State v. Holmes

464 N.W.2d 612, 1990 S.D. LEXIS 177, 1990 WL 211598

• Court: South Dakota Supreme Court
• Decided: December 19, 1990
• Docket: 16849
• Status: Published

Opinions

MILLER, Chief Justice.

A jury convicted Roger James Holmes (Holmes) on three separate criminal charges: driving while under the influence, possession of marijuana, and possession of a loaded firearm while intoxicated. We affirm.

DECISION

At trial, the presumption of innocence instruction was not given to the jury.¹ After the jury had returned its verdict, the trial judge realized this omission and noted that the presumption instruction had been “inadvertently omitted” from the instructions given to the jury. Although admitting the error, the trial judge concluded that it had no effect on the jury’s verdict. Similarly, on appeal, state argues that under SDCL 23A-44-14 (harmless error), and given the overwhelming evidence against Holmes, the jury’s verdict would have been no different had the proper instruction been given. The trial judge’s position is similar to this Court’s analysis in the recent case, State v. [Timothy J.] Holmes, 338 N.W.2d 104 (S.D.1983) {[Timothy J.] Holmes), where we held that SDCL 23A-22-3 articulated the presumption of innocence, but did not mandate that a presumption instruction be given in every case.

Since our issuance of the [Timothy J.] Holmes decision, the legislature enacted SDCL 23A-25-3.1, which states: “In each criminal case, the judge shall instruct the jury that the defendant is presumed innocent.” The language of SDCL 23A-25-3.1 is mandatory. See Matter of Groseth Intern., Inc., 442 N.W.2d 229 (S.D.1989). Thus, South Dakota law now mandates that the presumption instruction be given in all criminal cases.

However, failure to give the presumption instruction, albeit mandated, does not automatically result in an unfair trial. A finding of harmless error may still assuage the failure to give the presumption instruction. As the United States Supreme Court has stated and this Court has adopted:

[T]he failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution. Under Taylor [v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978) ], such a failure must be evaluated in light of the totality of the circumstances — including all of 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. 786, 789, 99 S.Ct. 2088, 2090, 60 L.Ed.2d 640, 643 (1979).

In the present case, the judge gave the jury numerous instructions, including the following:

An Indictment is the statutory method of accusing a defendant of a crime. It is not evidence and does not create any presumption or permit you to form any inference of guilt.

The burden of proof rests upon the State throughout the trial to prove every material element of the offense charged beyond a reasonable doubt. The burden of proof never shifts to the defendant. A preponderance of the evidence is insufficient. In case of a reasonable doubt as to whether the defendant’s guilt is shown by the evidence, he is entitled to be acquitted.

Despite the failure to instruct the jury on the presumption of innocence, the trial judge, after evaluating the situation in light of the totality of the circumstances, determined that the defendant received a constitutionally fair trial.² Our review of the record indicates that the trial judge did not err in concluding that Holmes received a constitutionally fair trial. We affirm.

WUEST and MORGAN, JJ., concur. HENDERSON and SABERS, JJ., dissent.

1 . S.D. Pattern Jury Instruction (Criminal) 1-4-1 reads:

It is a fundamental principle of our law that a defendant in a criminal case is presumed to be innocent. This presumption follows the defendant throughout the trial and must continue unless you are satisfied from all the evidence beyond a reasonable doubt that he is guilty.

2 . The trial judge stated:

[I’ve] concluded that the omission was not fatal and would not have affected the result had it [been] given. This was in part based on the fact that the presumption of innocence was discussed at length during the voir dire examination of the jurors as well as being clearly understood by the jurors during the trial.... There’s no doubt that I’ve erred in not giving the presumption of innocence instruction and could require the matter to be retried; however, I’m firmly convinced that the omission had no affect on the jury’s verdict and that the verdicts which they returned would be the same on retrial, and for the reasons indicated, I’m not going to require a retrial nor would I grant a motion for new trial and intend to proceed with the disposition of this case on the basis of the convictions reached....