State v. Cottier

• Decision Date: 06 August 2008
• Docket Number: No. 24411.,24411.
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. James Albert COTTIER, Defendant and Appellant.
• Court: South Dakota Supreme Court

755 N.W.2d 120

2008 SD 79

STATE of South Dakota, Plaintiff and Appellee, v. James Albert COTTIER, Defendant and Appellant.

No. 24411.

Supreme Court of South Dakota.

Argued April 24, 2008.

Decided August 6, 2008.

Lawrence E. Long, Attorney General, Andrew Knecht, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Matthew L. Olson, Jeff Larson, Office of the Minnehaha, County Public Defender, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

MEIERHENRY, Justice.

[¶ 1.] A jury convicted James Cottier (Cottier) of Manslaughter in the First Degree with a Dangerous Weapon, in violation of 22-16-15(3) (2005).¹ Cottier appeals and we affirm.

FACTS

[¶ 2.] On June 21, 2005, a worker found the badly cut-up body of Cameron Red Star on the grounds of the South Dakota School for the Deaf in Sioux Falls, South Dakota. The prior evening, Red Star, Cottier, and a third individual, Wesley Running, were seen together at the Salvation Army and area convenience stores. The three homeless men spent the night drinking. Workers at the Salvation Army and convenience stores testified that the men smelled of alcohol and appeared intoxicated. The Salvation Army employees tested the blood alcohol levels of all three and found they all had consumed significant levels of alcohol. Running's blood alcohol level was so high that he was not allowed to sleep at the facility. The three ate at the Salvation Army and then left together.

[¶ 3.] The trio proceeded to a convenience store to purchase more alcohol. While consuming the alcohol, Cottier claimed that Red Star and Running began to fight over an eagle feather in Running's possession. Red Star eventually forcibly took the feather from Running who then fled. Later that night an officer picked up Running and took him to a detoxification facility.

[¶ 4.] In the meantime, Red Star and Cottier went to another convenience store and bought two forty-ounce bottles of Hurricane Malt Liquor. The two then found shelter under an entryway to a building on the campus of the South Dakota School for the Deaf. Cottier testified at trial that he sat on a bench and drank as Red Star began pacing back and forth, boasting that he was a member of the "War Lord" gang.

[¶ 5.] Cottier testified that Red Star told him that two families Cottier knew to be violent were going to harm Cottier. According to Cottier, Red Star then hit him in the head repeatedly, choked him, pulled him around by the hair and slammed his head against a brick wall. Cottier testified that while he and Red Star were wrestling and with Red Star on top of him, Cottier grabbed his beer bottle and broke it against the ground. Cottier then used the broken bottle to stab Red Star repeatedly in the face, neck and torso. Cottier claimed that Red Star continued to assault him, but eventually ended the attack and lay on the ground motionless for about thirty seconds. Cottier admitted that he then picked up a nearby rock with both hands and hit Red Star in the head two or three times, killing him. Cottier admitted that Red Star's eyes were open and that he looked at Cottier before Cottier struck him with the rock. After the fatal blows, Cottier sat on a nearby bench to drink a beer and catch his breath. Cottier admitted that he checked Red Star's pulse and looked in Red Star's pockets. He also admitted taking a bag of marijuana from Red Star's body. When police arrived at the scene, Red Star's pockets were turned out and his identification and other personal items were lying close to his body.

[¶ 6.] Cottier was charged and tried on three counts: 1) first degree murder in violation of SDCL 22-16-4; 2) first degree manslaughter "in a heat of passion" in violation of SDCL 22-16-15(2); and 3) first degree manslaughter "by means of a dangerous weapon" in violation of SDCL 22-16-15(3). Cottier was found not guilty on counts 1 and 2, but was found guilty on count 3 of killing Cameron Red Star "without a design to effect death, but by means of a dangerous weapon, a rock." Cottier appeals and raises the following issues:

ISSUES

1) Whether the trial court erred when instructing the jury on self defense.

2) Whether the trial court erred in denying defendant's motion to suppress his statements to police.

3) Whether the trial court erred by not admitting the victim's prison record or video of Wesley Running's interrogation.

DECISION

1) Whether the trial court erred when instructing the jury on self defense.

