STATE of South Dakota, Plaintiff and Appellee, v. William HART, Defendant and Appellant, 584 N.W.2d 863

MILLER, Chief Justice. [¶ 1.] William Hart appeals his conviction for second-degree murder. We affirm. FACTS [¶ 2.] On March 1, 1997, Craig Chips was found dead in an apartment in Rapid City, South Dakota, with a stab wound to his chest. An autopsy revealed that Chips died from that wound. Hart was later convicted of the second-degree murder of Chips. [¶ 3.] About six months earlier, Hart’s wife, Olivia, had a sexual relationship with Chips.

Hart, who was aware of this affair, became upset and angry. [¶ 4.] A couple of days before the murder, on February 27,1997, Olivia found Hart with another woman in a Rapid City motel. She became angry, struck him, and told him she wanted a divorce. She then apparently went to be with Chips. [¶ 5.] Two days later, Hart had a friend drive him to where Chips was staying. Hart had taken two knives along with him. Chips was inside the apartment apparently intoxicated and had been sleeping on a couch. Hart was asking him questions about Olivia and had at least one of the knives in his hands.

There was trial testimony that Hart then stabbed Chips, although Hart maintains that Chips “moved into” the knife as he got up from the couch. [¶ 6.] Hart returned to his friend’s vehicle and stated that he “did something stupid” and may have stabbed someone in the chest. There was also testimony that he later made statements that he “shanked” someone, and that he had told Olivia that he “took care of’ Chips and he “won’t be coming back, Baby.” [¶ 7.] Hart was charged with alternative counts of first-degree and second-degree murder.

A jury found him guilty of second-degree murder and he was given a sentence of life imprisonment without parole. Hart appeals, raising the following issues: 1.Whether the trial court’s jury instructions on second-degree murder were in error. 2. Whether the trial court erred in allowing certain photographs into evidence. 3. Whether the trial court erred in not allowing Hart to impeach the testimony of two of the State’s witnesses. 4. Whether the trial court improperly allowed testimony regarding Hart’s character. DECISION [¶ 8.] 1.

The trial court’s jury instructions on second-degree murder were not in error. [¶ 9.] Hart alleges the trial court erred in giving a jury instruction defining an element of second-degree murder.

He claims his proposed instruction, and not the one used by the trial court, accurately defines the term “depraved mind” under South Dakota law. [¶ 10.] SDCL 22-16-7 defines second-degree murder as: “Homicide is murder in the second degree when perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.” Over Hart’s objection, the trial court opted to use South Dakota Criminal Pattern Jury Im struction 3-24-13, to define the terms found in the second-degree murder statute.

The trial court instructed: The word “imminent” or any derivative thereof as used in these instructions means near at hand; mediate rather than immediate; close rather than touching; impending; on the point of happening; threatening; menacing; perilous. The phrase “dangerous to others” as used in these instructions means

an act which is inherently dangerous which puts the lives of others in jeopardy.

The phrase “evincing a depraved mind, regardless of human life” as used in these instructions means conduct demonstrating an indifference to the life of others, that is not only disregard for the safety of another but a lack of regard for the life of another. (Emphasis added.) Hart has only objected to the italicized portion pertaining to the definition of “depraved mind.” [¶ 11.] Hart had proposed his own definition of “evincing a depraved mind,” which read: “ ‘Evincing a depraved mind, regardless of human life,’ means conduct demonstrating an utterly corrupt, perverted, or immoral state of mind at the time of the offense.

A depraved mind is a state of mind containing the highest grade of malice.” Hart claims the trial court refusal of this definition was error. [¶ 12.] Hart first argues the definition used by the trial court was erroneous because it conflicts with South Dakota’s homicide statutory scheme. Specifically, he argues that the trial court’s definition is repugnant to the first-degree manslaughter statute found at SDCL 22-16-15(2). That statute provides: Homicide is manslaughter in the first degree when perpetrated:

(1) Without a design to effect death by a person while engaged in the commission of a misdemeanor involving moral turpitude;

(2) Without a design to effect death, and in a heat of passion, but in a cruel and unusual manner;

(3) Without a design to effect death, but by means of a dangerous weapon;

(4) Unnecessarily, either while resisting an attempt by the person killed to commit a crime or after such attempt shall have failed;

(5) Unnecessarily, either while resisting an attempt by a pregnant woman to either commit a crime or after such attempt shall have failed....

