State v. Randle

#28126-aff in pt & rev in pt-SRJ
2018 S.D. 61
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
DAVID LEONARD RANDLE, JR., Defendant and Appellant.
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APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
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THE HONORABLE BRADLEY G. ZELL
Judge
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AUSTIN J. VOS
MARK KADI of
Minnehaha County Office of the
Public Advocate Attorneys for defendant and
Sioux Falls, South Dakota appellant.
MARTY J. JACKLEY
Attorney General
JOHN M. STROHMAN
Assistant Attorney General Attorneys for plaintiff and
Pierre, South Dakota appellee.
****
CONSIDERED ON BRIEFS
MAY 21, 2018
OPINION FILED 08/01/18
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JENSEN, Justice
[¶1.] David Leonard Randle, Jr. appeals his convictions for first-degree
manslaughter, unauthorized ingestion of a controlled substance, and possession of
two ounces or less of marijuana. Randle asserts the circuit court erred in denying
two motions for mistrial and rejecting a proposed jury instruction on first-degree
manslaughter. We affirm in part, reverse in part, and remand for a new trial.
Background
[¶2.] On October 24, 2015, a group of young adults attended a party at a
Sioux Falls condominium leased by Mason Mitzel. There was evidence that the
partygoers were drinking and using marijuana and other illegal substances.
[¶3.] At some point during the evening, an AK-47 owned by Mitzel was
brought out amongst the partygoers. There was testimony that different
individuals handled the AK-47. Several witnesses stated that Randle began
handling the AK-47 and that Randle had the gun sitting on his lap for an extended
time. More than one person stated Randle was “playing” with the gun and at times,
pointed it in different directions as others sat in the room. Several witnesses
recognized that the clip was in the gun and testified that they were nervous with
how Randle was handling the AK-47. Witnesses testified that several people in the
room asked Randle to put the gun away, but Randle stated he could handle it.
Witnesses also testified that at one point, Mitzel took the gun from Randle, but that
Randle picked up the AK-47 again and continued handling it.
[¶4.] While Randle was sitting in the living room next to his friend Mikael
Ashame the gun discharged. Three witnesses, who were in the living room when
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the AK-47 fired, testified that Randle had the gun when it discharged. These
witnesses testified that they did not believe Mitzel was in the living room when the
gun discharged. The bullet struck Ashame, traveled through his left hand and right
forearm, and penetrated the femoral artery in his groin.
[¶5.] The jury heard Randle’s version of the shooting from a recorded phone
call with his girlfriend made while he was in custody at the Minnehaha County Jail.
During the call, Randle told his girlfriend that Mitzel put the gun on his lap and
that Randle’s chair, which had rollers, began to slide backward. As the chair slid
back, Randle claimed the gun began to slide off his lap. Randle stated that he
grabbed the gun to prevent it from falling and that the gun discharged. Randle
claimed that after the gun went off, Ashame looked at him and said, “You shot me,”
then went limp.
[¶6.] The partygoers immediately reacted to the gunshot. Mitzel, who was
under suspicion for drug dealing, stuffed black duffel bags full of narcotics and other
contraband, threw them in the trunk of his car, and fled the scene. Randle and
another friend Desmond Henderson attempted to carry Ashame to a vehicle in the
driveway to take him to the emergency room. The pair placed Ashame on the lawn
and attempted to start the nearest vehicle. The vehicle would not start because of a
dead battery, so they brought Ashame back into Mitzel’s home.
[¶7.] The remaining partygoers hurriedly placed the AK-47 and another gun
in the back of a van and left the scene. Henderson and Randle continued to attend
to Ashame. Randle applied pressure to Ashame’s wound and told Henderson to call
911. Several minutes later, law enforcement arrived and found Randle still tending
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to Ashame’s wound. The wound had stopped bleeding, but law enforcement
immediately requested emergency medical personnel. Ashame was taken by
ambulance to Sanford Hospital where he was pronounced dead. Minnehaha County
Coroner Dr. Kenneth Snell stated Ashame’s cause of death was a gunshot wound to
the femoral region.
[¶8.] Back at Mitzel’s residence, police officers began to investigate the
incident. Officers observed marijuana shake and drug paraphernalia in the family
room, a trail of blood leading outside the home, and a pool of blood in the grass.
