State v. Andrews, 15102

• Decision Date: 27 August 1986
• Docket Number: No. 15102,15102
• Citation: 393 N.W.2d 76
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. William K. ANDREWS, aka Kurt D. Andrews, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 76

393 N.W.2d 76

STATE of South Dakota, Plaintiff and Appellee, v. William K. ANDREWS, aka Kurt D. Andrews, Defendant and Appellant.

No. 15102.

Supreme Court of South Dakota.

Aug. 27, 1986.

Craig M. Eichstadt, Asst. Atty. Gen., Mark V. Meierhenry, Atty. Gen. (on brief), Pierre, for plaintiff and appellee.

Frank A. Bettmann, of Bettmann & Feehan, Rapid City, for defendant and appellant.

WUEST, Justice.

Appellant William K. Andrews (appellant) was convicted of aggravated assault and appeals. We affirm.

On the evening of March 9, 1985, Ruben McCloskey (McCloskey), an adult male, was severely injured in a fight in the Lakota Homes area of Rapid City, South Dakota. The fight occurred in the front yard of a residence where McCloskey was visiting. A group of adult males appeared at the front of the house around 8:00 p.m. carrying baseball bats and other clubs. It may have been that the assailants originally intended to bring damage to McCloskey's car, but as McCloskey came out of the house, himself carrying a shovel, the group attacked and severely beat him with their clubs. McCloskey required nearly six months of hospital treatment and remains partially paralyzed as a result of his injuries.

A history of violent interfamily relations between two existing factions in the Lakota Homes area in Rapid City serves as a backdrop to this case. This violent history was also one of the considerations that the trial court highlighted when it imposed ten-year prison terms upon the two men found guilty of the assault.

Other individuals were involved in the assault but were not identified nor charged by authorities. Appellant and his codefendant, however, were convicted by the jury for aggravated assault and sentenced to the statutory maximum of ten years in the South Dakota State Penitentiary. SDCL 22-18-1.1(4); SDCL 22-6-1(5).

Appellant appeals his conviction on the grounds that he was wrongfully denied a separate trial, convicted without sufficient evidence, and prejudiced by an improper jury instruction. He also argues his sentence violates the Eighth Amendment guarantee against cruel and unusual punishment.

A joint indictment or information is allowed when the same evidence, as to the conduct constituting the offense charged, applies to all the persons accused. The pertinent South Dakota statute is SDCL 23A-6-24, which states in part:

Two or more defendants may be charged in the same indictment or information, if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses....

Law generally favors joint trial for reasons of judicial economy and presentation of the whole of an alleged act or transaction at one time. The general rule has evolved that persons jointly indicted should be tried together. This is especially true where, as here, one crime may be proved against two or more defendants from the same evidence. State v. No Heart, 353 N.W.2d 43 (S.D.1984); State v. Layton, 337 N.W.2d 809 (S.D.1983).

When two or more defendants are charged jointly with an offense, any defendant who fears that his defense may be prejudiced by a joint trial may move for severance. The granting of a severance is not a matter of right, but rests in the discretion of the court, to be exercised in the interest of justice. SDCL 23A-11-2 provides, in part:

If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires....

In the absence of a legal ground, there should be no order for severance. 23 C.J.S. Severance Sec. 935 (1961).

When considering a motion for severance, the court must balance the right of a defendant to a fair trial against the interests of judicial efficiency. No Heart, supra; Layton, supra. The court must consider not only possible prejudice to the defendant seeking severance, but also possible prejudice to the government because of two time-consuming, expensive, and duplicitous trials. United States v. Andreadis, 238 F.Supp. 800 (D.C.N.Y.1965). Notwithstanding the need for efficiency, a joint trial is inappropriate if it sacrifices a defendant's right to a fair trial. State v. Reiman, 284 N.W.2d 860 (S.D.1979).

Decisions to sever a trial are completely a matter within the sound discretion of the trial court and will not be disturbed absent a showing of abuse of discretion. State v. Maves, 358 N.W.2d 805 (S.D.1984); Layton, supra; No Heart, supra. A clear showing of prejudice and abuse of discretion must be shown to justify reversal based on a denial of a motion for severance. Maves, supra; No Heart, supra.

