State v. Holloway

482 N.W.2d 306, 1992 S.D. LEXIS 30, 1992 WL 45460
CourtSouth Dakota Supreme Court
DecidedMarch 11, 1992
Docket17169
StatusPublished
Cited by41 cases

This text of 482 N.W.2d 306 (State v. Holloway) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Holloway, 482 N.W.2d 306, 1992 S.D. LEXIS 30, 1992 WL 45460 (S.D. 1992).

Opinions

AMUNDSON, Justice.

Michael Holloway (Holloway) appeals from trial court’s judgment and sentence based upon a jury verdict that he was guilty of manslaughter in the first degree and robbery in the first degree. We affirm.

FACTS

The incident which gives rise to this appeal occurred on August 25 and 26,1989, in Sioux Falls, South Dakota. Holloway was eighteen years old with a history of alcohol abuse. Testimony disclosed Holloway spent the late afternoon and early evening of August 25, drinking beer and whiskey with several adult relatives and friends at his uncle’s house. Then, at about 10:30 p.m., Holloway went with relatives to the Frontier Bar where he continued to drink beer. Holloway remained in the downtown [308]*308Sioux Falls area until approximately 2 a.m. on August 26, during which time he consumed numerous alcoholic beverages in bars and also smoked marijuana with a friend. Holloway stated that he did not remember many of the evening’s events.

The evidence at time of trial showed that the decedent, Olin Aune (Aune), who also had a history of alcohol abuse, spent the afternoon and evening of August 25, consuming numerous alcoholic beverages. Aune went to several downtown bars that evening and was refused service at the Rainbow Bar, and eventually was kicked out because of disruptive behavior.

After the bars closed, Holloway testified he began walking back toward his uncle’s house by way of a short cut behind a downtown building when Aune began yelling angrily while approaching Holloway, then pursued him into an area behind the building. The evidence presented at time of trial was that both Holloway and Aune were armed with knives. Next, a struggle ensued between them, in which Aune was stabbed and killed. Holloway remembered removing Aune’s wallet and other property from the victim’s pockets. After the incident, Holloway returned to his uncle’s house and went to bed. The victim’s body was not discovered until August 28. On August 30, Holloway’s mother and sister discovered the victim’s wallet and Holloway’s bloody jeans in the camper where he had been staying. Holloway, though not remembering many of the events which occurred on August 25 and 26, believed he was responsible and turned himself in to the police.

Holloway was tried in March, 1990. The jury returned a verdict of guilty of first-degree manslaughter and first-degree robbery, but not guilty of premeditated murder and felony murder. The judge sentenced him to one hundred twenty-one years on the manslaughter conviction, and twenty-five years on the robbery conviction to be served consecutively, for a total of one hundred forty-six years. Holloway moved for reconsideration of the sentence, which was denied by the trial court. This appeal followed.

ISSUES

1. Whether it was plain error not to instruct the jury on grand theft from the person as a necessarily included offense of robbery?

2. Whether it was plain error for the trial court to instruct on manslaughter in the first degree as a lesser included offense of murder?

3. Whether the trial court erred in refusing to instruct the jury on justifiable homicide?

4. Whether the sentence imposed by the trial court was cruel and unusual punishment in violation of the Eighth Amendment?

ANALYSIS

1) Grand Theft Instruction

Holloway was indicted for robbery in the first degree pursuant to SDCL 22-30-1 and 22-30-6.1 He argues that the trial court should have instructed the jury on grand theft as a necessarily included offense of robbery.2

The standard for instructing on lesser included offenses is well settled in [309]*309this jurisdiction. We employ a legal test and a factual test to determine whether an offense is necessarily included within a greater offense and whether the requested instruction on the lesser offense must be given. See State v. Groves, 473 N.W.2d 456 (S.D.1991); State v. Tapio, 459 N.W.2d 406 (S.D.1990); State v. Gillespie, 445 N.W.2d 661 (S.D.1989); State v. Scholten, 445 N.W.2d 30 (S.D.1989); State v. Bonrud, 393 N.W.2d 785 (S.D.1986).

Holloway never requested an instruction on grand theft at the time of trial, and there is no record of any objection to the robbery instruction; therefore, Holloway failed to preserve any error for appeal on this issue. We have previously held when no objections were made by the defendant to any instructions of the court, and the defendant proposed no instructions, there is no question concerning the instructions before this court on appeal. Carlson v. First Nat. Bank, 429 N.W.2d 463, 465 (S.D.1988); State v. White Mountain, 332 N.W.2d 726 (S.D.1983); State v. Halverson, 87 S.D. 110, 203 N.W.2d 421 (1973).

Holloway concedes that he did not request a grand theft instruction, but he urges this court to apply the plain error rule to this issue as an alternative. We have previously stated that “the plain error rule applies only in exceptional cases, and then it must be applied cautiously; the rule does not encompass every error which occurs at trial, but only those errors which are both obvious and substantial.” See State v. Lewandowski, 463 N.W.2d 341, 344 (S.D.1990); People in Interest of R.R., 447 N.W.2d 922, 927 (S.D.1989); State v. Dombusch, 384 N.W.2d 682, 686 (S.D.1986). We fail to see how the trial court’s alleged error in failing to instruct on grand theft could be both obvious and substantial when Holloway never objected to the robbery instruction, nor requested the grand theft instruction.

We have never specifically held that grand theft is a necessarily included offense of robbery and we decline to do so now. The trial court’s duty is to instruct the jury on all matters of law which it determines are necessary for the jury to render a verdict. SDCL 23A-25-3. When jury instructions as a whole correctly state the law and inform the jury, they are deemed to be adequate. Lewandowski, supra. We find that the jury instructions given in this case satisfy the above statutory requirement and the failure to give an instruction on grand theft, even if appropriate, does not rise to the level of plain error in this case.

2) Manslaughter Instruction

Holloway asserts it was plain error for the trial court to give a manslaughter instruction. The trial court gave the instruction on manslaughter in the first degree as a lesser included offense of murder at Holloway’s request. Thus, if the court erred in giving the manslaughter instruction, it was an error which was invited by Holloway. We have previously held that invited errors are not subject to appeal. State v. Wiegers, 373 N.W.2d 1 (S.D.1985); State v. Johnson, 272 N.W.2d 304 (S.D.1978); State v. Parker, 263 N.W.2d 679 (S.D.1978).

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Bluebook (online)
482 N.W.2d 306, 1992 S.D. LEXIS 30, 1992 WL 45460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-holloway-sd-1992.