DUNN, Justice.
This is an appeal from a judgment of conviction for murder in the second degree pursuant to SDCL 22-16-7. We affirm.
On October 24, 1981, a passerby stopped to give assistance to a vehicle that appeared to be stalled alongside a country road. In the front seat was Theresa Iron Shell (decedent) and the decedent’s husband, Carl Iron Shell, Jr. (appellant). In the back seat of the ear was Nelson Iron Shell, an uncle and co-defendant at trial. The passerby, after determining that Theresa Iron Shell was dead, summoned authorities to the scene.
When the authorities arrived to investigate, they found appellant in a stupor. He was unable to talk comprehensibly, answer questions, or move without assistance. Appellant was later examined and was found to have a sore and scraped wrist, a red and swollen knuckle on his right hand and a puffed lip. It was also determined that blood stains found on appellant’s parka and blue jeans matched decedent’s blood type. The uncle was also found to be quite intoxicated, registering a .13 alcohol blood level.
An autopsy of decedent revealed that she had a .20 blood alcohol level. She had been struck between thirty-five to forty times. The blows were inflicted to the head, the abdomen, to her arms and legs and to her back. Medical testimony established the blows to decedent’s chest and abdomen, which fractured twelve of her twenty-four ribs, were the cause of death. It was estimated that she had been dead eight to ten hours prior to being discovered.
Both appellant and the uncle were charged with murder in the second degree. That charge was subsequently changed to murder in the first degree. The two were tried jointly and the jury found appellant guilty of second-degree murder pursuant to SDCL 22-16-7 and acquitted the uncle. Appellant now asks us to review his conviction.
Appellant first contends the trial court erred in denying his motion for separate trials. SDCL 23A-11-2
Appellant alleges prejudice because separate trials would allegedly result in the use of certain exculpatory statements made by the uncle which would be beneficial to appellant’s cause. The statements by the uncle included a denial of wrongdoing by either the uncle or appellant. Appellant also contends a separate trial would permit the introduction of evidence of prior abuse by the uncle of his spouse. As to the first item, the exculpatory statements denying involvement in the death were introduced at trial in the form of testimony by a police officer. Separate trials would provide nothing more in the way of exculpatory statements by the uncle than had already been introduced at trial. The uncle’s alleged abuse of his spouse could have been introduced at trial below. The opportunity to introduce this evidence at a separate trial does not deny the fact that the same opportunity was available here. Because we see no other particularized showing of prejudice in the present case, we are compelled to conclude that the trial court did not abuse its discretion and error was not committed when severance was not granted.
Appellant next contends the trial court erred in admitting certain medical records. These records were of documented instances of physical abuse occurring over a period of time. The records show the decedent identified appellant as the attacker in each of the incidents. At trial, appellant objected, alleging certain records were remote in time and that decedent was not reliable. Appellant asserts decedent’s tendency to drink and fight make it just as likely that injuries were inflicted by others, possibly even other relatives. The trial court concluded the records’ probative value outweighed the danger of unfair prejudice and admitted those portions of the records identifying appellant as the assailant. The trial court thereby admitted records which identified appellant as the perpetrator in beatings occurring in May, June and December of 1968, October of 1969, August and September of 1973, and in December of 1980.
Appellant’s objection to the medical records went to the relevancy of the evidence and to the remoteness of some of the records. As to the age of the documents, even if the old records were ruled inadmissible, the more recent evidence of abuse would still be admissible. Thus, the evidence is, at worst, cumulative and not prejudicial error. Turning to relevancy, we need look no further than our recent opinion in State v. Johnson, 316 N.W.2d 652, 654 (S.D.1982). There, we said:
Evidence of other offenses is relevant if it tends to make “the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” SDCL 19-12-1. Any fact that tends to connect an accused with the commission of a crime is relevant and has probative value. State v. O’Connor, 84 S.D. 415, 420, 172 N.W.2d 724, 727 (1969).
We find it difficult to conceive of a situation in which evidence of this nature would be more relevant than the case at hand. Here, two individuals were found with decedent. Medical testimony established blows to the abdomen and chest were the cause of death. Since neither party confessed, accused the other, or offered credible alternative theories as to the identity of the killer, the jury neéded any information available to ascertain the party responsible for the death. The pattern of physical abuse by appellant upon decedent was highly relevant in helping the jury identify the killer.
