State v. Burtzlaff, 17718

• Decision Date: 25 November 1992
• Docket Number: No. 17718,17718
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Gloria BURTZLAFF, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 1

493 N.W.2d 1

STATE of South Dakota, Plaintiff and Appellee, v. Gloria BURTZLAFF, Defendant and Appellant.

No. 17718.

Supreme Court of South Dakota.

Argued Sept. 2, 1992.

Decided Nov. 25, 1992.

Mark Barnett, Atty. Gen., Sherri Sundem Wald, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Michael W. Strain of Morman, Smit, Hughes, Strain, Molstad & Haivala, Sturgis, for defendant and appellant.

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES

On April 11, 1991, the Defendant, Gloria Burtzlaff, was indicted for: Count I--First Degree Murder--Premeditated Design; and, in the alternative, Count II--First Degree Manslaughter. On June 19, 1991 and June 29, 1991, the trial court heard preliminary motions concerning (1) suppression of evidence, (2) intent to offer "other acts" testimony, (3) motions in limine to preclude a psychiatric autopsy of the victim, (4) psychiatric evidence regarding Burtzlaff's mental state at the time of the shooting, and (5) prohibition of comments during voir dire concerning the death penalty.

Jury trial was held from August 20 through August 30, 1991. The jury returned a verdict of not guilty on Count I, but guilty on Count II--First Degree Manslaughter.

Sentencing was held on October 22, 1991. The trial court sentenced Burtzlaff to twenty (20) years at the Springfield Correctional Facility. Bond pending appeal was denied. Burtzlaff is currently incarcerated at Springfield.

Notice of Entry of Conviction and Sentence was filed on October 22, 1991. Notice of Appeal was filed on October 24, 1991.

On appeal, Burtzlaff raises the following issues:

I. DID THE EVIDENCE SUFFICIENTLY SUPPORT A VERDICT OF MANSLAUGHTER?

II. DID THE COURT ERR IN EXCLUDING THE PSYCHOLOGICAL AUTOPSY OF THE DECEDENT?

III. DID THE COURT ERR BY ALLOWING THE STATE TO USE BURTZLAFF'S AFFAIR AS PRIOR BAD ACTS EVIDENCE?

IV. DID THE COURT ERR BY NOT PERMITTING EXPERTS TO TESTIFY THAT BURTZLAFF WAS A BATTERED WOMAN?

V. DID THE TESTIMONY, DURING REBUTTAL EXAMINATION, CONSTITUTE PREJUDICIAL HEARSAY?

VI. DID THE TRIAL COURT ERR:

a. IN INSTRUCTING THE JURY THAT THE DEFENDANT HAD TO BE IN IMMEDIATE DANGER IN ORDER TO ALLEGE SELF-DEFENSE, AND THEN FAILING TO GIVE THE DEFENDANT'S PROPOSED INSTRUCTION ON THE ISSUE; AND

b. IN ALLOWING AN ASSAULT "USE OF FORCE" INSTRUCTION IN A JUSTIFIABLE HOMICIDE CASE INVOLVING THE BATTERED WOMAN SYNDROME?

VII. DID THE COURT PROPERLY DENY BURTZLAFF'S MOTION FOR MISTRIAL?

VIII. DID THE STATE FAIL TO PROVE BEYOND A REASONABLE DOUBT THAT BURTZLAFF DID NOT ACT IN SELF-DEFENSE?

IX. a. DID THE PROSECUTION ERR BY ARGUING TO THE JURY THAT BURTZLAFF HAD A DUTY TO RETREAT; AND

b. DID THE TRIAL COURT CONSIDER DUTY TO RETREAT WHEN IMPOSING THE SENTENCE?

X. DID THE TRIAL COURT CONSIDER THE BATTERED WOMAN SYNDROME AS A MITIGATING CIRCUMSTANCE WHEN SENTENCING AND DID THE SENTENCE IMPOSED CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT?

XI. DID BURTZLAFF RECEIVE A FAIR TRIAL?

We address each issue seriatim.

FACTS

On April 5, 1991, at approximately 10:30 p.m., Gloria Burtzlaff phoned Lawrence County Sheriff Charles Crotty and stated that she had just shot her husband, Larry. Deputies Charles and Russell reported to the scene, the Burtzlaff's house, and found Mr. Burtzlaff in the living room, lying on his knees, face down by the couch, with a gaping hole in his chest. He was dead. Mrs. Burtzlaff stood outside wearing wet clothing.

Upon waiver of her Miranda rights, Burtzlaff reported the following: Larry had been drunk and physically abusive lately, especially that night. (The autopsy showed his blood alcohol content to be .358%.) After they had returned from a local bar, according to her story, he dragged her into the family hot tub fully clothed and shoved her under the water several times. When doing so, per her version of the facts, he would say "Tell me that you love me" and would ask "Do you still love me?" She said he then pulled her out of the tub, threw her on the floor, kicked her, and stated, "You think I'm going to kill you like this, don't you? I'm going to tell you right now it's not going to be this easy."

