State v. Bush, 12052

• Decision Date: 30 November 1977
• Docket Number: No. 12052,12052
• Citation: 260 N.W.2d 226
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Alonzo BUSH, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 226

260 N.W.2d 226

STATE of South Dakota, Plaintiff and Respondent, v. Alonzo BUSH, Defendant and Appellant.

No. 12052.

Supreme Court of South Dakota.

Nov. 30, 1977.

John P. Guhin, Asst. Atty. Gen., Pierre, for plaintiff and respondent, William J. Janklow, Atty. Gen., Pierre, on the brief.

Ramon A. Roubideaux, Rapid City, for defendant and appellant.

HERTZ, Circuit Judge.

On May 3, 1975, the defendant, Alonzo Bush, shot and killed Robert C. Williams, a Rapid City businessman. When charged with the offense, defendant entered pleas of not guilty and not guilty by reason of mental illness. On August 27, 1976, the jury returned a verdict of guilty of murder as charged in the information. From the judgment and sentence entered on the jury's verdict, the defendant appeals.

The defendant, Alonzo Bush, an American Indian, was 42 years of age at the time of the shooting. He had an 8th grade education, served for three years in the Armed Forces of the United States, and, when employed, worked as a farm or ranch laborer.

In 1973 he sustained a serious head injury and was treated at Los Angeles General Hospital. Since that time, defendant has been in and out of various V.A. Hospitals in California, Minnesota, and South Dakota being treated for physical, mental, and alcoholic-related illnesses.

In the Spring of 1974, defendant was examined and surgically treated by Dr. Richard Scott Gregory, a neurosurgeon at the Veterans Administration Facilities in Minneapolis, Minnesota. Dr. Gregory's deposition reveals that defendant had a previous skull operation in Los Angeles in 1973, and that the surgery performed by him was to replace the bone flap on the skull and substitute a plastic covering to keep the brain from being depressed. Dr. Gregory declared the surgery successful. He further stated that in his opinion defendant was mentally ill at the time of his surgery and treatment by reason of his paranoid behavior. Defendant at one time snatched a pair of scissors and assumed an apparent defensive stance while being treated by Dr. Gregory. On cross-examination, Dr. Gregory admitted that simply because a person exhibits paranoid behavior does not mean he is legally mentally ill. Defendant was discharged from the hospital on May 10, 1974, at which time Dr. Gregory noted in his records that defendant would require a six-week period of convalescence and then could return to full employment, and that defendant was not to be held for psychiatric treatment. Dr. Gregory also indicated that defendant's consumption of alcohol could provide sufficient stress to cause him to experience a psychotic episode.

The defendant's sister, Clara Comes Killing, testified that after the surgery by Dr. Gregory, defendant came to live with her for a time, and that he suffered convulsive episodes during his stay with her.

Defendant was admitted to the Veterans Hospital at Fort Meade on April 3, 1975.

Dr. Albert E. Uecker, a Clinical Psychologist at the Fort Meade Veterans Hospital, testified he examined defendant on April 8, 1975, and "found evidence of brain damage."

The defendant was also at that time seen by Dr. William D. Trumpe, Staff Psychiatrist at the hospital. The testimony of Dr. Trumpe and other experts will be alluded to later. Defendant was discharged on May 2, 1975.

On May 3, 1975, the defendant entered the Bob Williams' Sewing Center, located at 617 Main Street in Rapid City, South Dakota, and asked directions to the Bronco Bar. After being given directions, defendant left the Sewing Center, but returned shortly thereafter and inquired of Cliff Truesdell, Bob Williams and Bernard Effenberger, who were standing in front of the Sewing Center, as to whether or not they "liked Indians."

Defendant then entered into a somewhat heated discussion with Bob Williams, culminating in a push or shove from Mr. Williams. The defendant "stumbled back about twelve feet and sat down right by the parking meter there."

The defendant then proceeded a short distance down the street where he met a Frieda Johnson. Mrs. Johnson testified that defendant said to her, "That white man tried to kill me." Defendant then started back to Mr. Williams. Mr. Williams told defendant to "move on." Defendant stated, "I am with the F.B.I." He then pulled a small caliber gun from his waist and was heard to say, "Now I am going to kill you." The defendant then fired five or six shots, one of which entered the victim's left temple and another hit the victim's arm. Mr. Williams died as a result of the head wound.

The defendant then ran up the street to Woolworth's Department Store, which was just two stores away from the Bob Williams' Sewing Center. The run of defendant was variously described as "rapidly," "fast," a "jog," or a "medium run."

