State v. Shaw

Decision Date19 October 2005
Docket NumberNo. 23153.,23153.
Citation705 N.W.2d 620,2005 SD 105
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. James SHAW, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Lawrence E. Long, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, SD, for plaintiff and appellee.

Timothy J. Rensch, Rensch Law Office, Rapid City, SD, for defendant and appellant.

GILBERTSON, Chief Justice (on reassignment).

[¶ 1.] James Shaw (Shaw) appeals his conviction for attempted first degree murder and aggravated assault. We affirm.


[¶ 2.] In the summer of 1999, Shaw was employed as a cook at the Crazy Horse monument in Custer County, South Dakota. The victim, J.W.H., was a minor at the time and was also employed at the monument. Both J.W.H. and Shaw were permitted to live on site in trailer houses. J.W.H. lived in a trailer along with two roommates, Joseph White Hat (White Hat) and another minor, K.D. Shaw had one roommate, Derek Pond (Pond). All the roommates either worked together or were acquainted with each other from their employment at the monument. Trouble between J.W.H. and his roommates arose when J.W.H. was accused of taking their food and borrowing compact discs without permission. Shaw also accused J.W.H. of stealing beer from his refrigerator.

[¶ 3.] In the evening hours of July 11, 1999, the co-workers put a fund together to purchase beer for a party. Shaw and Pond left in Pond's small pickup and returned with three or four cases of beer. A carload of young people arrived shortly after, including Shaw's seventeen-year-old girlfriend R.N. A Crazy Horse security guard arrived an hour and a half into the party and advised the group that those who did not live at the trailers were to leave. The party-goers began to disperse.

[¶ 4.] Rather than end the party, Shaw, White Hat, Pond, J.W.H., K.D. and R.N. decided to take the beer and move the party to another location. Pond and White Hat rode in Pond's small pickup, while Shaw drove White's Hat's four-door white Lincoln with J.W.H, R.N. and K.D. as passengers. After driving through Custer, South Dakota, the drivers took back streets and arrived somewhere east of town before getting lost along a dirt road. After coming to a small run-off rivulet crossing the road, the beer and all the passengers were transferred to the small pickup as the white Lincoln was not suitable for off-road travel. Pond continued driving, while White Hat sat in the passenger seat. Everyone else sat in the truck bed. Pond continued to drive without knowing exactly where they were, and eventually stopped when he came to a fence that none of the occupants wanted to open. Shaw, White Hat, R.N. and K.D. exited the pickup, while Pond remained in the driver's seat listening to compact discs and talking with J.W.H., who had moved into the passenger seat.

[¶ 5.] While J.W.H. and Pond were sitting in the cab of the pickup truck, Shaw and White Hat approached. Shaw and White Hat reached into the vehicle and jerked J.W.H. out. Shaw accused J.W.H. of stealing beer from Shaw's refrigerator and punched J.W.H. in the face. Not wanting to provoke further confrontation, J.W.H. got up and returned to the cab of the truck.

[¶ 6.] Eventually the group decided to return to town because they had to work the next day. J.W.H., Shaw, White Hat, and K.D. jumped into the bed of the pickup, allowing R.N. the passenger seat. As the truck traveled back to the location of White Hat's white Lincoln, it hit a bump in the road causing J.W.H. to lose his balance. White Hat and Shaw then threw him from the back of the pickup where he landed hard on the ground and rolled into some water. J.W.H. stood up and angrily threw his soaking wet jacket into the back of the truck.

[¶ 7.] White Hat and Shaw then jumped from the bed of the pickup and began hitting J.W.H. J.W.H. testified at trial that Shaw hit him first and then White Hat hit him, knocking him to the ground. After he was down, White Hat and Shaw began repeatedly kicking J.W.H. J.W.H. curled up into a ball and put his hands over his face. Once the initial kicking attack stopped, J.W.H. moved his hands away from his face. One of the attackers then kicked him in the face and the kicking attack began anew. J.W.H. realized that a third person, K.D., had joined in the kicking during the second phase of the attack.

[¶ 8.] Once the second wave of kicking ceased, J.W.H. testified he was unable to move and remained immobilized on the ground as the three attackers walked away. J.W.H. heard Shaw and White Hat talking, and then felt both men grab him beneath his arms and drag him into the run-off rivulet the group had crossed earlier. The two assailants then dropped J.W.H. face first into the water. One of the assailants then ground J.W.H.'s face into the bottom of the pool of water, allowed him to surface and then pushed his face back under the water.

