State v. Karlen

• Decision Date: 11 March 1999
• Docket Number: No. 20299,20299
• Citation: 1999 SD 12,589 N.W.2d 594
• Parties: STATE of South Dakota Plaintiff and Appellee, v. Trey L. KARLEN, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 594

589 N.W.2d 594

1999 SD 12

STATE of South Dakota Plaintiff and Appellee, v. Trey L. KARLEN, Defendant and Appellant.

No. 20299.

Supreme Court of South Dakota.

Argued Oct. 21, 1998.

Reassigned Dec. 16, 1998.

Decided Feb. 3, 1999.

Rehearing Denied March 11, 1999.

Mark Barnett, Attorney General, Clyde R. Calhoon, Brookings County State's Attorney, Brookings and William Mark Kratochvil, Brookings County Deputy State's Attorney, Brookings, for plaintiff and appellant.

David R. Gienapp of Arneson, Issenhuth & Gienapp, Madison, for defendant and appellant.

James F. Sheklteon, General Counsel, South Dakota Board of Regents, Pierre, for Amicus Curiae South Dakota Board of Regents.

GILBERTSON, Justice (on reassignment).

¶1 Karlen appeals his conviction of two counts of second degree rape, three counts of unauthorized distribution of a substance with moderate potential for abuse and three counts of sexual contact without consent with person capable of consenting. We affirm as to issues one, two and four and reverse and remand with instructions as to issue three.

FACTS

¶2 Trey Karlen was business manager and publicity director for the South Dakota State University (SDSU) Theater. On August 15, 1996, he was indicted in Brookings County on a thirteen-count indictment. The charged crimes, which occurred between October 31, 1994, and July 8, 1996, involved male victims associated with the SDSU theater community. The indictment included five counts of sexual contact without consent with person capable of consenting; three counts of second degree rape; and five counts of unauthorized distribution of a substance with moderate potential for abuse. Karlen pled not guilty to all charges. On December 19, 1996, following a hearing on the parties' motions, counts eleven (unauthorized distribution of a substance with moderate potential for abuse) and twelve (sexual contact without consent with person capable of consenting) of the indictment were dismissed.

¶3 On January 4, 1997, the state's attorney notified Karlen that the State intended to dismiss the charges in the indictment. The charges were formally dismissed on January 6, 1997. One week later, Karlen was indicted on fourteen counts. The crimes charged included three counts of second degree rape; ¹ six counts of sexual contact without consent with person capable of consenting; ² and five counts of unauthorized distribution of a substance with moderate potential for abuse. ³ Karlen pleaded not guilty to all counts.

¶4 The trial on these charges commenced on September 2, 1997. Karlen was found guilty on two counts of second degree rape, three counts of unauthorized distribution of a substance with moderate potential for abuse, ⁴ and three counts of sexual contact without consent with person capable of consenting.

¶5 In this appeal, Karlen raises the following issues:

1. Whether the trial court erred in denying Karlen's motion to dismiss.

2. Whether the trial court erred in not granting Karlen a continuance because of the unavailability of a witness.

3. Whether the trial court erred in granting a motion to quash a subpoena issued by the defense on Henry Fulda.

4. Whether the trial court erred in denying Karlen's motion for a judgment of acquittal as to Count IV.

STANDARD OF REVIEW

¶6 We review a trial court's findings of fact under the clearly erroneous standard. State v. Westerfield, 1997 SD 100, p 8, 567 N.W.2d 863, 866. A trial court's evidentiary rulings "are presumed correct and are reviewed under an abuse of discretion standard." State v. Larson, 1998 SD 80, p 10, 582 N.W.2d 15, 17 (citation omitted). "The construction of [a] statute and its application to [the] facts present questions of law, which we review de novo." State v. Springer-Ertl, 1997 SD 128, p 4, 570 N.W.2d 39, 40. "In reviewing the denial of a motion for judgment of acquittal, the ultimate question is whether the evidence was sufficient to sustain the conviction." Larson, 1998 SD 80 at p 9, 582 N.W.2d at 17.

DECISION

¶7 1. The trial court did not err in denying Karlen's motion to dismiss.

¶8 Karlen claims the trial court should have dismissed the charges because the 180-day rule was violated. He also claims the charges should have been dismissed, because he was denied his right to a speedy trial. We disagree with both claims.

¶9 a. 180-Day Rule.

¶10 SDCL 23A-44-5.1, which is the 180-day rule, provides, in pertinent part:

(1) Every person indicted, informed or complained against for any offense shall be brought to trial within one hundred eighty days, and such time shall be computed as provided in this section.