Hart focuses on subsection 2 and the phrase “cruel and unusual manner.” [¶ 13.] South Dakota Criminal Pattern Jury Instruction 3-24-27 defines “cruel and unusual manner” as follows: “In a cruel and unusual manner” means the killing was done with some excess of cruelty or refinement or unusual cruelty under the circumstances sufficiently marked to approach barbarity and to make it especially shocking, and the unusual character of the manner displayed in the killing must stand out as sufficiently unusual and unique or peculiar as to astonish and shock persons of normal sensibilities. [¶ 14.] Hart contends that the

definitions for “evincing a depraved mind” and “in a cruel and unusual manner” are inconsistent. He maintains that, under the definition used by the trial court for “evincing a depraved mind,” it appears second-degree murder is a less egregious or less culpable crime than first-degree manslaughter. He argues that a killing “demonstrating an indifference to life” is simply not as bad as a killing done in a manner that is “especially shocking” or “ap-proaeh[ing] barbarity.” Hart cites to State v.

Primeaux, 328 N.W.2d 256, 258 (S.D.1982), wherein we held that “[t]he crucial distinction between second-degree murder and manslaughter in the first degree is that the former requires a ‘depraved mind’ as an element of the crime, while the latter does not.” He argues that, since the phrase “depraved mind” is the crucial distinction, it should be defined in a way that “sounds worse” than “in a cruel and unusual manner.” [¶ 15.] We find no merit in Hart’s argument.

It is true that “evincing a depraved mind” is the critical distinction between second-degree murder and first-degree manslaughter; however, Hart’s argument only focuses on one phrase in one subsection of the first-degree manslaughter statute.

Subsection 2, that Hart emphasizes, would pertain to a situation where an individual would not be guilty of murder, even though the killing was done in a “barbaric” manner, because that person was acting in the “heat of passion.” “Heat of passion” is defined as an “intent ‘formed suddenly, under the influence of some violent emotion, which for the instant overwhelmed the reason of the slayer.’ ” Graham v. State, 346 N.W.2d 433, 434 (S.D.1984) (citing State v.

Edmunds, 20 S.D. 135, 140, 104 N.W. 1115, 1116 (1905)); see also South Dakota Criminal Pattern Jury Instruction 3-24-26 defining the phrase as: “ ‘Heat of passion’ is such mental disturbance or condition as would so overcome and dominate or suspend the exercise of the judgment of [a person] as to render [that person’s] mind for the time being deaf to the voice of reason, make [him or her] incapable of forming and executing the distinct intent to take human life, and to cause [him or her], uncontrollably, to act from impending force of the disturbing cause rather than from, any real wickedness of heart or cruelty or recklessness of disposition.” (Emphasis added.) [¶ 16.] Therefore, while at first blush it may sound worse to kill someone in a “barbaric manner,” the distinction is that for first-degree manslaughter, the killing must be “in the heat of passion,” and the perpetrator must be unable to control his or her actions.

The heat of passion acts as a mitigating factor, rather than an excuse, for the homicide. It is apparent that, when looking at the second-degree murder and first-degree manslaughter statutes as a whole, the definition employed by the trial court is not inconsistent with our homicide statutory scheme.

If a person is able to act with “a lack of regard for the life of another,” then that person can be convicted of second-degree murder. [¶ 17.] Hart’s second argument focuses on the fact that the term “depravity of mind” is an aggravating circumstance listed in SDCL 28A-27A-1 which can lead to the imposition of the death penalty in a first-degree murder case. That term has been defined differently in that context. In State v.

Rhines, 1996 SD 55, ¶ 148, 548 N.W.2d 415, 449, we held that the trial court’s definition of “depravity of mind” as an aggravating circumstance to justify imposition of the death penalty was unconstitutional as violative of the South Dakota Constitution and the Eighth and Fourteenth Amendments to the United States Constitution. In Rhines, we noted: “A State’s

definitions of its aggravating-circumstances — those circumstances that make a criminal defendant ‘eligible’ for the death penalty — therefore play a significant role in channeling the sentencer’s discretion.” Lewis v. Jeffers, 497 U.S. 764, 774, 110 S.Ct. 3092, 3099, 111 L.Ed.2d 606, 619 (1990). To satisfy constitutional mandates, an aggravating circumstance must meet two basic requirements. First, it “must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant v.

Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235, 249-50 (1983). Second, “the aggravating circumstance may not be unconstitutionally vague.” Tuilaepa v. California, 512 U.S. 967, 972, 114 S.Ct. 2630, 2635, 129 L.Ed.2d 750, 759 (1994). A challenged provision is imper-missibly vague when it fails to adequately inform juries what they must find to impose the death penalty and as a result leaves them and appellate courts with open-ended discretion. Maynard v.

Cartwright, 486 U.S. 356, 361-62, 108 S.Ct. 1853, 1858, 100 L.Ed.2d 372, 380 (1988). 1996 SD 55, ¶ 139, 548 N.W.2d at 447. [¶ 18.] In Primeaux, we held that SDCL 22-16-7, our second-degree murder statute, was not unconstitutionally vague. 328 N.W.2d at 258. There, we looked to see if the statute “give[s] a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.” Id. We held that it did, and also focused on the trial court’s definition of “depraved mind,” which was almost identical to the one employed in the present case. Id.

On the other hand, an aggravating circumstance in death penalty cases must meet a stricter constitutional test as outlined above. We agree with the State’s assertion that Hart’s argument is like “comparing apples and oranges.” Hart has presented no real authority why the two

definitions cannot be different, and we never gave any indication in Rhines that the definition we approved in Primeaux was no longer appropriate. [¶ 19.] 2. The trial court did not err in allowing certain photographs into evidence. [¶ 20.] At trial, the State submitted sixteen photographs to the court which it wanted admitted as evidence. Hart objected to six of them and the court ultimately allowed five of those six into evidence. Hart now claims on appeal that admission of four of those photographs was error.

We do not agree. [¶ 21.] Our standard of review for this issue is whether the trial court abused its discretion. State v. Knecht, 1997 SD 53, ¶ 7, 563 N.W.2d 413, 417. Photographs are admissible “(1) when they portray anything that a witness may describe, and (2) when they assist in a verbal description of objects or conditions and are relevant to some material issue.” State v. Muetze, 368 N.W.2d 575, 586 (S.D.1985) (citation omitted) (emphasis in original). [¶ 22.] The trial court examined all of the photographs and made specific findings as to each.

Photograph # 8 depicts Chips’ body at the crime scene, and the court ruled it was relevant to aid the witnesses in testifying as to the condition of how the body was found at the crime scene. Photograph # 13 is an autopsy photo of Chips and was admitted as relevant in depicting Chips’ body at the time Dr. Habbe performed the autopsy. Photograph # 14 depicts Chips facedown on an autopsy table, and was admitted to aid Dr. Habbe in his testimony. Finally, photograph # 16 is a picture of Chips’ heart removed from his body, and was admitted to assist Dr.

Habbe in his testimony as to the nature and location of the wound. [¶ 23.] We cannot say the trial court abused its discretion. Photographs can be admitted even if “somewhat gruesome, cumulative, or capable of arousing passion or prejudice in the jury.” State v. Simons, 313 N.W.2d 465, 469 (S.D.1981) (collecting cases). The photographs were properly admitted to help aid witnesses in their testimony and were relevant. [¶24.] 3.

The trial court did not err in not allowing Hart to impeach the testimony of two of the State’s witnesses. [¶ 25.] Hart also argues that the trial court erred in not allowing him to impeach two of the State’s witnesses. Specifically, he claims that these two witnesses were allowed to testify as to Chips’ character when drunk, and he wanted to “impeach” them by putting into evidence files involving criminal charges against Chips when he had been drunk in the past. We must look to see if the trial court abused its discretion in not allowing Hart to present this evidence. See State v.

Latham, 519 N.W.2d 68, 71 (S.D.1994). [¶ 26.] Hart argues that, since the State “opened the door” and let in evidence of Chips’ character when drunk, he should be allowed to impeach the State’s witnesses with instances of specific conduct. Hart relies on SDCL 19-14-8 which provides: “The credibility of a witness may be attacked by any party, including the party calling him.” Hart further relies on State v. Byrum, 399 N.W.2d 334 (S.D.1987), as a case where instances of specific conduct were allowed to impeach a defendant under SDCL 19-14-8.

