State v. Robideau
262 N.W.2d 52
S.D.
1978
Check Treatment

*1 52 of the meaning within the cause to arrest was one vehicle covered within

the therefore, We, find there was 32-23-1, statute. SDCL for speaks SDCL 32-23-10 support evidence to competent only in sufficient terms of a lawful arrest for a viola at 1024. 535 P.2d the verdict.” tion of 32-23-1. Cf. State v. Hack ney, S.D., 419, 261 N.W.2d January decided State, Alaska, P.2d v. 551 also Jacobson See 1978; 5, 318, v. Spry, State 87 207 S.D. Pritchett, 583, Del. 173 53 935; v. State 504; Klingler, 466, N.W.2d v. State 243, Ruona, 133 Mont. 886; v. A.2d State 173 N.W.2d 275. Schuler, N.D., 243 615; v. State P.2d 321 N.D., 367; Ghylin, 250 v. State N.W.2d Respondent contends that the provi Kelley, 252; v. City of Cincinnati N.W.2d implied sions of the consent statute do not 85; v. N.E.2d Nicolls Ohio St.2d apply being to the offense of in actual 9. Commonwealth, Va. S.E.2d physical control of a vehicle while under the beverage. influence of alcoholic Our recent circum Likewise, objective the all of S.D., Chaney, decision State v. pointed case to the instant stances 16, 1978, January N.W.2d decided held physical was in actual respondent fact however, the contrary, to and we follow he was behind the vehicle: control holding here. no wheel, dozing; there was perhaps albeit vehicle; the motor else in the one Accordingly, judgment appealed from on; lights were running; parking is reversed and the case is remanded with where it could position was in a vehicle directions to reinstate the revoking order street; travel on the easily have resumed respondent’s driver’s license. the motor at the shut off respondent short, respondent was request. officers’ All the Justices concur. in his vehicle under circum position in a supported a find would have stances that vehicle jury that he had driven the

ing by a parked. it was See point

to the where 367; Townsend, S.D., 231 v. N.W.2d

State S.D., decid Boyles, v. N.W.2d

State Perforce, there was December 1977.

ed respondent cause to believe that

probable of his vehicle. physical Dakota, was in actual control STATE of Plaintiff Respondent, Respondent contends that because purportedly driving arrested for ROBIDEAU, James rather than for while intoxicated Appellant. while physical control of his vehicle actual influence, subject he was not under the No. 11886. law. implied sanctions of the consent Supreme Court of South Dakota. True, agree. arresting offi We do not have respondent that “I arrested cer told Jan. DWI, 32-23-1,” a violation of for you limit perceive that statement as we do not statutory authority to re

ing the officer’s submit to a chemical respondent

quire the officer had fact

test. make the arrest that is of cause to

probable wording precise not the

significance, informing respondent of the employed offense, long as the specific of the so

nature probable which the officer had

offense

This is chapter another of the Custer riot incident which occurred in City of Cus- ter in February 1973. See State v. Bad (and High Eagle), 1977, Heart Bull N.W.2d 715. facts,

The salient gleaned from some 2,750 pages pretrial transcripts and trial record, and volumes of reveal that there was a riot in Custer which resulted in ex- property damage personal inju- tensive and ry. equally The record is participated defendant in a melee when persons various Indian forced way their Courthouse; into the Custer County that he possession came forty-inch into of a baton; that, baton, while using this riot engaged in combat with various law enforcement officers.

During grand jury deliberations investi- incident, gating the no one was able to identify the by defendant name. Since photographs, film tape television and video revealed wearing a red banda- head, na around his he was indicted under the name of “Red Bandana Doe.” A slide picture of him was attached to the indict- ment. Defendant was arrested on April arraignment, 1975. At his initial the circuit judge by striking amended the indictment all references to “Red Bandana Doe” and inserting the true defendant’s name of James Robideau. DELAY

PRE-ARREST urges pre-arrest Defendant delay deprived him of his constitutional right to a trial. speedy South Dakota Con VI, 7; stitution, Art. SDCL 23-2-11. He § 30,1973, on August indicted and arrest 1,1975. April ed on The record is not clear time that as to the exact Red Bandana Doe Guhin, Gen., Atty. Pierre, John P. Asst. clear, was identified as the defendant. respondent; William J. plaintiff however, that he was identified June Gen., Pierre, Janklow, Atty. on the brief. 1974,during the time of an American Indi Lafleur, Rapid City, Robert F. for de- (AIM) an Movement conference on the Fort appellant. fendant Mobridge, Yates Indian Reservation near

