State v. Breed

3H Dakota, Plaintiff STATE South Appellee, BREED,

Bennie Defendant Appellant. 15198, 15199.

Nos.

Supreme South Court of Dakota. Oct.

Considered on Briefs 1986.

Decided Jan. Deputy Atty. E. Chief Gormley,

Grant Gen., Vlasman, Legal Intern, Barry Mark Gen., brief, Pierre, Meierhenry, Atty. V. plaintiff appellee. Office, Hu- Jon Dill of Wheeler Law W. ron, appellant. for defendant and MILLER, Judge. generally testified that he wore a dark Circuit colored, shirt, jeans, sleeveless and a red- of two counts of Appellant was convicted dish maroon hairnet. Other than the hair- (SDCL 22-32-1) burglary and first-degree net, generally apparel appellant this is the de- petty theft in the second one count of at the time of his arrest. wore receiving gree allegation of stolen —an (SDCL of a value less than $100. By its the trial ad- Instruction court 22-30A-7).1 con- He was sentenced to two weight jury vised the on the effect and year prison terms on twenty-five secutive evidence, circumstantial as follows: and a concurrent burglary convictions ‘evidence,’ The word as used in these petty county jail sentence on the thirty day instructions, testimony means the of wit- reverse and remand theft conviction. nesses, object, or writing, a material trial. for a new presented things to the senses that appeared pro se at Appellant, prove who are offered to existence plain A appeal. issues on raises several nonexistence of a fact. disposi- requires and is error issue reversal Evidence is either direct or circumstan-

tive; however, certain oth- we will address tial. retrial. guidance raised as er issues exactly Direct evidence means what that is, says that term it is evidence —that EVIDENCE CIRCUMSTANTIAL fact, having directly proves a without INSTRUCTION fact, and infer that fact from some other against appellant The evidence itself, true, is evidence which conclu- totally burglary charges was circumstan- sively that establishes fact. personally observed a tial. Both victims evidence, on the other Circumstantial morning early prowler in their homes hand, proves that a fact means evidence Both described August hours you logically reasonably from which medium prowler as a slim male of infer the existence of another fact. wearing sleeveless shirt and height a black necessary proved that facts be jeans. the victims further observed One of They may proved by direct evidence. and was wear- prowler that the was black by circumstantial evidence ing “burgundy colored stock- or reddish and circumstantial combination direct something ing cap hat or on his head.” evidence. The law makes no distinction an out-of- Neither was able to make either direct evidence and circumstan- between appellant. court or in-court identification proof. means of Nei- tial evidence as a they Several officers testified greater weight ther is entitled to neighborhood on surveillance in that the other.2 night question, in uniform but in The trial court did not instruct the unmarked vehicles. These ob- neigh- of the state rests jury in the that where the case served and identified strange- entirely behaving substantially or on circumstantial borhood at various times evidence, They permitted are not to convict ly suspicious under circumstances. charging any prior description the defendant’s actual information 1. An habitual offender burglary description; any prior of habitation felonies of another 1975 theft identification identify on motion of the state. Texas was dismissed person; failure of the witness occasion; prior lapse defendant on a court, through its Instruction ex- 2. The alleged act and the identifica- time between the length jury plained various factors to the jury went on to advise the tion. beyond as to the it must find a reasonable doubt only not exhaustive but included that list was accuracy identity of the defendant before Although factors to be considered. some of the court advised a conviction could follow. The appropriate was and is under Instruction 15 take into that the factors could here, specifically re- circumstances it does not opportunity prior were: consideration in the circumstantial evi- solve the deficiencies alleged witnesses observe the the act; dence instruction. any discrepancy between the existence of (1) proved pattern jury instruction, the accused unless circum The current as revision, the result of the are not consistent with the 1985-86 stances reads its as accused, entirety follows: guilt recon but cannot be any other conclusion ciled with rational Direct evidence means evidence di- (2) fact, rectly proves each com fact is essential to without an infer- ence, itself, necessary and which if plete a set of circumstances true estab- lishes that fact. guilt been establish the accused’s has proved beyond a reasonable doubt. State Circumstantial evidence means evidence Luna, (S.D.1978); proves that a v. 264 N.W.2d 485 State fact from which an infer- the (S.D.1980); ence of existence of Schafer, v. 473 another fact be Hall, drawn. State v. 353 N.W.2d 37 Weisenstein, (S.D. necessary State 367 N.W.2d 201 is not proven that facts be 1985). by They may proved direct evidence. be by circumstantial evidence or

