State v. Beynon, 17529

CourtSupreme Court of South Dakota
Citation484 N.W.2d 898
Docket NumberNo. 17529,17529
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Rocky C. BEYNON, Defendant and Appellant. . Considered on Briefs
Decision Date11 February 1992

Page 898

484 N.W.2d 898
STATE of South Dakota, Plaintiff and Appellee,
Rocky C. BEYNON, Defendant and Appellant.
No. 17529.
Supreme Court of South Dakota.
Considered on Briefs Feb. 11, 1992.
Decided April 29, 1992.

Mark Barnett, Atty. Gen., Patricia Cronin, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Drake A. Titze, Sioux Falls, for defendant and appellant.

WUEST, Justice.

Defendant (Beynon) was found guilty by a Clark County Jury of aggravated assault upon a law enforcement officer in violation of SDCL 22-18-1.1(3). 1 The trial court sentenced Beynon to twelve years in the South Dakota State Penitentiary with three years suspended upon certain conditions. Beynon filed a motion for a new trial which was denied. Beynon appeals raising the following issues:

1. Whether the State failed to prosecute Beynon within 180 days in violation of SDCL 23A-44-5.1.

2. Whether the trial court erred by admitting the officer's police reports as evidence.

3. Whether the trial court erred in denying Beynon's motion for a new trial based upon newly discovered evidence.

4. Whether the jury verdict was sufficiently supported by the evidence.

5. Whether Beynon's due process rights were violated due to ineffective assistance of counsel.

We affirm.

During the trial, Officer James Lentsch of the Clark City Police Department testified as follows. At approximately 1:30 A.M., on May 3, 1990, Officer Lentsch was seated in his patrol car monitoring traffic in the city of Clark on Highway 212. Lentsch's patrol car was positioned in the south end of an alley which intersects Highway 212 in the middle of a residential area. At the time, Lentsch was visiting with Bill Holmes who was standing next to the patrol car with his friend Penney Leetch. Lentsch was fully uniformed at the time in question. His patrol car was clearly marked as a police vehicle.

Suddenly, a vehicle came sliding around the corner at the north end of the alley, sped through the alley and screeched to a halt behind the patrol car. Lentsch asked Holmes to call for "back-up" if any trouble developed. As the individual charged the patrol car, Lentsch recognized him as Beynon. Beynon then jerked open the door of the patrol car, reached inside, and grabbed Officer Lentsch by the front of his uniform with both hands. At this time, Holmes and Leetch left to get help.

Visibly upset, Beynon tried to jerk Lentsch out of the patrol car shouting, "I'm tired of you fucking with my family. I want to settle this once and for all." 2 The officer freed himself from Beynon's grasp and picked up his flashlight as he began to exit the patrol car. Beynon continued to use obscenities toward Lentsch and then grabbed for the flashlight which flew up and struck Lentsch in the chin. Once out of the patrol car, Lentsch and Beynon struggled over possession of the flashlight until finally the officer released the flashlight and pushed Beynon away. Beynon tossed the flashlight on the ground. Beynon then punched Officer Lentsch in the jaw with a closed fist. This blow caused Lentsch pain and "dazzled [him] a little bit." Beynon then swung again, but the now prepared Officer Lentsch was able to move out of the way. At that point, Beynon lost his balance and went down on one hand and one knee. Officer Lentsch then told Beynon he was under arrest and tried to detain him.

Page 901

When the officer grasped Beynon's shoulders, Beynon maneuvered away from him, and the two ended up wrestling on the ground.

Holmes and Leetch testified they saw the beginning and the end of the altercation. Neither of them saw Beynon actually strike the officer, however, since they had retreated inside a residence to call for assistance. When they returned, they saw Lentsch and Beynon wrestling on the ground. At that point, Beynon said "I give up, handcuff me." As the officer reached for his handcuffs, Beynon flipped around causing the officer to lose his grip and his balance. Beynon then escaped and fled into the street on foot. Officer Lentsch did not pursue Beynon at that time but chose to wait for back-up. Beynon was apprehended later that day.

During the scuffle, Beynon ripped the buttons off the officer's uniform and tore his T-shirt all the way up the side. In addition, Lentsch's elbow had an abrasion or cut which was bleeding, and he developed a black eye. Photographs of these injuries were admitted into evidence. We will discuss further facts relevant to each issue discussed.


Beynon made his initial appearance before a magistrate on May 3, 1990. After Beynon's initial appearance, he hired attorney Sean O'Brien (O'Brien), and the matter proceeded to trial. On October 1, 1990, only seventeen days prior to the scheduled trial date of October 18, Beynon's attorney filed a motion seeking the court's permission to withdraw. This motion to withdraw was primarily based on Beynon's disagreement with the manner in which attorney O'Brien was handling the case as well as fee collection problems.

