State v. Blaine, 15679

• Decision Date: 20 November 1987
• Docket Number: No. 15679,15679
• Citation: 427 N.W.2d 113
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Earlwin J. BLAINE, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 113

427 N.W.2d 113

STATE of South Dakota, Plaintiff and Appellee, v. Earlwin J. BLAINE, Defendant and Appellant.

No. 15679.

Supreme Court of South Dakota.

Considered on Briefs Nov. 20, 1987.

Decided July 20, 1988.

Thomas Harmon, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on brief.

James W. Olson, Armour, for defendant and appellant.

SABERS, Justice (on reassignment).

Defendant appeals conviction for driving with .10 percent or more alcohol in his blood. We reverse and remand for new trial based on prosecutorial misconduct.

Facts

Earlwin Blaine (Blaine) was stopped on the evening of April 2, 1986, by Police Chief Luke of Avon, South Dakota. Chief Luke had observed a car veer across the center line of old highway 50 in Avon and then weave back onto the grass on the right side of the road. After stopping the car, Chief Luke found Blaine in the driver's seat, several passengers in the car, and a number of beer cans on the floor of the car. One of the cans was tipped over on the floor between Blaine's legs.

Blaine did not have his driver's license and was unable to satisfactorily perform the field sobriety tests as requested. Chief Luke, believing that Blaine was intoxicated, drove him to Tyndall where a blood sample was taken approximately one hour after Blaine's car was stopped. Test results showed .181 percent blood alcohol. A second test of the sample in February of 1987 showed .167 percent blood alcohol.

Blaine was charged with violation of SDCL 32-23-1(1)--driving or being in actual physical control of a vehicle while there is .10 percent or more by weight of alcohol in the driver's blood. Blaine was charged alternatively with violation of SDCL 32-23-1(2)--driving or being in actual physical control of a vehicle while under the influence of an alcoholic beverage.

A jury convicted Blaine of violation of SDCL 32-23-1(1). Blaine received a thirty-day jail sentence which was suspended upon the condition that he pay a $250 fine and costs.

Blaine appeals and claims the trial court erred by denying his motions: (1) to dismiss the information because it contained two criminal charges in one count in violation of SDCL 23A-8-2(4); (2) to acquit because the State failed to extrapolate the blood test results back to the time of driving; and (3) for a mistrial on the grounds of prosecutorial misconduct. We reverse and remand for retrial on the third issue and do not address issues (1) or (2).

Prosecutorial Misconduct

During trial, defense counsel wanted to show the jury that defendant's blood-shot eyes were a constant physical condition and that the fact that his eyes were blood-shot at the time of his arrest was inconsequential. The state's attorney commented:

"Are we to understand, ... that this man has been drinking or has not been drinking before he came to court today. So we can make the comparison."

The state's attorney continued to prejudice the jury against the defendant by cross-examining him as follows:

Q. And if you had to make a decision in that car; some little kid runs out in front of you, you'd have had a--

DEFENSE COUNSEL: Objection, prejudicial. Move to strike.

THE COURT: Overruled.

DEFENSE COUNSEL: Move to strike.

THE COURT: Overruled, it's cross-examination.

Q. If some small child--

DEFENSE COUNSEL: I move for a mistrial on the prejudicial comment made by the State.

THE COURT: Overruled.

Q. If some young person had run out in front of your car that night--

DEFENSE COUNSEL: Your Honor, this is exceedingly improper. I urge the Court to reconsider the ruling.

THE COURT: Overruled.

Q. If some young person had ran out in front of your car that night, you wouldn't have been able to react as fast as you would have if you had not been drinking, would you?

DEFENSE COUNSEL: Same objection. I want a continuing objection, if I may, Your Honor.

THE COURT: Overruled. You may have it.

Q. You wouldn't have been able to react as fast, would you Earlwin?

A. Well, like I said, the windshield wipers on the car--it was raining that night. The water was all over, probably wouldn't be able to stop in time. (emphasis added)

The trial court committed prejudicial error by allowing such cross-examination by the state's attorney.

