State v. Bartlett

Decision Date22 May 1987
Docket NumberNo. 15525,15525
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. George Joe BARTLETT, Defendant and Appellant. . Considered on Briefs
CourtSouth Dakota Supreme Court

Craig M. Eichstadt, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on the brief.

Catherine E. Mattson-Casteel of LaFleur, LaFleur & LaFleur, Rapid City, for defendant and appellant.

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES

Defendant-Appellant, George Joe Bartlett (Defendant), was charged with "Driving or Control of Vehicle While Under Influence of Alcohol (Third Offense)" (DWI). He was convicted, by enhancement procedure, of a Class Six felony, and appeals contending four areas of circuit court error.

(1) Insufficient evidence was presented at trial to support the verdict rendered and to establish that Defendant was the same person convicted of two previous DWI offenses.

(2) The circuit court abused its discretion in denying Defendant's motion for a different jury as to the former convictions trial.

(3) The circuit court abused its discretion in admitting certain copies of fingerprint cards during the former convictions trial.

(4) Proposed jury instructions and verdict forms relating to the former convictions trial were improperly denied.

We treat these issues seriatim. The circuit court is affirmed in all matters.

FACTS

On March 22, 1986, at approximately 1:45 a.m., Defendant was stopped by Rapid City Police Officer Roach for driving without having his headlights turned on. Officer Roach smelled alcohol on Defendant's breath and had him perform field sobriety tests. Defendant performed less than satisfactorily and Officer Roach requested he take a blood test. A medical technologist extracted a blood sample and Dr. Looyenga, a chemist at the School of Mines, performed the analysis which revealed a .17 percent by weight in ethyl alcohol.

On March 25, 1986, Defendant was charged, by Complaint, with "Driving or Control of Vehicle While Under Influence of Alcohol (Third Offense) (Felony)" in violation of SDCL Secs. 32-23-1(2) and 32-23-4. A Preliminary Hearing was conducted on April 25, 1986, and Defendant was bound over to the circuit court. Defendant's Arraignment was held on May 5, 1986, at which State filed an Information charging the DWI and a Part II Information alleging that Defendant's present charge constituted his third DWI offense. Defendant pleaded not guilty.

A Motions Hearing took place on June 10, 1986. Defendant moved for a bifurcated trial and a bifurcated jury on the DWI Parts I and II. Defendant's Motion for Bifurcated Trial was granted but his Motion for Bifurcated Juries was denied.

On July 28, 1986, a jury trial was held on the Part I Information, whereat Defendant was found guilty of DWI. On July 30, 1986, a jury trial on the Part II Information was held wherein Defendant was found to be the same person who was convicted of the two prior DWI offenses listed in the Information. Judgment was entered on September 19, 1986. Defendant was sentenced to serve two years in the Penitentiary and he now appeals.

DECISION
I.

Defendant contends the evidence presented during both the DWI trial and the former convictions trial was insufficient to justify the verdicts returned. He urges us to set aside the verdicts and remand for new trials. We are unpersuaded by his advocacy.

Recently, in State v. Davis, 401 N.W.2d 721, 722-23 (S.D.1987), we elucidated on the scope of appellate review in cases challenging the sufficiency of evidence by writing:

In determining the sufficiency of the evidence on appeal in a criminal case the issue before this court is whether there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt. "[I]n making such a determination this Court will accept that evidence and the most reasonable inferences that can be fairly drawn therefrom, which will support the verdict." State v. Dale, 379 N.W.2d 811, 814 (S.D.1985); State v. Faehnrich, 359 N.W.2d 895 (S.D.1984); State v. McCafferty, 356 N.W.2d 159 (S.D.1984); State v. Phinney, 348 N.W.2d 466 (S.D.1984); State v. West, 344 N.W.2d 502 (S.D.1984); State v. Jorgensen, 333 N.W.2d 725 (S.D.1983). We will uphold the jury's verdict if the evidence and the reasonable inferences drawn therefrom sustain a rational theory of guilt. Faehnrich, supra; McCafferty, supra.

While Defendant did offer testimonial evidence that he consumed only part of a six-pack of beer before his arrest, the jury had the option to disbelieve that testimony. We note, by the jury trial transcript, he left a downtown Rapid City bar after midnight. Likewise, Defendant's assertions that his blood alcohol content was below .10 percent were also put before the jury. Therefore, we uphold the jury's verdict of guilty in reference to the DWI conviction observing that the evidence and reasonable inferences drawn therefrom sustain a rational theory of guilt. Davis, 401 N.W.2d at 722-23.

