State v. Jemison

1999 SD 29, 590 N.W.2d 897, 1999 S.D. LEXIS 36

• Court: South Dakota Supreme Court
• Decided: March 10, 1999
• Docket: None
• Status: Published

Opinions

GILBERTSON, Justice.

FACTS AND PROCEDURE

[¶ 1.] A complaint was filed against Eugene Jemison (Jemison) on November 13, 1997, charging him with one count of burglary in the fourth degree and one count of false impersonation. Jemison was indicted on these charges by a Minnehaha County Grand Jury on November 26, 1997. He was arraigned on December 4, 1997, at which time he entered pleas of not guilty to both charges. A jury trial was held on March 10, 1997. The jury returned guilty verdicts on both counts. Jemison was sentenced to two years on the fourth degree burglary charge and one year with three months suspended on the false impersonation charge. We reverse and remand for a new trial.

[¶ 2.] Jemison raises several issues on appeal one of which is dispositive:

Whether the trial court erred in failing to present to the jury all jury instructions at the close of the evidence.

ANALYSIS AND DECISION

We review a trial court’s refusal of a proposed instruction for abuse of discretion. State v. Black, 494 N.W.2d 377, 381 (S.D.1993). “The trial court has broad discretion in instructing the jury.” State v. Rhines, 1996 SD 55, ¶ 111, 548 N.W.2d 415, 443. Jury instructions are sufficient when, considered as a whole, they correctly state the applicable law and inform the jury. State v. Fast Horse, 490 N.W.2d 496, 499 (S.D.1992) (citing State v. Grey Old, 295 N.W.2d 748, 751 (S.D.1980)). It is not error for the trial court to refuse a requested instruction which amplifies the principle embodied in a given instruction. State v. Johnston, 478 N.W.2d 281, 283 (S.D.1991); State v. Gillespie, 445 N.W.2d 661, 664 (S.D.1989); State v. Weisenstein, 367 N.W.2d 201, 206 (S.D.1985).

State v. Eagle Star, 1996 SD 143, ¶ 13, 558 N.W.2d 70, 73.

[¶ 3.] In this case the trial court read the substantive jury instructions to the jury at the beginning of the trial, prior to any evidence being submitted. The trial court also gave a copy of the preliminary instructions to the jury. These preliminary instructions included instruction on the charges, the presumption of innocence, the state’s burden of proving guilt, guilt beyond reasonable doubt, what constitutes direct and circumstantial evidence among other instructions.¹ The trial court did not re-read the preliminary instructions at the close of evidence. Instead, the Judge told the jury, “[tjhis is the place that I would re-read the preliminary instructions, but to save time just consider that I have read them here and refer to them when you get into the jury room.”² The Final Instructions did not include any instruction on the presumption of innocence or the state’s burden of proving guilt beyond reasonable doubt. Defense counsel objected to the presentation of such instructions at the beginning of the ease if they were not going to be re-read at the close of evidence.³ Counsel also renewed this objection at the close of evidence.

[¶ 4.] We recently addressed this issue in State v. Nelson, 1998 SD 124, 587 N.W.2d 439. As this issue is controlled by Nelson we reverse and remand for a new trial.

[¶ 5.] MILLER, Chief Justice, and SABERS and KONENKAMP, Justices, concur. [¶ 6.] AMUNDSON, Justice, dissents.

1 . The preliminary instructions included the following: 1) Introduction; 2) Function of the Judge; 3) Function of the July; 4) Sidebars and Recesses; 5) Charging Document; "On or About”; 6) The Charges; 7) Penalties; How to Consider the Case; 8) Presumption of Innocence; Burden on State; 9) Proof of Guilt Beyond Reasonable Doubt; 10) What is Evidence; 11) What is Not Evidence; 12) Receipt of Evidence for Limited Purpose; 13) Direct and Circumstantial Evidence; 14) Believability of Witnesses; 15) Prior Inconsistent Statement; 16) Expert Witness; 17) Note Taking; 18) Conduct Outside the Court Room; 19) Trial Publicity; 20) Sequestration of Witnesses; 21) Order of Trial; Attorneys’ Statements Not Evidence.

2 . The final instructions only included: 22) Introduction; 23) The Charges; 24) How to Consider Two or More Charges; 25) What the State Must Prove in Count One; 26) What the State Must Prove in Count Two; 28) Definition of Entry; 29) Definition of Law Enforcement Officer; 30) Definition of Intent and Intentionally; 31) Definition of Theft; 32) Failure of Defendant to Testify; 33) Organization and Duties of Jury; 34) Communication; 35) Use Verdict Form. We note that there was no instruction 27.

3 .Defense Counsel: Your Honor, I have a few concerns. It's not so much the instructions but when they are given. In reviewing the code, I believe an instruction of a substantive nature is appropriate to bring such instructions at the close of all evidence being submitted as opposed to in the beginning. I’m concerned about this not being read at the end of the case.

The Court: I give them instructions saying this is the spot I would reread them but I’m not going to reread them.

Defense Counsel: I’ll make an objection for the record on that.