Stumes v. Delano

Decision Date20 April 1993
Docket NumberNo. 18004,18004
Citation508 N.W.2d 366
PartiesNorman STUMES, Applicant and Appellant, v. Lynn DELANO, Acting Warden, South Dakota State Penitentiary, Respondent and Appellee. . Considered on Briefs
CourtSouth Dakota Supreme Court

Julie Irvine, Minnehaha County Public Defender, Sioux Falls, for applicant and appellant.

Mark Barnett, Atty. Gen., Sherri Sundem Wald, Asst. Atty. Gen., Pierre, David O. Carter, Sp. Asst. Atty. Gen., Sioux Falls, for respondent and appellee.

BERNDT, Circuit Judge.


On March 23, 1974, Norman Stumes (Stumes) was adjudicated guilty by a jury of first degree manslaughter in the September 17, 1973, strangulation death of Joyce Hoff (Hoff). On March 27, 1974, Stumes was sentenced to life in prison.

Stumes' procedural history can be seen in State v. Stumes, 241 N.W.2d 587 (S.D.1976); Stumes v. Solem, 511 F.Supp. 1312 (1981); Stumes v. Solem, 671 F.2d 1150 (8th Cir.1982); In re Stumes, 681 F.2d 524 (8th Cir.1982); Solem v. Stumes, 463 U.S. 1228, 103 S.Ct. 3568, 77 L.Ed.2d 1409 (1983); Solem v. Stumes, 464 U.S. 808, 104 S.Ct. 57, 78 L.Ed.2d 75 (1983); Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984); Stumes v. Solem, 752 F.2d 317 (8th Cir.1985); and Stumes v. Solem, 471 U.S. 1067, 105 S.Ct. 2145, 85 L.Ed.2d 502 (1985).

On April 7, 1989, Stumes filed an application for writ of habeas corpus challenging the legality of his incarceration on the manslaughter conviction on the basis of:

1. Failure to prove "heat of passion"

2. Ineffective assistance of counsel

On September 25, 1991, Stumes sent a letter to the South Dakota Board of Pardons and Paroles, requesting a parole eligibility date pursuant to SDCL 23-60-4, which was repealed in 1978. The request was denied on December 31, 1991, with a certificate of service to Stumes dated January 28, 1992. Stumes did not appeal from the findings of fact, conclusions of law and order entered.

On May 1, 1992, the habeas court issued findings of fact and conclusions of law and an order denying Stumes' application for habeas corpus relief. Stumes appeals the two issues raised in the April 7, 1989, writ of habeas corpus and the December 31, 1991, refusal of the parole board to set parole eligibility under SDCL 24-15-3. We affirm.
















At trial, Stumes submitted proposed instructions which included an instruction on first degree manslaughter/heat of passion. Stumes points out that at the time of trial, settled law in the State of South Dakota required jury instructions on first and second degree manslaughter as lesser-included offenses of murder.

As manslaughter is distinguished into first and second degrees and included in the charge of murder, the jury had the legal right to convict the accused of either of such lesser offenses, the degree of which must be found, and it was therefore insufficient and erroneous to instruct as to manslaughter in the first degree without defining the second degree of that crime.

State v. Hubbard, 20 S.D. 148, 150, 104 N.W. 1120, 1121 (S.D.1905).

At the time of Stumes' trial, the manslaughter statutes in effect were as follows:

SDCL 22-16-15 [As of 1974]. Manslaughter in first degree--Killing during commission of misdemeanor.--Homicide is manslaughter in the first degree when perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor involving moral turpitude.

[Amended SL 1976, ch 158, Sec. 16-3; 1977, ch 189, Sec. 41 to]

SDCL 22-16-20 [As of 1974]. Manslaughter in second degree--All killings not otherwise provided for.--Every killing of one human being by the act, procurement, or culpable negligence of another which, under the provisions of this chapter, is not murder nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.

[Amended SL 1976, ch 158, Sec. 16-4; 1977, ch 189, Sec. 42.]

The South Dakota Supreme Court has since formally abandoned the previous line of decisions which held that first and second-degree manslaughter are automatically lesser included offenses within murder. The court has instead gone to a two-part test for lesser-included offenses. State v. Waff, 373 N.W.2d 18 (S.D.1985).

