State v. Brings Plenty

• Decision Date: 11 July 1990
• Docket Number: Nos. 16613,16636,s. 16613
• Citation: 459 N.W.2d 390
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Blaine John BRINGS PLENTY, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 390

459 N.W.2d 390

STATE of South Dakota, Plaintiff and Appellee, v. Blaine John BRINGS PLENTY, Defendant and Appellant.

Nos. 16613, 16636.

Supreme Court of South Dakota.

Argued Jan. 8, 1990.

Decided July 11, 1990.

M. Bridget Ryan, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on the brief.

James F. Margadant of Seiler and Trimble, Rapid City, for defendant and appellant.

MORGAN, Justice.

Blaine Brings Plenty (Blaine) appeals a judgment rendered on a jury verdict convicting him of second-degree murder arising from the death of Chris Janis (Janis). We reverse and remand.

Blaine's niece, twelve-year-old Lori Brings Plenty (Lori), testified unequivocally about the events which took place on the evening of January 9, 1988, and the early morning hours of January 10, 1988. At the time, Lori was living with her grandmother, Vera Brings Plenty (Vera), at 12 Neptune in Rapid City, South Dakota. What follows is a summary of the background facts as shown by the record. Additional facts will be supplied, where relevant, to the discussion of each of the issues.

Lori testified that on January 9, 1988, the Brings Plenty family attended a birthday party at the neighboring Black Tail Deer trailer. Alcohol was served and consumed by all, except Lori. After the party, the Brings Plenty family, co-defendant Robert Tapio (Tapio), and the victim Janis repaired to the Brings Plenty trailer at 12 Neptune. Tapio, who was a boyfriend of Ollie Brings Plenty (Ollie) at the time, became jealous of Janis. Blaine and Janis got into an argument and fist fight, which eventually moved outside the trailer. Lori observed the fist fight from the window for about fifteen to twenty minutes. Tapio, at some point, joined the fight. Cameron Red Star (Red Star) and Millard Brings Plenty (Millard) attempted to stop the fighting. When their efforts proved fruitless, Red Star ran to call the police as things were "getting out of hand." Blaine and Tapio stopped beating on Janis in order to chase after Red Star to prevent him from calling the police. Red Star was caught approximately two trailers down from 12 Neptune and severely beaten by Tapio and Blaine.

Meanwhile, Vera and Ollie helped Janis back into the trailer and locked the door. Tapio and Blaine returned to the trailer and began kicking and pounding on the door. Eventually, the door was opened, at which time Tapio and Blaine dragged Janis back outside to the bottom of the steps. Vera and Ollie's efforts to stop the two were futile. At the bottom of the steps, Tapio and Blaine proceeded to severely beat Janis. Blaine told Tapio to get two "sticks," which were in the yard. Tapio complied with the request and both proceeded to bludgeon Janis repeatedly with the "sticks," which were actually 2"" X 2" or 2" X 6" boards (hereinafter clubs). Janis was struck all over his body, including his legs, back, sides, and head. Lori heard Tapio say, "Kill the son of a bitch." She testified that Blaine kept hitting Janis. Vera and Lori finally ran to the neighbors to call the police.

The 911 call was received by Dispatcher Laurie Greeley, Dispatcher of the Pennington County Law Enforcement Office, and was logged at 12:10 a.m., January 10th. The Dispatcher testified that Vera was screaming and hysterical. Several times she stated "They're killing him." Vera also screamed out the names "Tapio," "Chris Janis," and "Blaine." Eventually, the Dispatcher established that Janis was the victim who was being assaulted with clubs. Although she could not clearly decipher Blaine's part in the attack, the Dispatcher understood that Tapio was one of the attackers.

Pursuant to a radio dispatch, Officer Nelva Blenner (Blenner) was the first to arrive on the scene. Blenner first observed Vera running towards her. Vera was excited and yelling. Blenner also observed Red Star lying on the sidewalk. Red Star, who is Vera's son, was covered with blood and still bleeding. After assuring Vera that her son would be okay, Vera pointed out a second body which was lying near the trailer steps. While Blenner was observing the second body, Officer Monte Nelson (Nelson) arrived and joined Blenner. The second victim, who was lying in a pool of his own blood, was Janis. Janis appeared to have large gashes on his head and was bleeding profusely from the back of the head, his mouth, and his nose. Nelson observed Janis' left arm cocked underneath his body. A club was lying across the arm. The club was moved and set aside by Nelson because he could not tell whether it was impaled in Janis. Nelson noted a similar club lying a few feet from the body. Both clubs had human blood and hair on them. Janis and Red Star were subsequently transported to the hospital by ambulances.