They found a blue bag on the front porch that was full of narcotics and contraband,
and an empty shell casing on the family room floor. The officers interviewed
Randle, who told them a masked intruder had broken into Mitzel’s home to steal
money. Randle claimed the burglar accidently shot Ashame and fled the residence.
[¶9.] Meanwhile, the partygoers who had left the scene began to call
Sanford Hospital to ask about Ashame’s condition. Law enforcement followed up on
these calls and obtained the statements of several of the individuals. Police
ascertained that there was no attempted burglary and that Randle had been
holding the AK-47 when it fired. They also learned that a group had left the party
in a van and had discarded the AK-47 in a wooded area behind a Sioux Falls trailer
park. The group had also disposed of their bloody clothes, narcotics, and drug
paraphernalia. Police recovered the discarded items.
[¶10.] Police arrested Randle, secured a search warrant, and collected his
DNA and a urinalysis (UA). Randle’s UA revealed he had carboxyl, THC,
benzoylecgonine, MDMA, and codeine in his system at the time of the incident.
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Randle was charged with first-degree manslaughter, second-degree manslaughter,
unauthorized ingestion of a controlled substance, and possession of two ounces or
less of marijuana. A trial was held September 12-16, 2016.
[¶11.] At the start of trial, the circuit court ordered that the witnesses be
sequestered per SDCL 19-19-615. The State subpoenaed Abbygail Thomas to testify
on the first day of trial. Thomas arrived at the courthouse early and sat in the
courtroom during the testimony of one police officer. After learning that Thomas
had been in the courtroom before testifying, Randle’s trial counsel moved for a
mistrial. After a brief hearing, the circuit court held that a violation of the
sequestration order had occurred but denied the motion. Thomas later testified.
[¶12.] During the direct examination of Detective Timothy Bakke, the
prosecutor asked whether Randle had requested to consult counsel during an
interview after the incident. Randle’s counsel objected to the question before any
answer was given. Following a bench conference, the prosecutor moved on to a
different topic and the question was never answered. Randle’s counsel moved for a
mistrial. The circuit court denied the motion.
[¶13.] Randle proposed a jury instruction for excusable homicide for the first-
degree manslaughter charge. The instruction was designed to support Randle’s
theory of defense that Ashame’s death was accidental. The circuit court rejected the
proposed instruction.
[¶14.] Randle was convicted by the jury on all counts. He appeals those
convictions asserting the following issues for our review:
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1. Whether the circuit court erred by denying Randle’s motion for
mistrial after a state witness violated the court’s sequestration
order.
2. Whether the circuit court erred by denying Randle’s motion for
mistrial after the prosecutor asked a police officer whether
Randle had invoked his right to counsel during an interview
with the officer.
3. Whether the circuit court erred by rejecting Randle’s proposed
jury instruction on excusable homicide.
4. Whether the cumulative effect of the circuit court’s alleged
errors entitle Randle to a new trial.
Analysis
1. Whether the circuit court erred by denying Randle’s motion for
mistrial after a state witness violated the court’s sequestration
order.
[¶15.] During the hearing on Randle’s motion for a mistrial for violation of
the sequestration order, Thomas admitted that the State had informed her she
could not enter the courtroom before she testified but that she had forgotten.
Thomas testified that she did not hear the opening statements of either party and
that she only heard the testimony of an officer named Jeff (Officer Gillespie).
Thomas stated that she had not spoken to anyone outside the courtroom or any
other potential witnesses that morning. Randle’s trial counsel asked Thomas
whether she was going to change her testimony based on anything she heard in the
courtroom. Thomas responded, “No sir.” The court reemphasized the sequestration
order before excusing Thomas.
[¶16.] Officer Gillespie’s testimony consisted of his observations of the crime
scene immediately after the shooting, and his recollection of statements made by
Randle and Henderson. He testified as to Randle’s initial account that a burglary
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had occurred and his observations that Randle was under the influence of a
substance at the time. On cross-examination, Officer Gillespie testified about his
conclusion that there was a party at Mitzel’s residence where illegal drugs and
marijuana were present.
[¶17.] Randle claimed Officer Gillespie’s testimony countered Thomas’s
earlier statement to police that she was not smoking marijuana at Mitzel’s home
and did not observe others smoking marijuana. Randle argued that Thomas could
now conform her testimony to be consistent with Officer Gillespie’s testimony about
drug use and diminish Randle’s opportunity to impeach Thomas. Randle claimed
this caused him prejudice because Thomas was expected to testify that Randle was
handling the gun the entire evening and that Randle was told several times to put
the gun away before it discharged.
