State v. Giroux
| Decision Date | 18 February 2004 |
| Docket Number | No. 22665.,22665. |
| Citation | 676 N.W.2d 139,2004 SD 24 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. George GIROUX, Jr., Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Lawrence E. Long, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
Mitchell D. Johnson, Rapid City, South Dakota, Attorney for defendant and appellant.
[¶ 1.] George Giroux, Jr. was charged with second degree manslaughter, SDCL 22-16-20 and aggravated assault, SDCL 22-18-1.1(4). A jury found Giroux guilty of aggravated assault but acquitted him of manslaughter. Giroux was sentenced to fifteen years in the penitentiary, seven years suspended. Giroux appeals his conviction. We reverse.
[¶ 2.] The charges against Giroux stem from an incident in which Giroux hit the victim, Martin Garza, in the face. Garza fell backwards hitting his head on concrete. Garza was found dead in his home the next day. An autopsy, performed on Garza, determined that the cause of death was a blunt force to his head. The State alleges that Giroux's blow to Garza's face caused his death. Giroux claims that Garza's death was caused by Garza passing out and hitting his head at home subsequent to the blow from Giroux.
[¶ 3.] The evidence at trial was that shortly after falling, Garza stumbled home and knocked on the door to wake his mother to let him in the residence. His mother testified that she did not see any signs of distress and he did not mention anything to her. She said that he got a Coke and went to his room. Later that night she saw him lying on his bed and believed he was sleeping. The following morning, his mother found him dead, lying face down on the floor next to his bed.
1. Whether the trial court erred in refusing to instruct the jury on a lesser included offense of simple assault.
2. Whether aggravated assault merged into second degree manslaughter and whether prosecuting both charges subjected the defendant to double jeopardy.
[¶ 4.] The issues raised in this appeal are questions of law, which we review de novo. State v. Chavez, 2002 SD 84, ¶ 10, 649 N.W.2d 586, 591.
[¶ 5.] Giroux claims the trial court erred by refusing his proposed jury instruction for simple assault. In State v. Hoadley, this Court reviewed its past tests for determining if a lesser-included-offense instruction should be given. 2002 SD 109, ¶¶ 58-66, 651 N.W.2d 249, 262-65. It was determined that some of the tests used prior to Hoadley were "confusing and problematic" and should be abandoned. Id. at ¶ 58, 651 N.W.2d at 262. We ruled that "only the `elements' test (i.e., legal branch of the legal/factual test)" should be used "to decide whether the lesser offense is included in the greater charged offense." Id. ¶ 61. The elements test is "(1) all of the elements of the included offense are fewer in number than the elements of the greater offense; (2) the penalty for the included lesser offense must be less than that of the greater offense; and (3) both offenses must contain common elements so that the greater offense cannot be committed without also committing the lesser offense." Id. (citing State v. Black, 494 N.W.2d 377, 379 (S.D.1993) (Black I)). Justice Konenkamp, writing for the majority on this issue in Hoadley, set forth when a lesser-included-offense instruction should be given:
A lesser-included-offense instruction should be given when (1) the elements test is met and (2) some evidence in support of such instructions exists in the record.
Id. ¶ 64. Although in Hoadley the Court affirmed the trial court's refusal to give the lesser-included-offense instructions because of lack of some evidence, the Court did determine that the offenses of Second Degree Murder and Manslaughter met the elements test as lesser-included-offenses of First Degree Murder.
