*1 Falls, at a house in Sioux South Dakota. Dakota, expressing of South Plaintiff After STATE an interest in obtaining a Appellee, ride on Harley-Davidson motorcycle, she Winters, was introduced to who owned such a motorcyle. agreed The victim go WINTERS, Randy Defendant with Winters for a ride pair even- Appellant. tually stopped at Wall Lake. Winters and No. 15354. the victim lakeshore, walked down near the sat cigarette, down and smoked a after Supreme Court of South Dakota. which, according victim, Winters at- Argued April tempted to kiss her. She testified that she July Decided resisted Winter’s advances but to no avail.
The victim subsequently testified that Win- ters threatened to drown her in the lake unless she submitted to sexual intercourse with him. incident,
After the victim was presented with the choice between walking back to accepting Sioux Falls or a ride with accepted Winters. She a ride with Winters dropped and was off party. near the At dropped off, time she was the victim claims that Winters told keep quiet her to or that somebody would come out of the dark and slit her throat. Several witnesses testified that the victim entered the house hysterical state and was unable to relate what had occurred nearly for one- half hour. After the victim told of the attack, police officers were called and the victim was interviewed and taken to a local hospital. A swab taken from the victim presence indicated the of seminal fluid which was later matched to the blood char- acteristics of Winters. trial, Mayer, Gen.,
Robert E.
At
Atty.
solely
Asst.
Winters relied
on an alibi
Pierre,
plaintiff
appellee;
Roger
A. defense.
originally
contended that
Tellinghuisen,
Gen., Pierre,
Atty.
on brief.
the offense was committed at 12:45a.m. on
day August, 1985,
the 9th
but informed
Jorgensen,
Falls,
Steven L.
Sioux
for de-
9, 1985,
the defense on December
appellant.
fendant and
offense in fact
p.m.
occurred between 11:45
MORGAN,
and 12:30
Partially
as a result of this
Justice.
disclosure, the trial was continued at Win-
(Winters)
Randy
Defendant
ap-
request.
ters’
deny
Winters does not
meet-
peals first-degree
his conviction of
ing
giving
the victim or
her a ride on his
rape by the trial court. We affirm.
denies,
motorcycle.
however, being
He
Winters was tried and convicted of first-
raping
Wall Lake and
the victim.
degree rape stemming from an incident
Lake,
showing
There is no affirmative
that occurred at
Wall
South
August
evening
1985. On the
record that Winters
ever
August 8,1985, the
party
charge
first-degree
victim attended a
rape.
At the
*2
trial, however,
arraign
per
the trial court
sal. Failure to
is not
se a
of the
outset
constitutional violation.
stated:
law,
held,
process
Winters,
your
Due
of
this court has
at the time of
ar-
Mr.
require
adopt any
does
the state to
not
raignment in
matter the Court ad-
this
particular
procedure,
long
form of
so
as
you had a
you
vised
that
appears
it
that the accused has had suffi-
public
by
jury.
court or
speedy,
trial
of the
cient notice
accusation and an
you
in
that
desired to
And that
the event
adequate opportunity to defend himself
jury
have a
trial on this matter before
prosecution.
in the
guilty
you could be found
each of the
jurors
have to be convinced
twelve
would
642, 645,
Washington,
Garland v.
232
U.S.
doubt,
is, the
beyond a reasonable
456, 457,
772,
(1914).
58 L.Ed.
you
unanimous. Do
jury verdict must be
Garland
specifically adopted the
test
We
Albertus,
rights.
understand those
City
Rapid City
in
of
(S.D.1981).
N.W.2d 167
We have no doubt
did
Winters thereafter
indicated that he
that Winters had sufficient notice of the
later,
rights.
his
A short time
understand
adequate opportuni-
accusation and had an
attorney if
the court asked Winters’
he was
Although
ty
to defend himself.
he
reading
willing to
the formal
waive
arraigned,
have been
Winters knew months
attorney replied
indictment to which
prior
to trial that he was
with the
The court then
that he was.
went
rape of the victim. On the 26th of Novem-
state: “The record
reflect that
ber, 1985,
State
coun-
served
defense
pled
defendant has
to the Indict-
sel a notice of demand for alibi defense.
ment,
places
requires
in issue and
which
December, 1985,
day
On
2nd
of
State
prove
every
the State to
each and
essential
sample
made a motion to withdraw a blood
beyond
Indictment
element of the
a reason-
alia,
stated,
inter
from Winters
by
able doubt.” These statements
rape
Winters was indicted for
in the first-
only
court are the
indication that Winters
degree
alleged
and that the
incident took
pled
charge.