[¶18.] The circuit court pointed out that Randle could impeach Thomas if her
testimony differed from her earlier statement. The court also noted that the
sequestration order was entered that morning, and it was unclear at the time
Thomas entered the courtroom that she actually understood that the court had
entered an order prohibiting her from entering the courtroom before she testified.
The circuit court determined that Officer Gillespie was not a fact witness testifying
about the events before the shooting. The court expected that Thomas’s most
crucial testimony would likely be about Randle’s actions before the AK-47
discharged—a subject about which Officer Gillespie did not testify. The only
remedy sought by Randle was a mistrial. The court denied the motion for a
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mistrial, determining that Randle failed to show any prejudice from the violation of
the sequestration order.
[¶19.] Thomas later testified that she had observed Randle, whom she had
never met, “snorting” a substance at Mitzel’s resident before the shooting. Thomas
said she saw Randle “playing” with the AK-47 by aiming it at objects and taking the
clip out and putting it back in again. Thomas claimed she had “begged [Randle]
repeatedly” to put the gun away. Randle responded by telling her, “Let me handle
this; I got this.” Thomas testified she also “begged” Mitzel to remove the rifle from
Randle and take it upstairs. Mitzel eventually complied and took the gun away
from Randle. Thomas testified that Randle grabbed the gun again and continued to
have it in his possession thereafter. Thomas left the party before the shooting
occurred.
[¶20.] Thomas admitted she had smoked marijuana earlier on the evening of
the incident but denied smoking it at Mitzel’s house. She also claimed she was not
impaired by the marijuana. After Thomas’s testimony, the circuit court gave
Randle further opportunity to address any concerns with Thomas’s testimony.
Randle’s trial counsel did not assert any prejudice arising from the violation of the
sequestration order following Thomas’s testimony or ask to exclude her testimony.
[¶21.] The decision to grant or deny a mistrial or exclude testimony when the
court’s sequestration order is violated is within the sound discretion of the circuit
court. State v. Rough Surface, 440 N.W.2d 746, 755 (S.D. 1989); State v. Dixon,
419 N.W.2d 699, 701 (S.D. 1988). “To find an abuse of discretion by the trial court
in denying a mistrial where a sequestration order was violated, it must be shown
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that the denial prejudiced the defendant’s rights.” Dixon, 419 N.W.2d at 701.
“Prejudice is established where the witness’[s] testimony has changed or been
influenced by what [they] heard from other witnesses.” Id. (quoting State v. Swillie,
357 N.W.2d 212, 215 (Neb. 1984)).
[¶22.] There is no showing that Thomas’s testimony was tainted by what she
heard in the courtroom. Randle did not claim Thomas changed her testimony or
suggest how it may have been influenced by listening to Officer Gillespie’s
testimony. Further, several witnesses provided testimony after Thomas similar to
Thomas’s: that Randle was handling the AK-47 and did not listen to those who had
asked him to put the rifle away before it discharged. Randle has failed to show
prejudice arising from the inadvertent violation of the sequestration order. The
circuit court did not abuse its discretion by denying Randle’s motion for mistrial.
2. Whether the circuit court erred by denying Randle’s motion for
mistrial after the prosecutor asked a police officer whether
Randle had invoked his right to counsel during an interview
with the officer.
[¶23.] During the trial, the prosecutor questioned Detective Bakke about an
interview with Randle that took place on the morning of October 25, 2016. The
colloquy between the prosecutor and Detective Bakke proceeded as follows:
[Prosecutor]: So with Mr. Randle now as the focus of the investigation,
does anybody attempt to speak with him?
[Detective Bakke]: I spoke with him a couple times early on around
3:30 in the morning and talked with him in regards to finding who had
done this and asking for his cooperation, and then I came back and
talked with him around—oh, I believe it was 6:30, 7:00 in the morning,
and I sat with him at that point.
[Prosecutor]: Did he invoke his right to an attorney while you were
speaking with him?
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[Randle’s Counsel]: Objection. May counsel approach?
