State v. Tapio

• Decision Date: 11 July 1990
• Docket Number: 16653,Nos. 16634,s. 16634
• Citation: 459 N.W.2d 406
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Robert Dean TAPIO, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 406

459 N.W.2d 406

STATE of South Dakota, Plaintiff and Appellee, v. Robert Dean TAPIO, Defendant and Appellant.

Nos. 16634, 16653.

Supreme Court of South Dakota.

Argued March 21, 1990.

Decided July 11, 1990.

M. Bridget Ryan, Asst. Atty. Gen., Pierre (Roger A. Tellinghuisen, Atty. Gen., Pierre, on the brief), for plaintiff and appellee.

George E. Grassby of Whiting, Hagg & Hagg, Rapid City, for defendant and appellant.

MORGAN, Justice.

Robert Dean Tapio (Tapio) appeals a judgment rendered on a jury verdict convicting him of second-degree murder, arising from his participation in the death of Chris Janis (Janis). This is a companion case to State v. Brings Plenty, 459 N.W.2d 390 (# 16613 in conference). We affirm.

Janis' death resulted from a bludgeoning at the hands of Tapio and Blaine Brings Plenty (Blaine) in the front yard of Vera Brings Plenty's (Vera) home at 12 Neptune in Rapid City. The general background as found in the record is detailed in Brings Plenty, supra, and additional facts will be supplied where relevant to the discussion of the issues.

Tapio was charged by Information with four alternative homicide counts: (1) premeditated first-degree murder (SDCL 22-16-4); (2) second-degree murder by acts imminently dangerous to others and evinc-ing a depraved mind (SDCL 22-16-7); (3) first-degree manslaughter in a heat of passion, but in a cruel and unusual manner (SDCL 22-16-15(2)); and, (4) first-degree manslaughter by means of a dangerous weapon (SDCL 22-16-15(3)).

The jury returned a guilty verdict of second-degree murder, a violation of SDCL 22-16-7. Tapio was sentenced to serve life without parole in the state penitentiary.

On appeal, Tapio raises four issues:

1. Whether the trial court erred in not instructing on lesser included offenses of second-degree manslaughter, aggravated assault, simple assault, and attempts to all offenses charged and proposed.

2. Whether the trial court erred in allowing Tapio to be impeached with custodial statements that were held to be in violation of his Miranda rights.

3. Whether the trial court abused its discretion when it refused to allow Tapio to individually question and sequester potential jurors.

4. Whether the trial court abused its discretion in admitting photos and evidence seized at the scene.

By notice of review, the State raises the following issue:

Whether the trial court was clearly erroneous and/or erred as a matter of law in excluding Tapio's post-Miranda statements.

In his first issue, Tapio claims that second-degree manslaughter (SDCL 22-16-20), aggravated assault (SDCL 22-18-1.1(2) and (4)), and simple assault (SDCL 22-18-1(2) and (3)), should have been given as lesser included offenses of the crimes charged. He also claims that instructions on attempted first-degree murder, attempted second-degree murder, and attempted first-degree manslaughter should have been given.

This court has approved a legal and factual test for determining whether the trial court should have submitted a lesser included offense instruction to the jury. State v. Gillespie, 445 N.W.2d 661 (S.D.1989); State v. Scholten, 445 N.W.2d 30 (S.D.1989); State v. Gregg, 405 N.W.2d 49 (S.D.1987). Because we have held that the trial court is not required to instruct the jury even as to those offenses which might be included offenses under the legal test, but which the evidence would not warrant, State v. O'Connor, 86 S.D. 294, 194 N.W.2d 246 (1972), and because we find the factual test dispositive, we look to that test first. In discussing the factual test, we have stated:

Where a request has been made to charge the jury on a lesser-included offense, the duty of the trial judge is determined by the evidence. If evidence has been presented which would support a conviction of a lesser charge, refusal to give the requested instruction would be reversible error.... There must be sufficient evidence, however, when read in the light most favorable to the defendant, which would justify a jury in concluding that the greater offense was not committed and that a lesser offense was, in fact, committed. (Emphasis in original.)

Scholten, 445 N.W.2d at 32 (citing State v. Rich, 417 N.W.2d 868 (S.D.1988)). See also Gregg, supra; State v. Woods, 374 N.W.2d 92 (S.D.1985). "A trial court is not required to instruct on matters that find no support in the evidence...." State v. Wilson, 297 N.W.2d 477, 482 (S.D.1980); State v. Kafka, 264 N.W.2d 702, 703 (S.D.1978).

