STATE of South Dakota, v. Richard D. HUETTL.
Nos. 14669, 14678.
Supreme Court of South Dakota.
Argued Feb. 5, 1985. Decided Dec. 11, 1985.
318 N.W.2d at 112 (footnotes omitted).
“The circumstantial guarantees of trustworthiness on which the various specific exceptions to the hearsay rule are based are those that existed at the time the statement was made, and do not include those that may be added by using hindsight.” Ryan, supra (quoting Huff v. White Motor Corp., 609 F.2d 286, 299 (7th Cir.1979)) (emphasis added).
Here, the trial court never made a determination on the record concerning the trustworthiness of H.T.‘s statements. Prior to trial, Thompson moved to exclude the hearsay statements. At a hearing on this motion, State, by offer of proof, alleged only the content of the offered hearsay testimony. The trial court then denied Thompson‘s motion. McCafferty, supra, contemplates a determination by the trial court concerning the reliability of the statements. This determination cannot be a perfunctory denial of a defense motion. The court must make an affirmative finding of the reliability of the statements by considering the factors noted above. Until such a finding is made, the statements do not show a “particularized guarantee of trustworthiness.” State now attempts in its brief to provide the necessary indicia of reliability by asserting after the fact the circumstances surrounding the statements. It is clear, however, that the determination of reliability must be made prior to the admission of the hearsay. See McCafferty, supra; Ryan, supra.
Thompson also contends that there is sufficient evidence to support his conviction on the sexual contact charge. Because of our holding on the first issue, we remand for new trial on this issue also.
Smith testified at trial that H.T. said Thompson had touched his penis. This touching was the basis of the sexual con-tact charge.
Accordingly, we reverse and remand both counts for new trial consistent with the views expressed in this opinion.
All the Justices concur.
HERTZ and WUEST, Circuit Judges, acting as Supreme Court Justices, participating.
Drew C. Johnson of Maloney, Kolker, Fritz, Hogan & Johnson, Aberdeen, for defendant and appellant.
MORGAN, Justice.
A jury found Richard D. Huettl (Huettl) guilty of driving while under the influence of alcohol (DWI) in violation of
Huettl was the driver of an automobile stopped by two police officers in Redfield, South Dakota, when they observed his vehicle cross the center line of the road as he proceeded through town. When the officers noted an odor of alcohol on Huettl‘s breath and observed his difficulty in finding and then extracting his operator‘s license from his wallet, they asked him to step back to the patrol car. The officer then administered some field sobriety tests in which Huettl did poorly. The officers administered a PBT resulting in a red light, indicating more than .10 blood alcohol content and they arrested him for violation of
A preliminary hearing was held, Huettl was arraigned, and an information was filed against him. Huettl then filed a motion to dismiss the information based upon the loss of his blood sample before it was tested. Huettl‘s motion was denied. At a hearing in chambers immediately prior to trial, Huettl‘s counsel made a motion and requested both sides to refrain from discussing or mentioning the fact that a PBT was given just prior to Huettl‘s arrest. The trial court granted the motion. The case was presented to a jury and Huettl was convicted of DWI.
Huettl raises four issues on appeal: (1) Whether the trial court erred in denying his motion for dismissal because the loss of the blood sample violated his rights to due process; (2) whether the evidence sufficiently supports the conviction under
Huettl first claims a Brady v. Maryland violation1 of his constitutional right of due process because the blood sample was lost in the mail. In State v. Muetze, 368 N.W.2d 575 (S.D.1985), we examined the Brady doctrine with respect to information the prosecutor had (original investigative notes). We noted that Brady is actually an extension of Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935). Some key language on the reasoning of the Court in Mooney is as follows: “[The requirement of due process] cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured.” 294 U.S. at 112, 225 S.Ct. at 342, 79 L.Ed. at 794.
The Brady Court merely extended the Mooney doctrine by saying it applied irrespective of the good faith or bad faith of the prosecution. The Brady Court further reasoned: “That (withholding of exculpatory evidence) casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though his action is not ‘the result of guile,’ ....” 373 U.S. at 88, 83 S.Ct. at 1197, 10 L.Ed.2d at 219. In light of the reasoning behind the doctrine as we have detailed, we cannot see any possible violation in this case. The blood sample was lost because the container broke in the process of transmittal by mail. That is clearly not a contrived action on the part of the prosecution. We recognize that we live in an imperfect world and that the United States Postal Service is subject to the same imperfections as ordinary mortals. In this case, the mails did go through; however, somewhere along the line the package was handled in such a manner that the container broke.
Huettl argued at great length that there is no question that the evidence was exculpatory, pointing to his testimony and that of his three companions that he had only had three beers all day.2 Then, the first remark counsel makes at oral argument before this court is that he has no argument regarding the probable cause for the arrest of his client. The two arguments are inconsistent. But in our view, for the reason that we first expressed, the materiality and the exculpatory nature of the evidence, if it be so, has no bearing on the issue. Mooney and Brady, supra, simply do not apply. We reject the decision of the Iowa Supreme Court in State v. Brown, 337 N.W.2d 507 (Iowa 1983), and the cases cited therein. Their reliance on Brady, as they suggest, may have gone no deeper into its reasoning than the headnotes.
