State v. Anderson

• Decision Date: 24 April 1996
• Docket Number: No. 19207,19207
• Citation: 546 N.W.2d 395,1996 SD 46
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. David Lynn ANDERSON, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 395

546 N.W.2d 395

1996 SD 46

STATE of South Dakota, Plaintiff and Appellee, v. David Lynn ANDERSON, Defendant and Appellant.

No. 19207.

Supreme Court of South Dakota.

Argued March 13, 1996.

Decided April 24, 1996.

Mark Barnett, Atty. Gen., Gary Campbell, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Mary Ann Giebink and Gary W. Conklin, Sioux Falls, for defendant and appellant.

GILBERTSON, Justice.

¶1 David Lynn Anderson appeals his conviction by a jury for vehicular homicide and vehicular battery and further appeals his sentence imposed for these crimes. We affirm.

FACTS AND PROCEDURE

¶2 Sunday, October 2, 1994 was a rainy day and the streets of Sioux Falls, South Dakota, were wet. At 11:45 a.m., after attending church services, Galen Barta and his two sons stopped at a fast-food restaurant to pick up chicken for Sunday dinner and were on their way home. At the same time, Anderson was speeding down 10th Street. Various eye-witnesses estimated Anderson was traveling between 60-100 miles per hour. An accident reconstructionist would later testify Anderson was traveling between 86-100 miles per hour. The posted speed limit was 30 miles per hour. Anderson's vehicle hydroplaned on the wet streets and slid across the centerline into Barta's vehicle, killing Barta and injuring one of Barta's sons. Immediately after the accident, Anderson kicked open the door of his vehicle and fled, leaving his passenger, his girlfriend, Teresa Paxton, and the occupants of the Barta vehicle at the scene.

¶3 Upon arriving home after fleeing his vehicle, Anderson telephoned his friend, Craig Quarve, with whom Anderson had been drinking the night before and into that Sunday morning. Anderson informed Quarve that Anderson had been involved in an accident, did not know if anyone was injured, and that he had called his parole officer and the police.

¶4 Anderson was identified by police at the scene through his vehicle registration. At the same time police officers were knocking on Anderson's front door, Anderson was on the telephone with 911, whom he had called to turn himself in to law enforcement. The officers, through radio contact with the 911 dispatcher, had the dispatcher relay a message to Anderson to exit his house and turn himself in to the officers at his door. Anderson did so and inquired about the condition of his girlfriend and others involved in the accident.

¶5 The police officers conducted field sobriety tests and, at 1:00 p.m., took a blood sample for further laboratory testing. Analysis of this sample resulted in between .0996% and .0970% blood alcohol levels. The police chemist who performed the analysis found this difference to be an acceptable deviation of no significance. Another chemist would later testify for the State that, according to the analysis of this sample taken one and one-quarter hours after driving, Anderson's blood alcohol level at the time of the accident was approximately .11%. Anderson's blood sample further revealed levels of methamphetamine and marijuana metabolites.

¶6 Anderson was charged by indictment of a grand jury for violation of SDCL 22-16-41, vehicular homicide; SDCL 22-16-20, second-degree manslaughter; and SDCL 22-16-42, vehicular battery. Following a jury trial, Anderson was convicted of vehicular homicide and vehicular battery, but was acquitted of the second-degree manslaughter charge. ¹ On May 10, 1995, he was sentenced, as a habitual offender, to 125 years imprisonment on the vehicular homicide conviction and 15 ² years imprisonment on the vehicular battery conviction. The sentencing court ordered both sentences to run concurrently, but consecutively to Anderson's remaining sentence for his parole violation.

¶7 Anderson appeals his convictions and sentences to this Court raising the following issues:

1) Whether the indictment by which Anderson was charged with vehicular homicide was sufficient when it omitted an essential element of the crime?

2) Whether the trial court abused its discretion in denying Anderson's motion for a mistrial after a State's witness testified that Anderson had called Anderson's parole officer, thus violating the trial court's pretrial order forbidding reference to Anderson's parole status?

3) Whether the sentences imposed in this case constitute cruel and unusual punishment?

ANALYSIS AND DECISION

¶8 1. Whether the indictment by which Anderson was charged with vehicular homicide was sufficient when it omitted an essential element of the crime?