Assuming for the moment that the evidence was probative, we must determine if its probative value resulted in unfair prejudice. SDCL 19-12-2 and SDCL 19-12-3. We will not overrule such a ruling by the trial court unless there is a clear abuse of discretion. State v. Houghton, 272 N.W.2d 788 (S.D.1978). While there is no question that this evidence adversely affected appellant’s case, it is not, in our view, unfair prejudice. Wright & Graham, [375]*375m discussing Rule 403 (SDCL 19-12-3
Free access — add to your briefcase to read the full text and ask questions with AI
DUNN, Justice.
This is an appeal from a judgment of conviction for murder in the second degree pursuant to SDCL 22-16-7. We affirm.
On October 24, 1981, a passerby stopped to give assistance to a vehicle that appeared to be stalled alongside a country road. In the front seat was Theresa Iron Shell (decedent) and the decedent’s husband, Carl Iron Shell, Jr. (appellant). In the back seat of the ear was Nelson Iron Shell, an uncle and co-defendant at trial. The passerby, after determining that Theresa Iron Shell was dead, summoned authorities to the scene.
When the authorities arrived to investigate, they found appellant in a stupor. He was unable to talk comprehensibly, answer questions, or move without assistance. Appellant was later examined and was found to have a sore and scraped wrist, a red and swollen knuckle on his right hand and a puffed lip. It was also determined that blood stains found on appellant’s parka and blue jeans matched decedent’s blood type. The uncle was also found to be quite intoxicated, registering a .13 alcohol blood level.
An autopsy of decedent revealed that she had a .20 blood alcohol level. She had been struck between thirty-five to forty times. The blows were inflicted to the head, the abdomen, to her arms and legs and to her back. Medical testimony established the blows to decedent’s chest and abdomen, which fractured twelve of her twenty-four ribs, were the cause of death. It was estimated that she had been dead eight to ten hours prior to being discovered.
Both appellant and the uncle were charged with murder in the second degree. That charge was subsequently changed to murder in the first degree. The two were tried jointly and the jury found appellant guilty of second-degree murder pursuant to SDCL 22-16-7 and acquitted the uncle. Appellant now asks us to review his conviction.
Appellant first contends the trial court erred in denying his motion for separate trials. SDCL 23A-11-2
Appellant alleges prejudice because separate trials would allegedly result in the use of certain exculpatory statements made by the uncle which would be beneficial to appellant’s cause. The statements by the uncle included a denial of wrongdoing by either the uncle or appellant. Appellant also contends a separate trial would permit the introduction of evidence of prior abuse by the uncle of his spouse. As to the first item, the exculpatory statements denying involvement in the death were introduced at trial in the form of testimony by a police officer. Separate trials would provide nothing more in the way of exculpatory statements by the uncle than had already been introduced at trial. The uncle’s alleged abuse of his spouse could have been introduced at trial below. The opportunity to introduce this evidence at a separate trial does not deny the fact that the same opportunity was available here. Because we see no other particularized showing of prejudice in the present case, we are compelled to conclude that the trial court did not abuse its discretion and error was not committed when severance was not granted.
Appellant next contends the trial court erred in admitting certain medical records. These records were of documented instances of physical abuse occurring over a period of time. The records show the decedent identified appellant as the attacker in each of the incidents. At trial, appellant objected, alleging certain records were remote in time and that decedent was not reliable. Appellant asserts decedent’s tendency to drink and fight make it just as likely that injuries were inflicted by others, possibly even other relatives. The trial court concluded the records’ probative value outweighed the danger of unfair prejudice and admitted those portions of the records identifying appellant as the assailant. The trial court thereby admitted records which identified appellant as the perpetrator in beatings occurring in May, June and December of 1968, October of 1969, August and September of 1973, and in December of 1980.
Appellant’s objection to the medical records went to the relevancy of the evidence and to the remoteness of some of the records. As to the age of the documents, even if the old records were ruled inadmissible, the more recent evidence of abuse would still be admissible. Thus, the evidence is, at worst, cumulative and not prejudicial error. Turning to relevancy, we need look no further than our recent opinion in State v. Johnson, 316 N.W.2d 652, 654 (S.D.1982). There, we said:
Evidence of other offenses is relevant if it tends to make “the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” SDCL 19-12-1. Any fact that tends to connect an accused with the commission of a crime is relevant and has probative value. State v. O’Connor, 84 S.D. 415, 420, 172 N.W.2d 724, 727 (1969).