[¶ 6.] In adopting the elements test, we referred to the analysis of Judge Tucker in his law review article in which he urged this Court to abandon our prior tests in favor of the elements test. Tim Dallas Tucker, State v. Black: Confusion in South Dakotas Determination of Lesser Included Offenses in Homicide Cases, 41 SDLREV 465, 501 (1996). Judge Tucker's analysis recognized that under South Dakota's current statutory scheme the elements test is "difficult to use." Id. at 496. He points out, however, that "it is workable if different intent or state of mind elements are accepted as lesser elements." Id. As precedent for this approach, Tucker cites our prior holding in State v. Tammi, 520 N.W.2d 619 (S.D.1994). In Tammi, this Court considered careless driving as a lesser-included-offense of reckless driving because reckless involves a "more culpable degree of negligence." Id. at 623. Tucker opines that this Court could have used the same analysis in State v. Marshall, 495 N.W.2d 87 (S.D.1993) "without the strained, hyper-technical reasoning of the court." Tucker at 497. In Marshall, this Court reasoned that simple assault was not a lesser-included-offense of aggravated assault because aggravated assault required an element of "knowingly" causing injury while simple assault required "intentionally" causing injury. 495 N.W.2d at 88-89. Since different words were used, we concluded they have different meanings and therefore did not meet the legal test. Id. at 89. A similar reasoning was applied in State v. Latham, 519 N.W.2d 68 (S.D.1994). In Latham, this Court held that simple assault was not a lesser-included-offense of aggravated assault. The aggravated assault charge required knowingly causing bodily injury with a dangerous weapon. Latham had requested lesser-included-offense instructions of recklessly causing bodily injury and negligently causing bodily injury to another with a dangerous weapon. Again we found that the use of different words precluded the lesser-offense instructions. We said, "If one `knowingly caused' something, they did not `negligently cause' or `recklessly cause' it." Id. at 72.
[¶ 7.] More recently in Hoadley, we applied the elements test and concluded that Murder in the Second Degree and Manslaughter were lesser-included-offenses of First Degree Murder. The lesser charges, although using different words, were still considered to have met the elements test.1 2002 SD at ¶ 64, 651 N.W.2d at 264.
[¶ 8.] By adopting the elements test in Hoadley, we moved away from the analysis used in Latham and Marshall. The use of different words does not necessarily eliminate a crime as a lesser-included-offense. Our analysis, instead, uses the degree of culpability analysis operating in Tammi.2 Further support for this approach is found in the South Dakota criminal statute SDCL 22-1-2 which defines the types of mens rea or criminal intent. Included in the definitions are the words "intent" and "reckless." The statutory definitions are as follows:
Terms used in this title mean:
SDCL 22-1-2.
[¶ 9.] Of particular importance is subsection (1)(f) of the statute, for it is in this subsection that the legislature identifies how each of the degrees of intent relates to the others. It sets forth how the greater degrees of intent include the lesser degrees. The subsection provides:
(f) If the section defining an offense provides that negligence suffices to establish an element thereof, then recklessness, knowledge, intent or malice also constitutes sufficient culpability for such element. If recklessness suffices to establish an element of the offense, then knowledge, intent or malice also constitutes sufficient culpability for such element. If knowledge suffices to establish an element of an offense, then intent or malice also constitutes sufficient culpability for such element. If intent suffices to establish an element of an offense, then malice also constitutes sufficient culpability for such element[.]
SDCL 22-1-2(1)(f) (emphasis added). The subsection outlines the hierarchy of criminal intent. The order from least culpable to most is as follows: negligent, reckless, knowing, intent and malice. Malice includes intent, intent includes knowingly, knowingly includes reckless, and reckless includes negligence. It is a logical conclusion that the legislature intended to define the various types of intent and to set forth...
To continue reading
Request your trial
-
In re Discipline of Janklow
...an intentional act. The distinction is significant. "Reckless is a lesser degree of culpability or mental state than intentional." State v. Giroux, 2004 SD 24, ¶ 14, 676 N.W.2d 139, 144. This Court has previously identified several categories of attorney conduct which warrant disbarment. Di......
-
State v. Nguyen
...the penalties for the offenses are the same. 5. See, e.g., State v. Deem, 40 Ohio St.3d 205, 209, 533 N.E.2d 294 (1988); State v. Giroux, 676 N.W.2d 139, 141 (S.D.2004). Ms. Nguyen also cites People v. Rush, 16 Cal.App.4th 20, 23, 20 Cal.Rptr.2d 15 (1993), overruled on other grounds by Peop......
-
State v. Williams
...should be given when (1) the elements test is met and (2) some evidence in support of such instructions exists in the record." State v. Giroux, 2004 SD 24, ¶ 676 N.W.2d 139, 141 (quoting State v. Hoadley, 2002 SD 109, ¶ 64, 651 N.W.2d 249, 264). "If evidence has been presented which would s......
-
State v. Bausch, #27526
...1 through 4.2 Bausch contends that failure to do so resulted in his being "multiply punished for essentially the same offense," State v. Giroux, 2004 S.D. 24, ¶ 17, 676 N.W.2d 139, 145, in violation of the Fifth Amendment to the United States Constitution'sprohibition against double jeopard......