State v. Bean

• Decision Date: 03 May 1978
• Docket Number: No. 12098,12098
• Citation: 265 N.W.2d 886
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. V. Chris BEAN, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 886

265 N.W.2d 886

STATE of South Dakota, Plaintiff and Respondent, v. V. Chris BEAN, Defendant and Appellant.

No. 12098.

Supreme Court of South Dakota.

May 3, 1978.

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

R. N. Woodruff of Mueller & Bennett, Belle Fourche, for defendant and appellant.

WOLLMAN, Justice.

Defendant appeals from a judgment of conviction that was entered on a jury verdict finding him guilty of two counts of attempted murder. We affirm.

On the evening of February 25, 1976, defendant, who was then nineteen years of age, attended a party that was being held in the home of his father, Art Bean, in the city of Belle Fourche. Defendant at that time was not a regular inhabitant in his father's home. Among those at the Bean home that evening were Karie Weldon, age fourteen, Becky Cooper, Leonard Alvarez, and Danny Thompson. We had occasion to write of this teenage party and the events that occurred in the early morning hours of February 26, 1976. See People in Interest of L. V. A., S.D., 248 N.W.2d 864.

Viewing the evidence in the light most favorable to the verdict, as we must, the jury could reasonably have concluded that the following facts had been established.

According to Karie Weldon's testimony, at approximately 1:00 a.m. on February 26, 1976, Danny Thompson made the remark that they were going to go downtown and shoot around and harass the police. Another teenager who was in attendance at the time testified that Leonard Alvarez stated that they should go downtown and shoot some street lights and that if someone tried to catch them they could probably shoot the cherries (the red lights on the roof of the police cars) and stall the police. Danny, Leonard, and defendant then loaded some .22 caliber rifles that were present in the Bean residence and left the house with the weapons. Approximately one-half hour later defendant returned to the Bean residence carrying one of the rifles that one of the other two boys had carried at the time the three left the residence. Defendant sat down and said, "The first cop that comes through that door I'm going to shoot." Defendant made a statement about having made a phone call. He kept looking at his watch and saying, "Well, about now the police ought to be getting there." A few minutes later defendant said, "Well, I had better go down and pick them up about now," and left the Bean residence carrying the rifle that he had brought back with him earlier. Approximately ten minutes later defendant returned with Danny and Leonard. The three boys were breathing hard. Danny remarked that he had emptied his rifle, whereupon Leonard said, "Yeah, you should have seen those cops hi-tail it the other way when we started shooting." Although defendant made no statement at the time about having shot at the police car, he told Karie Weldon later that morning that Danny and Leonard had told him to call the police from a pay phone.

At 2:13 a.m. on February 26, 1976, the radio dispatcher for the Belle Fourche Police Department received a call from an individual who refused to give his name and who stated that he was being shot at. He gave the location of the alleged shooting and asked the dispatcher to send a police car to the area. The dispatcher immediately called police officers Herb Lurz and Dan Rogers, who proceeded forthwith to the location described by the anonymous caller. Upon arriving at that area in their police car, the officers floodlighted the area with spotlights for approximately three minutes. Upon seeing nothing suspicious and hearing no shots of any kind, the officers started to drive away. As they were turning the corner they were fired upon by unknown assailants. At least four bullets struck the patrol car. Three spent rounds were later found inside the vehicle. One of the bullets passed so near Officer Rogers' head that the velocity of the moving air lifted his hair. Two bullets struck the large bar that formed a part of the protective barrier between the front and rear seats of the vehicle. One of these bullets struck so close to Officer Lurz' head that he felt lead glancing off his head. He later removed from his cheek two pieces of lead that apparently had ricocheted off when the protective bar was struck by the slugs. Still another bullet penetrated the red light on the top of the police car. Although no one was found at the point from which the officers concluded that the shots were probably fired, a total of thirteen spent .22 caliber rifle cartridge casings were found near a building in the area, described as the Spaulding Cabin. The distance from the points where the spent cartridges were found to the point at which the police car was driving at the time the officers were fired upon was not more than 50 feet. The Spaulding Cabin itself is some ten to twelve blocks from the Art Bean residence.

