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State v. McCahren

Supreme Court of South Dakota

April 20, 2016

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
BRAIDEN MCCAHREN, Defendant and Appellant

         Argued January 13, 2016.


         MARTY J. JACKLEY, Attorney General, PATRICIA ARCHER, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

         MICHAEL J. BUTLER, Sioux Falls, South Dakota and CLINT L. SARGENT, RALEIGH HANSMAN, Meierhenry & Sargent, LLP, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

         SEVERSON, Justice. GILBERTSON, Chief Justice, and HOUWMAN, Circuit Court Judge, concurs. MYREN and SABERS, Circuit Court Judges, concur specially. MYREN, Circuit Court Judge, sitting for ZINTER, Justice, disqualified. HOUWMAN, Circuit Court Judge, sitting for WILBUR, Justice, disqualified. SABERS, Circuit Court Judge, sitting for KERN, Justice, disqualified.


         SEVERSON, Justice

          [¶1] A jury found Braiden McCahren guilty of second-degree murder after he fatally shot Dalton Williams. The jury also found him guilty of aggravated assault of Tyus Youngberg. On appeal, McCahren asserts that a jury instruction on second-degree murder violated his constitutional rights. He further asserts that the circuit court improperly limited his cross-examination of a State witness and improperly refused to suppress McCahren's statements made to a roommate at a juvenile facility and his statements made to an officer immediately after the shooting. Finally, McCahren asserts that his sentence for aggravated assault is cruel and unusual thereby violating the Eighth Amendment. We affirm.


          [¶2] On September 23, 2014, a jury found McCahren guilty of second-degree murder of Dalton Williams and aggravated assault of Tyus Youngberg. The jury heard testimony from Tyus Youngberg. He testified that the death was a result of an incident on December 18, 2012. Youngberg testified that McCahren, Youngberg, and Williams were at McCahren's house when McCahren went to a gun rack and grabbed a shotgun, shouldering it as if to shoot something. Youngberg initially told the police that they were messing around and that the shooting was accidental. He later testified at trial that it was intentional. He further testified that McCahren pulled the trigger of the gun as he was pointing it at Youngberg, but the gun just clicked. According to Youngberg, McCahren then opened a drawer and pulled out a 20-gauge shell. At this point, Youngberg tried to leave the house through a sliding glass door. In order to get to the door, he went past Williams, who was now between Youngberg and McCahren. Youngberg heard another click but no discharge occurred. Youngberg testified that he was unable to open the glass door, so he intended to run to the garage but Williams was in his path. As he was attempting to move Williams out of the way, the gun held by McCahren discharged. The shot hit Williams, who subsequently died. McCahren contends the shooting was an accident.

          [¶3] Youngberg called 911 to report the shooting. Upon arrival, law enforcement questioned Youngberg and McCahren about the incident. Officer Martin Waller interviewed McCahren in a patrol car, while another officer interviewed Youngberg. In the patrol car, Waller asked McCahren to tell him what happened. McCahren told Waller that he was messing around with a gun that he thought was empty but the gun discharged and a shot hit Williams. After obtaining some of the details of the incident, Waller asked McCahren if he had contacted his father yet. Upon McCahren's negative response, Waller contacted McCahren's father. Waller informed the father, Kit McCahren, about the incident and then allowed McCahren to speak with his father. Later, upon learning that the incident may not have been an accident, Waller placed McCahren under arrest.

          [¶4] As a result of the incident, McCahren was indicted for first-degree murder, attempted first-degree murder, and aggravated assault. At the conclusion of a jury trial on those three charges, the State requested that the jury also receive an instruction for second-degree murder. The State made the request during the settling of jury instructions, after all evidence from the prosecution and defense had been presented to the jury, and 90 minutes before closing arguments. Over defense objection, the court granted the State's request and instructed the jury on second-degree murder. The jury found McCahren guilty of second-degree murder of Williams and aggravated assault of Youngberg. The court sentenced McCahren to twenty-five years with fifteen years suspended for second-degree murder and fifteen years for aggravated assault, to run concurrently with the second-degree murder sentence. McCahren now appeals the court's decision to instruct the jury on the offense of second-degree murder. McCahren further appeals the court's decision to limit the defense's cross-examination of one of the State's witnesses, the court's refusal to suppress McCahren's statements made to a roommate at Western Area Juvenile Services Center, and the court's refusal to suppress McCahren's statements made to Officer Waller in the patrol car. Lastly, McCahren asserts that the imposition of the maximum sentence for the aggravated-assault conviction is cruel and unusual.


