State v. Lowther

respectable contrary good judgment. it is to all author- is so vital to a that For this ity citing In the United States. Court now reaffirm bad law on the Shafer Shafer, 283 S.C. 320 S.E.2d 730 (Hautala’s wide-sweeping books declara- (1984), respectable authority’s decision a tion), open which is an sesame to error for highlighted for its rationale future, judges in trial akin somewhat himself, ali- watching carpenter

a trial court’s award of rehabilitative a hit with a per sixty mony hammer, of month months $300 twice on the thumb. appellate

was remanded court to the trial court for a redetermination SABERS, (specially concurring). Justice finding there was no factual as to where Hautala, As the author of Justice goal alimony that the the rehabilitаtive writing gives Henderson’s in Wilson me serve; and, additionally, was to where feeling “being of stoned to death with bore no the duration reasonable relation- popcorn.” may Justice Henderson think he ship to wife’s educational timetable. watching the court hit itself with a ham- dissent, 417 N.W.2d at 884-85. Hautala mer, but closer examination reveal my opinion, one of the reasons that carpenter hitting that he is the himself judge the circuit court either erred or mis- with his hammer on his thumb. wrong alimony kind of takenly awarded the Hautala,

was because of this statement at 882: issue is not the “[T]he placed alimony,

name on but whether the supports deplored

record the award.” generic language then, all-sweeping deplore saying,

and I it now. It is like alimony,

“Let’s her the name we award but put pаrticle one on it doesn’t make of dif- Dakota, of STATE South Plaintiff Well, ference.” those words have come Appellee, home to roost in the case now us. Further, deplore clarity this lack expression language permits because it LOWTHER, Dean A. Defendant judges loosely alimony. award For Appellant. years, I distin- have written and tried to No. 15984. guish conceptual un- ‍​‌‌‌‌​‌​​‌​​​‌​‌‌‌‌​​​​‌‌‌​‌‌‌‌‌‌​​‌​​‌‌​​‌‌​‌​‌‍theory/reasons derlying alimony, Supreme an award of rea- Dakota. which Court South type alimony sons create the or not Argued Oct. 1988. you pursue general, If a be awarded. Decided Jan. 1989. misty, sweeping viewpoint towards an riveting in alimony, award of without Rehearing Denied Feb. award, purpose the facts and the as judgе lawyer, you get or Justice caught conceptual trap. in a I am further being

opposed alimony to these awards of upon secondary

based the citation of au-

thorities, such as a statement in a broad True,

treatise like C.J.S. or Am.Jur.2d.

they respectable are indeed authorities. cases,

However, awards, alimony like all case-by-case analy-

must be based general should

sis. These statements research, beginning not the end.

Relying encyclopaedias, bog you can stifling specifics It of an issue.

down— case-by-case analysis can obscure the brief, Pierre, plaintiff appel-

on the lee. Vermillion, McCulloch,

James E. for de- appellant. fendant and WUEST, Chief Justice. Defendant, Lowther, appeals Dean his degree conviction of second arson and insurer, burning contrary to defraud an 22-33-4,2 22-33-21 and SDCL SDCL re- spectively. We affirm. 1, 1986, January destroyed