We find it difficult to conceive of a situation in which evidence of this nature would be more relevant than the case at hand. Here, two individuals were found with decedent. Medical testimony established blows to the abdomen and chest were the cause of death. Since neither party confessed, accused the other, or offered credible alternative theories as to the identity of the killer, the jury neéded any information available to ascertain the party responsible for the death. The pattern of physical abuse by appellant upon decedent was highly relevant in helping the jury identify the killer.
Assuming for the moment that the evidence was probative, we must determine if its probative value resulted in unfair prejudice. SDCL 19-12-2 and SDCL 19-12-3. We will not overrule such a ruling by the trial court unless there is a clear abuse of discretion. State v. Houghton, 272 N.W.2d 788 (S.D.1978). While there is no question that this evidence adversely affected appellant’s case, it is not, in our view, unfair prejudice. Wright & Graham, [375]*375m discussing Rule 403 (SDCL 19-12-3) state that “ ‘prejudice’ does not mean the damage to the opponent’s case that results from the legitimate probative force of the evidence; rather, it refers to the unfair advantage that results from the capacity of the evidence to persuade by illegitimate means.” 22 C. Wright & K. Graham, Federal Practice & Procedure § 5215 at pp. 274-75 (1978) (Fed.R.Evid. 403). The history of spouse abuse demonstrated in these medical records has an adverse effect on appellant’s case, but most evidence offered by the State would have this effect. The prior abuse is not some collateral matter admitted for the purpose of prejudice. Instead, it is directly related to a vital issue in the crime charged and we cannot find that the trial court abused its discretion in admitting this evidence. Appellant’s hearsay objection raised in his brief and at oral argument was not preserved for appeal since it was not specifically objected to at trial. State v. Helmer, 278 N.W.2d 808 (S.D.1979).
Appellant next contends the trial court erred in instructing on second-degree murder when the information and complaint were filed under SDCL 22-16-4, murder in the first degree. Appellant cites State v. Lohnes, 324 N.W.2d 409 (S.D.1982), for the proposition that the accused’s right to know the nature and cause of the accusation against him precludes the use of a jury instruction on second-degree murder when he was charged with first-degree murder.
After reviewing appellant’s argument, we must conclude it to be without merit. In Lohnes, supra, there was an objection to the jury instruction. Here, appellant failed to preserve the issue for appeal when he failed to object to the proposed instruction. State v. White Mountain, 332 N.W.2d 726 (S.D.1983); State v. Reiman, 284 N.W.2d 860 (S.D.1979).
After reviewing the record, we must also conclude that it was not plain error to instruct on second-degree murder in this case. Although appellant does not raise the plain error rule as a basis for appeal in his brief, we will examine whether it is applicable to this issue. We have said that the plain error rule, which has its basis in SDCL 23A-44-15, must be applied cautiously and only in exceptional circumstances. White Mountain, supra; State v. Brammer, 304 N.W.2d 111 (S.D.1981). Several factors distinguish this case from Lohnes. First, this case was tried before our decision in Lohnes was released. Counsel cannot be presumed to know the rulings of this court prior to their release. Second, while Lohnes took pains to note the offense of second-degree murder was “an offense that he [Lohnes] had never been charged with,” the same cannot be said in the case at hand. Here, appellant had originally been charged with second-degree murder. For appellant to assert he did not know the specific allegations against him in the second-degree murder charge is to ignore the facts at bar. Given these factors and the less than unanimous acceptance of the Lohnes holding by this court, we must conclude this is not one of the exceptional circumstances in which the plain error rule should be invoked.
Finally, appellant asserts he was denied effective assistance of counsel. Appellant points to a series of acts which he alleges support his contention. We have said in the past that post-conviction relief is the normal procedure by which this issue is raised. State v. Phipps, 318 N.W.2d 128 (S.D.1982); State v. McBride, 296 N.W.2d 551 (S.D.1980). We see no reason to vary from this position at this time. Thus, we decline to review appellant’s contention. Our ruling leaves open a post-conviction relief action to appellant should he decide to pursue it.
The judgment of conviction is affirmed.
FOSHEIM, C.J., and MORGAN, J., concur.
WOLLMAN and HENDERSON, JJ., dissent.
SDCL 23A-11-2 provides:
If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the prosecuting attorney to deliver to the court for inspection in camera any statements or confessions made by the defendants which the state intends to introduce in evidence at the trial.