State v. Milk

• Decision Date: 23 February 2000
• Docket Number: No. 20869.,20869.
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Mark MILK, Defendant and Appellant.
• Court: South Dakota Supreme Court

607 N.W.2d 14

2000 SD 28

STATE of South Dakota, Plaintiff and Appellee, v. Mark MILK, Defendant and Appellant.

No. 20869.

Supreme Court of South Dakota.

Considered on Briefs January 10, 2000.

Decided February 23, 2000.

Mark Barnett, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

John A. Schlimgen of Stuart, Gerry & Schlimgen, Sioux Falls, South Dakota, Attorneys for defendant, and appellant.

GILBERTSON, Justice

[¶ 1.] Defendant Mark Milk (Milk) appeals a life sentence for first-degree manslaughter as cruel and unusual punishment. Milk also appeals the trial court's denial of his motion to reopen the resentencing hearing to present psychological testimony. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On the morning of October 3, 1993, Milk, age 19 was involved in several altercations with Shawn Peneaux (Peneaux) outside of the John King Memorial Dance Hall in Winner, South Dakota. At approximately 1:30 a.m. Winner police officers were called to the dance hall to respond to a possible knife fight. Bystanders testified at the grand jury proceeding that Milk and Peneaux had gotten into a fight, and that Milk had a knife. When the police arrived however, the fight broke up and Milk threw the knife into the ditch. No one was injured by the knife at this time. After the dance, Milk began to walk home his girlfriend Renee Foote. During this walk, Peneaux and some of his friends confronted Milk and Foote.

[¶ 3.] The State and Milk disagree as to what happened next. Milk claims Peneaux and he began talking, when Peneaux hit him above the eye with a rock. A fight began and Peneaux got on top of Milk, with one hand on his throat and one hand hitting him in the face. Milk alleged Peneaux called to his friends to come over and help him. At that time, Milk grabbed his knife and stabbed Peneaux in the chest, in the side, and three more times in the back. Milk had to roll Peneaux off of him. Milk then began kicking Peneaux in the head and face, as Peneaux tried to get up. Milk also hit Peneaux in the face twice with the knife. Milk then ran to catch up with Foote.

[¶ 4.] Foote testified at the grand jury proceeding that she only saw an initial fight, when Peneaux and his friends accosted Milk. Foote testified she and the others ran away, but, before she left she saw Milk kick Peneaux twice. Milk was wearing steel-toed combat boots. A short time later, Milk caught up with Foote on her way home. Foote testified Milk told her he had beat-up Peneaux and kicked him in the head until "his head was soft." At this time, Milk was acting "[s]haky...," "[s]cared, nervous." However, Foote testified that once Milk had seen her home, he went back to find Peneaux. Milk later came back to Foote, at which point Milk told her he had stabbed and killed Peneaux. Milk stated one of the stab wounds went through Peneaux's body from front to back and scraped the pavement.¹

[¶ 5.] Peneaux died sometime during the early morning hours of October 3, 1993 on a street in Winner. His body was found by the police at approximately 6:00 a.m. on October 3. Peneaux's face was lacerated and bruised, and he had been repeatedly stabbed and slashed, including a series of cuts from ear to ear. The top of his right ear had been cut off as well. The autopsy report indicates:

The cause of death, therefore, was hemothorax secondary to multiple stab wounds to the chest. Although the beating sustained by the decedent to the head and face was quite significant, an [sic] undoubtedly contributory to the death, these injuries did not appear to be immediately life threatening. The manner of death is consistent with homocide [sic].

Peneaux bled to death from deep knife thrusts to his chest, which caused massive internal bleeding.

[¶ 6.] Milk was interviewed by police officers later the same morning.² When law enforcement spoke with Milk, Milk admitted to the stabbing and killing, but indicated it was in self-defense, because Peneaux had him by the throat.³ Milk also claimed to be very drunk at the time of the killing. However, the testimony of Brandis painted a very different picture. He testified Milk was faking intoxication the night he killed Peneaux. In contrast, Peneaux was heavily intoxicated. Brandis testified that he had observed Peneaux after the first fight with Milk, "pretty well passed out sitting on the bench with his head between his knees." Milk even threw beer cans, beer bottles, and an ashtray at Peneaux, hitting him in the back. Peneaux did not respond, just laying there while Milk yelled for him to get up. Peneaux's blood alcohol level at the time of his death was .30.

[¶ 7.] Milk was arrested for the first-degree murder of Peneaux on October 4, 1993. On October 8, 1993, the grand jury indicted Milk on four alternative homicide counts: (Count I) premeditated first-degree murder; (Count II) second-degree murder; (Count III) first-degree manslaughter committed without a design to effect death, and in heat of passion but in a cruel and unusual manner; and (Count IV) first-degree manslaughter with a deadly weapon.