In final argument, the state's attorney continued his attempt to unfairly prejudice the jury against defendant by making the following statements:

STATE'S ATTORNEY: ... But what the State law is saying is you should not be driving your vehicle if your ability to do so is impaired to the point you can't react in time to some--to stop for a small child or swerve back to get out of the way or something, or hit the brakes when you need to hit the brakes or something--

DEFENSE COUNSEL: Objection, that small child again. That's misconduct. He's attempting to equate manslaughter with a DWI, Your Honor.

THE COURT: Well, I think it is overreaching somewhat, ... We don't have any indication of that here.

Despite the court's tardy admonishment, the state's attorney repeated his attempt to prejudice the jury by commenting on matters outside the evidence, as follows:

STATE'S ATTORNEY: ... That's what I'm talking about. We don't need people on the road in South Dakota that can just barely make it home, because they are the guys that go across the road because they start to get a little sleepy or something like that, and you're coming the other way, and because there's a little child--

DEFENSE COUNSEL: Objection, we're back to manslaughter again. That's prosecutorial misconduct.

THE COURT: Overruled. [State's attorney] can talk to the normal consequences of DWI. It's consistently in all the papers all the time and everybody is aware of it.

DEFENSE COUNSEL: He can comment on the evidence, that's not--

THE COURT: Overruled. You're overreacting and its common sense and knowledge possessed by all of us here.

STATE'S ATTORNEY: That's the reason for the statute. We can't have people on the road fading from one shoulder and across the center line and back, not when people are driving from fifty to sixty miles an hour and the cars pass two feet apart. We just can't afford that kind of thing. I don't have to tell you what's in the papers and what's on TV and everything like that, and how many people are in accidents that are alcohol related. You have read the same stuff. And there's no reason for me to try to put that into evidence--

DEFENSE COUNSEL: Same objection, Your Honor--

THE COURT: Overruled. (emphasis added)

Shortly thereafter, the state's attorney continued his argument that the jurors would be the next fatality of a drunk driver, as follows:

STATE'S ATTORNEY: ... In other words, that's the idea. He doesn't have to be so falling down drunk that he can't manipulate it. The fact that he can stay on his lane here for nineteen miles out of twenty doesn't make him innocent, because on the twentieth mile when he decides to cross the line, you might be the one that's driving the other car.

DEFENSE COUNSEL: Objection, Your Honor.

THE COURT: Overruled. (emphasis added)

In State v. Vickroy, 205 N.W.2d 748, 749 (Iowa 1973), a single sentence of the prosecutor's argument resulted in a reversal: "How many of you people coming around that corner heading west on 92 from Patterson that night or had the members of your family, any of them, in the car coming that direction--." The Supreme Court of Iowa held that that sentence required reversal and remanded for a new DWI trial.

The prosecutor has an overriding obligation, which is shared with the court, to see that the defendant receives a fair trial. State v. Brandenburg, 344 N.W.2d 702 (S.D.1984). The burden of ensuring that the defendant receives a fair trial weighs as heavily upon the prosecutor as it does on defense counsel, the court, and the jury. State v. Havens, 264 N.W.2d 918 (S.D.1978).

The prosecutor must refrain from injecting unfounded or prejudicial innuendo into the proceedings, People v. George, 130 Mich.App. 174, 342 N.W.2d 908 (1983), and not appeal to the prejudices of the jury, People v. Hudgins, 125 Mich.App. 140, 336 N.W.2d 241 (1983).

Arguments that invite the jurors to put themselves in the shoes of a victim are generally improper. State v. Johnson, 324 N.W.2d 199 (Minn.1982). Irrelevant questioning which had the effect of inflaming prejudices or exciting the passions of the jury against the accused is improper. State v. Turnbull, 267 Minn. 428, 127 N.W.2d 157 (1964).

The duty and obligation of the prosecutor is perhaps best set forth in Viereck v. United States, 318 U.S. 236, 248, 63 S.Ct. 561, 566-67, 87 L.Ed. 734, 741 (1943), quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935):

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor--indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

As argued by defense counsel in this case:

The prosecutor ... clearly asked the jurors to place themselves and small children in a position of peril at the hands of drunken drivers--not once but several times. He inferred that unless [defendant] was convicted either they or a small child would suffer death or serious injury. He did not merely strike hard blows. He struck foul blows.

This is gross prosecutorial misconduct that was acquiesced in by the Court. Such improper...