STATE оf South Dakota, Plaintiff and Appellee, v. Robert Neil HELLING, Defendant and Appellant.
No. 15056.
Supreme Court of South Dakota.
Considered on Briefs March 20, 1986. Decided July 9, 1986.
391 N.W.2d 648
Robert A. Haivala, Sturgis, for defendant and appellant.
MORGAN, Justice.
Defendant Robert Helling (Helling) appeals from his DWI third-offense conviсtion entered June 13, 1985. We reverse and remand.
On November 16, 1984, the South Dakota Highway Patrol received a call concerning an accident on Highway 85 near Deadwood, South Dakota. A trooper proceeded to the scеne of the accident and found Helling‘s automobile backed into a driveway and straddling a retaining wall. No one was in the car at the time. Although no one was near the accident site, the driver of the car was described as wearing a light-colored cowboy hat.
After finding no one near the accident scene, the trooper proceeded to return to his unit. He received a call that someone was attempting to break into a house located only а short distance from the accident. The trooper responded to the call and found Helling.
Helling admits it was his car at the accident scene but claims he was not driving. He claimed that he knew he was intoxicated, so he stopped in Sturgis on his way home and attempted to locate someone who would drive him to Hot Springs. Helling claims a person whom he did not know agreed to drive him. Helling then said the “unknown person” drove the car and caused the accident while Helling sleрt in the passenger seat. According to Helling, this unknown driver was wearing clothing similar to his.
Prior to trial, defense counsel noted that if Helling was convicted it would be his third DWI. DWI-third offense is a felony.
During trial, Helling stuck to his story of the “unknown driver.” On cross-examination, the prosecutor asked whether Helling was arrested for DWI following an earlier accident. Over defense objection, the trial court admitted the question and Helling‘s answer under
We first examine Helling‘s claim of error in the admission of his prior DWI conviction on cross-examination. He claims this was an impermissible admission of evidence relating to his character. See
Normally, charаcter evidence relating to an accused‘s propensity to commit a crime is not admissible.
During cross-examination, State asked Helling whether he had been arrested for DWI following an earlier accident. Defense counsel objected to thе question. In chambers, State alleged:
Your Honor, quite frankly, the statute [
SDCL 19-12-5 ] specifically allows this type of cross-examination in that evidence or [sic] prior conduct or bad acts on the part of this defendant are permissible to establish motive, lack of mistaken identity, etcetera. The State would submit, Your Honor, that in light of this defendant‘s past criminal record involving DWI‘s it goes to his motive for making up a story that he wasn‘t the driver in this case.
[Defense Counsel:] Your Honor, the motive listed in that statute goes to the motivе of the crime itself. It doesn‘t go to impeachment, which counsel is trying to do.
THE COURT: All right, you guys have made your record. All right, I‘ll deny it [the defense objection].
In State v. Tiger, we stated:
“In ruling on the admissibility of evidence of other crimes, wrongs, or acts, a trial court must first determine relevancy. ‘Any fact that tends to connect an accused with the commission of a crime is relevant and has probative value.’ ‘Such other incidents are material if they show a plan or system of criminal action and acts constituting continuous offenses.’ If the trial court determines the evidence is relevant, it must then decide whether the probative value of the evidence substantially outweighs its prejudicial effect. If, although relevant, the court decides its admission will producе unfair prejudice to the defendant, it cannot be admitted. This delicate balancing process is within the trial court‘s sound discretion. The question on review is whether the trial court abused that discretion.”
365 N.W.2d 855, 856 (S.D.1985) (quoting State v. Means, 363 N.W.2d 565, 568 (S.D. 1985) (citations omitted)).
As noted above, the trial court permittеd the cross-examination because it felt that it was admissible to show motive. We believe this was error.
