State v. Grimes, 11547

• Decision Date: 15 January 1976
• Docket Number: No. 11547,11547
• Citation: 237 N.W.2d 900,90 S.D. 43
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Roxanna K. GRIMES, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 900

237 N.W.2d 900

90 S.D. 43

STATE of South Dakota, Plaintiff and Respondent, v. Roxanna K. GRIMES, Defendant and Appellant.

No. 11547.

Supreme Court of South Dakota.

Jan. 15, 1976.

Robert L. O'Connor, Sioux Falls, Harry H. Smith, Sioux City, Iowa, for defendant and appellant.

William Janklow, Atty. Gen., Pierre, Earl R. Mettler, Asst. Atty. Gen., Fort Pierre, Gene Paul Kean, State's Atty., Sioux Falls, for plaintiff and respondent.

WINANS, Justice.

In connection with the arrest of her husband a wife, following a very convivial pre-Christmas party at a Sioux Falls hotel, shot and wounded one of the arresting officers. She herself was arrested, tried and found guilty of shooting with intent to kill. On appeal she questions the instruction to the jury with regard to the law on defending the person of another against attack, she objects to refusal of an instruction on simple assault and she alleges insufficient evidence to support the verdict.

Defendant, Roxanna K. Grimes, had spent more than six hours at the Sioux Falls Downtown Holiday Inn attending a Christmas party held for the benefit of labor union officials and their staffs on December 12, 1973. At that time she was a secretary employed at the Sioux Falls Labor Temple and her husband, Raymond Grimes, who was employed by Laborers' Local 352, had his offices there also. By all accounts there was a large amount of alcohol consumed by the guests that day and Defendant is estimated to have imbibed as few as five or six and as many as twenty-five drinks. Sometime after nine in the evening Mr. and Mrs. Grimes apparently discovered that the car keys for the vehicle Mrs. Grimes was to drive were missing and they went in search of an acquaintance who had borrowed them earlier in the day. Having left the hotel's first floor area where their private party was being held, they went up to the Sattellite Bar on the top floor. While on the top floor Mrs. Grimes behaved in too spirited a fashion and Officer James McKelvey of the Sioux Falls Police Department, who was employed in his off-hours as Holiday Inn security guard, approached them and informed them that the hotel had received several complaints about their language and their tone of voice and asked them to leave. He then escorted them down via the elevator to the lobby. On the way down Defendant pushed most of the elevator's buttons, causing it to stop at almost every floor. Once in the lobby Defendant became somewhat abusive, employing crude and vulgar language, and Officer McKelvey had a police car summoned. In response to the call Officer Larry Gulickson arrived and the two attempted to usher Mrs. Grimes out through the lobby's north door. Mr. Grimes reacted to this by lunging at Officer McKelvey from the rear. A struggle resulted and in short order McKelvey and Mr. Grimes had passed through two sets of double doors and landed on the sidewalk along the hotel's north parking field. Officer Gulickson was in the process of coming to the aid of McKelvey when he was twice shot by Mrs. Grimes who had somehow, still unexplained, obtained McKelvey's .38 calibre Smith and Wesson revolver which had been fastened in his shoulder holster. An Officer Flowers, who was visiting the hotel, came running out and Mrs. Grimes fired a third time, dropped the revolver, and ran. She was apprehended almost immediately on the hotel property.

Defendant was arrested and charged with disturbing the peace, resisting process and shooting with intent to kill. The complaint which this appeal concerns was dated December 13, 1973, and charges Defendant with 'shooting with intent to kill, in violation of the provisions of SDCL 22--18--9.' A preliminary hearing was held at Sioux Falls before the Honorable Robert Patterson on January 10, 1974, and Mrs. Grimes was bound over for trial in circuit court. She was arraigned on February 8, 1974, and jury trial was held at Sioux Falls before the Honorable Richard Braithwaite beginning July 30th. On August 2, 1974, the jury returned a verdict of guilty to the charge of shooting with intent to kill. On August 8th Judge Braithwaite sentenced Roxanna Grimes to the South Dakota Women's Correctional Facility for no less than three nor more than eight years.

On appeal Defendant raised four issues they deal with

a) the standard to be used in justifying a wife's conduct in defense of her husband;

b) the possibility of Instruction #19 on the standard being confusing and inconsistent;

c) the omission of a requested instruction on the lesser included offense of simple assault and

d) lack of sufficient evidence to support the finding of shooting with intent to kill Officer Gulickson.

We find the first, second and fourth objections raised above to be without merit. We also find that the trial court erred in refusing the defendant's request for an instruction on the lesser included offense of simple assault, but in view of the fact that Defendant Grimes suffered no harm from the error we affirm the decision of the lower court.

Our statute makes no distinction among these allowed to defend themselves or to come to the defense of another, and it assigns no exclusive right or privilege in the defense of another to spouses or other relatives nor does it forbid the defense of unrelated friends or total strangers. SDCL 22--18--4 sets out the law and applicable standard:

'To use or attempt or 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 any other person in his aid or defense, in preventing or attempting to prevent an offense against his person or any trespass or other unlawful interference with real or personal property in his lawful possession; Provided the force or violence used is not more than sufficient to prevent such offense.' (emphasis added)

Thus a wife, such as Roxanna Grimes in this case, is entitled to employ force or violence not more than sufficient to ward off an offense against the person of her husband should that offense or assault be unlawful. The same would hold true were she attempting to defend herself or a stranger. However, as with self-defense, so also with the defense of any other one is not justified in using force for protection unless she Reasonably believes that there is immediate danger of unlawful bodily harm. Instruction 19 in its first paragraph adequately set out this standard, apparently adapting it from the above statute directly or from our criminal Pattern Jury Instruction 2--14--9.

Instruction 19, after restating in its first paragraph the law set out in SDCL 22--18--4 adapting it for the defense of another, followed it with two paragraphs which read as follows:

'Where an assault is made with only the hands and fists but with such force and in such manner as is likely to produce great bodily injury, the spouse of the person attacked may lawfully resist the attack with whatever force is reasonably and apparently necessary.

'Where an assault with the fists or hands, or by means not likely to produce great bodily injury, is being made on a person, but without intent to kill or do great bodily harm, and if the assault is not likely to produce great bodily injury, and if the spouse of the person being attacked is not deceived as to the character of such an assault, she is not justified in using a deadly weapon in self-defense.'

Appellant contends that the...