State v. Bousum

• Decision Date: 21 May 2003
• Docket Number: No. 22249.,22249.
• Citation: 2003 SD 58,663 N.W.2d 257
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. David Lee BOUSUM, Defendant and Appellant.
• Court: South Dakota Supreme Court

663 N.W.2d 257

2003 SD 58

STATE of South Dakota, Plaintiff and Appellee, v. David Lee BOUSUM, Defendant and Appellant.

No. 22249.

Supreme Court of South Dakota.

Considered on Briefs February 10, 2003.

Decided May 21, 2003.

Lawrence E. Long, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and Appellee.

Joseph M. Kosel, Lawrence County Public Defender's Office, Deadwood, South Dakota, Attorneys for defendant and Appellant.

MEIERHENRY, Justice.

[¶ 1.] David Lee Bousum appeals his convictions for one count of first degree intentional damage to property and one and one count of resisting arrest. We affirm.

FACTS

[¶ 2.] On September 4, 2001, Bousum and his girlfriend got into an argument in a bar located on Main Street in Lead, South Dakota. Bousum slapped his girlfriend during the argument and law enforcement was called to the scene. Three officers eventually arrived including a Deadwood police officer summoned to provide assistance. As a result of their investigation, the officers arrested Bousum for simple assault and domestic violence and handcuffed him.

[¶ 3.] Bousum became very agitated over his arrest and a struggle ensued. Ultimately, the officers forced Bousum into the Deadwood officer's patrol car on the passenger side of the back seat. As one of the officers closed the door and began to turn away from the vehicle, he heard a loud thumping coming from the passenger window. Turning back toward the vehicle, he saw Bousum kicking at the passenger window with both of his feet. As the officer reached out to open the door, Bousum kicked again and the passenger window exploded in the officer's face. The officer sustained a cut in the forehead and a significant cut in his upper lip. While the officer tended to his injuries, the other officers were able to restrain Bousum and to transport him to jail.

[¶ 4.] Bousum was indicted on September 6, 2001 for one count each of aggravated assault, first degree intentional damage to property, simple assault and resisting arrest. Bousum's jury trial was on November 28. At the close of trial, the jury returned guilty verdicts on the intentional damage to property and resisting arrest charges and not guilty verdicts on the charges of aggravated and simple assault. Bousum was sentenced to ten years in the penitentiary, with six suspended, on the intentional damage to property conviction and to a concurrent one year sentence in the county jail for resisting arrest. He appeals.

[¶ 5.] On April 8, 2002, Bousum's counsel filed a motion with this Court to withdraw from his representation in this appeal based upon the lack of any non-frivolous issues for appeal. This Court denied the motion and directed counsel to brief this matter in conformity with State v. Korth, 2002 SD 101, 650 N.W.2d 528.

COMPLIANCE WITH KORTH

[¶ 6.] Korth requires that certain items be included in Section A of a brief filed pursuant to the procedures established in that case: a statement of the case and facts encompassing those facts sufficient to present any claim or claims of error asserted by the client in Section B of the brief; a description of any significant motions filed in the case and the trial court's disposition of the motions; a statement that the case is being submitted pursuant to Korth and that counsel has thoroughly reviewed the record and discussed the case with trial counsel and the client; a statement that counsel has not identified any arguably meritorious issue on appeal; and, counsel's signature. Korth, 2002 SD 101 at n. 6, 650 N.W.2d at 535-536.

[¶ 7.] Bousum's brief fulfills some, but not all of these requirements. Specifically, the brief does not contain statements that counsel has thoroughly reviewed the record, that counsel has discussed the case with Bousum,¹ and that counsel has not identified any arguably meritorious issues on appeal.

[¶ 8.] Contributing to some confusion here is counsel's presentation and briefing of a substantive issue in Section A of his brief. This Court did suggest in Korth that counsel might argue issues of possible merit in Section A. See Korth, 2002 SD 101, ¶ 17, 650 N.W.2d at 536 (Court refers to Balfour procedure of including a "`Section A' (issues the attorney believes are meritorious)"). Further review of the Oregon procedures in State v. Balfour, 311 Or. 434, 814 P.2d 1069 (1991) that this Court adopted in Korth reflects that this suggestion was incorrect. See State v. Arabie, 2003 SD 57, ¶ 11, 663 N.W.2d 250. See also Balfour, 814 P.2d at 1080 ("Section A ... shall contain no assignments of error or argument").

