State v. Waff

Citation373 N.W.2d 18
Decision Date31 July 1985
Docket NumberNo. 14336,14336
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. David WAFF, Defendant and Appellant.
CourtSupreme Court of South Dakota

Mark Smith, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Robert Van Norman, Rapid City, for defendant and appellant.

WOLLMAN, Justice.

Defendant was convicted by a Hughes County jury (venue having been changed from Lawrence County) of conspiracy to commit murder in the first degree and of first-degree murder. The jury rejected the State's request that Waff be sentenced to death on the count of first-degree murder and instead recommended that he be sentenced to life imprisonment. SDCL 23A-27A-2; 23A-27A-4. Defendant has appealed. We affirm.

The charges against defendant were based upon the killing of Russell Keller on October 22, 1981. We set forth a full account of the circumstances that led to Keller's death in our opinion in State v. Wiegers, 373 N.W.2d 1 (S.D.1985), which we incorporate by reference here. Accordingly, we will set forth in this opinion only those facts that are necessary for an understanding of the issues raised by defendant.

In essence, the State's case against Waff was that he had been approached by one of his drug customers, Scott Whitesell, about killing Keller in exchange for the payment of money. Defendant initially demurred to this proposition, but later told Whitesell that he would perform the killing. Whitesell passed this information on to Donald Wiegers, who in turn told Keith Iwan that he had found someone who would kill Keller. Iwan passed this information on to Melvin Brown, Keller's father-in-law, who had earlier inquired of Iwan whether he knew anyone who would commit the murder. Brown then gave Iwan $2,000 in cash. Iwan passed the money on to Wiegers, who in turn gave it to Whitesell, who ultimately delivered it to defendant.

Iwan testified that Brown had told him that he, Brown, had gone out in Keller's place in response to defendant's call for a wrecker. Brown told Iwan that when he reached the scene of the allegedly disabled vehicle he had spoken to the person who had placed the call. The vehicle driven by that individual was a van carrying New York state license plates. Rick Demma testified that he had permitted defendant, whom he had met earlier that year, to borrow his van, which bore New York license plates, a number of times in 1981. Although Demma had permitted some five other persons to use the van that year, he had never given Whitesell permission to use it. Defendant's former girlfriend corroborated the fact that defendant had used Demma's van on a number of occasions in the fall of 1981.

Keller's widow testified regarding an incident during which her husband had received a call to go out with the wrecker some two weeks before he was killed. Because Keller was busy at the time, the call was answered by Brown. She also testified regarding the call that Keller had received on the evening of October 22, 1981, which caused him to drive to the place where he was later killed.

Whitesell testified in defendant's case, as he had in Wiegers' case, that prior to the killing Waff had shown him a small pistol that resembled the pistol that Waff pawned at a Rapid City gun shop on November 6, 1981. Whitesell also testified that defendant had shown him a bullet, on the tip of which defendant had carved an "x" in order to make it explode upon impact and thus be untraceable. Defendant also told Whitesell about his first attempt to kill Keller, which failed when Brown responded to defendant's fake wrecker call in place of Keller. Whitesell also testified that on the day Keller's body was found defendant had told him that he had killed Keller by shooting him in the head and then dragging his body into the ditch. Whitesell then delivered the balance of the contract killing price to defendant at defendant's request.

The .25 caliber bullet that was removed from Keller's skull had had an "x" inscribed on its tip. The bullet was identified as having been fired from the pistol that Waff had pawned on November 6, 1981, as was the spent cartridge case found at the scene where Keller had been shot. Additionally, the State's evidence established that the firing pin on Waff's pistol had been altered, probably by filing, after firing the fatal shot.

Testifying in his own behalf, defendant acknowledged that he had been involved in selling drugs in Rapid City following the completion of his enlistment in the air force. He acknowledged that Whitesell was one of his customers and that Whitesell had frequently come to his residence in 1981. Waff explained that he had purchased the .25 caliber pistol for self protection in May of 1981 after being robbed of some money and drugs. He testified that Whitesell had borrowed the pistol on one occasion in September of 1981. According to Waff's testimony, Whitesell had come to Waff's residence at approximately 11:30 on the morning of October 22, 1981, had asked to use Waff's telephone, and had borrowed the pistol, which he returned the following day. Telephone records indicate that a telephone call was made from Waff's phone at 11:54 a.m., October 22, 1981, to the telephone at Keller's place of business in Deadwood.

