U.S. ex rel. Means v. Solem, 79-2017

• Decision Date: 27 June 1980
• Docket Number: No. 79-2017,79-2017
• Citation: 646 F.2d 322
• Parties: UNITED STATES of America, ex rel. Ted MEANS, Appellee, v. Herman SOLEM, Warden, South Dakota State Penitentiary, Sioux Falls, South Dakota, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 322

646 F.2d 322

UNITED STATES of America, ex rel. Ted MEANS, Appellee, v. Herman SOLEM, Warden, South Dakota State Penitentiary, Sioux

Falls, South Dakota, Appellant.

No. 79-2017.

United States Court of Appeals,

Eighth Circuit.

Submitted April 18, 1980.

Decided June 27, 1980.

LeAnn Finke, Asst. Atty. Gen., Pierre, S.D. (argued), Mark V. Meierhenry, Atty. Gen., Pierre, S.D., on brief, for appellant.

James D. Leach, Rapid City, S.D., for appellee.

Before BRIGHT and ROSS, Circuit Judges, and SCHATZ, District Judge. ^*

ROSS, Circuit Judge.

Ted Means was convicted of riot to obstruct justice in violation of SDCL section 22-10-4 ¹ and sentenced to thirty months imprisonment. The Supreme Court of South Dakota affirmed the conviction. State v. Means, S.D., 276 N.W.2d 699 (1979).

Means thereafter filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition Means contended, inter alia, that the trial court's refusal to instruct on his theories of self-defense, defense of others, and ignorance or mistake of fact was a denial of due process, right to a trial by jury, and the right to be found guilty beyond a reasonable doubt. The district court, ² finding that the trial court's failure to instruct on Means' defense theories constituted error of a constitutional magnitude, granted the writ of habeas corpus and ordered that the petitioner be released from state custody.

On appeal, the state contends that the district court erred in ruling that under these circumstances, the petitioner was entitled to instructions embodying Means' theory of defense and that the trial court's refusal to so instruct was an error of constitutional magnitude. For the reasons discussed below, we affirm.

The parties have stipulated to the following facts for the purposes of this appeal. Fed.R.App.P. 10(d).

"On April 25, 1974, a trial was in progress at the Minnehaha County Courthouse in Sioux Falls, South Dakota, in a highly publicized case, State v. Bad Heart Bull, et al. (S.D., 257 N.W.2d 715) in which several Native American persons were being prosecuted for alleged participation in a disturbance at South Dakota's Custer County Courthouse in February, 1973. The defendants were represented by one Native American attorney, Ramon Roubideaux of South Dakota, and by two white attorneys from outside South Dakota. All three attorneys refused to proceed with the voir dire examination on the ground that they could not conscientiously do so until a ruling was received from the South Dakota Supreme Court regarding the number of peremptory challenges available to them. The ruling was expected within twenty-four hours.

"When the attorneys refused to proceed, presiding Judge Bottum ordered the Native American attorney, Mr. Roubideaux, jailed for twenty-four hours and fined $100. The two white attorneys were dismissed from the case, but were not fined or jailed. Court was dismissed for the day and Mr. Roubideaux was led to jail.

"On April 26, 1974, attorney Roubideaux was returned from jail to court by a police officer who led him by the arm to the defense table. Roubideaux appeared disheveled and unshaven. The spectators in the courtroom rose when Roubideaux was led into the courtroom and sat when he sat. But later that morning, the Indian spectators at the trial refused to rise for Judge Bottum. Judge Bottum ordered the spectators cleared from the courtroom. The spectators were peaceably carried from the courtroom, one-by-one, by plainsclothes (sic) police officers, detectives, and a matron. According to some defense witnesses, some of the women carried from the courtroom were fondled by some of the police.

"On April 29, 1974, meetings were held among the defendants, their attorneys, and their supporters at the Van Brunt Building in downtown Sioux Falls. The prosecution presented one witness, Kenneth Dahl, concerning the contents of those meetings. Mr. Dahl testified that Russell Means told people not to stand for Judge Bottum the next day, to be 'prepared to do battle' and that the signal would be 'made for a broken window on the upstairs side of the courtroom for people outside to know that the fight had started inside,' and that an Indian lady 'agreed to drive up with a carload of debris to throw at the courthouse.'