On fire de- fendant’s mobile home located Vermil- lion, subsequent A South Dakota. investi- gation by Deputy State Fire Marshall Dar- (Fodness) rell Fodness and Vermillion Fire Doug (Brunick) Chief Brunick determined the cause of the fire to a small electric During investigation, fan. defendant’s searched, fire-damaged mobile home was seized, physical photographs evidencе was taken and witness statements were were cooperated Defendant with the obtained. investigative by guiding efforts Fodness through premises and Brunick questions. answering all Defendant subse- fire and quently notified his insurer of the compensated for his losses. was purchased Defendant another mobile shortly thereafter. home Vermillion destroyed by This home was also mobile morning 1986. fire on the of December suspected promptly arson and noti- Brunick De- and the Vermillion Police fied Fodness partment. the afternoon of December On A1 Hoff Brunick and Detective (Hoff) fire-damaged mobile searched revealing the cause home for evidence floor sam- They carpet seized the fire. along physical ples This search was again photographs. took Defendant conducted without a warrant. investigation and ar- notified of the was Gen., Atty. Robert Kern Asst. Janine shortly after the search at the scene rived Hanson, Legal In- Hopper voluntarily accompanied and Michael began. He then questioning. Gen., police terns, Atty. station Roger Tellinghuisen, A. Hoff 22-33-2, provides: "[a]ny person 22-33-4 who in- 2. SDCL Under SDCL 1. tentionally to be sets fire to or burns or causes injure Any or de- person who with intent to any occupied under circum- burned structure burns or insurer sets fire to or fraud an personal any would not amount to arson real or stances which to be burned causes kind, property of degree guilty prоperty of arson in the second whether first another, property is in- degree degree. second is a Class himself or of Arson fire, felony. guilty of a Class sured felony.” prem- reentered the June defendant rein- Brunick and Fodness On was They again degree January seized dicted on two counts of second ar- ises on physical including burning an electric son and two counts of to defraud blan- arraigned He ket. This was also conducted with- an insurer. on June search at which time the trial court was out warrant. informed that defendant’s bond was still by Clay County indicted Defendant was posted from the first indictment. Jury Grand on two counts first defendant, burning having to de- The state and refiled arson3 and two counts of presented 1987. all of the the first fraud an insurer on motions after indictment, charges again appeared These arose out of the fires which before the Hon- destroyed hearing his two homes. Defend- E.W. Hertz for a motions mobile orable July again grant- appeared ant on this indictment on 1987. The trial court 23, 1987. ed defendant’s motion for severance of II Counts from Counts III and IV. May parties appeared On The trial court also ruled that the state was Hertz for a before Honorable E.W. prohibited eliciting any from admissions hearing Among on a number of motions. by interest made defendant before granted by defendant’s motions the trial introducing independent corroborating all (1) during hearing court this were motion evidence of the fires. II to sever for trial Counts I and (2) response sup- III and a motion to Counts IV4 defendant’s renewed motions, require indepen- pression the state to set forth all the state called Brunick corroborating testify regarding dent evidence of criminal ac- and Fodness to tivity introducing any admissions searches conducted after both fires. The investigator have been made defendant. state also called an insurance testify investigation The trial regarding court also ruled that evidence of considering fire could be introduced as a December fire. After all the prior testimony, bad act at the trial for the fire occur- evidence and the trial court December, ring though again granted suр- even the counts defendant’s motion to relating press pursuant to the two fires had been severed. the evidence obtained searches after the December conducted A hearing second motions held on was court, however, fire. The trial denied de- May During hearing, 1987. this suppress fendant’s motion to the evidence granted trial court defendant’s motion to obtained after the fire. In so do- suppress all evidence as a result obtained ing, rejected the trial court defendant’s of the searches of defendant’s two mobile finally contention that this issue had been suppressed homes. The trial court also previous at determined motions hear- during observations made Brunick ings. suppress Defendant’s motion to evi- premises an examination of the an with pursuant dence seized to a search warrant investigator. insurance At the conclusion issued was also denied. hearing, of this the trial on its own This evidence was from the obtained mobile motion, dismissed the indictment without