State v. Frey

• Decision Date: 13 October 1988
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Dean FREY, Defendant and Appellant. 16034. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 721

440 N.W.2d 721

STATE of South Dakota, Plaintiff and Appellee, v. Dean FREY, Defendant and Appellant.

16034.

Supreme Court of South Dakota.

Considered on Briefs Oct. 13, 1988.

Reassigned Jan. 3, 1989.

Decided May 3, 1989.

Rita D. Haverly of Hagen & Wilka, P.C., Sioux Falls, for defendant and appellant.

Wade A. Hubbard, Asst. Atty. Gen. and Roger A. Tellinghuisen, Atty. Gen., on brief, Pierre, for plaintiff and appellee.

MILLER, Justice (on reassignment).

This is a criminal action in which appellant Dean Frey appeals his conviction on two counts of aggravated assault. In affirming the conviction, we hold (1) that appellant was not entitled to a jury instruction on the lesser offense of simple assault; (2) that appellant's issue regarding the variance between the charging language of the indictment and the jury instruction was not properly preserved for appeal; (3) that the trial court did not err in not submitting a trespass (by law enforcement officers) issue to the jury; and (4) that appellant was not entitled to have a jury instruction on his theories of self-defense and defense of others. ¹

THE PLAYERS

To follow the factual scenario, it is necessary to identify the "players" in this litigation.

Michael Schmeltzer (Schmeltzer) is a wildlife conservation officer (game warden) for the South Dakota Department of Game, Fish & Parks stationed in Lemmon, Perkins County, South Dakota. He has been a game warden since 1981 and is a certified law enforcement officer.

Nick Schaefer (Schaefer) is Chief of Police of Lemmon and a deputy sheriff for Perkins County. He has been a law enforcement officer for approximately fourteen years.

Roland Frey (Roland) is a rancher who resides on a ranch with his parents in northwestern South Dakota, three miles south of the North Dakota community of White Butte. The ranch has two sets of buildings, one occupied by his parents and another by Roland and occasionally by his brother, appellant Dean Frey.

Dean Frey (Dean or appellant) ranches with his parents and Roland. He has a home in White Butte, North Dakota, and periodically resides with Roland on the ranch three miles south of that community.

Willy and Nilly are Freys' two tame goats who were slaughtered for meat and whose carcasses were left to hang from the front of a farmhand loader in preparation for butchering.

THE SCENE

In the early evening of September 28, 1986, Roland and Dean slaughtered and hung the carcasses of Willy and Nilly from Frey's farmhand loader. Roland drove to his parents' home for supper. Dean remained in Roland's home to read and relax.

An anonymous citizen driving by Roland's place observed from the road the carcasses of Willy and Nilly which were hanging from the farmhand. ² Thinking they were possibly deer, the citizen made a TIPS call to Schmeltzer. ³

Because there was no open season at that time for game animals in South Dakota (however, the North Dakota archery deer season was open), Schmeltzer decided to investigate. Because dusk was approaching, Schmeltzer (pursuant to a recommended department policy) contacted Deputy Schaefer to accompany and assist him in the investigation.

Schmeltzer and Schaefer, who were both in uniform, drove in Schmeltzer's official, marked vehicle to Roland's ranch. From the road they observed Willy and Nilly hanging from the farmhand on a hill approximately two to three hundred yards from the buildings. However, because dusk was approaching, they were unable to identify the species of the animals even with the aid of a 20 power spotting scope.

While making their observations, they saw a vehicle approaching the ranch and recognized it as Roland's (both officers were acquainted with Roland and Dean). The vehicle pulled into the ranch driveway and they followed.

THE ALTERCATION

The officers followed Roland into the yard and parked behind his vehicle. Roland immediately approached Schmeltzer's pickup, and in a manner most untypical of western South Dakota hospitality, greeted them by stating to Schmeltzer: "What the f___ are you doing on my property? Who's that a__h___ you have in there with you?" ⁴ As Schmeltzer began exiting the vehicle, Roland stated: "What are you doing on my property? You need a warrant to come on my property you a__h___. Where is your f___ing warrant? What are you doing here? ... I know who the f___ you are. What I want to know is what you're doing on my Goddamn property?" Schmeltzer explained that he had received a TIPS call concerning two deer hanging on the farmhand loader and that he had simply driven out to check on the complaint. Because of Roland's obvious anger, Schmeltzer asked Roland to take his hands out of his pockets in case Roland had a weapon. About that time, another car appeared in the driveway and, as Schmeltzer was about to check to see who was in the car, Roland grabbed Schmeltzer by the arm with both hands and said "You're not going anywhere you son of a bitch." At this time, Schmeltzer "pinched" his holster with his other hand, pulled his wrist away to break Roland's grip and told Roland to never grab him like that.

