State v. Walton

SABERS, Justice

(concurring in part, concurring in result in part and dissenting in part).

[¶49.] I concur on Issues 4 and 5 and concur in result on Issues 1 and 3.

[¶ 50.] However, I dissent on Issue 2 because the trial court improperly allowed the State to introduce evidence that Walton carried a knife on occasions prior to the night of the altercation with Lehmkuhl. This error prejudiced Walton and denied him a fair trial. Therefore, we should reverse and remand for a new trial.

[¶ 51.] The majority opinion claims that this evidence was not used as prior acts evidence under SDCL 19-12-5. Rather, it claims that the evidence was “intricately related to the charged crime.” It claims that testimony that Walton carried a knife on two occasions, several months before the night in question, was necessary to prove an element of the charged crimes. I disagree because it was unnecessary and used prejudicially.

[¶ 52.] It should be emphasized that the two witnesses who testified about Walton carrying a knife on prior occasions did not testify that they saw Walton carrying a knife on the day of the altercation and were not present at the scene of the altercation. Further, the State presented testimony at trial of eyewitnesses who were present at the scene and saw Walton with the knife. Emmanuel Geliga testified that he saw Walton with the knife in his hand and that he saw the knife covered with blood. He made a drawing of the knife for law enforcement, which was admitted into evidence at trial by the State. Justin Wood also testified that he saw Walton with a knife. In addition, Walton’s defense counsel conceded in opening argument that Walton had a knife and stabbed Lehmkuhl. Walton also testified that he stabbed Lehmkuhl, but claimed he acted in self-defense.

[¶ 53.] The testimony that Walton carried a knife on prior occasions did not prove that he had a knife on the night in question. Even if it did, it was totally unnecessary because the State had testimony from eyewitnesses who actually saw the knife on the night in question. Therefore, even if I were to accept, the majority opinion’s claim that this was not prior acts evidence, the evidence should have been excluded under SDCL 19-12-3 because its probative value was “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” (Emphasis added).

[¶ 54.] The only reason the State introduced testimony that Walton carried a knife on prior occasions was to prove his bad character. And that is exactly how they used it. In closing arguments, the State stated:

*535Ben Walton took this [knife] with him that night, as you heard he’s done on many prior occasions even prior to that night. Unfortunately, for everyone, and something the State doesn’t condone, and I want you to understand that.... But what do we know about the Defendant? Think back for a minute. We know that you saw two young women take the stand and say he had a habit of carrying that knife. He did on many occasions.... Now, you heard Jacey Barnes say he kept it, carried it on a sheath all the time on his ankle.... He had a habit of carrying this [knife]. The young ladies that knew him said he had a habit of carrying this [knife] especially after ... he came back from California.

The testimony was used to show that Walton was a bad person who carried a knife and therefore, he must have intended to kill Lehmkuhl. SDCL 19-12-5 is intended to prevent such use of prior acts.

[¶ 55.] The majority author was more convincing in State v. Moeller, 1996 SD 60, ¶ 12, 548 N.W.2d 465, 471, where he wrote: “Generally, evidence of crimes or acts other than the ones with which the defendant is charged are inadmissible, unless certain exceptions apply.” Contrary to the position taken by the majority in this case and in State v. Wright, 1999 SD 50, ¶ 13, 593 N.W.2d 792, 797, I maintain that SDCL 19-12-5 remains a rule of general inadmissibility and we must be “ever vigilant” that the exception does not swallow the rule. State v. Steele, 510 N.W.2d 661, 667 (S.D.1994) (citing State v. Chapin, 460 N.W.2d 420, 421 (S.D.1990) (citations omitted)). See also State v. Ondricek, 535 N.W.2d 872, 878 (S.D.1995) (Sabers, J., dissenting); State v. Christopherson, 482 N.W.2d 298, 305 (S.D.1992) (Sabers, J., dissenting); Matter of R.S.S., 474 N.W.2d 743, 748 (S.D.1991). Based on this court’s recent opinions, culminating in Wright, it appears that it is now open season on defendants through prior acts evidence.

[¶ 56.] The testimony that Walton carried a knife on prior occasions was inadmissible character evidence which the trial court should have excluded. Walton was prejudiced by the admission of the evidence because it painted him as a bad person always carrying a knife looking for a fight. This characterization, created by the State through the use of the prior act evidence, was unfairly prejudicial to his claim of self-defense. As a result, he was denied a fair trial. Therefore, we should reverse and remand for a new trial.