STATE of South Dakota, Plaintiff and Respondent, v. Bruce HARTMAN, Defendant and Appellant.
No. 11902.
Supreme Court of South Dakota.
July 7, 1977.
T. R. Pardy of Mumford, Protsch, Sage & Pardy, Howard, for defendant and appellant.
ZASTROW, Justice.
The defendant, Bruce Hartman, appeals from his conviction of second degree manslaughter under
On September 11, 1975, the decedent was a passenger in an automobile owned and operated by the defendant. The one-car accident occurred on Highway 37 as the defendant drove north from Mitchell, South Dakota, and crossed a bridge near the Lake Mitchell spillway. The defendant testified that as he crossed the bridge his speed was
Officer Reinesch of the Mitchell Police Department was advised of the accident at 12:53 a. m. When he arrived at the accident scene, he found Beverly Schulte and Marjean Strand, a second passenger in the defendant‘s car, lying on the ground some 70 feet from the defendant‘s car. Both girls were quickly removed by ambulance to the hospital.
Officer Reinesch took the defendant to the police station. Based upon his observations of the defendant, Officer Reinesch placed him under arrest for driving while under the influence of an alcoholic beverage (
Although the record is unclear, it appears that the defendant was returned to the police station. At that time, Officer Reinesch was advised that Beverly Schulte had died as a result of her injuries received in the accident. He advised defendant that he was being further arrested for second degree manslaughter.
Prior to the trial, the defendant moved to suppress the blood sample and the test results and any evidence relating thereto. At the trial, these objections were again presented to the court. Although several grounds for the inadmissibility were presented to the trial court, the defendant argues only one on appeal. Defendant contends that the failure of Officer Reinesch to advise the defendant of his right to refuse to give a blood sample under
The defendant relies exclusively upon this court‘s decision in State v. Buckingham, 1976, S.D., 240 N.W.2d 84, which held that breath and blood test results were inadmissible in a DWI prosecution where it is shown that the arresting officer has failed to comply with the implied consent statutes. The defendant contends that because
The Buckingham decision was without the benefit of argument from the state on the question of whether use of the “exclusionary rule” was necessary where there is a violation of the implied consent statutes. Upon further consideration, this court feels that it is necessary to modify the Buckingham decision which approved the application of the exclusionary rule to bodily substance samples and test results taken in violation of the implied consent laws.
Our consideration of the implied consent statutes must be prefaced upon the United States Supreme Court‘s decision in Schmerber v. California, 1966, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908. Schmerber held that bodily substance samples were not subject to the exclusionary rule under the Fourth Amendment if they are taken (1) incident to a lawful arrest,7 (2) by a reliable and accepted method of obtaining such sample,8 (3) in a reasonable, medically approved manner,9 and (4) where there is probable cause to believe that the evidence sought exists. It also held that the elimination of alcohol by natural bodily functions presents exigent circumstances which obviate the necessity of obtaining a search warrant.
The exclusionary rule is a judicially created means of protecting the rights of the citizens under the Fourth Amendment10 and
A review of our implied consent statutes reveals the intent of the legislature to extend to the operators of motor vehicles a right beyond those embodied within the Fourth Amendment or
Our implied consent law does not provide that the bodily substance sample or test results are inadmissible at a subsequent prosecution where the sample is obtained without compliance with the implied consent statutes, as some states have done. See People v. Todd, 1975, 59 Ill.2d 534, 322 N.E.2d 447. However, it appears that the implied consent statutes within themselves provide a sufficient deterrent to violation of the implied consent statutes by police officers without excluding this highly probative evidence.12
If there is not substantial compliance with the implied consent statutes, the department of public safety cannot revoke or suspend the operator‘s driving privileges for refusing to submit to such tests. Furthermore, noncompliance with the implied consent statutes, although not making the test sample and test results inadmissible, results in a forfeiture of the statutory presumptions of
Here, the defendant not only did not object to the court‘s instruction as to the statutory presumptions but conceded that if the blood sample and the test results were admissible, the instruction had to be given. The failure of the defendant to object to such instruction waived any error in its submission.
The defendant argues that the evidence was insufficient and that the trial court erred in not granting his motions for dismissal, for directed verdict, or for a new trial.
“In determining the sufficiency of the evidence on appeal the only question presented to this court is whether or not there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilty beyond a reasonable doubt.” State v. Shank, 1975, S.D., 226 N.W.2d 384.
The evidence was sufficient to sustain the verdict. The evidence shows that the defendant drove his car against the concrete median divider and it then skidded and slid a distance of over 750 feet before coming to rest against a utility pole with sufficient force to cause considerable damage to the rear of the car. The investigating officer who arrested the defendant for DWI stated that the defendant had bloodshot eyes and smelled of alcohol. The blood test indicated that his blood alcohol content was .12%.
