State v. Wiegers

HENDERSON, Justice

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

I join this opinion in affirming the conviction on conspiracy to commit murder Count I.

I further specially join this opinion for remand of this case on conspiracy to commit murder Count II. My special concurrence on this conviction is simply this: It appears that defendant’s constitutional right to call witnesses on his own behalf and his constitutional right to confront witnesses against him have been violated; the State has a heavy burden, in my opinion, of overcoming a transgression of these constitutional rights; and finally, the trial court’s findings of fact and conclusions of law in this matter are subject to appellate scrutiny with the attendant scope of review that they are presumed to be correct but can be determined to be clearly erroneous. State v. Brim, 298 N.W.2d 73 (S.D.1980).

However, I dissent on the second-degree manslaughter conviction. Second-degree manslaughter is a reckless killing of another human being. SDCL 22-16-20. Reckless imports

a conscious and unjustifiable disregard of a substantial risk that the offender’s conduct may cause a certain result or may be of a certain nature. A person is reckless with respect to circumstances when he consciously and unjustifiably disregards a substantial risk that such circumstances may exist[.]

SDCL 22-1-2(1)(d). There was nothing reckless about this killing. It can hardly be termed reckless when several individuals plot to kill the victim over seven to eight months’ time; money and weapons are procured and exchanged; a plan is devised; three failed attempts are made and on the fourth and fatal attempt, the victim is shot in the head at a distance of six inches or less, he is stabbed eight times, and his body is dragged into the woods. The facts are an antithesis to second-degree manslaughter and it is oxymoronic that a jury found defendant guilty of both conspiracy to commit premeditated murder and second-degree manslaughter.

Under the plain error rule, SDCL 23A-44-15, I would reverse the conviction for second-degree manslaughter.*

*18The trial court can only instruct the jury on matters supported by the evidence. See State v. Fender, 358 N.W.2d 248 (S.D.1984); Miller v. State, 338 N.W.2d 673 (S.D.1983); State v. Chamley, 310 N.W.2d 153 (S.D.1981); State v. Oien, 302 N.W.2d 807 (S.D.1981); State v. Curtis, 298 N.W.2d 807 (S.D.1980); State v. Wilson, 297 N.W.2d 477 (S.D.1980); State v. Bean, 265 N.W.2d 886 (S.D.1978); and State v. Kafka, 264 N.W.2d 702 (S.D.1978). In first-degree murder trials, the trial court can instruct the jury on first- or second-degree manslaughter, only if the evidence presented could rationally have supported a conviction of the latter offenses. State v. Waff, 373 N.W.2d 18, 21 (S.D.1985). Here, construing the evidence most favorably for the defendant, it is impossible to conclude that the evidence presented could rationally support a second-degree manslaughter conviction. The defendant, as in Waff, was guilty of premeditated murder or he was guilty of nothing. Thus, the trial court erred in giving the second-degree manslaughter instructions.

The present case is dissimilar to State v. White Mountain, 332 N.W.2d 726 (S.D.1983), wherein *18this Court refused to apply the plain error rule where counsel had ample opportunity to object to the proffered instructions but failed to do so. Here, even though defendant invited the second-degree manslaughter instructions, the evidence weighs so heavily against the instruction that it was incumbent on the trial court not to give those instructions.