State v. Laible, 20334

• Decision Date: 12 May 1999
• Docket Number: No. 20334,20334
• Citation: 594 N.W.2d 328,1999 SD 58
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Benny LAIBLE, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 328

594 N.W.2d 328

1999 SD 58

STATE of South Dakota, Plaintiff and Appellee, v. Benny LAIBLE, Defendant and Appellant.

No. 20334.

Supreme Court of South Dakota.

Decided May 12, 1999.

Argued Oct. 19, 1998.

Mark Barnett, Attorney General, Constance K. Nilles, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Chris A. Nipe of Larson and Nipe, Mitchell, South Dakota, Attorney for defendant and appellant.

KONENKAMP, Justice

¶1 Defendant, Ben Laible, appeals a jury verdict finding him guilty but mentally ill of second degree murder. He asserts multiple evidentiary and constitutional errors in his trial. We affirm on all issues.

Facts

¶2 Kathleen Laible, a sixty-seven-year-old widow, lived on her farm near Howard, South Dakota. In August 1996, her adult son, Ben, moved back in with her. It was not the first time. Over the years he often stayed with her for extended periods. Although she loved all her children, she felt especially protective of her "Benny." He suffered from long-term mental illness, requiring frequent hospitalization for treatment. In between, he struggled to live and work on his own. His condition, variously diagnosed as bipolar disorder, schizoaffective disorder, and schizophrenia, required a regular dosage of antipsychotic medicine. As he had a history of noncompliance with taking his prescription, community health providers usually administered it in monthly injections. At home, especially when off his medication, he occasionally became abusive toward his mother. These episodes included profanity and, sometimes, physical violence. At the time of her death, Ben reportedly had not been regularly taking his medication.

¶3 On September 26, 1996, the Sheriff's Office in Miner County received a telephone call from one of Kathleen's out-of-state family members, asking for someone to check on her. Unable to reach her by telephone for two days, the family had grown concerned. Sheriff Tim Reisch drove out to her rural residence. When he arrived, he noticed there had been no travel on the driveway for at least a day. Wet from a heavy rain the day before, the road would have revealed vehicle tracks.

¶4 Reisch found Kathleen on her kitchen floor--shot to death. She was on her back, her left arm outstretched, her right arm across her chest, with an unmistakable shotgun wound to her head. Resting between her arms, with the barrel facing toward her, was a .12 gauge shotgun. To Reisch, the scene first suggested suicide. But on closer inspection he noticed the gun's partly open chamber and a spent shell on the floor nearby. Fragments of a telephone that once hung on the wall were scattered next to and underneath her body.

¶5 Ben, an immediate suspect, could not be found. A day later he was apprehended in Storm Lake, Iowa. He was indicted for first degree murder, and in the alternative, second degree murder. In the months that followed he told family members that his mother's death was an accident. He told a cellmate, on the other hand, "Well, if you had a mother like mine you'd shot her, too." Following a competency hearing, the trial court ruled Ben mentally competent to stand trial. He pleaded not guilty and not guilty by reason of insanity to both charges.

¶6 At trial, the state introduced remarks Kathleen had made to her daughters about her difficulties with Ben. She told them that Ben pushed and shoved her, knocked her down, put his hands around her neck, and called her crude and abusive names. The daughters personally witnessed some of Ben's name calling and abusive behavior. The trial court admitted these statements and events as relevant to prove a motive for murder and the hostile attitude toward his mother that Ben sometimes revealed. On cross-examination, these same witnesses admitted that Ben at times had been verbally abusive to them. The defense also brought out that Ben had struck his mother so hard once that it left a "huge bruise on her buttocks." Kathleen had reported to one of her daughters that Ben kept "a sawed-off shotgun." The gun found lying on her body had its stock sawed off. Ben himself told various people about his desire to have the farm and predicted he was "going to shoot [his mother] some day."

¶7 In the medical examiner's assessment, a single shot to the head killed Kathleen. He pronounced it a homicide. She died on September 24, two days before the Sheriff discovered her remains. Forensic analysis revealed that, at the time of firing, the gun was between eight inches and three feet from her face. And her head was approximately twenty-two inches from the ground, meaning she was on the floor at the time of the shooting. She had bruises on her arm signifying that during the attack she may have put her arms up to defend herself. A bruise on her shoulder, according to the medical examiner, could have been caused by a blow from a tubular object, like a gun barrel.