According to Burtzlaff, he left the room, whereupon she went downstairs and returned with a shotgun. She found him sitting on the couch with a drink in one hand and the television remote control in the other. She announced, "Larry, I'm going to kill you." He lifted his glass as if to toast her, she said; then she fired (from a distance of six feet, according to expert testimony). The husband was unarmed. She telephoned Sheriff Crotty, then went outside where the Sheriff's Department found her. From the date that the victim learned of his wife's four year affair with a co-worker until Burtzlaff killed him, only three months and two days had passed.

She was later charged with first degree murder, and in the alternative, first degree manslaughter. She claimed self-defense as a battered woman.

Her trial testimony alleged a history of mental, physical, and sexual abuse by her husband, especially during the preceding week. She asserted that this was compounded by the fact that Larry had recently been diagnosed as having colon cancer and was forced to wear a permanent ileostomy bag. According to her testimony, abuse supposedly escalated in January when Larry learned that his wife had been involved in a four-year affair with co-worker Roger Schoon. The Burtzlaffs then briefly sought marriage counseling.

Despite his drinking and history of being a strict disciplinarian as a parent, no testimony other than Gloria Burtzlaff's could corroborate any history of violence. This includes the testimony of three sons of the marriage; one did testify that he saw a bruise of unknown origin, on his mother. However, experts testified as to the realities of battered woman syndrome and the symptoms the defendant possessed consistent with the syndrome. At trial, Burtzlaff testified Larry repeatedly threatened her life that evening. Burtzlaff admitted, however, she told Deputy Charles shortly after she shot her husband that she did not recall whether her husband had threatened her life that night. While she testified she shot her husband to save her own life, she also testified she did not know how or when Larry would kill her. When Deputy Sheriff Charles arrived at the scene, Burtzlaff repeatedly stated "I killed my husband. I can't believe it, I killed my husband." On the day following the homicide, Burtzlaff was examined by a doctor and a small bruise was found on her chest and upper arm and a larger bruise on her hip. The jury found Burtzlaff guilty of first degree manslaughter; and the judge sentenced her to confinement for twenty years, notwithstanding she faced life imprisonment.

DECISION

1. There was sufficient evidence to support first degree manslaughter.

The third element of manslaughter requires the perpetrator to be without design to effect death. SDCL 22-16-15(3). Because Burtzlaff admitted telling the victim, "Larry, I'm going to kill you," she ironically alleges that there was design to effect death, thus eliminating the third element and a manslaughter conviction. However, an admission to shooting is not an automatic confession to killing with a premeditated design. State v. Dokken, 385 N.W.2d 493 (S.D.1986). "While it proves the fact that the defendant pulled the trigger, it does not concede guilt in murder or first degree manslaughter." Id. at 505.

Furthermore, the record discloses that Burtzlaff also testified that she did not shoot her husband intentionally. This, combined with her testimony that she did not remember actually carrying the shotgun, presented the finder of fact with sufficient evidence that Burtzlaff had no design to effect death, and thus will sustain a conviction of first degree manslaughter beyond a reasonable doubt. This Court will accept that evidence, and the most favorable inferences that can be fairly drawn therefrom, which will support the verdict. State v. Lewandowski, 463 N.W.2d 341, 343 (S.D.1990).

Under this standard of review, this Court will not resolve conflicts in the evidence, pass on the credibility of the witnesses, or weigh the evidence. These functions lie solely within the province of the jury as ultimate trier of fact. State v. Wall, 481 N.W.2d 259, 262 (S.D.1992); State v. Huettl, 379 N.W.2d 298, 302 (S.D.1985). It has long been established by this Court that a jury verdict shall only be set aside where the evidence and the reasonable inferences to be drawn from the evidence do not sustain a rational theory of guilt. Lewandowski at 344; Huettl at 301; State v. Wedemann, 339 N.W.2d 112 (S.D.1983).

2. The trial court properly limited the scope of expert testimony.

(Issues II and IV have been combined because both concern expert testimony.)

Burtzlaff sought the trial court's permission to present expert testimony of a "psychological" autopsy of the decedent to the jury. Although he had never interviewed nor met the decedent, Dr. Richard Fairbairn was prepared to "reconstruct" the decedent's personality and behavior on the night of his death and testify that the defendant acted in self-defense.

Psychological autopsies have been admitted where the victim's state of mind was relevant, such as suicide victims (Jackson v. State, 553 So.2d 719 (Fla.1989); Thompson v. Mayes, 707 S.W.2d 951 (Tex.Ct.App.--Eastland 1986)) and where the murder defense was suicide (Bartram v. State, 33 Md.App. 115, 364 A.2d 1119 (1976)). Though these mental evaluations have been used for other purposes, Fairbairn admitted that the reconstruction of a decedent's personality was not common in the field of psychiatry.

Under SDCL 19-15-2, an expert may be allowed to testify on specialized knowledge which will assist the jury in determining a fact in issue. Although the court permitted Dr. Fairbairn to testify about Burtzlaff's state of mind on the night of the shooting and the victim's purported violent tendencies, he was not allowed to testify as to the...