State v. Weddell

• Decision Date: 29 July 1987
• Docket Number: No. 15439.,15439.
• Citation: 410 N.W.2d 553
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. James R. WEDDELL, Defendant and Appellant.
• Court: South Dakota Supreme Court

410 N.W.2d 553

STATE of South Dakota, Plaintiff and Appellee, v. James R. WEDDELL, Defendant and Appellant.

No. 15439.

Supreme Court of South Dakota.

July 29, 1987.

Robert Mayer, Asst. Atty. Gen., Roger A. Tellinghuisen, on brief, Atty. Gen., Pierre, for plaintiff and appellee.

Lee A. Tappe, Platte, for defendant and appellant.

WUEST, Chief Justice.

Defendant, James Weddell, appeals his conviction of manslaughter in the first degree. We affirm.

On the evening of February 28, 1986, Randy Caldwell (Caldwell), was beaten to death outside a liquor store in Wagner, South Dakota. Witnesses saw three men armed with clubs attack Caldwell. Death resulted from head injuries received in the attack.

On March 5, 1986, defendant and co-defendants Michael Honomichl (Honomichl) and Enos Weston (Weston) were indicted for murder in the second degree and manslaughter in the first degree. Prior to trial defendant filed a motion to sever his case from that of his two co-defendants. Defendant asserted that it was possible each co-defendant would implicate the other at a joint trial and severance was necessary to avoid prejudice to defendant. The trial court denied defendant's motion.

Trial commenced on April 29, 1986, at which defendant again renewed his motion for severance. The motion was denied. At trial, both Honomichl and Weston testified that they did not strike Caldwell but that defendant did. Defendant, however, testified that both Honomichl and Weston struck Caldwell with clubs. The trial court granted Weston's motion for judgment of acquittal before the case was decided, but both Honomichl and the defendant were found guilty of manslaughter in the first degree. Defendant was sentenced to eighty years in the South Dakota State Penitentiary.

Defendant argues denial of severance prejudiced his right to a fair trial. Defendant claims the trial court erred in denying his pretrial severance motion because he informed the court he believed the co-defendants might incriminate each other and thereby present "antagonistic" defenses. In denying defendant's motion the trial court stated it did not believe it possessed persuasive evidentiary statements certain to appear at trial that would justify severance. Defendant renewed his motion for severance when the co-defendants began incriminating each other at trial as predicted, but the trial court denied defendant's renewed motion for severance. The court pointed out "we are now deeply into this trial," and the court further indicated it was still not convinced that severance was necessary. Defendant argues denial of his severance motions prejudiced his right to a fair trial.

Severance will be allowed upon a showing of real prejudice to a defendant. Courts have a continuing duty at all stages of the trial to grant a severance if prejudice does appear. Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960); United States v. Boyd, 610 F.2d 521 (8th Cir.1979). The motion to sever is addressed to the sound discretion of the trial court, and a denial of severance is not grounds for reversal unless clear prejudice and an abuse of discretion are shown. State v. Andrews, 393 N.W.2d 76 (S.D.1986); State v. Maves, 358 N.W.2d 805 (S.D.1984); State v. No Heart, 353 N.W.2d 43 (S.D.1984). Where each convicted defendant is shown to have participated in a common criminal act, more must be shown than that a severance might have afforded an increased chance of acquittal. A defendant must demonstrate affirmatively that the joint trial prejudiced the possibility of a fair trial. Andrews, supra; No Heart, supra.

When co-defendants have antagonistic defenses, the courts have applied a specific test to determine whether the trial was unfair.

While there are situations in which inconsistent defenses may support a motion for severance, the doctrine is a limited one.... The governing standard requires the moving defendant to show that "the defendants present conflicting and irreconcilable defenses and there is a danger that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty."

United States v. Haldeman, 181 U.S.App. D.C. 254, 559 F.2d 31, 71 (1976) (banc) (citation omitted) (Emphasis added), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). See also, United States v. DeLuna, 763 F.2d 897 (8th Cir. 1985); United States v. Romanello, 726 F.2d 173 (5th Cir.1984), reh. den. 732 F.2d 941; United States v. Russell, 703 F.2d 1243 (11th Cir.1983) reh. den. 708 F.2d 734; United States v. Puckett, 692 F.2d 663 (10th Cir.1982), cert. den. 459 U.S. 1091, 103 S.Ct. 579, 74 L.Ed.2d 939 and cert. den. 460 U.S. 1024, 103 S.Ct. 1276, 75 L.Ed.2d 497 (1983); United States v. Talavera, 668 F.2d 625 (1st Cir.1982) cert. den. 456 U.S. 978, 102 S.Ct. 2245, 72 L.Ed.2d 853; United States v. Berkowitz, 662 F.2d 1127 (5th Cir.1981); Boyd, supra; United States v. McPartlin, 595 F.2d 1321 (7th Cir.1979) cert. den. 444 U.S. 833, 100 S.Ct. 65, 62 L.Ed.2d 43.

