State v. Means

• Decision Date: 20 June 1978
• Docket Number: No. 11826,11826
• Citation: 268 N.W.2d 802
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Russell MEANS, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 802

268 N.W.2d 802

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

No. 11826.

Supreme Court of South Dakota.

June 20, 1978.

Rehearing Denied July 26, 1978.

Peter H. Lieberman and Leann Larson Finke, Asst. Attys. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on brief.

Sidney B. Strange, Sioux Falls, for defendant and appellant; Kenneth E. Tilsen and Jacqueline D. Quick, St. Paul, Minn., on brief.

HERTZ, Circuit Judge.

The defendant, after a trial to the court sitting without a jury, was found guilty of the crime of Rioting to Obstruct (SDCL 22-10-4). Defendant appeals from his conviction, claiming a number of errors by the trial court.

The defendant was indicted, and subsequently arrested, as the result of a disturbance involving policemen and Indian spectators, that occurred in the south courtroom on the third floor of the Minnehaha County Courthouse, in Sioux Falls, South Dakota, during the morning of April 30, 1974. The courtroom was at that time being used for the trial of several defendants charged with rioting in Custer, South Dakota, during 1973. (State v. Bad Heart Bull et al., S.D., 257 N.W.2d 715 (1977)). The Honorable Joseph Bottum, a circuit judge of the Seventh Judicial Circuit Court, was presiding over the trial.

On April 25, 1974, Judge Bottum determined that Ramon Roubideaux, one of three attorneys for the defendant and the only Indian attorney, was in contempt of court. Attorney Robideaux was sentenced to one day in the county jail and fined $100.00. Mr. Roubideaux in fact was jailed; however, the fine was later rescinded.

When court reconvened on April 26, 1974, the courtroom contained a number of spectators apparently sympathetic to Mr. Roubideaux. When Judge Bottum entered the courtroom to commence the trial for that day, these sympathizing spectators refused to rise in response to the bailiff's request to do so. Judge Bottum thereupon ordered the removal of those spectators. The sheriff first advised those present that if they refused to leave the courtroom they would be carried out. The removal was then accomplished by the sheriff and other officers by physically carrying each of the spectators that refused to stand out of the courtroom. There was no violence of any kind connected with this incident on April 26, 1974.

Sometime prior to April 30, 1974, security measures were agreed upon between Judge Bottum and certain law enforcement people. The plan was to go into effect when court reconvened on April 30, 1974, and included such things as limiting the number of spectators to twenty; locking certain exterior doors; requiring passes to gain entrance into the courtroom; and requiring everyone to be pat searched and passed through a metal detector.

On April 29, 1974, several meetings between the Custer Courthouse defendants, their legal staff, and friends and supporters, were held in the Van Brunt Building situated on North Phillips Avenue in downtown Sioux Falls. The purpose of the meeting was to discuss the occurrences of April 26th and to determine the course of action to be followed when court next convened on April 30, 1974. Kenneth Dahl, a witness for the state, testified that he attended the meetings, that the defendant conducted the meetings, and that defendant called for action which would result in a mistrial. Mr. Dahl estimated there were seventy-five to a hundred people present. Mr. Dahl further testified that defendant issued a call for thirteen to fifteen of the toughest warriors to volunteer under the pass system ordered by Judge Bottum. Those that were not chosen, according to Mr. Dahl, were advised that there were other activities planned for outside of the courthouse. Those that did obtain passes were instructed not to stand for Judge Bottum in the courtroom and that the activity outside the courtroom was to begin when a window was broken out of the courtroom. The defendant does not deny that the meetings took place but, through various witnesses, denies Mr. Dahl's version of what was said and done at the meetings. There is also testimony by some of defendant's witnesses that indicates that Mr. Dahl was not even present at the two meetings.

The next morning on April 30, 1974, some twenty potential spectators, including the defendant, were processed through the security system and proceeded to the courtroom and were seated in the first two rows of seats. The defendant was not among those first seated, it appearing that he was still in the jury room, when Judge Bottum entered the courtroom the first time and the bailiff announced: "The court, please rise."

