State v. Shaw

705 N.W.2d 620 (2005)

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Nature of the Case

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Facts

D was employed as a cook at the Crazy Horse monument in South Dakota. The victim, J.W.H., was a minor at the time and was also employed at the monument. They were permitted to live on-site in trailer houses. J.W.H. lived in a trailer along with two roommates, Joseph White Hat (White Hat) and another minor, K.D. D had one roommate, Derek Pond (Pond). All the roommates either worked together or were acquainted with each other from their employment at the monument. J.W.H. was accused of taking food and borrowing compact discs without permission from his roommates. d also accused J.W.H. of stealing beer from his refrigerator. While there was a party J.W.H. and Pond were sitting in the cab of the pickup truck, D and White Hat approached. D and White Hat reached into the vehicle and jerked J.W.H. out. D accused J.W.H. of stealing beer from D's refrigerator and punched J.W.H. in the face. Not wanting to provoke a further confrontation, J.W.H. got up and returned to the cab of the truck. Eventually, J.W.H., d, White Hat, and K.D. jumped into the bed of the pickup, allowing R.N., J.W.H’s girlfriend, the passenger seat. The truck hit a bump in the road causing J.W.H. to lose his balance. White Hat and D then threw him from the back of the pickup where he landed hard on the ground and rolled into some water. J.W.H. stood up and angrily threw his soaking wet jacket into the back of the truck. White Hat and d then jumped from the bed of the pickup and began hitting J.W.H. J.W.H. testified at trial that d hit him first and then White Hat hit him, knocking him to the ground. After he was down, White Hat and D began repeatedly kicking J.W.H. J.W.H. curled up into a ball and put his hands over his face. Once the initial kicking attack stopped, J.W.H. moved his hands away from his face. One of the attackers then kicked him in the face and the kicking attack began anew. J.W.H. realized that a third person, K.D., had joined in the kicking during the second phase of the attack. J.W.H. testified he was unable to move and remained immobilized on the ground as the three attackers walked away. D and White Hat both grabbed him beneath his arms and drag him into the run-off rivulet. They dropped J.W.H. face-first into the water. One of the assailants then ground J.W.H.'s face into the bottom of the pool of water, allowed him to surface, and then pushed his face back under the water. They walked away and came back later and J.W.H. then testified he felt a 'sharp pain' on the side of his neck which felt like he had been stabbed with a needle-like object. The attackers then flopped J.W.H.'s head back into the water and walked away. J.W.H. then heard Shaw say 'well, he's way out here [and] no one is going to find him.' To which J.W.H. testified he heard White Hat reply 'he's dead, come on, [and] let's go.' J.W.H. testified he heard someone say 'check if he's dead.' J.W.H. played dead in order to avoid further injury. J.W.H. also testified he believed Pond had come back to check on him, picked up his head, and exclaimed 'Oh my God.' J.W.H.'s injuries included hypothermia, a probable concussion, a deep neck wound that exposed his pulsating carotid artery and several large veins, a laceration on the top of his head, as well as scattered cuts and abrasions on his body. The neck wound required suturing in layers, and the head laceration had to be stapled shut. D had J.W.H.'s blood on his pants and wet shoes. D and White Hat blamed each other for slashing J.W.H.'s throat. White Hat ultimately pleaded guilty to attempted first-degree murder. P charged D with attempted first-degree murder. At D's trial during cross-examination, D impeached J.W.H. with statements he made during a police interview ten days after the attack, in which he said that it was White Hat who had held his head under the water, and White Hat who had grabbed the back of his head and cut his throat. During his direct examination by P, J.W.H. testified that 'they' had held him under the water and that 'they' had grabbed him by the back of the head and cut his throat. J.W.H. also testified at trial that it was D who had made the comment to the effect that because of the remote location no one would ever find him. J.W.H. was again properly impeached at trial when he conceded that he had told police it was White Hat who had made the remark. D was found guilty of attempted first-degree murder and aggravated assault. D appealed.