State v. White Mountain, 17399
| Decision Date | 12 September 1991 |
| Docket Number | No. 17399,17399 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Kevin J. WHITE MOUNTAIN, Defendant and Appellant. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Mark W. Barnett, Atty. Gen., Pierre, Gary R. Campbell, Asst. Atty. Gen., Pierre, for plaintiff, appellee.
James R. Minick, Minick & McCulloch, Elk Point, for defendant, appellant.
Kevin J. White Mountain (White Mountain) appeals his judgment of conviction for simple assault and aggravated assault. We affirm.
White Mountain went drinking with his brothers on July 23, 1990. Later that evening he got angry with his wife, Delia White Mountain (Delia). He pushed her around, grabbed her by the hair, and hit her in the face several times.
Delia and her friend LeDean Robinson (Robinson) stayed in a locked trailer until they thought White Mountain was gone. A short time later, as Robinson was walking to a car in the parking lot, White Mountain ran up from behind and grabbed her by the hair. He hit her with his fist several times in the back of her head. She fell to the ground and he repeatedly kicked her in the head and stomach. While Robinson begged him to stop the beating, White Mountain yelled: Robinson feared for her life. Six trailer park residents called the police while this beating was taking place. White Mountain was still beating Robinson when the police arrived at the scene. White Mountain fled on foot but was caught by a police officer.
An emergency medical technician who lived in the trailer park came out and rendered medical assistance to Robinson. The police offered to take Robinson to the hospital but she declined the offer because she could not afford a hospital bill. Robinson suffered extensive bruising to her head, face, shoulder, neck and abdomen. Five months after the assault she still had sore ribs and a sore forearm.
On July 24, 1990, White Mountain was charged with simple assault under SDCL 22-18-1(5) and aggravated assault under SDCL 22-18-1.1(1). On November 13, 1990, State filed an amended information, which corrected an error in the original information. 1 The amended information also listed several witnesses that were not listed in the original information.
The case was tried before a jury on November 15, 1990. White Mountain moved to exclude all new witnesses named in the amended information or in the alternative, he requested a continuance to prepare for trial with the new witnesses. The trial court denied the motion to exclude the witnesses and the motion for continuance. The jury found White Mountain guilty of simple assault on Delia and aggravated assault on Robinson.
White Mountain contends the trial court should have excluded the new witnesses named in the amended information or should have granted the continuance to prepare for the new witnesses.
SDCL 23A-6-10 provides:
The prosecuting attorney shall endorse upon each information the names of the witnesses known to him at the time of its filing. Any further endorsement of names upon the information shall be done only with permission of the court. This section shall not preclude calling any witnesses whose names or the materiality of whose testimony is first learned by the prosecuting attorney during the trial. This section does not require the endorsement of names of witnesses which are to be used only in rebuttal.
In other words, the trial judge has discretion in deciding whether to allow late endorsement of witnesses. State v. Huettl, 379 N.W.2d 298 (S.D.1985); State v. Wolford, 318 N.W.2d 7 (S.D.1982). This Court stated in Huettl:
In the absence of some showing that the state's attorney acted in bad faith or abused his position in deliberately withholding the witness' name and that the accused was substantially prejudiced, admission of the testimony will not constitute grounds for reversal.
At trial, White Mountain objected to the late endorsement of these witnesses. The state's attorney argued there was no prejudice because he contended the names of all of the new witnesses were contained in the police report. White Mountain's attorney complained that state's attorney was abusing the process. 2 State's attorney claimed he had just learned of the witnesses that week. Crucially, the trial court established that the new witnesses would only testify about hearing the altercation and calling the police. The trial court consequently viewed their testimony as merely cumulative of the testimony of witnesses properly endorsed in the original information.
After hearing the arguments, the trial judge stated:
All right. It's going to be the ruling of the Court, the motion [to exclude witnesses] is denied. It's close, however, Mr. Thompson. I have to say you should provide a witness list prior to this time. I know you're trying to settle the case and there is a difficulty sometimes, but leaving it until the last minute before trial, does put all parties, including the Court, into a position where if the witnesses could have been discovered earlier, their testimony may have been pertinent, very substantial, and the defendant would not have an opportunity to investigate it.