damaged by home the December fire. prejudice the evidence insuffi- because was jury degree cient to instruct filed a first Defendant also motion to dismiss 23A-44-5.1,5 arson. violation SDCL the so- "Any person intentionally provides: 3. who sets fire to or 5.SDCL 23A-44-5.1 any occupied burns or causes to be burned prosecution dispose shall of all criminal structure, knowing occupied the same to be contendere, guilty plea cases or nolo time, guilty degree. of arson in the first eighty dismissal within one hundred degree felony.” in the first is a Class 1 Arson days from the date the defendant has first SDCL 22-33-1. judicial appeared before a officer on the com- plaint Any period delay or indictment. good 4. Counts I and II of the indictment relate to the shall be excluded if the trial court finds delay. prose- December fire and Counts IV III and relate to cause for the In the event of the occurring January. dispose the fire cution's failure to of the action within case, posed of his his conviction for second 180-day rule. The trial court denied called motion, reasoning burning the indictment this arson and to defraud an a new degree arson constituted of second insurer must be reversed and he must be Therefore, a charge against defendant. discharged respect to those crimes. 180-day period began upon his first new disagree. We appearance on June recently adopted This court a two- Defendant was convicted on Counts determining part 180-day test for when the fire). (December and II of the indictment begins period to run in a situation where an imprison- years He was sentenced five initial indictment has been dismissed and penitentiary state for second ment subsequently the defendant is reindicted. years degree arson and two and one-half Tiedeman, 433 N.W.2d 237 See State burning defraud an imprisonment for test, two-part Under this insurer, сoncurrently. to run said sentences begins 180-day period to run anew raises six is- appeal, defendant On (1) reindictment the earlier indictment (1) properly the trial court sues: whether properly by competent ju dismissed his motion to dismiss for violation denied dicial officer and the record does not 23A-44-5.1; (2) the trial SDCL whether prosecutorial attempt reveal evidence of a relitigated and issues properly facts 180-day (citing rule. circumvent Id. July during hearing on the motions Davies, Pa.Super. 342 Commonwealth v. 1987, issues had after the same facts and (1985)). 318, 1139, 1141-42 492 A.2d See hearings at motions on been considered Fisher, (Iowa 351 798 also State v. N.W.2d 29, 1987; (3) May May 26 and whether Jackson, 1984); 645 S.W.2d 725 State trial court to sever for proper for the was Mills, (Mo.App.1982); 307 N.C. III I and II from Counts trial Counts (1983); 504, 299 203 v. Ste S.E.2d yet regarding allow evidence IV and 361, App.2d 370 759 phans, 52 Ohio N.E.2d as severed counts to be used at trial evi- (1977); Whiting, 509 Commonwealth acts; (4) whether defend- dence of other (1985); 806 Pa. 500 A.2d Common extrajudicial statements relevant ant’s Simms, 509 Pa. 500 A.2d 801 wealth v. by January properly fire were admitted “ (1985). court; ‘[Pjroper dismissal’ includes a (5) whether the trail court the trial prima out a sup- dismissal for failure to make denying erred in defendant’s motion to January preliminary hearing.” Tie press seized after the facie case at a fire; deman, whether the search warrant at 239. Prosecutorial 433 N.W.2d May 180-day issued ‍​‌‌‌‌​‌​​‌​​​‌​‌‌‌‌​​​​‌‌‌​‌‌‌‌‌‌​​‌​​‌‌​​‌‌​‌​‌‍on was valid. rule is most circumvention of the expedient en frequently by evidenced сontention, claims In his first defendant 6 original on the tering prosequi of a nolle prescribed by 180-day period against the defendant and sub indictment began to run from the 23A-44-5.1 SDCL reindicting him on the same sequently hon- appearance his first before the date of charges. Stephans, 370 N.E.2d at 766. judge the first indictment. on orable prosecution voluntarily termi Where the period He further contends that this was attempt an nated and the record shows by the trial court’s dismissal of not tolled manipulate requirements the 180- run indictment and that it continued to computed rule, period will day the time through from June appeared the date the defendant be De- though charges pending. no were even original indict judicial officеr on the 180-day fore a that since the fendant concludes A.2d at 808. Whiting, ment. 500 expired prosecution dis- period information, section, particular can by required bill the time limit proceed- permit a revival of action shall be dismissed. be retracted to time required SDCL The dismissal 23A-44-5.1 ings original Whit- bill or information.” on the Hoffman, prejudice. State v. a dismissal ing, See also Black’s Law 500 A.2d at 807. (S.D.1987). N.W.2d 376 409 (5th 1979). Dictionary ed. prosequi voluntary is a withdrawal 6. "A nolle attorney proceedings prosecuting on a case, (1972). present