"The defense's version of the events of April 29 was very different. Three defense witnesses, including one attorney testified that at the meetings on April 29 no violence whatsoever was planned for the next day, and that the purpose of the persons in the courtroom refusing to rise for the judge was to express their protest against what they believed to be his racism and racism in the South Dakota courts against Indian people. These witnesses testified that men only were to be sent to fill the twenty seats (which Judge Bottum had announced was all he would allow to spectators) because violence by the Sioux Falls police was feared.

"There was no evidence that Ted Means was present at the Van Brunt Building, or even in Sioux Falls, on April 29, or on April 25 or 26, 1974.

"On April 30, a number of Indian spectators entered Judge Bottum's courtroom and refused to stand for Judge Bottum. He subsequently ordered the courtroom cleared.

"Between the time that Judge Bottum entered the courtroom, which was about 9:30 a. m., and the time that the Sioux Falls police Tactical Squad entered the courtroom, which was about 11:20 a. m., various activities ensued in the courtroom, including discussion, negotiation, and prayer. According to the testimony of a prosecution witness, there was some communication between the Indian spectators in the courtroom and the people gathered outside.

"The spectators who entered the courtroom on April 30 did not enter directly from the hall outside the courtroom into the courtroom. The door from the hall to into the courtroom was locked that morning. The spectators entered the courtroom by passing through a door to a room adjacent to the courtroom where they were frisked and put through a metal detector, and then by passing through a back door into the courtroom.

"At about 11:20 a. m., the Tactical Squad, equipped with jumpsuits, helmets with face shields, combat boots with steel toes, forty-inch nightsticks with steel-ball ends, gloves with metal in the knuckles, gas masks, firearms, handcuffs and mace entered the courtroom. The Tactical Squad consisted of twenty to twenty-four members. The Tactical Squad was only a portion of the approximately forty-five to fifty law-enforcement personnel in the immediate area of the courthouse.

"Prior to the entry of the Tactical Squad into the courtroom there was a general lack of instruction of the Tactical Squad members as to what they were supposed to do and how they were supposed to do it. Although apparently the ranking police officers knew that the spectators had passed through a metal detector and been frisked, the Tactical Squad members themselves were not aware of this.

"The press was removed from the courtroom just before the Tactical Squad came in.

"A prosecution witness, Tactical Squad member Ideker, testified that the first violence occurred when Russell Means struck him. Ideker also testified that others in the courtroom could have perceived that Ideker himself was the aggressor in his confrontation with Russell Means.

"Five defense witnesses testified that the first violence occurred when Russell Means or David Hill, a defendant in the Bad Heart Bull trial itself, was struck by a Tactical Squad member. Defense witness Tom Cook testified that the first Tactical Squad member in the courtroom 'went into' Russell Means with his baton as though it were a hockey stick and that Russell Means put his hands up and went backwards. Cook testified that immediately after this, Ted Means was 'kind of standing' and 'as soon as Russell was hit . . . Ted was hit and pretty soon the next moment Ted was lying down on the ground without any more struggle.' Cook testified that the spectators stood up just before the Tactical Squad got to them and stood up because the Tactical Squad was coming in at a fast gait. Cook testified that Ted Means may have grabbed an arm of a Tactical Squad member after he was struck.

"Defense witness Bishop Bruno Schlachtenhaufen testified that the Tactical Squad came into the courtroom at a fast pace. He testified that it was a surprise to everyone when the Tactical Squad entered the courtroom, and that there was no opportunity for people to leave. He testified that the Tactical Squad came at the spectators with their clubs. He testified that the reaction of the Indian spectators to the Tactical Squad was a defensive reaction. He testified that the first two Tactical Squad members 'attacked' David Hill, then 'knocked him down and moved on.' The next thing he saw was a confrontation between Russell Means and a Tactical Squad member, and immediately thereafter all the people in the first two rows of the courtroom 'joined in the resistance.'

"Defense witness Reverend William Weber testified that the entry of the Tactical Squad was 'unexpected after an hour and a half of waiting,' and that it was 'swift and without any reissuance of an order to stand up or to get out of the courtroom' and that 'there was an almost spontaneous and simultaneous reaction on the part of everyone else in the courtroom and we simply rose instinctively.' He testified that he believed that everyone who rose 'was frightened and concerned about his survival.' He testified that the first Tactical Squad member attempted to force Russell Means against the wall and lodged his club under Russell Means' chin. He knew Ted Means, but did not see him get struck or strike anyone.

"Defense witness David Hill testified that the Tactical Squad came into the courtroom very fast. He testified that the first Tactical Squad members shoved and pushed him, and that he was then shoved and hit from behind and then knocked unconscious. His eye was...