APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA HONORABLE MERTON B. TICE, JR. Judge
The opinion of the court was delivered by: Zinter, Justice
[¶1.] Allen Kissner wanted to die and had failed in an attempt to take his own life. Kissner subsequently asked Robert Goulding to take Kissner's life with a gun. Goulding agreed. He fatally shot Kissner and was convicted of first degree murder. Goulding now appeals his conviction arguing that the circuit court erred in precluding him from presenting a defense that the shooting constituted assisted suicide rather than murder. We affirm the conviction.
Facts and Procedural History
[¶2.] Kissner wanted to die because he was likely returning to prison, he was addicted to drugs, and he was in chronic, terminal pain. Kissner had failed in a recent attempt to take his own life, so he asked his friend, Goulding, to kill him with a gun. The two men drove to a remote location, and at Kissner's request, Goulding put a gun in Kissner's ear and pulled the trigger causing Kissner's instantaneous death. As he returned to his home, Goulding disposed of the gun and latex glove he used in the shooting. Kissner's body was found the next day by fishermen.
[¶3.] Goulding was charged with first degree murder. He wanted to present a defense that he did not commit murder because he was guilty of assisted suicide. The circuit court, however, precluded Goulding from mentioning the assisted suicide statute. The court also precluded Goulding from arguing that assisted suicide was the only crime Goulding could have committed. Over Goulding's objection, the court instructed the jury: "Suicide is the intentional taking of one's own life. As a matter of law, it is not suicide when another person actually performs the overt act resulting in the death of the decedent." Goulding was, however, permitted to establish that Kissner formulated the plan, took the preparatory steps, and requested Goulding to do the shooting. Goulding argued to the jury that under these facts, he was not guilty of murder. The jury found Goulding guilty of first degree murder.
[¶4.] Goulding advances three related arguments on appeal. He first contends that the court erred in instructing the jury that as a matter of law it was not suicide if a person other than the decedent performed the overt act resulting in the decedent's death. Goulding also contends that the court erred in refusing certain defense instructions that would have supported an alternative assisted suicide conviction by defining suicide, assisted suicide, and corpus delicti. Goulding finally contends that the court erred in prohibiting him from referring to the assisted suicide statute. We consider these contentions together because they are all predicated on Goulding's contention that the shooting constituted assisted suicide rather than first degree murder.
[¶5.] The question is whether the assisted suicide statute applies when, at the decedent's request, a person other than the decedent commits the overt act causing the death of the decedent. Statutory interpretation and application are questions of law that we review de novo. State v. Miranda , 2009 S.D. 105, ¶ 14, 776 N.W.2d 77, 81.
[¶6.] Suicide is "the intentional taking of one's own life." SDCL 22-16-36.*fn1
Assisted suicide occurs when a person "intentionally in any manner advises, encourages, abets, or assists another person in taking or in attempting to take his or her own life." SDCL 22-16-37.*fn2 Goulding argues that because the assisted suicide statute refers to assistance "in any manner," the statute is broad enough to include an aider's overt act that directly causes the death of the decedent. We disagree.
[¶7.] The phrase "in any manner" modifies the phrase "advises, encourages, abets, or assists another person in taking or in attempting to take his or her own life ." Id.
(emphasis added). Therefore, the statute only applies when any manner of assistance is provided to another person in the other person's taking or attempting to take "his or her own life." Id
. But in this case, Kissner, the "other person," did not take his own life. Kissner's life was taken by Goulding when Goulding shot Kissner. Therefore, there was no suicide, and "without a suicide there can be no 'assisting a suicide.' " State v. Cobb , 229 Kan. 522, 525, 625 P.2d 1133, 1136 (1981). We conclude that the assistance "in any manner" language of SDCL 22-16-37 ...