Where each convicted defendant is shown to have participated in a common criminal act, more must be shown than a severance might have afforded an increased chance of acquittal. A defendant must demonstrate affirmatively that the joint trial prejudiced the possibility of a fair trial. Maves, supra; No Heart, supra. Such a case would exist where defendants' defense strategies are antagonistic. No Heart, supra. It is not enough to allege that evidence presented against his codefendants would tend to cumulate prejudicially against him, nor is it enough for him to demand severance because he did not participate in an alleged crime as actively as did his codefendants. United States v. Garrison, 348 F.Supp. 1112 (D.C.La.1972).

With respect to propriety of severance in a trial of co-conspirators or codefendants, it is necessary to determine whether joint trial infringes defendant's right to a fundamentally fair trial and determination is made by asking whether it is within the jury's capacity, given the complexity of the case, to follow admonitory instructions and to keep, separate, collate, and appraise evidence relevant to each defendant. United States v. Kahn, 381 F.2d 824 (7th Cir.1967).

Admission of evidence against only one of several defendants does not on its own create sufficient prejudice to justify reversal when proper limiting instructions are given to the jury. Maves, supra; No Heart, supra; State v. Bonrud, 246 N.W.2d 790 (S.D.1976). We presume the jury followed the limiting instructions. Maves, supra; No Heart, supra.

At trial of this case, the court instructed the jury at the close of the evidence that each defendant was entitled to have his guilt or innocence of the crime charged determined from his own conduct and from the evidence which applied only to him as though he were being tried alone. This court has held that such language is a sufficient cautionary instruction which guards against prejudice to an individual defendant in a joint trial. Maves, supra.

Appellant argues the evidence against him was not as strong as that shown against his codefendant. That situation did not warrant a severance, nor deny appellant a fair trial.

Appellant claims the trial court should have granted his motion for a judgment of acquittal. The trial court must consider the evidence in the light most favorable to the nonmoving party when ruling on a motion for judgment of acquittal and must give the nonmoving party the benefit of all reasonable inferences in its favor. State v. Bult, 351 N.W.2d 731 (S.D.1984).

Our standard of review on denial of this motion is whether the State made out a prima facie case from which the jury could reasonably find the defendant guilty. Bult, supra; State v. Blakey, 332 N.W.2d 729 (S.D.1983). Sufficiency of trial evidence rests on whether the evidence, if believed by the jury, is sufficient to find guilt beyond a reasonable doubt. State v. Faehnrich, 359 N.W.2d 895 (S.D.1984); State v. Phinney, 348 N.W.2d 466 (S.D.1984); State v. Jorgensen, 333 N.W.2d 725 (S.D.1983).

In making such determination, this court will accept evidence and the most favorable inferences that can be fairly drawn from that evidence which will support the guilty verdict. Faehnrich, supra; State v. Schafer, 297 N.W.2d 473 (S.D.1980). The verdict will not be set aside if the evidence therefrom sustains a rational theory of guilt. Faehnrich, supra. It is not an appropriate function of this court to resolve conflicts of evidence, determine the credibility of witnesses, or weigh the evidence. State v. Battest, 295 N.W.2d 739 (S.D.1980); State v. Minkel, 89 S.D. 144, 230 N.W.2d 233 (1975). Questions of credibility and weight of the evidence are jury questions. Blakey, supra; State v. Peck, 82 S.D. 561, 150 N.W.2d 725 (1967); State v. Burtts, 81 S.D. 150, 132 N.W.2d 209 (1964).

The State's witnesses were not able to identify all of the participants in the assault. Each of the witnesses had no trouble, however, identifying both defendants, Robert Quick Bear and appellant, as two of the assailants. LaVonne Roach, who had known both defendants for a considerable period of time, specifically identified both of them as having beaten McCloskey. She stated that they had him surrounded in a circle and were beating him. In addition, she testified that she herself was hit and suffered a skull fracture and concussion. She did not, however, know who hit her. Linda Rich Ackfield stated that she saw Quick Bear and appellant running down the street toward McCloskey, and she saw both appellant and Quick Bear hitting McCloskey after he had fallen down. Vera Janis testified she specifically saw appellant beating McCloskey with a club. Stacie Bad Wound testified she saw Quick Bear hitting McCloskey toward the end of the fight, while appellant stood back some four to five feet from McCloskey. Charlene "Cissy" Janis, a daughter of Vera Janis, saw appellant hit McCloskey with a club during the same time frame. On cross-examination, she stated that she specifically saw appellant hitting McCloskey.

McCloskey was seriously injured by the beating. He had some paralysis in the legs and...