State v. Pellegrino, 19946

CourtSupreme Court of South Dakota
Citation577 N.W.2d 590,1998 SD 39
Docket NumberNo. 19946,19946
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Thomas PELLEGRINO, Defendant and Appellant.
Decision Date22 May 1998

Page 590

577 N.W.2d 590
1998 SD 39
STATE of South Dakota, Plaintiff and Appellee,
Thomas PELLEGRINO, Defendant and Appellant.
No. 19946.
Supreme Court of South Dakota.
Argued Oct. 23, 1997.
Decided April 15, 1998.
Rehearing Denied May 22, 1998.

Mark Barnett, Attorney General, Michele K. Bennett, Assistant Attorney General, for plaintiff and appellee.

Michael W. Strain of Morman Law Firm, Sturgis, for defendant and appellant.

Thomas Pellegrino, pro se.


¶1 In this appeal, we must decide to what extent a homeowner may use deadly force in defense of home and self. During an argument in his home, defendant fatally shot his unarmed friend. Because he refused to leave and defendant perceived that he behaved in a threatening manner, defendant contends the deceased committed a burglary by unlawfully entering or "remaining" in his dwelling with intent to commit an assault, justifying use of lethal force. The jury was instructed that self-defense in one's home against aggravated assault or kidnapping could justify such force, but the trial court declined to instruct on burglary. Defendant was found guilty of second-degree murder. We conclude the court adequately instructed the jury and that all the other assertions of error are groundless. The conviction is affirmed.


¶2 Pellegrino and Gary McKee, the victim, had been close friends for over ten years. While living out-of-state, Pellegrino visited the McKee family regularly and stayed in their home for extended periods. Pellegrino moved to South Dakota from California in early 1996. He rented a plot of

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land from McKee, purchased a trailer house, and placed it near McKee's home.

¶3 In late January or early February 1996, McKee, Pellegrino, and another friend, Arlon Leetch, were playing cards at McKee's. Pellegrino had been drinking. He wanted to fight McKee, so they went outside. McKee hit Pellegrino, causing him to fall backwards striking his head on a truck bumper. He was knocked unconscious but revived twenty minutes later. McKee's wife washed the blood off a small cut on the back of his head. After this incident, Pellegrino spoke of his outrage and proclaimed he would kill McKee if he ever touched him again.

¶4 Seven weeks later, Pellegrino's son, Salvatore, arrived from Minneapolis to visit his father. Salvatore went to Arlon Leetch's home to collect a late payment on a debt Leetch owed Pellegrino. Salvatore threatened to break Leetch's arms and legs if he did not pay. Upset, Leetch phoned McKee on March 5, 1996, to ask him to talk with Pellegrino about the debt. McKee agreed. When McKee and Leetch arrived at the trailer, Pellegrino was standing just inside the screen door with a .357 magnum revolver. He had been drinking. Leetch expressed reservations about going inside, but McKee said, "Oh, Tom ain't going to shoot nobody."

¶5 What happened next is disputed. According to Leetch, as they walked toward the trailer, Pellegrino opened the door allowing them to step in. Salvatore told the jury that Pellegrino told them to stay out, and that he would shoot them if they came in, but he could not remember if Pellegrino nonetheless opened the door for them. Leetch sat at the kitchen table and Salvatore joined him. McKee told Pellegrino to put the gun down. He refused. They argued about pointing the gun. At first, they argued toe to toe, then Pellegrino began backing away. While Pellegrino pointed the loaded weapon at him, McKee moved forward. According to Salvatore, Pellegrino told McKee to leave, but McKee wanted to go fight outside and shoved Pellegrino. Leetch, on the other hand, recalled no physical contact or threats, only the argument about Pellegrino pointing the gun. As McKee stepped closer, Pellegrino pulled the hammer back on the pistol and shot him. The bullet passed through McKee's upper arm, fractured two ribs, entered his chest cavity, and caused massive internal injuries. Pellegrino told Leetch to get McKee to the hospital. Leetch drove him to the Northern Hills General Hospital in Deadwood where doctors performed emergency surgery. McKee died the next morning.

¶6 After the shooting, Pellegrino and his son went to a friend's home in Sturgis. While there, Pellegrino telephoned McKee's wife to say he had shot McKee, but thought he had just winged him. Pellegrino hid the gun in a snowbank. The police traced his calls and soon arrived at the friend's home. After a bit of persuasion from his friend, Pellegrino surrendered.

¶7 Pellegrino was indicted on counts of first-degree murder, second-degree murder, and alternative counts of first-degree manslaughter. Trial was scheduled in August, but approximately three weeks beforehand, he sought to dismiss his public defender. The court granted the request. Pellegrino then invoked his right to represent himself. Concerned about his competence and his ability to adequately handle his own defense, the trial court appointed attorney Michael W. Strain to assist him. Pellegrino was found competent to stand trial after undergoing a series of mental evaluations. Trial took place in December 1996 and ended with a verdict of second degree murder and a sentence of mandatory life imprisonment.