We held in Byrum, however, that instances of specific conduct cannot normally be proved by extrinsic evidence. 399 N.W.2d at 337. In Byrum the specific conduct was allowed into evidence as impeachment by contradiction, because a defendant had stated that he would never perform a specific act, which it was shown by the evidence that he had. Id. at 337-38. [¶ 27.] This is not a case involving-impeachment by contradiction. The specific instances of conduct did not involve the witnesses who testified, but were about Chips.

This was an attempt by Hart to elicit improper character testimony concerning the victim in this case. An accused may offer a pertinent trait of character of a victim under SDCL 19-12-4(2), and this is generally done through testimony about the victim’s reputation. Latham, 519 N.W.2d at 71. Hart was allowed to call a witness to testify that Chips had a reputation for violence when drunk. We find no abuse of discretion. [¶ 28.] Affirmed. [¶ 29.] AMUNDSON, KONENKAMP, and GILBERTSON, JJ., concur. [¶ 30.] SABERS, J., dissents. . Hart claims he took the knives for protection based on his knowledge of Chips. .

To "shank” moans "to cut (a person) deeply with a knife." Webster's Third New International Dictionary 2087 (1976). . In Rhines, the trial cottrt defined "depravity of mind” as: "Depravity of mind is a reflection of an utterly corrupt, perverted, or immoral state of mind at the time of the murder. In determining whether the offense of First Degree Murder in this case involved depravity of mind on the part of the Defendant, you may consider the age and physical characteristics of the victim and you may consider the actions of the defendant pri- or to, during and after the commission of the murder.

In order to find that the offense of First Degree Murder involved depravity of mind, you must find that the Defendant, as a result of utter corruption, perversion, or immorality, committed torture upon the living victim; or subjected the body of the deceased victim to mutilation or serious disfigurement; or relished the murder; or inflicted gratuitous violence upon the victim; or the senselessness of the crime; or the helplessness of the victim.

If acts occurring after the death of the victim are relied upon by the state to show depravity of mind of the Defendant, such acts must be shown to have occurred so close to the time of the victim's death, and must have been of such a nature, that the inference can be drawn beyond a reasonable doubt that the depraved state of mind of the murderer existed at the time the fatal blows were inflicted upon the victim." 1996 SD 55, ¶ 141, 548 N.W.2d at 447-48 (emphasis in original).

Rhines had only objected to the italicized portion of the instruction, and it is from the non-italicized portion that Hart derived his proposed instruction for "depraved mind” in the present case. . We also must note that the definition for "depraved mind” which the trial court used in this case is similar to that used in other states. See, e.g., Marasa v. State, 394 So.2d 544, 545 (Fla.

Dist.Ct.App.) rev. denied, 402 So.2d 613 (Fla. 1981); see also Black’s Law Dictionary 440 (6thEd. 1990) (defining "depraved mind” and noting that "[a]s required for conviction of second-degree murder, is one which is indifferent to the life of others."). . One file contained an allegation that Chips, while drunk, assaulted a girl friend. The other file contained an allegation that Chips had broken windows on a house and car when drunk. .

This is not a case that falls under SDCL 19-12-7, which allows specific instances of conduct to be admitted when a character trait of a person is an essential element of a “charge, claim, or de,fense[.]” Hart even concedes that the evidence was to be used for impeachment, and not for self-defense. . We also do not address Hart's final argument, that the trial court allowed improper character testimony concerning him or Chips. Wc find some of his arguments lacking in merit, and the rest of the testimony falls under the doctrine of invited error. See State v.

Buller, 484 N.W.2d 883, 888 (S.D.1992) (holding that " '[A] party to a criminal proceeding will not be permitted to allege an error in proceedings in the trial court in which he himself acquiesced, or which was invited or induced by him.' ” (citations omitted)). Despite the dissent's assertion, we are in no way overruling our decision in Black v. Class, 1997 SD 22, 560 N.W.2d 544.

Black is easily distinguishable because in that case "Black had not presented any evidence nor had his defense counsel made an opening statement" that "invited” the state to present character evidence of the victim. 1997 SD 22, ¶20, 560 N.W.2d at 549 (emphasis added). Also, any assertion that Black is overruled because Hart was not allowed to use Chips' criminal record to impeach witnesses on cross-examination is without merit, because nowhere at trial nor on appeal does Hart argue that he merely wished to "inquire” into specific instances of conduct as permitted by SDCL 19 — 12— 6.