Argued January 14, 2015
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APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT, PENNINGTON COUNTY, SOUTH DAKOTA. THE HONORABLE WALLY EKLUND, Judge.
MARTY J. JACKLEY, Attorney General, CRAIG M. EICHSTADT, Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
JAMY PATTERSON, Pennington County Public Defender's Office Rapid City, South Dakota Attorneys for defendant and appellant.
WILBUR, Justice. GILBERTSON, Chief Justice, ZINTER, Justice, and KONENKAMP, Retired Justice, concur. SEVERSON, Justice, concurs specially. KONENKAMP, Retired Justice, sitting for KERN, Justice, disqualified.
[¶1] Charles Birdshead, who was attacked during a drug transaction, used lethal force against one of the perpetrators. Birdshead was tried by a Pennington County jury and convicted of first-degree manslaughter, possession of a controlled weapon, and distribution of a controlled substance to a minor. The circuit court sentenced him to 45 years in the South Dakota State Penitentiary. Birdshead appeals. We affirm in part and remand in part.
[¶2] On January 7, 2013, J.B. sent Birdshead a message on Facebook asking Birdshead to acquire drugs for her and her friend. J.B. was fifteen years old at the time, and Birdshead had known her for approximately five or six months. Birdshead
arranged for the drug transaction to occur with J.B. that same day at the Dakota Rose Motel in Rapid City, South Dakota.
[¶3] When J.B. sent Birdshead the Facebook message, she was at Amber Larvie's home. Frank Milk, Eustacio Marrufo, and J.B.'s aunt Shy Bettelyoun were also at Larvie's home. J.B., Milk, Marrufo, and Bettelyoun left Larvie's home for the Dakota Rose Motel in a white van and arrived approximately 40 minutes before Birdshead. Bettelyoun parked the van in the parking lot of the motel. Birdshead arrived and parked his car next to the van. J.B. exited the van and got into Birdshead's car while Milk, Marrufo, and Bettelyoun remained in the van. Shortly thereafter, Milk and Marrufo jumped out of the van and ran towards Birdshead's car. Milk attacked Birdshead through the open driver-side window, while Marrufo opened the passenger-side door and climbed over J.B. to attack Birdshead.
[¶4] It is uncontested that Marrufo and Milk initiated the fight. However, the parties disputed the manner in which Marrufo and Milk attacked Birdshead. Birdshead told law enforcement that he felt as if Marrufo was " hitting [him] with something." At trial, J.B. and Bettelyoun testified that Milk and Marrufo used only their bare fists to attack Birdshead.
[¶5] While Marrufo and Milk were attacking Birdshead, Birdshead removed a .410 gauge shotgun from a bag located between his driver's seat and the driver-side door. The shotgun had a hammer that needed to be pulled back and cocked before it could be fired. Birdshead had obtained the shotgun from his friend Rodney Hickey the previous day, January 6, 2013, and prior to his Facebook conversation with J.B. arranging this drug transaction. The shotgun, about sixteen inches in overall length with a twelve-inch barrel, is an illegally short shotgun.
[¶6] Birdshead and Milk struggled over possession of the shotgun. At some point during the struggle, Birdshead pulled the trigger and shot Marrufo. The autopsy report indicated that Marrufo died of a point-blank shotgun blast to the chest. Birdshead told law enforcement that he brought the shotgun to the drug transaction because " I can't . . . go around without being able to . . . protect myself you know."
[¶7] The State filed an eight-count indictment against Birdshead. The first three charges included alternative counts of manslaughter in the first degree in violation of SDCL 22-16-15: Count 1: killing during the course of the commission of a felony; Count 2: killing by means of a dangerous weapon; Count 3: unnecessary killing while resisting any attempt to commit a crime. The remaining charges included: Count 4: commission of a felony with a firearm in violation of SDCL 22-14-12; Count 5: possession of a controlled weapon in violation of SDCL 22-14-6; Count 6: distribution of a controlled substance to a minor in violation of SDCL 22-42-2; Counts 7 and 8: fourth-degree rape in violation of SDCL 22-22-1(5). Birdshead pleaded not guilty to all eight counts.
[¶8] The circuit court severed Counts 1 through 5 from Counts 6 through 8, and a jury trial was held on July 29, 2013, for Counts 1 through 5. Birdshead moved for judgment of acquittal after the close of the State's case. The court dismissed Count 1 due to insufficient evidence of the underlying felony of distribution of a controlled substance. The jury found Birdshead guilty of Count 2 (killing by means of a dangerous weapon), Count 4 (commission of a felony with a firearm), and Count 5 (possession of a controlled weapon).
[¶9] The court denied Birdshead's motion for a new trial on September 20, 2013. Two months later, on November 20, 2013, Birdshead pleaded guilty to Count 6 (distribution of a controlled substance to a minor). The State dismissed Count 7 and Count 8. At sentencing, the court dismissed Count 4, stating, " I think that's been obvious for some time . . . that Mr. Birdshead should not be sentenced on that charge." The court sentenced Birdshead to 45 years in the penitentiary on Counts 2, 5, and 6.
[¶10] Birdshead appeals his convictions for Count 2 and Count 5, and we restate the issues as follows:
1. Whether the circuit court erred when it instructed the jury on a reduced mens rea of recklessness for the charge of first-degree manslaughter.
