State v. Woods

• Decision Date: 15 October 1985
• Docket Number: No. 14536,14536
• Citation: State v. Woods, 374 N.W.2d 92 (S.D. 1985)
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Wayne WOODS, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 92

374 N.W.2d 92

STATE of South Dakota, Plaintiff and Appellee, v. Wayne WOODS, Defendant and Appellant.

No. 14536.

Supreme Court of South Dakota.

Argued Jan. 10, 1985.

Decided Sept. 4, 1985.

Rehearing Denied Oct. 15, 1985.

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

Kenn A. Pugh of Northern Hills Public Defenders' Office, Deadwood, for defendant and appellant; Marie E. Clark of Northern Hills Public Defenders' Office, Deadwood, on brief.

HENDERSON, Justice.

ACTION

This is an appeal from a final Judgment of Conviction of Murder in the First Degree. We affirm.

FACTS

On November 7, 1983, at 12:00 p.m., Wayne Woods, appellant-defendant herein, burglarized the home of James Everett in rural Lawrence County and stole several items including three rifles and a pistol. Woods then left Everett's home and returned to Rapid City where he met his friend Ruben Garcia. Garcia was fourteen years old and on juvenile probation for burglary. The two then decided to burglarize Everett's home again. The pair arrived at Everett's at 5:00 p.m. At this point in the scenario, the testimony becomes conflicting. Deputy Nels Juso of the Lawrence County Sheriff's Office testified that Woods stated that both of them entered the house and were in a bedroom when they saw headlights and heard a car approaching. Juso testified that Woods said the pair then ran out the front door and into some trees behind the house from where they watched Everett. Woods further told Juso that Everett initially surveyed the losses inside the house, then examined Woods' car license plates and returned to the house. Deputy Juso further testified that Woods said he knew Everett and that he approached the back door of the house for the purpose of apologizing to Everett for burglarizing his home. Woods told Juso that he entered the back door and saw Everett coming around a corner in a crouched position and pointing a gun at him. According to Woods' story to Juso, Woods attempted to say "Jim" and then Woods pulled out a revolver and fired once at Everett.

Garcia, however, testified at trial that only Woods entered the Everett house and when the car approached, he ran to the trees and was joined there by Woods. As Everett examined his losses, Garcia said they made plans. Garcia offered, "Let's get in the car and take off," to which Woods replied, "No, he's already got my license number." Woods then said, "Well, I don't want to get caught so we're going to have to shoot him." Woods asked Garcia if he would like to shoot Everett and when Garcia said he could not, Woods said, "Well, I'm going to have to do it." Woods then approached the back door, peeked through the window, and waited for Everett with his gun drawn. Garcia testified that Woods then swung the door open, stepped in, and fired. This shot ended the life of James Everett.

It is not in dispute that the pair then fled the scene in Woods' car and while returning to Rapid City, wrecked the vehicle and continued on foot before calling for a ride. Later that same night, Woods reported his car stolen.

On November 18, 1983, Woods was taken into custody and interrogated at the Pennington County Sheriff's Department by Pennington County and Lawrence County Deputies. During the course of the interrogations, Woods made certain incriminating statements and consented in writing to the search of his home and car which led to the discovery of the murder weapon.

On February 17, 1984, a jury found Woods guilty of First-Degree Murder. Woods did not take the stand in his defense during the trial. Woods was sentenced to life in prison and it is from his conviction of First-Degree Murder that Woods now appeals.

DECISION

I.

DID THE TRIAL COURT ERR BY REFUSING TO INSTRUCT THE JURY AS TO FIRST- AND SECOND-DEGREE MANSLAUGHTER? WE HOLD THAT IT DID NOT.

Before a South Dakota trial court can instruct the jury as to lesser-included offenses, two separate tests must be met. First, the legal test requires:

(1) [T]he elements of the included offense must be fewer in number than the elements of the greater offense, (2) the penalty for the included offense must be less than the greater charged offense, and (3) the two offenses must contain common elements so that the included offense must be such that the greater offense cannot be committed without also committing the lesser. State v. Kafka, 264 N.W.2d 702, 705 (S.D.1978) (Zastrow, J., concurring specially).

State v. Oien, 302 N.W.2d 807, 809 (S.D.1981). Second, the factual test must be met and it requires:

"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."