         Second-degree murder instructions

          [¶5] " In general, we 'review a trial court's decision to grant or deny a particular instruction under the abuse of discretion standard.'" State v. Waloke, 2013 S.D. 55, ¶ 28, 835 N.W.2d 105, 112-13 (quoting State v. Roach, 2012 S.D. 91, ¶ 13, 825 N.W.2d 258, 263). Questions of law are reviewed de novo. See id. at 113.

          [¶6] McCahren asserts that the court's decision to instruct the jury on second-degree murder deprived him of his constitutional right to notice of the charges against him and his right to defend against such because second-degree murder was not charged in the indictment. He relies on State v. Lohnes, 324 N.W.2d 409, 412 (S.D. 1982), in which the lower court, over the defendant's objection, instructed on second-degree murder despite that offense not being charged. In Lohnes, we determined that such an approach violated the defendant's constitutional right to be informed of the nature and cause of the accusation against him. Id. Since Lohnes was decided, the jurisprudence surrounding homicide charges and lesser-included offenses in homicide trials has changed. Therefore, the question in front of us today is the applicability of Lohnes in light of our evolved statutes and precedent on lesser-included offenses, specifically with regard to the differing degrees of homicide.

          [¶7] Article VI, § 7 of our constitution provides an accused with the right to:

defend in person and by counsel; to demand the nature and cause of the accusation against him; to have a copy thereof; to meet the witnesses against him face to face; to have compulsory process served for obtaining witnesses in his behalf, and to a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.

S.D. Const. art. VI, § 7. The indictment's " principal office . . . is to inform the accused of the nature and cause of the accusation against him; to be thus informed being one of the accused's most important constitutional rights." Lohnes, 324 N.W.2d at 412 (quoting State ex. rel. Kotilinic v. Swenson, 18 S.D. 196, 202, 99 N.W. 1114, 1115 (1904)). Courts have explained that " [a] lesser included offense need not be charged in an indictment, as it is already included in the offense charged." United States v. McGeehan, 824 F.2d 677, 679 n.2 (8th Cir. 1987) (citing United States v. Martel, 792 F.2d 630, 638 (7th Cir. 1986)); accord Fed. R. Crim. P. 31(c) (" A defendant may be found guilty of any of the following: (1) an offense necessarily included in the offense charged; (2) an attempt to commit the offense charged; or (3) an attempt to commit an offense necessarily included in the offense charged, if the attempt is an offense in its own right." ); SDCL 23A-26-8 (Rule 31 (c)) (" A defendant may be found guilty of an offense necessarily included in the offense charged[.]" ).

          [¶8] We have applied the elements test to determine which offenses are lesser-included. See Waloke, 2013 S.D. 55, ¶ 29, 835 N.W.2d at 113 (outlining the history of this Court's treatment of lesser-included offense instructions). The elements test is satisfied where:

(1) all of the elements of the included offense are fewer in number than the elements of the greater offense; [1] (2) the penalty for the included lesser offense must be less than that of the greater offense; and (3) both offenses must contain common elements so that the greater offense cannot be committed without also committing the lesser offense.

State v. Giroux, 2004 S.D. 24, ¶ 5, 676 N.W.2d 139, 141 (quoting State v. Hoadley, 2002 S.D. 109, ¶ 61, 651 N.W.2d 249, 263). Once the elements test is met, an instruction on the lesser-included offense may only be given if some evidence was presented that supports the instruction. Hoadley, 2002 S.D. 109, ¶ 64, 651 N.W.2d at 264. Our elements test " provides certainty and predictability in determining lesser-included offenses and is compatible with the constitutional principles of double jeopardy, due process, and notice while maintaining mutuality." Id. ¶ 66, 651 N.W.2d at 265 (quoting Tim Dallas Tucker, State v. Black: Confusion in South Dakota's Determination of Lesser Included Offenses in Homicide Cases, 41 S.D. L.Rev. 465, 501 (1996)) (adopting elements test). " In 2005, the Legislature validated this approach . . . in homicide cases by codifying the possible lesser included offenses for various degrees of murder and manslaughter." Waloke, 2013 S.D. 55, ¶ 29, 835 N.W.2d at 113 (citing SDCL 22-16-20.1). The Legislature provided that " [m]urder in the second degree is a lesser included offense of murder in the first degree." SDCL 22-16-20.1.[2] It also codified the factual requirement in SDCL 22-16-20.2.[3]

          [¶9] Our adoption of the elements test and the Legislature's codification of the lesser-included murder and manslaughter offenses occurred well after our Lohnes decision, where we were concerned that second-degree murder was an offense never charged that had " distinctly different elements than first-degree murder." Lohnes, 324 N.W.2d at 412. We rejected the State's argument in Lohnes that a lesser-included instruction was appropriate due to SDCL 23A-26-7,[4] which mandates that the jury find the degree of the crime that it convicts the defendant of having committed. Id. We explained that the statute " ha[s] no effect on the elements of the first and second-degree murder charge." Id. McCahren points out that the elements of first and second-degree murder remain different today because first-degree murder requires premeditation. SDCL 22-16-4(1). In contrast, second-degree murder requires a depraved mind. SDCL 22-16-7.

