*1
Inc.,
(8th
Agency,
Hills
1975); Couch, at 329 §
(2d 1960). ed.
Judgment reversed.
All the Justices concur. of South Plaintiff
STATE Respondent, HIBBARD,
Curtis Defendant Appellant.
No. 12431.
Supreme Court of South Dakota.
Argued Oct. 1978.
Decided Dec. Manson,
Kevin F. Atty. Gen., Asst. Pierre, plaintiff respondent; for Wil- Janklow, Gen., liam J. Atty. Peter H. Lie- berman, Atty. Pierre, Asst. Gen. on brief. Kellar, Kellar, John J. Delaney of Fuller Amundson, Lead, & for defendant ap- pellant. *2 family. photographs and These were intro-
WOLLMAN,
Justice.
Chief
identity,
duced as evidence of the
of the
of
from a conviction
appeals
Appellant
strong
objection
appellant.
camera over
he
upon which
was
degree burglary
fourth
in the
Dako-
years
to three
South
Appellant
day
learned
sentenced
the
before trial
We reverse.
Penitentiary.
jurisdiction,
ta
his
the
companion
that
had left
morning
appellant
and
the
of trial
in-
Sturgis,
her home near
returning to
Upon
he
formed his counsel
that
wished to
the
afternoon on
early
South
present evidence
an alibi to establish that
Mrs.
Debra
September
was
the
the
he
not at
scene of
crime. The
parked in her drive-
an automobile
noticed
ruled, pursuant
trial
to
court
SDCL 23-37-
from
two men run
be-
observed
way. She
5,1
appellant
present
could
that
no such
enter the automobile.
the house and
hind
evidence.
and
recognize these men
fol-
did not
She
distance, attempting
the
for a
car
lowed
Appellant’s first contention is that
plates.
license
unsuccessfully to read the
23-37-5,
Dakota’s
SDCL
South
alibi-notice
Depart-
Sturgis Police
the
then notified
She
statute,
to
improperly applied
deny
was
him
men
had seen two
ment that she
the
to
opportunity
testify that
it
the time
the
had left in a
that
her house and
the
crime occurred he was not
the vicini
that had
Mustang automobile
green
dark
ty
the crime
When appellant
scene.
and
Florida
damage
enu
carried
front
partner
jumped
learned that his
had
bail he
returning
to her
plates. Upon
license
that
the
bonds
concluded
broken
of friend
home,
that
Mrs. Schwartz discovered
ship
required
no longer
up
him to cover
for
and ransacked.
had
broken into
house
been
As pungently
by ap
his ex-friend.
stated
a
reported that
morning
next
she
pellant
a
during
chambers
conference:
camera,
wedding
her husband’s
Instamatic
“Ten
I
days ago
didn’t know the son-of-a-
items had been taken
and some other
ring
leaving,
respect.”
bitch was
with all due
the home.
from
According
proof, appellant
to his offer of
forty
Mrs. Schwartz
minutes after
Some
partner
would
that his
have testified
police
to the
reported
incident
question
car on the afternoon
and
Rapid
towards
driving
arrested while
was
picked appellant up
that when the latter
he
his dark
City on Interstate
get
Rapid
that he
to
to
indicated
needed
bearing Florida license
Camero
Chevrolet
City
hurry.
big
Appellant
in a
also stated
Appellant’s
automobile
showed
plates.
eighty
seventy
per
that he drove
to
miles
Appellant’s companion
damage.
end
front
subsequent
hour
and was
on the interstate
A search
car was also arrested.
in the
ly
patrol. Appel
stopped
highway
car
was issued
lant
to
claimed
have two witnesses to back
among
of the
the contents
Found
searched.
up
story.
to
similar
camera
was an Instamatic
car
It
in question
is clear
the statute
missing
Mrs. Schwartz.
reported
one
testimony of these witnesses
forbids the
in appel-
camera found
taken from the
Film
proper
absent
notice.
It is much less clear
a commercial
processed by
car was
lant’s
a
the statute forbids
defendant
City
in Rapid
developing studio
film
behalf,
his own
absent his com-
testifying in
of the
home
pictures
produced
provides:
ness address
each witness
whom
SDCL 23-37-5
rely
intends
for
defendant
to
alibi evidence.
pro-
action
in a criminal
If the defendant
If
to file and serve such
the defendant fails
evidence,
any way
rely
he
poses
on alibi
notice,
permitted
he shall not be
to introduce
shall,
days
ten
before
trial
not
than
less
the trial of
case unless
alibi evidence
case,
upon the court
serve
of the
file and
good
the court for
cause orders otherwise.
pur-
attorney
notice of
a written
state’s
section,
evidence”
As used
“alibi
evidence,
pose
which notice
to offer such
in a crimi-
evidence that the defendant
means
places
place
specifically
or
state
shall
was,
of commission of
nal action
at the time
have
claims to
been
the defendant
where
offense,
place
other than the
alleged offense to-
time or times
place
such offense was committed.
where
or
gether
name
residence
busi-
with the
when
pliance
provisions,
notice
he
term “witnesses”
not
did
include a
say
People Merritt,
that he was not in the vicini-
criminal defendant.