In the the trial 199 N.W.2d 295 We therefore hold motion, properly properly on its own dismissed the that the trial court could reconsid- suppress initial indictment for lack of sufficient evi er defendant’s motion to prima regаrding January dence to establish a facie case of fire. Nothing in first arson. the record alleges third Defendant’s contention er- sought indicates that the state to have this allowing ror on behalf of the trial court for indictment dismissed and then reindicted into trial evidence of the fire. merely defendant to avoid sanctions This evidence was introduced as other acts fact, SDCL 23A-44-5.1. In defendant was evidence, although previ- the trial court had ultimately reindicted and convicted ously charges relating severed for trial the charges that differed from those set forth relating fire from those December original During peri indictment. fire. Defendant claims that he original od between the indictment and thе unduly prejudiced by the trial court’s reindictment, defendant was neither incar admitting previous evidence of the fire. prose cerated nor threatened with criminal crimes, wrongs Evidence cution. We therefore hold that the indict prose or acts is in a criminal inadmissible ment defendant ceased to have le impermissible cution to establish the infer gal effect its dismissal the trial ence that since defendant committed a 180-day peri court. The calculation of the occasion, similar offense on another he has began od under SDCL 23A-44-5.1 anew propensity charged. to commit the crime

upon reindictment. Champagne, State v. N.W.2d We next examine defendant’s con (S.D.1988). Dokken, also See State v. tention that the trial court erred in relit- (S.D.1986); Thomas, N.W.2d 493 State v. igating during facts and issues the motions evidence, Such hearing July 29, 1987. Defendant es however, may be admitted if it is relevant sentially argues that once the facts and issue, motive, oppor to a material such as regarding issues suppress his motion to intent, tunity, preparation, plan, knowl January evidence of the fire were deter edge, identity, or absence of mistake or hearings mined at the May motions on 26 19-12-5; accident. SDCL Champagne, 29,1987, May granting and the trial court’s 842; Dokken, 422 N.W.2d at 385 at N.W.2d judicata.”7 his motion became “res 112, 497; Wedemann, State v. 339 N.W.2d

We defendant’s believe contention is un- 115 Before “other acts” evi admitted, Although original- founded. the trial court dence can be the trial court must ly suppression the only ordered of evidence not determine that the evidence is fire, relevant, January seized after the no probative final order also that its but value writing, signed duly substantially outweighs prejudicial was reduced its ef by filing. required Kerkhove, 160, recorded Orders are fect. v. 423 State N.W.2d writing (S.D.1988); may because the trial court 162 Champagne, 422 N.W.2d change ruling 842; Thomas, signed its before the order is at If 381 N.W.2d at 237. the and entered. Exports proffered Lutz v. Iowa Swine other acts evidence meets the 109, (Iowa 1981). Corp., 300 111-12 two-part relevancy prejudicial N.W.2d test for reason, effect, For rulings though unrecorded on mo- it be admitted even it tions are ineffective need not be con- relates to a crime that has been severed for Johnson, 1069, sidered at a later date. at Id. 111. See trial. v. 748 P.2d State Brown, 515, (Utah 1987). Mich.App. also Hosner v. 40 1075 judicata apply previous 7. Defendant also claims that the trial court’s The rules of res rul- May rulings ings 26 and became ‍​‌‌‌‌​‌​​‌​​​‌​‌‌‌‌​​​​‌‌‌​‌‌‌‌‌‌​​‌​​‌‌​​‌‌​‌​‌‍in an action on a similar determination in Scott, Although principles subsequent Or.App. the "law of the case.” the a 386, action. State v. 68 1188, judicata (1984). of the present law of the case doctrine and res 681 P.2d 1190 In the judicata. similar, case, application apply are their differs. The law we the rules of res Be- previous of the case rule involves the effect of a cause defendant was second reindicted on de- arson, ruling gree separate within one action on a similar issue this action is from that subsequently arising law raised within the same action. first his indictment.

