State v. Gregg
| Decision Date | 22 April 1987 |
| Docket Number | No. 15222,15222 |
| Citation | 405 N.W.2d 49 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Paul R. GREGG, II, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Thomas Harmon, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.
Jana Miner, Nelson & Harding, Rapid City, for defendant and appellant.
SABERS, Justice (On reassignment).
Paul R. Gregg (Gregg) was convicted of first degree manslaughter in the stabbing death of Lyle Rostad (Rostad). We affirm.
Facts
On the evening of May 20, 1985, several people were playing softball in a Rapid City park. They saw Rostad approaching the ball field bent over, bleeding, and clutching his midsection. They also saw a man following Rostad at a short distance carrying a knife in his hand. Rostad was agitated about the man following him with the knife and made statements to the effect that the man had stabbed him. The softball players took bats and proceeded toward the man with the knife. The man disappeared into the park. Rostad was afraid to lie down for first aid for fear that "if I lay down ... [he] will get me again." Rostad was taken to the hospital by ambulance where he died of his injuries less than an hour after arrival.
Gregg was subsequently arrested and identified as the man with the knife. Gregg took the stand in his defense and claimed he did not commit the stabbing. Gregg claims that he and Rostad drank heavily all day long in the Rapid City park and were chased through the park by threatening individuals until, during the chase, exhausted and intoxicated, Gregg fell asleep. When he awoke he discovered that Rostad had been stabbed and that his (Gregg's) knife was out of its sheath, covered with blood, and lying on the ground next to Rostad. Gregg claims he was following Rostad with the knife to assist him against the chasers. It is undisputed that the folding knife he was carrying inflicted the fatal wound, and Gregg does not challenge the sufficiency of the evidence upon which his conviction was based.
Defendant's Claims
Gregg claims that the trial court erred in refusing to give a second degree manslaughter instruction and in denying his motion to suppress statements he made during custodial interrogation.
The jury was instructed only as to first degree manslaughter. Gregg's counsel requested an instruction on second degree manslaughter. The trial judge refused the instruction on the ground that there was insufficient evidence for the jury to conclude that if Gregg stabbed the victim it could have been second degree manslaughter.
After a long series of cases culminating in the 1985 case of State v. Waff 373 N.W.2d 18 (S.D.1985), the law on this point is finally settled. "If the evidence does not admit or support an instruction on a lesser degree of homicide, the trial court need not give it." State v. Woods, 374 N.W.2d 92, 95 (S.D.1985); Waff, 373 N.W.2d at 23. In order to make this determination, the trial court is required to analyze the situation through both a legal and factual test. The essence of the factual test is that there must be sufficient evidence, when read in the light most favorable to the defendant, which would justify the jury in concluding that the greater offense was not committed and that a lesser offense was in fact, committed. State v. Oien, 302 N.W.2d 807, 809 (S.D.1981).
Gregg was charged with first degree manslaughter under SDCL 22-16-15, which provides:
Homicide is manslaughter in the first degree when perpetrated:
....
(3) Without a design to effect death, but by means of a dangerous weapon;
....
SDCL 22-16-20 defines second degree manslaughter as:
Any reckless killing of one human being by ... another which, ... is neither murder nor manslaughter in the first degree, nor excusable nor justifiable homicide,....
The trial court asked defense counsel if there was anything she wanted to say in relation to her proposed instruction for lesser included second degree manslaughter.
Counsel: Your Honor, I believe the jury should be given the option of finding the lesser included due to the language of 'recklessness.' Also, the knowledge, or if the act happened, that it was not an act that would probably have led to the death of Mr. Rostad. It could also be interpreted as possibly leading to his death.
The Court: What evidence on behalf of defendant have you presented that could possibly be a second degree manslaughter?
Counsel: I don't believe we've presented any Your Honor.
The Court: Or which evidence [has] the State ... presented that could be construed or be his defenses that he was asleep and didn't do it?
Counsel: I understand, Your Honor. I am suggesting that it should be a lesser included because the jury could view the State's evidence as an act without intention, without any plan or purpose.