[¶24.] Detective Bakke never answered the question whether Randle had
asked for an attorney. However, Randle asserts that the prosecutor’s question
improperly referenced Randle’s exercise of his constitutional right to counsel and
prejudiced him at trial. He cites Doyle v. Ohio, 426 U.S. 610, 618, 96 S. Ct. 2240,
2245, 49 L. Ed. 2d 91 (1976), where the Supreme Court held it was “fundamentally
unfair and a deprivation of due process to allow [an] arrested person’s silence to be
used to impeach an explanation subsequently offered at trial.” Randle also points to
other cases determining that evidence or argument concerning a defendant’s
exercise of a constitutional right is improper. In United States v. Moreno, 233 F.3d
937, 940 (7th Cir. 2000), the court stated that evidence of a defendant’s exercise of
his Fourth Amendment right against unlawful search and seizure, by denying law
enforcement access to his home in the absence of a warrant, should not have been
admitted at trial. Randle also points to United States v. Thame, 846 F.2d 200, 207
(3rd Cir. 1988), which held it was “error for [a] prosecutor to argue that [the
defendant’s] reliance on his fourth amendment rights constituted evidence of [the
defendant’s] guilt.”
[¶25.] Randle also argues that the question improperly inserted comment
about his right to remain silent and to not testify. “It is the settled law of this state
that it is reversible error for the prosecution to call to the attention of the jury the
failure of [a] defendant to testify.” State v. Winckler, 260 N.W.2d 356, 369 (S.D.
1977) (quoting State v. Brown, 132 N.W.2d 840, 842 (S.D. 1965)). This Court has
specified that a prosecutor is forbidden from making “direct comments on the
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defendant’s failure to take the stand” or “indirect allusions designed to accomplish
that end and which in fact could accomplish it.” Id. “When the comments are
indirect allusions, the test is whether a reasonable intelligent jury would
understand them to point out defendant’s failure to testify.” State v. Wright,
1999 S.D. 50, ¶ 31, 593 N.W.2d 792, 804 (quoting State v. Wilson, 297 N.W.2d 477,
482 (S.D. 1980)); see also Winckler, 260 N.W.2d at 369 (“Where no direct allusion is
made to the [failure to testify], but the error rests in an alleged intent to accomplish
such purpose by indirection, each case must be considered upon its own particular
facts.”).
[¶26.] “Motions for mistrial are within the discretion of the trial judge.” State
v. Kryger, 2018 S.D. 13, ¶ 33, 907 N.W.2d 800, 812 (quoting State v. Ball, 2004 S.D.
9, ¶ 16, 675 N.W.2d 192, 197). Therefore, “denial of a motion for mistrial will not be
overturned unless there is an abuse of discretion.” Ball, 2004 S.D. 9, ¶ 16,
675 N.W.2d at 197. “Constitutional interpretation is a question of law reviewable
de novo.” State v. Hi Ta Lar, 2018 S.D. 18, ¶ 6, 908 N.W.2d 181, 183 (quoting Kraft
v. Meade Cty. ex rel. Bd. of Cty. Comm’rs, 2006 S.D. 113, ¶ 2, 726 N.W.2d 237, 239).
“We review the circuit court’s factual findings for clear error but give no deference
to the circuit court’s conclusions of law.” Id. (quoting State v. Medicine, 2015 S.D.
45, ¶ 5, 865 N.W.2d 492, 495).
[¶27.] The State’s inquiry about whether Randle invoked his right to an
attorney was not relevant or proper.1 But the question was never answered, and
1. The record indicates that Randle’s two, early morning interviews with
Detective Bakke took place at the Sioux Falls Law Enforcement Center. But
(continued . . .)
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there was no comment or evidence presented concerning whether Randle asked for
an attorney or refused to answer questions. The prejudice in cases cited by Randle
arose not from the mere mention of the defendant exercising a constitutional right
but from a prosecutor’s assertion that the defendant’s exercise of the right
suggested guilt. Further, the circuit court reviewed the prosecution’s full strategy
to see if there was a concerted effort to create a “theme of trying to establish a
prejudice by improper means against the defendant.” The court concluded that
“there isn’t any theme here.” Finally, after denying the motion for mistrial, the
court stated that it would remind the jury of the “instruction [it] previously gave
that no question, no objection made by an attorney, or any statements or
arguments, is evidence and is not to be considered as evidence. Because that’s all
we have here is the question.”