In fact, this court has cautioned that a lesser included offense instruction deemed unnecessary, factually or otherwise, may be considered detrimental to the jury process. In State v. Feuillerat, 292 N.W.2d 326, 334 (S.D.1980) (citation omitted), this court stated, as follows:

The early cases point out and emphasize and we must stress again, because the question keeps recurring, that a determination of whether an instruction on a lesser included crime should be given to a jury is not solved by merely determining the crime charged includes the lesser offense because juries are not to be given the discretion or freedom to pick and choose what offense the accused should be found guilty of. The evidence must throw doubt upon the greater offense.... Juries cannot rightly convict of the lesser offense merely from sympathy or for the purpose of reaching an agreement. They are bound by the evidence and should be limited to those included crimes which a reasonable view of the evidence will sustain and does not convince beyond a reasonable doubt the additional element of the greater crime existed.

See also Rich, supra. In light of the above, a jury is properly restricted as to the spectrum of criminal activity it may consider when the evidence warrants instruction only on the greater offenses.

With these principles in mind, we examine Tapio's arguments. It is Tapio's contention that he was only involved in the first fight with Janis where Janis sustained minor injuries. Assuming, for the determination of the propriety of the instructions, that this were the case, Tapio could still be found guilty of the death of Janis because he acted at least as an aider and abettor. ¹ Tapio's actions in beating Janis initially weakened him so he could not protect himself during the subsequent clubbing. Furthermore, Tapio's participation in stopping Cameron Red Star--who, having observed the beating of Janis from the trailer at 12 Neptune, left to summon the police, only to be beaten to the ground by Tapio and Blaine--allowed the beating of Janis to continue. Graham v. State, 346 N.W.2d 433 (S.D.1984) (robbery plan called for knocking victim out, still aider and abettor to murder though did not strike blow); State v. Schafer, 297 N.W.2d 473 (S.D.1980) (keeping watch in car a safe distance from burglary still made defendant guilty of burglary). Since Janis died and Tapio could have been found guilty as an aider and abettor, it would have been inappropriate to instruct on aggravated or simple assault or the attempted homicide instructions. Gregg, supra. Simply put, once there was a death, the attempt charges became moot. Additionally, contrary to Tapio's argument, there is no offense of attempted second-degree murder. State v. Lyerla, 424 N.W.2d 908 (1988), cert. denied 488 U.S. 999, 109 S.Ct. 774, 102 L.Ed.2d 767 (1989).

Next, Tapio suggests that the jury should have been instructed on the assault charges and attempts because medical personnel's failure to resuscitate Janis after he stopped breathing was the proximate cause of his death. State counters that Tapio waived this issue by failing to cite authority for the position. We agree. Massey Ferguson Credit Corp. v. Bice, 450 N.W.2d 435 (S.D.1990); Schmidt v. Wildcat Cave, Inc., 261 N.W.2d 114 (S.D.1977).

Finally, the second-degree manslaughter instruction was properly rejected. Tapio concedes that if testimony of Lori Brings Plenty (Lori), Ollie Brings Plenty (Ollie), and Vera (all witnesses who observed the beating from the trailer) is believed, there would be sufficient evidence to convict him of second-degree murder, since their testimony established that he took part in beating Janis with clubs. Tapio seeks, however, to discredit their testimony. In Lori's case, he claims that she could not see the events clearly; in Ollie's case, he claims that she lied about events early on, therefore, everything she says is unbelievable; and, in Vera's case, he claims she recanted everything she said and asserts that she was not present. These arguments go only to the weight of the testimony, which the jury properly considered. State v. Huber, 356 N.W.2d 468 (S.D.1984); State v. Peck, 82 S.D. 561, 150 N.W.2d 725 (1967). They do not negate that the greater offense was committed. Moreover, there was overwhelming direct and circumstantial evidence to substantiate the second-degree murder charge.

Clearly then, the factual test was not met because there was evidence that the greater offense was committed. Without overcoming this first hurdle, Tapio had no right to request the lesser offense of second-degree manslaughter. Scholten, supra; Gregg, supra.

Tapio's second issue contends that his due process rights were violated when the trial court permitted use of his custodial statements for impeachment purposes. He premises his arguments on three factors: inadequate Miranda warnings, lack of a knowing and intelligent waiver of the Miranda safeguards, and involuntariness. The factual background for Tapio's second issue is that he was interrogated on three separate occasions by Detective William Egan (Egan) of the Rapid City Police Department: first at the police department at about 1:00 a.m. on January 10, 1988, for approximately one-half hour; then again two hours later, around 3:00 a.m., for one-half hour; and, finally, at the Pennington County Jail on January 11, 1988, at about 8:30 a.m., for approximately fourteen minutes. This is the same Detective Egan who interrogated Blaine, using somewhat the...