#28126-aff in pt & rev in pt-SRJ
2018 S.D. 61

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                   ****

STATE OF SOUTH DAKOTA,                      Plaintiff and Appellee,

      v.

DAVID LEONARD RANDLE, JR.,                  Defendant and Appellant.


                                   ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE SECOND JUDICIAL CIRCUIT
                   MINNEHAHA COUNTY, SOUTH DAKOTA

                                   ****

                     THE HONORABLE BRADLEY G. ZELL
                                Judge

                                   ****

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
#28126

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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#28126

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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#28126

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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#28126


             [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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#28126

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).

                                          -11-
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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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#28126

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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