January 13, 2016.
FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HUGHES
COUNTY, SOUTH DAKOTA. THE HONORABLE JOHN L. BROWN, Judge.
J. JACKLEY, Attorney General, PATRICIA ARCHER, Assistant
Attorney General, Pierre, South Dakota, Attorneys for
plaintiff and appellee.
J. BUTLER, Sioux Falls, South Dakota and CLINT L. SARGENT,
RALEIGH HANSMAN, Meierhenry & Sargent, LLP, Sioux Falls,
South Dakota, Attorneys for defendant and appellant.
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.
[¶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
[¶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.
[¶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
[¶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
[¶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
(1) all of the elements of the included offense are fewer in
number than the elements of the greater offense;
(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. It also codified the
factual requirement in SDCL 22-16-20.2.
[¶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, 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 ...