753 that cannot find that repeatedly has stated the trial court abused its This court ac connect an fact that tends to “[a]ny admitting discretion this evidence.8 The of a crime cused with the commission surrounding facts and circumstances the probative value.” State relevant and has fire certainly were relevant. (S.D.1986); Sieler, N.W.2d 92 v. 397 a similar sequential relationship There was Shell, 336 374 N.W.2d State v. Iron between fire and Decem- Johnson, (S.D.1983); 316 N.W.2d State early fire. Both in the ber fires occurred O’Connor, (S.D.1982); 84 654 State v. morning hours when mobile homes (1969). 172 N.W.2d S.D. cases, point unоccupied. In were both Furthermore, prejudicial of such effect origin of the fire’s a hole which burned damage not mean evidence “does through appli- the floor with an electrical legit opponent’s case that results from nearby and the ance use of accelerants was evidence; rath probative force imate suspected. had Defendant insurance on er, advantage the unfair refers to contents and both structures their col- capacity evidence results from the proceeds insurance lected after Janu- illegitimate Kerk persuade by means.” ary suggest fire. These similarities mo- hove, (quoting at 423 N.W.2d tive, plan, preparation, knowlеdge, and ab- Holland, (S.D.1984)). 346 N.W.2d sence of accident. pro process balancing The delicate prejudicial effect bative only properly value The trial not deter- of the trial is within the sound discretion relevancy acts mined the of the other evi- 163; Kerkhove, 423 at court. N.W.2d dence, correctly but also decided that its Sieler, 842; Champagne, N.W.2d at substantially value exceeded the probative We will disturb the at 93. not N.W.2d effect. not doubt prejudicial We do abuse trial court’s decision absent a clear January fire concerning the had Champagne, 422 N.W.2d discretion. impact defendant’s an adverse case. 842; Grooms, 399 N.W.2d persuade capacity of this evidence to Any Dokkеn, (S.D.1987); at 497. however, means, illegitimate was mini- instructing mized court’s Although proffered acts purposes limited for which the jury on the present regarded a evidence in the case pre- trial, We we could be considered.9 had been severed for crime that Thompson spect So ask Mr. trial court thereto. I will formal order entered concerning thoughts joinder that mo- on all would what his are never stated four counts prejudicial. merely The trial court formalized tion? agreement by parties opposition, is Your Hon- the THOMPSON: No severance MR. indicated as follows: or. well, granted Very motion is COURT: the THE And first motion I want THE COURT: ... the that the just record. That means State the Preju- to talk about is the Motion for Relief for I proceed I under Counts and will think now made which the defendant has dicial Joinder 31, II, fire. Is that that is the December 1986 any you brief Do to make in this case. want clearly understood? on that? remarks Yes, Your Honor. MR. THOMPSON: rest on would like to MR. MCCULLOCH: takes care of that THE COURT: So that it, I have worded Your Honor. the motion as one.... sort of There was some communication 29, 1987) (em- Hearing (July at 2-3 Tr. Motion only you Thompson and I that he Mr. supplied). phasis planning proceeding II of on Count I and trial, at this therefore the indictment and testimony regard- to the introduction of 9. Prior Prejudicial Joinder for Relief from Motion fire, January ing trial court instructed unnecessary, thought just to but I would be jury as follows: everybody the file cleaner and sо that make jury proceeding to instruct THE COURT: want what counts we are would know testimony on, you on that. La- an take make and have I would the motion that gentlemen, is about to be regard. dies and in that Order entered showing well, keep purposes of that Very you may an for the introduced COURT: THE may committed an act or accounting McCulloch, rulings Mr. the defendant have of this which he is now respect your other than that for motions a crime evidence, believed, Now, responsible is you Orders on trial. such be for the since will may be considered required re- received not entered with not that 754 limiting jury Although

sume followed this criminal involvement. this evi- that 94; Sieler, conclusive, 397 dence was not it met the instruction. N.W.2d suffi- 390, 396, cienсy in Reddington, 80 S.D. 125 standard set forth Bates. Be- 58, (1964). Because the trial cause the and the N.W.2d 62 Best Bates “tests” were satisfied, weighed prejudicial effect of the we cannot conclude that the trial carefully admitting in proffered evidence and fashioned court erred defendant’s extra- limiting jury, judicial a instruction to the we cannot statements. conclude of discre- that there was an abuse Defendant’s next contention is that the admitting

tion in this evidence. denying in trial court erred his motion to suppress evidence seized Brunick and We next consider defendant’s claim Fodness after the fire. Defendant extrajudicial regarding that his statements pursu- claims this evidence was seized improperly admitted firе were ant to an unconstitutional search. We dis- by the court. Defendant contends that the agree. state failed to set forth sufficient corrobo it rative evidence before introduced his ad constitutionality The of a warrant- missions. entry fire-damaged premises less onto Best, 227, 235, legitimate In on the privacy State v. 89 S.D. turns existence of 447, (1975), property. Michigan stated that in such we interest (1) 287, 292, “corroborating 641, must Clifford, show the 464 U.S. 104 S.Ct. loss, (2) 477, injury (1984). of an legiti fact fact of 78 L.Ed.2d The responsibility macy privacy someone’s criminal for the of this interest determined injury (1) two-prong or loss. These two elements have test: whether the de comprise ‘corpus held to subjective been delicti’ fendant has exhibited an actuаl (2) purposes requiring expectation privacy the rule such and whether soci ety willing expectation corroboration.” We also set forth level to honor this as being Katz, to which must corroborative evidence rise reasonable. United States v. Bates, 76 S.D. 71 N.W.2d 641 389 U.S. S.Ct. (1955). Bates, stated, (1967)(Harlan, J., In we evi- L.Ed.2d 587-88 con “[t]he delicti, corpus independent curring). dence of of ex- accused, trajudicial admission of the need Supreme Clifford, Court stated not be conclusive character. Nor must privacy expectations fire-damaged independent such that evidence be (1) according premises vary the owner’s prove alone be sufficient to the crime be- premises efforts to sеcure the