Oien, 302 N.W.2d at 809 (citation omitted).

It is no longer the law in South Dakota that in all murder trials, the trial court must automatically instruct the jury as to all lesser degrees of homicide. See State v. Waff, 373 N.W.2d 18, 21-23 (S.D.1985). If the evidence does not admit or support an instruction on a lesser degree of homicide, the trial court need not give it. Waff. The development of the law and sound reasoning has led to this result thus, past cases which have expressed contradictory views have been overruled. ¹

Under the factual test outlined above, the trial court's duty to instruct as to lesser-included offenses "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." Oien, 302 N.W.2d at 809 (citation omitted). Appellant Woods argues that both the legal and the factual tests have been satisfied. In support of his contention that evidence was presented which would have supported a manslaughter conviction and thus the factual test has been met, appellant points to the testimony of Lawrence County Deputy Sheriff Nels Juso. ²

Deputy Juso testified that Woods indicated that he approached the house to apologize to the decedent and that he shot in self-defense or out of instinct when he saw decedent pointing a gun at him. Appellant contends that this evidence would support a conviction of manslaughter in that the jury could interpret it to be reckless conduct or the use of a dangerous weapon without a premeditated design to effect death and therefore the trial court's refusal to instruct as to manslaughter constituted reversible error.

The State, in contravention, argues that Deputy Juso's recollection of Woods' ever-changing version of Everett's death is simply not sufficient evidence, or not enough evidence, even when read in the light most favorable to the defendant, to justify a jury in concluding that manslaughter was committed instead of first-degree murder. Upon his arrest, Woods initially denied having anything to do with Everett's death and then came up with his self-defense/apology story after realizing Garcia had also been interrogated.

Garcia, however, testified that Woods rejected the idea of knocking Everett out, which Garcia suggested, because Everett would still remember the license plate number and that Woods then said, "Well, I don't want to get caught so we're going to have to shoot him." Woods thereupon asked Garcia if he wanted to shoot him and when Garcia said no, Woods said, "Well, I'm going to have to do it." Garcia testified that Woods then approached the house with his gun drawn and peeked through the windows and eventually entered the house and fired the shot that killed Everett. The State argues that the evidence, taken as a whole, showed that appellant Woods had the intent to kill and that Deputy Juso's testimony concerning Woods' statement was insufficient evidence to instruct the jury on manslaughter. With the State's contentions, we agree.

The trial court does not have to instruct on matters not supported or warranted by the evidence. State v. Fender, 358 N.W.2d 248, 252 (S.D.1984); State v. Huber, 356 N.W.2d 468, 472 (S.D.1984); Miller v. State, 338 N.W.2d 673, 676 (S.D.1983); State v. Chamley, 310 N.W.2d 153, 155 (S.D.1981); Oien, 302 N.W.2d at 809; State v. Curtis, 298 N.W.2d 807, 810 (S.D.1980); State v. Wilson, 297 N.W.2d 477, 482 (S.D.1980); State v. Feuillerat, 292 N.W.2d 326, 334 (S.D.1980); and State v. Bean, 265 N.W.2d 886, 891 (S.D.1978). As stated above, this applies in homicide cases and if the evidence does not admit or support an instruction on a lesser degree of homicide, the trial court need not give it. Waff. Here, construing the facts most favorably toward appellant, we are not convinced that sufficient evidence was presented which would justify a jury in concluding that murder was not committed and that manslaughter was committed. We therefore conclude that a manslaughter instruction was properly refused by the trial court.

II.

DID THE TRIAL COURT ERR BY REFUSING TO INSTRUCT THE JURY ON JUSTIFIABLE HOMICIDE? WE HOLD THAT IT DID NOT.

"Homicide is justifiable when committed by any person in the lawful defense of such person ... when there is reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished." SDCL 22-16-35 (emphasis supplied). The trial court, however, need not instruct on self-defense, excusable homicide, or justifiable homicide, if the evidence does not support an instruction thereon. See State v. Huber, 356 N.W.2d at 473-74; State v. Zemina, 87 S.D. 291, 299-300, 206 N.W.2d 819, 823 (1973); and State v. Johnson, 81 S.D. 600, 608, 139 N.W.2d 232, 237 (1965). Upon a...