State v. Clothier, 14909

• Decision Date: 29 January 1986
• Docket Number: No. 14909,14909
• Citation: 381 N.W.2d 253
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Clifford Guy CLOTHIER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 253

381 N.W.2d 253

STATE of South Dakota, Plaintiff and Appellee, v. Clifford Guy CLOTHIER, Defendant and Appellant.

No. 14909.

Supreme Court of South Dakota.

Argued Nov. 18, 1985.

Decided Jan. 29, 1986.

Frank Geaghan, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Timothy J. Becker of Banks & Johnson, Rapid City, for defendant and appellant.

WUEST, Acting Justice.

This is an appeal from a judgment of conviction following a guilty verdict of first-degree manslaughter. We affirm.

On Friday evening, November 16, 1984, Mike Hawkins (Hawkins) and Muriel Riggins (Riggins) met with Cheryl Jackson (Jackson) at the Playgirl Retreat Club in Rapid City, South Dakota. Jackson was forced to close the club and the two were helping her dismantle its stage. Hawkins and Riggins had been drinking beer and smoking marijuana before their arrival at the club, and the threesome had a few beers while there. After approximately an hour, they decided to visit a friend at the Gold Dust Bar in Lead, South Dakota. During the trip to Lead, Hawkins and Riggins shared another marijuana cigarette and each of the three drank another beer. They arrived at the Gold Dust Bar at approximately 10:00 p.m., and after a round of drinks, Riggins left to sleep in their Jeep, while Hawkins and Jackson remained at the bar until closing time.

The three started on the trip back to Rapid City at closing time, via Highway 385 and Sheridan Lake Road. While en route, however, they decided to stop at the trailer home of Share and Guy Clothier (appellant), to get money for a water pump Hawkins had sold to appellant. At trial, Riggins testified that they also went to the trailer to warn the Clothiers to stay out of their lives, as Riggins believed that Share Clothier had informed local authorities that Riggins was involved in prostitution and that Hawkins was dealing drugs.

They arrived at appellant's trailer at approximately 2:00 a.m. Hawkins and Riggins knocked on the door while Jackson slept in the Jeep. Jim Richards, appellant's brother-in-law, answered and informed the two that appellant and Share Clothier were asleep in the back bedroom. Hawkins and Riggins entered and woke the Clothiers, who came out into the living room. Appellant told Hawkins that he did not have the money owed for the water pump, at which time Riggins confronted Share Clothier with having informed the police that Riggins was a prostitute and Hawkins a drug dealer. A heated argument ensued and, after several minutes, Hawkins and Riggins returned to the Jeep. Riggins was seated in the center of the front seat with Jackson on her right and Hawkins behind the wheel.

Apparently, Hawkins intended to reclaim the water pump from appellant's pickup. Upon discovering that he did not have the tools needed, however, he decided to push the pickup into a nearby creek with the Jeep. Appellant had followed the two out of the trailer, carrying a .25 caliber pistol, which reportedly prompted Hawkins to remark "if you want to pop caps, we can pop caps too." Appellant returned to the trailer, claiming that Hawkins had tried to run over him. Shortly thereafter, appellant heard a crashing sound and, through the bedroom window, he saw his pickup being pushed across a field by the Jeep.

Appellant ran from the trailer and reached the Jeep as Hawkins was pushing the pickup into the creek. Shortly thereafter, the pistol appellant was carrying discharged, striking Hawkins in the left temple, killing him instantly. While the facts are inconclusive as to whether the gun was fired deliberately, appellant claims that as he approached the driver's door, Hawkins tried to open it into him, and the gun discharged accidently when appellant's arm hit the door jam as he attempted to strike Hawkins with the gun handle. Both Riggins and Jackson testified, however, that neither of them saw any arm movements or heard anything hit the Jeep when the gun fired. Furthermore, appellant testified that, before leaving the trailer, he cocked the gun when he pulled the action back to determine that it was loaded.

Riggins testified that after the gun fired killing Hawkins, appellant stated "that's what he gets for messing with my truck." Riggins also testified that Share Clothier began pulling Jackson from the Jeep screaming, "take these dumb bitches up on the hill and slit their throats. I don't need no witnesses." This statement was further substantiated at trial by Jackson.