yond a reasonable Id. at doubt.” prior premises. and continuous use of the N.W.2d at 644. Clifford, 464 U.S. at 104 S.Ct. at corroborating evidence in the at 483. L.Ed.2d The Court held that present pre- case meets both elements “where a homeowner a reason- has made Through testimony fire-damaged scribed Best. able effort to home secure his Podness, ..., subsequent postfire the state established that a loss search must be warrant, consent, probable pursuant had and that there occurred conducted to a you prove person finally, that he is a of bad charac- a the of the motive for commission ter, disposition charged. only things or that he has to commit the crime Those are thе that particularly type applies crime. And the crime of which this to. You are not of evidence charged. required he is Such evidence is received and this evidence and wheth- consider may by you only you your be considered for the limited er a matter within do so or not is purposes determining may province. if it tends to show own exclusive You not consid- method, following: ‍​‌‌‌‌​‌​​‌​​​‌​‌‌‌‌​​​​‌‌‌​‌‌‌‌‌‌​​‌​​‌‌​​‌‌​‌​‌‍plan any tending respect the A characteristic er it as to show in guilt or scheme in commission of criminal acts the of the with which the defendant’s offense method, plan charged. similar to the or scheme used in he here stands right, applies the commission of the offense this case. All now that to all evidence intent, you going The existence of the which is a neces- that to listen to now from are sary charged. point element of the The iden- crime forward which involves an incident that crime, 1, tity person happened right. of the who committed the 1986. All any, of which the defendant is accused. And Trial atTr. 351-53.

755 evidence, exigen- upon suppressed of some new remained val identification or the 297, 468, 104 at 78 L.Ed. A Id. cy.” S.Ct. id. search if the issue warrant lawfully by at 486. 2d obtained facts themselves es v. probable Guil tablish cause. case, is no present In the there beault, 593, (Neb.1983); 336 N.W.2d 597 any attempt that defendant made indication Welsh, v. 60, 214 Neb. 332 N.W.2d fire-damaged home. secure his mobile 685, (1983). 688 any premises extent were “se To cured,” depart the fire this was done (Weiker I), v. State Weiker 279 In public safety purposes. There is ment for 683, (S.D.1979), stated, we defendant intended also no indication that of information is not to be “[s]talensess using fire-damaged premis to continue solely by computing length determined Instead, in es. conduct evidences an his delay of the upon between the events relied property in which he tent to abandon the and the issuance warrant.” The test privacy interest existed. If now claims for staleness of is “whether information expectation indeed held an defendant presented from the facts it is reasonably fire-damaged premises, we privacy probable that the be seized are items expectation sеe how his could be cannot premises.” still on the State Weiker reasonable. (Weiker II), (S.D.1983), 342 N.W.2d defendant exhib- Even if we assume that denied, cert. U.S. S.Ct. expectation privacy ited a reasonable I, (quoting 79 L.Ed.2d 747 Weiker home, fire-damaged his mobile his conduct 685). 279 N.W.2d at during stages investiga- of the the various warrant, issuing magis- Prior to implied tion that he consented to the war- testimony trate heard Brunick and a guided Brun- rantless search. Defendant police They officer. Vermillion testified through premises, ick and Fodness nearly that home was in mobile items answered all pointed out various same condition which it had been left Although never questions. their defendant police after the December fire. The officer search, coop- expressly consented to the his activity also that he had no stated observed investigative implied in the efforts eration vicinity in the home over the mobile that no warrant was needed. See United preceding six months. There is indica- no Buettner-Janusch, 646 F.2d 759 States v. sought tion in the record that the evidence Griffin, (2d Cir.1981); United States premises. state was not on the (7th Cir.1976). F.2d For the aforemen- light general rule facts and these reasons, tioned we hold that the trial court possible “every that reasonable inference sup- properly denied defendant’s motion to support drawn the determina- should be press seized after the probable magis- tion of cause made fire. (State Wielgus, trate” 278 N.W.2d contention, In his final defendant (S.D.1979)), we conclude that the search warrant claims obtained search was valid. warrant was invalid. Defendant ar decision of the trial court We affirm the upon gues that the warrant was based evi aspects. in all already suppressed had been dence which other facts JJ., MILLER, concur. MORGAN and affidavit was based were stale due passage of time. SABERS, JJ., HENDERSON is un- believe defendant’s contention

