State v. Primeaux, 13692

• Decision Date: 28 December 1982
• Docket Number: No. 13692,13692
• Citation: 328 N.W.2d 256
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Roscoe PRIMEAUX, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 256

328 N.W.2d 256

STATE of South Dakota, Plaintiff and Appellee, v. Roscoe PRIMEAUX, Defendant and Appellant.

No. 13692.

Supreme Court of South Dakota.

Dec. 28, 1982.

Grant E. Gormley, Asst. Atty. Gen., Pierre, S.D., for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, S.D., on brief.

Owen R. Wipf of Wipf & Cotton, Wagner, for defendant and appellant.

DUNN, Justice.

This is an appeal from a judgment of conviction for one count of second-degree murder pursuant to SDCL 22-16-7 and two counts of aggravated assault pursuant to SDCL 22-18-1.1(1). We affirm.

During the evening of October 14, 1981, and in the early morning hours of October 15, 1981, there was a party in Melvin Cournoyer's (Melvin) trailer house in Wagner, South Dakota. The participants included Lydia Picotte (Lydia), Debbie Plenty Horse (Debbie), Rodney Provost (decedent), Fred Kazena, Jr. (Fred), and Melvin. Also in the trailer were five young children. Some of the participants had been drinking heavily throughout the evening.

During the festivities, a series of fights erupted. Although there is some dispute as to the order of events, it appears that Fred and the decedent first got into a dispute over decedent's identification card. Decedent struck Fred and threw him out of the trailer. Soon after, Lydia and Debbie got into a dispute and began fighting in the kitchen. While this fight was going on, Roscoe Primeaux (appellant) approached the trailer and knocked on the door. As appellant approached, he saw Fred, who was evidently passed out, on the porch steps. Decedent opened the door and, for no apparent reason, struck appellant, sending him backwards off the porch and onto a car parked next to the trailer. When he came to, appellant again walked up the stairs and around Fred and knocked on the trailer door. The fight between the women had ended and decedent allowed appellant to enter the trailer house.

At this point, it was well after 1:00 a.m. in the morning of October 15. Appellant, like several of the others, had also been drinking throughout the prior afternoon and evening. Upon being admitted to the trailer, appellant was offered a beer. He accepted it and joined the party.

Soon after, another fight broke out; this time between Debbie and decedent. The two were fighting on the floor when Lydia tried to break up the altercation. As Lydia was leaning over the two, she felt something on her back (not realizing she had been stabbed). As Lydia stood up, she saw appellant with a knife and he stabbed her again, this time underneath her arm. Lydia moved out of the way and sat down in an armchair.

Several participants testified that appellant then stabbed decedent numerous times while decedent was on the floor. At some point, Melvin was also stabbed but he was so intoxicated he did not realize it. Thereafter, Fred, who had been passed out on the steps leading to the trailer door, knocked on the door. Appellant opened the door, stabbed Fred, pulled him into the trailer, stabbed him again, and then pushed him in the general direction of the others. All this noise awakened Lydia's baby and it began to cry. Appellant apparently threatened to kill the baby if it did not stop crying. Soon after, appellant ran out of the trailer.

Immediately thereafter, Lydia and Debbie ran to the trailer court owner's residence, woke her, and had her summon the police and ambulance service. The police arrived at approximately 5:35 a.m. All the participants were taken to a local hospital and treated. An autopsy performed on decedent revealed fifteen significant stab wounds, a variety of abrasions and contusions and some superficial lacerations on one arm.

At approximately 7:00 a.m., appellant was arrested at a housing development in Wagner, South Dakota. His hands, trousers and boots were covered with blood. A blood sample was taken from appellant around 9:40 a.m. to determine his blood alcohol content. It tested at .13% by weight.

At trial, the jury convicted appellant of the second-degree murder of decedent and aggravated assault of Lydia and Fred. Appellant received life imprisonment for the second-degree murder conviction pursuant to SDCL 22-6-1(2). This sentence makes appellant ineligible for parole. SDCL 24-15-4, although the life sentence may be commuted. SDCL 24-14-1; 24-14-5. The two aggravated assault charges resulted in four and six-year terms respectively. Both sentences are to run concurrent with the life sentence. Appellant now appeals his conviction.

Appellant first contends the second-degree murder statute found at SDCL 22-16-7 ¹ is unconstitutionally vague. Appellant presents two theories to support his contention. First, appellant argues the language in SDCL 22-16-7 is not susceptible to accurate definition and, second, appellant argues the language in the statute defines criminal behavior which is easily confused with SDCL 22-16-15(3) which defines first-degree manslaughter. ² We address each theory in turn.

We do not believe, as appellant contends, that the phrase "any act imminently dangerous to others and evincing a depraved mind" is subject to uneven application and interpretation. The jury was given the following instruction by the trial court to define the phrase:

The phrase "evincing a depraved mind regardless of human life" means a person who is indifferent to the life of others, that is, a person who not only disregards the safety of another but is devoid of regard for the life of another.

The phrase "imminently dangerous act" means an act which is inherently dangerous which puts the lives of others in jeopardy.

We note other jurisdictions with similar statutory schemes have used this type of definition. Marasa v. State, 394 So.2d 544 (Fla.App.1981); Wagner v. State, 76 Wis.2d 30, 250 N.W.2d 331 (1977); Seidler v. State, 64 Wis.2d 456, 219 N.W.2d 320 (1974).

In State v. Bad Heart Bull, 257 N.W.2d 715 (S.D.1977), this court discussed the test for statutory vagueness in criminal statutes. We stated:

A crime must be statutorily defined with definiteness and certainty. A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process. A criminal statute must give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.

Id. at 720 (citations omitted); State v. Havens, 264 N.W.2d 918 (S.D.1978); State v. Martin, 85 S.D. 587, 187 N.W.2d 576 (1971). We believe SDCL 22-16-7 does give fair notice of what conduct is forbidden and we accordingly reject appellant's assertion that the statute is unconstitutionally vague.

Appellant's other theory alleges there is confusion as to the difference between first-degree manslaughter and second-degree murder. We do not agree. The crucial distinction between second-degree murder and manslaughter in the first degree is that the former requires a "depraved mind" as an element of the crime, while the latter does not. As the State points out, the "depraved mind" requirement is a genuine additional element which must be established in order to prosecute for second-degree murder. Hagenkord v. State, 100 Wis.2d 452, 302 N.W.2d 421 (1981).

Appellan...