State v. Honomichl

• Decision Date: 29 July 1987
• Docket Number: No. 15424,15424
• Citation: 410 N.W.2d 544
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Michael HONOMICHL, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 544

410 N.W.2d 544

STATE of South Dakota, Plaintiff and Appellee, v. Michael HONOMICHL, Defendant and Appellant.

No. 15424.

Supreme Court of South Dakota.

Argued March 24, 1987.

Decided July 29, 1987.

Robert Mayer, Asst. Atty. Gen., Roger A. Tellinghuisen, on brief, Atty. Gen., Pierre, for plaintiff and appellee.

James R. Haar, Tripp, for defendant and appellant.

WUEST, Chief Justice.

Defendant, Michael Honomichl, appeals his conviction of manslaughter in the first degree. We affirm.

On the evening of February 28, 1986, Randy Caldwell (Caldwell), was beaten to death outside a liquor store in Wagner, South Dakota. Witnesses saw three men armed with clubs attack Caldwell. Death resulted from head injuries received in the attack.

On March 5, 1986, defendant and co-defendants James Weddell (Weddell) and Enos Weston (Weston) were indicted for murder in the second degree and manslaughter in the first degree. Prior to trial defendant filed a motion to sever his case from that of his two co-defendants. Defendant asserted that it was possible each co-defendant would implicate the other at a joint trial and severance was necessary to avoid prejudice to defendant. The trial court denied defendant's motion.

Trial commenced on April 29, 1986, at which defendant again renewed his motion for severance. The motion was denied. At trial, both defendant and Weston testified that they did not strike Caldwell but that Weddell did. Weddell, however, testified that both defendant and Weston struck Caldwell with clubs. The trial court granted Weston's motion for judgment of acquittal before the case was decided, but both Weddell and the defendant were found guilty of manslaughter in the first degree. Defendant was sentenced to eighty years in the South Dakota State Penitentiary.

Defendant argues denial of severance prejudiced his right to a fair trial. Defendant claims the trial court erred in denying his pretrial severance motion because he informed the court he believed the co-defendants might incriminate each other and thereby present "antagonistic" defenses. In denying defendant's motion the trial court stated it did not believe it possessed persuasive evidentiary statements certain to appear at trial that would justify severance. Defendant renewed his motion for severance when the co-defendants began incriminating each other at trial as predicted, but the trial court denied defendant's renewed motion for severance. The court pointed out "we are now deeply into this trial," and the court further indicated it was still not convinced that severance was necessary. Defendant argues denial of his severance motions prejudiced his right to a fair trial.

Severance will be allowed upon a showing of real prejudice to a defendant. Courts have a continuing duty at all stages of the trial to grant a severance if prejudice does appear. Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960); United States v. Boyd, 610 F.2d 521 (8th Cir.1979). The motion to sever is addressed to the sound discretion of the trial court, and a denial of severance is not grounds for reversal unless clear prejudice and an abuse of discretion are shown. State v. Andrews, 393 N.W.2d 76 (S.D.1986); State v. Maves, 358 N.W.2d 805 (S.D.1984); State v. No Heart, 353 N.W.2d 43 (S.D.1984). Where each convicted defendant is shown to have participated in a common criminal act, more must be shown than that a severance might have afforded an increased chance of acquittal. A defendant must demonstrate affirmatively that the joint trial prejudiced the possibility of a fair trial. Andrews, supra; No Heart, supra.

When co-defendants have antagonistic defenses, the courts have applied a specific test to determine whether the trial was unfair.

While there are situations in which inconsistent defenses may support a motion for severance, the doctrine is a limited one.... [T]he governing standard requires the moving defendant to show that "the defendants present conflicting and irreconcilable defenses and there is a danger that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty."

United States v. Haldeman, 181 U.S.App.D.C. 245, 559 F.2d 31, 71 (1976) (banc) (citation omitted) (Emphasis added), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). See also, United States v. DeLuna, 763 F.2d 897 (8th Cir.1985); United States v. Romanello, 726 F.2d 173 (5th Cir.1984), reh. den. 732 F.2d 941; United States v. Russell, 703 F.2d 1243 (11th Cir.1983) reh. den. 708 F.2d 734; United States v. Puckett, 692 F.2d 663 (10th Cir.1982), cert. den. 459 U.S. 1091, 103 S.Ct. 579, 74 L.Ed.2d 939 and cert. den. 460 U.S. 1024, 103 S.Ct. 1276, 75 L.Ed.2d 497; United States v. Talavera, 668 F.2d 625 (1st Cir.1982) cert. den. 456 U.S. 978, 102 S.Ct. 2245, 72 L.Ed.2d 853; United States v. Berkowitz, 662 F.2d 1127 (5th Cir.1981); Boyd, supra; United States v. McPartlin, 595 F.2d 1321 (7th Cir.1979) cert. den. 444 U.S. 833, 100 S.Ct. 65, 62 L.Ed.2d 43.

