State v. Nelson

• Decision Date: 16 December 1998
• Docket Number: No. 20356,20356
• Citation: 1998 SD 124,587 N.W.2d 439
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Lyle Edgar NELSON, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 439

587 N.W.2d 439

1998 SD 124

STATE of South Dakota, Plaintiff and Appellee, v. Lyle Edgar NELSON, Defendant and Appellant.

No. 20356.

Supreme Court of South Dakota.

Argued Oct. 20, 1998.

Decided Dec. 16, 1998.

Mark Barnett, Atty. Gen., Paul Cremer, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Jeff Larson, Minnnehaha County Public Defender's Office, Sioux Falls, for defendant and appellant.

KONENKAMP, Justice.

¶1 At inquiry in this case is whether a trial court must follow fundamental procedures for conducting a jury trial. Although it provided complete written instructions to the jury, the court at the close of the evidence failed to read all the instructions as required by law, including those on the presumption of innocence and the burden of proof. The court also sent out thirteen jurors to deliberate, over the strenuous objections of the State and with the uninformed consent of the pro se defendant. We conclude that these actions created plain error, cumulatively prejudicial to the integrity of judicial proceedings. We reverse and remand for a new trial.

Facts

¶2 On March 12, 1997, the Sioux Falls Humane Society received a report of starving horses. Officer Dave Bartscher went to investigate. South Dakota was still in the throes of one of its severest winters. Four to six foot drifts extended across the dirt road leading to the pasture where the horses were kept and the ground was snow covered. Bartscher detected no tire tracks or footprints in the snow leading to the area. Inside a corral he found two dead horses and in the pasture, one "extremely thin" filly. In an old tire, the officer saw a small quantity of moldy feed, but he could find no provisions for water. A day later, the surviving horse was retrieved and treated. The two dead horses were autopsied, revealing that neither had any body fat at the time of death. Both died of chronic malnutrition. Lyle Nelson owned the horses.

¶3 Nelson was charged with three counts of inhumane treatment of animals, in violation of SDCL 40-1-27. Just before trial, he obtained permission from the court to represent himself, and his appointed lawyer was released. During jury selection the judge suggested that an alternate juror be chosen and the prosecutor agreed, so long as the alternate did not participate in deliberations. But the court stated, "I like to have all 13 deliberate." He then asked the defendant, "I understand that the State would resist. Do you have any objection to having 13 jurors?" The defendant had no objection. Nonetheless, the prosecutor warned the court that its decision may be reversible error. No explanation was given to the defendant about the consequences of having an extra juror.

¶4 The court read preliminary instructions to the jury, including instructions on the burden of proof and the presumption of innocence. During the trial, Nelson took the stand in his own defense in the middle of the State's case in chief. However, it was at Nelson's suggestion to "save time" that he be allowed to take the stand and respond to the State's videotape evidence. Nelson was not then informed of his right to remain silent and his right not to testify under the Fifth Amendment. ¹ The next day, when Nelson had trouble locating witnesses, he sought a continuance. The court denied the request.

¶5 At the close of the evidence, the trial court instructed the jury, but did not re-read the preliminary instructions. Thus, the jury did not again hear instructions on reasonable doubt and the presumption of innocence. The court told the jury, "This is the place that I would re-read the preliminary instructions, but to save time just consider that I have read them here and refer to them when you get into the jury room." He admonished the jury to consider all the instructions as a whole, including the preliminary instructions. The jury was given copies of all the instructions. As the court was sending the jury out to deliberate, the prosecutor asked, "Are you going to discharge the alternate juror?" The court responded, "No. We are going to let them all deliberate together. All 13 are going to deliberate." After an hour, the jury found Nelson guilty of the three offenses. On each count, Nelson was sentenced to one year in jail, a one thousand dollar fine, and payment of restitution. The sentences on two of the counts were suspended, provided he serve the jail time and pay the fine on the remaining count.

