ 7.] 1. Whether the trial court abused its discretion in admitting evidence of other acts occurring in the early morning hours of July 13, 1999.
[¶ 8.] At a pretrial motion hearing, the State informed Andrews and the trial court it did not intend to introduce other act evidence in its case against Andrews. At trial, however, it introduced evidence of Andrews' blood alcohol content and his driving under the influence, his underage consumption of alcohol, his possessing a stolen firearm and possessing it while under the influence. These facts constituted uncharged crimes allegedly committed by Andrews in the hours immediately leading up to the crime of manslaughter. Andrews objected to admission of this evidence at trial on the grounds that it was other act evidence introduced in violation of SDCL 19-12-5.
[¶ 9.] Evidence of other acts requires a two-part balancing analysis by the trial court that must be performed on the record. State v. Steele, 510 N.W.2d 661, 667 (S.D.1994). Such analysis did not occur in the present case. However, this evidence was admissible as res gestae evidence. In State v. Goodroad, 1997 SD 46, ¶ 10, 563 N.W.2d 126, 130, we held that "[e]vidence of uncharged criminal activity is not considered other crimes evidence if it arose out of the same transaction or series of transactions as the charged offense." We "approved the admission of other crimes where such evidence is `so blended or connected' with the one[s] on trial ... that proof of one incident involves the other[s]; or explains the circumstances; or tends logically to prove any element of the crime charged." Id. (citing State v. Floody, 481 N.W.2d 242, 253 (S.D. 1992)).
[¶ 10.] In Goodroad, we affirmed the trial court's admission of evidence of the defendant's other criminal acts leading up to the charged crime over a period of more than a month. Here, the disputed evidence involves events taking place over a period of a few hours. These events were interconnected and part of the continuing chain of activities that night that culminated with Davis' death. It is evidence intricately related to the facts of the case and therefore, admissible without reference to SDCL 19-12-5. State v. Loftus, 1997 SD 94, ¶ 18, 566 N.W.2d 825, 829; State v. Barber, 1996 SD 96, ¶ 18, 552 N.W.2d 817, 820. This evidence "explains the circumstances" which resulted in Andrews' shooting of Davis and is proper even though it tends to prove Andrews' guilt of other crimes. Goodroad, supra.
[¶ 11.] This evidence also addresses Andrews' defense of excusable homicide under SDCL 22-16-30, which provides that "[h]omicide is excusable when committed by accident and misfortune in doing any lawful act, with usual and ordinary caution." This instruction was given at Andrews' request. However, Andrews, underage and driving under the influence through the streets of Rapid City with the barrel of a loaded shotgun pointing out the driver's side window, was not "doing any lawful act" when the gun discharged killing Davis.
[¶ 12.] The trial court did not abuse its discretion in admitting this evidence.
[¶ 13.] 2. Whether the trial court abused its discretion in allowing testimony from Detective Parsons regarding the results of his testing the shotgun.
[¶ 14.] Five days prior to trial, the State filed a motion for the court's endorsement of five additional witnesses, previously unnoticed. One of these five witnesses, Detective Parsons, of the Rapid City Police Department, had performed tests on the shotgun used to kill Davis. In one of the tests, Parsons had dropped the gun from various heights and positions to determine a pattern, if any, for accidental discharge. Parsons also tested the trigger-pull to determine the amount of pressure necessary to fire the weapon. These tests were performed November 30, 1999 and results were not reduced to written form at the time of the December 2 motion hearing. The testing was described at the hearing. SDCL 19-15-5.2 and 19-15-6 provide that a written report prepared by an expert must be noticed with a copy of the report to the adverse party within a reasonable time before trial.
[¶ 15.] Andrews' objection that Parsons was an expert witness, not a lay witness, was sustained by the trial court. Later in the hearing, however, the court clarified that it only denied Parsons as an expert witness and that if he testified at trial to the facts of his test, and a proper foundation were laid, the court would not consider that to be expert testimony:
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