State v. Bittner, 14011

• Decision Date: 18 December 1984
• Docket Number: No. 14011,14011
• Citation: State v. Bittner, 359 N.W.2d 121 (S.D. 1984)
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Steven Darrell BITTNER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 121

359 N.W.2d 121

STATE of South Dakota, Plaintiff and Appellee, v. Steven Darrell BITTNER, Defendant and Appellant.

No. 14011.

Supreme Court of South Dakota.

Argued Oct. 26, 1983.

Reassigned Sept. 11, 1984.

Decided Nov. 14, 1984.

Rehearing Denied Dec. 18, 1984.

Mark W. Barnett, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Thomas Amodio, Legal Intern, Pierre, on brief.

David R. Gienapp of Arneson, Issenhuth & Gienapp, Madison, for defendant and appellant.

WOLLMAN, Justice (on reassignment).

This is an appeal from a judgment of conviction for murder in the first degree and attempted murder in the first degree, pursuant to SDCL 22-16-4. We affirm.

The appellant, Steven Darrell Bittner, had for a period of some years lived together with his girl friend, Janice Palmer (Palmer), in a house in Huron, South Dakota. On March 30, 1982, at approximately 6:00 a.m., Bittner returned to the house after spending the night out. He awakened Palmer and requested the use of her car; Palmer refused and an argument broke out. Bittner hit Palmer in the face, causing a bloody nose. Palmer then left the house, went to a neighbor's residence, and called the police.

Two Huron police officers, Tom Callies and Andrew Larson, were dispatched to the scene of the disturbance, arriving at approximately 6:30 a.m. Palmer let the officers into the house and indicated that Bittner might be anywhere in the house. She showed them the stairway to the upstairs portion of the house. The officers proceeded up the stairs while Palmer remained below. An individual then came down the steps very rapidly from the second floor and stabbed both officers. The officers fell back down the steps, while the assailant retreated upstairs. After a distress call, the two wounded officers were taken to the hospital. Officer Callies died of his injuries; Officer Larson recovered and was able to testify at trial. Police officers who had responded to the distress call found Bittner in the house and arrested him.

Bittner was charged with first-degree murder and attempted murder. Pursuant to Bittner's motion for change in venue, the trial was held in Watertown, South Dakota. The trial, which lasted from September 27, 1982 to October 14, 1982, resulted in a guilty verdict on both counts. Bittner was sentenced to life imprisonment on the first-degree murder conviction and to twenty-five years' imprisonment on the attempted murder conviction.

Bittner raises six issues on appeal: 1) Did the trial court err in giving instruction number 38? 2) Did the trial court err in refusing to allow testimony of defense witness E. Patrick Gribben? 3) Did the trial court err in refusing to grant an indefinite continuance so that Bittner could secure a more qualified expert witness? 4) Did the trial court err in denying Bittner's motion to suppress evidence? 5) Did the trial court err in denying Bittner's challenge for cause on six jurors? 6) Did the trial court err in denying Bittner's renewed motion for a change in venue?

We deal first with Bittner's contention that the trial court erred in giving instruction number 38, which states:

When a defendant is charged with crimes which require that certain specific intent or mental state be established in order to constitute the crime or degree of the crime, you must take all of the evidence into consideration and determine therefrom, if, at the time when the crime was allegedly committed, the defendant was suffering from some abnormal mental or physical condition, however caused, which prevented him from forming the specific intent or mental state essential to constitute the crime or degree of crime with which he is charged.

Homicide committed with a design to effect death is not the less murder because the perpetrator was in a state of anger or voluntary intoxication at the time.

However, as to the lesser included offense of Manslaughter in the First Degree and Manslaughter in the Second Degree plus the offense of Attempted Murder and its lesser included offense of Aggravated Assault, if the accused was intoxicated at the time the jury may take into consideration the fact of such intoxication in determining the purpose, motive or intent with which he committed the act.

Bittner maintains that this instruction is not a proper statement of the law and that it disallows consideration of intoxication in a homicide case. We agree.

Two statutes are of primary importance to this issue. SDCL 22-16-6 states: "Homicide committed with a design to effect death is not the less murder because the perpetrator was in a state of anger or voluntary intoxication at the time." SDCL 22-5-5 states:

No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time in determining the purpose, motive, or intent with which he committed the act.

