State v. Layton, s. 13845

• Court: Supreme Court of South Dakota
• Writing for the Court: HENDERSON
• Citation: 337 N.W.2d 809
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Stephen LAYTON (# 13845) and Ronald Dennis (# 13850), Defendants and Appellants.
• Docket Number: 13850,Nos. 13845,s. 13845
• Decision Date: 24 August 1983

Page 809

337 N.W.2d 809

STATE of South Dakota, Plaintiff and Appellee, v. Stephen LAYTON (# 13845) and Ronald Dennis (# 13850),

Defendants and Appellants.

Nos. 13845, 13850.

Supreme Court of South Dakota.

Argued May 25, 1983.

Decided Aug. 24, 1983.

Mark W. Barnett, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

Joseph Neiles of Minnehaha County Public Defender's Office, Sioux Falls, for defendant and appellant Layton.

David Alan Palmer of Strange, Strange & Palmer, Sioux Falls, for defendant and appellant Dennis.

HENDERSON, Justice.

PROCEDURAL HISTORY

On November 18, 1981, a Grand Jury charged appellant Dennis with four counts of attempted first-degree murder and two counts of aggravated assault. Appellant Layton was charged with one count of attempted first-degree murder and one count of aggravated assault. All of the charges stemmed from a violent attack by appellants on several unarmed South Dakota Penitentiary guards on November 7, 1981.

Appellants were jointly arraigned on November 19, 1981, at which time the State advised appellant Layton of an incorrect statutory cite on the aggravated assault charge. During arraignment, appellant Layton was advised by the court that, if convicted of all charges against him and found to be a habitual offender, he could be sentenced to two consecutive life sentences plus thirty years; appellant Dennis was advised On January 22, 1982, the State filed a motion to amend appellant Dennis' information to include a newly discovered third prior felony conviction of appellant Dennis. A pretrial motion hearing was conducted on February 5, 1982, wherein the following motions and rulings occurred: (1) appellant Dennis acknowledged the third prior felony and moved that any rulings on the habitual offender issues be deferred until after trial--granted; (2) appellants moved to dismiss the indictment due to an alleged misjoinder under SDCL 23A-6-24--denied; (3) appellant Layton motioned for a dismissal of his information due to a miscited statute--denied; and (4) the State motioned for an in-camera inspection of statements taken from inmate witnesses, alleging disclosure would endanger their lives--granted. On February 18, 1982, another pretrial motion hearing was conducted, wherein appellants' motion to sever their trials was taken under advisement and subsequently denied.

that a conviction on all his charges and a habitual offender charge could result in eight consecutive life sentences plus sixty years. Appellants entered pleas of not guilty to all charges.

A jury trial was held from March 30 through April 8, 1982, resulting in appellant Dennis' conviction on four counts of aggravated assault and appellant Layton's conviction on two counts of aggravated assault. One of appellant Dennis' convictions was subsequently set aside. On April 12, 1982, appellant Dennis was arraigned upon the habitual offender information, as amended by the State's motion. The trial court formally allowed the amendment on April 26, 1982, after both parties submitted affidavits. On May 18, 1982, after a stipulation, a court trial was held and both appellants were found guilty of being habitual offenders. Appellant Layton was sentenced to consecutive thirty-year terms on each count to begin after his current sentence expired. Appellant Dennis was sentenced to three concurrent life sentences to begin at the expiration of his current sentence. On June 9, 1982, findings of fact, conclusions of law, and a judgment were entered. Notices of appeal were filed on June 23 and 25, 1982. We affirm.

FACTS

Both appellants have been inmates at the South Dakota Penitentiary at all times relevant hereto. From 1:00 p.m. to 4:00 p.m. on Saturdays, inmates are allowed recreation in the prison yard. A bell is rung at 3:25 p.m. notifying inmates that they may shower and buy ice cream if they desire. A lock-up bell is rung at 4:00 p.m. Inmate travel inside the penitentiary is restricted to the floor and cell hall in which the inmate lives. On November 7, 1981, a Saturday, both appellants were observed in areas outside of their floors and cell block. At 3:45 p.m., the guards noticed that most inmates had chosen to remain inside the cell block; thus, the lock-up bell was rung early. Sergeant Ellis noticed some inmates moving too slowly returning to their cells and he dispatched Officers Laackmann and Knudsen to speed the inmates up. Ellis went to the top floor and noticed both appellants illegally in that area. After some conversation, Ellis and Laackmann followed appellants to the end of the floor.

As they approached the door at the end of the floor, appellants turned to face the unarmed Ellis, Laackmann, and Officer Knudsen who had joined them. Ellis ordered appellants to go downstairs. Upon appellants' refusal, Ellis started to call the Captain on his radio. Suddenly, appellants and inmate Smith charged towards the guards with appellant Dennis in the lead brandishing a homemade knife and demanding Ellis' radio. Ellis turned away from the charging appellant Dennis and was stabbed in the back. Ellis saw appellant Dennis withdrawing his arm from Ellis' back. Appellant Dennis was the only person within reach of Ellis. Ellis quickly retreated with appellant Dennis in pursuit. Ellis jumped into an open cell, locking himself inside.