The trial court’s so in failure to combination of direct and circumstantial jury opinion clearly in our struct the evidence. The law makes no distinction substantially prejudiced appellant. Even between direct evidence and circumstan- appeal, though this issue was not raised on tial proof. evidence as a means Nei- of plain we this error requires conclude that any ther greater weight is entitled to 23A-44-15; retrial. SDCL State v. Bram other. the mer, (S.D.1981). 111 Where case the of the state rests sub- stantially entirely on circumstantial the guidance In for courts of this evidence, you permitted are not to find state, compelled feel the we comment the guilty defendant of the crime pattern jury dealing instructions charged against proved him unless the with circumstantial evidence. circumstances are not consistent 1985-86, pat- Prior its revision in the defendant, guilt with of but can- jury dealing tern instruction with direct not be reconciled with other rational and circumstantial evidence included the conclusion each fact which is essen- following paragraph: complete tial to a set of circumstances To for warrant a conviction crime on necessary to establish the defendant’s alone, cir- circumstantial evidence guilt proved been beyond has a reason- together cumstances taken should able doubt. nature, a conclusive to a pointing If all the facts and circumstances shown certainty com- moral that the accused reasonably can accounted for charged. mitted the offense Such facts any theory consistent with the innocence and circumstances shown as are must be defendant, acquit the jury must other, each and consist- consistent with the defendant. South Dakota Pattern guilt party charged, ent with the Jury Instruction 1-14-1. by any and such as cannot reasonable Brewer, In S.D. 197 theory party charged be true and the (S.D.1972), N.W.2d held we innocent. in this So case all the facts dealing pattern jury instruction with the and circumstances can reason- shown “beyond definition reasonable doubt” theory ably upon any accounted con- require jury need not that the be convinced sistent with the innocence of the defend- guilt “beyond defendant’s a moral cer ant, jury acquit should the defendant. tainty.” equally persuaded are at this We (Emphasis supplied) Crimi- South Dakota need time that not be instructed Jury nal Instruction Pattern 1-16. that to warrant a conviction on circumstan foregoing language previously The had point must tial evidence circumstances specifically approval by certainty” cited with “moral accused Luna, supra. court in the crime. committed hearing, Brewer, pattern lengthy approximately At a ten pointed As we out days appellant before refused product further jury instructions "... are stating lawyers attorneys, fash- I’m many judges and “... the labor of representation going get any accord from a ioning suggested instructions court-appointed attorney states. decisions of this and other from this court. with (someone) purpose for bench I They serve a useful All need—like said—is bar, changed later decisions up my per- and are when motions.” trial court type require as has sistently such action pitfalls of the courts cautioned 86 S.D. at on occasion.” pro representation occurred se need professional Appellant’s N.W.2d counsel. attitude by his characterized statement is best Instruction 1- approve Pattern it himself rather than he would do "... revision, as cited above 14-1 in the 1985-86 lawyer court-appointed who crooked our state. trial courts of for use my nothing rights about or whatev- cares er.” SE OF COUNSEL/PRO ASSISTANCE

REPRESENTATION may unwise the decision However Although hope that this issue we would been, appear it that waiver of have does retrial, at we feel it not continue voluntarily, does right counsel intelli to was in the event necessary to address the same gently, knowingly v. made. Jones prior posture. in appellant persists his State, (S.D.1984); Brady v. 353 N.W.2d 781 1463, 742, States, 397 U.S. 90 S.Ct. United appellant’s appear- initial the time of At (1970); Zerbst, v. 25 L.Ed.2d 747 Johnson charges, counsel was ance on the criminal 458, 1019, 82 L.Ed. 1461 304 U.S. 58 S.Ct. him. reasons appointed represent For to State, (1938); 292 N.W.2d 340 Wabasha v. record, appellant clear in the which are not (S.D.1980). Further, in it would seem that discharged and attorney that this asked appellant passable job many respects did a replaced. request This was he be cross-examining objecting witnesses attorney appoint- was granted and a second prosecu questions to and comments of ed. tor. attorney generally undertook The second in that he vigorous of the case defense proceedings appeared judicial various at OF SEVERANCE COUNTS attorney This and filed numerous motions. argues prejudicial it Appellant that was was, however, to withdraw because allowed required go all on error by appellant made of various accusations charges charges misdemeanor because the grounds agencies and further state based on direct evidence3 and uncoopera- difficult and appellant was substantially on felony charges were based represent. tive to The circumstantial evidence. refused to attorney whom third meet or consult with. even not reach the issue of wheth We do er, history facts procedural under the took the appropriately The trial court its presented, trial court abused discre problem and initi- addressing lead charges. denying severance of hearings regarding appel- counsel for tion ated (S.D.1985). Closs, 138 v. Appellant the court vari- State lant. advised however, however, do, at strongly suggest that attorneys, potential ous retained felony charges separate tried appeared and all uninterested retrial none seemed charges. the misdemeanor him. from representing toaster, set, aggregate value worth an his and T.V. of his and the search of At time arrest home, $100, by the appellant had in identified owners it was discovered that of less than was alleged possession property certain have his trial. clock, property, namely stolen. been This

315 SEARCH AND VALIDITY OF SEIZURE the charges two different plus television, clock, unlawful seizure of the During the time a search warrant and electric toaster. being prepared, was obtained the appellant’s consent of wife search the Breed was convicted of two counts premises. Within minutes other officers first-degree burglary and one count sec- appeared with the search warrant authoriz ond-degree petty theft (receiving stolen ing premises a search of the for certain property $100). valued at less than SDCL clothing. During this search the officers 22-32-1 and SDCL 22-30A-7. See SDCL T.V., clock, observed and seized the Legislature 22-30A-17. Our has directed plain sight. toaster were in We con (whether or felony two more offenses clude that the search and seizure were not misdemeanors) charged improper, illegal. unreasonable or same information or indictment if the sup seized need not offenses “are of the same or similar char- pressed. Goodman, State v. 384 N.W.2d acter or are based on the same act or Cundy, 677 86 S.D. transaction or two or more acts or trans- 766, (S.D.1972), 201 N.W.2d 236 cert. de together actions connected constituting 928, 2751, 412 U.S. 93 37 nied S.Ct. L.Ed.2d parts aof common scheme plan.” SDCL (1973); States, 155 v. Marshall United Closs, 23A-6-23. See State v. (5th Cir.1970); F.2d 185 Harris United (S.D.1985).1 Additionally, it “[i]f States, 390 U.S. S.Ct. appears that a prejudiced defendant ... (1968). L.Ed.2d 1067 by joinder of offenses ... the court Reversed and remanded for new trial. order or separate an election trials of provide counts or ... whatever relief SABERS, WUEST, C.J., and MORGAN justice requires.” SDCL 23A-11-2. See JJ., concur. Closs, 139; 366 N.W.2d at v. Han- State son, 278 N.W.2d State HENDERSON, J., specially. concurs Beek, 154, 157, v. Van 88 S.D. 216 N.W.2d MILLER, Judge, Circuit for (1974). FOSHEIM, Justice, disqualified. Retired Burglary receiving and property stolen (Prior appointment Supreme to his as a separate are and distinct acts. if Even Justice, Court Robert A. Miller was burglary of receiving prop- acts and stolen in capacity his as a circuit erty did root from a “common scheme or judge place court to serve in the of (and plan” highly questionable), is this sev- matter, Retired Justice Fosheim in this erance is still mandated on the based obvi- and will the record that he reflect prejudice ous would befall Breed the participated judge.) as a circuit court felony burglaries and the misdemeanor re- HENDERSON, (specially Justice concur- property ceipt of stolen at one treated ring). supporting trial. The evidence Breed’s also, I burglary charges would reverse the trial court totally but was circumstan- grounds just expressed receipt not property tial while of stolen reversal, majority opinion. Additionally, charge upon rests of fruits a dubious con- in my opinion, lie apartment. based on of of consolidation sensual search Breed’s According to 1. places merely the American Bar Association and are not "related” because Justice, Standards for they Criminal the offenses "[i]f are of the or similar same character. related, Thus, burglaries are is holdups defendant entitled a series of would right_” 3.1(b), severance as Standards though be offenses even a distinc- unrelated 13— 13-1.3, 13.31; commentary commentary at at repeatedly tive mode of commission is used. (2d 1980) added). (emphasis 13-1.3, 13.11 ed. commentary Standard at So 13.11. case, burglaries receipt Breed’s and the Unrelated offenses include offenses that charges property likely stolen conduct, would un- upon are upon not based the same single related offenses that should have been severed episode, upon a common right.” See plan. "as Standards 13-1.3 and 13-3.3. Offenses committed at different times warrant, anything for apartment his police who conduct- search

