State v. Kane

• Decision Date: 31 May 1978
• Docket Number: 11911,Nos. 11910,s. 11910
• Citation: 266 N.W.2d 552
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Ken KANE and Curtis Bald Eagle, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 552

266 N.W.2d 552

STATE of South Dakota, Plaintiff and Respondent, v. Ken KANE and Curtis Bald Eagle, Defendants and Appellants.

Nos. 11910, 11911.

Supreme Court of South Dakota.

Argued Oct. 6, 1977.

Decided May 31, 1978.

Peter H. Lieberman, Asst. Atty. Gen., Pierre, William J. Janklow, Atty. Gen., Pierre, on brief, for plaintiff and respondent.

James D. Leach, Frank D. Katz, Elisabeth L. Brodyaga, San Jose, Cal., John N. Gridley, III, Sioux Falls, for defendants and appellants.

MORGAN, Justice.

This is a consolidated appeal by Ken Kane and Curtis Bald Eagle after a jury verdict finding them guilty of riot to obstruct justice arising from an incident at the Minnehaha County Courthouse in Sioux Falls, South Dakota, on April 30, 1974. We affirm.

On April 30, 1974, at the trial of State v. Bad Heart Bull, et al., a number of spectators did not stand for Judge Bottum when he entered the courtroom. This being the second time this had occurred in the course of the trial, Judge Bottum ordered all spectators cleared from the courtroom. However a group of Indian spectators refused to leave. After approximately two hours of discussion the Sioux Falls Tactical Squad entered the courtroom to remove them. At that time a struggle occurred in which a chair was thrown out a window purportedly signaling those below to begin throwing rocks and debris at the courthouse, which they did, breaking glass windows and doors across the entire front of the courthouse.

The conduct of the various persons involved in the incident and their motives for their conduct were the subject of much dispute at trial.

The state witness, Kenneth Dahl, testified that the day before the disturbance two meetings of Indian people were held. At these meetings the people were told not to stand, that the spectators needed to consist of fifteen strong warriors prepared to do battle with the tactical squad and that a signal would be given from the inside to those people on the outside when they were to bombard the courthouse with debris. The three defense witnesses contended that at these meetings no violence was planned. The reason they were not standing for Judge Bottum was to protest the court's and the judge's racist attitude, and the alleged purpose of only sending men was the fear of possible violence by the tactical squad.

A tactical squad member testified that a person who must have been appellant Curtis Bald Eagle struck him from behind and then jumped on the back of another tactical squad member. Another tactical squad member testified that appellant Ken Kane "power dived" at him from the top of a railing. Appellant Curtis Bald Eagle disputed this and testified in his own defense that when he saw a tactical squad member strike Russell Means he started to Means' defense but was grabbed and pulled over the side of the bar before he could reach him.

Appellants contend that SDCL 22-10-4, the statute that the appellants were convicted under, is unconstitutional as an infringement on their First Amendment rights of free speech and association. Both of these provisions have been part of our riot statutes since 1887. SDCL 22-10-1 defines riot, and SDCL 22-10-4 specifies that when the purpose of the riotous assembly is to resist the execution of any statute of this state or of the United States or to obstruct any public officer of this state or of the United States in the performance of any legal duty, the prison sentence shall be a maximum of ten years and a minimum of two years. We have recently passed on the constitutionality of SDCL 22-10-1 and SDCL 22-10-5 and upheld those statutes. ¹ We find our holding in that case to still be persuasive.

Appellants urge that in this case SDCL 22-10-4 is vague and overbroad and thereby constitutionally infirm in that the term "riotous assembly" is vague and wholly undefined. We hold that the term "riotous assembly" is merely descriptive of and refers to the three or more persons acting together, as described in SDCL 22-10-1. As we have noted, the various provisions were drawn as a package of riot statutes. Why the legislature did not merely use the word "riot" as it did in most of the other complementary statutes enacted at the time we do not know, nor need we inquire. Perhaps the statutes could be more precise, but imperfect draftsmanship does not render the statute unconstitutional:

The root of the vagueness doctrine is a rough idea of fairness. It is not a principle design to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide a fair warning that certain kinds of conduct are prohibited. Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972).