Motive has been defined as ‘supplying the reason that nudges the will and prods
2 J. Weinstein & M. Berger, Weinstein‘s Evidence, § 404[14], at 404-108 (1985) (emphasis added).
Helling‘s prior DWI conviction was not used to show he had a motive to cоmmit the offense charged. It was instead used by State as part of its impeachment of Helling‘s “phantom driver” story. Its only purpose was to enable the prosecutor to show how preposterous Helling‘s story was. This, however, could have bеen accomplished without the added prejudice of admission of Helling‘s prior DWI conviction. We note also that this conviction is not admissible for impeachment purposes under
We hold that Helling‘s prior DWI was not relevant to the charge of DWI in this proceeding, and its admission constituted prejudicial error. The conviction is reversed and remanded for new trial.
Helling also contends the trial court erred in not allowing him ten peremptory challenges during voir dire. He claims he was entitled to these challenges since he was facing felony DWI charges under
The number of peremptory challenges granted during a jury trial is governed by statute.
It is clear that if
“The South Dakota statute regarding enhanced punishment for habitual criminals does not create a new offense, but merely authorizes the trial court, in its discretion, to impose a more severe penalty upon one who is found to have the status of a habitual criminal.... Whether or not an accused is an habitual offender has no relation to the trial for the charge against him, for the habitual criminal statute has nothing to do with trial procedure.”
Id. at 336-37 (quoting State v. Watkins, 272 N.W.2d 839, 840 (S.D.1978) (citations omitted)).
Recently, this court implied that the statutes providing penalties for multiple DWI convictions were punishment enhancement statutes. State v. Nilson, 364 N.W.2d 532 (S.D.1985). The court noted: “At the time of [Nilson‘s] convictions,
Thus, under Holiday, Helling was not entitled to the additional peremptory challenges on the underlying charge. Inasmuch as Helling pleaded guilty to the Part II information alleging his habitual offender status, and did not request a jury trial on this charge, he has nо claim regarding peremptory challenges in the habitual stage of the proceeding.
Since Helling was prejudiced by inadmissible evidence regarding a prior conviction, we reverse and remand for new trial.
HENDERSON and SABERS, JJ., concur.
WUEST, J., concurs in part and dissents in part.
FOSHEIM, C.J., dissents.
WUEST, Justice (concurring in part, dissenting in part).
I concur, exceрt as to the number of peremptory challenges. In my opinion,
In deference to the majority opinion, Holiday and Watkins provide strong precedent to support it. I would, however, distinguish those cases without overruling them in order to provide ten perеmptory challenges to a person charged with third offense DWI.
Logically, it is difficult to make that distinction. On the other hand, conviction of a third offense is a felony and the statute provides for ten peremptories for felonies. Further, Holiday and Watkins were afforded ten peremptories upon the felony charge against them. They wanted twenty because they faced life imprisonment as habitual criminals. As a practical matter, they were fairly treated with ten peremptories. A third DWI оffense is rightly considered a serious offense in South Dakota, and it often results in a penitentiary term. Drunken drivers do not belong on the highway. The law, however, provides for ten peremptory challenges for felonies, and a third DWI conviction is а felony. Therefore, I would afford such offenders the same rights as those granted any other person charged with a felony.
FOSHEIM, Chief Justice (dissenting).
While I agree with the majority that the prior convictions were not admissible under
In this case, the prior convictions were used to prove the defendant‘s motive to lie. The majority finds that this is not a proper use of the prior wrong acts. The court holds that the motive which the state is allowеd to establish must be the “motive to commit the offense charged.” This limitation unnecessarily restricts the rule.
The rule says simply that prior convictions may be used “for other purposes, such as proof of motive.” It does not restrict “motive” to the motive to commit the crime charged. Thus, evidence relevant to the motive of a witness to testify falsely is admissible under this uniform rule. State v. Segotta, 100 N.M. 18, 665 P.2d 280, 288 (1983), rev‘d on other grounds, 100 N.M. 498, 672 P.2d 1129 (1983). Cf. U.S. v. Ible, 630 F.2d 389, 394 (5th Cir.1980).
It is clear that the only proof the rule prohibits is the use of prior wrongs to establish the defendant‘s character for the purpose of proving that he possesses a criminal propensity and that on the instance in question his behavior conformed therewith. 2 Louisell & Mueller, Federal
In this case, I would hold that the only possible grounds of inadmissibility would be