South Dakota. MILLER, Judge. Circuit The Mobridge conference was attended 2,000 appeals judgment sympathiz- AIM members and con- over of riot while armed. had identified himself viction SDCL 22-10- ers. The defendant authorities affirm. law enforcement 5.We to the state We find Security prejudice Officer” for the confer- that no resulted to the the “Chief defendant in the delay ence. from arrest to trial. Starnes, 1972, See State conference, the law enforce- Early in 244, citing Wingo, 1972, N.W.2d Barker v. that the arrest of officers determined ment U.S. S.Ct. 33 L.Ed.2d 101. time, considering at that the defendant *3 (post-Wounded Knee and Cus- atmosphere FAMILY incidents) large per- the number of RELATIONSHIP BETWEEN and

ter attendance, impractical PROSECUTOR AND would be JUDGE’S WIFE sons effects. would have detrimental Defendant, disqualified who had a conference, different circuit judge, a was asked the Later in the decision trial judge to recuse himself because arrest the defendant at a time he of the fact made to However, judge’s entering a laundromat. wife is a first cousin was seen of one prosecutors. the of the the officers were able to effect before arrest, evade them. defendant was able to 3(C)(1)(d) Canon the of Code of Judicial adopted by Conduct which was

By testimony, the defendant’s own he this court on 26, (see 16-2, November beyond jurisdictional Appx.) the limits of the was the states: of Dakota for sixteen of State large. he was at For at

twenty months “(1) judge A disqualify should himself in states, eight least months he whs in other proceeding impartiali- a in which his eight and for an additional months he was ty might reasonably questioned, be By the Rosebud Indian Reservation. his on including but not limited to instanc- past many he has for the own admission es where: Further, years used several aliases. a rea- interpretation of sonable his “(d) spouse, he or his person or a within would lead us to believe that for several degree the third relationship prior

months to his arrest he knew that he them, either of or spouse the of such being sought participation for his person: a the Custer incident. holding is this court’s that the law “(ii) acting lawyer in the enforcement authorities exercised due dili- * * * proceeding gence attempting to take defendant into caused, custody. Any pre-arrest delay The judge’s prosecutor .was wife and the hav part, by at least the conduct of the ing family a relationship in the fourth de prejudiced defendant. He was not by any gree, and the evidence part conduct on the of the state in that significant there were no social relations regard. them, between judge properly trial re

fused to recuse himself. v. Erick See State POST ARREST DELAY son, 1964, 639, 712; 80 S.D. 129 N.W.2d 1938, Backus, Boyer 701, 282 Mich. before, stated the defendant was As 756, den., 644, N.W. cert. U.S. S.Ct. 1, April on a Following long arrested 147, 416; rehearing 83 L.Ed. denied 305 suppression hearings series of motions and 248, 437; Annot., U.S. S.Ct. 83 L.Ed. like, the trial was commenced Am.Jur.2d, 50 A.L.R.2d and 46 Judges, seems November 1975. The record clear 95, 155. §§ any delays were occasioned or his counsel. defendant DANGEROUS WEAPON assigned Interestingly, defendant has as DETERMINATION VI, with- Assignment

error and we believe merit, given During trial, that he was an insufficient out course of the Immediately prepare judge, time to for trial. be- in reliance on our ruling in State v. requested postponement. Page, a fore the trial 91 N.W. made forty-inch the determination We have thoroughly considered all of the “dan- used the defendant was a baton assignments other of error and find them to jury instructed the ac- weapon” and gerous be without merit.

cordingly. Judgment affirmed. court should claims the riot have determined baton DUNN, J.,C. and WOLLMAN and MOR- dangerous weapon accordingly a not JJ., GAN, concur. granted have his motion to dismiss. should PORTER, J., specially. concurs offer support position and as an proof, the defendant called a Mr. Kevin MILLER, Judge, Circuit sitting for ZAS- Parsons, attempted who as an qualify J., TROW, disqualified. batons. tes- expert witness on riot PORTER, (concurring Justice specially). to the extensively design, purpose