Appellant and Share Clothier took Jackson and Riggins into the trailer and discussed the incident. While Riggins and Jackson remained in the trailer with Jim Richards, appellant and Share Clothier went to the woods and disposed of Hawkin's body, the gun, and the bloody clothing. They returned to the trailer and a plan was devised to explain Hawkin's disappearance. Thereafter, Jackson and Riggins were driven to Jackson's home in Rapid City and the Clothiers fled to Sheridan, Wyoming, where they were apprehended.

Appellant was tried before a jury and convicted of first-degree manslaughter. He was sentenced to forty-five years in the South Dakota State Penitentiary and he appeals.

Prior to trial, the trial court granted appellant's motion in limine prohibiting the State from introducing Share Clothier's statement that appellant should take Riggins and Jackson "up on the hill and slit their throats." In compliance with SDCL 19-12-3, the trial court determined that the statement was substantially more prejudicial than probative. The court, however, admonished appellant's counsel not to "open the door" on this issue, stating:

[I]n granting this motion, I want to warn you that if the issue is broached by you by attacking the credibility of the witnesses to the extent that they were attacked at the Preliminary Hearing, to the effect that they had no cause to be afraid, that their actions are not explainable or their credibility is somehow impaired because they weren't in fact in danger, I want to warn you that if you bring that--take that attack, or take that position, you may very well be opening up those remarks and those prior bad acts to show and to explain why those witnesses acted the way they did act after the shooting.

After defense counsel's cross-examination of Jackson, the State moved the court to reconsider its earlier ruling on Share Clothier's statement, contending that defense counsel presented a scenario to the jury which intimated that Jackson and Riggins had no reason to be afraid after the shooting. The trial court agreed and admitted the statement, holding that appellant's cross-examination of Jackson opened up the issue "sufficiently to bring that statement in to balance the scales toward relevancy and against prejudice." The trial court determined that Share Clothier's statement was admissible as either a contemporaneous statement or condition under SDCL 19-16-5, or an excited utterance under SDCL 19-16-6.

Appellant contends that the statement in issue was not admissible under the excited utterance exception to the rule against hearsay, SDCL 19-16-6, which states: "A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition, is not excluded by Sec. 19-16-4, even though the declarant is available for trial." (Emphasis added.) Appellant argues that Share Clothier's statement was inadmissible at trial under this exception because it did not "relate" to the shooting of Hawkins. We disagree.

SDCL 19-16-6 is taken verbatim from the Federal Rules of Evidence, Rule 803(2). As stated in Weinstein's Evidence, p 803(2) p. 803-95:

Rule 803(2) is in accord with Wigmore in not requiring that the statement elucidate or explain the occurence, a condition which was incorporated in the Model Code and perhaps the Uniform Rules. Use of the word "relating" in the federal rule does limit the subject matter of the statement to some degree. The fact that a matter wholly unrelated to the event in question springs to mind through free association does not make the statement about the thought admissible.... If the subject matter of the statement is such as would likely be evoked by the event, the statement should be admitted. This determination cannot be made mechanically without assessing the facts of the particular case.

A review of the facts surrounding this tragic incident show that Share Clothier's statement to the effect that appellant should kill Riggins and Jackson and thereby prevent them from testifying to the shooting was not a statement "wholly unrelated" to the incident, which sprang to mind through "free association." Indeed, the contents of the declaration demonstrate its relation to the shooting, as it manifests Share Clothier's thoughts of self-preservation immediately after she realized what had occurred. As stated in 22A C.J.S. Criminal Law Sec. 662(5) p. 673:

[A]n act done or a declaration made after the happening of the principal fact may be admissible as part of the res gestae where it is ... so intimately interwoven with the principal fact by the surrounding circumstances as to warrant the conclusion that it was made or done under the immediate influence of the principal transaction or event and is the spontaneous utterance or expression of thoughts created by, and springing out of, the transaction itself. Subsequent conduct and statements are admissible as part of the res gestae where they follow at once after the principal event and serve to characterize it[.]

While we acknowledge that such assessments are to be made on a case-by-case basis, we believe that the statement in issue, when viewed in the context of the surrounding circumstances, was related to the principal event, namely, the death of Michael Hawkins. Moreover, the trial court allowed the admission of this statement after defense counsel, despite the court's warning, put the credibility of Riggins and Jackson into...