State v. Pulfrey, 19064

• Decision Date: 30 November 1995
• Docket Number: No. 19064,19064
• Citation: 548 N.W.2d 34,1996 SD 54
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Rick PULFREY, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 34

548 N.W.2d 34

1996 SD 54

STATE of South Dakota, Plaintiff and Appellee, v. Rick PULFREY, Defendant and Appellant.

No. 19064.

Supreme Court of South Dakota.

Considered on Briefs Nov. 30, 1995.

Decided May 8, 1996.

Mark Barnett, Attorney General, Patricia J. Froning, Assistant Attorney General, Pierre, for plaintiff and appellee.

Michael Stonefield, Office of the Public Defender, Rapid City, for defendant and appellant.

SABERS, Justice.

¶1 Pulfrey appeals a life sentence for first-degree manslaughter as unconstitutional cruel and unusual punishment. We affirm.

FACTS

¶2 On the evening of October 15, 1993, Pulfrey and Wendy Powell, his girl friend of eight years were at their home watching television and drinking alcohol. They got into an argument, which escalated into a physical fight, with both parties striking each other. At some point, Pulfrey claimed Wendy bit him on the leg. He became very angry and hit and kicked Wendy multiple times in the chest and abdomen. Pulfrey dragged Wendy to the door and threw her onto the porch. A neighbor noticed Wendy lying on the porch and called Pulfrey, who let her back into the house. He noticed she was wheezing and having trouble breathing. Pulfrey called his mother, Helen, and asked her to come over. When she arrived, she asked whether Wendy wanted to go to the hospital, but Wendy indicated she only wanted to get away from Pulfrey. Helen took Wendy to her home and helped her into a bedroom. When Helen awoke the next morning and went to check on Wendy, she discovered Wendy was dead. An autopsy revealed numerous bruises and scrapes over Wendy's body. She also had extensive internal injuries, including lacerations to her liver and one kidney, multiple fractures to her ribs, and a bruise on her right lung. Death was caused by internal bleeding from blunt force injuries to her abdomen and chest. In effect, she was kicked to death.

¶3 Pulfrey was interviewed by police officers the morning after Wendy was killed. He told one officer that he and Wendy had been fighting and it got out of hand. He stated he asked Wendy to leave, but she would not, which "set [him] off." When asked why he "lost it," he responded: "[Because] I was drinking, seems like every time we drink, it seems like we end up in a fight ... I mean sometimes I'd start it sometimes she'd start it." The officer asked why he continued to kick her after she stopped fighting. Pulfrey initially claimed it was due to alcohol. The officer told him, "... you can't blame this all on drinking[.]" Pulfrey responded he had "mental problems," that he was schizophrenic, and that alcohol set it off.

¶4 Pulfrey was diagnosed with paranoid schizophrenia in 1988. Dr. Stephen Manlove evaluated Pulfrey's state of mind the night of the fight and his competency to stand trial. Dr. Manlove indicated it was likely that Pulfrey was mentally ill the night of the fight and that Pulfrey told him that voices told him to "get [Wendy] before she got him."

¶5 Pulfrey pled guilty but mentally ill to first-degree manslaughter and was sentenced to life imprisonment. He filed a motion for reconsideration of sentence which was denied. He appeals.

¶6 1. Is Pulfrey's life sentence unconstitutional?

¶7 Pulfrey argues his life sentence is unconstitutional cruel and unusual punishment because it is either manifestly disproportionate to the crime or shocks the conscience. The maximum sentence for first-degree manslaughter is life imprisonment. SDCL 22-6-1; see SDCL 22-16-15.

"On appeal, we first determine whether the sentence 'shocks the conscience' or is so disproportionate to the crime that it activates the Eighth Amendment 'within and without jurisdiction' proportionality tests." It is settled law in this state that absent a sentence which is so excessive in duration that it shocks the conscience of the court, a sentence that is within statutory limits is not reviewable on appeal. This court has developed a two-fold test to determine whether the sentence is so constitutionally offensive as to shock the conscience:

First, is the punishment so excessive or so cruel, 'as to meet the disapproval and condemnation of the conscience and reason of men generally.' And second, whether the punishment is so excessive or cruel as to shock the collective conscience of this court.

State v. Kaiser, 526 N.W.2d 722, 726 (S.D.1995) (citations and quotations omitted).

