Can fatal shooting constitute assisted suicide? The South Dakota Supreme Court affirms state's assisted suicide statute did not apply --'Not a straightforward murder case'

by Pat Murphy The Daily Record Newswire If you shoot a friend at his own request, is that murder or assisted suicide? That was the question recently addressed by the South Dakota Supreme Court in a case involving the death of Allen Kissner. On Nov. 24, 2008, a fisherman found Kissner's body at the Dakota Point Picnic Area near Rapid City. The 56-year-old was killed by a single gunshot wound to the head. Two days later, Kissner's friend, Robert Goulding, surrendered to police and was charged with first degree murder. But this was no straightforward murder case. Kissner wanted to die. He was a drug addict suffering from terminal pain and was afraid that he was headed back to prison. Having had enough of life, Kissner had recently tried to kill himself, but failed in the attempt. So he asked his friend to end his pain. Goulding and Kissner drove to the Dakota Point Picnic Area. Goulding put a gun in Kissner's ear and pulled the trigger. Kissner's bleak existence was over. But Goulding remained behind to face the wrath of the state. At trial, Goulding wanted to present a defense that the shooting constituted assisted suicide rather than murder. The trial judge foreclosed that avenue by refusing to allow the jury to consider the state's assisted suicide law and instructing jurors that "it is not suicide when another person actually performs the overt act resulting in the death of the decedent." So it came as no surprise when the jury found Goulding guilty of murder, sending him to prison for life. Last month, the South Dakota Supreme Court affirmed Goulding's conviction, concluding that the state's assisted suicide statute did not apply under these facts, troubling though they may be. Under South Dakota law, assisted suicide occurs when a person "intentionally in any manner advises, encourages, abets, or assists another person in taking or in attempting to take his or her own life." According to Goulding, the statute's assistance "in any manner" language is broad enough to include an aider's overt act that directly causes the death of the decedent. The state supreme court was unsympathetic to this construction of the law. "The phrase 'in any manner' modifies the phrase 'advises, encourages, abets, or assists another person in taking or in attempting to take his or her own life.' "Therefore, the statute only applies when any manner of assistance is provided to another person in the other person's taking or attempting to take 'his or her own life.'... "But in this case, Kissner, the 'other person,' did not take his own life. Kissner's life was taken by Goulding when Goulding shot Kissner. "Therefore, there was no suicide, and 'without a suicide there can be no assisting a suicide,'" the court said. (South Dakota v. Goulding) Published: Thu, Aug 4, 2011