State v. Black

• Decision Date: 22 September 1993
• Docket Number: No. 17551,17551
• Citation: 506 N.W.2d 738
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Bradley Dean BLACK, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 738

506 N.W.2d 738

STATE of South Dakota, Plaintiff and Appellee, v. Bradley Dean BLACK, Defendant and Appellant.

No. 17551.

Supreme Court of South Dakota.

Argued on Rehearing on May 25, 1993.

Decided Sept. 22, 1993.

Mark Barnett, Atty. Gen., Frank E. Geaghan, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Michael J. Butler of Butler and Nesson, Sioux Falls, for defendant and appellant.

MILLER, Chief Justice (on rehearing).

On January 6, 1993, the first-degree murder conviction of Bradley Dean Black was upheld by plurality decision of this Court. State v. Black, 494 N.W.2d 377 (S.D.1993) (Black I ). Black petitioned for rehearing. We granted his petition. Upon reconsideration, although we ratify the result of Black I and its resulting judgment affirming Black's conviction, we abandon this Court's earlier rationale.

BACKGROUND

We need not engage in a lengthy recitation of the factual background of this case, as it is fully detailed in Black I. It is sufficient for our purposes to recall that Black was charged with first-degree murder in the December 6, 1990, death of Robert Hymore. At the close of his jury trial, Black argued to the trial court, outside the presence of the jury, that although he was charged with first-degree murder, that offense included the lesser offense of first-degree manslaughter. Therefore, he asserted, he was entitled to jury instructions on first-degree manslaughter.

The trial court listened to the parties' arguments and then stated it would apply only the legal test of the two-part "necessarily included offense test" in determining whether Black was entitled to instructions on first-degree manslaughter:

I'm not going to rule on the factual basis on this matter. I want this test to remain solely, in my determination, on the legal portion thereof, and that therefore, manslaughter, even though our Court has not addressed it directly, is not a lesser includable offense of first degree murder. (Emphasis added.)

Thus, the trial court determined, as a matter of law, that first-degree manslaughter is never a lesser included offense of first-degree murder. The case was then submitted to the jury which, in addition to receiving instructions on first-degree murder, also received instructions on justifiable homicide. The jury returned a verdict against Black, finding him guilty of first-degree murder.

Black appealed his conviction. A plurality of this Court determined the trial court did not err in refusing to give the jury instructions on first-degree manslaughter. Black petitioned for rehearing. His petition was granted and we again heard oral argument on the same issue as presented in Black I: Whether the trial court erred in refusing Black's request that the jury be given instructions on first-degree manslaughter.

DECISION

It is evident from the difficulties encountered by the trial courts, that our writings since State v. Waff, 373 N.W.2d 18 (S.D.1985), do not sufficiently guide the bench and bar to a resolution of the question of how to determine what jury instructions are to be given in a particular homicide trial. It is, therefore, appropriate to review our previous decisions in this area in an effort to clarify the methodology to be followed in determining which instructions are appropriate in a particular case.

In 1985, this Court held, through the writing of Justice Wollman, that neither first-degree manslaughter nor second-degree manslaughter is "invariably" included within the charge of murder. Waff, 373 N.W.2d at 23. It is possible, however, that under the circumstances of a particular case, one, or both, of these lesser offenses could be found to be "necessarily" included offenses within the charge of murder. Whether this is true in any particular case would be determined on an individual basis after the trial court applied a legal test and a factual test to the case before it. Only if both prongs of the test were met could these two offenses be "necessarily included" in the charge of murder in any particular situation. Id. at 22. Despite Waff's recitation of the two prongs of the "necessarily included" test, Waff expressly declined to apply the legal prong stating: "Without deciding whether either the offense of first-degree manslaughter or of second-degree manslaughter, as defined by SDCL 22-16-15 and SDCL 22-16-20, ... satisfied the legal test, it is clear beyond peradventure that neither offense satisfied the factual test." Id.

Waff's two-part "necessarily included" test was specifically taken from the special concurrence of Justice Zastrow in State v. Kafka, 264 N.W.2d 702, 705 (S.D.1978). It is noteworthy that Waff observed that the "two-part test is now clearly the law in this state," Waff, 373 N.W.2d at 22, since, as we discuss more fully below, Justice Zastrow's writing was not this Court's most recent prior articulation of the two-part test, nor was it our first articulation of that test.