¶8 Pellegrino raises the following self-styled appeal issues: (a) "Was there sufficient court prejudice, forgery, improper indictment, deprivation of constitutional rights, and speedy trial violations to require the matter to be dismissed?" (b) "Did the trial court error [sic] in tolling the 180 day rule because of ineffective counsel and improper commitment to the South Dakota Human Services Center?" (c) "Was it error to not instruct the jury that a burglary is a felony for purposes of self-defense in your home?" (d) "Was the homicide justified as a matter of law?" (e) "Was it error for the court to instruct the jurors that an aggravated assault has to be committed before a person can use deadly force in their own home?" (f) "Is

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SDCL 23A-44-5.1(4)(a) unconstitutional in that it forces a defendant to give up his right to a speedy trial to protect his right against unreasonable searches and seizures?" 1

Analysis and Decision

¶9 Trial courts possess broad discretion in instructing the jury. State v. Rhines, 1996 SD 55, p 111, 548 N.W.2d 415, 443, cert. denied, --- U.S. ----, 117 S.Ct. 522, 136 L.Ed.2d 410; State v. Bartlett, 411 N.W.2d 411, 415 (S.D.1987). "Jury instructions are adequate when, considered as a whole, they give the full and correct statement of the law applicable to the case." State v. Fast Horse, 490 N.W.2d 496, 499 (S.D.1992)(citing State v. Grey Owl, 295 N.W.2d 748, 751 (S.D.1980), appeal after remand, 316 N.W.2d 801 (S.D.1982)). Upon proper request, defendants are entitled to instructions on their defense theories if evidence supports them. State v. Helmer, 1996 SD 31, p 42, 545 N.W.2d 471, 478; State v. Blue Thunder, 466 N.W.2d 613, 620 (S.D.1991); State v. Esslinger, 357 N.W.2d 525, 532 (S.D.1984). To warrant reversal, defendants must show that refusal to grant an instruction was prejudicial, meaning "the jury ... probably would have returned a different verdict if [the] requested instruction had been given." Rhines, 1996 SD 55 at p 111, 548 N.W.2d at 443; Bartlett, 411 N.W.2d at 415 (quoting Grey Owl, 295 N.W.2d at 751).

1. Lethal Force in Defense of Home and Self

¶10 On the right to use lethal force in his home, Pellegrino charges an array of errors which we condense for clarity. His arguments are rooted in the view that "if a person is unlawfully in a home, any force is justified." Our statute governing this point states:

Homicide is justifiable when committed by any person when resisting any attempt to murder such person, or to commit any felony upon him or her, or upon or in any dwelling house in which such person is.

SDCL 22-16-34. To Pellegrino, the court's instructions unduly confined what he believes is a broad statutory privilege to kill. 2 He seems to argue that if one commits any felony in or upon a home, death may be imposed without qualification, even without apparent necessity. If this is what the statute truly intends, then he may be entitled to acquittal as a matter of law as he asserts. This statute, however, obviously codifies the common law and therefore must be read in comprehension of it and our other statutes controlling the use of deadly force. Cf. State v. Burns, 15 Or.App. 552, 516 P.2d 748, 752 (1973)(legislative intent in enacting self-defense statutes was to codify the common law, not create new standard); SDCL 1-1-23 and -24. Even on the frontier in 1877 when this law was first enacted, surely human life was never so lightly valued. Pen.C. 1877, subdiv. 1.

¶11 The feudal concept of home as castle was borne of an age when inhabitants were compelled to turn their dwellings into fortified strongholds. The idea endures into modern times. State v. Taylor, 143 Mo. 150,

Page 595

44 S.W. 785, 788 (1898). But in our legal tradition, except at its uncivilized beginnings, people were not entitled to kill an assailant unless they honestly and reasonably believed their lives were in danger from assault, "or when a felonious assault is being made upon the house, as to commit a burglary, arson, or other felony therein or against the inmates." Id. (quoting Lord Hale in Pleas to the Crown (1 Hale, P.C. 484)); R. Perkins, Criminal Law 1022, n. 1 (2d ed. 1969). Over the years, confusion arose from a too broad interpretation of the castle doctrine: under the common law this precept was merely a "limitation on the duty to retreat." State v. Brookshire, 353 S.W.2d 681, 690 (Mo.1962), cert. denied, Brookshire v. Missouri, 371 U.S. 67, 83 S.Ct. 155, 9 L.Ed.2d 119. Home is a shelter and a refuge, not "a free-fire zone." State v. Miskimins, 435 N.W.2d 217, 222 (S.D.1989); see also State v. Hauge, 1996 SD 48, p 9, 547 N.W.2d 173, 176 (home--"the last citadel").

¶12 Pellegrino contends that McKee committed a burglary, and, as a result, deadly...

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