The manner in which the accident occurred, the observation of the defendant by the arresting officer, the testimony of alcohol consumption, and the defendant‘s blood alcohol content are more than sufficient evidence to support the second degree manslaughter conviction of the defendant beyond a reasonable doubt.14
The trial court instructed the jury:
“It is the duty of any person operating a motor vehicle upon a public highway of this state to keep such lookout for other vehicles, persons and the conditions upon the highway as a reasonably prudent person would maintain under the same or similar circumstances, and to have the motor vehicle driven by him under such control that he can stop the same, or otherwise avoid an accident, within his range of vision, unless by reason of a condition or circumstances which could not have been reasonably anticipated by an ordinarily prudent person in like position, he could not stop or otherwise avoid an accident.” Instruction 10.
The defendant maintains that the instruction should not have been given because “[i]t is a civil instruction which has no place here” in a criminal prosecution.
The defendant further asserts that the instruction was improper “because there is no evidence of any kind, as to whether a proper lookout was kept or not.”
State‘s Exhibit 5, purporting to be a diagram of the accident scene, was admitted into evidence over defendant‘s objection that it lacked proper foundation. The defendant now maintains that the foundation was never established and that the introduction of the exhibit was reversible error. The exhibit, although testified to as accurately depicting the scene of the accident by two investigating officers, Officers Reinesch and Royston, was not drafted by them and was only testified to as accurately depicting the accident scene at 8 a. m., eight hours after the accident, not as a scale drawing of the scene.
This exhibit was only for the purposes of illustration; therefore, it is unnecessary to have its drafter present. State v. Thibodeau, 1975, S.D., 233 N.W.2d 326; see also State v. Aarhus, 1964, 80 S.D. 569, 128 N.W.2d 881. An exhibit introduced for the purposes of illustration is admissible if it clearly depicts the factual situations and will allow the trier of facts to more clearly understand a witness‘s descriptions. McCormick on Evidence, § 213 (E. Cleary Ed., 2d Ed. 1972). Officer Reinesch testified that all of the measurements which appeared on the drawing had been made by himself and Officer Royston. The defendant‘s only objection would be that the undesignated features, such as the road width, curb length, ditch width and fence and pole locations, were apparently drawn to scale.
“It follows from the principle upon which a diagrammatic representation may be employed to illustrate or express the testimony of a witness, that it may be so employed though not made by the witness, or by any other witness in court, or indeed by any known person, provided it is verified to the satisfaction of the trial judge as a correct portrayal of the facts, by a witness having the necessary knowledge to do so. Questions of accuracy, of the possible bias or lack of knowledge of the person who made the plat or drawing, and of the effect of the paper upon the witness as leading, are open to opposing counsel in cross-examination and argument.” 9 A.L.R.2d § 9 at 1060.
The introduction, in any event, is to be determined by the trial court, and its determination will not be overruled except for an abuse of discretion. We find no abuse of discretion in this instance. See generally Annot., Drawings to Illustrate Testimony, 9 A.L.R.2d 1044.
The judgment and conviction are affirmed.
DUNN, C. J., and WOLLMAN, J., concur.
PORTER, J., concurs specially.
MORGAN, J., dissents.
PORTER, Justice (concurring specially).
The blood sample was taken from defendant with his express consent, after he was warned of his constitutional rights. On appeal no contention is made that his consent was given under duress, or through fraud or mistake, nor does defendant claim his consent was secured or the blood sample obtained in violation of any federal or state constitutional right.
Given the above, we need not rely on Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) [where the blood sample was taken over defendant‘s refusal to consent], nor is consideration of the exclusionary rule [see footnotes 10 and 11, majority opinion] necessary absent a claim the blood sample was unconstitutionally taken from defendant. I do not view the admissibility of the blood sample in this case as in any way dependent upon the implied consent law. I view the blood sample as voluntarily given and thus admissible the same as any other relevant, competent evidence.
On appeal defendant rests his argument for suppression of the blood sample principally upon the failure of the officer to comply with
To construe the absolute statutory right of refusal as applying only to
Defendant correctly argues that the DWI manslaughter statute
In this case an instruction was given as to the presumption established by
I agree with the majority opinion that there was sufficient evidence to take the case to the jury, that there was otherwise sufficient foundation for the blood sample and that Exhibit 5 was properly admitted.
For the reasons stated, I join in the judgment of the court affirming the conviction.
MORGAN, Justice (dissenting).
I dissent for two reasons. First I consider Buckingham to be a sound well-reasoned decision. I don‘t read the majority opinion as modifying it but rather as over-ruling it, which brings up my second reason, the doctrine of stare decisis. While this doctrine is not a rule of law but rather a judicial policy the courts generally do not lightly overrule a precedent. I find no sound reason for doing so in this instance. I do not consider that a review of the arguments as briefed in the Buckingham appeal constitutes a satisfactory reason.