Indeed, a comparison of the test as stated in Waff, with its earlier articulation in Kafka, shows that Waff merely recited an abbreviated outline of the complete test. This is understandable as in Waff we were concerned with, and only applied, the factual prong of the test to conclude that no error was occasioned by that trial court's refusal to give requested jury instructions on the offenses of first or second-degree manslaughter. Waff, 373 N.W.2d at 18. Clearly, we had no need there to develop and discuss fully the legal prong of the test.

Today, however, we are called upon to decide the question left open by our decision in Waff. For that reason, we find it necessary to examine the lineage of the Waff two-part test. An examination of that lineage makes it clear that for at least the past century, this Court has engaged in legal and factual inquiries as to whether a requested instruction should be given by the trial court. Further, even a brief examination of that lineage indicates to us that Waff's abbreviated outline may be the source of much of today's difficulty in the application of the legal prong of the test to determine the propriety of granting a defendant's request for jury instructions on a lesser offense than that with which he has been charged.

Kafka's special concurrence had its origin in language taken from our unanimous decision of State v. O'Connor, 86 S.D. 294, 298, 194 N.W.2d 246, 248-49 (1972). O'Connor itself cited verbatim from State v. Barber, 83 S.D. 289, 292-93, 158 N.W.2d 870, 871-72 (1968), a unanimous decision authored by Judge Homeyer. Barber had been charged with, and found guilty of, statutory rape. Barber alleged error in the trial court's refusal to grant his request that the jury be instructed on the offense of assault and battery. We were called upon to consider SDC 34.3669, the precursor to SDCL 23A-26-8, ¹ which then recited that "[t]he jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged[.]" Barber, 83 S.D. at 291, 158 N.W.2d at 871. We there held that

the use of force or violence is not an element of the crime of second degree rape, sometimes termed statutory rape, and thus an offense dependent thereon is not a necessarily included offense. Accordingly, the trial court did not err in refusing to instruct on assault and battery as an included offense.

Id., 83 S.D. at 293, 158 N.W.2d at 872.

In reaching that decision, we recalled that on a previous occasion we had held it was not error to refuse to give requested instructions where the "two offenses are not the same nor, in our opinion, are they such related offenses as to include one within the other.... [We continued:] The two offenses simply stem from the same occurrence but they are not the same either in law or fact. They differ both in grade and kind." Id., 83 S.D. at 291-92, 158 N.W.2d at 871 (citing State v. Rasmusson, 72 S.D. 400, 403, 34 N.W.2d 923, 924 (1948)).

We went on to examine two previous cases which involved rape allegations. We observed that where the degree of rape charged did not include the use of force, a requested instruction on assault was properly refused. Id., 83 S.D. at 292, 158 N.W.2d at 871 (citing State v. Pepka, 72 S.D. 503, 506, 37 N.W.2d 189, 190 (1949)). On the other hand, if the degree of rape charged did include the use of force, a requested instruction on assault was properly granted. Id. (citing State v. Crofutt, 76 S.D. 77, 78, 72 N.W.2d 435, 436 (1955) (observing that assault is not a degree of the offense of rape)).

We then cited, with approval, a number of decisions from California which succinctly stated the methodology we had been applying through the years in our own Court to determine whether a defendant could be convicted of a lesser offense than charged if the defendant requested an instruction on the lesser charge. We looked to California since its statute on conviction of lesser offenses was "identical with our statute in essential particulars[.]" Id. We said there that

the test of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense. If, in the commission of acts made unlawful by one statute the offender must always violate another, the one offense is necessarily included in the other. Before a lesser offense can be said to constitute a necessary part of a greater offense, all the legal ingredients of the corpus delicti of the lesser offense must be included in the elements of the greater offense. If an element necessary to establish the corpus delicti of the lesser offense is irrelevant to the proof of the greater offense, the lesser cannot be held to be a necessarily included offense.

Id., 83 S.D. at 292-93, 158 N.W.2d at 871-72 (citations omitted) (emphasis added). It is apparent that we did not engage in a mere mathematical comparison of the number of elements in each crime for which jury instructions...