Meanwhile, the officers continued their investigation. Vera told Blenner that "the guys who did it were inside." Both officers proceeded to go inside the trailer with Vera, wherein they observed Leo Brings Plenty, Millard, Blaine, Tapio, and Ollie. Blaine was seated at the kitchen table and Tapio was in the kitchen area. Once inside, Vera pointed to Tapio and Blaine and stated "they both did it." Blenner, who had noticed blood on Tapio's shoes, arrested Tapio. Nelson arrested Blaine. While in the trailer, Nelson had observed a large bloodstain on Blaine's left pant leg, and on his hands and face.

Janis died approximately one week later due to massive brain swelling that was the result of the trauma he had sustained to his head. Blaine was charged by Information with four alternative homicide counts: (1) premeditated first-degree murder (SDCL 22-16-4); (2) second-degree murder by acts imminently dangerous to others and evincing a depraved mind (SDCL 22-16-7); (3) first-degree manslaughter in a heat of passion, but in a cruel and unusual manner (SDCL 22-16-15(2); and, (4) first-degree manslaughter by means of a dangerous weapon (SDCL 22-16-15(3)).

The jury returned a guilty verdict on the second-degree murder count for violation of SDCL 22-16-7. Blaine was sentenced to serve life without parole in the state penitentiary.

On appeal, Blaine raises nine issues and State raises one issue by notice of review, to-wit:

1. Whether the trial court abused its discretion in admitting

a) Blaine's statement made in the presence of Officer Nelson;

b) photos taken and evidence seized at the scene;

c) evidence (hair and blood samples) seized from Blaine's person pursuant to a search warrant.

2. Whether the trial court erred in allowing impeachment of Blaine by his custodial statements to Detective Egan, which had been suppressed because the trial court found them to be in violation of Blaine's Miranda rights and involuntary. In conjunction with this issue, we will discuss State's notice of review issue, whether the trial court erred in excluding the use of Blaine's post-Miranda statement to Detective Egan in the State's case-in-chief.

3. Whether the trial court erred in permitting impeachment of Vera Brings Plenty by statements made in conversation with Officer Blenner.

4. Whether there was sufficient evidence in the record to justify an aiding and abetting instruction.

5. Whether the trial court erred in not instructing the jury on the lesser included offenses of second-degree manslaughter and aggravated assault.

6. Whether the trial court abused its discretion in denying a motion for mistrial because three jurors might have seen Blaine in handcuffs and shackles in violation of a court order.

7. Whether there was sufficient evidence to support the verdict.

Because our disposition of Blaine's second issue and the State's notice of review issue mandates a new trial, we will deal with those issues first.

2. INVOLUNTARY STATEMENT FOR IMPEACHMENT

The background for this issue is that Blaine, when advised of his Miranda rights by Officer Nelson during the early morning hours of January 10th, declined to waive those rights and talk to the police. Nelson so indicated in his report to his superior officer. Later in the day, Detectives William Egan (Egan) and Bonnie Feller-Hagen brought Blaine to a small interrogation room at the Pennington County Jail. They were apparently unaware of Blaine's earlier action. Egan began the interrogation and made some attempt to give Blaine a Miranda warning.

After a pretrial hearing, the trial court suppressed Blaine's statement for use in State's case-in-chief for the reason that under the totality of the circumstances it was involuntary. However, the trial court, relying on Harris v. New York, ¹ ruled that the statement could be used to impeach Blaine if he took the witness stand and testified in a manner inconsistent with the statement. It is Blaine's contention that the trial court's ruling allowing use of the statement for impeachment denied him due process. By notice of review, State argues that the trial court erred in suppressing the statements to any extent.

We first reject State's argument that Blaine waived this issue because he did not elect to take the witness stand to testify. The reliance on Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984), is misplaced. Luce does not stand for the proposition that Fifth Amendment confession issues are waived if a defendant does not take the stand. The Court specifically distinguished its ruling from Fifth Amendment cases because it was dealing with impeachment with a felony conviction under Rule 609 of the Federal Rules of Evidence. 469 U.S. at 42, 43, 105 S.Ct. at 464, 83 L.Ed.2d at 448. Nor does State v. Means, 363 N.W.2d 565 (S.D.1985), or State v. Dickson, 329 N.W.2d 630 (S.D.1983), stand for the proposition that a defendant waives a confession issue by not testifying. Both Means and Dickson involved potential impeachment with prior felonies, not confessions. Again, we are not willing to accept State's argument that a defendant waives a constitutional defect in making a confession when he does not testify.

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