State v. Henjum
| Decision Date | 19 October 1995 |
| Docket Number | No. 19078,19078 |
| Citation | 1996 SD 7,542 N.W.2d 760 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Lawrence James HENJUM, Defendant and Appellant. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Mark Barnett, Attorney General, John M. Strohman, Assistant Attorney General Attorneys, Pierre, for plaintiff and appellee.
Donna L. Bucher, of Tinan, Smith & Bucher, Mitchell, for defendant and appellant.
¶1 Defendant appeals his forty-five year sentence for manslaughter in the first degree and the order for restitution. We affirm.
¶2 Lawrence James Henjum was charged with murder in the first degree, murder in the second degree and manslaughter in the first degree after he shot and killed Mark Anthony Nelson on February 27, 1994. Henjum and Nelson were friends and roommates residing in a trailer home they rented in Mitchell, South Dakota. After a party in which everyone was consuming alcohol, Henjum returned to the trailer and went to bed. Later Nelson, Billie Worm, Adrienne Pina and Roxy Tines arrived. They awakened Henjum by jumping on his bed. Henjum began kissing Worm. Everyone left the bedroom, except for Henjum and Worm, and they proceeded to have sexual relations. Henjum was afraid his girl friend would find out about this, so he made Worm promise not to tell anyone they had been together. At approximately 5:00 A.M., Pina and Nelson again entered Henjum's bedroom. Henjum got some beer and he, Nelson, Worm and Pina sat on his bed. Henjum went to the bathroom and when he returned, he walked over to his dresser and rested his arm against it. Without saying anything, he picked up his 7-millimeter rifle. He moved the safety button and lifted the bolt, apparently to see if it was loaded. Worm and Pina screamed at Henjum telling him to put the gun down and warning him that it was loaded. Without responding, Henjum turned the rifle toward Nelson and fired it. Henjum later admitted he always kept his guns loaded. After shooting Nelson, Henjum walked down a hallway, set the gun down, stepped outside, got into his car and drove away. Henjum was apprehended approximately six weeks later in Texas.
¶3 Henjum pleaded guilty to manslaughter in the first degree pursuant to a plea agreement. The circuit court reviewed a lengthy pre-sentence investigation report which contained a psychological examination, letters of recommendation from family members and a nine-page letter of explanation from Henjum. He claimed the shooting was accidental. After hearing extensive testimony before sentencing the court concluded the shooting was not an accident. Henjum was quite familiar with the weapon and all his behavior demonstrated an intentional act. Furthermore, testing showed the rifle could not have misfired: it would not discharge unless the safety was off, a round was bolted down, and the trigger was pulled. Henjum was sentenced to forty-five years in the South Dakota State Penitentiary. The court ordered him to pay restitution to the victim's parents for funeral and counseling expenses. Henjum was also ordered to pay for counseling for those persons who witnessed the shooting, but the court set no specific amount of counseling costs to be paid.
¶4 Henjum later moved the court to reconsider his sentence, but was denied. He appeals, raising the following issues:
I. Whether the sentence constitutes cruel and unusual punishment.
II. Whether the trial court erred in granting restitution.
¶6 We have previously set forth the analysis and standard of review to be applied when reviewing whether a sentence constitutes cruel and unusual punishment. "On appeal, we first determine whether the sentence 'shocks the conscience' or is so disproportionate to the crime that it activates the Eighth Amendment 'within and without jurisdiction' proportionality tests." Bult v. Leapley, 507 N.W.2d 325, 327 (S.D.1993)(quoting State v. Lykken, 484 N.W.2d 869, 879 (S.D.1992)). "It is settled law in this state that absent a sentence which is so excessive in duration that it shocks the conscience of the court, a sentence that is within statutory limits is not reviewable on appeal." State v. Kaiser, 526 N.W.2d 722, 726 (S.D.1995); State v. Pack, 516 N.W.2d 665, 667 (S.D.1994); Bult, 507 N.W.2d at 327; Lykken, 484 N.W.2d at 879.