Reading the riot statutes together the answer that we have arrived at is obvious. The case of Bad Heart Bull addressed the overbreadth criticism in stating:

The gravamen of the crime of riot in South Dakota is violence or the immediate threat thereof. As such, it relates to and prohibits certain defined conduct rather than forms of expression. Laws of this nature are needed and necessary to preserve good order and to protect all persons and all property from the violence of a few. They do not violate the constitutional rights of free expression and assembly as those rights end when violence begins. State v. Bad Heart Bull, S.D., 257 N.W.2d 715, 722 (1977).

This is clearly distinguishable from the teaching and advocacy provisions of the anti-riot act discussed in U. S. v. Dellinger, 472 F.2d 340, 359 (7th Cir. 1973) upon which the appellants so heavily rely. Dellinger states:

A realistic approach compels application of a first amendment test to a statute which punishes activity leading up to and furthering a riot, * * * (emphasis added)

and further

* * * a riot may well erupt out of an originally peaceful demonstration which many participants intended to maintain as such. Each participant is entitled to a careful distinction between responsibility for the lawful and constitutionally protected demonstration and responsibility for the activity for which the legislative body validly prescribes a penalty.

The Dellinger opinion goes on to provide that many of the anti-riot act provisions (incite, organize, promote, encourage) relate to persons causing the possibility that others will riot and makes those persons liable because of their causal rather than active role. This is clearly not contemplated under the South Dakota statutes discussed herein. Whether it would come into play in a case involving a violation of SDCL 22-10-6, encouraging or soliciting riot, is not before us.

During the direct examination of Gene Paul Kean by the state, Mr. Kean testified to a statement made to him by Vernon Bellecourt. Appellant objected that the statement was hearsay. After an offer of proof by the state, and some discussion in chambers, the trial court indicated that it would admit the testimony under the co-conspirator exception to the hearsay rule. Defense counsel then objected that the statement was not admissible under that exception because it was not "in furtherance of the conspiracy."

The co-conspirator exception states that when there is substantial evidence of a conspiracy, whether the offense charged is a conspiracy or not, everything said by any conspirator during the existence of the conspiracy and in execution or furtherance of the common purpose is deemed to have been said in behalf of all parties to the conspiracy. A statement by a co-conspirator of a party during the course and in furtherance of the conspiracy is thus admissible against the party as an admission. This court so held in State v. Violet, 57 S.D. 648, 234 N.W. 623 (1931).

By order dated March 28, 1978, effective July 1, 1978, this court adopted verbatim the Federal Rule 801 which in pertinent part provides:

(d) A statement is not hearsay if:

(2) The statement is offered against a party and is

(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

Thus, three conditions must be met for this rule to be applicable. First, there must be substantial evidence of a conspiracy; second, a declaration must have been made while a conspiracy was continuing; and third, the statement must have constituted a step in furtherance of the venture.

On appeal, appellants attack the court's ruling on all three grounds. First, there was no evidence to link either of the appellants to the formation of the conspiracy; second, the statement had nothing to do with furthering the conspiracy; and third, that the statement was not made during the pendency of the conspiracy. However, on the trial level, the only grounds stated to the trial court for the objection to the admission under the exception were that the statement was not in furtherance of the conspiracy. We therefore hold that this is the only question properly raised on appeal. ²

Since our rule, both as stated in Violet, supra, and as now adopted, conforms to the federal rule, we can look to the federal decisions for guidance in determining whether the questioned testimony meets the "in furtherance" requirement.

The United States Supreme Court in Krulewitch v. U. S., 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949) noted: "This prerequisite to admissibility, that hearsay statements by some conspirators to be admissible against others must be made in furtherance of the conspiracy charged, has been scrupulously observed by federal courts." The Senate Judiciary Committee specifically referred to Krulewitch with approval when considering proposed Rule 801. ³

Professor Weinstein ⁴ theorizes that the committee's retention of the "in furtherance" requirement was motivated by a desire to strike a balance between the great need for conspirators' statements in combating undesirable criminal activity which is inherently secretive and difficult...