United States ex rel. Means v. Solem

• Decision Date: 07 November 1979
• Docket Number: No. CIV79-4049.,CIV79-4049.
• Citation: 480 F. Supp. 128
• Parties: UNITED STATES of America, ex rel. Ted MEANS, Petitioner, v. Hon. Herman SOLEM, Warden, South Dakota State Penitentiary, Sioux Falls, South Dakota, Respondent.
• Court: U.S. District Court — District of South Dakota

480 F. Supp. 128

UNITED STATES of America, ex rel. Ted MEANS, Petitioner, v. Hon. Herman SOLEM, Warden, South Dakota State Penitentiary, Sioux Falls, South Dakota, Respondent.

No. CIV79-4049.

United States District Court, D. South Dakota, S. D.

November 7, 1979.

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James D. Leach, Rapid City, S. D., and Sidney B. Strange, of Strange & Strange, Sioux Falls, S. D., for petitioner.

LeAnn Larson Finke, Asst. Atty. Gen., Pierre, S. D., for respondent.

MEMORANDUM DECISION

NICHOL, Chief Judge.

The petitioner Ted Means having been convicted of riot to obstruct justice seeks a writ of habeas corpus in accordance with 28 U.S.C. section 2254. The petitioner raises the following claims in his writ:

(1) that the refusal of the trial court to instruct the jury on the defenses of self defense, defense of others, and ignorance or mistake of fact was a denial of his rights to due process of law, to trial by jury, and to require the prosecution to prove him guilty beyond a reasonable doubt;

(2) that in view of the petitioner's alleged purpose of assembling for a peaceful protest, the doctrine of strictissimi juris provides further support for his claim that the refusal of his requested instructions was a denial of his constitutional rights;

(3) that SDCL 22-10-4, the riot to obstruct justice statute, was unconstitutionally applied to the petitioner because he could have been convicted under it for merely sitting in the courtroom in a manner which appeared threatening;

(4) that the South Dakota Supreme Court denied him equal protection of the law and due process of law by irrationally discriminating against him in relation to a similarly situated appellant, Russell Means; and (5) that the South Dakota Supreme Court denied petitioner his rights to due process of law and to be free from cruel and unusual punishment by condoning the use of deadly force by a police officer against a non-violent, non-fleeing nonfelon.

FACTUAL AND PROCEDURAL HISTORY

This court has previously reviewed a number of the facts relating to the petitioner's conviction as they were presented in the court trial of Russell Means. United States ex rel. Means v. Solem, 457 F.Supp. 1256 (D.S.D.1978). The petitioner and Russell Means were charged and convicted of the same crime arising from the same incident and allegedly shared the common purpose to obstruct justice. In Russell Means' habeas petition this court found conflicting evidence as to what happened but deferred to the trial judge's resolution of these conflicts as he was the ultimate fact finder in the case. The verdict of a jury, however, must be interpreted in light of the evidence and the instructions. Yates v. United States, 354 U.S. 298, 311-312, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957). Therefore, because of the issues raised by the petitioner Ted Means relating to refusal to instruct a jury on self-defense, defense of others, and mistake of fact, a broader scope of review of the facts is justified in his petition for habeas corpus.

The incident which led to the petitioner's conviction occurred on April 30, 1974, during the trial of five Indian defendants. These defendants were being tried before Judge Bottum at the Minnehaha County Courthouse in Sioux Falls, South Dakota, for participating in a riot at Custer, South Dakota. There was great interest among the Indians who had gathered in Sioux Falls, South Dakota, in the outcome of this trial.

On April 26, 1974, four days prior to the alleged riot, a number of Indian spectators in the courtroom refused to rise for Judge Bottum. Their purpose in refusing to rise was to protest what they believed to be a double standard of justice for the Indian defendants in this trial and all Indians tried in South Dakota courts. Judge Bottum ordered the courtroom cleared and the spectators were peacefully carried from the courtroom by mostly plain-clothed officers without further incident. There was, however, conflicting evidence presented with respect to whether some of the Indian women carried from the courtroom suffered indignities at this time.

The conduct and motives of the petitioner and other involved persons during the following days were the subject of much dispute at the trial. One of the state's witnesses testified that American Indian Movement members and supporters met in the Van Brunt Building on April 29, 1974, to plan an offensive posture and to "prepare to do battle" in the courtroom the next day. He further testified that the spectator seats in Judge Bottum's courtroom were to be filled with strong male volunteers to carry out these plans.