[¶28.] The court properly reviewed the circumstances, found there were no
improper direct statements or indirect allusions about Randle’s decision to exercise
his constitutional rights, and determined there was no prejudice to Randle. The
circuit court did not err in determining that the question alone did not implicate
Randle’s right to remain silent. Further, Randle has failed to show any prejudice
________________________
(. . . continued)
there was no other evidence presented regarding the circumstances
surrounding the interrogation. Although there was no determination
whether Randle was in custody at the time he was questioned, we assume for
the purpose of analyzing this issue that Randle was in custody and entitled to
assert his Fifth Amendment right to counsel. “The purpose of the Fifth
Amendment right to counsel is to protect individuals from self-incrimination
and assist in the custodial interrogation process.” State v. Wright, 2009 S.D.
51, ¶ 27, 768 N.W.2d 512, 522 (quoting State v. Hoadley, 2002 S.D. 109, ¶ 26,
651 N.W.2d 249, 256).
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that arose from the State’s single unanswered question. The circuit court did not
abuse its discretion in denying Randle’s motion for mistrial.
3. Whether the circuit court erred by rejecting Randle’s proposed
jury instruction on excusable homicide.
[¶29.] To support his theory that Ashame’s shooting was an accident, Randle
proposed the following instruction: “A homicide is excusable if committed by
accident and misfortune in doing a lawful act, with usual and ordinary caution.”
The language of the proposed instruction is identical to the excusable homicide
statute in SDCL 22-16-30. Randle submitted the proposed instruction after the
State concluded its case-in-chief but before the defense rested and before any
rebuttal from the State. There was no pretrial order establishing a deadline for
submitting proposed instructions.
[¶30.] The State objected to the instruction. It argued that Randle was not
acting lawfully at the time the AK-47 discharged because he was in possession of
and had ingested codeine, cocaine, and THC. It also argued that because Randle
had previously been convicted of a felony and was under bond conditions, he was
prevented from possessing a weapon at the time of the shooting. The State also
asserted that Randle was not handling the AK-47 with “usual and ordinary” caution
at the time it discharged.
[¶31.] The circuit court denied Randle’s proposed instruction, noting that it
was submitted after the State had rested and that the State would either need to
reopen the case or present additional evidence on rebuttal to respond to the defense.
The circuit court also determined that Randle’s conduct was unlawful, relying on
the State’s representation that Randle was previously convicted of a felony. The
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record does not show that Randle was a felon at the time of the shooting, but Randle
was under bond conditions prohibiting him from possessing weapons.2 The circuit
court also determined that Randle was not acting lawfully at the time the weapon
discharged because Randle had ingested controlled substances and marijuana. The
circuit court acknowledged that it may have been a fact question whether Randle
was under the influence of drugs or alcohol at the time the weapon discharged. In
denying the instruction, the court relied in part on State v. Andrews, 2001 S.D. 31, ¶
11, 623 N.W.2d 78, 81, asserting that Andrews stands for the proposition “that
various conduct of the accused would take [Randle] outside of a lawful act” for the
purposes of an excusable homicide instruction.3
2. The two felony convictions listed in the part II information, referenced at the
time of settling instructions, were pending charges against Randle at the
time of the shooting. Randle was subject to bond conditions in both files that
prohibited him from possessing a weapon. Randle pleaded guilty and was
sentenced on both felonies after the shooting but before trial.
3. The circuit court’s reliance on Andrews was misplaced. In Andrews, the
defendant was charged with manslaughter, and the circuit court gave an
excusable homicide instruction under SDCL 22-16-30 as requested by the
defendant. No issue was raised on appeal concerning the excusable homicide
instruction given by the court. Instead, the Court considered whether the
circuit court erred by permitting the State to present other act evidence
showing the defendant was a minor in possession of alcohol, driving under
the influence of alcohol, in possession of a stolen weapon, and in possession of
a weapon while under the influence at the time of the shooting. The Court
held that this evidence was properly admitted to show defendant was not
acting lawfully at the time of the shooting, stating, “[Defendant’s] underage
and driving under the influence through the streets of Rapid City with the
barrel of a loaded shotgun pointing out the driver’s side window, was not
‘doing any lawful act’ when the gun discharged killing Davis.” 2001 S.D. 31,
¶ 11, 623 N.W.2d at 81. The language in Andrews is not an affirmation that
the lawfulness of the defendant’s actions should be determined by the court
as a matter of law but that evidence of unlawful conduct may be admissible
on the defendant’s claim of excusable homicide.