This court has held that whenever a specific purpose, motive, or intent is necessary to constitute a particular crime, the jury may properly consider the voluntary intoxication of the accused to determine the existence of the required purpose, motive, or intent. State v. Kills Small, 269 N.W.2d 771 (S.D.1978); State v. Plenty Horse, 85 S.D. 401, 184 N.W.2d 654 (1971). Specific intent is an element of the crimes for which Bittner is charged. SDCL 22-16-4. In both Kills Small, supra, and Plenty Horse, supra, we held that if there is some evidence of intoxication in the record an instruction based upon SDCL 22-5-5 should be given.

There is ample evidence in the record that Bittner had been drinking throughout the evening and late into the night before the murder. Testimony indicates that Bittner drank a number of beers before leaving home on the evening of March 29. He continued to drink at the Plains Lounge later that night. Finally, before going home early in the morning of March 30, he did more drinking at a party. Therefore, the trial court should have given an instruction based upon SDCL 22-5-5 so that the jury could have considered intoxication in determining Bittner's purpose, motive, or intent.

Instruction number 38, as given by the trial court, failed to properly state the law set forth in SDCL 22-5-5. Paragraph one of the instruction allows the jury to consider "abnormal mental or physical conditions," but makes no specific mention of intoxication, as does SDCL 22-5-5. A reading of paragraphs two and three of the instruction leads one to believe that the jury may consider intoxication on the lesser included offenses, but not on homicide. It is true that other instructions, specifically numbers 12 and 23, required the jury to find specific intent to commit the crime, but they did not raise the factor of intoxication in determining Bittner's intent. Therefore, even when read as a whole the instructions did not inform the jury of the law as found in SDCL 22-5-5.

Although we have held that it may be reversible error to fail to give a requested instruction based upon SDCL 22-5-5 where the evidence warrants the giving of the instruction, see State v. Kills Small, supra, not every failure to give such an instruction mandates reversal. As we held in State v. Feyereisen, 343 N.W.2d 384, 387 (S.D.1984), to establish a claim of prejudicial error a defendant must show "that under the evidence, the jury might and probably would have returned a different verdict if [the requested] instruction had been given." See also State v. Grey Owl, 295 N.W.2d 748 (S.D.1980); United States v. Big Crow, 728 F.2d 974 (8th Cir.1984).

We conclude that the failure to give Bittner's requested instructions on intoxication at most constituted harmless error. High Elk v. State, 344 N.W.2d 497 (S.D.1984). As is so forcefully pointed out in Judge Miller's concurrence, infra, the evidence is overwhelming that Bittner was not so intoxicated as to raise any reasonable doubt concerning his capacity to form the specific intent necessary to commit the crimes with which he was charged. See Terry v. State, Ind., 465 N.E.2d 1085 (1984). Bittner was able to arm himself, attack the two officers, retreat upstairs, and then make a contemptuous comment to the arresting officer. These are hardly the actions and words of one who is so intoxicated as to lack the capacity to form the specific intent subsumed within the offenses of first-degree murder and attempted first-degree murder. Accordingly, under the Feyereisen test, supra, Bittner has failed to demonstrate that the trial court's refusal to give the requested instructions constituted prejudicial error.

We also note that Bittner's proposed instructions regarding intoxication were not correctly worded. Both proposed instructions stated: "The jury may take into consideration the fact that the accused was intoxicated ...." These are conclusory in nature and, as such, fail to properly state the law of SDCL 22-5-5. An instruction which does state the law of SDCL 22-5-5, as it applies to the element of purpose, motive, or intent, is found in the South Dakota Pattern Jury Instructions, Volume II, Sec. 2-14-6.

Bittner's second contention is that the trial court erred in refusing to allow testimony of defense witness E. Patrick Gribben (Gribben), an investigator and consultant who had had previous experience as a South Dakota Highway Patrolman and as a United States Marshal. Gribben was asked to re-create the crime scene to determine the lightness, darkness, and visibility within the house at the particular time of day the crime occurred. The purpose of Gribben's testimony was to establish, based upon the re-creation, what an individual coming down the steps the morning of the crime could have observed about persons coming up...