Lake,
place at
South Dakota. Fur-
Wall
addition,
attorney
and his
Winters
both
thermore,
a motion
was held in this
they
claim that
did not receive a
December,
day
case on the 3rd
the indictment.
February
The trial was not conducted until
(1)
appeal:
Winters raises
issues on
four
19,
A
brief
of the trial tran-
review
arraign
Did the failure of the state to
script provides proof that Winters had an
grounds
defendant constitute
new
adequate opportunity to defend himself.
or an
judgment? (2)
arrest of
Did the trial
represented by
experienced
Winters was
in denying
court err
defendant’s motion for
lawyer
criminal trial
and called eleven wit-
a continuance
to allow him
as
to have
again,
nesses
his defense. Once
performed
analysis
by
expert
scientific
of the Garland court.
adopt
language
(3)
by the court?
appointed
Was
witness
“Tried
this test it cannot for a moment
the defendant entitled to a new trial based
maintained that the want of formal ar-
expert
on the fact that defendant’s
witness’
raignment deprived
any
the accused of
sub-
findings
expert
varied from the State's
wit-
right,
any
changed
stantial
wise
(4)
finding
guilty by
ness?
theWas
Gar-
disadvantage.”
to his
course of trial
the court
inas-
sustained
evidence
land, 34 S.Ct. at
U.S.
prove beyond
much as the state failed
Furthermore,
L.Ed. at 775.
we concede
doubt that the defendant com-
reasonable
arraign
that failure to
is a violation of
August
at 12:45 a.m. on
mitted an offense
long line
statute but we have held in a
9, 1985,
of demand
as stated
their notice
cases that
failure to show
for alibi defense?
itself,
not,
in and of
re-
and/or
does
Dale,
reversal. State v.
quire
While we believe that failure to
66 S.D.
Ham,
(1939);
State v.
gross oversight,
is a
21 S.D.
a defendant
Winters’ appeal next two issues on can August Lake, 1985 at disposition. be combined for Wall We do not South Dako- added.) ta.” (Emphasis believe that Winters was entitled to a con- He cites no au- *3 thority tinuance nor do in support we believe that he is of enti- this contention. Fur- thermore, tled to a disagree new trial. We with Win- State notified Winters that the ters when he states that the defendant’s time of the offense was actually between expert findings witness’ varied from the p.m. 11:30 and 12:15a.m. goes Winters on expert findings. State’s witness’ at length in claiming his brief that it was expert claims that State’s witness testified physically impossible for Winters to have only percent that fourteen of the Caucasian been at Wall Lake at 12:45 taking into population could have contributed the se- testimony account the of the witnesses. sample men taken from the victim. This light of timely State’s notice change of the contention is expert erroneous. State’s of time period, we find no merit in this actually witness testified that all of Win- contention. characteristics, ters’ including blood sub- We affirm the trial court on all issues. type, were by only percent shared fourteen However, of the population. Caucasian WEST, C.J., and SABERS and since Winters and the victim shared a com- MILLER, JJ., concur. subtype, expert mon State’s could not and did not state that the semen sample could HENDERSON, J., dissents. only have come from percent fourteen of population. the On cross-examination at HENDERSON, (dissenting). Justice expert specifically State’s stated: “I This author has written specially in State saying am not that the semen donor ... v. King, (S.D.1987) 400 N.W.2d percent population, was that’s (Henderson, J., dissenting) (guilty plea), expert correct.” The witness on whose Solem, and Logan v. 406 N.W.2d affidavit Winters specifically relies stated (S.D. 1987) (Henderson, J., dissenting) agreed that he with the test results ob- (nolo plea), concerning contendere Boykin tained State’s point witness. He did out Alabama, 395 U.S. testimony expert of State’s in the (1969), L.Ed.2d 274 and Nachtigall v. Er motion relating to the fourteen ickson, 122, 178 85 S.D. N.W.2d 198 percent figure might have misleading. been There, I was concerned question with a of a Any possible misconception, however, was free voluntary plea and rights up by expert’s cleared State’s later testimo- which must be accorded to a defendant ny quoted Furthermore, which is above. entering plea. Here, however, we have a specifically the trial court addressed this but, different situation: There is no possible misconception in post-trial the mo- rather, a full-blown trial. hearing. tion The court stated: “What he saying Perhaps reversible, se, is per finder of fact it is could have to misinterpreted saying arraignment; what he is hold no dangerous it is but [sic] percent. fact-finder_ misinterpret I didn’t it. I was precedent disregard and
