State v. Bad Heart Bull, s. 11531

• Decision Date: 16 September 1977
• Docket Number: 11573,Nos. 11531,s. 11531
• Citation: 257 N.W.2d 715
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Sarah BAD HEART BULL and Robert High Eagle, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 715

257 N.W.2d 715

STATE of South Dakota, Plaintiff and Respondent, v. Sarah BAD HEART BULL and Robert High Eagle, Defendants and Appellants.

Nos. 11531, 11573.

Supreme Court of South Dakota.

Sept. 16, 1977.

John P. Guhin, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on the brief.

Sidney B. Strange, Sioux Falls, for defendants and appellants.

HANSON, Justice. ^*

Defendants appeal from their convictions of the crime of riot where arson was committed.

It appears the riot involved relates back to a brawl outside a bar in Buffalo Gap, South Dakota, on January 21, 1973. During the brawl, Wesley Bad Heart Bull, one of defendant's sons, was stabbed to death by Darrell Schmitz, a white man. The state's attorney of Custer County charged Schmitz with the crime of second degree manslaughter. Several members of the Indian community, including Sarah Bad Heart Bull, thought Schmitz should have been charged with murder. This incident apparently became a "cause celebre" of the American Indian Movement which called for a national Indian Civil Rights Day to be held in Custer, South Dakota, on February 6, 1973.

During the morning of February 6 Sarah Bad Heart Bull and Robert High Eagle left their homes in Hot Springs and drove to Custer. They took along Trina Bad Heart Bull, Eddy Clifford and Francis Means. All had been in Buffalo Gap the night Wesley Bad Heart Bull was stabbed and killed. The ostensible purpose of the trip was to give statements to the Custer County State's Attorney or to attend the Schmitz preliminary hearing.

The Custer County authorities had postponed the Schmitz preliminary hearing knowing that a caravan of American Indian Movement members would arrive in Custer on February 6. In anticipation, some security measures had been put into effect. It was arranged that the state's attorney would be present in the clerk of courts' office to meet with anyone wishing to protest his handling of the Schmitz case. However, no more than four or five persons were to be admitted into the courthouse for this purpose at one time. Guards were stationed at all exterior doors of the courthouse to screen all persons seeking admission. Different law enforcement officers, such as the State Highway Motor Patrol, were alerted to stand by in the event of trouble.

The defendants arrived at the Custer County Courthouse at approximately 10:00 in the morning. High Eagle was admitted into the courthouse and conferred with the state's attorney. Mrs. Bad Heart Bull made no attempt to gain admission. After The AIM caravan consisting of twenty-five to thirty cars arrived at the Custer County Courthouse at 2:00 in the afternoon. On arrival one member of the group was observed taking a high-powered rifle out of one of the cars. As soon as all of the caravan cars were parked a crowd gathered at the front steps of the courthouse. Four members of the group, Russell Means, Dennis Banks, Crow Dog and David Hill were chosen by the group to confer with the state's attorney.

High Eagle concluded his conference with the state's attorney the Hot Springs group "waited around" outside the courthouse. While waiting they consumed some intoxicating liquors.

While the four AIM representatives were inside conferring with the state's attorney the crowd moved up the steps of the courthouse. Many of the demonstrators were carrying concealed weapons such as clubs, sticks, iron pipes, wrenches, and at least one revolver. The officers at the front door resisted but were soon beaten back. About twenty demonstrators, including High Eagle, gained entrance to the front hallway. At the time, High Eagle was armed with a club which he was swinging at the officers. After a brief violent struggle the officers were able to clear the demonstrators out of the courthouse.

As the officers were attempting to clear the demonstrators off the front steps they were confronted with Mrs. Bad Heart Bull who was in the front ranks of the crowd yelling obscenities at them. When she started to grab patrolmen by their jackets she was taken into custody but was soon after released or she escaped.

During this same period one of the police officers was dragged down the courthouse steps and beaten. When Lt. Schmoll went to his rescue he was met with a great deal of violent opposition. Rocks, cans and bottles were thrown at him. As he tried to return with the injured officer he was struck in the face with a flagstaff. He also received a knife wound on his left hand and was struck with a chain saw blade. The final blow he received was delivered by High Eagle who struck him across the head with an iron pipe. This caused the Lieutenant to "fall like a sack of wheat." Thirteen stitches were required to sew up the wound on his head. During the affray several other officers were severely beaten, or injured, and had to be taken to the hospital for treatment. Shortly after High Eagle struck Lt. Schmoll he was arrested and taken into custody. At the time the rioting and violence was in full force but no fires had yet been started.