The spectators occupying the first two rows of seats refused to rise for the judge, whereupon the judge immediately returned to his chambers, and on the way out he ordered the bailiff to clear the courtroom. Very shortly thereafter, and after consultation with Sheriff Hawkey, Judge Bottum issued the following oral order: "It will be the order of the court those who do not stand in this matter will be removed from the courtroom and kept out. The rest of you may sit down. Thank you." This order was made at approximately 9:30 a. m. on April 30, 1974. The record indicates that some fourteen to sixteen people refused to stand for Judge Bottum.

Sheriff Hawkey entered the courtroom and ordered the first two rows of spectators to leave. They silently refused. There is evidence that Celeste Zimmerman, a woman bailiff, and Captain Earl A. Callahan of the Sioux Falls Police Department, also asked the people seated in the first two rows to leave. Captain Callahan testified that he requested the presence of the specially equipped and trained Tactical Squad at approximately 10:20 that morning because he was anticipating trouble from the Indian people.

Captain Callahan testified that he had been advised that certain people outside the courthouse were gathering rocks and other hard substances, and this alerted him to the possibility of a disturbance inside the courtroom.

It appears that the Tactical Squad arrived at the courthouse about 10:50 a. m. that morning. The Tactical Squad was formed up in the hallway outside the courtroom. Prior to the Tactical Squad's entry into the courtroom, some clergymen and the defendant himself conferred with Judge Bottum. The clergymen, in effect, urged Judge Bottum to rescind his order to stand to avert a further confrontation. Judge Bottum refused, but did request the defendant to use his influence in convincing those persons who did not stand to either stand or leave peacefully. It appears defendant did discuss this matter with the Indian people seated in the first two rows. He reminded them of Judge Bottum's order and asked if they intended to stand. The answer was obviously no, and defendant said something to the effect that if that is their decision, he must sit with his people. Defendant thereupon seated himself on the end of the third or fourth row.

It now being quite apparent that the Indian spectators would not stand, nor leave voluntarily, Sheriff Hawkey directed Captain Callahan to remove them bodily from the courtroom. It appears that Captain Callahan in fact ordered the Tactical Squad to remove the spectators, without really limiting the order to those who had refused to stand for Judge Bottum.

In any event, the Tactical Squad did enter the courtroom. From this point on, there is a considerable conflict in the evidence. The one thing everyone agreed on was that moments after the entry of the special unit with riot batons at the ready, "All hell broke loose," "It just exploded."

There is no question but that there was almost immediate physical contact between squad members and Indian people, including the defendant. There is considerable disagreement between the state's version and the defendant's version of just what exactly transpired. Officer Richard Ideker was one of the first to enter the courtroom. According to Officer Ideker and state's witness, Kenneth Dahl, it was the defendant that struck the first blow by hitting Officer Ideker with his fist. According to some of the defendant's witnesses, it was Officer Ideker that was the aggressor and instigator of the attack. A more detailed analysis of the various witnesses' testimony will be alluded to later.

The defendant's appeal raises a number of issues wherein it is claimed the trial court erred, all of which will be here separately addressed under an appropriate heading.

The Constitutionality of SDCL 22-10-1 and SDCL 22-10-4

Defendant contends that both SDCL 22-10-1 and SDCL 22-10-4 are unconstitutional because of their failure to expressly require a showing of criminal intent; that the statutes are vague and overbroad and constitute an infringement upon the rights of free assembly and speech.

The constitutionality of SDCL 22-10-1 has just very recently been passed upon by this court in the case of State v. Bad Heart Bull et al., S.D., 257 N.W.2d 715 (1977). And since the oral argument in this matter, the constitutionality of SDCL 22-10-4 also has been considered in the case of State v. Kane, S.D., 266 N.W.2d 552, (1978).

There is no need to encumber this record with selective repetition from those cases. It is sufficient for our purposes to note that the constitutionality of both of these statutes was upheld in all areas complained of by the defendant. We can conceive of no valid reason why we should now recede from such recent pronouncements of this court.

Briefly stated, this court held:

1. The necessary criminal intent to commit the crime of riot may be inferred from all the facts and circumstances surrounding the commission of the offense. And that where criminal intent is an essential element of the crime, but is not made so by express statutory language, it will be implied.

2. The riot statutes give fair notice to a person of ordinary intelligence that certain specific conduct is prohibited, and are therefore not...