2. Whether the circuit court abused its discretion in permitting misleading jury instructions that emphasized the illegality of the firearm.
3. Whether the circuit court abused its discretion in denying Birdshead's proposed jury instructions.
4. Whether the circuit court failed to properly instruct the jury as to the alleged felonies being committed upon Birdshead.
5. Whether the circuit court violated Birdshead's Fifth and Sixth Amendment rights by excluding certain evidence and by limiting confrontation of key witnesses.
6. Whether Birdshead was denied his right to present the complete theory of his defense.
7. Whether the circuit court abused its discretion and denied Birdshead a fair trial with admission of impermissible 404(b) evidence.
8. Whether the cumulative errors denied Birdshead a fair trial.
[¶11] 1. Whether the circuit court erred when it instructed the jury on a reduced mens rea of recklessness for the charge of first-degree manslaughter.
[¶12] Birdshead was convicted of first-degree manslaughter in violation of SDCL 22-16-15(3). The circuit court instructed the jury on the requisite mens rea for first-degree manslaughter: " When a person intentionally or recklessly does an act which the law declares to be a crime, the person is acting with criminal intent, even though the person may not know that the conduct is unlawful." (Emphasis added.) The State had requested that the language " or recklessly" be added to the pattern instruction. The court added the language over Birdshead's objection.
[¶13] Birdshead argues that because SDCL 22-16-20 defines second-degree manslaughter as the " reckless killing of one human being," first-degree manslaughter under SDCL 22-16-15 must require proof of a greater mens rea than " recklessness." He contends that to conclude otherwise would render second-degree manslaughter meaningless--a reckless killing would always be first-degree manslaughter. He asserts, therefore, that
by including " recklessness" in the definition of criminal intent, the court's jury instruction deprived him of the right to have the State prove every element of the offense of first-degree manslaughter beyond a reasonable doubt.
[¶14] We review a circuit " court's decision to grant or deny a particular instruction" and " the wording and arrangement of its jury instructions" for an abuse of discretion. State v. Roach, 2012 S.D. 91, ¶ 13, 825 N.W.2d 258, 263 (quoting State v. Klaudt, 2009 S.D. 71, ¶ 13, 772 N.W.2d 117, 121). " [A] court has no discretion to give incorrect or misleading instructions, and to do so prejudicially constitutes reversible error." State v. Jones, 2011 S.D. 60, ¶ 5 n.1, 804 N.W.2d 409, 411 n.1. We consider jury instructions " as a whole, and if the instructions when so read correctly state the law and inform the jury, they are sufficient. This is a question of law reviewed de novo." State v. Waloke, 2013 S.D. 55, ¶ 28, 835 N.W.2d 105, 113 (quoting Klaudt, 2009 S.D. 71, ¶ 13, 772 N.W.2d at 121).
[¶15] From our review of the jury instructions as a whole, the court's instructions were sufficient. See id. The court properly instructed the jury on the elements of the offense of first-degree manslaughter under SDCL 22-16-15(3). Moreover, the court instructed the jury that " [t]he State has the burden of proving every element of the offense charged beyond a reasonable doubt." We have said first-degree manslaughter is a general intent crime. General intent " require[s] that the offender 'engage in conduct' that is prohibited by the statute, 'regardless of what the offender intends to accomplish.'" State v. Schouten, 2005 S.D. 122, ¶ 13, 707 N.W.2d 820, 824 (quoting SDCL 22-1-2(1)(b)). It " means an intent to do the physical act--or, perhaps, recklessly doing the physical act--which the crime requires." Id. (emphasis added) (quoting State v. Taecker, 2003 S.D. 43, ¶ 25, 661 N.W.2d 712, 718); State v. Mulligan, 2007 S.D. 67, ¶ 9, 736 N.W.2d 808, 813. Because the court properly instructed the jury and because Birdshead could be found guilty for his reckless doing of the prohibited act under SDCL 22-16-15(3), the circuit court's mens rea instruction did not lessen the State's burden to prove every element of the offense beyond a reasonable doubt.
[¶16] 2. Whether the circuit court abused its discretion in permitting misleading jury instructions that emphasized the illegality of the firearm.
[¶17] A circuit " court has no discretion to give incorrect or misleading instructions, and to do so prejudicially constitutes reversible error." Jones, 2011 S.D. 60, ¶ 5 n.1, 804 N.W.2d at 411 n.1. Birdshead argues that the circuit court " created undue prejudice by requiring [him] to stand trial on counts that were impermissibly charged and contrary to the law." During trial and the settling of instructions, Birdshead requested the dismissal of either Count 2 (manslaughter by means of a dangerous weapon) or Count 4 (commission of a felony with a firearm). This request was premised on the contention that SDCL 22-14-14 precluded Count 2 and Count 4 from coexisting in the indictment because the use of a dangerous weapon is a necessary element of manslaughter by means of a dangerous weapon (Count 2). SDCL 22-14-14 provides:
A violation of § 22-14-12 shall be charged in the indictment or information as a separate count in addition to the principal felony or attempted felony alleged to have been committed. No offense may be charged under those sections if the use of a dangerous weapon
is a necessary element of the principal felony alleged to have been committed or attempted.
(Emphasis added.) The jury returned a guilty verdict for both Count 2 and Count 4. In recognition of SDCL 22-14-14, the circuit court dismissed Count 4 at sentencing. This cured the violation. See State v. ...