Waff denied having committed the murder, denied any knowledge of the murder, and denied having altered the firing pin on his pistol.

Defendant has raised some seven issues in his original and supplemental briefs. *

I.

REFUSAL OF TRIAL COURT TO INSTRUCT ON FIRST AND

SECOND-DEGREE MANSLAUGHTER

The trial court refused to give defendant's proposed instructions that would have informed the jury that defendant could be found guilty of either first-degree manslaughter or second-degree manslaughter if the jury concluded that defendant was not guilty of the offenses charged in the indictment. We conclude that the trial court did not err in doing so.

SDCL 22-16-4 defines first-degree murder as follows:

Homicide is murder in the first degree when perpetrated without authority of law and with a premeditated design to effect the death of the person killed or of any other human being, or when committed by a person engaged in the perpetration of, or attempt to perpetrate, any arson, rape, robbery, burglary, kidnapping, or unlawful throwing, placing, or discharging of a destructive device or explosive.

SDCL 22-16-15 defines first-degree manslaughter as follows:

Homicide is manslaughter in the first degree when perpetrated:

(1) Without a design to effect death by a person while engaged in the commission of a misdemeanor involving moral turpitude;

(2) Without a design to effect death, and in a heat of passion, but in a cruel and unusual manner;

(3) Without a design to effect death, but by means of a dangerous weapon;

(4) Unnecessarily, either while resisting an attempt by the person killed to commit a crime or after such attempt shall have failed.

Manslaughter in the first degree is a Class 1 felony.

SDCL 22-16-20 defines second-degree manslaughter as follows:

Any reckless killing of one human being by the act or procurement of another which, under the provisions of this chapter, is neither murder nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree. Manslaughter in the second degree is a Class 4 felony.

It is true, as defendant points out, that this court has consistently held that the crimes of first and second-degree manslaughter are lesser offenses included within the crime of murder and that the jury must be so instructed. State v. Hubbard, 20 S.D. 148, 104 N.W. 1120 (1905); State v. Stumbaugh, 28 S.D. 50, 132 N.W. 666 (1911); State v. Godlasky, 47 S.D. 36, 195 N.W. 832 (1923); State v. Painter, 70 S.D. 277, 17 N.W.2d 12 (1944); State v. Violett, 79 S.D. 292, 111 N.W.2d 598 (1961); State v. Zobel, 81 S.D. 260, 134 N.W.2d 101 (1965); State v. Grooms, 85 S.D. 532, 186 N.W.2d 889 (1971); State v. Lewis, 90 S.D. 615, 244 N.W.2d 307 (1976); State v. Vassar, 279 N.W.2d 678 (S.D.1979). See also State v. Lohnes, 324 N.W.2d 409 (S.D.1982).

With the exception of our decision in Lohnes, however, all of the foregoing decisions were rendered prior to our adopting and applying the two-part test for determining whether an offense is necessarily included within a greater offense as set forth in Justice Zastrow's special concurrence in State v. Kafka, 264 N.W.2d 702, 705 (S.D.1978). This two-part test consists of a legal test and a factual test.

The legal test contains three conditions:

[F]irst, the elements of the included offense must be fewer in number than the elements of the greater charged offense. Second, the penalty for the included offense must be less than the greater charged offense in terms of the maximum punishment attached to each offense. Third, ... the two offenses must contain common elements so that the lesser included offense must be such that the greater offense cannot be committed without also committing the lesser.

264 N.W.2d at 705.

The factual test is as follows:

"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. (citations omitted) 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."

264 N.W.2d at 706, quoting People v. Karasek, 63 Mich.App. 706, 234 N.W.2d 761 (1975).

The foregoing two-part test is now clearly the law in this state. See, e.g., State v. Poss, 298 N.W.2d 80 (S.D.1980); State v. Oien, 302 N.W.2d 807 (S.D.1981); State v. Heumiller, 317 N.W.2d 126 (S.D.1982); State v....

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