State v. Miskimins

• Citation: 435 N.W.2d 217
• Decision Date: 03 March 1989
• Docket Number: No. 16188,16188
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Scot P. MISKIMINS, Defendant and Appellant.
• Court: Supreme Court of South Dakota

Page 217

435 N.W.2d 217

STATE of South Dakota, Plaintiff and Appellee, v. Scot P. MISKIMINS, Defendant and Appellant.

No. 16188.

Supreme Court of South Dakota.

Argued Nov. 30, 1988.

Decided Jan. 25, 1989.

Rehearing Denied March 3, 1989.

Roger A. Tellinghuisen, Atty. Gen., for plaintiff and appellee; Wade Hubbard, Asst. Atty. Gen., Pierre.

Rod Woodruff, Belle Fourche, for defendant and appellant.

GILBERTSON, Circuit Judge.

PRELIMINARY STATEMENT

Scot P. Miskimins (defendant) was convicted on November 25, 1987, of the crime of aggravated assault, SDCL 22-18-1.1(3), and commission of a felony while armed with a firearm, SDCL 22-14-12. He appeals his conviction of aggravated assault citing numerous purported errors committed by the trial court. Upon a review of the record and analysis of the legal issues presented, we affirm defendant's conviction.

FACTS

On the morning of May 27, 1987, defendant was at his home in Mitchell, Davison County, South Dakota. The previous afternoon, Detective Kaemingk of the Mitchell Police Department was assigned to serve a felony arrest warrant upon defendant. From previous contacts, Kaemingk was familiar with defendant, where he lived and what vehicle he drove.

Kaemingk and Officer Smith went to defendant's residence to serve the warrant on May 27, 1987, at about 10:00 a.m. They pounded loudly on the door they knew defendant used and yelled, "Scottie, this is Denny from the police department." There was no response. Thereafter, Kaemingk called in Officer Parrish as additional backup. After his arrival, the officers pounded on the two doors shouting the same message. Again, there was no response. This process was repeated several times.

The officers inspected the outside of the house. It was noted that defendant's truck was parked in the driveway. Defendant's dog was usually in the yard on a leash when he was away. The police saw that the dog and its leash were not outside the house. Kaemingk heard a scratching noise from within the house which he assumed to be the dog. Based on their prior knowledge of defendant, the officers concluded defendant was in the house. It was the opinion of Detective Kaemingk that defendant heard the yelling and pounding but intentionally refused to respond.

The detective and Officer Smith left the house to serve another warrant. Officer Parrish kept the house under surveillance. No one was observed entering or leaving the house. While the detective and Officer Smith were gone, they visited the parents of defendant. The parents informed the officers that they believed defendant would be at home and that he did not have a telephone.

Approximately 45 minutes after they left, the officers returned to the house. Again, Detective Kaemingk went to both the east and west doors and pounded on them and announced, "Scottie, this is Denny from the police department. Open up." Further, they attempted unsuccessfully to locate both the owner of the house and neighbors to determine if defendant was in the home.

Upon additional inspection of the house, it was observed that the ground floor windows were closed but that an upstairs window was not. Not wishing to damage the lower locked windows, the officers obtained a ladder, and Officers Smith and Parrish climbed it. Smith shouted into the window twice, "Scot, are you in there? Scot." Again, there was no response to this ninth and tenth attempt to communicate with defendant.

Thereafter, Smith and Parrish crawled into the house through the open upstairs window. They checked the upstairs and found no one. They then quietly descended the stairs. Officer Smith entered the living room, and Officer Parrish went into the kitchen.

Defendant claims he is a sound sleeper and heard none of the attempted communications. He stated that he was in the downstairs bathroom when he heard someone coming down the stairs. He grabbed his loaded shotgun which had four shells in the magazine and waited in the bathroom for the unknown person to step into the kitchen.

As Officer Parrish entered the kitchen, defendant pumped the .12 gauge shotgun placing a shell into the chamber. At the same time, he stepped into the kitchen, pointed the gun at Officer Parrish and yelled, "What the fuck are you doing in my house?" This was the first opportunity that defendant had to determine that Officer Parrish was a policeman in full uniform.

Parrish instinctively started to reach for his pistol which was still in his holster. Seeing this, defendant responded, "Freeze. Don't do it or I'll take you out." Parrish complied and froze. With defendant's finger on the trigger, Parrish awaited what he thought would be a shotgun blast.