Regarding the former convictions trial, fingerprint forms were used to establish prior criminal history. Defendant alleges that these forms were not "under seal" as mandated by SDCL 22-7-11 and testimony linking the prints on the forms to Defendant was insufficient. In making his assertions, Defendant overlooks our language in State v. King, 383 N.W.2d 854, 856 (S.D.1986), stating:

This court has previously held that prints taken by law enforcement officers and recorded on standard Division of Criminal Investigation forms are properly receivable into evidence as public records. State v. Provost, 266 N.W.2d 96 (S.D.1978). See also State v. Grooms, 359 N.W.2d 901 (S.D.1984).

Moreover, a fingerprint expert testified, in his opinion, the Defendant's known prints were made by the same person as the prints made by the person who was twice previously convicted of DWI. Once again, we refuse to overturn the jury's verdict as reasonable inferences drawn from the evidence sustain a rational theory of guilt. See Davis, 401 N.W.2d at 722-23, and authorities cited therein.

II.

Defendant secondly asserts that the circuit court abused its discretion when it denied his motion for a different jury for the former convictions trial. Defendant claims his voir dire examinations were hampered and the use of the same jury was unfair because the jury would likely harbor negative feelings toward him, having just found him guilty of a crime.

The legislature, by SDCL 32-23-4.4, 1 has mandated that in the area of DWI (SDCL ch. 32-23), a decision to impanel a new jury, for former conviction proceedings, is left to the circuit court's discretion. 2 We will reverse the court's decision only in the event of an abuse of discretion. See People v. Schram, 98 Mich.App. 292, 304, 296 N.W.2d 840, 845 (1980). See State v. Hepburn, 270 N.W.2d 629, 631-32 (Iowa 1978). See also Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). An abuse of discretion "refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence." Gross v. Gross, 355 N.W.2d 4, 7 (S.D.1984). There exists no abuse of discretion herein.

As noted in State v. Moves Camp, 376 N.W.2d 567, 570 (S.D.1985), the jury's singular task in these types of proceedings is to decide if the defendant was the same individual convicted of the crimes set forth in the information. We emphasize that the jury does not determine a defendant's guilt or innocence at these trials. Prior convictions are usually reflected in court records and requisite identification is grounded upon fingerprints and photographs. The Supreme Courts of Colorado and Indiana have held that a defendant's voir dire examinations are not prejudicially restrained by employing the same jury at the habitual-criminal phase. We agree with those courts that "[t]he potential for jury bias to translate itself into a verdict not based upon the evidence is not great." People ex rel. Faulk v. District Court, 673 P.2d 998, 1002 (Colo.1983) (en banc) (quoting Ross v. State, 442 N.E.2d 981, 983 (Ind.1982)). Accordingly, as Defendant has failed to identify, specifically, how the circuit court abused its discretion in denying his motion for a different jury, we are compelled to affirm the court's decision.

III.

Defendant thirdly contends the circuit court "erred as a matter of law" in admitting fingerprint forms into evidence at the former convictions trial. He argues that the fingerprint forms used by State to prove two prior DWI offenses lacked individual certification and attestation. Defendant concludes reversal of his conviction is mandated. We disagree.

Initially, we are cognizant that a general certification and attestation form does appear in the settled record and was, as per the circuit court's observations, attached to the fingerprint forms at issue. On that basis, the circuit court permitted the fingerprint forms to be admitted into evidence as it felt compliance with SDCL 22-7-11 was satisfied. 3

For us to disturb the evidentiary rulings of the circuit court, we must determine that an abuse of discretion has occurred. See State v. McNamara, 325 N.W.2d 288, 291 (S.D.1982). See also State v. Grooms, 399 N.W.2d 358 (S.D.1987). Once again, an abuse of discretion "refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence." Gross v. Gross, 355 N.W.2d 4, 7 (S.D.1984).

We recently held that fingerprints "taken by law enforcement officers and recorded on standard Division of Criminal Investigation forms are properly receivable into evidence as public records." State v. King, 383 N.W.2d 854, 856 (S.D.1986) (citing State v. Provost, 266 N.W.2d 96 (S.D.1978); State v. Grooms, 359 N.W.2d 901 (S.D.1984)). To require that each fingerprint form be individually certified and attested falls within the "supertechnical reading of the statute" we...

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