In
intends
ty of the crime scene at the time the crime
396 Mich.
238 N.W.2d
Michigan
was committed.
Court of
decided to follow the
reasoning of the New York court and held
general
As a
matter it has been held that
that the statute in
apply
did not
*3
they pro-
are constitutional
if
such statutes
testimony by the defendant.
It is instruc-
reciprocal discovery rights to a defend-
vide
statute,
tive to note that
Michigan
M.C.
concerning
ant
the state’s rebuttal case.
In
768.21,
L.A.
evidence,
§
addressed itself to
Florida,
78,
Williams v.
399 U.S.
90 S.Ct.
as does SDCL 23-37-5.
446;
1893,
and in Wardius
26 L.Ed.2d
v.
2208,
470,
Oregon, 412
U.S.
The courts addressing
question
this
do
82,
Supreme
L.Ed.2d
not,
United States
however, speak in a unanimous voice.
type
held statutes of this
constitu-
Court
Burke,
In Simos v.
supra,
the Wisconsin
Neither of these decisions
tional.
answer
Court,
construing
955.07,
W.S.A.
this
now before
court. See
very
23-37-5,
statute
similar to SDCL
con-
1181,
Stump,
also
v.
254 Iowa
State
cluded that
in the absence of compliance
210;
Burke,
ex rel. Simos v.
N.W.2d
State
evidence,
the alibi-notice statute all
129,
41 Wis.2d
The South Article therefore, the state VI, 7, guarantees a criminal legitimate Section defend- has a interest in not being sur right person ant the to “defend in prised parade at trial with a of witnesses provides counsel.” SDCL 23-44-1 avowing that defendant was not at person charged shall at own request his be a scene of the crime. Florida, Williams v. competent witness. A conflict occurs be- supra. By being apprised of the names and provisions tween the above-cited and the addresses of these witnesses well in advance language SDCL 23-37-5 that conditions of trial the state has an opportunity to right a defendant’s to introduce alibi evi- investigate the credibility of these witness upon filing serving dence written es the reliability of their testimony. notice of his intention to introduce such respect defendant, With however, to a statutory evidence. A similar conflict was state already has the burden proving Rakiec, People addressed in 289 N.Y. beyond a reasonable doubt that he was at 45 N.E.2d and was decided the New the crime scene during the time in question. Appeals York Court of in favor of defend- The optimistic hopes defendant who to con right testify. ant’s The New York stat- vince the jury through his unsupported own ute, 295-I, testimony New York Code Cr. Proc. ad- that he § was not in the vicinity of itself dressed to witnesses whom the the crime has credibility problems sufficient rely defendant intended to to establish his any offset disadvantage to the state re alibi, and the New York court sulting surprise. concluded Accordingly, we con- First, gin,2 does inaccuracies. denying erred contain it trial court that elude testify con- opportunity indicates Mrs. identified time the cerning whereabouts Camero, vehicle as a whereas in fact crime occurred. Second, Mustang. she identified it as a it states that Mrs. informed the law question will
Because, doubt, the same no enforcement retrial, contention con- authorities appellant’s vehicle arise on made in the cerning misstatements headed Interstate south on whereas the search warrant support of affidavit she in fact the vehicle was stated that head- will be discussed. towards Finally, ed Interstate 90. the affi- davit states Debra Schwartz identi- “[t]hat attacks affidavit Appellant both young fied men as the who had issued for a support the search clothing been they her home automobile, contend search of wearing,” *4 were whereas Mrs. Schwartz contained misstate ing that the affidavit affidavit, forth in mar- could not the men did identify identify set the but ments. The provided burglary on the of the home of Lowell in the follow- and 2.The affidavit by (Italicized ing material Debra Schwartz. The two men in the information. said false). appellant Young be vehicle were identified as Charles and Rose, being duly reg- Terry first Curtis Hibbard. That the said vehicle is after sworn says: oath, deposes and istered to Curtis Hibbard. shortly Young enforcement officer em- he is a law That That after Charles and Cur- County ployed by Meade Sheriff s Office Pennington tis Hibbard were taken to the Deputy Jail, is a Sheriff. County and that he Lowell and Debra Schwartz 23, 1977, approxi- September That on transported Pennington County were to the p.m., mately the home of Mr. 2:00 o’clock they identify Jail to determine if could burglarized was and Mrs. Lowell Schwartz young persons two men as the that Debra following items were to be and missing by found leaving Schwartz had seen her home. That Mrs. Schwartz: Mr. and young Debra Schwartz identified both men case; a