We point out that our decision on this issue is clearly limited to the rather unusual fact situation presented by this record.
In his second issue, Huettl challenges the sufficiency of the evidence to sustain the conviction. Our view on this issue has been recently stated in State v. Braun, 351 N.W.2d 149, 151 (S.D.1984):
It is well settled that in determining the sufficiency of evidence on appeal, the question presented is whether or not there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt. In making such a determination, this court will accept that evidence, and the most favorable inferences that can be fairly drawn therefrom, which will support the verdict. (citations omitted).
Huettl‘s counsel appears to be under a misconception as, throughout his brief, counsel suggests the State was obligated to prove beyond a reasonable doubt that Huettl was too intoxicated to drive; that his blood alcohol content was greater than .10. Counsel thus disregards the legislative change of the statute in order to broaden its coverage. A showing that a person drove or controlled a motor vehicle while under the influence of alcoholic beverage is sufficient to sustain a conviction under
The statutory presumption that a person with .10 blood alcohol is under the influence is irrelevant under
While there was certainly conflicting evidence as to Huettl‘s condition that night, the testimony of his companions against that of the arresting officers, it would serve no purpose to detail the contradictions. The jury heard all the conflicting testimony and found against Huettl. There clearly was evidence to support the verdict and this court must accept the evidence and inferences to be drawn therefrom which are most favorable to and support the verdict. State v. Moves Camp, 286 N.W.2d 333 (S.D.1979); State v. Masteller, 272 N.W.2d 833 (S.D.1978).
Huettl‘s third argument on this appeal is that the trial court committed reversible error when it allowed a State‘s witness to testify in the course of the State‘s presentation of its case, over Huettl‘s objection, that the witness was not endorsed on the information and that the witness was present while the State presented its other evidence despite a court order to sequester all witnesses. The witness in question was Alan Albright (Albright), a Spink County Deputy Sheriff. The record indicates that Albright had interviewed one Howard Vink (Vink) by telephone on the day preceding trial. Vink, at whose farm Huettl and his companions had stopped during the evening preceding the arrest, was alleged to have told Albright that Huettl and the others had drunk beer at his farm. When called as a witness by the State, however, Vink testified that Huettl and his companions did not consume any alcoholic beverages during their visit to his farm. State, then sought to call Albright for the purpose of impeaching the testimony of Vink. Albright had not been endorsed on the information as a witness per
Notes
The prosecuting attorney shall endorse upon each information the names of the wit-
Huettl has not shown that he was prejudiced by the fact that Albright was in the courtroom during part of the testimony rather than sequestered under the court‘s order. The purpose of the sequestration order was to prevent perjured testimony. Huettl‘s counsel had access to Albright‘s notes regarding his interview with Vink. We can assume that if Albright‘s testimony was not consistent with his notes, we would have heard about it.
Huettl‘s final argument is that the trial court abused its discretion and violated his constitutional and statutory rights when it fined him $300.00, plus costs of $208.68, and imposed a net twenty-day jail sentence. Huettl contends that because he pled not guilty and requested a jury trial his sentence and fine were increased from the usual sentence and fine imposed on defendants who had pled guilty to the same offense. At Huettl‘s request, copies of all of the first-offense DWI convictions in Spink County between January 1, 1984 and July 10, 1984, nineteen in all, were included in the settled record. Eighteen of those convicted received a net two-day jail sentence and a fine of $250.00, of which $25.00 to $75.00 was suspended. Huettl, the nineteenth defendant, was sentenced as noted above. Huettl was the only defendant among the nineteen who pled not guilty and requested a jury trial.
We first note that trial judges have broad discretion to fix sentences within the statutory limits. Braun, supra. We examine Huettl‘s argument from the perspective of a violation of his equal protection rights under the Fourteenth Amendment. We have held that “in the administration of criminal justice, the imposition of different punishments ... upon one than is imposed upon all for like offenses is a denial of [equal protection].” State v. King, 82 S.D. 514, 516, 149 N.W.2d 509, 510 (1967). In State v. Goodale, 86 S.D. 458, 198 N.W.2d 44 (1972), we pointed out that such rule expresses the law with respect to statutes providing different punishments for different classes of offenders. The opinion went on to say “we do not believe that such holding means ‘that persons convicted of the same crime cannot be given different sentences depending upon their individual culpability and need for rehabilitation.‘” 86 S.D. at 467, 198 N.W.2d at 49.
Huettl argues that the harsher sentence was imposed because he had exercised his right to trial by jury. This is based on a statement made by the trial judge in the sentencing colloquy: “The court does recognize the rule that defendants are entitled to trial and the court will
nesses known to him at the time of its filing. Any further endorsement of names upon the information shall be done only with permission of the court. This section shall not preclude calling any witnesses whose names or the materiality of whose testimony is first learned by the prosecuting attorney during the trial. This section does not require the endorsement of names of witnesses which are to be used only in rebuttal.
