State v. Boutchee

• Decision Date: 23 March 1987
• Docket Number: No. 15431,15431
• Citation: 406 N.W.2d 708
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Johnnie Lee BOUTCHEE, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 708

406 N.W.2d 708

STATE of South Dakota, Plaintiff and Appellee, v. Johnnie Lee BOUTCHEE, Defendant and Appellant.

No. 15431.

Supreme Court of South Dakota.

Considered on Briefs March 23, 1987.

Decided May 27, 1987.

Clair B. Ledbetter, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

James A. Eirinberg, Sioux Falls, for defendant and appellant.

SABERS, Justice.

Johnnie Lee Boutchee (Boutchee) appeals his conviction of tampering with a witness. We affirm.

Facts

David John McCloskey (McCloskey) witnessed a fight between his brother-in-law, Emerson Chasing Bear (Chasing Bear), and Boutchee on December 7, 1985. Boutchee was arrested and charged with assault. A preliminary hearing was held on December 13, 1985. McCloskey testified for the State, and Boutchee was bound over for trial on a charge of simple assault. As of March 27, 1986, this Chasing Bear trial was pending but McCloskey had not yet been subpoenaed to testify. The facts arise from two separate incidents of March 27, 1986. Each incident is a separate count of the two count information which charged Boutchee with tampering with a witness in violation of SDCL 22-11-19(2).

The Heritage Park Incident

McCloskey, a resident of Humboldt, South Dakota was visiting his two brothers, Ruben and Keith, in Sioux Falls. The three brothers had just finished playing basketball at the park with some friends and relatives. Boutchee arrived with three companions. According to McCloskey's trial testimony, Boutchee approached him, shouted obscenities, and said, "I didn't forget that incident with you and Emerson going to court," and "You better not show up." Immediately thereafter, a fight erupted between some, but not all members of the two groups which extended to the Prairie Market, a nearby grocery store. McCloskey stated that Boutchee chased him to the Prairie Market and punched him three times. After this, the two groups separated.

According to Boutchee's trial testimony, he and his companions were at the park looking for a friend. He stated that it was one of McCloskey's people who started the brawl. Boutchee denied making threatening remarks to McCloskey or chasing him to the Prairie Market. He claimed he retreated to the store to get away from McCloskey who initiated the fight.

The Rock Throwing Incident

Approximately forty-five minutes later, McCloskey and his friends were at Ruben McCloskey's duplex apartment. Boutchee and his companions drove by the residence several times before stopping near the end of the block. According to McCloskey, Boutchee and his friends got out of the car armed with weapons--Boutchee with a machete. In response, McCloskey and his group threw rocks and other objects at them. One of McCloskey's friends called the police.

Boutchee and his friends gave inconsistent reasons for being in the vicinity of Ruben's house. Boutchee stated that as they drove past the duplex the McCloskey group threw rocks at his car. He further stated that he immediately stopped the car to check for damage and observed McCloskey and his friends running toward him. Boutchee testified that he pulled out a machete in self-defense and merely held it to stand his ground. He stated that he always keeps the machete in his car and uses it for camping and fishing purposes. Believing that one of the attackers had a gun, he and his friends jumped back into the car and left.

The police responded to the call and spoke with McCloskey. Officer Persing testified that McCloskey told him that Boutchee stood outside the duplex swinging the machete and telling McCloskey not to appear in court. The police located Boutchee in the parking lot of a submarine sandwich shop about five minutes later. McCloskey then made a citizen's arrest of Boutchee.

A jury trial was held on June 16 and 17, 1986. Boutchee was found guilty of tampering with a witness only on count two, the rock throwing incident. He was sentenced to serve two years in the South Dakota State Penitentiary.

Boutchee's Claims

Boutchee claims error in that instruction # 16 omitted the essential element of "official proceeding" from the definition of tampering with a witness, and that there was insufficient evidence upon which the jury could base the conviction.

1. THE ESSENTIAL ELEMENTS OF TAMPERING WITH A WITNESS

The information ¹ charged Boutchee with two counts of tampering with a witness in violation of SDCL 22-11-19(2). It specifically alleged that Boutchee threatened to injure McCloskey in order to induce him to withhold testimony or information. SDCL 22-11-19 provides in full:

Tampering with a witness. A person who threatens to injure any person or property, or with intent to influence a witness, offers, confers or agrees to confer any benefit on a witness or prospective witness in an official proceeding to induce the witness to:

(1) Testify falsely;

(2) Withhold any testimony, information, document or thing (3) Elude legal process summoning him to testify or supply evidence; or

(4) Absent himself from an official proceeding to which he has been legally summoned,

is guilty of tampering with a witness. Tampering with a witness is a Class 4 felony.

The trial court submitted instruction # 16 to the jury which provided in full as follows:

The essential elements of the crime charged in each count of the information each of which the State must prove beyond a reasonable doubt are:

(1) That on or about the 27th day of March, 1986, in this county and state, the defendant threatened to injure David John McCloskey; and

(2) that the defendant did so with the specific intent to induce Mr. McCloskey to withhold testimony or information.

You are instructed that under the State's version of the facts the threat alleged in Count I occurred at [Heritage] Park and the threat alleged in Count II occurred at a private residence.

During the settling of jury instructions, Boutchee objected to instruction # 16 based on the trial court's failure to include the statutory language "in an official proceeding." The court responded that the State did not charge Boutchee with the language "in an official proceeding" but that Boutchee may have an argument that the information was defective. The court declined to rule on the sufficiency of the information, stating that, if there was an adverse verdict, Boutchee could attack the information and the court would then consider it. The record shows that Boutchee failed to object to the sufficiency of the information after the guilty verdict. Therefore, this issue is not preserved for appeal. The appellant must affirmatively establish a record that shows error and that the trial court was given an opportunity to correct it. Cooper v. Cooper, 299 N.W.2d 798, 800 (S.D.1980); Estate of Assmus, 254 N.W.2d 159 (S.D.1977). Nevertheless, consideration of the sufficiency of the information is necessary to determine the sufficiency of jury instruction # 16.

SDCL 23A-6-7 provides in part:

An indictment or information is sufficient if it can be understood therefrom:

* * *

* * *

(5) That the offense charged is designated in such a manner as to enable a person of common understanding to know what is intended.

An information is sufficient if it appraises the accused of the nature of the accusation against him with reasonable certainty so that he may prepare a defense and be protected from double jeopardy. ² SDCL 23A-6-14 provides:

No indictment or information is insufficient, nor can the trial, judgment, or other proceeding thereon be affected, by reason of a defect or imperfection in its form, which does not prejudice the substantial rights of the defendant.

This information expressly alleged that Boutchee threatened to injure McCloskey in order to induce him to withhold testimony or information in violation of SDCL 22-11-19(2). Boutchee was present at the preliminary hearing and heard McCloskey testify against him. The case was bound over for trial and McCloskey was expected to testify in the upcoming proceeding. This evidence was before the jury. The information advised him of the charge against him with reasonable certainty, cited the appropriate statute and subsection, and contained the material elements of the offense: the intent to induce a witness to withhold testimony or information by use of threats. It follows that the existence of the "official proceeding,"--the Chasing Bear trial which was pending as of March 27, 1986--was implicit but not essential. Although it would appear to be better practice to include the language "in an official proceeding" in an information and instruction under SDCL 22-11-19(2), this information met the requirements of SDCL 23A-6-7. The omission did not prevent or hinder the preparation of Boutchee's defense or deny him protection against double jeopardy. Nor did it prejudice Boutchee's substantial rights under SDCL 23A-6-14. Therefore, instruction # 16 was also sufficient to properly instruct the jury under SDCL 22-11-19(2).

Boutchee also contends that the State had a duty to show precisely what official proceeding he induced the witness to withhold testimony from, and that the State could not sustain this burden because the Chasing Bear trial was not scheduled at the time of the March 27th contact. He further argues that McCloskey was not subpoenaed to testify in an official proceeding at that time.

In United States v. Davis, 752 F.2d 963 (5th Cir.1985), the court stated that a "witness" under 18 U.S.C.A. Sec. 1503 ³ is one who knows or is expected to know material facts and is expected to testify to them or to be called on to testify. The Davis court wrote that "witness" status depends, not on whether the witness himself expects to testify or expects to be called, but on whether the defendant knows or should expect that the witness will be called on to testify. Id. at 973-974. Similarly, in Hunt v. United States, 400 F.2d 306, 307-308 (5th Cir.1968), cert. denied, 393 U.S. 1021, ...