[¶ 8.] Pursuant to a plea agreement, Milk pleaded guilty to Count III, first-degree manslaughter under SDCL 22-16-15(2). The other counts were dismissed. The trial court sentenced Milk to life without parole, the maximum penalty for the Class I felony Milk had committed. The trial court made no finding that Milk was or was not able to be rehabilitated, but stated his actions in the penitentiary would influence whether he could get his sentence commuted with the prospect of parole. The judgment of conviction and sentence reflecting the imposition of life imprisonment was filed on January 12, 1994.

[¶ 9.] Milk did not appeal this sentence. However, he did file an amended petition for writ of habeas corpus on April 30, 1997. Milk's petition for habeas corpus included several claims, including that his life sentence constituted cruel and unusual punishment. At this time, Milk also submitted a motion for appointment of an expert, Dr. Stephan Langenfeld, a Sioux Falls psychologist. Dr. Langenfeld was prepared to provide evidence that Milk could be rehabilitated. After a hearing, the habeas court denied this motion. However, the habeas court did order the trial court to resentence Milk, finding the trial court did not adequately consider Milk's potential for rehabilitation. The trial court held the resentencing hearing on August 17, 1998. The trial court issued a memorandum opinion on September 9, 1998, in which it reimposed a life sentence on Milk. On October 1, 1998, Milk filed a motion to reopen the hearing, requesting an order "allowing him to reopen his habeas corpus hearing for the purpose of presenting the testimony of an additional witness." The trial court denied this motion. Milk appeals raising the following issues for our consideration:

1. Whether Milk's sentence constitutes cruel and unusual punishment.

2. Whether the trial court abused its discretion in denying Milk's motion to reopen the resentencing hearing.

STANDARD OF REVIEW

[¶ 10.] This Court gives great deference to sentencing decisions made by trial courts. State v. Gehrke, 491 N.W.2d 421, 422 (S.D.1992) (citing State v. Weiker (Weiker II), 366 N.W.2d 823, 828 (S.D. 1985) (citing Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980))). Not every felony sentence will be subjected to exhaustive review. Id. (citing Weiker II, 366 N.W.2d at 827). We have previously stated:

[W]e do not adopt or imply approval of a general rule of appellate review of sentences. Absent specific authority, it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence; rather, in applying the Eighth Amendment the appellate court decides only whether the sentence under review is within constitutional limits. In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate.

Id. at 423 (citing Weiker II, 366 N.W.2d at 827 (quoting Solem v. Helm, 463 U.S. 277, 290 n.16, 103 S.Ct. 3001, 3009 n.16, 77 L.Ed.2d 637, 649 n.16 (1983))). "`[S]uccessful challenges to the proportionality of particular sentences [will be] exceedingly rare.'" State v. Bonner, 1998 SD 30, ¶ 14, 577 N.W.2d 575, 579 (citing Solem, 463 U.S. at 289-90, 103 S.Ct. at 3009, 77 L.Ed.2d at 649 (noting reviewing courts should give substantial deference to legislatures in determining the types and limits of punishments for crimes and the discretion trial courts possess in sentencing)).

[¶ 11.] Trial court rulings on motions to reopen civil cases to permit additional evidence are reviewed under the abuse of discretion standard. Sabhari v. Sapari, 1998 SD 35, ¶ 27, 576 N.W.2d 886, 895. "While the particular criteria that guide a trial court's decision to reopen are necessarily flexible and case-specific, it is generally understood that a trial court abuses its discretion if its refusal to reopen works an `injustice' in the particular circumstances." Id. (citing Rivera-Flores v. Puerto Rico Tele. Co., 64 F.3d 742, 746 (1st Cir.1995)). A trial court has a wide discretion in passing on a motion to reopen. Endres v. Endres, 532 N.W.2d 65, 72 (S.D. 1995) (citing Rosen's Inc. v. Juhnke, 513 N.W.2d 575, 577 (S.D.1994) (quoting 88 C.J.S. Trial § 104 (1955))). Although this is a criminal case, there is no justification to depart from this standard of review.

ANALYSIS AND DECISION

[¶ 12.] 1. Whether Milk's sentence constitutes cruel and unusual punishment.

[¶ 13.] Milk argues his life sentence for first-degree manslaughter is cruel and unusual punishment and violates the Eighth Amendment to the United States Constitution.

[¶ 14.] Recently we reiterated the limited principles of constitutional...