State v. Big Head

• Decision Date: 20 February 1985
• Docket Number: No. 14376,14376
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. George BIG HEAD, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 556

363 N.W.2d 556

STATE of South Dakota, Plaintiff and Appellee, v. George BIG HEAD, Defendant and Appellant.

No. 14376.

Supreme Court of South Dakota.

Argued May 22, 1984.

Decided Feb. 20, 1985.

Robert B. Vrooman, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

Terry L. Pechota of Finch & Viken, Rapid City, for defendant and appellant.

MORGAN, Justice.

This appeal is from a jury trial in which George Big Head (defendant) was convicted of vehicular homicide under SDCL 22-16-41 and from the trial court's imposition of a six-year prison sentence upon him. We affirm.

The charge of vehicular homicide resulted from an automobile collision which occurred at approximately 8:00 a.m. on May 9, 1983, when defendant's motor vehicle, proceeding south on Highway 79, enroute from Rapid City to Hot Springs, crossed the center line and collided headon with a northbound vehicle. The northbound vehicle carried the decedent, who was driving, and his wife.

State Trooper David Driscoll received a report of the collision at about 8:13 a.m. and arrived at the scene approximately seventeen minutes later. Upon arrival, Driscoll went directly to defendant's car and found him lying in the front seat of the vehicle with his head hanging out the driver's side window. Upon checking defendant's pulse and breathing to ascertain his condition, Driscoll detected "a strong odor of alcoholic beverage" coming from defendant's mouth. Driscoll then checked the condition of the passenger and driver of the other vehicle and determined that the driver was deceased. At that time, Driscoll talked to an eyewitness, a driver who had been following defendant, and was informed of defendant's errant driving and that the collision occurred when defendant's vehicle crossed the center line into the northbound lane. Driscoll then returned to defendant's vehicle and observed that defendant's eyes were heavy and bloodshot and that defendant appeared "sleepy, dopey, out of it." Driscoll's observations upon his return to defendant's vehicle led him to the opinion that defendant "was under the influence of alcohol, [that] he was drunk." A second trooper arrived at the accident site at approximately 9:00 a.m. to assist in the investigation. This trooper witnessed the arrest and made field observations of defendant in order to determine whether or not defendant was under the influence of alcohol. The second trooper also detected "a very strong odor of an alcoholic beverage" coming from defendant's mouth. Based upon both officers' observations, information provided by eyewitnesses, and the other driver's death, Driscoll arrested defendant for vehicular homicide, pursuant to SDCL 22-16-41.

The seven issues defendant denominates in his brief to this court pose five basic questions for review:

1. Whether SDCL 22-16-41 is an unconstitutional violation of defendant's right to due process and equal protection because it is vague and permits selective enforcement?

2. Whether the trial court erred when it refused to suppress the blood test results in light of (a) the officer's failure to inform the defendant of his right to refuse to take the test; and (b) the officer's failure to properly preserve the blood samples?

3. Whether the evidence was sufficient to warrant conviction under SDCL 22-16-41?

4. Whether the prosecutor's conduct was improper and prejudicial when he:

(a) Elicited testimony of the medics on the percentage of calls related to alcohol (b) Elicited testimony of the troopers on the percentage of their alcohol arrests that resulted in convictions; and

(c) Cross-examined the defendant as to the presence of marijuana in his car.

5. Whether the imposition of a six-year sentence was cruel and inhuman punishment under the facts of this case?

We first examine the constitutionality of SDCL 22-16-41. This court will review a law's constitutionality only when necessary for a determination upon the merits of a cause under consideration, and will first ascertain whether a construction of the statute, which avoids the constitutional question, is fairly possible. Aberdeen Ed. Ass'n. v. Aberdeen Bd. of Ed., Ind. Sch. D., 88 S.D. 127, 215 N.W.2d 837 (1974). This court will uphold legislative enactments unless they are clearly and unmistakably unconstitutional. State v. Morrison, 341 N.W.2d 635 (S.D.1983); State v. Crelly, 313 N.W.2d 455 (S.D.1981); Frawley Ranches, Inc. v. Lasher, 270 N.W.2d 366 (S.D.1978); County of Tripp v. State, 264 N.W.2d 213 (S.D.1978). All presumptions are in favor of the constitutionality of a statute and continue so until the contrary is shown beyond a reasonable doubt. Independent Community Bankers Ass'n v. State, 346 N.W.2d 737 (S.D.1984); Crowley v. State, 268 N.W.2d 616 (S.D.1978).