¶7 The two-fold test to determine whether a sentence is so constitutionally offensive as to shock the conscience is:
First, is the punishment so excessive or so cruel, "as to meet the disapproval and condemnation of the conscience and reason of [humankind]." And second, whether the punishment is so excessive or so cruel as to shock the collective conscience of this court.
Kaiser, 526 N.W.2d at 726; Bult, 507 N.W.2d at 327; State v. Shilvock-Havird, 472 N.W.2d 773, 779 (S.D.1991); State v. Reed, 451 N.W.2d 409, 411 (S.D.1990); State v. Phipps, 318 N.W.2d 128, 132 (S.D.1982).
The first prong of the test, whether a sentence shocks the conscience of humankind, should be determined by the "[p]ublic intent [as] reflected in the legislative acts defining the permissible punishment for specific crimes." Pack, 516 N.W.2d at 668 (quoting Phipps, 318 N.W.2d at 132). Our Legislature determined first degree manslaughter should be punished as a Class 1 felony, which may carry a sentence of up to life imprisonment under SDCL 22-6-1. Such broad sentencing authority suggests that a term less than a life sentence would be unlikely to shock the conscience of humankind.
¶9 When determining whether a sentence shocks the collective conscience of this Court, we consider various factors. An appropriate sentence requires the court to acquire a thorough acquaintance with the character and history of the person before it. State v. Ferguson, 519 N.W.2d 50, 54 (S.D.1994); Pack, 516 N.W.2d at 667. The court should examine a defendant's "general moral character, mentality, habits, social environment, tendencies, age, aversion or inclination to commit crime, life, family, occupation, and previous criminal record." Ferguson, 519 N.W.2d at 54; Pack, 516 N.W.2d at 668; State v. Degen, 396 N.W.2d 759, 760 (S.D.1986). Henjum was gainfully employed and his previous criminal record, while not clean, was limited to nothing more serious than Class 1 misdemeanors. Henjum was found to have above average intelligence. Yet he fled the scene of the crime and was at large for approximately six weeks. Not once in his numerous phone calls to his girl friend and other individuals while he was on the run did he ever say Nelson's death was accidental, only that he was sorry it had happened. The sentencing court found his habit of always keeping guns loaded especially troubling considering his frequent alcohol use. The night before he killed Nelson, after an argument with Travis Hohns, Henjum bragged to a friend he could kill Hohns and get away with it. Even more troubling, Henjum told his friend he could kill Nelson and "live with it."
¶10 Henjum pled guilty to first degree manslaughter in exchange for a dismissal of more serious charges. He knew the State was seeking a sentence of fifty years when he made this plea agreement. In sum, he reaped the "benefits of his bargain." See Ferguson, 519 N.W.2d at 54.
He does not attack the plea bargain. He does not even suggest that he be permitted to withdraw his plea and stand trial on all three counts. He does not complain that the bargain was tainted in any manner; that he was incompetent, under duress, or counseled inadequately. He simply wants all the fruits of his bargain without compliance on his part. ... Lacking any such showing, he cannot be heard to complain that the trial court abused its discretion when it imposed the maximum sentence which appellant himself had freely and voluntarily agreed to.
State v. Left Hand Bull, 288 N.W.2d 83, 84 (S.D.1980) (emphasis added)(footnote omitted). "Where the court is asked to review a punishment within the statutory limits, the question is whether the trial court abused its discretion." Kaiser, 526 N.W.2d at 726; Reed, 451 N.W.2d at 411. In reviewing the record and the sentencing court's findings we conclude Henjum's sentence transgresses none of the standards necessary to establish it as cruel and unusual. Thus we need not reach the proportionality issue. Kaiser, 526 N.W.2d at 726; State v. Castaneira, 502 N.W.2d 112, 115 (S.D.1993).
¶12 Henjum made no objection...
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