[¶ 7.] We have clarified our standard of review for jury instructions as follows:

A trial court has discretion in the wording and arrangement of its jury instructions, and therefore we generally review a trial court's decision to grant or deny a particular instruction under the abuse of discretion standard. However, no court has discretion to give incorrect, misleading, conflicting, or confusing instructions: to do so constitutes reversible error if it is shown not only that the instructions were erroneous, but also that they were prejudicial.

State v. Packed, 2007 SD 75, ¶ 17, 736 N.W.2d 851, 856 (quoting Vetter v. Cam Wal Elec. Co-op., Inc., 2006 SD 21, ¶ 10, 711 N.W.2d 612, 615) (internal citations omitted).

Erroneous instructions are prejudicial under SDCL 15-6-61 when in all probability they produced some effect upon the verdict and were harmful to the substantial rights of a party. Accordingly, when the question is whether a jury was properly instructed overall, that issue becomes a question of law reviewable de novo. Under this de novo standard, "we construe jury instructions as a whole to learn if they provided a full and correct statement of the law."

Papke v. Harbert, 2007 SD 87, ¶ 13, 738 N.W.2d 510, 515 (quoting Vetter, 2006 SD 21, ¶ 10, 711 N.W.2d at 615 (quoting State v. Frazier, 2001 SD 19, ¶ 35, 622 N.W.2d 246, 259 (citations omitted)).

[¶ 8.] The trial court instructed the jury on the defense of justifiable homicide structured around SDCL 22-16-34 (2005) and SDCL 22-16-35 (2005). The statutes provided as follows:

Homicide is justifiable when committed by any person when resisting any attempt to murder such person, or to commit any felony upon him or her, or upon or in any dwelling house in which such person is.

SDCL 22-16-34 (2005).

Homicide is justifiable when committed by any person in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant when there is reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished.

SDCL 22-16-35 (2005). Cottier had no objection to the trial court's instructions based on the two statutes. He did, however, object to the court giving six additional instructions numbered 31 to 36. Cottier objected to Instructions 31 and 36 because they both instructed on the right of self defense against an assault not rising to the level of a felony aggravated assault and the lawful degree of force in defending against a non-felony assault.

[¶ 9.] Instruction 32 explained that one being attacked can legally defend oneself and pursue the attacker if it is reasonable and necessary. Instruction 33 explained what constituted a lawful self defense against an assault with fists and hands. Instruction 34 explained a situation under which deadly force could not be used in self defense. Instruction 35 explained that a person defending "against unlawful attack has to stop the use of force as soon as the danger of attack ended." When settling instructions, the defense argued that the six instructions were not relevant to the defense of justifiable homicide. Cottier claimed that the challenged instructions limited the language from justifiable homicide against "any felony" to self defense against "aggravated assault" or "assault" and were philosophically inconsistent and conflicting statements of the law. Cottier claimed that to infuse the additional irrelevant instructions concerning retreat and the necessity to stop when the danger ends only served to confuse the jury and blurred the true issue of justification.

[¶ 10.] The trial court overruled Cottier's objections and explained on the record that it wanted the jury to understand the law of "self defense" fully, including the law of self defense against assault not rising to the level of a felony assault and that it anticipated a jury question about non-felony assaults if it did not give the additional instructions.² Cottier claims that the trial court's failure to properly instruct the jury denied him his right to a fair trial in violation of the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution and Article VI, Section two of the South Dakota Constitution. US Const amend V and XIV; SD Const art VI, § 2.

[¶ 11.] Had the trial court only instructed the jury on justifiable homicide without the additional six instructions, it would have been less confusing for the jury. Self defense against non-felony assault was not an issue in the case and superfluous to the jury's decision. Nevertheless, the defense originally proposed defense instructions 9 and 10, which clearly introduced the concept of self defense against a non-felony assault.³ The record does not reflect that either proposed instruction was withdrawn. In fact, even after the court decided to give the six challenged instructions, the defense urged the trial court to substitute defense instructions 9 and 10 for two of the court's instructions. Consequently, since the court's instructions 31 and 36 mirror defense proposed instructions 9 and 10, Cottier has shown no prejudice in giving those two instructions. Additionally, Cottier admits that two of the instructions, Instructions 33 and 34, actually benefited the defense. Thus, even if Instructions 33 and 34 were irrelevant, no prejudice was shown.

[¶ 12.] Of the two remaining, Instruction 32 instructed that Cottier had...