¶8 The first test is whether Pulfrey's sentence "meets the disapproval and condemnation of the conscience and reason of men generally." Pulfrey argues other states do not allow life sentences in voluntary manslaughter cases. He presents statutes from outside this jurisdiction to show that only in South Dakota and Oklahoma is it statutorily possible to receive a life sentence for voluntary manslaughter. ¹

¶9 " 'Public intent is reflected in the legislative acts defining the permissible punishment for specific crimes.' " State v. Pack, 516 N.W.2d 665, 668 (S.D.1994) (quoting State v. Phipps, 318 N.W.2d 128, 132 (S.D.1982), appeal dismissed, 406 N.W.2d 146 (S.D.1987)). The South Dakota Legislature allows a sentence of life imprisonment for voluntary manslaughter. SDCL 22-6-1. Pulfrey points out that this court in Bult v. Leapley, 507 N.W.2d 325 (S.D.1993) (Bult II) held the sentences shocked the consciences of men generally as well as this court, though within the statutory maximum. However, this court has also stated, " '[e]very felony sentence is not subjected to exhaustive review; generally, a sentence within the statutory maximum is not disturbed.' " Kaiser, 526 N.W.2d at 726 (quoting State v. Reed 451 N.W.2d 409, 410 (S.D.1990)). Pulfrey has failed to establish grounds for reversal under this test.

¶10 The second test is whether the punishment is so excessive or cruel as to shock the collective conscience of this court. In developing an appropriate sentence,

"the sentencing court should ' "acquire a thorough acquaintance with the character and history of the man before it." ' This study should examine a defendant's general moral character, mentality, habits, social environment, tendencies, age, aversion or inclination to commit crime, life, family, occupation, and previous criminal record."

State v. Chase in Winter, 534 N.W.2d 350, 354 (S.D.1995) (quoting Pack, 516 N.W.2d at 667-68 (citations omitted)).

¶11 Pulfrey has been convicted of two felonies (both third-degree burglary) and other crimes, including tampering with a motor vehicle, driving while intoxicated (three offenses), possession of drug paraphernalia, refusing to leave, and disorderly conduct. He was on parole until March 1993.

¶12 Pulfrey began hearing voices in 1987 and was diagnosed with paranoid schizophrenia in 1988. He states he has been an alcohol abuser since he was a teenager. He completed a chemical treatment program in 1990. He underwent mental health counseling from 1990 to 1993, and medication was prescribed. When he was released from parole supervision in 1993, he stopped taking his medication regularly and began to drink.

¶13 In his statement to police on October 16, 1993, the morning of Wendy's death, Pulfrey did not mention hearing voices. Dr. Manlove held two interviews with Pulfrey on December 6 and December 9, 1993. Pulfrey told him he decided to stop taking the medication in March 1993 because he planned to drink and use drugs again. Pulfrey said he heard voices again and by late summer or early fall, they were present almost every day. Pulfrey told Dr. Manlove that on the night of Wendy's death voices told him "essentially to get her before she got him throughout the altercation." Dr. Manlove indicated: ²

It seems likely that Mr. Pulfrey was mentally ill at the time of the alleged offense. He has a chronic mental illness, schizophrenia, which [preceded] the events 10/15/93. He had been off of his medications since March of 1993 and he reports that his psychotic experiences had worsened since being off the medications. This was further complicated by use of alcohol and other substances.

¶14 The trial court considered all of the above information in sentencing Pulfrey. Pulfrey has not challenged the trial court's knowledge of his character and history.

¶15 Pulfrey claims his life sentence should shock the conscience of this court because a life sentence differs from a term of years sentence. State v. Holloway, 482 N.W.2d 306, 311 (S.D.1992); State v. Weiker, 366 N.W.2d 823, 825 (S.D.1985) (Weiker II). This court discussed life sentences (imposed on habitual offenders) in State v. Weiker, 342 N.W.2d 7 (S.D.1983) (Weiker I). The goals of sentencing are retribution, deterrence, both individual and general, and rehabilitation. Weiker I, 342 N.W.2d at 11 (citing Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). This court has also recognized incapacitation as a valid sentencing goal. State v. Gehrke, 491 N.W.2d 421, 425 (S.D.1992) (citing Harmelin v. Michigan, 501 U.S. 957, 999, 111 S.Ct. 2680, 2704, 115 L.Ed.2d 836, 868 (1991)). One purpose is not preeminent over any of the others. "[T]here is nothing in the Constitution that says that 'rehabilitation' is the sole permissible goal of incarceration[.]" Atiyeh v. Capps, 449 U.S. 1312, 1314, 101 S.Ct. 829, 830, 66 L.Ed.2d 785, 788 (1981).

¶16 A life sentence without parole deters the convict from committing crime and exacts retribution. Bult II, 507 N.W.2d at 327; Weiker I, 342 N.W.2d at 11. The following observation regarding retribution as a sentencing goal was made by Justice Potter Stewart:

I cannot agree that retribution is a constitutionally impermissible ingredient in the imposition of punishment. The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders...