#28450-r-DG
2019 S.D. 14

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA


                                  ****

STATE OF SOUTH DAKOTA,                     Plaintiff and Appellee,

      v.

MICHAEL BERT SWAN,                         Defendant and Appellant.


                                  ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE THIRD JUDICIAL CIRCUIT
                    GRANT COUNTY, SOUTH DAKOTA

                                  ****

                   THE HONORABLE ROBERT L. SPEARS
                               Judge

                                  ****

MARTY J. JACKLEY
Attorney General

GRANT FLYNN
Assistant Attorney General
Pierre, South Dakota                       Attorneys for plaintiff
                                           and appellee.

SCOTT R. BRATLAND
Watertown, South Dakota                    Attorney for defendant
                                           and appellant.


                                  ****



                                           ARGUED OCTOBER 3, 2018
                                           OPINION FILED 03/13/19
#28450

GILBERTSON, Chief Justice

[¶1.]        Michael B. Swan appeals his conviction for second-degree murder,

arguing the circuit court abused its discretion by failing to instruct the jury on the

lesser-included offenses of first- and second-degree manslaughter. Swan also claims

the circuit court erred by denying his two motions for judgment of acquittal. We

reverse and remand.

                          Facts and Procedural History

[¶2.]        Sixty-three-year-old Swan and his wife, 77-year-old Angelina Swan,

resided in an apartment in Milbank. At approximately 4:00 a.m. on October 24,

2016, Swan called his longtime friend Duane Pollock and claimed he was unable to

wake Angelina. Pollock arrived at Swan’s apartment within five minutes to check

on Angelina, but was unable to detect a pulse. Pollock attempted to open Angelina’s

mouth and found that her jaw was locked shut. Pollock also noticed extensive

bruising on Angelina’s face and arms.

[¶3.]        Pollock contacted the Grant County Detention Center and requested

an ambulance and the assistance of law enforcement. Milbank Police Officer

Michael Morgan arrived at Swan’s apartment at approximately 4:15 a.m. Officer

Morgan observed that Angelina was cold, gray, stiff, and that her jaw was locked.

He also noticed that Angelina had a black eye, bruising on the left side of her face

and right hand, and blood in her nose. Officer Morgan contacted Milbank Chief of

Police Boyd Van Vooren, who contacted the South Dakota Division of Criminal

Investigation (DCI).




                                          -1-
#28450

[¶4.]        DCI Special Agent Cameron Corey, along with Special Agents Jeff

Kollars and Jeff Belon, investigated Angelina’s death. Agent Corey conducted two

interviews with Swan. Swan explained that on the afternoon of October 23, 2016,

he and Angelina watched television for most of the day and had no visitors. Swan

claimed that between 12:30 and 1:00 a.m., Angelina was lying in her chair and he

told her she should go to bed. Swan stated that Angelina kicked her foot at him

because she did not want to go to bed. In response, Swan claimed “he gave the

bottom of her foot a pop.” Swan then assisted Angelina to the bathroom and then to

the bedroom, where he helped her lay down on an air mattress.

[¶5.]        Swan told Agent Corey that he and Angelina “squabbled after she had

gone to bed, but that’s all, just husband and wife after so much time, just

squabbling.” Swan also stated that “[w]e didn’t really fight or anything like that,

just squabbled.” He claimed the couple was not “cursing at each other or anything

like that. It did get a little vocal when I was taking her to bed saying just lay down,

get some sleep. That’s all.”

[¶6.]        Swan claimed that after Angelina fell asleep, he sat at his desk and

could hear her snoring. He also claimed that he checked on her periodically. Once

when he checked on her, Swan stated Angelina had rolled off the air mattress, but

she did not want Swan to help her back onto it. Swan continued watching

television and checking on Angelina until at least 2:00 a.m. Around that time,

Swan claimed he could no longer hear Angelina snoring, so he went to check on her

again. Swan claimed that he found Angelina in the same position next to the air

mattress, but that he was not able to wake her up. Swan said he began slapping


                                          -2-
#28450

the side of Angelina’s face but that she still would not wake up. He also claimed

that he attempted to give Angelina mouth-to-mouth resuscitation. When that

failed, Swan stated he called Pollock for help.

