State v. Moves CampState v. Moves Camp
- Reporters:
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- Before:
- Henderson
PROCEDURAL HISTORY/FACTS
This is a criminal appeal from a judgment finding Vernon Moves Camp (defendant), guilty of escape and being a habitual offender. We affirm.
On August 3, 1983, defendant, while a prisoner of the South Dakota State Penitentiary, left the work program at the State Fairgrounds in Huron, without lawful authority. On April 9, 1984, an indictment was filed charging defendant with escape.
On November 20, 1984, after trial before a jury, defendant was found guilty of escape. After returning its verdict, the jury was excused and dismissed. Thereafter, defendant renewed his request for a jury trial on the habitual offender offense. Defendant was informed of his rights to appeal but no proceedings in the form of a further arraignment on the habitual offender charge were held.
On December 11, 1984, defendant’s jury trial on the habitual offender charge was held. A jury of twelve was empaneled but the voir dire selection of the jury was not requested by either counsel to be transcribed. Neither defense counsel nor the defendant objected to the jury panel and no objection was made. Four members of this jury also sat on the jury which found de-’ fendant guilty of escape. A jury selection sheet, in the record, does not reflect the exercise of any peremptory challenges or challenges for cause.
Through preliminary comments, instructions, and closing arguments of counsel, the jury was informed that the issue for their resolution was whether defendant was the same person who had been convicted on May 30, 1978, of first-degree robbery and aggravated assault. The jury returned and signed two of the four verdict forms submitted to them, which stated in relevant part: We the jury “find the Defendant guilty of the prior felony of aggravated assault on May 30, 1978,” and we the jury “find the Defendant guilty of having previously been convicted of the offense of first degree robbery on May 30, 1978 ....”
Judgment of Conviction and Sentence was entered on December 13, 1984, finding defendant guilty of escape and being a habitual offender. Defendant was fined $15,000.00 and sentenced to serve fifteen years in the South Dakota State Penitentiary, said sentence to be served consecutively to previously imposed sentences. Defendant now appeals.
DECISION
I.
WAS DEFENDANT’S ARRAIGNMENT ON THE HABITUAL OFFENDER CHARGE A NULLITY BECAUSE IT WAS HELD PRIOR TO HIS CONVICTION ON THE UNDERLYING CHARGE? IT WAS IRREGULAR, WE
Defendant contends that because he was not arraigned on the habitual offender charge
after
his escape conviction,
When an habitual offender information has been filed, after a finding of guilty on the principal offense, an admission or denial shall be made and, if necessary, an election on a jury trial shall be made on the habitual offender information. Any trial may be had to another jury, at the request of the defendant. (Emphasis supplied.)
This Court has held that the statutes providing for the enhancement of criminal penalties under the habitual offender act, SDCL ch. 22-7, must be strictly construed,
see Black v. Erickson,
86 S.D. 86, 90, 191 N.W.2d 174, 176 (1971), and
Application of Abelt,
82 S.D. 308, 312, 145 N.W.2d 435, 437 (1966). We believe such a strict construction is appropriate for
In the present case, defendant was arraigned on the habitual offender charges prior to conviction on the underlying charge. At this arraignment, he waived the reading of the information; was informed of his constitutional rights; informed of the nature of the offense and the elements to be proved; informed of the burden of proof; informed of the possible penalties; informed of the consequences of a guilty plea; and informed that if he was not convicted of escape, the habitual offender charge would be meaningless. Defendant pleaded not guilty and requested jury trials. After conviction on the underlying offense, defendant, although not re-arraigned, again asserted his innocence and requested a jury trial on the habitual offender charge. Under these facts, we hold the failure to arraign defendant after the conviction of escape, did not constitute reversible error. It was an imperfection but did not preclude appellant from a fair trial. Tribitt, 327 N.W.2d at 135.
II.
BY VIRTUE OF THE TRIAL COURT’S FAILURE TO INFORM DEFENDANT OF HIS STATUTORY RIGHT TO A TRIAL BEFORE ANOTHER JURY ON THE HABITUAL OFFENDER CHARGE, IS HIS CONVICTION THEREON VOID? WE HOLD IT IS NOT.
As hereinbefore recited,
Defendants must be informed of their right to remain silent, their right to confront and cross-examine witnesses, their right to a jury trial in the county of the criminal act, and the nature and consequences of a guilty plea, in order for a waiver of those rights and a plea of guilty to be valid.
Nachtigall v. Erickson,
85 S.D. 122, 128, 178 N.W.2d 198, 201 (1970);
State v. Sutton,
317 N.W.2d 414, 415 (S.D. 1982). We perceive no violation of any
“Boykin
rights,”
see Boykin v. Alabama,
395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The statutory right, upon a defendant’s request, to a trial before another jury on the habitual charge,
III.
WAS DEFENDANT DENIED HIS RIGHT TO A TRIAL ON THE HABITUAL OFFENDER CHARGE BEFORE ANOTHER JURY? WE HOLD HE WAS NOT.
Defendant asserts that because the jury which decided the habitual offender charge contained four persons who were also jurors on the escape charge, he was denied his statutory right under
IV.
DID THE JURY FIND DEFENDANT TO BE THE SAME PERSON AS ALLEGED IN THE HABITUAL OFFENDER INFORMATION? WE HOLD THAT IT DID.
As outlined in the facts above, the jury signed and returned two guilty verdict forms which stated, in substance, that defendant was guilty of committing two prior felonies. Defendant contends that because the forms did not specifically state that he was the same person who had been previously convicted of aggravated assault and first-degree robbery, the jury did not decide the issue posed by the habitual offender information.
The sole issue in habitual offender cases is whether the defendant “is the same person as alleged in the habitual criminal information[,]” i.e., whether the defendant is the same person who was convicted of committing prior felonies.
Affirmed.
MORGAN, J„ WUEST and HERTZ, Circuit Judges, Acting as Supreme Court Justices, and PATTERSON, Circuit Judge, concur. PATTERSON, Circuit Judge, sitting for FOSHEIM, C.J., disqualified.