State v. Means, 11826

• Decision Date: 09 September 1977
• Docket Number: No. 11826,11826
• Citation: 257 N.W.2d 595
• Parties: STATE of South Dakota, Plaintiff and Applicant, v. Russell MEANS, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 595

257 N.W.2d 595

STATE of South Dakota, Plaintiff and Applicant, v. Russell MEANS, Defendant and Respondent.

No. 11826.

Supreme Court of South Dakota.

Argued Aug. 16, 1977.

Decided Sept. 9, 1977.

Gary J. Pashby, Special Deputy State's Atty., Minnehaha County, Sioux Falls, for plaintiff and applicant; William J. Janklow, Atty. Gen., Pierre, on the brief.

Kenneth E. Tilsen, St. Paul, Minn., Sidney B. Strange, Sioux Falls, for defendant and respondent; William M. Kunstler, New York City, of counsel.

Stephen L. Pevar, American Civil Liberties Union, Denver, Colo., John H. Davidson, Jr., Vermillion, amicus curiae.

DUNN, Chief Justice (on reassignment).

This is a proceeding brought by the state for the revocation of defendant's bond on appeal.

On April 30, 1974, a disturbance occurred at the Minnehaha County Courthouse in Sioux Falls, South Dakota, during the trial of Robert High Eagle, Sarah Bad Heart Bull and Kenneth Dahl on charges arising out of an alleged riot that had occurred on February 6, 1973, in Custer, South Dakota. As a result of the April 30, 1974 disturbance, defendant was indicted on charges of rioting to obstruct justice, SDCL 22-10-4, and injury to a public building, SDCL 22-34-3.1. These indictments were later dismissed and defendant was charged by information with the crime of "rioting to obstruct." SDCL 22-10-4.

After an attempt had been made to select a jury, defendant requested trial to the court. Following a lengthy trial, the court on December 15, 1975, announced its oral verdict finding defendant guilty of the crime charged, and on December 31, 1975, the court entered a judgment of conviction and sentenced defendant to a term of four years in the state penitentiary. On that same day, defendant filed a notice of appeal to this court and made a motion to the circuit court for an order admitting him to bail pending appeal. On January 6, 1976, the trial court entered its order admitting defendant to bail on certain conditions, including the following:

"4. That defendant will refrain from participating in any American Indian Movement activities except the following:

(a) Fund raising,

(b) The International Indian Treaty Organization,

(c) and activities of the American Indian Movement within the courts.

8. The bail will be revoked if the defendant is convicted of any criminal charge presently pending against him.

The conditions also included the requirement that defendant report to a court service worker in person or by telephone every fifteen days with a detailed account of his itinerary and proposed activities for the following fifteen-day period, and the requirement that at least every sixty days defendant should personally present himself to the court service worker department at Sioux Falls to make such report.

On January 5, 1977, the state filed an application for an order revoking bail, alleging that defendant had violated two of the conditions of the order admitting him to bail. On January 26, 1977, this court remanded the case to the circuit court and directed the trial judge who had tried and sentenced defendant to conduct an evidentiary hearing as referee. Following an evidentiary hearing, the referee filed his report and findings of fact and conclusions of law. The referee found that defendant had violated the provisions of conditions 4 and 8 of the order admitting defendant to bail. The referee made no recommendation on whether bail should be revoked.

In response to the state's motion, defendant has filed an application asking that we amend the order admitting him to bail by striking conditions 4 and 8.

We turn, then, to the evidence in support of the referee's findings.

The referee found, and there is no dispute on this matter, that on January 6, 1976, there was pending against defendant in Morton County, North Dakota, an information charging defendant with aggravated assault and battery. On November 23, 1976, the district court of North Dakota, Sixth Judicial District, granted a motion made by the state of North Dakota to dismiss that felony charge and to allow the filing of an information on the lesser included offense of assault. On that same day, the state's attorney of Morton County filed an amended information charging defendant with the misdemeanor crime of assault based upon the same incident that gave rise to the original felony charge. Defendant was convicted on his written plea of guilty to the charge contained in the amended information and was sentenced to thirty days in jail and a $100 fine, together with certain restitution. The jail sentence was suspended for a period of eighteen months, the fine was paid, and the restitution made.