A much different version of these plans was presented by the defendants' evidence. According to this version, group meetings were held nightly at the Van Brunt Building, where many Indians interested in the Custer trials gathered for food and sleep. At the April 29 meeting no plans for any violence were made but rather a peaceful sit-in similar to the one four days prior was contemplated. Only men were asked to sit in the courtroom because the Indian spectators feared further indignities or violence by the Sioux Falls police.

Certain security measures had been imposed following the April 26th incident. Therefore on the morning of April 30th the allotted number of 20 spectators including Indians and certain members of the clergy and press were admitted to the courtroom. They passed through a metal detector and were frisked to assure the security personnel that they were unarmed.

The spectators again refused to rise as Judge Bottum entered the courtroom and the bailiff announced for all to rise. Judge Bottum ordered those who would not stand to be cleared from the courtroom. After the spectators had been sitting in the courtroom for approximately two hours, the Sioux Falls Tactical Squad equipped with riot batons (40 inch night sticks with steel ball ends), gloves with metal knuckles, gas masks, face shields, mace, heavy boots, handcuffs, and sidesarms under their jumpsuits, entered the courtroom to clear it in accordance with the Judge's order.

There is great disagreement in the testimony as to what occurred next in the courtroom. The state's evidence showed that the Indian spectators were the aggressors. Russell Means was to have first struck a member of the Tactical Squad. Specifically as to the petitioner, a Tactical Squad member testified that he separated Ted from another Squad member and then sidestepped a swing by Ted and struck Ted with a buttstroke knocking him to the ground.

A number of defense witnesses testified that the spectators reacted defensively to the Tactical Squad. According to these witnesses, all spectators rose spontaneously when the Squad came into the courtroom unexpectedly at a fast gait. One woman in the courtroom was quoted as saying something similar to "Oh my God, they are going to kill them." The first violence was to have occurred when either Russell Means or David Hill (one of the Custer defendants) was struck by the batons of the Tactical Squad. Specifically as to the petitioner the testimony indicated that as soon as Russell was hit Ted was hit and the next moment Ted was lying on the floor without any more struggle. The petitioner did obtain a large "goose egg" size bump on the head from the confrontation.

After the fighting began, chairs were thrown, windows were broken, and serious injuries were suffered. Outside the courthouse stones, debris, and other objects were thrown at the courthouse.

The petitioner and a number of the other spectators were arrested for rioting to obstruct justice in violation of SDCL section 22-10-4.¹ The petitioner was tried before a jury with co-defendant Edgar Bear Runner. Edgar Bear Runner was acquitted by the jury.² The petitioner was convicted of the charge and sentenced to a term of thirty months with twelve months suspended upon compliance with certain conditions. On March 1, 1977, the petitioner appealed his conviction to the South Dakota Supreme Court. On March 14, 1979, the South Dakota Supreme Court affirmed the conviction in State v. Means, S.D., 276 N.W.2d 699 (1979). A petition for rehearing before the South Dakota Supreme Court was also denied on April 2, 1979. The petitioner is currently serving his sentence under the custody of the State of South Dakota.

The petitioner's writ of habeas corpus was filed with this court on April 19, 1979, and oral argument was heard on July 18, 1979. Along with the briefs and supplemental letters that have been submitted, this court has also received and studied the trial court record and transcripts and the briefs and supplemental briefs submitted to the South Dakota Supreme Court.

All the claims raised by the petitioner's writ to this court have been raised with and finally decided on appeal by the South Dakota Supreme Court. It is not required for the petitioner to seek further state post-conviction review of the issues that the South Dakota Supreme Court has finally decided. Orricer v. State, 85 S.D. 293, 181 N.W.2d 461, 463 (1970), United States ex rel. Russell Means v. Solem, 457 F.Supp. 1256, 1261 (D.S.D.1978). Accordingly, the petitioner has exhausted his state judicial remedies in accordance with 28 U.S.C. section 2254(b) and this court may therefore examine the petitioner's claims.

In reviewing the petitioner's claims, this court must use the standard of review that upholds a state court conviction unless "the trial errors or irregularities infringe upon a special constitutional protection or are so prejudicial as to amount to a denial of due process." Atwell v. State, 426 F.2d 912, 915 (8th Cir. 1970); Zemina v. Solem, 438 F.Supp. 455, 469 (D.S.D.1977), aff'd 573 F.2d 1027 (8th Cir. 1978).

THE JURY INSTRUCTIONS

The petitioner complains that the refusal of the trial judge to instruct the jury on self defense, defense of others, and ignorance or mistake of fact was a denial of due process, right to a trial by jury,...