¶9 Following selection of the jury in Anderson's trial but prior to the time the indictment was read, it came to the trial court's attention that the phrase "in a negligent manner" had been omitted from the indictment charging Anderson with vehicular homicide. SDCL 22-16-41 ³ sets forth the crime of vehicular homicide. The statute then provided:

Any person who, while under the influence of an alcoholic beverage, any controlled drug or substance, or a combination thereof, without design to effect death, operates or drives a motor vehicle of any kind in a negligent manner and thereby causes the death of another person is guilty of vehicular homicide. Vehicular homicide is a Class 3 felony. In addition to any other penalty prescribed by law, the court may also order that the driver's license of any person convicted of vehicular homicide may be revoked for a period of two years subsequent to release from incarceration. (emphasis added).

This statutory citation of SDCL 22-16-41 was properly cited in the charging indictment.

¶10 In an attempt to cure the effect of this omission, the trial court instructed the State to read the indictment to the jury with the missing element reinserted. The trial court correctly instructed the jury on the negligence element of the vehicular homicide offense ⁴ and on the legal definition of negligence. ⁵ The State was required to prove all elements of the offense of vehicular homicide.

¶11 Anderson argues the trial court was without authority to amend the indictment and cites to the federal law for the rule that an indictment cannot be amended except by the grand jury. ⁶ We agree that a trial court has no inherent authority to amend an indictment in any material respect. However it is clear, under the federal law cited to us by Anderson, that an indictment may be amended as to matters of form. See Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 1050, 8 L.Ed.2d 240, 255 (1962) (an indictment may not be amended except by resubmission to the grand jury, "unless the change is merely a matter of form"); United States v. Sazenski, 833 F.2d 741, 744 (8th Cir.1987) (the rule that the trial court generally has no power to amend an indictment "is inapplicable when the court's change in the indictment is one of form only."). State courts, applying state law, have also approved of such amendments. See Rhymes v. State, 638 So.2d 1270, 1275 (Miss.1994); People v. DeSanto, 629 N.Y.S.2d 460 (N.Y.App.Div.1995) (amendment of indictment was proper where amendment conformed indictment to evidence presented to grand jury, accurately reflected criminal act for which grand jury intended to indict defendant, and defendant was not prejudiced in any way); State v. Skjonsby, 319 N.W.2d 764, 784 (N.D.1982); State v. Wilcox, 110 Or.App. 490, 823 P.2d 1009, 1011 (1992); State v. Adams, 193 W.Va. 277, 456 S.E.2d 4, 8 (1995) ('amendment of form' occurs when the defendant is not misled in any sense, nor subjected to additional burdens of proof, nor otherwise prejudiced).

¶12 The general function of an indictment is to apprise the defendant with reasonable certainty of the charge with which he is accused and to allow him to plead his acquittal or conviction as a bar to a subsequent prosecution for the same offense. State v. Sinnott, 72 S.D. 100, 30 N.W.2d 455, 456 (1947), cert. denied, 334 U.S. 844, 68 S.Ct. 1512, 92 L.Ed. 1768 (1948); see also, State v. Oster, 495 N.W.2d 305, 307 (S.D.1993). SDCL 23A-6-14 provides that "[n]o indictment or information is insufficient, nor can the trial, judgment, or other proceeding thereon be affected, by reason of a defect or imperfection in its form, which does not prejudice the substantial rights of the defendant."

¶13 This Court has addressed the issue of a defective indictment due to the omission of an essential element of the crime charged on two previous occasions. In State v. Lodermeier, 481 N.W.2d 614 (S.D.1992), ⁷ Lodermeier had been charged with three counts of knowingly possessing property from which a serial number had been removed, a violation of SDCL 22-11-27. An essential element of that crime, omitted from the indictment, was that the serial numbers on the property were removed without the owner's consent. Lodermeier claimed this missing language caused the indictment to be defective. Finding that the trial court's actions cured the defect, we stated:

'An indictment which does not contain all the essential elements of the offense charged is defective....' State v. Stone, 467 N.W.2d 905, 907 (S.D.1991). However, we have held failure to set out an essential element of an offense in the charging instrument is not always fatal. State v. Swallow, 350 N.W.2d 606, 609 (S.D.1984). 'The defect is cured if the information sets forth the proper statute, the jury instructions set forth all the essential elements of the offense, and the State proves all the essential elements at trial.' Stone, 467 N.W.2d at 907 (quoting Swallow, 350 N.W.2d at 609). Accord State v. Williams, 297 N.W.2d 491, 493 (S.D.1980); State v. Larson, 294 N.W.2d 801, 802 (S.D.1980).

Id. at 619.

¶14 In State v. Lachowitzer, 314 N.W.2d 307 (S.D.1982), Lachowitzer was indicted for perjury following his trial for petty theft in the first degree. Lachowitzer contended the indictment was fatally defective as it failed to allege the substance of the controversy in which the perjury was committed, the falsity of the matter, and that he intended to perjure himself. We...