"The mere presence of hostility among defendants or the desire of one to exculpate himself or herself by inculpating another have both been held to be insufficient grounds to require separate trials." United States v. Barber, 442 F.2d 517, 530 (3rd Cir.), cert. denied, 404 U.S. 958, 92 S.Ct. 327, 30 L.Ed.2d 275 (1971). "Thus antagonistic defenses do not require the granting of severance even when one defendant takes the stand and blames his or her co-defendant for the crime." McPartlin, 595 F.2d at 1334. See also, DeLuna, supra; Boyd, supra.

In this case the defenses were not irreconcilable. The state's expert witness testified that Caldwell died from multiple blows to the head. Numerous witnesses testified that both Honomichl and defendant struck Caldwell with clubs. This is not the case where only one blow caused death and each defendant accuses the other of the fatal blow.

The testimony by the State's expert witness and numerous eyewitnesses permitted the jury to find both defendants guilty without having to infer both were guilty based merely on the conflict alone. We therefore hold denial of defendant's motions for severance was not clearly prejudicial or an abuse of discretion.

Defendant's second argument is that the trial court erred in denying him motion for judgment of acquittal. Defendant claims the evidence was insufficient for the jury to find him guilty.

Our standard of review on denial of this motion is whether the State made out a prima facie case from which the jury could reasonably find the defendant guilty. State v. Bult, 351 N.W.2d 731 (S.D.1984); State v. Blakey, 332 N.W.2d 729 (S.D. 1983). Sufficiency of trial evidence rests on whether the evidence, if believed by the jury, is sufficient to find guilt beyond a reasonable doubt. State v. Faehnrich, 359 N.W.2d 895 (S.D.1984); State v. Phinney, 348 N.W.2d 466 (S.D.1984); State v. Jorgensen, 333 N.W.2d 725 (S.D.1983). In making such determination, this court will accept evidence and the most favorable inferences that can be fairly drawn from that evidence which will support the guilty verdict. Faehnrich, supra; State v. Schafer, 297 N.W.2d 473 (S.D.1980).

The verdict will not be set aside if the evidence sustains a rational theory of guilt. Faehnrich, supra. It is not an appropriate function of this court to resolve conflicts of evidence, determine the credibility of witnesses, or weigh the evidence. State v. Battest, 295 N.W.2d 739 (S.D.1980); State v. Minkel, 89 S.D. 144, 230 N.W.2d 233 (1975). Questions of credibility and weight of the evidence are jury questions. Blakey, supra; State v. Peck, 82 S.D. 561, 150 N.W.2d 725 (1967); State v. Burtts, 81 S.D. 150, 132 N.W.2d 209 (1964).

Witness testimony varied but did identify both defendant and co-defendant Honomichl as assailants.

Witness: Troy Greger testified he saw Honomichl strike Caldwell on the side of the head with a bumper jack and saw defendant strike Caldwell with what appeared to be a crowbar.

Witness: Cindy Greger testified that Honomichl struck Caldwell on the side of the head with a club and defendant struck Caldwell on the head with a "skinny iron bar."

Witness: Fred Greger testified that Honomichl struck Caldwell twice on the back of the head with a tan wooden club and defendant hit Caldwell in the back of the neck.

Witness: Scott Johnson testified he saw Honomichl standing over Caldwell's body with a jack and saw defendant running toward Caldwell with a wooden club.

Witness: Theron Greger saw defendant with a shiny metal club and saw Weston hit Caldwell on the back with a red club.

Witness: Tammy Archambeau testified that she saw Honomichl with a jack and saw defendant strike Caldwell with a crow bar or iron bar.

Witness: Brookie Zephier claims she saw defendant hit Caldwell with an "L" shaped iron and saw Weston hit Caldwell with a red club.

Witness: Kevin Blaine saw Honomichl hit Caldwell on the left side of the head, saw defendant strike Caldwell twice on the side of the face, and saw Weston strike Caldwell in the ribs with a wooden club or axe handle.

Witness: Larry Honomichl saw defendant with a wooden club. He claims he heard defendant exclaim, "Boy, did you see that, Mick?.... I got him a good one."

Witness: Mike Weston saw Honomichl swing at Caldwell with a "red funnel" and saw defendant hit Caldwell on the left jaw with a wooden club. He claims he heard defendant exclaim "Did you see that?"

Witness: Co-defendant Enos Weston claims he saw defendant hit Caldwell on the left side of the head with a wooden club.

Witness: Co-defendant Michael Honomichl claims he only had a red plastic funnel but claims he saw defendant strike Caldwell on the jaw with a wooden club.

Witness: Defendant claims he hit Caldwell on the upper body with his wooden club and then ran over to where another fight was happening across the street. Defendant claims that he saw Honomichl with a jack and saw both Honomichl and Weston beating on Caldwell.

Defendant...