198 N.W.2d 44 (S.D. 1972), 10980, State v. Goodale
|Citation:||198 N.W.2d 44, 86 S.D. 458|
|Opinion Judge:||The opinion of the court was delivered by: Winans|
|Party Name:||The STATE of South Dakota, Plaintiff and Respondent, v. Carl GOODALE, Defendant and Appellant.|
|Attorney:||Kean & Kean, Gene Paul Kean, Sioux Falls, for defendant and appellant.|
|Case Date:||May 24, 1972|
|Court:||Supreme Court of South Dakota|
[86 S.D. 459]
Kean & Kean, Gene Paul Kean, Sioux Falls, for defendant and appellant.
Gordon Mydland, Atty. Gen., C. J. Kelly, Asst. Atty. Gen., Pierre, George Weisensee, State's Atty., Sioux Falls, for plaintiff and respondent.
The defendant, Carl Goodale, and one Gene Guyton were arrested and conjointly charged with the commission of crimes under three counts:
Count 1, burglary in the third degree;
Count 2, grand larceny; and
Count 3, possession of burglary tools.
[86 S.D. 460] They were given a preliminary hearing, were represented by separate counsel and were bound over to the circuit court on each count. Guyton, thereafter electing to plead guilty to the charge of burglary in the third degree, was sentenced to three and one-half years in the penitentiary. Counts 2 and 3 were dismissed as to him. Goodale elected to stand trial and the jury returned a verdict of guilty on all three counts against him. The trial of his case commenced February 9, 1971, the jury received the case for its consideration February 11, 1971 and returned its verdict three hours later. On March 16, 1971 the defendant appeared before the court for sentencing. Before being sentenced, defendant presented sworn evidence for the court to consider in passing sentence. At this same time the defendant made a motion to the court which will be hereinafter referred to and elaborated upon as it is one of the more serious assignments made the basis for defendant's appeal. After this motion and its denial, Goodale was sentenced to seven years in the state penitentiary for the crime of burglary in the third degree, five years in the penitentiary on the grand larceny charge and two years on the charge of possession of burglary tools, all of said sentences to run concurrently. The permissible sentence for burglary in the third degree is imprisonment in the state penitentiary for any term not exceeding 15 years, SDCL 22--32--10; the permissible sentence for grand larceny is imprisonment in the state penitentiary not exceeding 10 years, SDCL 22--37--3; and for possession of burglary tools not exceeding five years, SDCL 22--32--17.
The defendant, by proper assignments of error, presents to this court five questions for decision. The first and third assignments in a sense present somewhat the same or similar problems and will be considered together. In his first assignment the defendant claims the court erred by not allowing the defendant's motion for a new trail upon the ground of prejudicial remarks between witnesses and the members of the jury panel. At the time of the sentencing the defendant asked for permission to address the court and addressing the court said he wished to make a motion for a mistrial 'because a member for the prosecution visited with several members of the jury panel prior to the jury being selected that afternoon of the eighth, I believe it was, and [86 S.D. 461] this member also did mention my case.' Upon questioning by the court, defendant named Officer Ideker and his wife as having visited with a person who became the foreman of the jury. The court then inquired as to the nature of the conversation and the defendant replied,
'He said, 'I cannot understand why Mr. Goodale is requesting a jury trial. It's obvious that he's guilty.' Now, that's not verbatim; I can't recall exactly how it was, but that's similar enough.
THE COURT: And when did you first become aware of this?
THE DEFENDANT: The afternoon of the 8th, I believe it was, that the jury was selected. Might I also mention that my attorney, Mr. Rasmussen, had talked to Mr. Ideker on this matter, and he
admitted that he had talked with these members of the jury. I think one was a relative of his, and Mr. Mayer, and he did admit it, and I want to also have written into the record today that I mentioned to Mr. Ideker at the time that there was a visit between them, and that he was sitting outside in the Courtroom with the jury panel as they were being selected--he and his wife.'
The court denied defendant's motion whereupon Mr. Rasmussen, the attorney for defendant, made the following statement:
'In that connection, let the record show that so far as any conversations that I may have had with jurors--in the statement of Mr. Goodale's--the notation should be made that I at no time have consulted with Officer Ideker in this regard. I may have consulted with other individuals, but I at no time have discussed this particular matter tith Officer Ideker. May I now proceed with a statement, Your Honor?'
He then proceeded to give reasons for leniency. Regarding this contention of defendant it is noted that by his own admission he [86 S.D. 462] became aware of what he claims to have occurred on the afternoon of the 8th when the jury was selected to try the case. From that date until the date of sentencing, neither he nor his attorney informed the court of defendant's claim of any such occurrence. It is also pointed out that in one respect his attorney flatly contradicts client's statement that he, the attorney, had talked to Mr. Ideker on this matter. Officer Ideker testified on behalf of the state in the action. In State v. Roden, 1959, 216 Ore. 369, 339 P.2d 438, where a motion for a mistrial was made 'on the ground that one of the chief witnesses for the State, Mrs. Fowler, was conversing with one of the jurors by the name of Rena Bush last night, she being Juror No. 10 in this case', the Court held:
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