State v. Mulligan

• Decision Date: 11 July 2007
• Docket Number: No. 24092.,24092.
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Nicole Marie MULLIGAN, Defendant and Appellant.
• Court: South Dakota Supreme Court

736 N.W.2d 808

2007 SD 67

STATE of South Dakota, Plaintiff and Appellee, v. Nicole Marie MULLIGAN, Defendant and Appellant.

No. 24092.

Supreme Court of South Dakota.

Argued on March 19, 2007.

Decided July 11, 2007.

Lawrence E. Long, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Richard A. Sommers, Melissa E. Neville of Bantz, Gosch & Cremer, Aberdeen, South Dakota, Attorneys for defendant and appellant.

ZINTER, Justice.

[¶ 1.] Nicole Mulligan was convicted of first degree manslaughter in the death of her boyfriend, Richard Goldade. She appeals claiming that: the State failed to prove criminal intent; her restitution sentence was illegal; a Batson violation occurred; and a spoliation of evidence instruction should have been given. We affirm.

Facts and Procedural History

[¶ 2.] On October 15, 2002, Mulligan shot Goldade with a .357 revolver in their home in Mobridge, South Dakota. Mulligan claimed that the shooting was accidental. According to her version of events, she was about to give her dogs a bath when Goldade came home from work. Mulligan was looking in a closet for towels to bathe the dogs and found the gun. She claimed that she wanted the gun moved because the couple's three year-old son was starting to climb and he would go into the closet to get dog treats. She indicated that she covered the gun with a towel so her son would not see it. As she was handing it to Goldade to have him lock it in a gun cabinet, the gun discharged. The bullet hit Goldade in his chest and lodged in his back. Bob Rivera, a friend, was working on Mulligan's computer in another room at the time of the shooting. He heard the shot, ran into the living room, and called 911. Before dying later that evening, Goldade made statements that the gun accidentally discharged.

[¶ 3.] The State's version of the shooting was very different. It presented evidence that in his post-shooting statements, Goldade was unable to recall how the shooting occurred. There was also evidence that Mulligan's stories were inconsistent. Initially, she said that she was holding the gun in one hand with the towels over the gun and her other hand over the towels. However, physical testing revealed that burn marks on the towels were inconsistent with all of the towels being on top of the gun. The tests indicated that at the time the gun discharged, it was between the towels. Mulligan then changed her story to match this physical evidence. There was also evidence that although all of the other guns in the house had ammunition in their magazines, none had rounds in the chamber. Therefore, the other guns could not have fired immediately (accidentally) as Mulligan claimed with respect to the .357 revolver.

[¶ 4.] The State also introduced evidence suggesting that Mulligan had a reason to kill Goldade. According to the State's evidence, Mulligan filed for bankruptcy in 1997, primarily due to credit card debt. In the year preceding the shooting, and without Goldade's knowledge, Mulligan had again amassed approximately $37,000 in credit card debt, much of it in Goldade's name. In fact, Mulligan changed the addresses on some of Goldade's credit cards to a post office box in Mobridge so that the statements did not come to the home. Mulligan had also forged Goldade's name on various financial documents and written checks to herself on his account. There was evidence that had he discovered these facts, Goldade would have been extremely upset as it would have destroyed his plans to build a new home. Moreover, a letter written by Mulligan was introduced indicating that Goldade was contemplating making Mulligan and their son move out. Finally, the State offered physical evidence that this gun could not have discharged without the direct application of substantial pressure on the trigger.

[¶ 5.] Mulligan was charged in the alternative with first degree murder and first degree manslaughter. She did not object to the manslaughter charge. At trial, the primary issue was whether Mulligan accidentally or intentionally shot Goldade. A Batson challenge was also raised because the State struck all five Native Americans from the jury. The trial court ruled that the State had presented sufficient race-neutral reasons for the strikes. At the conclusion of the trial, a dispute arose over a spoliation instruction.

[¶ 6.] The jury convicted Mulligan of first degree manslaughter. She was sentenced to thirty-five years in the state penitentiary with seventeen years suspended. The trial court also ordered restitution for several things, including the money Mulligan stole from Goldade. Mulligan appeals raising four issues:

1. Whether the evidence of intent was sufficient to support a conviction of first degree manslaughter.

2. Whether, in the absence of an admission or conviction, the trial court's order of restitution for theft was an illegal sentence.

