*1 Rose, Schwartzmiller, State v. In authority, defendant. State v. we stated: Idaho 685 P.2d as it inapposite is obiter dicta and to this While the evidence of other crimes was (b) and therein is too undoubtedly prejudicial appellant, requisite holding. extreme. It is not to this operative words of Further, I have dissented in some South “substantially outweighed” and “unfair.” authority Dakota cases cited as do not and The trial court was careful to insure that retroactively myself desire to marry the other crimes was evidence substan- holdings. their liberal “bad acts” tial and in fixed time with reasonable Court, believe, I judicially erroneous in certainty appellant oppor- to allow a fair some of its “bad acts” decisions. this tunity to refute. firmly I am convinced trial The record shows that court did not abuse its discretion admit- complied requirements. with these The tri- ting evidence other sexual be- contact al ascertained that the time of the tween the defendant in and the victim Michigan “bad acts” was well established Michigan. my opinion, evidence nearly and continuous before within pattern of establishing (a) regu- conduct months after the time lived defendant with frequent sleeping arrangement lar and daughter in Mitchell. The court re- perpetrated by resultant sexual contact portions pretrial fused to allow state- the defendant demonstrates a common ment where defendant he admitted had tak- intent, scheme, objective by the defend- pictures daughter pic- en nude since the sexually daughter. ant contact his ture-taking incidents in no resulted touch- These acts” “bad were not remote time. ing, element for conviction un- Roden, cited in majority opinion, child, sexual der contact with a minor controlling recent and authority portions SDCL 22-22-7. Those ruling Court to the trial on court’s Michigan evidence that the court did allow admission of this evidence. There was no evidence, were, opinion evidentiary of discretion in abuse deci- court, established and convincing “clear thus, sion; join majority opinion. evidence.” trial court also jury purposes instructed the on limited such evidence could be con- presume jury
sidered. We fol- instruction. limiting
lowed
Reddington, Wesley
Thus, COCHRUN, Applicant we find the trial court did not Appellant, admitting abuse its discretion in the other acts” “bad evidence. judgment of conviction is affirmed. SOLEM, Warden, Herman Penitentiary, Dakota State MORGAN, SABERS, JJ., FOSHEIM and Respondent Appellee. No. 15219. HENDERSON, J., concurs result. Supreme Court of South Dakota. GILBERTSON, Judge, Circuit Sept. Considered Briefs WUEST, C.J., disqualified. Decided Dec. (concurring in re- sult). agree entirety with the reference, I would strike the
hashish, (Count II). a controlled substance given Cochrun was penitentiary sentences eighteen months on eight Count I and years Cochrun, II. Count affirmed this con- Only viction. II Count to relevant appeal. May
On petition Cochrun filed post-conviction for relief under SDCL ch. 23A-34, repealed. which has since been post-conviction trial court held that Count II fairly public described a plain it was not error for the trial it, court to fail to dismiss and that Co- chran’s trial counsel was not ineffective for failing challenge validity Count II. Cochran’s appeal decision summarily April 15, court was affirmed on July Cochrun filed an amend- application ed corpus. for writ of habeas application granted. That was originally promptly State filed motion writ, quash contending the issues corpus proceeding raised the habeas had (1) previously finally been either post-conviction decided in the action and thereby by (2) judicata; barred barred SDCL 21-27-16.1.1 Gen., Pierre, Mayer, Atty. Robert Asst. respondent appellee; Mark V. Following a hearing, Pierre, Atty. Gen., Meierhenry, on brief. granted quash motion to writ. appeal This is from that order.2 Miller, Clinic, Cummings Legal
Steve P.C., Falls, applicant appel- Sioux concedes that some of the Cochrun lant. litigated now raised hearing, post-conviction but contends the
FOSHEIM, Justice. trial court never addressed these claims: appeal denying is from an order 1. There was a material and fatal vari- appellant Wesley (Cochrun) Cochrun habe- proof ance and the alle- between relief. affirm. gations in the information. May, 1981, Cochrun was convicted in 2. Petitioner was of an of- convicted marijuana charged distribution 2.94 ounces of fense different than the one (Count I) and distribution of .18 ounces of in the information. conviction, sentence, provides: may
1. SDCL 21-27-16.1 relief from his application, subsequent be the basis for petition- All for relief available to a unless the finds relief as- chapter under this shall be his original, serted supplemental applica- which for reasonable cause were omit- or amended raised, Any ground finally adjudi- tion. ted or raised in the knowingly understandingly application. cated or proceedings resulting waived in the in his appeal on this is different Cochrun's counsel any pro- conviction or sentence or in ceeding other than that applicant below. has taken secure subject juris- 3. The court lacked matter there the trial court and this court in appeal. diction. February, when this offense was A chapter broadened habeas
committed, marijuana was defined under
repealed
replaced
statu-
34-20B-l(10)
as follows:
tory remedy. See SDCL ch. 21-27. The
plant
parts
any
genus
[A]ll
doctrine applies to habeas cor-
*3
not;
cannabis,
growing or
whether
the
proceedings.
pus
Scott, 1
Ex Parte
Dak.
thereof;
resin extracted
seeds
the
from 135,
46
512
N.W.
