State v. Bahm, 17600

• Decision Date: 03 September 1992
• Docket Number: No. 17600,17600
• Citation: 494 N.W.2d 177
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Larry BAHM, Jr., a/k/a Lawrence John Bahm, Jr., Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 177

494 N.W.2d 177

STATE of South Dakota, Plaintiff and Appellee, v. Larry BAHM, Jr., a/k/a Lawrence John Bahm, Jr., Defendant and Appellant.

No. 17600.

Supreme Court of South Dakota.

Considered on Briefs Sept. 3, 1992.

Decided Dec. 9, 1992.

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

John P. Billings of Bogue, Weeks, Rusch & Billings, Vermillion, for defendant and appellant.

ACTION

PER CURIAM.

Larry Bahm appeals his conviction for possession of marijuana. We reverse.

FACTS

The Clay County Sheriff's office got a tip that Bahm was growing marijuana on his farm. They searched his farm and home and recovered several pounds of marijuana. Bahm was arrested for possession of marijuana. He made his first appearance before a magistrate on July 20, 1990. ¹

Bahm's defense attorney filed several pretrial motions, none of which involved any delay to the case. On October 26, 1990, Bahm filed a motion requesting an order directing the prosecution to divulge the names of the "unidentified informants" who had provided tips to the law enforcement officers. The prosecutor had previously refused to divulge the names of those informants and continued along those lines by resisting Bahm's motion. On October 31, 1990, Judge E.W. Hertz reserved ruling on that motion.

On December 4, 1990, Judge Hertz issued an order setting the case for trial on February 7th and 8th, 1991. State quickly recognized that the trial date would fall outside the 180-day limitation. ² On December 11, 1990, State filed a motion for good cause delay which stated as grounds:

4. That the Hon. E.W. Hertz has been appointed to temporarily fill the vacancy on the Supreme Court beginning JANUARY 4, 1991.

5. That the trial calendar is full for the months of December, 1990 and it does not appear that the case can be submitted to a jury before the 180th day expires on JANUARY 20, 1991.

6. That the prosecutor asks that this matter either be set for trial prior to JANUARY 20, 1991 or that this MOTION FOR GOOD CAUSE DELAY be granted.

After a hearing, Judge Hertz denied the motion for good cause and explained on the record:

First of all, I will say that the Affidavit for Good Cause Delay will not meet the requirements of State v. Hoffman and the latest slip opinion.... Delay caused by docket congestion as attributable to the prosecution or court congestion does not constitute good cause for delay under this section.... So I cannot of course, based on what the State has put in its Motion here for good cause delay, accept that. That puts us to this position, I can either reset it within sometime prior to January 20th, and that is just about impossible for me. So the next thing is, and the Supreme Court has indicated this, if congestion is so bad and the judge that has the case cannot hear it within the time, then another judge should be assigned to the case. And that I can do. And get a trial date prior to the expiration of the 180-day time period.

On December 14, 1990, Judge Hertz reassigned this case to Judge Jay H. Tapken. The case was rescheduled for trial on January 16, 1991 (the last of the 180 days).

On the day before trial, the prosecutor decided to endorse the previously "unidentified informants" as witnesses for the prosecution. Bahm's attorney and the prosecutor had a telephone conference with Judge Tapken concerning the late endorsement of the witnesses. There is no transcript of this telephone conference but it appears that Bahm requested a continuance to prepare adequately for the witnesses. The trial was rescheduled for March 14, 1991, beyond the 180-day deadline. The record contains no indication that the prosecutor attempted to get an order for good cause delay from Judge Tapken.

DECISION

STATE HAS FAILED TO SHOW THAT BAHM MADE AN "INFORMED AND VOLUNTARY" WAIVER OF THE 180-DAY RULE.

State admits that the 180-day rule was "at least technically" violated in this case. Bahm was not tried within 180 days and no trial judge found good cause to excuse the delay. State claims that Bahm constructively or impliedly waived the 180-day rule.

It is settled that a defendant may waive the 180-day rule, but this Court has held that "[t]he burden is on the state to show any waiver was the product of an informed and voluntary decision." State v. Martin, 493 N.W.2d 223, 226 (S.D.1992); State v. Beynon, 484 N.W.2d 898, 902 (S.D.1992) citing Commonwealth v. Manley, 491 Pa. 461, 421 A.2d 636, 640 (1980).

State claims that Bahm waived the 180-day rule when he requested a continuance. See State v. Cross, 468 N.W.2d 419, 420 (S.D.1991) (defendant cannot take advantage of a delay he caused). Under the unique facts of this case, we cannot conclude that Bahm made an informed and voluntary waiver of the 180-day rule because he was forced into a continuance by the prosecutor's abusive tactics.

In the recent case, State v. White Mountain, 477 N.W.2d 36 (S.D.1991), it was demonstrated that the Clay County State's Attorney had filed an incomplete and inaccurate information. Then, on the eve of trial, after all plea negotiations had fallen through, the State's Attorney endorsed new witnesses for the trial. We strongly condemned this abusive and intentional prosecutorial tactic. Id. at 38-39. In White Mountain the witnesses were cumulative and therefore not substantially prejudicial to the defendant, as a result the conviction was not reversed. Id. at 38.

This case involves similar abusive prosecutorial tactics. In one respect, the prosecutor's conduct here was more egregious because the prosecutor intentionally...