The instructions were rejected in their entirety by the trial court. The trial court then entered its own proposed instructions which included the instruction on manslaughter in the first degree as a lesser-included offense of murder.

No objection was made to the instructions. The instructions were essentially the text of South Dakota Pattern Jury Instruction (Criminal) 3-7-320, 3-7-320a, 3-7-320b, 3-7-320d, and 3-7-320e, which were, as indicated in the notes accompanying the pattern instruction, statements taken from statute, SDCL 22-16-16, and decisions of the South Dakota Supreme Court. Stumes, 241 N.W.2d at 588.

SDCL 22-16-16 [As of 1974]. Heat of passion--Cruel and unusual killing--Use of dangerous weapon.--Homicide is manslaughter in the first degree when perpetrated without a decision to effect death and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide.

[Repealed by SL 1976, ch 158, Sec. 16-9.]

In Stumes, 241 N.W.2d at 588, Instruction No. 14 concerning manslaughter in a "cruel and unusual manner" was challenged and found without merit. Now Stumes challenges Instruction No. 13 concerning "heat of passion":

The term "heat of passion" as used in these Instructions, which reduces a killing from murder to manslaughter in the first degree, means such sudden passion as was the result of sufficient provocation which as induced by the act of the person slain as amounts to temporary obscurement of reason, and renders a person incapable of forming a premeditated design to kill and which passion continues to exist until the commission of the homicidal act. The heat of passion which will reduce what would otherwise be murder to manslaughter in the first degree is such mental disturbance or condition as would so overcome and dominate or suspend the exercise of the judgment of the defendant as to render his mind for the time being deaf to the voice of reason, making him incapable of forming and executing the distinct intent to take human life essential to murder, and to cause him, uncontrollably, to act from impending force of the disturbing cause rather than from any real wickedness of heart or cruelty or recklessness of disposition. The sufficient provocation must be such as would naturally and reasonably arouse the passion of an ordinary man beyond his power of control.

The defendant does not have the burden of proving that the killing was a result of a "heat of passion." "Heat of passion" negatives intent and the burden is upon the State to prove beyond a reasonable doubt that the killing was with the premeditated design to effect death and was not the result of heat of passion.

Stumes argues that the "no evidence" criteria set out in Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960) for habeas corpus proceedings should be set aside and the holding of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) should be adopted. Generally, Thompson states that the ultimate question is whether the charges rest upon any evidence at all rather than upon sufficiency of evidence. Jackson states that the question is whether there was sufficient evidence to justify a rational trier of fact to find guilt beyond a reasonable doubt.

At trial, Stumes testified that he went over to Hoff's apartment in the early morning on September 17, 1973, to talk to her about Sierri White. Stumes testified that he and White had lived together for about two years; that they had broken up toward the end of August; and that she was living with her parents in Hills, Minnesota. There had been testimony that Hoff and two friends had driven to Hills, Minnesota earlier that same night to visit White. There was also testimony that later in the evening, Stumes had said to acquaintances at a bar where Hoff was present that it was Hoff's fault that he lost White.

Stumes testified that he had broken down emotionally while talking to Hoff in the living room at her apartment. Stumes testified that the two talked further in her bedroom and eventually ended up having sexual intercourse.

While being returned to South Dakota from Wisconsin where he was taken into custody Stumes gave law enforcement officials additional information concerning events that night. Detective Skadsen testified that Stumes said that Hoff threatened to tell White about their sexual activities. Stumes stated that he begged Hoff not to say anything to White. Stumes stated that he became scared that Hoff was going to tell White. Stumes said that he struck Hoff, knocked her off the bed, and then strangled her. The coroner testified that Hoff had injuries which were in keeping with Stumes' admissions to law enforcement. While in jail Stumes told Skadsen, "Please tell them that I didn't mean to kill her, that it was an accident--that I'm not a vicious killer."

The testimony given by Skadsen about statements made by Stumes was challenged as unconstitutional in Stumes, 511 F.Supp. 1312, 1324 (1981). The district court held that while it was a close call, the questioning did not...

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