State v. No Heart

353 N.W.2d 43, 1984 S.D. LEXIS 348
CourtSouth Dakota Supreme Court
DecidedJuly 11, 1984
Docket14151, 14160
StatusPublished
Cited by46 cases

This text of 353 N.W.2d 43 (State v. No Heart) 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. No Heart, 353 N.W.2d 43, 1984 S.D. LEXIS 348 (S.D. 1984).

Opinions

MORGAN, Justice.

Stanley No Heart (No Heart) and Anna Williams (Williams) appeal their first-degree robbery convictions. The issues raised on their appeal are: (1) Whether the evidence seized- in the warrantless search of the motel room should be suppressed; (2) whether the trial court should have severed the trials of the two defendants; (3) whether simple assault or petty theft are [45]*45lesser included offenses of first-degree robbery; (4) whether admission of a police officer’s opinion on the cause of the victim’s injury was prejudicial error; and (5) whether a police officer’s testimony regarding statements by a witness are inadmissible as hearsay. The trial court ruled in the negative on all issues and we affirm.

On November 10, 1982, Williams and Rachel High Elk (High Elk) met James Voigt (Voigt), the victim, in a bar in Sioux Falls, South Dakota. They proceeded to High Elk’s apartment to have a party and while they were there No Heart joined the group. Voigt testified that in the course of the evening No Heart hit him on the side of the head, rendering him unconscious. When Voigt regained consciousness, he was face down on the floor with No Heart sitting on his back choking him. Voigt testified that while he was pinned on the floor he felt someone take his wallet from his hip pocket. No Heart finally released Voigt and told him to leave Williams, No Heart’s girl friend, alone. When Voigt asked No Heart to return his wallet, No Heart turned to Williams. Voigt who could not see Williams because No Heart blocked his view, testified that apparently Williams reached inside her blouse for something and gave it to No Heart. No Heart turned back to Voigt and handed him the wallet. Voigt left the apartment, discovered cash and credit cards were missing from his wallet and reported the loss to the police. Later that evening a search of the motel room in which No Heart, Williams and High Elk were staying produced one of Voigt’s credit cards. No Heart and Williams were charged with first-degree robbery and were convicted as charged by a jury.

The first issue No Heart raises in this appeal is whether the trial court should have suppressed evidence seized from the motel room because the search and seizure were illegal for lack of a search warrant. We affirm the trial court’s refusal.

The record shows that No Heart checked into room number 23, but occupied room number 22. The investigating officers were directed to room 23 when they arrived at the motel looking for No Heart. The manager, upon noticing a light in room 22 and knowing that the room was unassigned, asked the officers to investigate the room. No Heart argues that the manager had no right to consent to a warrantless search of room 22 and cites Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). The Stoner Court stated: “[T]here is nothing in the record to indicate that the police had any basis whatsoever to believe that the night clerk had been authorized by the petitioner to permit the police to search the petitioner’s room.” 376 U.S. at 489, 84 S.Ct. at 893, 11 L.Ed.2d at 860. This case is distinguishable from Stoner. In this case, the motel manager did not merely consent to a search of No Heart’s room as did the manager in Stoner. In the case before us, the police were not only authorized, they were requested to search a room that was supposed to be vacant but was apparently occupied. It was not discovered until later that, through a comedy of errors, the room had been appropriated and occupied by the defendants.

In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the United States Supreme Court adopted a two-prong test for justifying the invasion of constitutionally protected privacies. Justice Harlan delineated the test as follows in his concurring opinion: (1) whether the defendant had an actual (subjective) expectation of privacy; (2) society’s recognition of the defendant’s expectation and the reasonableness of that expectation. 389 U.S. at 360-62, 88 S.Ct. at 516-17, 19 L.Ed.2d at 587-88.

The trial court applied this test and concluded that No Heart had a subjective expectation of privacy. It went on to hold, however, that under the peculiar circumstances of this case society would not recognize No Heart’s expectation as reasonable because the motel manager had the right to authorize the police to check and enter the supposedly unoccupied room 22. The trial court further concluded that the rationale supporting the exclusionary [46]*46rule — deterrence of police misconduct— would not be advanced by suppression of the evidence challenged in this case. In our opinion, the trial court was correct in assuming that society would not recognize the defendant’s expectation of privacy under these unusual circumstances and the trial court was not in error in réfusing to suppress the evidence seized in the search.

The second issue is based on No Heart’s request at trial for a jury instruction that simple assault, SDCL 22-18-1(5), is a necessarily lesser included offense of first-degree robbery by force and Williams’ request for a jury instruction that second-degree petty theft, SDCL 22-30A-1 and -17, is a necessarily lesser included offense of robbery. The trial court denied both requests and both defendants raise this issue on appeal.

As was stated in State v. Kafka, 264 N.W.2d 702, 705 (S.D.1978) (Zastrow, J., concurring specially), “[tjhere are two tests for determining whether an offense is ‘necessarily included’ in a greater offense: (1) legal and (2) factual. Both tests must be satisfied before a ‘necessarily included offense’ instruction should be given.” (Emphasis added.)

The legal test has been variously described, but succinctly stated it requires: (1) the elements of the lesser offense must be fewer than the greater; (2) the penalty for the included offense must be lesser than the greater; and (3) the two offenses contain common elements so that the greater offense cannot be committed without also committing the lesser. Kafka, supra; State v. O’Connor, 86 S.D. 294, 194 N.W.2d 246 (1972).

Simple assault, as defined at SDCL 22-18-1(1) to (5), inclusive, requires as an element the attempt or causation of bodily injury, which is not a necessary element of first-degree robbery. This element of simple assault, in fact, the principal element thereof, is not a common element under the third phase of the legal test; therefore, simple assault is not a necessarily included offense of first-degree robbery. Because simple assault and first-degree robbery fail the legal test, we need not consider the factual test.

Williams asserts that the trial court erred in refusing to instruct the jury on second-degree petty theft, set out at SDCL 22-30A-1 and -17, as a necessarily included lesser offense under the first-degree robbery charge.

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Cite This Page — Counsel Stack

Bluebook (online)
353 N.W.2d 43, 1984 S.D. LEXIS 348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-no-heart-sd-1984.