          [¶10] McCahren contends that as a result of those " different" elements, second-degree murder is not a true lesser-included offense. Nonetheless, as Judge Tucker explained, even under the elements test, second-degree murder is a lesser included offense of first-degree murder because we consider the mens rea requirement of depraved mind as a less culpable mens rea contained within the greater offense's requirement of premeditation--" evincing a depraved mind, regardless of human life, although without any premeditated design to effect death is a lesser mental state than premeditation." Tucker, State v. Black, 41 S.D. L.Rev. at 496 (quotation marks omitted) (footnote omitted). We adopted this approach to the mens rea requirements in Hoadley, 2002 S.D. 109, ¶ 61 n.12, 651 N.W.2d at 263 n.12. And when considering whether a second-degree murder or manslaughter instruction should be given on the charged offense of first-degree murder, we have previously determined that " the elements test was met[.]" Id. ¶ 64, 651 N.W.2d at 264. We also explained, two years later, in Giroux, " [t]he use of different words does not necessarily eliminate a crime as a lesser-included-offense. Our analysis . . . uses the degree of culpability analysis . . . ." 2004 S.D. 24, ¶ 8, 676 N.W.2d at 142. As soon as we adopted such an approach, the holding in Lohnes was overruled to the extent that it determined that second-degree murder could not be a lesser-included offense of first-degree murder due to the differing mens rea elements of the two crimes. See Lohnes, 324 N.W.2d at 412.

          [¶11] It is true, as McCahren states, that a statute cannot override constitutional protections. However, our elements test and statute operate to provide a defendant with the notice he or she is entitled. Under SDCL 22-16-20.2, a lesser-included instruction can only be given to the jury if there are " any facts . . . which would support such an offense[.]" Although a court may need to wait until the close of evidence to determine whether a lesser-included instruction is warranted, such an approach does not deprive a defendant of constitutionally required notice. Our elements test established a number of years ago that second-degree murder is a lesser-included offense of first-degree murder, and SDCL 22-16-20.1 removed any doubt regarding such. Due process is fulfilled under our approach to lesser-included homicide offenses because each lesser offense has lesser elements, either in number or degree of culpability, than the greater offense. The greater offense cannot be committed without also committing the lesser offense. Thus, a defendant will be able to anticipate and defend against lesser-included offenses during preparation and trial on the greater offense because the lesser-included is " already included in the offense charged." See McGeehan, 824 F.2d at 679 n.2. Further, SDCL 22-16-20.2 ensures that an instruction will not be given if no facts support the instruction. Such an approach satisfies due process concerns. See Hoadley, 2002 S.D. 109, ¶ 66, 651 N.W.2d at 265.

          [¶12] Along with SDCL 22-16-20.1, -20.2, our law provides that " [a] defendant may be found guilty of an offense necessarily included in the offense charged [.]" SDCL 23A-26-8 (Rule 31(c)) (emphasis added). The statute clearly contemplates uncharged offenses. Our approach is not unique. The Supreme Court, when analyzing the federal rule of criminal procedure 31(c), which mirrors ours, adopted the elements test, in part, because it allows " both sides to know in advance what jury instructions will be available and to plan their trial strategies accordingly." Schmuck v. United States, 489 U.S. 705, 720, 109 S.Ct. 1443, 1453, 103 L.Ed.2d 734 (1989).

          [¶13] In addition to the United States Supreme Court, other courts have addressed the question of when a lesser-included offense instruction is appropriate. See State v. Rodriguez, 180 Conn. 382, 429 A.2d 919, 929 (Conn. 1980) (collecting cases and noting that " courts consistently hold that where the evidence supports an instruction on a lesser degree of homicide than that charged, it is error to refuse to give such an instruction" ). The Connecticut Supreme Court in Rodriguez faced the same issue that we now address. Id. Rodriguez was charged with murder, which required the specific intent to cause the death of another, and the trial court also instructed on manslaughter in the first and second-degree along with criminally negligent homicide, all of which required a state of mind different than intent to cause death. Id. at 927. Thus, he alleged that, by giving additional instructions, the trial court violated his right to be informed of the crime he allegedly committed. Id.

          [¶14] The Connecticut ...

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