A search was made of the Art Bean residence during the late afternoon of February 26, and three .22 caliber rifles were seized pursuant to a search warrant. A Federal Bureau of Investigation agent testified at trial that the spent cartridges found at the scene of the shooting had been fired from the three rifles in question.

Officer Lurz testified that he had had a conversation with defendant during the late afternoon of February 26, during which defendant said that he had been downtown doing some shooting with Leonard Alvarez and Danny Thompson the preceding night, that he had gone back home, that he had then come back down and placed a phone call to the radio dispatcher to bring the police officers to the scene, and that he had then left. Defendant denied to the officer that he had shot at any officers.

Defendant testified that he, Leonard Alvarez, Danny Thompson, and Becky Cooper had left his father's residence sometime during the early morning hours of February 26, 1976, following some talk about going downtown and shooting at street lights. Each of the three boys was armed with a loaded .22 caliber rifle. They went to the Spaulding Cabin area, where they shot at some street lights. Defendant testified that he shot three times, that Leonard shot once, and that Danny shot four or five times. After sitting on a nearby hill with his companions for a few minutes, defendant left the area and returned to his father's home with Miss Cooper. Defendant later called the police from a phone booth near the Spaulding Cabin in response to Danny's request that he do so in order that Danny and Leonard could shoot the cherry off the top of the police car. Defendant made the call to the police dispatcher, told Danny and Leonard that the police were sending a unit in a few minutes, and then left and returned to his father's residence. Defendant acknowledged that he knew that there would be shooting when the police arrived, although he claimed that the shooting would be directed only at the red light on the top of the police car.

Although defendant has filed and briefed some thirty-one separate assignments of error, we will discuss only those that are of arguable merit.

Defendant attacks the validity of the warrant under which the search was made of his father's residence and the seizure made of the rifles found therein. As we have already pointed out above, however, defendant had attained the age of majority on the date of the search. See SDCL 26-1-1. We held in State v. Lewis, 86 S.D. 763, 201 N.W.2d 397, that an emancipated child does not have the same constitutional right of privacy in the family home as he might have in a rented hotel room. On the basis of the record before us, defendant had even less expectation of privacy in his father's home than did the defendant in the Lewis case inasmuch as defendant was not residing with his father at the time of the search and stood on the same plane with the other social guests insofar as his standing to complain of the allegedly illegal search and seizure was concerned. Cf. Combs v. United States, 408 U.S. 224, 92 S.Ct. 2284, 33 L.Ed.2d 308; Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208.

Defendant contends that the trial court erred by denying his motion for a directed verdict of acquittal made at the close of the state's case. We do not agree. Although there was no direct evidence that placed defendant at the scene at the time the shots were fired at the officers, the circumstantial evidence, including the number of shots and the rapidity with which they were fired, together with the fact that defendant returned to the Bean residence with Danny Thompson and Leonard Alvarez shortly after his second foray out into the night following his avowal to shoot the first police officer that he saw, was sufficient to enable the jury to reasonably conclude that defendant had directly participated in a cold-blooded attempted annihilation of the two officers.

We also conclude that there was sufficient evidence to warrant a finding by the jury that defendant had the premeditated design to effect the death of the two officers. SDCL 22-16-4 provides:

"Homicide is murder when perpetrated without authority of law and with a premeditated design to effect the death of the person killed or of any other human being."

SDCL 22-16-5 provides:

"A design to effect death, sufficient to constitute murder, may be formed instantly before committing the act by which it is carried into execution. Such design is inferred from the fact of killing unless the circumstances raise a reasonable doubt whether such design existed."

In State v. Buffalo Chief, 83 S.D. 131, 155 N.W.2d 914, we held that the design to effect death need exist for only an instant before the commission of the crime, and that direct proof of deliberation and premeditation is not necessary but may be inferred from the circumstances of the killing. Granted that no one was killed in this incident, we think that the principles expressed in the Buffalo Chief case are...