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[¶32.] Our standard of review of a circuit court’s denial of a proposed jury
instruction is well settled. State v. Shaw, 2005 S.D. 105, ¶ 18, 705 N.W.2d 620, 625.
We review a trial court’s refusal of a proposed instruction under
an abuse of discretion standard. The trial court has broad
discretion in instructing the jury. Jury instructions are
satisfactory when, considered as a whole, they properly state the
applicable law and inform the jury. Error in declining to apply a
proposed instruction is reversible only if it is prejudicial, and the
defendant has the burden of proving any prejudice.
Id. (quoting State v. Martin, 2004 S.D. 82, ¶ 21, 683 N.W.2d 399, 406). “An
erroneous instruction is prejudicial if in all probability it produced some effect upon
the verdict and is harmful to the substantial rights of the party assigning it.” Id.
¶ 18, 705 N.W.2d at 625-26 (quoting First Premier Bank v. Kolcraft Enterprises,
Inc., 2004 S.D. 92, ¶ 40, 686 N.W.2d 430, 448). In the context of a requested
instruction on self-defense, we have stated that “[d]enial of a defendant’s request for
an instruction on self-defense where such a request is properly submitted and
supported by the evidence is reversible error because it infringes on a defendant’s
constitutional right to due process.” State v. Bruder, 2004 S.D. 12, ¶ 8, 676 N.W.2d
112, 115.
[¶33.] “Upon proper request, defendants are entitled to instructions on their
defense theories if evidence supports them.” State v. Birdshead, 2015 S.D. 77, ¶ 27,
871 N.W.2d 62, 73 (quoting State v. Pellegrino, 1998 S.D. 39, ¶ 9, 577 N.W.2d 590,
594). A circuit court “need not instruct on . . . excusable homicide . . . if the evidence
does not support an instruction thereon.” State v. Woods, 374 N.W.2d 92, 97 (S.D.
1985). Conversely, “[w]hen a defendant’s theory is supported by law and has some
foundation in evidence, however tenuous, the defendant has a right to present it.”
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Birdshead, 2015 S.D. 77, ¶ 27, 871 N.W.2d at 73 (quoting State v. Roach, 2012 S.D.
91, ¶ 13, 825 N.W.2d 258, 263) (emphasis added).
[¶34.] Randle argues the excusable homicide instruction was a correct
statement of the law and that there was evidence supporting his theory of defense.
The State counters that the circuit court correctly determined that Randle was not
acting lawfully at the time of the shooting. The State also argues that Randle’s
proposed excusable homicide instruction was incomplete and not available under
the facts of this case because the pattern jury instructions and SDCL 22-16-31
provide that an excusable homicide instruction is not available if the killing was
caused by a dangerous weapon, as was the case here.
[¶35.] Contrary to the State’s claim, SDCL 22-16-30 and SDCL 22-16-31 set
forth separate and distinct excusable homicide defenses. The defense set forth in
SDCL 22-16-30, relied upon by Randle, may be available when there are facts
showing the homicide was committed accidentally, while doing a lawful act, and
with usual and ordinary caution. The defense in SDCL 22-16-31 is premised upon
evidence showing the homicide was accidental and was committed “in the heat of
passion, upon sudden and sufficient provocation, or upon a sudden combat.”
However, SDCL 22-16-31 provides that the “heat of passion” defense is not available
when a dangerous weapon is used. In contrast, the use of a dangerous weapon does
not necessarily preclude the excusable homicide defense under SDCL 22-16-30.
Randle’s sole defense and requested instruction was the excusable homicide defense
under SDCL 22-16-30.
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[¶36.] There was evidence of unlawful conduct by Randle and evidence that
he was not acting with usual and ordinary caution at the time of the shooting.