[¶7.]        Minnehaha County Medical Examiner Dr. Kenneth Snell performed an

autopsy the next day. Dr. Snell discovered that Angelina had suffered a severe

atlanto-occipital dislocation (AOD), also known as an internal decapitation.

Additionally, his examination found that Angelina had sustained two subdural

hemorrhages, hemorrhaging to the sclera in both eyes, and several hemorrhages on

her back where her ribs met her spine. Dr. Snell further noted bruising on

Angelina’s upper and lower eyelids and left cheek, as well as bruising on her

abdomen, right buttock, right arm, right hand, right thigh, right knee, and inner

left shin. Dr. Snell concluded that Angelina’s death was caused by internal

decapitation likely caused by someone stomping on her neck.

[¶8.]        The State initially charged Swan with domestic simple assault, but

amended the complaint to charge Swan with second-degree murder after receiving

the autopsy results. Swan was indicted and a trial was held on September 11, 2017.

Throughout the trial, Swan asserted that Angelina’s death resulted from a fall.

Swan denied that he and Angelina had engaged in a violent altercation.

[¶9.]        Swan requested that the jury be instructed on the lesser-included

offenses of first-degree and second-degree manslaughter. The State opposed the

instructions, arguing there was no factual basis to support these offenses. The

circuit court agreed with the State and denied the requested instructions.




                                          -3-
#28450

[¶10.]       During trial, Swan orally moved for judgment of acquittal after the

State rested its case, which the circuit court denied. Swan was convicted of second-

degree murder. He then renewed his motion for a judgment of acquittal, but the

circuit court denied his written motion as well. Swan was sentenced to life

imprisonment. He appeals his conviction and sentence, asserting the following

issues for our review:

             1.     Whether the circuit court abused its discretion by
                    refusing to instruct the jury on first- and second-degree
                    manslaughter.

             2.     Whether there is sufficient evidence in the record to
                    support Swan’s conviction of second-degree murder.

                                Analysis & Decision

             1. Whether the circuit court abused its discretion by refusing to
                instruct the jury on first- and second-degree manslaughter.

[¶11.]       Swan argues he was entitled to lesser-included offense instructions on

the second-degree murder charge on which he was convicted, including first- and

second-degree manslaughter. Swan claims the circuit court abused its discretion by

denying the proposed instructions. Specifically, Swan asserts there was sufficient

evidence in the record to support his contention that he acted in the “heat of

passion” in killing Angelina, thereby justifying an instruction on the charge of first-

degree manslaughter under SDCL 22-16-15.

[¶12.]       Our standard of review of a circuit court’s denial of a proposed jury

instruction is well settled. State v. Randle, 2018 S.D. 61, ¶ 32, 916 N.W.2d 461,

469.

             We review a [circuit] court’s refusal of a proposed instruction
             under an abuse of discretion standard. The trial court has broad

                                          -4-
#28450

             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. at 469-70 (quoting State v. Shaw, 2005 S.D. 105, ¶ 18, 705 N.W.2d 620, 625).

“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. at 470 (quoting Shaw, 2005 S.D. 105, ¶ 18, 705 N.W.2d at 625-26).

[¶13.]       Swan was charged and convicted of second-degree murder. Second-

degree murder is defined as a “[h]omicide . . . perpetrated by any act imminently

dangerous to others and evincing a depraved mind, without regard for human life,

although without any premeditated design to effect the death of any particular

person, including an unborn child.” SDCL 22-16-7. Swan requested the jury be

instructed on first- and second-degree manslaughter. First-degree manslaughter is

a lesser-included offense of first- and second-degree murder. SDCL 22-16-20.1.