pocket camera with brown 1. a size men as the who had been her home checks inside which 2. a checkbook with by clothing they wearing. were That possibly personalized with the name of are green Debra identified the Schwartz further Schwartz; or Debbie Lowell damaged camero with front end gold ring; Hills 3. a Black man’s plates that she Florida as the vehicle wedding ring with three 4. a man’s silver parked in seen next to her house and which ring. on the diamonds your young the two That men left in. Affiant 1977, 23, approxi- September on That examined described car and it the above is o’clock, mately Debra Schwartz saw a 2:00 accurately green described as a camero with parked of her home located at outside vehicle damage some end with to the front Florida Estates, Bluxberg mile Mountain one plate license number 17-38813. The vehicle County, Sturgis, in Meade South south of identification number is 124870N501679. green described a the vehicle is as probable That cause to Affiant has believe damage front to the end with camero with above which items described were seeing plates. Moments after Florida missing from home of Lowell and Debra she her house saw two vehicle outside of Schwartz are in the above described camero house, of the direction her leave vehicle. jump vehicle and Debra into the leave. WHEREFORE, your requests Affiant law enforcement then contacted directing the Court issue a search warrant n to them that and indicated authorities green that a search be made of the camero 90. headed south Interstate vehicle was damage vehicle with the front some end Subsequently law enforcement authorities plate 17-38813, with Florida license number agencies in other Meade and notified Pennington radio and vehicle identification number description County a of place 124870N501679. Said search to take Approximately given. was above vehicle daytime. place Also said search to take twenty (20) Debra minutes after Pennington County at the Jail where the ve- in, a vehicle described as a called presently impounded. hicle is damage to the front end camero with day September, Dated this 27th of City stopped Rapid plates near Florida suppression Officer Rose testified at the by Highway hear- Exit 90 Patrol- 44 on Interstate ing that he know how the Highway did not misstate- That the said man Horton. John affidavit, nor could ments came be in the he of the driver the vehicle arrested Patrolman for brought recall the of the information speeding to the source of much and then them possible suspects County the document. Pennington as Jail 176 part- clothing judgment
some
of conviction is reversed
time of
and the case is
wearing
ner had been
at the
their
remanded for a new trial.
arrest.
PORTER, JJ.,
DUNN and
concur.
has
Supreme
The United
Court
States
MORGAN,JJ.,
ZASTROW and
concur in
recently
allowing
the matter of
addressed
part
part.
and dissent in
veracity
criminal defendant to attack the
support
of a search warrant.
an affidavit
MORGAN,
(concurring part,
Justice
dis-
Delaware,
154,
v.
438
98
In Franks
U.S.
senting
part).
667,
2674,
26,
57 L.Ed.2d
decided June
S.Ct.
I
part
concur in
part.
and dissent in
1978,
held:
the Court
I concur in majority opinion
up to the
[T]hat, where the defendant makes a
point
Delaware,
adopting
Franks v.
438
preliminary showing
substantial
that a
U.S.
57
L.Ed.2d 667
statement knowingly
false
and intention-
(1978),
point
but on that
in the instant case
ally,
disregard
or with reckless
for the
prefer
I dissent. I
the more
holding
recent
truth,
was included
the affiant in the
California
People
Court in
affidavit,
if the allegedly
Cook,
Cal.Rptr. 605,
Cal.3d
necessary
false statement is
to the find-
130, opinion
P.2d
September
1978,1
filed
cause,
ing
probable
the Fourth Amend-
which distinguished the case of deliberate
requires
hearing
ment
that a
be held at
falsehoods
Applying
affiant.
request.
the defendant’s
In the event
uno,
maxim “falsus in
falsus
unomibus”
*5
hearing
allegation
that at that
California
Court held that ex
perjury
disregard
or reckless
is estab-
cision of deliberate falsehoods does not
preponder-
lished
the defendant
remaining
leave the
allegations unaffected
evidence, and,
ance of the
with the affi-
because the
presume
court cannot
the re
side,
davit’s false material set to one
mainder to be true. The court went on to
remaining
affidavit’s
content is insuffi-
hold: “Lacking a reliable factual basis in
cause,
probable
cient
to establish
affidavit,
the court has no alternative
must
search warrant
be voided and the
under settled
principles
constitutional
but
fruits of the search excluded to the same
quash
the warrant and
prod
exclude the
probable
extent as if
cause was lacking
ucts of the search.”
Cal.Rptr.
on the face of the affidavit.