On the morning of November 1, 1976, Mr. Kerry Cameron, Roberts County State's Attorney, received a call from a Mr. John Thomas requesting that a meeting be held with the state's attorney, the sheriff, and other law enforcement officials. As it developed, the purpose of the meeting was to consider complaints voiced by members of the local Indian population in and around Sisseton following the arrest of six male Indians on charges resulting from an incident that had occurred at a local bowling alley on October 16, 1976. Each of the six had been charged with six counts of attempted murder and one count of riot while armed. Bond had been set in the amount of $10,000 for each of the six defendants.

As a result of the telephone conversation, a meeting was set for 1:30 that afternoon at the city hall. Mr. Cameron and the local law enforcement officials arrived at the meeting room between 1:15 and 1:30. At about 1:45 they heard the sound of a drum and observed a group of from between 40 to 60 Indian people, about half of whom were children, coming down the street carrying a banner that bore the words "American Indian Movement." Some 18 to 20 members of the group came into the meeting room and the rest stayed on the sidewalk in front of the city hall building beating the drum and singing some songs. Among the persons who came into the meeting room were John Thomas, Greg Zephier, Bill Means, and defendant. They made it clear to everyone in the room that they represented the American Indian Movement. A discussion then followed between these individuals and Mr. Cameron. In Mr. Cameron's words, " * * * it was a very orderly meeting and some demands were made by mainly by Russell and Bill Means." These demands included a request that the bond be reduced for the six individuals who had been charged in connection with the incident at the bowling alley. The group also requested a more complete investigation of telephone threats that had been made at the Roberts County jail, where six men were being held, would be bombed. A request was also made that an investigation be made to insure that the families of the six jailed individuals would not be in jeopardy or be threatened in any way. Finally, the group requested that a community forum be set up so that some of the townspeople, presumably members of the local Indian population, could air their dissatisfactions with the way in which law enforcement was being handled in Roberts County.

At one point during the discussion Bill Means alluded to the fact that an individual by the name of Bursheim was supposed to be coming to Sisseton to run Bill Means and his companions out of town, but that, in Bill Means' words,

"I want to make it clear that the reason we are leaving is we are going to survival school in Minneapolis and we are supposed to be down there today. And we aren't being run out of town. AIM isn't run out by anybody, out of any town."

Nearly all of the meeting, which lasted approximately an hour and a half, was taken up by a dialogue between Mr. Cameron and defendant, whom Mr. Cameron took to be the chairman or leader of the group. Defendant made numerous references to the American Indian Movement during the course of the meeting.

Mr. Cameron testified that there was no discussion of the fund raising activities of the American Indian Movement and no discussion about the International Treaty Organization. He also testified that defendant was under no charges during the time that he was in Sisseton on November 1, 1976, and that the meeting did not involve in any manner a court proceeding.

On cross-examination, Mr. Cameron acknowledged that the meeting with defendant and his colleagues was peaceful and that he had observed no violations of the law on the part of the individuals who had met with him. He volunteered the statement that "I thought it (the meeting) was rather useful, in fact." Mr. Cameron acknowledged that it had been made clear to him early in the meeting that the presence of defendant and the other Indian people was entirely peaceful and that nothing had occurred during the course of the meeting to indicate that any of the objectives announced by them were other than peaceful.

Defendant testified that he and John Thomas had arrived in Sioux Falls on the night of October 30, 1976, from a lecture trip in the state of Washington, and that he had intended to join a caravan of teachers and students from an Indian survival school that was enroute to Minneapolis St. Paul for a conference. On October 31st, defendant met with members of the caravan and went with them to the state penitentiary to meet with the Indian inmates there and with penitentiary officials. On the afternoon of October 31st, defendant traveled to Sisseton with his brother Bill, John Thomas and other individuals who were accompanying the survival school caravan. Although defendant testified that he had no idea at the time he went to Sisseton that he would be meeting with local law enforcement officials, a court service officer testified on rebuttal that defendant had called his office from Seattle, Washington, on October 28, 1976, with information about defendant's proposed itinerary for the following days. After speaking with defendant, the court service worker prepared a typed report setting...