Second-degree manslaughter is a lesser-included offense of first- and second-degree

murder and first-degree manslaughter. Id. First-degree manslaughter is a

“[h]omicide . . . perpetrated . . . (2) Without any design to effect death, including an

unborn child, and in a heat of passion, but in a cruel and unusual manner[.]” SDCL

22-16-15(2). Second-degree manslaughter is “[a]ny reckless killing of one human

being, including an unborn child, by the act or procurement of another which, under

the provisions of this chapter, is neither murder nor manslaughter in the first

degree, nor excusable nor justifiable homicide . . . .” SDCL 22-16-20.




                                           -5-
#28450

[¶14.]       As to first-degree manslaughter, acting within the “‘[h]eat of passion’ is

defined as an ‘intent formed suddenly, under the influence of some violent emotion,

which for the instant overwhelmed the reason of the slayer.’” State v. Hart,

1998 S.D. 93, ¶ 15, 584 N.W.2d 863, 865 (quoting Graham v. State, 346 N.W.2d 433,

434 (S.D. 1984)). “Heat of passion” is further defined in the South Dakota Pattern

Jury Instruction that Swan requested at trial:

             “Heat of passion” which will reduce a killing from murder to
             manslaughter in the first degree means a suddenly formed
             passion which was caused by reasonable and adequate
             provocation on the part of the person slain, causing a temporary
             obscurity of reason rendering a person incapable of forming a
             premeditated design to kill and which passion continues to exist
             until the commission of the homicide.

             “Heat of passion” is such mental disturbance or condition as
             would so overcome and dominate or suspend the exercise of the
             judgment of the defendant as to render his mind for the time
             being deaf to the voice of reason, make him incapable of forming
             and executing the distinct intent to take human life, and to
             cause him, uncontrollably, to act from impending force of the
             disturbing cause rather than from any real wickedness of heart
             or cruelty or recklessness of disposition. The sufficient
             provocation must be such as would naturally and reasonably
             arouse the passion of an ordinary person beyond his power to
             control.

SDPJI 3-24-26 (1996).

[¶15.]       Pursuant to SDCL 22-16-20.2, “[a] lesser included offense instruction

shall be given at any homicide trial whenever any facts are submitted to the trier of

fact which would support such an offense pursuant to this chapter.” When deciding

to give the jury a lesser-included offense instruction, the circuit court must consider

“whether there is some evidence to support giving the instruction.” State v. Waloke,

2013 S.D. 55, ¶ 30, 835 N.W.2d 105, 114 (quoting State v. Hoadley, 2002 S.D. 109,


                                          -6-
#28450

¶ 64, 651 N.W.2d 249, 264). But “the question is not . . . whether there was

sufficient evidence.” Id. (quoting Hoadley, 2002 S.D. 109, ¶ 64 n.14, 651 N.W.2d at

264 n.14). “[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.”

Randle, 2018 S.D. 61, ¶ 33, 916 N.W.2d at 470 (quoting State v. Birdshead,

2015 S.D. 77, ¶ 27, 871 N.W.2d 62, 73).

[¶16.]       Swan notes evidence in the record that he believes shows he acted in a

heat of passion in killing Angelina, entitling him to a jury instruction for first-

degree manslaughter. Two of Swan’s neighbors testified at trial that Swan and

Angelina could be heard arguing or slamming doors almost daily. Pollock’s wife,

Sandra Pollock, testified that Swan and Angelina drank beer and that Pollock took

Swan to the liquor store to buy beer on almost a daily basis. In Swan’s interview

with Agent Corey, Swan stated that he had been drinking alcohol and arguing with

Angelina throughout the evening of October 23, 2016. Swan revealed in the

interview that he and Angelina had been “squabbling” and that Angelina had

kicked Swan and he retaliated by clapping the bottom of Angelina’s foot. Swan also

revealed that Angelina requested that he come into the bedroom to help her about a

half-dozen times. Angelina asked Swan to get her aspirin and water, to help her to

the bathroom, to turn down the television, and to reposition her on the air mattress.

Swan also stated that Angelina was having trouble walking due to back pain earlier

that day, and that he assisted her in getting around. There is also evidence that

Angelina may have been showing the early signs of dementia and that Swan had a

history of high blood pressure.


