State v. Holmes

338 N.W.2d 104, 1983 S.D. LEXIS 397

Opinions

FOSHEIM, Chief Justice.

Appellant Timothy J. Holmes was convicted of receiving stolen property in violation of SDCL 22-30A-7. He appeals, alleging that the trial court erred in refusing his proposed jury instruction on presumption of innocence. We affirm.

At trial, appellant cross-examined . the State’s witnesses but did not testify or present evidence on his behalf. In settling the jury instructions, the trial court refused appellant’s request to include South Dakota Pattern Jury Instruction 1-4 on presumption of innocence. It reads:

It is a fundamental principle of our law that a person accused of a crime is presumed to be innocent, and this presumption follows the accused throughout every stage of the trial. So in this case the defendant is presumed to be innocent, and this presumption follows him through every stage of the prosecution and must continue and abide with you until you are satisfied from the evidence beyond a reasonable doubt that he is guilty.

Relying on Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640, reh. den. 444 U.S. 887, 100 S.Ct. 186, 62 L.Ed.2d 121 (1979), the trial court determined that overwhelming evidence of guilt made such an instruction unsuitable. The court did, however, instruct the jury that the burden of proof rested upon the State to establish appellant’s guilt beyond a reasonable doubt.

Despite the trial court’s determination that there was overwhelming evidence of guilt, appellant maintains that SDCL 23A-22-3 entitled him as a matter of right to a jury instruction on presumption of innocence. SDCL 23A-22-3 provides: “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted.” While this statute sets out the presumption of innocence which accompanies each accused throughout a criminal proceeding, it does not mandate that such an instruction be given in every case.

Footnotes

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* In addition, failure to give a requested instruction on presumption of innocence does not in and of itself violate the Constitution.

... [S]uch a failure must be evaluated in light of the totality of the circumstances — including all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors — to determine whether the defendant received a constitutionally fair trial.

Kentucky v. Whorton, 441 U.S. at 789, 99 S.Ct. at 2090, 60 L.Ed.2d at 643.

The jury received an instruction on reasonable doubt. Such instruction practically secured the benefit of the presumption of innocence to the defendant. Kindle v. State, 174 Ark. 1179, 297 S.W. 827 (1927); see Cane v. Commonwealth, 556 S.W.2d 902 (Ky.App.1977). This instruction, considered in conjunction with the instruction on the burden of proof and the trial court’s determination that evidence of guilt was overwhelming, rendered an instruction on innocence not absolutely necessary. While our review of the record convinces us that the trial court was correct in its assessment that the evidence of guilt was overwhelming, we believe, however, that it is better practice for the instruction to be routinely given in every criminal case. “[Tjrial judges should not get caught up in sophisticated reasoning employed by other courts in order to determine when the failure to give a presumption of innocence instruction is violative of the Constitution. Give the instruction as you have always done.... ” Slaughter v. State, 630 P.2d 517, 520 (Wyo.1981).

The judgment is affirmed.

DUNN and MORGAN, JJ., concur. WOLLMAN, J., concurs specially. HENDERSON, J., dissents.

Indeed, in City of Sioux Fails v. Wolf, 79 S.D. 519, 114 N.W.2d 100 (1962), where the trial court refused a similar instruction under SDCL 23-44-5, the predecessor of SDCL 23A-22-3, we said,

Defendant contends that the instructions given the jury did not make clear that the presumption of innocence attends an accused throughout the progress of the trial. The jury was told that at the outset of the trial the defendant was presumed to be innocent and that he was not required to put in any evidence of his innocence. An examination of the record shows that the jury was also instructed on burden of proof and reasonable doubt. In view of the entire charge, it was not necessary that this instruction should have been given. Jurors competent to sit upon a trial would know that the presumption of innocence continued with defendant from the beginning to the end of the trial.

79 S.D. at 520, 114 N.W.2d at 101. (Emphasis supplied) In the case at bar, the record does not clearly show whether the jury was told at the outset about the presumption.