tified *4 The most question difficult for me was principal use of such instruments. The whether the baton dangerous was a weapon is thrust of his was that it a under the strict requirements of State v. designed instrument not be a defensive to Page, 15 S.D. (1902). 91 N.W. 313 admitted, however, weapon. lethal He that Page directly point is and binds us unless is a weapon it which can be an offensive we expressly overrule it. Defendant would weapon capable breaking in- of bones and at guilty most be of misdemeanor riot un- flicting great injury. bodily less the baton came within the felony riot of a Defendant was convicted violation of SDCL terms of 22-10-5. felony makes it for 22-10-5 which a SDCL “ * * * Page makes we may not con- person any participating a sider the method in riot,” riot, alleged which the weap- carry any to “at the time of such on is in the used incident involved. Instead or other species deadly of firearms or dan- ** the trial court must say able to as be a weapon sup- gerous *(emphasis alleged matter law weapon of is a plied) dangerous weapon, per se. As this court “dangerous” Webster defines Page, “ noted felony riot, * * offense of * inju- likely 2: able or to inflict 22-10-5, now not SDCL does involve the ry” use is alleged which made of the weapon “weapon” Webster defines as “1: an in- riot, during but instead is complete in or strument of offensive defensive combat: any where dangerous case weapon is something fight to with 2: a means of carried simply participant, a riot contending against another.” Webster question thus the of whether it is or is not (8th Collegiate Dictionary New ed. © is, used actually Page, as I understand im- Co.) & C. Merriam G. material and not an element. The reason- held, reaffirm, and we Page In we now ing court in Page, this and the wording it is for the court determine wheth- condemning of our statute the carrying the instrument carried is or not a er is weapon, rather than the use of the seems to deadly dangerous weapon contemplated or require dangerous alleged weapon Comes, by the statute. also State v. See something designed be weapon, as a rather N.W. 724. S.D. something designed than some other use capable of as a dangerous used OF CONSTITUTIONALITY a weapon. (Page heavy involved driving RIOT STATUTES whip, long. feet there six The court held as assign- material of arguments The a matter law that it was not a dangerous were statute, ments in this area considered and weapon felony within the now (and 22-10-5.) v. Bad upon Page ruled in State Heart Bull SDCL Under a trial court High Eagle), We supra. may adhere to that not consider the made use of the al- ruling. leged weapon in determining whether it 22- dangerous weapon under a that even if the riot baton is used 10-5, able to find from but rather must be exclusively as a weapon, defensive it is pri- the instrument was

the evidence likely nonetheless to inflict injury. When designed weapon. Page As marily used for it designed what is to be used it notes, using any in a riot kind engaged one only injury not will inflict capable but is of may prosecuted be for some instrument inflicting great bodily injury.1 I think a offense, g., danger- e. assault with a other finding crucial is whether or not it is a kill, with weapon, ous or assault intent weapon and primarily designed for use as offense, it is for the etc. As to such other made, finding such. Once that it seems the manner in which jury to decide whether implicit that a further finding, which cer- actually during the instrument used case, tainly is factual in this weap- question the incident in made the instru- may great bodily injury, inflict is un- dangerous weapon. ment a questionably sufficient to meet the require- Page, supra, Page, at 91 N.W. at ments of and the applicable riot stat- quotes ute, Webster’s definition of court SDCL 22-10-5. “weapon” as an “instrument of offensive or join opinion I in the Judge Miller for ” combat; . . . The court defensive affirmance. quotes defining “weapon” as also Bouvier an “instrument of offensive or defensive trial, expert At defendant’s wit-

combat.”

ness Kevin Parsons testified on cross-exam-

ination: Well,

Q designed you it is said basical- — ly weapon, as a correct?

A Yes Dakota, STATE Plaintiff Q any Is there other use for this other Respondent, weapon? than a Any A other use for the baton? CUMMINGS, Elmer John Q For the baton. Appellant. A No. testimony strongly It is true Parsons’ No. 12044. designed

indicates that the instrument is Supreme Court of South Dakota. that, weapon, accepting a defensive weapon nevertheless comes within the defi- Jan. 1978. approved Page quota- nition since the tions from Webster and Bouvier in Page weap-

indicate both offensive and defensive by the

ons are covered statute. proper

It was also to consider that initially

baton was carried a law enforce- important

ment an part officer as time when he

equipment going at a duty.

potentially strong hazardous This is designed weapon,

evidence it was arguendo weapon.

even a defensive plain

seems from the total may incapacitate testified on direct examination: “The an individual but which weapon designed expose bony permanent damage.” (Emphasis to be used to will not leave body, added) areas of the nerve centers or muscle groups, areas which will control an individual