Roland then advised him that "I didn't kill any f___ing deer. Those are goats. They're two tame f___ing goats. You come up there with me and I'll show you those are tame goats."

Schmeltzer testified that Roland insisted that Schmeltzer accompany him to the farmhand to observe the goats. Roland testified that Schmeltzer insisted on going up to see them and that Schmeltzer pushed Roland when Roland tried to stop him. (It should be noted that Schaefer, according to Roland, stayed at the pickup, on Roland's direct instructions.) Regardless, once at the farmhand, it became obvious that the carcasses were domestic goats.

About this same time, Dean, who had heard the commotion fron inside Roland's trailer, grabbed a shotgun and five shotgun shells and went to investigate. Although there was a dispute in the testimony as to what happened at this time, it is clear that almost immediately after arriving at the scene of the dispute, Dean knew specifically who Schmeltzer and Schaefer were and that they were there on official business.

There is a significant discrepancy between the parties regarding Dean's specific conduct when he arrived on the scene:

(1) Schmeltzer's testimony:

Immediately after the goats were identified he heard a shot from the darkness. He heard Dean shout "What the f___ is going on? What are you f___ ers doing?" At this point Schmeltzer noticed Dean approaching out of the shadows with a shotgun in his hand. Dean then shouted "What the f___ are you c___s___ers doing trespassing on my private property? I have every right to kill you. I have every right to blow your ass away for trespass. I think I'll do it." Dean then knelt down approximately seven feet from him and pointed the shotgun at his face, stating, "Don't you move. I've got every right to kill you. I think I will blow your asses away." When Schmeltzer tried to explain to Dean why he was there, Dean yelled "You better get the f___ off of my property before I kill you" and then immediately thereafter warned "Don't you move." Dean then inquired of Schmeltzer who the other man was that was with him, and when Schmeltzer advised him, Dean yelled for Schaefer to "Get your ass up here." When Schaefer replied that he would prefer to stay where he was, Dean swung the shotgun towards the direction from which Schaefer had spoken and fired it and then immediately spun back and again pointed the gun at Schmeltzer. After various other threatening statements, Schmeltzer advised them that he should leave and an argument ensued as to whether Schmeltzer had been involved in reporting that Freys were growing marijuana in their cornfield. Things "cooled" a little bit and Schmeltzer turned around and walked down the hill to his pickup. He never looked back, but did hear another shot fired and heard Dean shouting "You better get out of here before I change my mind and come out there and kill both of you." Dean then made another threatening statement and fired another round. After Schmeltzer entered his vehicle and was driving out of the driveway, another shotgun blast was fired.

(2) Schaefer's testimony:

Schaefer generally corroborated Schmeltzer's statement. He specifically heard Dean say "I should blow your f___ing head off for trespassing" and saw Dean get down on his knee and point the shotgun toward Schmeltzer's head. He heard a shotgun blast as he was approaching the pickup to radio for assistance and was fearful that Schmeltzer had been killed.

(3) Roland's testimony:

Roland testified that Schmeltzer told him that he was going to look at the carcasses whether he liked it or not, and that despite his protestations regarding the search of his premises, Schmeltzer proceeded up the hill, but Schaefer stayed at the pickup on Roland's directions. Schmeltzer pushed Roland as they were approaching the carcasses and Roland then heard his brother Dean approaching and inquiring "What the hell is going on up here." When Schmeltzer observed that Dean had a shotgun, Schmeltzer "pulled his hand back to his left side and touched his holster." Dean told him to "watch his hand." Upon learning why Schmeltzer was there Dean inquired as to why Schaefer was there. Dean never shouldered his gun nor pointed it at Schmeltzer but he did fire his gun into the air because Schmeltzer "was dragging his feet" about getting off their property. As the officers were leaving the premises, Roland took the gun from Dean and fired three shots into the air, but was not aiming at the vehicle.

(4) Dean's testimony:

Dean testified that after hearing the commotion he looked out the window and saw Roland walking backwards uphill towards the goats and that Schmeltzer was pushing him. Dean grabbed the shotgun and shells because he thought someone was beating up his brother. Upon approaching them, Dean recognized Schmeltzer and even saw the badge on his coat. When Schmeltzer saw...