In Ex Parte
any part
plant;
every
of such
com- Watt,
119,
73
44
S.D.
N.W.2d
125
“
manufacture,
derivative,
salt,
pound,
concept:
we reaffirmed
‘If
a
mixture,
preparation
plant,
of such
or
adjudication upon
final
habeas
resin;
shall
seeds or
but
not include fiber
[application] not
judica-
is
to be deemed res
produced from the mature stalks of such
ta,
consequences
the
will be lamentable.
plant,
or cake made
the
or oil
from
seeds
engine
This favored
will
writ
become an
of
”
plant.
of such
oppression,
of
liberty.’
instead
writ of
[a]
(1979 Revision).
(quoting
People,
63,
also
v.
See
SDCL
Mercein
25 Wend.
(N.Y.1840)).
At the
of this
hashish
time
35 Am.Dec.
662
statute,
defined
but was listed as a
not
is
It
settled law in South Dakota that a
I controlled substance.
Schedule
SDCL
judgment subject to res
“consti
penalty
34-20B-14.
maximum
against
prosecu
absolute bar
the
tute[s]
years’ imprison-
ten
hashish violation was
tion,
only
every
not
claim or demand
22-6-1(5).
ment.
22-42-2 and SDCL
SDCL
in controversy,
therein
all
but also
oth
Mathison,
expert,
The State’s chemical
tes-
might
admissible matters
that
have
at
the
tified
both
criminal trial
at the
been
or
such
offered
defeat
corpus proceeding.
the
habeas
At
criminal
Walker,
claims
demands.” Schell v.
trial, he
that hashish is the
testified
sub-
(S.D.1981) (emphasis
resulting
an attempt
stance
from
to concen-
added) (citing
Enterprises,
Golden v. Oahe
marijuana plant
trate the
found in the
resin
Inc.,
(1976);
90 S.D.
potent marijuana. remains Once habeas affirmed. concentrated, however, it becomes hashish. found that C.J., WUEST, SABERS, J., inadequate question of definition of hash- by appellant post-con- HENDERSON, JJ., ish was MORGAN and con- proceedings. It viction was considered cur in (concurring destroy cannot this state law. We should
part, dissenting part). Legislature unmake which the course, barring, made an unconstitution- here concern We ourselves with state County State, al act. Tripp v. statute, 21-27-16.1, and ap- how it (S.D.1978). plies. your portion I direct attention to the last “[Ujnless
thereof: court finds CONCEPT FOUR for relief asserted which reasonable Therefore, although agree with the ma- cause were omitted or jority on the merits of this I cannot in the (obiter language dicta) accede to the con- Now, that is the state law. paragraph tained of this must abide it. light express statute which con- simple tains a declaration of in-
CONCEPT ONE tent, litany judicata of res and collat- (in If the for relief are identical estoppel eral cases found in said paragraph any given case) case or to those in inapposite. Those civil cases are re- action, the doctrine of pugnant to the statute which is the cor- judicata applies. nerstone/corpus very issue before expressed
us. As Nagel, (S.D.1979): CONCEPT TWO Look to “the language of the act in connection with its Obviously, if the for relief are purpose design.” manifest And— dissimilar, the doctrine of res does majority opinion this—the fails to do. To apply. contrary, it eradicates intent. therefore, Respectfully, do I dissent to the CONCEPT THREE latter substantive deem phrase Review this statute totally unnecessary to this Court’s decision. (which above). I have set forth If the circuit court finds relief
“reasonable cause” because of omission hereby authorized to state that am Jus- previous application having in a joins tice MORGAN in this concurrence in raised,” “inadequately exception there is an finality adjudication, namely, of the first “supplemental
Hence, if the circuit court makes such a
finding showing, upon based a meritorious judicata argument Dakota simply
and SDCL 21-27-16.1 cannot coex- Court, Supreme
ist. Our