¶6 Nelson now appeals his convictions, raising these issues: (1) Whether the trial court's failure to instruct the jury on the presumption of innocence and the standard of proof at the end of the case constitutes plain error. (2) Whether sending thirteen jurors out to deliberate constitutes plain error. (3) Whether Nelson was denied his constitutional right to a fair trial; specifically, whether the trial court's decision to have Nelson put on witnesses out of order, the court's urging Nelson to testify during the State's case, the court's refusal to grant a continuance for Nelson to locate witnesses, and the decision to allow thirteen jurors to deliberate, was a denial of due process of law. ² (4) Whether the trial court had subject matter jurisdiction to hear a case involving alleged cruelty to livestock absent compliance with SDCL chapter 40-1. ³

Analysis and Decision

¶7 To preserve issues for appellate review litigants must make known to trial courts the actions they seek to achieve or object to the actions of the court, giving their reasons. SDCL 23A-44-13. Issues not advanced at trial cannot ordinarily be raised for the first time on appeal. State v. Henjum, 1996 SD 7, p 13, 542 N.W.2d 760, 763 (citations omitted). Where error has not been preserved by objection or otherwise, our inquiry is limited to whether the court committed plain error. State v. Satter, 1996 SD 9, p 11, 543 N.W.2d 249, 251. "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of a court." SDCL 23A-44-15 (Rule 52(b)). Unlike harmless error review under SDCL 23A-44-14 (Rule 52(a)), in which the State has the burden of proving the error was not prejudicial, with plain error analysis the defendant bears the burden of showing the error was prejudicial. United States v. Olano, 507 U.S. 725, 737-41, 113 S.Ct. 1770, 1779-81, 123 L.Ed.2d 508 (1993), aff'd in part, rev'd in part, 62 F.3d 1180 (9thCir.1995), cert. denied, 519 U.S. 931, 117 S.Ct. 303, 136 L.Ed.2d 221 (1996).

¶8 Plain error requires (1) error, (2) that is plain, (3) affecting substantial rights; and only then may we exercise our discretion to notice the error if (4) it "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997)(alterations in original)(quoting Olano, 507 U.S. at 732, 113 S.Ct. at 1776, quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985), in turn quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)(pre-federal rules case codified in Rule 52(b))). We invoke our discretion under the plain error rule cautiously and only in "exceptional circumstances." Henjum, 1996 SD 7, p 14, 542 N.W.2d at 763; State v. Davi, 504 N.W.2d 844, 855 (S.D.1993)(citing State v. Brammer, 304 N.W.2d 111, 114 (S.D.1981)). Such circumstances may include cases in which " 'a miscarriage of justice would otherwise result,' " i.e., a defendant is actually innocent. See Young, 470 U.S. at 15, 105 S.Ct. at 1046, on remand, 758 F.2d 514 (10thCir.1985), on reconsideration, 767 F.2d 737 (10thCir.1985)(quoting United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1592 n. 14, 71 L.Ed.2d 816 (1982)); see also Sawyer v. Whitley, 505 U.S. 333, 339-40, 112 S.Ct. 2514, 2518-19, 120 L.Ed.2d 269 (1992), reh'g denied, 505 U.S. 1244, 113 S.Ct. 21, 120 L.Ed.2d 948 (1992). But our discretion is not confined to cases of actual innocence because error may "seriously affect[ ] the fairness, integrity or public reputation of judicial proceedings" tangential to questions of innocence. Olano, 507 U.S. at 736, 113 S.Ct. at 1779. When considering any error, we examine all the circumstances:

In reviewing criminal cases, it is particularly important for appellate courts to relive the whole trial imaginatively, and not to extract from episodes in isolation abstract questions of evidence and procedure. To turn a criminal trial into a quest for error no more promotes the ends of justice than to acquiesce in low standards of criminal prosecution.

Johnson v. United States, 318 U.S. 189, 202, 63 S.Ct. 549, 555, 87 L.Ed. 704 (1943)(Frankfurter, J., concurring), reh'g denied, 318 U.S. 801, 63 S.Ct. 826, 87 L.Ed. 1164 (1943).

Failure to Read All Instructions at Close of Evidence

¶9 A judge has the duty to fully instruct the jury on the applicable law. State v. Eagle Star, 1996 SD 143, p 15, 558 N.W.2d 70, 73. Furthermore, the instructions must be given orally. SDCL 23A-25-4 states: "Before final argument the court shall read its instructions to the jury ...." (emphasis added). SDCL 15-6-51(a) provides in part:

After the close of evidence and prior to argument the court shall charge the jury. In charging the jury the court shall instruct as to the law of the case.... The court, on its own motion or upon the motion of any party, after the jury is selected and sworn, but prior to opening statements, may in its discretion, give general and preliminary instructions to the jury on the conduct of the trial, but not on substantive legal issues.

(emphasis added).

¶10 In Eagle Star, we noted that "[p]rior to hearing all the evidence presented, the trial court is not in a position to fully instruct the jury on the applicable law." Eagle Star, 1996 SD 143, p 19, 558 N.W.2d at 74. Preliminary instructions serve to inform jurors of their "function, the presumption of innocence, the burden of...