State v. Shell, 13099
| Decision Date | 04 February 1981 |
| Docket Number | No. 13099,13099 |
| Citation | 301 N.W.2d 669 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. John Louis Iron SHELL, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Mark Smith, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.
Brent A. Wilbur, May, Adam, Gerdes & Thompson, Pierre, for defendant and appellant.
Appellant was convicted by a Tripp County jury of simple assault and resisting arrest. This appeal is from the judgment on the verdicts. We affirm.
Early on June 20, 1979, Officer Curtis Blasy of the Winner, South Dakota, Police Department responded to a disturbance report at a local truck stop. Upon his arrival, he found no disturbance, but noticed a parked automobile in which appellant was seated on the passenger side. The officer approached the vehicle and observed several open beer and liquor containers. Appellant exited from the vehicle and began to walk away, at which point Officer Blasy informed him that he was under arrest for "open container." Appellant began to run, and a chase ensued. Approximately 50 yards from the car, the officer caught appellant, whereupon the two men struggled; appellant fell to the ground and Officer Blasy sprayed him with Mace. The officer was nonetheless unable to subdue appellant, who got to his feet and continued to run until Officer Blasy again caught him. They struggled further, and Officer Blasy administered additional Mace. At this point, Blasy noticed three men approaching and demanded that they assist him. They refused, and disappeared from view. While the officer continued to subdue appellant, he was attacked from behind and severely beaten. He testified that at least four men were involved in the beating; two pinned his arms to the ground while a third gouged his eyes and a fourth repeatedly struck his kneecaps with a length of pipe.
The evidence established that in the hours preceding the assault, appellant had been drinking with Alexander Siers, Clayton Waugh, and Darryl Iron Shell (appellant's brother). 1 These individuals had driven to the truck stop together in Darryl Iron Shell's automobile, but were not present when Officer Blasy first arrived. Appellant testified that when he escaped from the officer, he staggered toward the truck stop and was "grabbed" by "one of my brothers or something, I think it was one of my brothers, and the car came up and I got in and we took off."
Appellant first contends that his due process rights were violated by the admission of testimony concerning an identification of appellant's brother that stemmed from an admittedly tainted out-of-court identification procedure.
At the time of the incident, Paul Storms, a Winner resident, was driving in the vicinity of the truck stop and observed three Indian males emerge from behind a wooden fence located at the rear of the truck stop and depart in the Iron Shell vehicle. The following day, Wayne Everson, an agent for the South Dakota Division of Criminal Investigation, showed him seventeen photographs of Indian males. When Storms was unable to identify any of the individuals, Everson directed his attention to three specific photographs (of appellant, his brother Darryl, and Alexander Siers) and asked if he could identify any of them. At that point, Storms identified the three as the individuals he observed enter the Iron Shell vehicle and drive out of town.
Appellant was first brought to trial in March, 1980. A defense motion to suppress Storms' identification of the defendant was heard in chambers. The trial court ruled that the identification procedure was unconstitutional. Upon the prosecutor's representation that the invalid identifications would be used only to identify Darryl Iron Shell (appellant's brother), the court allowed Everson to so testify. When testimony before the jury resumed, however, the following colloquy occurred between the prosecutor and Everson:
Defense counsel promptly moved for a mistrial because Everson's testimony had improperly included appellant as one of the persons identified as a result of the admittedly tainted identification procedure. The motion was granted. A new trial commenced several weeks later. Again, the defense moved to suppress any identifications made by Storms, and the court again ruled that Everson could testify as long as he did not state that appellant was among those identified by Storms. Everson's testimony at the second trial complied with that limitation.
Appellant contends that Agent Everson's testimony at the second trial concerning Storms' identification of appellant's brother operated to deny his due process rights. However, unless there is a reasonable possibility that such testimony contributed to appellant's conviction, reversal is not required. State v. Johnson, 87 S.D. 43, 202 N.W.2d 132 (1972). We see little connection between the challenged testimony and appellant's conviction. Appellant suggests that the testimony severely weakened his defense because it conflicted with his claim that he was picked up in the alley and not in the parking lot of the gas station. This overlooks the fact that Everson did not state at the second trial that appellant was one of the individuals entering the car in the parking lot, but merely stated that Storms identified appellant's brother as the driver. It is true that the court instructed the jury on aiding and abetting, but the fact remains that appellant admitted his presence with Siers, Waugh and Darryl Iron Shell at the scene. Similarly, he admitted fleeing the area with the other men. In view of such evidence, we conclude that Everson's testimony was, at most, cumulative in its effect and, as such, harmless. State v. Johnson, supra; Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972).
Appellant next contends that his second trial, following the mistrial, caused him to be twice put in...
To continue reading
Request your trial
-
State v. Moeller
...broad discretion of the trial court. Peery v. South Dakota Department of Agriculture, 402 N.W.2d 695, 696 (S.D.1987); State v. Iron Shell, 301 N.W.2d 669, 672 (S.D.1981). We will reverse the trial court's decision only where there has been a clear showing of an abuse of discretion. Id.; Hil......
-
State v. Baker
...we have also held that a jury is at liberty to evaluate and weigh an expert's testimony in arriving at its verdict. State v. Shell, 301 N.W.2d 669 (S.D.1981). A jury is not bound to accept the expert's testimony as conclusive and they may disregard it if they so choose. State v. Swallow, 35......
-
State v. Logue
...State v. Bittner, 359 N.W.2d 121, 125-26 (S.D.1984) ( citing state v. Lachowitzer, 314 N.W.2d 307 (S.D.1982) and State v. [Iron] Shell, 301 N.W.2d 669 (S.D.1981). See also Buckley v. Fredericks, 291 N.W.2d 770, 771 (S.D.1980); Kramer v. Sioux Transit, Inc., 85 S.D. 232, 180 N.W.2d 468 (1970......
-
State v. Bittner, 14011
...will not be reversed absent a clear showing of abuse of that discretion. State v. Lachowitzer, 314 N.W.2d 307 (S.D.1982); State v. Shell, 301 N.W.2d 669 (S.D.1981). We conclude that the trial judge did not abuse his discretion by refusing to allow Gribben to testify as an expert. First, Gri......