Testimony of officers anything fancy. suited their undoubtedly affected Breed’s and take ed the search instance, charge golf his had seen a set of receipt stolen and For charges. This accumulation of burglary glove or set of binoc- clubs or a baseball unfairly prejudiced Breed and ulars, evidence they could have seized those items should been treated these counts have majority. the rationale of under Closs, 366 N.W.2d at separate trials. See indispensable for the officers to would be 139; Maves, 805, 812 instance, in the first before know J., (Henderson, dissenting); (S.D.1984) anything, there were stolen seized 201; Beek, Hanson, 278 N.W.2d at Van apartment. They grab, in the cannot items 563; 157, 216 at S.D. at N.W.2d SDCL whim, personal property at their items An error made when the 23A-11-2.2 was fancy something their as which strike two chose treat these counts might from someone at stolen error amounted to proceeding. in one This someplace. Nay, supreme sometime at requires re- an abuse of discretion which law the land the United States Consti- Closs, 140; versal. Van See in the Amendment there- tution and Fourth Beek, 216 N.W.2d at 88 S.D. of, plainly it states: upon right people to be secure also vote to reverse based would resulting houses, persons, papers seizure of and improper an search their ef- clock, television, electric toaster. fects, against unreasonable searches seizures, violated; electric The owner of the clock and toaster shall not reported” as upon that she “never them proba- testified no shall issue but warrants being impossible cause, It was therefore supported by stolen. oath or affirma- ble conducting the search tion, describing particularly place said clock and toaster were searched, believe that persons things and the stolen; assump- no there was added.) basis (Emphasis seized. proffered by “plain rule tion. The view” first ten This is one of the articles article majority opin- State and relied in the com- of the United States Constitution inapplicable case. simply ion Rights. Bill of It monly referred as the It is noted that the search warrant result British soldiers beat- arose as the T-shirt, “clothing,” namely, pair recited a ing upon knocking down the doors shorts, pair jogging of blue early maroon of our American ancestors houses jeans, pair jogging seizing shoes. These searching person- and then searching indicated that were besieged people. al those effects clothing, while warrant was search are os- Thanks to the Revolutionaries —we gave being prepared and no indication that today we tensibly our homes secure —if searching anything quest rekindle for freedom. will but clothing. These officers were con- Therefore, join majority specially ducting which related to facts a search opinion the above addi- and would include August 3, morning the early hours of grounds for reversal. tional relating unreported petty not of to an facts (clock toaster), theft which occurred earlier, relating

three nor of facts weeks July theft of a television set. amorphous ruling majori-

Under the apparently,

ty, officers could without these wants to generally if the defendant that offenses should are inconsistent stated significant testify there risk "that but not as others." be severed when is a as to one offense Standards, id., upon the convict the defendant will Stan- Bar Association American weight 13-2.1, (footnotes of the accusations or accumu- commentary at 13.13 dard omitted). can of the evidence. The defendant lated effect disadvantaged the available defenses also be

Case Details

Case Name: State v. Breed

Court Name: South Dakota Supreme Court

Date Published: Jan 7, 1987

Citation: 399 N.W.2d 311

Docket Number: 15198, 15199

Court Abbreviation: S.D.