[¶ 9.] Based upon the foregoing, Section A of Bousum's brief does not meet the requirements of Korth, nor does Section B of the brief.

Section B of [a] brief [filed under Korth] shall contain any claim of error requested by the client and shall be signed by the client. Section B shall attempt to state the claim and any argument in support of the claim as nearly as practicable in the manner that the client seeks, in proper appellate brief form.

Korth, 2002 SD 101 at n. 6, 650 N.W.2d at 536 (emphasis added)(quoting Oregon Rule of Appellate Procedure 5.90(1)(b)). Section B of Bousum's brief is not signed by Bousum. The signature is a necessary part of Section B and counsel is required to obtain it. Id.

[¶ 10.] Normally, failure to comply with the technical requirements of Korth would result in an order by this Court directing counsel to submit an amended brief conforming to Korth. However, our review of the briefs and record in this case reveals that there are "arguably meritorious" issues in this case. Our identification of arguably meritorious issues in a case submitted pursuant to Korth would usually require granting additional time for supplemental briefing on those issues. See Korth, 2002 SD 101 at n. 6, 650 N.W.2d at 535-36 (quoting Oregon Rule of Appellate Procedure 5.90(3)). However, we find that the present briefs are complete and supported by adequate authorities to warrant our consideration of the merits of these issues at this time. Therefore, we decline to order supplemental briefing and proceed to consider the merits of the substantive issues presented.

ISSUE ONE

[¶ 11.] Did the repair of the window in the patrol car before Bousum could obtain his own damage estimate violate his constitutional and statutory rights?

[¶ 12.] The day after Bousum's arrest, an employee for the City of Deadwood took the damaged patrol car to a local body shop and requested a repair estimate. That same day, without any notice to Bousum or opportunity for anyone to evaluate the damage on his behalf, the repairman was instructed to fix the vehicle. The final repair bill totaled $617.90. This was sufficient damage to convict Bousum of felony first degree intentional damage to property. See SDCL 22-34-1.

[¶ 13.] On appeal, Bousum argues that the repair of the patrol car without an opportunity for a defense repairman to evaluate the damages violated his Constitutional rights to due process and a fair trial and statutory provisions governing the preservation of evidence.

[¶ 14.] SDCL 23A-37-14 provides:

Any property, which is not contraband, seized or confiscated by law enforcement personnel, ostensibly for use as evidence in a criminal prosecution, shall be preserved, maintained or stored at the expense of the county where the criminal offense occurred. If the property is not contraband and is owned by a victim of the crime being investigated, the property shall be photographed by the appropriate law enforcement personnel and returned to the victim of the crime within thirty days of completion of forensic analysis unless the prosecuting attorney deems it essential to the prosecution of the case to retain the evidence. The photographs shall accurately and correctly represent the property and are admissible evidence pursuant to chapter 19-18 in any resulting criminal proceeding.

SDCL 23A-37-15 provides:

Before any property is returned to the owner pursuant to § 23A-37-14, the law enforcement personnel in possession of the property shall notify the defendant that the property will be returned to the owner. Upon a motion made by the defendant and upon good cause shown that the property contains exculpatory evidence of the defendant's innocence, the court may order the law enforcement personnel in possession of the property not to release it to the owner.

[¶ 15.] In applying Constitutional principles to these provisions in State v. Arguello, 502 N.W.2d 548, 550 (S.D.1993), this Court stated:

The State's violation of SDCL 23A-37-15 "does not automatically vitiate the conviction." State v. Lyerla, 424 N.W.2d 908, 911 (S.D.1988) (citation omitted). The State's destruction of evidence favorable to [the defense] is a violation of due process if the evidence requested by [the defense] and destroyed by the State is material either to guilt or punishment. Id. at 910 (citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)). The state's duty to preserve evidence is

limited to evidence that might be expected to play a significant role in the suspect's defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.

California v. Trombetta, 467 U.S. 479, 488-89, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413, 422 (1984) (footnote omitted) (citation omitted) (emphasis added). Additionally, [the defense] must show that the State acted in bad faith in releasing the [evidence]. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281, 289 (1988). (emphasis added).

[¶ 16.] In conformity with the bad faith standard set forth above, this Court has recognized that mere...