[¶ 9.] The attackers then walked away from their victim, only to come back a few minutes later. J.W.H. testified he heard two people coming toward him, who then grabbed the back of his head and pulled him out of the water. J.W.H. then testified he felt a "sharp pain" on the side of his neck which felt like he had been stabbed with a needle-like object. The attackers then flopped J.W.H.'s head back into the water and walked away.

[¶ 10.] J.W.H. testified that as the attackers walked away from him, he heard Shaw say "well, he's way out here [and] no one is going to find him." To which J.W.H. testified he heard White Hat reply "he's dead, [c]ome on, [and] let's go." J.W.H. testified he heard someone say "check if he's dead." J.W.H. played dead in order to avoid further injury. J.W.H. also testified he believed Pond had come back to check on him, picked up his head and exclaimed "Oh my God."

[¶ 11.] Once J.W.H. heard everyone leave, he pulled himself out of the water and onto dry ground. J.W.H. began shivering with cold, and grabbed his neck where it was hurting. He then noticed a two-lane trail and followed it for over two miles until he reached a ranch house. The residents of the ranch house provided J.W.H. with basic aid for the deep slash in his throat. J.W.H. was transported to a local hospital where he named his attackers to police as White Hat and Shaw. J.W.H.'s injuries included hypothermia, a probable concussion, a deep neck wound that exposed his pulsating carotid artery and several large veins, a laceration on the top of his head, as well as scattered cuts and abrasions on his body. The neck wound required suturing in layers, and the head laceration had to be stapled shut.

[¶ 12.] Several hours later, the individuals involved were arrested. At the time of his arrest, Shaw had J.W.H.'s blood on his pants and wet shoes. Shaw and White Hat blamed each other for slashing J.W.H.'s throat. White Hat ultimately pleaded guilty to attempted first degree murder.

[¶ 13.] Shaw was charged with alternate counts of attempted first degree murder and attempted second degree murder, as well as aggravated assault. A Part II Information was filed against Shaw due to a prior escape conviction. Under a plea agreement with the State, Shaw agreed to plead guilty to aggravated assault in exchange for the dismissal of the attempted murder charge and the Part II Information. However, contrary to the plea agreement, the State asked for the maximum penalty on the aggravated assault charge after it had agreed to remain silent as to the sentence. Shaw was sentenced to fifteen years in the state penitentiary.

[¶ 14.] Shaw filed an application for Writ of Habeas Corpus alleging a violation of due process and ineffective assistance of counsel because the State violated the plea agreement. The habeas court vacated the fifteen-year sentence and the judgment of conviction. The parties stipulated to the withdrawal of the plea agreement.

[¶ 15.] The State amended its complaint against Shaw, charging him with attempted first degree murder under SDCL 22-16-41 and 22-4-1(1)2 and aggravated assault under SDCL 22-18-1.1(1),3 along with being a habitual offender in a Part II Information. Trial on the matter was held before a jury on November 5, 2003. Shaw was found guilty of attempted first degree murder and aggravated assault, and pleaded guilty to the Part II Information. Shaw was sentenced to sixty years in the state penitentiary on the attempted first degree murder conviction, with thirty-five years suspended. He was sentenced to twenty-five years in the state penitentiary on the aggravated assault conviction, with ten years suspended. The trial court imposed consecutive sentences.

[¶ 16.] Several days after the conviction, defense counsel moved for a new trial after discovering a written statement by White Hat claiming that Shaw did not know of, and had nothing to do with, the attempted murder of J.W.H. The trial court denied the motion.

[¶ 17.] Shaw appeals, raising the following issues:

1. Whether the trial court erred when it refused to instruct the jury that the victim's prior inconsistent statements could be used as substantive proof of the matter asserted.

2. Whether there was sufficient evidence to support the convictions.

3. Whether the trial court erred in refusing to grant a new trial when alleged exculpatory evidence was discovered after trial.


[¶ 18.] The standard of review for a trial court's denial of a proposed jury instruction is well settled. State v. Martin, 2004 SD 82, ¶ 21, 683 N.W.2d 399, 406.

We review a trial court's refusal of a proposed instruction under an abuse of discretion standard. The trial court has broad discretion in instructing the jury. Jury instructions are satisfactory when, considered as a whole, they properly state the applicable law and inform the jury. Error in declining to apply a proposed instruction is reversible only if it is prejudicial, and the...

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