I requiring understood what the as- state arraignment. statute sumption getting percent.” at the 14 SDCL journey 23A-7-1.1 Shall we down provides: 1. SDCL 23A-7-1 stating or to him the substance defendant charge of catling plead on him to thereto. arraignment open An shall be conducted in A defendant must be informed that if the court, except that an for a Class indictment, name in the information or com- chambers, misdemeanor be conducted in name, plaint is not his true he must then declare indictment, and shall consist reading in- of proceeded against by his true name or be name applicable, as is complaint, formation indictment, given in the information or conclusion, road, against knowing a fur- these by way precisely elements process say so, I of due law? what he must meet. Were this ther erosion he no. could become ensnared in future accusa- precisely tions same set of facts. Additionally, in South we have a case, At the end of the State’s a defendant provision requires constitutional acquit- for a directed move verdict of copy furnished with a the defendant be grounds plead- on the tal the elements cause of the accusation the nature and proofs. ed have not been established VI, Const. art. against him. S.D. 7.§ Defendant and his counsel must have a point Have come the criminal precisely document before them to know long state where procedures of this we no attempting what the State is formally er furnish a it, time, to refer to be able time to as might peruse One our the Information? progresses. very It well could State, words Honomichl N.W.2d date, develop, at a later that the defendant (S.D.1983): “Without a formal and *4 might required jeopar- be to assert double information, indictment or sufficient a dy prosecution.2 as a bar to another At acquire subject not juris- court does matter time, point he must to be able out to diction and thus an accused not be court, essentially the second as follows: Defendant, punished for a crime.” I Here is what was with and here record, glean I can did what not see (or of). acquitted is what I was convicted Yet, required the Indictment. he was to essence, In he and his counsel must be able proceed acquire to trial. How can a court glue something to onto and the information jurisdiction plea? a In without Honomichl the upon or indictment is the firmament (which not, conceptually, is dissimilar from legal a mental and attachment can case), expressed: “Subject this matter be made. jurisdiction by agree- cannot be conferred ment, consent, Honomichl, or waiver.” disagree There are authorities which 333 N.W.2d at Judg- with this Court’s decision. Held: plea the in this plea
Where was
case? There ment null and void where no
asked for
existing only
entered,
of it
plea
guilty
is no record
a state-
and no
v.
State
—
by
judge
Wester,
(N.D.1973).
ment
the trial
“that the defendant
shall be
a
informa-
protections
These
were later re-
complaint,
applicable,
tion or
as is
ishe
before
Biays,
ferred to in State v.
N.W.2d
402
699-
upon
plead.
(Emphasis supplied.)
called
to
1987).
(S.D.
700
being
trial,
placed
the defendant before
(S.D.1976).
This defendant conviction,
reversal of this and it is not a
matter subjective thought of a “turning technicality,” for, criminal lose on a with- question,
out his constitutional copy
have a indictment was violated. statutory right His to have a of that H.K., In the Matter of N.K. and accused, with which he was was likewise Alleged Dependent Children. Any violated. brought man or woman No. 15203. justice the bar of is entitled to know the crime with charged; which he or she is it is Supreme Court of South Dakota. generally law. fundamental 2 C. Tor Considered on Briefs Oct. 1986. cia, Wharton’s Criminal Procedure § (12th Sept. Decided 1975). We, 1987. 217-20 ed. in South right, have the in the event that Rehearing Denied Nov. majority position can fasten itself onto Supreme a 1914 United States decis Court
ion,3 protection to extend a broader Opperman,
citizens of this
state.
Albertus,
City Rapid City
portantly,
310 N.W.2d
she wets not
with a serious
(S.D.1981),
language
this Court utilized the
Therefore,
major felony.
crime nor a
the Alber-
Washington,
in Garland v.
232 U.S.
23A-7-1,
inapposite.
tus decision is
See SDCL
(1914),