Police Officer Carter appeared within minutes after the shooting, entered the Woolworth Store and arrested the defendant without incident.

The testimony was somewhat divided on whether the defendant was or was not intoxicated at the time of the shooting. The issue of defendant's intoxication will be dealt with later in this opinion.

The defendant, by this appeal, urges error by the trial court as follows:

(1) That the trial court erred in failing to direct a verdict of acquittal for the reasons that reasonable doubt as to the sanity of the defendant appeared as a matter of law; and that the State failed to prove the sanity of the defendant beyond a reasonable doubt.

(2) That the trial court erred in admitting the testimony of Dr. Phillip Stack, a Clinical Psychologist, in that Dr. Stack was not qualified to give an opinion as to whether defendant knew the difference between right and wrong at the time Dr. Stack examined him.

(3) That the trial court erred in denying defendant's motion for a mistrial and/or new trial on the grounds of prejudicial misconduct of the State's Attorney regarding previous felony convictions of the defendant.

(4) That the trial court erred by giving instructions No. 10 and 11 and pertaining to voluntary intoxication. That the giving of these instructions tended to create conflict and misunderstanding by the jury, since expert testimony indicated that intoxication of the defendant would have a significant bearing on the mental illness of the defendant at the time of the offense.

I THAT THE TRIAL COURT ERRED IN FAILING TO DIRECT A VERDICT OF ACQUITTAL FOR THE REASONS THAT REASONABLE DOUBT AS TO THE SANITY OF THE DEFENDANT APPEARED AS A MATTER OF LAW; AND THAT THE STATE FAILED TO PROVE THE SANITY OF THE DEFENDANT BEYOND A REASONABLE DOUBT

In order to determine the validity of defendant's claimed error stated above, it is necessary to examine the testimony regarding the mental illness issue.

The defendant testified that he had no recollection of the events which occurred in front of the Bob Williams' Sewing Center on May 3, 1975, at which time Mr. Williams was killed. He relates that he was released from the Fort Meade Veterans Hospital on May 2, 1975; that he obtained a ride to Rapid City; that he had no recollection as to where he slept on the night of May 2, or May 3, 1975; that he did "some" drinking; that he remembered drinking something in the morning of May 3rd; that he then got sick, sat down, and "don't know nothing between anything after that"; that the next thing he remembers, he was in jail.

The defendant, in support of his claim of mental illness at the time of the act, called a number of expert witnesses.

Dr. Gregory's deposition disclosed the 1973 skull surgery in Los Angeles General Hospital, the subsequent skull flap surgery by himself in Minneapolis, Minnesota, in the spring of 1974. Dr. Gregory testified that defendant was, in his opinion, mentally ill at the time of the surgery and later admitted that defendant, after a period of convalescence, could return to work. Dr. Gregory also indicated that the use of alcohol by defendant could provide the stress sufficient to cause defendant to experience a psychotic episode.

Defendant then called Dr. J. Lee Dyer, who was Chief of Psychiatry at the Hot Springs Veterans Hospital. Dr. Dyer testified at the trial that he saw the defendant "a year or two ago;" that he had some type of head injury; that he had a long history of alcohol abuse; that he acted "reasonably normal once he was sobered up;" that he was paranoid during times of intoxication. He found defendant psychotic at times and nonpsychotic at other times. That he was psychotic only after drinking excessively, and if not drinking, he was nonpsychotic. Defendant was constantly warned not to drink because of this. The hypothetical question was then put to Dr. Dyer, including the fact assumption that defendant was intoxicated at the time of the shooting. Dr. Dyer refused to give any opinion as to the mental condition of the defendant on May 3, 1975.

Dr. Albert E. Uecker, a Clinical Psychologist at Fort Meade Veterans Hospital, then testified that he had examined defendant on April 8, 1975, some five days after he was admitted for treatment and stated only that "I found evidence of brain damage."

Defendant's primary expert witness was Dr. Donald W. Burnap, a physician and psychiatrist practicing in Rapid City, South Dakota. Dr. Burnap saw the defendant three times, once on January 29, 1976, again on March 8, 1976, and the last time on March 29, 1976. The diagnosis was that the defendant had a paranoid personality disorder, and that alcohol would contribute to that condition. In response to the hypothetical question, including the assumption that defendant was intoxicated at the time of the act, Dr. Burnap stated that in his opinion the defendant did not then know right from wrong and, therefore, could not appreciate the wrongfulness of his acts. Dr. Burnap later in his direct testimony, in response to the question, "Would we call that a psychotic episode?", stated, "On that question, if you were to poll psychiatrists, you would get differing opinions, most psychiatrists...