"[T]he mere presence of hostility among defendants or the desire of one to exculpate himself [or herself] by inculpating another have both been held to be insufficient grounds to require separate trials." United States v. Barber, 442 F.2d 517, 530 (3rd Cir), cert. denied, 404 U.S. 958, 92 S.Ct. 327, 30 L.Ed.2d 275 (1971). "Thus antagonistic defenses do not require the granting of severance even when one defendant takes the stand and blames his [or her] co-defendant for the crime." McPartlin, 595 F.2d at 1334. See also, DeLuna, supra; Boyd, supra.

In this case the defenses were not irreconcilable. The state's expert witness testified that Caldwell died from multiple blows to the head. Numerous witnesses testified that both Weddell and defendant struck Caldwell with clubs. This is not the case where only one blow caused death and each defendant accuses the other of the fatal blow.

The testimony by the State's expert witness and numerous eyewitnesses permitted the jury to find both defendants guilty without having to infer both were guilty based merely on the conflict alone. We therefore hold denial of defendant's motions for severance was not clearly prejudicial or an abuse of discretion.

Defendant also contends that, after Enos Weston was acquitted as a matter of law, the jury could have reasonably inferred that the remaining co-defendants were guilty. In that regard, he argues, the joint trial further prejudiced his trial.

However, immediately following Weston's dismissal, the court explained to the jury:

Ladies and gentlemen, as you can see, Mr. Weston is no longer in the courtroom, nor is his attorney. And the jury is now advised as a matter of law the charges against Enos Weston have been dismissed. This means that the guilt or innocence of Enos Weston are no longer before this jury. You must be careful not to infer or speculate as to the guilt or innocence of the remaining defendants by reason of the action just taken by this court. I will, of course, instruct you again concerning this at the close of the trial.

True to its word, the court gave the following instructions to the jury:

The jury is instructed that the issue of the guilt or innocence of the Defendant Enos Weston, as to Counts 1 and 2, or any included offense, is no longer before you.

You must not consider such action by the court for any purpose.

You must not infer or speculate therefrom as to the guilt or innocence of any of the remaining defendants, namely, James R. Weddell, or Michael Honomichl, as to Counts 1 and 2 or any included offense.

Further, you must not conclude from the fact that this instruction has been given that the court is expressing any opinion as to the facts or as to the guilt or innocence of said defendants.

....

You should give separate consideration and render separate verdict with respect to each defendant as to each count. Each defendant is entitled to have his guilt or innocence as to each of the crimes charged determined from his own conduct and from the evidence which applies to him, as if he were tried alone.

The guilt or innocence of any one defendant of any of the crimes charged should not control or influence your verdicts respecting the other defendant. You may find one or more of the defendants guilty or not guilty. At any time during your deliberations you may return your verdict of guilty or not guilty with respect to any defendant on any count.

(Jury instructions 1 and 33)

Thus the court instructed the jury to consider the evidence individually against each defendant as though each were being tried alone, and such language is a sufficient cautionary instruction which guards against prejudice to an individual defendant in a joint trial. Maves, supra. We presume the jury followed the limiting instructions. Maves, supra; No Heart, supra. There is no evidence the jury was unable to follow admonitory instructions and keep, collate, and appraise evidence relevant to each defendant. Andrews, supra.

Defendant's second argument is that the trial court, by restricting defense counsel's cross-examination designed to show bias on the part of a prosecution witness, violated defendant's confrontation rights under the Sixth and Fourteenth Amendments to the United States Constitution. Before trial, the State moved that defense counsel not be permitted to question Troy Greger concerning an incident that occurred shortly after the victim had been beaten. Troy Greger was a close friend of the victim, and after the attack on his friend Greger proceeded to defendant's home and allegedly fired shots at the house with a firearm. Greger was facing a charge of assault with a deadly weapon for that incident, and the State explained to the trial court that Greger could either elect not to testify for the State or else take the Fifth Amendment if questioned about the later incident. Defense counsel wanted to develop the later incident on cross-examination to show Greger's bias...