This court must determine as best it can the legislature's intent in order to construe the statute and determine its constitutionality. State v. Janisch, 290 N.W.2d 473 (S.D.1980). The words the legislature used are presumed to convey their ordinary, popular meaning, unless the context or the legislature's apparent intention justifies departure from the ordinary meaning. Oahe Conservancy Subdistrict v. Janklow, 308 N.W.2d 559 (S.D.1981); SDCL 2-14-1. Defendant contends that the statute is void for vagueness and therefore violates his right to due process. Statutes violate due process when the prohibited act or omission is expressed in terms so vague that reasonable people of ordinary intelligence might apply them differently. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954). Criminal statutes must adequately apprise the public of the activity proscribed and must set out "explicit standards" for enforcement or, in other words, define the criminal offense with "sufficient definiteness." Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Most importantly here, the statutory language may not be so vague that selective or discriminatory enforcement is permitted. Kolender, supra; Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974); Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971).

In State v. Primeaux, 328 N.W.2d 256 (S.D.1982), this court set out the test for determining whether criminal statutes are unconstitutionally vague.

A crime must be statutorily defined with definiteness and certainty. A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process. A criminal statute must give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden. (citations omitted)

328 N.W.2d at 258.

SDCL 22-16-41 provides:

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 4 felony.

Defendant contends that two phrases in SDCL 22-16-41 are undefinable and thereby render the statute void for vagueness. The two phrases are: (1) "under the influence of an alcoholic beverage," and (2) [I]n order to be driving a motor vehicle while under the influence of an alcoholic beverage, it is not essential that the driver of the motor vehicle should be so intoxicated that he cannot safely drive or be in actual physical control of a motor vehicle.

"negligent manner." This court has said that the legislature's failure to enact a definition does not preclude this court from providing a necessary definition. Janisch, supra. The offense of driving under the influence has been statutorily prohibited in this state since the early 1900's. The trial court instructed the jury:

The expression "under the influence of an alcoholic beverage" covers not only all well known and easily recognized conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in an alcoholic beverage and which tends to deprive him of that clearness of intellect and control of himself which he would otherwise possess. (emphasis added)

These instructions adequately define "driving under the influence" as that phrase appears in SDCL 32-23-1, the driving under the influence statute, and SDCL 22-16-41, the vehicular homicide statute. We perceive no reason why the grounds for violation of the latter statute would be different from those required for violation of the former.

Defendant also contends that the term "negligent manner" is vague, in that it does not adequately delineate the proscribed conduct and that the term does not provide adequate notice of the degree of negligence required to subject a driver under the influence to prosecution for vehicular homicide. This term is statutorily defined within SDCL Title 22. SDCL 22-1-2(1)(e) states: "The words 'neglect, negligently' and all words derived thereof, import a want of attention to the nature or probable consequences of an act or omission which a prudent man ordinarily bestows in acting in his own concerns[.]"

In State v. Munnell, 344 N.W.2d 883, 886-87 (Minn.App.1984), the Minnesota Court of Appeals interpreted the phrase "in a negligent manner while under the influence of alcohol" as it is used in that state's vehicular homicide statute. That court cited the United States Supreme Court's decisions in Connally v. General Const. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926), and International Harvester Co. v. Kentucky, 234 U.S. 216, 34 S.Ct. 853, 58 L.Ed. 1284 (1914), for the proposition that...