However, the State acknowledged that the shooting was not intentional. The State
also presented Randle’s version of the shooting in its case-in-chief through the
recorded phone call to his girlfriend. Randle claimed that the weapon somehow
discharged as he was trying to catch the rifle from falling after Mitzel placed it on
his lap. In evaluating Randle’s defense, the jury could have also considered
Randle’s actions immediately after the shooting and questioned the accuracy of the
eye-witness testimony. Randle and Henderson stayed on the scene and rendered
aid to Ashame, while other partygoers, many of whom were eye-witnesses at trial,
fled the scene, taking and disposing of incriminating evidence. Randle also
instructed Henderson to place the 911 call and to open the door when law
enforcement arrived. The eye-witnesses were also cross-examined about conflicting
statements, their difficulty remembering some of the details of the evening, and
their use of alcohol or other illegal drugs prior to the shooting.
[¶37.] Together, this evidence presented a theory for the jury’s consideration
whether the homicide was accidental and excusable under SDCL 22-16-30. South
Dakota’s excusable homicide statute provides that “[h]omicide is excusable if
committed by accident and misfortune in doing any lawful act, with usual and
ordinary caution.” Id. (emphasis added). Absent the proposed excusable homicide
instruction, the jury was unable to consider all the testimony bearing on Randle’s
actions at the time of shooting. The denial of the proposed instruction effectively
determined, as a matter of law, that Randle’s illegal conduct and evidence that he
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was not handling the gun with usual and ordinary caution was the cause of
Ashame’s death. Requiring a causal connection between the acts and the homicide
is consistent with the view taken by jurisdictions with similar excusable homicide
statutes.4
[¶38.] The circuit court’s failure to give the excusable homicide instruction
prejudiced Randle. Throughout its closing argument, the State argued that the
shooting was unintentional, but the State also argued that there was no dispute
that the elements of first-degree manslaughter had been established under the
circuit court’s instructions.5 Randle did not challenge the medical examiner’s
testimony and other evidence showing that Ashame’s death was caused by a bullet
4. See Commonwealth v. Legg, 711 A.2d 430, 432 n.2 (Pa. 1998) (quoting
Commonwealth v. Hobson, 398 A.2d 1364, 1368 (Pa. 1979)) (stating that one
of the elements of the defense of excusable homicide is that “[t]he act
resulting in death must be a lawful one”); Ealey v. State, 158 So. 3d 283, 289
(Miss. 2015) (quoting Burge v. State, 472 So. 2d 392, 395 (Miss.1985)) (noting
that excusable homicide occurs when a jury finds that a killing occurred
while a defendant was doing “a lawful act by lawful means with usual and
ordinary caution and without any unlawful intent”); State v. Yarborough, 679
S.E.2d 397, 407 (N.C. Ct. App. 2009) (quoting State v. York, 489 S.E.2d 380,
390 (N.C. 1997)) (“Any defense based on the suggestion that the death was
the result of an accident or misadventure must be predicated upon the
absence of an unlawful purpose on the part of the defendant.”); State v.
Burriss, 513 S.E.2d 104, 107 (S.C. 1999) (“the burden rests upon the State to
prove beyond a reasonable doubt that the unlawful act in which the accused
was engaged was at least the proximate cause of the homicide”); see also 40
Am. Jur. 2d Homicide § 75 (1968) (“The fact that one carries a concealed
weapon in violation of the law does not render him criminally responsible . . .
where death is caused by the accidental discharge of the weapon, for in such
case death cannot be said to be the natural or necessary result of carrying the
weapon in violation of law.”).
5. The circuit court instructed the jury that first-degree manslaughter required
the State to prove that: (1) defendant caused Ashame’s death; (2) the killing
was by a means of a dangerous weapon; and (3) the defendant did so without
any design to effect Ashame’s death.
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wound from the AK-47. Further, Randle admitted, consistent with other evidence,
that he caused the AK-47 to discharge. Even if the jury believed Randle’s statement
or disbelieved some or all of the eye-witness testimony, the elements of first-degree
manslaughter were established under the circuit court’s instructions.
[¶39.] Because we determine that the circuit court only erred instructing on
first-degree manslaughter, we need not address Randle’s fourth claim regarding any
cumulative effect of the circuit court’s alleged errors.
Conclusion
[¶40.] We affirm Randle’s convictions for ingestion of a controlled substance
and possession of marijuana. We reverse and remand the first-degree
manslaughter conviction for a new trial.
[¶41.] GILBERTSON, Chief Justice, ZINTER and KERN, Justices, and
SEVERSON, Retired Justice, concur.
[¶42.] SALTER, Justice, not having been a member of the Court at the time
this action was assigned to the Court, did not participate.
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