Alternatively, Huettl then attacks the “other factors.” He argues that the trial court improperly considered evidence regarding results of the PBT when the trial court had sustained his motion to keep such results out of evidence at the trial. Huettl attacks the foundation laid at the sentencing hearing where the officer, that the State called as a witness, was not the officer who had given the test. But this ignores the fact that the trial judge had earlier ruled on the oral suppression motion to keep out the results. The trial judge made a considerable record on his acquaintance with PBT‘s through previous trials and testimony of the State Chemist and conversations with him.
Huettl then argues that the trial court‘s conclusion convicted him of perjury while denying him the right to confront the witnesses and evidence against him. That is a bit over-dramatic. As pointed out in State v. Carsten, 264 N.W.2d 707, 710 (S.D.1978):
One of the factors that entitles a trial court‘s findings of fact to be given great weight is the opportunity of the trial court to judge the credibility of witnesses. Cf.
SDCL 15-6-52(a) . We see no reason why a trial judge should be any more restricted in judging a criminal defendant‘s credibility at a sentencing hearing than in any other type of trial proceeding.
In a special concurrence in Braun, supra, former Justice Wollman points out the holding of the United States Supreme Court in United States v. Grayson: “A defendant‘s truthfulness or mendacity while testifying on his own behalf, almost without exception, has been deemed probative of his attitudes toward society and prospects for rehabilitation and hence relevant to sentencing.” 438 U.S. 41, 50, 98 S.Ct. 2610, 2616, 57 L.Ed.2d 582, 590 (1978).
With respect to our limitations on the use of the PBT results in trials, that is the last issue herein raised by the State by notice of review. Regardless of our holding on the use of PBT results as evidence in the case-in-chief, the results were not so used in this case. The trial court did not use the results to determine that Huettl was driving under the influence; the jury had already made that determination without the PBT results. The trial court merely considered that, in its experience on the bench on numerous DWI cases, Huettl could not have failed a test if he had actually consumed only the few beers over the period of time as he had testified.
Huettl attacked the use of his eight-year-old DWI conviction as a factor considered to impose the sentence. He points out that the legislature by enacting
By notice of review, State challenges the trial court‘s ruling that the PBT results were inadmissible at trial absent compliance with
By supplemental brief, State takes issue with the latter determination terming it “dicta,” and asks us to overturn it. We decline to do so. In Anderson, supra, we pointed out that the PBT is accomplished through the use of a portable device as accurate statistically as intoxilyzers, the results of which are currently used in this state as evidence to show blood alcohol levels in excess of .10 in violation of
For a period of over twenty-five years the implied consent law,
Nor do we equate the results of the PBT with evidence of the conduct of drivers in attempting to take the usual course of field sobriety tests, i.e., walking heel-to-toe, standing on one leg, recitation of the alphabet or numbers. Testimony of faltering gait or faulty recitation is far different than allowing testimony of the results of a chemical analysis. The introduction of the latter would in effect be proof of the ultimate issue.
We reaffirm our holding in Anderson, supra, that the results of the PBT are admissible at trial only in the event of a probable cause challenge.
We hold, therefore, that the trial court arrived at the correct result in excluding the PBT evidence, but for the wrong reason. For all the reasons stated herein, we affirm the decision of the trial court.
FOSHEIM, C.J., and WUEST, Acting Justice, concur.
HENDERSON, J., dissents in part and concurs in result in part.
HERTZ, Circuit Judge, acting as a Supreme Court Justice, not participating.
HENDERSON, Justice (dissenting in part, concurring in result in part).
This appeal arises from the same circuit, same circuit judge, where citizens who ask for a jury trial are punished more severely than those who do not ask for a jury trial. See numerous decisions and authorities in dissent of this author in State v. Braun, 351 N.W.2d 149, 152 (S.D.1984). Braun is cut off of the same bolt of legal goods.
Defendant here—had the audacity—to ask for a jury trial. You must not do this in Spink County! He was found guilty and sentenced, inter alia, to 20 days in jail; those who pleaded guilty (18 other citizens) before this same judge, who were also first DWI offenders, received a 2-day jail sentence.* Moreover, Huettl‘s fine was greater and costs of $208.68 were assessed. This was not part of the sentence with the other 18 defendants. The message is clear: Do not ask for a jury trial in Spink County—you will be punished for it if you do! I dissent to the rationale and result of the majority opinion concerning defendant‘s sentence; it is a rank violation of the equal protection clause. With all other aspects of the majority opinion, I concur in result.
The jury trial is the backbone of our entire judicial system and every man, woman, and child has the right to put the State on its proof. The process of the jury trial is one of the few exceptions where we lawyers and judges still permit ordinary citizens to involve themselves in the judicial branch of government. Judges should not punish citizens for asking for jury trials.
Purchased by the blood of patriots, the right to a jury trial is now used as an additional factor to levy additional punishment. We have strayed a long way from its original intent. Lexington, Concord, Siegfried Line, Flanders Field, Normandy, Anzio Beach, Saipan, Marshall Islands, Iwo Jima, Old Baldy, Hill 101, Vietnam, what did they all stand for? Well, for openers, he sentenced this defendant. So far as this defendant was concerned, he was to be sentenced as a first offender as he was charged as a first offender.