(2) Such one hundred eighty day period shall commence to run from the date the defendant has first appeared before a judicial officer on an indictment, information or complaint.

¶11 Karlen contends the State's dismissal of the August 15, 1996, indictment and its decision to reindict him on January 13, 1997, caused the 180-day rule violation. He claims that the trial would have been held within the 180-day time frame had the dismissal and reindictment not occurred. ⁵ We find these claims to be without merit. By using either date, Karlen cannot establish an 180-day rule violation. ⁶

¶12 This Court has adopted a two-part test for determining the date from which the 180-day period begins to run when an initial indictment has been dismissed and the defendant is reindicted. State v. Lowther, 434 N.W.2d 747, 751 (S.D.1989); see also State v. Tiedeman, 433 N.W.2d 237, 239-40 (S.D.1988) (applying the Pennsylvania court's two-pronged test to determine the date on which the 180-day period begins to run). The 180-day period commences when the defendant has first appeared on the reindictment if "(1) the earlier indictment was properly dismissed by a competent judicial officer and (2) the record does not reveal evidence of a prosecutorial attempt to circumvent the 180-day rule." Lowther, 434 N.W.2d at 751 (citing Tiedeman, 433 N.W.2d at 239) (other citations omitted).

¶13 After closely reviewing the record, we find no evidence to show the original indictment was improperly dismissed. Moreover, nothing in the record reveals that the State dismissed the charges in the original indictment to circumvent the 180-day rule. The record shows that both prongs of Lowther have been satisfied. Therefore, we conclude the 180-day period commenced when Karlen first appeared on the reindictment, which was February 5, 1997.

¶14 Moreover, a review of the record reveals that much of the delay was attributable to Karlen. At the February 5, 1997, arraignment, the State indicated it was ready to proceed with trial at any time the court and Karlen's counsel, David Gienapp, would be available. The trial was tentatively set to begin on May 13. The date was tentative, because Gienapp was involved in another trial that he felt might conflict with the May trial date. The conflict did, in fact, arise. On April 14, Gienapp, by letter, informed the court and the prosecutor that he would be unavailable for the May trial dates because of the conflict. On April 25, the court, Karlen, one of Gienapp's associates, and the prosecutor, held a telephonic conference to determine the manner in which the parties should proceed. The court informed the parties it was treating Gienapp's April 14 letter as a motion for a continuance and, thus, granted the continuance. The court then tolled the 180-day rule until the date of trial, which was set for September 2, 1997. Clearly, this demonstrates the delay was not the result of the State's actions and that the 180-day rule was not violated.

¶15 Karlen further asserts SDCL 23A-44-5.1 prohibits a reindictment from starting a new 180-day period. This contention is erroneous. The language of SDCL 23A-44-5.1 is clear and unambiguous. See Dahn v. Trownsell, 1998 SD 36, p 14, 576 N.W.2d 535, 539 (citing Moss v. Guttormson, 1996 SD 76, p 10, 551 N.W.2d 14, 17) (stating that when the language of a statute is clear and unambiguous, our function is to declare its meaning as it is expressed). The rule addresses five things: (1) the 180-day requirement; (2) the commencement of the time period following an indictment, information, or complaint; (3) the commencement of the time period following an order for a new trial, a trial following a mistrial, and the filing of a mandate on remand; (4) the time periods excluded in computing the time for trial; and (5) the dismissal of the charges with prejudice if the defendant is not brought to trial within the 180-day time frame. Nothing in the language of the rule can be interpreted tto prohibit a reindictment from starting a new 180-day period.

¶16 b. Right to a speedy trial.

¶17 The Sixth Amendment of the United States Constitution and Article VI, § 7 of the South Dakota Constitution guarantee a defendant the right to a speedy trial. See State v. Jones, 521 N.W.2d 662, 666 (S.D.1994). Karlen claims he was denied this right through the State's dismissal of the first indictment and subsequent reindictment on January 13, 1997. He further contends he was prejudiced by the delay, because a "critical" defense witness, who would have been available for the January trial, was not available for the September trial.

¶18 When determining whether a defendant's right to a speedy trial has been denied, this Court considers four factors. Jones, 521 N.W.2d at 668. We must consider: "(1) The length of the delay; (2) the reason for the delay; (3) whether the accused asserted the right [for a speedy trial]; and (4) whether the accused was prejudiced by the delay." Id. (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2193, 33 L.Ed.2d 101, 116-7 (1972)); See State v. Goodroad, 521 N.W.2d 433, 437 (S.D.1994).

¶19 The first factor, length of the delay, "is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." State v. Holiday, ...