State v. Gillespie

• Citation: 445 N.W.2d 661
• Decision Date: 24 May 1989
• Docket Number: No. 16267,16267
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Robert Clement GILLESPIE, Defendant and Appellant. . Considered on Briefs
• Court: Supreme Court of South Dakota

Page 661

445 N.W.2d 661

STATE of South Dakota, Plaintiff and Appellee, v. Robert Clement GILLESPIE, Defendant and Appellant.

No. 16267.

Supreme Court of South Dakota.

Considered on Briefs May 24, 1989.

Decided Aug. 30, 1989.

R. Shawn Tornow, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on the brief.

Thomas W. Parliman, P.C., Sioux Falls, for defendant and appellant.

WUEST, Chief Justice.

Defendant, Robert Clement Gillespie, appeals his conviction of aggravated assault, in violation of SDCL 22-18-1.1(4). We affirm in part and reverse in part.

In the early morning hours of October 17, 1987, Dale Larson (Larson) was severely beaten in a parking lot near a bar in Sioux Falls, South Dakota. As a result of the beating, Larson sustained severe bruises, a broken rib, and a punctured lung. A severe blow to Larson's chest ruptured blood vessels in the sac surrounding his heart. Blood then accumulated in the sac, exerting pressure on the heart and preventing it from beating properly. Larson also sustained a fractured palate which required extensive reconstructive surgery. Although at some point during the beating Larson became unconscious, he was able to receive prompt medical attention. Had he not received immediate medical treatment, Larson would have died from these injuries.

Larson's injuries were the result of an altercation involving him, defendant, and two of defendant's friends, namely, Brian Scholten (Scholten) and Ron Marr (Marr). The incident apparently occurred after defendant or Scholten flashed Larson an obviously obscene gesture in the parking lot. Larson then obtained a revolver from his car and threatened them with it. Although it is unclear as to what transpired next, Marr eventually came up from behind Larson and knocked him to the ground. Defendant, Scholten and Marr then repeatedly struck and kicked Larson. After Larson apparently lost consciousness, Marr picked up his revolver and placed it in Larson's mouth. He kicked the revolver several times, thereby causing the injury to Larson's palate.

Shortly thereafter, a police officer, Terry J. Persing (Persing), arrived at the scene and summoned an ambulance. Defendant approached Persing and attempted to relate the events which had just transpired. Because a crowd had gathered at the scene and Persing could not hear what the defendant was saying, defendant was asked to further explain the incident inside Persing's vehicle. While seated in the vehicle's front seat, defendant told Persing his version of the altercation. Persing then suggested defendant accompany him to the Minnehaha County Public Safety Building so defendant could provide a detailed explanation in the absence of a crowd. Defendant indicated that he willingly would do so. The only additional information which defendant provided at the Public Safety Building were his friends' names. After consulting with other police officers and obtaining additional information from them, Persing gave defendant Miranda warnings and placed him under arrest for aggravated assault.

Defendant and Scholten subsequently were tried together. On March 31, 1988, a jury entered a verdict finding both guilty of aggravated assault. The trial court entered a judgment of conviction and sentenced defendant to serve ten years in the South Dakota State Penitentiary. The sentence was suspended provided that certain conditions were met. Included among these conditions was that the defendant (1) serve six months in the Minnehaha County Jail; (2) be placed on probation for five years; and, (3) make restitution to Larson for one-third of his medical and dental bills and lost wages, and execute a confession of judgment in favor of Larson for the full amount of such expenses.

Defendant now appeals his conviction, raising five issues. He first contends that the trial court erred in denying his proposed jury instruction on simple assault as a lesser included offense of aggravated assault. Defendant next submits that the trial court erred in refusing his proposed jury instructions regarding self-defense. In his third contention, he argues that his initial comments to Persing should have been suppressed. Defendant also claims the trial court improperly denied his motion for a new trial based upon the state's alleged failure to provide court-ordered discovery. Finally, defendant contends that the trial court erred in requiring him to execute a confession of judgment as a condition of the suspended sentence.