In the meantime, Laackmann had been attacked with a chain by inmate Smith. As Laackmann moved to subdue Smith, he turned his back on appellant Layton. Instantly Officer McGee, who was also unarmed, heard the struggle and ran upstairs hoping to control the developing crowd. Upon hearing someone call him an obscenity, McGee turned and saw appellant Dennis stab him in the stomach. Appellant Dennis retreated with McGee in pursuit until appellant Dennis turned and yelled that he was going to stab McGee again. McGee stopped, appellant Dennis fled.

Laackmann was stabbed repeatedly in the back. Appellant Layton was the only inmate standing behind Laackmann. Officers Knudsen and Laackmann retreated, locking themselves in an end cage at the end of the floor.

Officer Eachen, also unarmed, ran upstairs and assisted Officer Scholten handcuffing inmate Smith and moving him to the ground floor. As they reached the ground floor, a group of inmates attacked the unarmed guards. Appellant Dennis attacked Eachen with a club inflicting serious injuries upon Eachen's arm and hand. Eachen promptly retreated.

ISSUES

I.

DID THE TRIAL COURT ERR IN RULING THAT AN INACCURATE STATUTE IN ONE OF APPELLANT LAYTON'S CHARGES WAS NONPREJUDICIAL?

II.

DID THE TRIAL COURT ABUSE ITS DISCRETION BY ADMITTING SEVERAL PHOTOGRAPHS INTO EVIDENCE?

III.

DID THE TRIAL COURT PROPERLY PROHIBIT APPELLANT LAYTON FROM USING A WITNESS' JUVENILE RECORD FOR IMPEACHMENT?

IV.

WERE TWO PRIOR FELONIES, COMMITTED BY APPELLANT DENNIS, PART OF THE SAME TRANSACTION WITHIN THE MEANING OF SDCL 22-7-9?

V.

DID THE TRIAL COURT ERR IN ALLOWING THE STATE TO AMEND ITS HABITUAL OFFENDER INFORMATION AGAINST APPELLANT DENNIS?

VI.

DID THE TRIAL COURT ERR IN WITHHOLDING THE DISCOVERY OF STATEMENTS MADE BY INMATE WITNESSES?

VII.

DID THE TRIAL COURT ERR IN REFUSING TO SEVER APPELLANTS' TRIAL?

VIII.

MAY AN INMATE WHO COMMITS FELONIES WHILE INCARCERATED BE SENTENCED AS A HABITUAL OFFENDER UNDER SDCL CH. 22-7, AND ALSO AS A PRISON OFFENDER UNDER SDCL 22-6-5.1?

DECISION

I.

Appellant Layton's indictment contained an incorrect citation in one count to SDCL 22-18-1(3), a negligence assault statute. The count alleged facts supportive of SDCL 22-18-1.1(3), an aggravated assault upon a law enforcement officer statute. At the arraignment, the State informed appellant Layton of this error. The court ruled that the error was a clerical mistake and that it was neither misleading nor confusing.

SDCL 23A-6-4 provides in part: "Error in the citation [of the statute] shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice." Appellant Layton was promptly notified of the error and has failed to show any prejudice. This issue is affirmed.

II.

At trial, photographs of Officer Laackmann's injuries and of both appellants were admitted into evidence over appellant Layton's objection. Appellant Layton asserts the trial court abused its discretion because the photographs of Laackmann were cumulative in nature and the photographs of appellant Layton were unnecessary because identification was not at issue. The State asserts that the photographs of Laackmann's injuries taken the evening of November 7, 1981, accurately depict the harm inflicted upon him better than a short glimpse of Laackmann's scars during trial. As for the photographs of appellant Layton, the State contends they show the attack was not provoked by the guards striking appellant Layton, because appellant Layton was uninjured.

It is well accepted in this State that in aggravated assault cases, the nature and extent of the victim's injuries may be shown by relevant and material photographs accurately portraying facts upon which witnesses could competently testify. State v. Rash, 294 N.W.2d 416 (S.D.1980). Likewise, photographs in general are admissible into evidence when they meet the above-referenced requirements. State v. Kaseman, 273 N.W.2d 716 (S.D.1978). Thus, photographs of appellant Layton's unmarked body have probative value. As with any other demonstrative evidence, the admission of photographs lies within the sound discretion of the trial court. State v. Kane, 266 N.W.2d 552 (S.D.1978).

The trial court edited some of the photographs to remove prejudicial effect. A review of the trial transcript reveals that Laackmann did testify that the guards did not strike or provoke appellant Layton. We are convinced that the trial court did not abuse its discretion in admitting the photographs into evidence.

III.

In chambers, appellants...