The Court: Has to be without a deadly weapon because he's charged with a homicide without intent to kill, with a deadly weapon, so he's not charged with the intent, just a deadly weapon.
Gregg argues to this court 1 that SDCL 23A-26-7 requires the trial court to instruct the jury on a lesser degree of a crime whenever a crime is divided into degrees. This argument is advanced whether or not the proposed instruction is supported by the evidence. SDCL 23A-26-7 provides:
Verdict as to degree of crime--Lowest degree found on reasonable doubt. Whenever a crime is distinguished by degrees, a jury, if it convicts an accused, shall find the degree of the crime of which he is guilty and include that finding in its verdict. When there is a reasonable ground of doubt as to which of two or more degrees an accused is guilty, he can be convicted of only the lowest degree.
This statute does not mandate instruction as to lesser degrees in all homicide cases according to Woods and Waff, supra. However, Gregg argues that Woods and Waff are distinguishable because those cases involved a murder charge and requested instructions on first and second degree manslaughter, which are not lesser degrees of the crime of murder.
On first reading, the statute appears to support these arguments. On closer examination it is clear that the first sentence of the statute simply requires the jury to find the degree of the crime of which the defendant is guilty and include that finding in its verdict. It does not require a jury instruction on same. The second sentence of the statute mandates that the accused can be convicted of only the lowest degree when there is a reasonable ground of doubt as to which of two or more degrees he is guilty. It is clear under the evidence in this case, that if Gregg did do it, he did it with a deadly weapon. Therefore, he failed to establish evidence of a reasonable ground of doubt as to a lesser crime and the instruction on a lesser degree was not required.
As stated in Woods,
If evidence has been presented which would support a conviction of a lesser charge, refusal to give the requested instruction would be reversible error.... There must be sufficient evidence, [ 2 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.
Gregg suggests another possible version of the stabbing which supposedly would have allowed a finding of second degree manslaughter. Gregg also states that "other scenarios" would support such a finding. The evidence in the record suggests none, and none of these theories are persuasive. Since it is undisputed that the wound was inflicted by a dangerous weapon, the only finding the evidence supports is first degree manslaughter as defined in SDCL 22-16-15(3). The trial court properly denied Gregg's request for a second degree manslaughter instruction.
Gregg argues that the trial court erred in denying his motion to suppress certain statements obtained from him during custodial interrogation after arrest. Gregg is vague in identifying what these allegedly damaging statements were. Throughout his questioning, Gregg steadfastly maintained he did not stab Rostad.
Gregg was given his Miranda rights. The State claims he validly waived his right to remain silent, whereas Gregg cites various circumstances under which the questioning took place as grounds for rendering his waiver ineffective. According to the interrogation transcript, Gregg was questioned from 9:56 p.m. to 11:44 p.m. on the night of the slaying. One of the officers conducting the interrogation testified that Gregg's questioning was the longest interrogation he had participated in during his fourteen year career as a police officer. A test taken shortly before the interrogation indicated Gregg's blood alcohol content was .24. Finally, the officer lied to Gregg by repeatedly stating that Rostad had identified Gregg as his assailant.
To determine whether the waiver of an accused's constitutional right against self-incrimination was made voluntarily, we must scrutinize the totality of the circumstances surrounding the interrogation. State v. Janis, 356 N.W.2d 916, 918 (S.D.1984); State v. Caffrey, 332 N.W.2d 269 (S.D.1983); State v. Cowell, 288 N.W.2d 322 (S.D.1980); Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197, 212 (1979). The State has the burden of proving beyond a reasonable doubt that a confession or incriminating statement was voluntarily made by the accused before the same may be introduced into evidence. Janis, 356 N.W.2d at 918. If the trial court finds the confession or incriminating statement was voluntary beyond a reasonable doubt, such a finding is binding upon this court unless it is clearly erroneous. Id. at 919; Caffrey, 332 N.W.2d at 271; Cowell, 288 N.W.2d at 324. In reviewing the trial court's finding on voluntariness, we consider the evidence in the light...
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