While these events were occurring, Officer Smith heard voices in the kitchen but could not understand what was being said. Officer Smith, who had his gun drawn and was also in uniform, entered the kitchen and observed the situation. Seeing his comrade in peril, he pointed his gun at defendant and the following conversation ensued between Smith and defendant.

(Smith) "Don't do it, Scottie, or I'll have to shoot you."

(Defendant) "If you do, I'm going to shoot him [Officer Parrish]."

(Smith) "We have a warrant for your arrest."

(Defendant) "Let's see it."

At this point, defendant swung the shotgun barrel away from Parrish and towards Smith. The barrel was only two to three feet from Parrish; he grabbed it and disarmed defendant. Defendant was then placed under arrest.

The entire incident between the officers and defendant was estimated to have taken about ten seconds. The officers checked the shotgun and found that it not only had a live round in the chamber, but that the safe was off the entire time defendant held it on Parrish with his finger on the trigger. While this inspection of the shotgun was going on, defendant told Officer Smith, "You fucking right it's loaded and I would (could) have killed you, too."

One neighbor testified that he watched the police from an open window across the street. This witness could not remember any pounding or yelling by the officers. The officers testified that prior to entry they did not specifically request admittance to the house or state that their purpose for being there was to arrest defendant.

Defendant was ultimately tried and convicted by a Davison County jury of one count of aggravated assault upon Officer Parrish and one count of commission of a felony (aggravated assault) while armed with a dangerous weapon. He was also tried and acquitted of the same two charges against Officer Smith.

ISSUE I

DID THE TRIAL COURT ERR WHEN IT FAILED TO SUPPRESS PHYSICAL EVIDENCE SEIZED FROM AND STATEMENTS MADE BY DEFENDANT?

Defendant argues that the officers did not comply with the requirements of SDCL 23A-3-5, ¹ which authorizes entry into a dwelling without a search warrant to make an arrest. ² Under defendant's theory as there was no compliance with the statute, his right to be secure against unreasonable searches and seizures has been violated. He argues that this makes the entry and arrest illegal and invalid, and the evidence seized pursuant to such acts should have been suppressed by the trial court.

The facts establish that no less than ten times the officers pounded loudly on the doors of the house and yelled words to the effect, "Scottie, this is Denny from the police department." The officers knew him well and, based on the facts already set forth herein, believed him to be in the house. This was confirmed by a visit with the parents of defendant.

The evidence was presented to the trial court at the suppression hearing and later to the jury. Both found the notice given by the police to be reasonable under the facts and circumstances of this case. Defendant argues, however, that as a matter of law, such a determination is erroneous.

Defendant's argument is contradictory. Defendant testified that he did not hear the police pounding and yelling at his door. Yet he argues that if the police had stated their intentions more clearly, the arrest would have been legal. Since defendant claimed he never heard the notice given by the officers, whether the statute would have been complied with or not, the assault on Officer Parrish would still have taken place. Further, defendant fails to articulate any specific prejudice he suffered for what the police said or failed to say. ³ Cf. Jackson v. United States, 354 F.2d 980 (1st Cir.1965). This court has recently re-affirmed its holding that "[e]rror of constitutional dimension may be deemed harmless where the reviewing court finds, absent the error, it is clear beyond a reasonable doubt that the jury would have returned a conviction." State v. Boykin, 432 N.W.2d 60, 65 (S.D.1988).

In accord with the rationale adopted by the Supreme Court of Minnesota, it is not necessary for us to determine the legality of the officers' compliance with SDCL 23A-3-5 to rule on this issue placed before us for an adjudication. ⁴ In State v. Wick 331 N.W.2d 769, 771 (Minn.1983), the Minnesota Supreme Court held:

Even if the arrest was unlawful, a point we need not decide, that would not have been a defense. Minnesota law does not recognize defendant's asserted right to resist an unlawful arrest or search. [citations omitted] Thus, while a defendant would have a right to resist an officer in order to defend himself or another against unjustified bodily attack, assaultive conduct is not justifiable solely on the ground that the officers are violating the defendant's fourth amendment [sic] rights or on the ground that the defendant believes that the officers are violating his rights.

See also, State v. Kutchara, 350 N.W.2d 924 (Minn.1984); State v. Diedrich, 410 N.W.2d 20 (Minn.App.1987).

Other jurisdictions on both the state and federal levels have faced the same issue where the initial arrest, stop or search and seizure was determined to be illegal. For these appellate bodies, the question then became whether the illegal actions of the officers...