We dissent. supported by the record. The warrant was HENDERSON, (dissenting). Justice Brunick’s at the upon based observations supporting can there be What rationale in line of time of the fire and while the (a) severing counts one and two for trial sup- not duty. His observations were (b) proceeding four and from threе and pressed after defendant was reindicted. the place the severed counts before partially if based then Even the warrant was importance applica- and Deci- tion reinforced the “prior acts”? in form of bad jury the admissibility of evi- act” or “crime.” bility and of the severed “bad on severance sions work, glove, instruction, in and limiting like hand found in dence should The so-called Here, we each other. empha- consistent majority opinion, the footnote 9 of must be inconsistency. Discretion have an jury could consider “bad sized that evidence, exercised, upon specific purposes reason and separate, based four for act” logic no rеason or behind and there can be upon alleged crime which pertaining admissibility preclude severance—to charged. Actually, —and not the defendant was go permit the evidence then off than had the the defendant was worse self-defeating it defeats the jury. It is severed, for the State was counts not been grant of the sev- purpose entire behind it did not have to position in a where now must re- in first instance. We erance beyond fire prove grant a judge did that the trial member be- As have written reasonable doubt. from counts one and two to sever motion cleave, fore, nicely like a jury cannot trial counsel three and four because counts scalpel, the surgeon with prejudicial try all that to them for defendant insisted Seeking compart- nonprejudicial. “prejudicial joinder.” together would mind, jury’s within a mentalize evidence for Re- captioned “Motion His motion was instruction, theory; in might work how- Prejudicial Joinder.” lief from ever, jury practical effect is that opinion, there has been an abuse my evidence, in damning a case with hears this of permitting in evidence of discretion this, as and considers it circumstances such trial, counts, severed for these which were limiting instruction. notwithstanding the doubt, the Janu- to be admitted. Without to the minori Hereby, reference is made ary 1986 fire and December Jenner, 434 N.W. ty viewpoint in v. for trial. Our standard fire were severed J., (S.D.1988)(Henderson, dissent 2d to determine the trial court of review is of dis compilation an abbreviated ing), for admitting the evi- its discretion abused author, pertaining all by this sents Dace, 333 N.W.2d dence. State joinder/sever prejudicial of subject specific (S.D.1983). the trial We must assume that ance. severance, is left to granted the trial court’s discretion under State join the rationale Justice Sabers (S.D.1985), Closs, after it 366 N.W.2d his dissent. balancing in a involved its consideration consideration of SABERS, interest which included (dissenting). Justice Andrews, 393 prejudice. this author that It strikes AD- TRIAL ERRED IN THE COURT judge honestly fairly believed the trial THE JANU- EVIDENCE OF MITTING prejudicial con- that there was an obvious THE TRIAL ON CHARGES ARY FIRE IN together. counts Not- trying flict in these AFTER THE FIRE FROM DECEMBER changed its withstanding, the trial court GRANTING SEVERANCE. trial, per- mind, during the course part: 23A-11-2 statеs SDCL to be infused prejudicial mitted 14) (Rule preju-

into the trial. Relief from 23A-11-2. joinder of offenses or defendants. dicial limiting contained in foot- instruction or the appears that a defendant If it given by the majority opinion, note 9 of joinder of of- prejudiced by a state is try to wash clean trial indictment defendants an fenses or of em- trial court was about to fact that the joinder such or information or which, receiving in ab- bark may order an together, the court effect, limit- severed. This solute had been counts, separate trials of election or ing could not have erased instruction pro- defendants or grant a severance from the prejudicial effect of this evidence justicе re- other relief vide whatever of this mind the circumstances jury’s under fact, quires. point limiting instruc- case. In grant lenge any purported finding is proba- Whether to severance left to that the Closs, 366 substantially trial court’s discretion. State v. outweighed tive value (S.D.1985). It N.W.2d 138 involves a bal- danger of unfair prejudice. May In the ancing of interests that includes considera- hearing severance the trial granted court Andrews, prejudice. tion of State the motion “to save time” of the because (S.D.1986). N.W.2d 76 in “difference witnesses” and to avoid “confusing II and jury”