Throughout the course of the riot Mrs. Bad Heart Bull continued to be an active participant. From time to time she confronted groups of officers and shouted obscenities at them. Her actions were described as an apparent effort to "get things fired up." At one point she blocked the progress of a fire truck by standing in front of its path. She was seen holding a bottle in her hand. At another time she was seen standing alongside a car which had been set on fire.

As the riot progressed it became more violent, disorderly and widespread. Police cars were wrecked, automobiles were burned, and rocks, wrenches, chunks of concrete and bottles were thrown at the police officers, the courthouse, and other buildings. Windows in the courthouse were broken. Pop bottles filled with gasoline were thrown into the courthouse. A flare ignited the gasoline causing the courthouse to catch on fire and be severely damaged. The Custer Chamber of Commerce building located near the courthouse was set on fire and burned to the ground. The demonstrators knocked out the front windows of a nearby Texaco gasoline station and set the building on fire. The Standard Oil bulk station was set on fire and damaged to the extent of $9,000.00.

Although Mrs. Bad Heart Bull was present and an active participant throughout the course of the riot there is no evidence that she personally threw gasoline or set fire to any automobile or building. She was not arrested and taken into custody until after leaving the Custer area.

The record in this case is voluminous, consisting of over thirty volumes together with a large number of exhibits. It is replete with pre-trial, trial, and post-trial motions, hearings, and orders. Many of defendants' motions were granted by the trial court relating to discovery, continuances, severances, the admission of evidence, and a change of venue from Custer County in the western section of the state to Minnehaha County in the eastern part of the state. Defendants do not question the sufficiency of the evidence to sustain their convictions; however, they do assign error to the denial of several motions on constitutional, substantive, and procedural grounds. These will be separately discussed under appropriate group headings.

I. CONSTITUTIONALITY OF RIOT STATUTES

Defendants' primary contention is that the South Dakota riot statutes under which they were indicted, convicted, and sentenced violate the I, V, VIII and XIV Amendments to the United States Constitution and Article VI, Sections 2, 4 and 23 of the South Dakota Constitution. The statutes in question read as follows:

SDCL 22-10-1. "Riot defined Any use of force or violence or any threat to use force or violence if accompanied by immediate power of execution, by three or more persons acting together and without authority of law, is riot."

SDCL 22-10-3. "Participant in riot as guilty of felony committed in course of riot If any murder, maiming, robbery, rape, or arson was committed in the course of a riot, every person guilty of participating in such riot is punishable in the same manner as a principal in such crime."

It should be noted at the outset that in the construction of any criminal statute the common law rule that penal statutes are to be strictly construed has been abrogated by statute in this state. Accordingly, " * * * all penal statutes are to be construed according to the fair import of their terms, with a view to effect their objects and promote justice." See SDCL 22-1-1.

1. Criminal Intent.

In this respect defendants contend the riot-arson statute denies due process of law by allowing a conviction of a major crime without a showing of criminal or culpable intent to commit the felony charged.

The crime of riot is an offense against public peace and good order. It cannot be committed by one person in isolation. Mere presence alone does not make one a rioter but any person who encourages, incites, promotes, or actively participates in a riot is guilty as a principal. People v. Moore,87 Cal.2d 753, 197 P.2d 835; State v. Sellers, 257 S.C. 35, 183 S.E.2d 889, cert. den. 410 U.S. 908, 93 S.Ct. 967, 35 L.Ed.2d 269. It necessarily is a group crime requiring proof of a common or mutual criminal intent. According to our statute when three or more persons acting together, without authority of law, use or threaten to use force or violence accompanied by the immediate power of execution, all participants are guilty of riot as principals. The state is only obligated to prove the common or mutual intent of the group to commit an unlawful act by force or violence or the threat thereof. This mutual or common intent need not be established by independent positive proof. It may be inferred from all the facts and circumstances surrounding the commission of the offense.

Furthermore, every person who participates in a riot acts at his own peril and may be held...