State v. Alexander, 13336

Citation313 N.W.2d 33
Decision Date02 December 1981
Docket NumberNo. 13336,13336
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Robert ALEXANDER, Defendant and Appellant.
CourtSupreme Court of South Dakota

Grant E. Gormley, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

John S. Theeler of Morgan, Fuller, Theeler & Cogley, Mitchell, for defendant and appellant.

MILLER, Circuit Judge.

This is an appeal from a judgment of conviction of appellant on four drug-related charges by a Davison County, South Dakota jury. For reasons hereinafter stated the trial court's judgment and sentence is affirmed in part and reversed in part.

BACKGROUND

On June 25, 1980, a Davison County grand jury indicted appellant, charging him with: count I, conspiracy to distribute hashish, methaqualone, cocaine, and quantities of marijuana more than one-half pound; and counts II, III and IV, aiding and abetting in the distribution of controlled drugs therein specified.

At the time of appellant's arraignment before Circuit Judge McMurchie, the deputy state's attorney filed a supplemental information for habitual offender alleging appellant's two prior felony convictions. These included convictions for third-degree burglary on March 20, 1974, and possession of a firearm by a convicted felon on February 13, 1979.

Appellant pleaded not guilty to all counts, and a jury trial commenced on September 15, 1980. On the second day of trial, however, it appeared that the State had unintentionally failed to comply with a trial court discovery order. Judge McMurchie, upon motion of appellant, then granted a mistrial. 1

Ten days later, on September 26, 1980, the State filed an amended indictment, dated September 22, 1980. This amended indictment realleged the allegation of count I of the original indictment (conspiracy to distribute various controlled drugs), and amended the language of counts II, III and IV, resulting in a later disagreement as to what specific charges were therein made against appellant.

Counts II, III and IV of the original indictment clearly and specifically charged appellant with aiding and abetting in the distribution of specified controlled drugs.

Count II of the amended indictment alleged:

That on or about April 1, 1980, in Davison County, South Dakota, Robert Alexander did commit the public offense of Distribution of Methaqualone, a Schedule II controlled substance (SDCL 22-42-2) in that Steven Fishgold, as a co-conspirator of Robert Alexander and in furtherance of the conspiracy, did willfully and feloniously distribute methaqualone, a schedule II controlled substance, to Mike Thomas.

Counts III and IV made the same allegations with different dates and controlled substances.

Appellant was arraigned on the amended indictment by Presiding Judge Wuest on October 8, 1980. The State did not file a new supplemental information for habitual offender but did advise Judge Wuest that, "We have filed an enhanced punishment under the habitual." Judge Wuest then advised appellant of the maximum punishment based upon the habitual criminal statute. Appellant again entered not guilty pleas on all four counts.

At the arraignment appellant's counsel advised Judge Wuest that they were seeking to disqualify Judge McMurchie from trying the case under the amended indictment. Appellant's counsel then filed an affidavit and application for change of judge, which Judge Wuest denied by a written order dated October 15, 1980, on the grounds that appellant had waived his right to disqualify Judge McMurchie because of the prior proceedings held before him.

The trial commenced on November 12, 1980. On November 14, 1980, the jury returned its verdict convicting appellant on

all four counts. Judge McMurchie then sentenced appellant to ten years in the penitentiary and a $5,000 fine on count I and penitentiary sentences of fifteen years, five years, and fifteen years, respectively, on counts II, III and IV. All of the sentences were ordered to run concurrently. 2

DECISION

ISSUE I-DID THE TRIAL COURT ERR IN TRYING COUNTS II, III AND IV OF THE AMENDED INDICTMENT AS AIDING AND ABETTING OFFENSES? Yes.

Throughout the entire course of the proceedings below, Judge McMurchie specifically treated the allegations in counts II, III and IV of the amended indictment as charging appellant with aiding and abetting in the distribution of controlled drugs and substances. Said rationale was consistently applied to his holdings and rulings on motions and objections. In his instructions he informed the jury that appellant was charged with aiding and abetting and instructed them on the law to apply to such cases. 3 The verdict forms relating to said counts specifically referred to the crime of aiding and abetting. The jury found appellant guilty of aiding and abetting. Appellant was sentenced for aiding and abetting under said counts. 4

The unartful and unexplained drafting of the amended counts II, III and IV creates the confusion herein. The original indictment clearly and specifically alleged and charged appellant with the crime of aiding and abetting in the distribution of drugs. The amendments, with no reference to an appropriate statute, are not consistent with the language of either the aiding and abetting or conspiracy statutes.

An examination of the applicable statutes is appropriate. SDCL 22-3-3 reads:

Any person who, with the intent to promote or facilitate the commission of a crime, aids, abets or advises another person in planning or committing the crime, is legally accountable, as a principal to the crime.

SDCL 22-3-3.1 reads:

The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abrogated. Any person connected with the commission of a felony, whether he directly commits the act constituting the offense or aids and abets in its commission, though not present, must be prosecuted, tried, and punished as a principal.

SDCL 22-3-8, in salient part provides:

If two or more persons conspire, either to commit any offense against the state ... and one or more of the parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be guilty....

SDCL 23A-22-13 provides:

In prosecutions for conspiracy in a case where an overt act is necessary to constitute the offense, a defendant cannot be convicted unless one or more overt acts are expressly alleged in the indictment or information, and unless one or more of the acts alleged are proved, but any other overt act, not alleged in the indictment or information, may be received as evidence.

Counts II, III and IV of the amended indictment each allege that appellant committed the public offense of distributing various controlled drugs and substances "in that Steven Fishgold, as a co-conspirator of Robert Alexander and in furtherance of the conspiracy" did distribute such drugs (emphasis added).

An indictment is legally sufficient if it can be understood therefrom "(t)hat the offense charged is designated in such a manner as to enable a person of common understanding to know what is intended." SDCL 23A-6-7(5).

Even more basic is the constitutional right of a defendant "... to demand the nature and cause of the accusation against him ...." S.D.Const. art. VI, § 7.

We have consistently held that a criminal case pleading is sufficient if it either employs the language of the statute or its equivalent, but at the least it in substance must contain the necessary elements of the offense. State v. Wilson, 297 N.W.2d 477 (S.D.1980); State v. Provost, 266 N.W.2d 96 (S.D.1978).

Counts II, III and IV of the amended indictment do not plead the language of the aiding and abetting statute, SDCL 22-3-3, or any equivalent language consistent with that theory. Said counts specifically allege that appellant was a co-conspirator with one Steven Fishgold who is alleged to have distributed drugs to one Mike Thomas in furtherance of the conspiracy.

Irrespective of what the State had intended to allege by its improvident amendment, we are of the opinion that the allegations sounded in conspiracy and in no manner alleged acts constituting aiding and abetting.

For the trial court to have treated these counts as aiding and abetting and to so instruct the jury was prejudicial error. The judgment of conviction as to counts II, III and IV of the amended indictment is reversed.

ISSUE 2-DOES JUDGE WUEST'S DENIAL OF APPELLANT'S APPLICATION FOR A CHANGE OF JUDGE REQUIRE A REVERSAL OF COUNT I? No.

SDCL Chapter 15-12 sets forth the method and procedure for disqualifying a judge. SDCL 15-12-32 requires that the presiding judge review the affidavit and application for its timeliness and determine whether the right to file against the judge has been waived or whether other defects exist in the application. Judge Wuest made this required review and determined that ...

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