Lowther moved to sever Counts I and stated: III request from Counts and This was IV. evidence they will accumulate and [T]he Preju- captioned: “Motion Relief from for difficulty have distinguishing ... [will] mo- three-paragraph dicial Joinder.” The belongs which to which transaction.... tion to prejudicial claimed that it would be particular probably this case it im- [I]n try the December fire with the poses an undue burden the defense granted. Despite fire. The motion was prepare having counsel to for two of permitted ruling, this the trial court incidents, quite are these involved. State to offer evidence of the fire Obviously, problems this list of constitutes in the trial for the December 1986 fire. prejudice change and did not from the SDCL 19-12-5 states: hearing the July severance severance crimes, wrongs, of Evidence other or acts hearing. prove is not admissible to the character preserved cоunsel clearly Trial record his person of a in he order show that by making a motion in limine in connection conformity may, It acted therewith. acts, prior with these bad and at re- trial however, pur- be admissible other quested reconsideration of the rul- court’s motive, poses, proof opportu- such as of ing, but denied. he have So would not intent, plan, nity, preparation, knowl- jury, object front of the he asked for a edge, identity, or of mistake or absence objection standing other evi- acts accident. dence. provides: SDCL 19-12-3 (S.D. Dixon, In 419 N.W.2d 699 relevant, ex- Although evidence 1988), subject with of dealt probative cluded if its value is substan- of for trial stated: severance counts danger tially outweighed by of unfair developing trend is “the ... [A] issues, prejudice, confusion of the or mis- important most consideration is whether leading jury, of or considerations of one would been offense have time, delay, undue waste of or needless offense, at a admissible presentation of cumulative evidence. omitted). (citations ...” require SDCL 19-12-3 and 19-12-5 a bal- Dixon, ancing supra under at 702. Since the trial court probative of value one of try prejudicial elements in SDCL 19-12-5 the risk found too fires two prejudice trial, of unfair under SDCL together 19-12-3. one it should been have Dace, State v. N.W.2d prejudicial too admit evi- also to bad act one trial of ‍​‌‌‌‌​‌​​‌​​​‌​‌‌‌‌​​​​‌‌‌​‌‌‌‌‌‌​​‌​​‌‌​​‌‌​‌​‌‍dence of fire in the the other. majority opinion apрroves the trial ruling by stating: court’s quoted approval we Dixon weighed prej- Because trial court Hoffman, 106 Wis.2d proffered udicial effect of the stated: in- carefully limiting a fashioned joinder to in- ‘Any apt of offenses jury, cannot struction we conclude prejudice to some volve element was an that there abuse discretion defendant, to feel jury likely since a admitting this evidence. charged a with several [defendant] limiting Although given, a instruction was has crimes must a individual who be bad the trial court to balance the inter- wrong. However, if something done failed ests on the record. involuntary joinder is to retain notion preju- balancing any validity, higher Even of interests had been performed by dice, prejudice, certainty the trial would chal- must relief will be order.’ shown before

[citation omitted]

Dixon, supra 703. persuasively argues

Defense counsel

that: higher

Logic that if a dictates necessary to

prejudice demonstrate severance, and severance is then

need for

granted, prejudice must severe preclude admission sev-

enough to prior as a bad act.

ered counts agree. reverse remand for a would writing.

new trial consistent PICKERING,

Paul Plaintiff S. Appellant,

Jody M. PICKERING Thomas

Kimball, Defendants and

Appellees. 16145, 16150.

Nos.

Supreme Court South Dakota. Aug. 30, on Briefs 1988.

Considered

Decided Jan.

Case Details

Case Name: State v. Lowther

Court Name: South Dakota Supreme Court

Date Published: Jan 11, 1989

Citation: 434 N.W.2d 747

Docket Number: 15984

Court Abbreviation: S.D.