We first address defendant's contention that the trial court erred in denying his requested jury instruction on simple assault as a lesser included offense of aggravated assault. Defendant proposed a separate jury instruction based upon SDCL 22-18-1(5). Under this statute, a person is guilty of simple assault if he "intentionally causes bodily injury to another which does not result in serious bodily injury." (Emphasis supplied).

In State v. Heumiller, 317 N.W.2d 126 (S.D.1982), we stated:

Under the law as established in this state, it is incumbent upon the trial court to instruct the jury, if requested, upon a lesser offense included in the offense charged if the evidence warrants a conviction upon the included offense. There are two tests that must be satisfied in determining whether the trial court should submit a lesser included offense instruction to the jury. The first is a legal test, the second is factual.

Id. at 132 (citation omitted) (quoting State v. Oien, 302 N.W.2d 807, 808 (S.D.1981)). The legal test is met if (1) the elements of the included offense are lesser in number than the elements of the greater offense; (2) the penalty for the included offense is less than that of the greater offense; and (3) the two offenses contain common elements so that the greater offense cannot be committed without also committing the lesser offense. Heumiller, 317 N.W.2d at 132; Oien, 302 N.W.2d at 809. In State v. Rich, 417 N.W.2d 868 (S.D.1988), this court described the factual test as follows:

Where a request has been made to charge the jury on a lesser-included offense, the duty of the trial judge is determined by the evidence. If evidence has been presented which would support a conviction of a lesser charge, refusal to give the requested instruction would be reversible error. (Citations omitted). There must be sufficient evidence, however, when read in the light most favorable to the defendant, which would justify a jury in concluding that the greater offense was not committed and that a lesser offense was, in fact, committed.

Id. at 870-71 (quoting Heumiller, 317 N.W.2d at 132).

In the present case, the trial court refused to grant the defendant's lesser included offense instruction because it failed to meet the factual test. We agree with this conclusion. We have previously stated that in order for the factual test to be met, there must be conflicting evidence with regard to the element of the greater offense that is not an element of the lesser. State v. Oien, 302 N.W.2d 807 (S.D.1981). In applying this standard to the present case, we would have to find conflicting evidence as to the degree of harm caused by the defendant in order to support the inclusion of a lesser included offense instruction. We believe that no such conflicting evidence exists. The record shows that defendant and Scholten had kicked Larson repeatedly in the chest and upper body area. As a result of being beaten about in this area, Larson sustained two grave injuries: a punctured lung and a heart condition known as cardiac tamponade. This evidence, even when considered in the light most favorable to the defendant, overwhelmingly supports the conclusion that the defendant caused serious bodily harm to Larson. We believe that there is no sufficient evidence which conflicts with or contradicts this conclusion. Therefore, we hold that the trial court did not err in refusing to grant the lesser included offense instruction requested by the defendant.

We next address the trial court's denial of the defendant's proposed instructions on self-defense. We note that the defendant concedes the instructions given by the trial court were correct in their assessment of the law of self-defense. The defendant, however, contends these instructions "did not go far enough" in determining the boundaries of self defense. Defendant asserts that the instructions should have expressly stated that the defendant, in defending himself, was acting "in the heat of passion." The defendant also asserts that the instructions should have stated that he was not required to "nicely gauge or measure" the force used in defending himself.

SDCL 22-18-4 provides, in pertinent part:

To use or attempt to offer to use force or violence upon or toward the person of another is not unlawful when committed either by the party about to be injured, or by the person in his aid or defense, in preventing or attempting to prevent an offense against his person ... provided the force or violence used is not more then sufficient to prevent such offense.

This statute is the law in South Dakota as it relates to the issue of self-defense. Jury instructions are adequate, if when considered as a whole, they correctly state the law and inform the jury. State v. White Mountain, 332 N.W.2d 726, 728 (S.D.1983); State v. Traversie, 387 N.W.2d 2, 8 (S.D.1986). As these instructions correctly stated the law of self-defense as it exists in our state, we must conclude that such instructions were adequate. Additionally, we believe that the legal principles set forth in the defendant's proposed instructions are generally embodied in the various instructions given by the trial court. It is not error for the trial court to refuse to give jury instructions which are already embodied in other given instructions. State v. Cook, 319 N.W.2d 809, 814 (S.D.1982). Finally, we believe that the defendant has failed to show the trial court's denial of his...