¶8 Before jury deliberations, the defense moved to have SDCL 22-16-7 declared unconstitutional for vagueness absent a clarifying jury instruction on the definition of "depraved mind." The trial court denied the motion. The jury returned a guilty but mentally ill verdict of second degree murder, pursuant to § 22-16-7. Ben was sentenced to life in prison.

¶9 He now appeals his conviction raising the following issues: (1) "Is the evidence insufficient to sustain a verdict of guilty of second degree murder (but mentally ill)?" (2) "Under the facts of this case, is SDCL 22-16-7 unconstitutional because of vagueness?" (3) "Is SDCL 22-16-7 unconstitutional because of the equal protection clause of the United States Constitution?" (4) "Was the defendant denied a fair trial because the trial court refused his proposed jury instructions relating to the charge of second degree murder?" (5) "Should testimony that the defendant called his mother horrible names have been admitted into evidence at trial?" For the sake of clarity and brevity, we combine issues 2, 3 and 4 in Part 2 below.

Standard of Review

¶10 When examining the sufficiency of the evidence on appeal, the question is whether the evidence will support a finding of guilt beyond a reasonable doubt. State v. Baker, 440 N.W.2d 284, 287 (S.D.1989) (citation omitted); see also State v. Big Head, 363 N.W.2d 556 (S.D.1985). We view the evidence, and its most favorable inferences, in support of the verdict. State v. Banks, 387 N.W.2d 19, 27 (S.D.1986) (citation omitted). We will not reexamine a jury's assessment on which witness bears more credibility or which expert's opinion carries greater weight. State v. Burtzlaff, 493 N.W.2d 1, 4-5 (S.D.1992) (citations omitted); Baker, 440 N.W.2d at 287 (citing State v. Swallow, 350 N.W.2d 606 (S.D.1984)). With constitutional challenges, we sustain legislative enactments absent clear and unmistakable unconstitutionality. Taylor Properties, Inc. v. Union County, 1998 SD 90, p 10, 583 N.W.2d 638, 640; State v. Morrison, 341 N.W.2d 635, 637 (S.D.1983); State v. Crelly, 313 N.W.2d 455, 456 (S.D.1981). A statute is presumed constitutional until the contrary is shown beyond a reasonable doubt. Baker, 440 N.W.2d at 287 (citing State v. Bonrud, 393 N.W.2d 785 (S.D.1986)(other citations omitted)). Questions of law are reviewed de novo. State v. Nguyen, 1997 SD 47, p 20, 563 N.W.2d 120, 124; see also In re Estate of O'Keefe, 1998 SD 92, p 7, 583 N.W.2d 138, 139 (citation omitted). Evidentiary rulings of the trial court are presumed correct and are reviewed under the abuse of discretion standard. Nguyen, 1997 SD 47, p 9, 563 N.W.2d at 122 (citations omitted).

Analysis and Decision

1. Sufficiency of the Evidence

¶11 In trial, the State sought a conviction on the more serious charge of first degree murder, but the jury returned a verdict on the lower alternative charge of second degree murder. Defendant contends the evidence was insufficient to sustain this verdict. The offense is defined in SDCL 22-16-7:

Homicide is murder in the second degree when perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.

Defendant believes that nothing presented at trial proved he acted with a depraved mind. He points to the lack of evidence to show he acted "without any premeditation to effect the death of any particular individual." The bulk of the State's evidence, defendant argues, was offered to prove premeditation by showing he had a motive to kill his mother (he wanted the farm), expressed the thought of killing her to others, told people his mother was "just about dead," engaged in a pattern of behavior that upset and tormented her in the last days of her life, arranged the crime scene so that it appeared she committed suicide, attempted to get rid of evidence (a blood spattered shirt) that linked him to Kathleen's death, and then fled South Dakota. These actions, he contends, show an apparent deliberative plan to kill, not the type of reckless behavior evincing a depraved mind. Therefore, defendant concludes, he is either guilty of first degree murder or manslaughter, or he is guilty of nothing, but he is not guilty of second degree murder.

¶12 In support of his argument, defendant relies on Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). In Godfrey, the United States Supreme Court examined a death sentence where the defendant shot and killed his wife and mother-in-law, each by a single shotgun blast to the head. 446 U.S. at 425, 100 S.Ct. at 1763. The question in the case was whether the Georgia Supreme Court had correctly applied a constitutional construction to the phrase in the death penalty statute that called for a finding beyond a reasonable doubt that the defendant's actions were "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." Id....