3. Whether Mulligan's constitutional rights of due process and equal protection were violated by the State's use of peremptory strikes to remove Native Americans from the jury.

4. Whether the trial court abused its discretion and committed prejudicial error in refusing Mulligan's proposed jury instruction on spoliation of evidence.

Decision

Sufficiency of the Evidence

[¶ 7.] Mulligan first contends that the State failed to prove the criminal intent necessary for first degree manslaughter. She concedes that the State produced motive evidence, but argues that the State failed to provide sufficient evidence of criminal intent. The standard of review for determining the sufficiency of the evidence is well settled.

"In determining the sufficiency of the evidence on appeal in a criminal case, the issue before this Court is whether there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt." In making that determination, "we accept the evidence and the most favorable inferences fairly drawn therefrom, which will support the verdict." Moreover, "the jury is ... the exclusive judge of the credibility of the witnesses and the weight of the evidence." Therefore, this Court does not resolve conflicts in the evidence, or pass on the credibility of witnesses, or weigh the evidence. State v. LaPlante, 2002 SD 95, ¶ 19, 650 N.W.2d 305, 310 (internal citations omitted). Thus, "[a] guilty verdict will not be set aside if the state's evidence and all favorable inferences that can be drawn therefrom support a rational theory of guilt." State v. Jones, 521 N.W.2d 662, 673 (S.D.1994) (citation omitted).

State v. Pasek, 2004 SD 132, ¶ 7, 691 N.W.2d 301, 305.

[¶ 8.] Mulligan was acquitted of first degree murder and convicted of first degree manslaughter. As is relevant here, homicide¹ is murder in the first degree "[i]f perpetrated without authority of law and with a premeditated design to effect the death of the person killed ...." SDCL 22-16-4. "Homicide is manslaughter in the first degree if perpetrated: Without any design to effect death ..., but by means of a dangerous weapon...." SDCL 22-16-15. Thus, in order to sustain the manslaughter conviction, the State must have proved that Mulligan acted without a design to effect the death of Goldade but did so by means of a dangerous weapon. The matter in dispute is whether the State proved that Mulligan acted with criminal intent.

[¶ 9.] Manslaughter does not require specific intent. See SDCL 22-16-15. It is a general intent crime. State v. Bittner, 359 N.W.2d 121, 128 (S.D.1984) (Morgan, J., concurring and dissenting) (stating "homicide ... is a specific intent crime ... and the manslaughter offenses are all general intent crimes."). The difference has been described as follows:

Specific intent has been defined as meaning some intent in addition to the physical act which the crime requires, while general intent means an intent to do the physical act-or, perhaps, recklessly doing the physical act-which the crime requires.

State v. Schouten, 2005 SD 122, ¶ 13, 707 N.W.2d 820, 824 (quoting State v. Taecker, 2003 SD 43, ¶ 25, 661 N.W.2d 712, 718 (quoting State v. Barrientos, 444 N.W.2d 374, 376 (S.D.1989))). Therefore, to convict Mulligan of manslaughter, there must have been sufficient evidence to find that she intended to fire the gun or that she was reckless with respect to the shooting.

[¶ 10.] Mulligan points out that there was no evidence that she was reckless in her handling of the gun. Therefore, that method of proving intent is unavailable to sustain the manslaughter conviction. Mulligan then points out that the jury acquitted on the charge of first degree murder, which required proof of intent to kill Goldade. From this acquittal, Mulligan argues that the jury rejected the State's sole contention at trial-that Mulligan intended to shoot Goldade in order to hide her debt. As Mulligan phrases it in her reply brief, "[w]e know that the jury rejected the notion that [Mulligan] intentionally shot [Goldade], as the jury rejected the murder charge." Based on this assumption, Mulligan claims that she could not be convicted of manslaughter because that crime required intent to commit the physical act of shooting Goldade.

[¶ 11.] However, Mulligan may not use the jury's rejection of the murder charge to infer that there was insufficient evidence to justify the manslaughter charge. The United States Supreme Court has expressly rejected such reasoning, holding "that a criminal defendant convicted by a jury on one count [can] not attack that conviction because it was inconsistent with the jury's verdict of acquittal on another count." United States v. Powell, 469 U.S. 57, 58, 105 S.Ct. 471, 473, 83 L.Ed.2d 461, 464 (1984) (citing Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932)). Mulligan, however, points out that the State focused its entire case solely on the charge of murder, and therefore the jury must have rejected the...