After hearing attorney O'Brien's request to withdraw, the court asked the prosecution for comments. The State's Attorney objected to the withdrawal as it would cause a delay beyond the 180-day speedy trial period provided in SDCL 23A-44-5.1 (180-day rule) and asked for a waiver. 3 The court then addressed Beynon as follows:

THE COURT: Mr. Beynon, do you understand the rule is that your case should be tried within 180 days from your first appearance in court and if I grant the Motion now for Mr. O'Brien to withdraw, and you obtain new counsel, and he needs to prepare, he or she, it may take more than that 180-days. Are you willing to let that ride for beyond that 180 days?



DEFENDANT BEYNON: I don't feel I have any choice.

THE COURT: But that would be your preference; you would rather have the Motion granted so you could get other counsel, even if it were going to take more than the 180 days?


THE COURT: Well, alright. I'm going to grant the Motion, Mr. O'Brien, and allow you to withdraw from counsel for Mr. Beynon.

Three days later, after Beynon applied for court-appointed counsel, the trial court entered a written order of withdrawal, allowing O'Brien to withdraw. On that same date, the court appointed Attorney Vincent Foley (Foley) as Beynon's new counsel. Beynon's trial commenced November 29, 1990, despite Beynon's claim that the 180-day period had run.

Beynon asserts the trial court should have dismissed the action based

Page 902

upon the State's failure to prosecute him within 180 days of his initial appearance in violation of SDCL 23A-44-5.1. Beynon argues the State violated the 180-day rule because it made no motion for good cause extension, and because the court did not enter an order finding that "good cause" existed for the delay.

Beynon's argument hinges on his assertion that he did not waive his statutory right to a speedy trial. Beynon relies on the fact that his new trial counsel did not request additional time to prepare. In addition, Beynon asserts he was not represented by counsel when he made the decision to let the 180-day period "slide," and thus, if he waived the 180-day rule, he did not do so voluntarily. Beynon's assertion that he was not represented by counsel is not supported by the record. 4 Nor do we find Beynon's other arguments convincing.

A. Can the 180-Day Rule be Waived?

At the time of Beynon's initial appearance, SDCL 23A-44-5.1 contained no waiver provision. Thus, we must initially determine whether the 180-day Rule could be waived. In State v. Shilvock-Havird, 472 N.W.2d 773, 776 (S.D.1991), we held the record did not establish a waiver of the 180-day speedy trial requirement. The facts which supported that holding were materially different from the facts present in this case. The Shilvock-Havird holding implied a defendant could waive the 180-day rule.

We have previously looked to Pennsylvania case law for guidance regarding the 180-day rule. State v. Cross, 468 N.W.2d 419, 420 (S.D.1991); State v. Tiedeman, 433 N.W.2d 237 (S.D.1988). The Pennsylvania Supreme Court has held that the speedy trial rule, "like the right to a speedy trial which it protects, may be waived." Com. v. Brown, 497 Pa. 7, 438 A.2d 592, 594 (1981); Com. v. Manley, 491 Pa. 461, 421 A.2d 636, 640 (1980); Com. v. Myrick, 468 Pa. 155, 159, 360 A.2d 598, 600 (1976). Likewise, the Iowa Supreme Court has held that, even though waiver is not mentioned in the Iowa speedy trial rule, "[b]ecause the right to a speedy trial is personal, it is one which a defendant may forego at his election[.]" State v. Magnuson, 308 N.W.2d 83, 85 (Iowa 1981). See also State v. Mary, 401 N.W.2d 239, 241 (Iowa App.1986); People v. Prosser, 309 N.Y. 353, 130 N.E.2d 891, 896, 57 A.L.R.2d 295, 301 (1955); 21A Am.Jur.2d, Criminal Law, Sec. 865 (1981); Annotation, Waiver or Loss of Accused's Right to Speedy Trial, 57 A.L.R.2d 302, 305, 307 (1958). "There are no formal requirements for a valid waiver ...; '[s]o long as there is an indication, on the record, that the waiver is the informed and voluntary decision of the defendant, it will be accorded prima facie validity.' " Brown, 438 A.2d at 594 (quoting Myrick, 360 A.2d at 600) (prior to 1982, the Pennsylvania speedy trial rule contained no express provision providing for waiver). Accord Com. v. Green, 503 Pa. 278, 469 A.2d 552, 554 (1983). See also State v. Williams, 211 Neb. 650, 319 N.W.2d 748, 751 (1982). The burden is on the state to show any waiver was the product of an informed and voluntary decision. Manley, 421 A.2d at 640; Myrick, 360 A.2d at 600.

B. Was Beynon's Waiver Knowing and Voluntary?

The trial court apprised Beynon of his right to a trial conducted within 180 days of his first appearance. The court then asked Beynon personally whether he understood that, if the court granted the motion to withdraw, it could result in his trial counsel needing additional time to prepare beyond the...

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