                                           -7-
#28450

[¶17.]       Swan claims this evidence shows that he could have become

increasingly frustrated with Angelina on October 23, 2016, and killed her in a heat

of passion. He asserts this frustration was the result of Angelina’s neediness and

dependence on him, shown by her numerous requests for him to help her. Swan

argues these details amount to at least “some evidence” that he may have killed

Angelina in a heat of passion. Waloke, 2013 S.D. 55, ¶ 30, 835 N.W.2d at 114

(quoting Hoadley, 2002 S.D. 109, ¶ 64, 651 N.W.2d at 264). He therefore asserts

that this evidence factually supports instructions on first-degree manslaughter.

SDCL 22-16-20.2.

[¶18.]       The State also appeared to advance the heat of passion theory in its

closing arguments:

             What did happen? The truth of the matter is the defendant and
             Angelina Swan, they lived a miserable life. They fought and
             yelled at each other. They drank. That’s all they did. The[ir]
             [neighbors] who had no interest in this case heard them
             screaming at each other constantly. The defendant admits he
             was—she was asking him for stuff constantly. He was annoyed.
             He was frustrated. She kept asking for things, bring me this,
             bring me that. He said it was like every five minutes. [“]I would
             go sit down and ten minutes later she would be asking me for
             something again.[”] And you know what, she does probably
             have a sore back. She does maybe have some cognitive
             disabilities, maybe some memory loss. She’s needy. She’s
             dependent. She’s becoming more and more dependent on this
             defendant all the time and he can’t handle it. He gets fed up by
             it. And instead of helping her the way he should have, he grew
             angry and he started beating her up. I think with his foot, the
             foot you saw . . . [h]e’s stomping on her. She’s protecting herself.
             And he stomps on her neck and he ends her life. Maybe he
             didn’t mean to, but he did. It’s the only medical explanation
             that there is in this case.

[¶19.]       At the very least, the evidence referenced by Swan certainly amounts

to “any facts . . . which would support” first-degree manslaughter. SDCL 22-16-

                                          -8-
#28450

20.2. There was at least “some evidence” presented to the circuit court that

supported the possibility of a heat of passion killing. Waloke, 2013 S.D. 55, ¶ 30,

835 N.W.2d at 114 (quoting Hoadley, 2002 S.D. 109, ¶ 64, 651 N.W.2d at 264).

Therefore, the circuit court abused its discretion in rejecting Swan’s proposed

instruction for first-degree manslaughter.∗

[¶20.]         “If evidence has been presented which would support a conviction of a

lesser charge, refusal to give the requested instruction would be reversible error.”

State v. Williams, 2008 S.D. 29, ¶ 34, 748 N.W.2d 435, 446 (quoting State v.

Heumiller, 317 N.W.2d 126, 132 (S.D. 1982). There was evidence that entitled

Swan to an instruction on the lesser-included offense of first-degree manslaughter,

so we must reverse Swan’s conviction for second-degree murder and remand for a

new trial. Because we reverse and remand for a new trial on the issue of jury

instructions for lesser-included offenses, we do not reach the issue of whether there




∗        Swan also argues he was entitled to an instruction on second-degree
         manslaughter. As noted above, second-degree manslaughter involves a
         reckless killing that is neither murder, first-degree manslaughter, nor
         justifiable homicide. SDCL 22-16-20. SDCL 22-1-2(1)(d) defines reckless as:

               import[ing] a conscious and unjustifiable disregard of a
               substantial risk that the offender’s conduct may cause a certain
               result or may be of a certain nature. A person is reckless with
               respect to circumstances if that person consciously and
               unjustifiably disregards a substantial risk that such
               circumstances may exist[.]

         Swan has presented no evidence that he acted recklessly by consciously and
         unjustifiably disregarding a substantial risk. The evidence presented only
         shows that Angelina’s death was either the result of a fall or of a stomping to
         the neck. Therefore, Swan was not entitled to an instruction for second-
         degree manslaughter.
                                           -9-
#28450

was sufficient evidence in the record to support Swan’s conviction of second-degree

murder.

[¶21.]       KERN, JENSEN and SALTER, Justices, concur.




                                        -10-