From what you're telling me this morning, that testimony would not be substantially prejudicial to the defendant over and above who was known and reported earlier and was available. Therefore, the motion is denied. That includes the motion to continue, ... (emphasis added).
The trial judge did not approve of the state's attorney's tactics. However, because the evidence of the newly endorsed witnesses was cumulative in nature, the trial court concluded that allowing the witnesses to testify would not be substantially prejudicial to White Mountain's defense.
We do not approve of the Clay County State's Attorney's intentional abuse of relief provisions of the information statute. However, after carefully reviewing the record, we are convinced the trial court did not abuse its discretion. While the unique facts of this case do not justify reversal, the state's attorney's practices frustrate the purpose of the information statute and could, in another case, seriously jeopardize a criminal defendant's right to a fair trial.
We have reviewed the record and conclude that there was sufficient evidence to support a conviction under SDCL 22-18-1.1(1). That statute covers "all acts, so long as (1) the person either attempted to cause or actually did cause serious bodily injury to another, and (2) the circumstances under which the act was done manifested extreme indifference to the value of human life." State v. Rash, 294 N.W.2d 416, 418 (S.D.1980).
The jury heard the evidence and judged the credibility of the witnesses. That testimony proved that White Mountain repeatedly kicked Robinson in the head and stomach and only stopped when the police arrived. While he was beating her he was yelling that she was going to die. "Serious bodily injury" is defined as "such injury as is grave and not trivial, and gives rise to apprehension of danger to life, health or limb." State v. Janisch, 290 N.W.2d 473, 476 (S.D.1980). The evidence, viewed in the light most favorable to the verdict, was sufficient to support a jury's conclusion that White Mountain attempted to cause serious bodily injury in circumstances demonstrating extreme indifference to the value of human life.
Last, White Mountain complains that he did not receive effective assistance of counsel because his attorney did not interview all of the witnesses listed on the police report. Based on the present state of the record on direct appeal, we cannot hold that White Mountain's representation was "so casual" as to represent a "manifest usurpation" of his constitutional rights. State v. Jett, 474 N.W.2d 741, 742-43 (S.D.1991). Affirmed.
Here, the state's attorney deliberately withheld the witness' names and the accused was substantially prejudiced.
Clay County State's Attorney, by his own admission on the record, fashioned his own criminal procedure in derogation of SDCL...
To continue reading
Request your trial
-
State v. Beynon
...of [Beynon's] constitutional rights thereby triggering the 'plain error' rule." Jett, 474 N.W.2d at 743. Accord State v. White Mountain, 477 N.W.2d 36, 39 (S.D.1991). The judgment of conviction is MILLER, C.J., and HENDERSON and AMUNDSON, JJ., concur. SABERS, J., concurs in part and concurs......
-
State v. Eagle Star, 19439
...as " 'such injury as is grave and not trivial, and gives rise to apprehension of danger to life, health or limb.' " State v. White Mountain, 477 N.W.2d 36, 39 (S.D.1991) (quoting State v. Janisch, 290 N.W.2d 473, 476 (S.D.1980)). The nature and extent of Victim's injuries was an essential e......
-
State v. McGill
...representation " 'so casual' as to represent a 'manifest usurpation' of [the defendant's] constitutional rights." State v. White Mountain, 477 N.W.2d 36, 39 (S.D.1991) (citing State v. Jett, 474 N.W.2d 741, 742-43 (S.D.1991)). The facts of this record do not fall within the above exception.......
-
State v. Solis
...Fasthorse, 2009 S.D. 106, ¶¶ 10-11, 776 N.W.2d 233, 237; State v. Eagle Star, 1996 S.D. 143, ¶ 27, 558 N.W.2d 70, 76; State v. White Mountain, 477 N.W.2d 36, 39 (S.D. 1991); State v. Bogenreif, 465 N.W.2d 777, 781 (S.D. 1991); State v. Dace, 333 N.W.2d 812, 822-23 (S.D. 1983); State v. Will......