State v. Braun

• Decision Date: 16 February 1984
• Docket Number: No. 14260,14260
• Citation: 351 N.W.2d 149
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Larry H. BRAUN, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 149

351 N.W.2d 149

STATE of South Dakota, Plaintiff and Appellee, v. Larry H. BRAUN, Defendant and Appellant.

No. 14260.

Supreme Court of South Dakota.

Considered on Briefs February 16, 1984.

Decided July 11, 1984.

Richard H. Wendt, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Drew C. Johnson of Maloney, Kolker, Fritz, Hogan & Johnson, Aberdeen, for defendant and appellant.

DUNN, Justice.

This is an appeal from a judgment of conviction and sentence for driving while under the influence of alcohol. We affirm.

On the evening of February 4, 1983, a Redfield, South Dakota, city policeman observed appellant Larry H. Braun back his vehicle across a city street and apparently hit another vehicle. The officer stopped appellant, who was coming from a bar, and questioned him about the alleged accident. During the conversation the officer noticed a strong odor of alcohol coming from appellant. The officer then had appellant perform some sobriety tests, which appellant failed. The officer also noticed that appellant swayed and grabbed the vehicle for balance.

The officer arrested appellant for DWI and took him to the Spink County Sheriff's Office. Three other officers who came in contact with appellant that evening testified that appellant's speech was slurred, his eyes were dilated and bloodshot, and he smelled of alcohol; they all agreed that he was drunk at the time. Appellant, who refused to take a blood test, testified that he did not believe he was intoxicated that evening.

An information was filed on March 18, 1983, charging appellant with driving while under the influence of alcohol. Appellant pleaded not guilty and requested a jury trial. Following a one-day trial, appellant was found guilty. The trial judge imposed a fine of $300.00, liquidated costs of $12.00, and other costs of $286.53; he also sentenced appellant to sixty days in jail, with forty days suspended upon compliance with certain terms, and he revoked appellant's driving privileges for forty-five days.

Appellant raises two issues on appeal. His first contention is that there was insufficient evidence produced at trial to support his conviction. It is well settled that in determining the sufficiency of evidence on appeal, the question presented is whether or not there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt. In making such a determination, this court will accept that evidence, and the most favorable inferences that can be fairly drawn therefrom, which will support the verdict. State v. Jorgensen, 333 N.W.2d 725 (S.D.1983); State v. Moeller, 298 N.W.2d 93 (S.D.1980).

The record in this case is replete with competent, direct evidence of appellant's guilt. Of particular importance is the testimony of four different law enforcement officers as to appellant's condition on that evening. Therefore, we find appellant's claim to be without merit.

Appellant's second contention is that the trial judge abused his discretion when sentencing appellant, and in doing so, violated appellant's constitutional and statutory rights. Specifically, appellant complains that his sentence is more severe than the sentence given to other first-time DWI offenders. He believes the sentence was issued to punish him for exercising his rights to refuse a chemical test and to have a jury trial, and for allegedly committing perjury at trial.

Appellant's contention fails for the following reasons: First, a trial judge has broad discretion to fix a sentence within the limits outlined by statute. A sentence which is within the statutory limits is not reviewable on appeal unless it is so offensive as to shock the conscience. State v. Antelope, 304 N.W.2d 115 (S.D.1981); State v. Curtis, 298 N.W.2d 807 (S.D.1980); State v. Padgett, 291 N.W.2d 796 (S.D.1980). The sentence given here fails to shock the conscience of the court. Second, there is no evidence in the record to indicate that the sentence was given to punish appellant for exercising his rights. The sentencing judge simply gave no reasons for the specific sentence which appellant received. Furthermore, as to the allegation of punishment for possible perjury, we have specifically held that a court can consider its belief that a defendant lied at trial when sentencing the defendant. State v. Carsten, 264 N.W.2d 707 (S.D.1978). This factor may be considered by the sentencing judge in addition to numerous other factors. See State v. Conger, 268 N.W.2d 800 (S.D.1978).

The judgment of conviction and sentence are affirmed.

FOSHEIM, C.J., and MORGAN, J., concur.

WOLLMAN, J., concurs specially.

HENDERSON, J., dissents.

WOLLMAN, Justice (concurring specially).

I write specially only to emphasize the fact that the state's attorney specifically disavowed any claim that appellant should be punished for having exercised his constitutional right to a jury trial.

Following the state's attorney's opening statement at the sentencing hearing, appellant's counsel responded in part by saying,

I've never heard of some defendant being punished because he takes his case to trial and I think that's what Mr. Battey is trying to do in this case.

In rebuttal, the state's attorney replied:

[L]est there be any misunderstanding, the State is not attempting to make the recommendation that it's made in any way to punish the defendant for having gone to trial. The statement of counsel misses the whole point of the recommendation.

The state's attorney then went on to make the remainder of the statements quoted in the dissenting opinion herein.

It strikes me that if on the one hand we are going to say that the trial court followed the state's attorney's recommendation regarding the length of the sentence, then we must also credit the trial court with accepting the state's attorney's disavowal of any intention that appellant should be punished for exercising his constitutional right to a jury trial.

In State v. Carsten, 264 N.W.2d 707 (S.D.1978), we held that a trial court may properly take into consideration in imposing sentence its belief that the defendant testified untruthfully at trial. In reaching a similar result, the United States Supreme Court stated, "A defendant's truthfulness or mendacity while testifying on his own behalf, almost without exception, has been deemed probative of his attitudes toward society and prospects for rehabilitation and hence relevant to sentencing." United States v. Grayson, 438 U.S. 41, 50, 98 S.Ct. 2610, 2616, 57 L.Ed.2d 582, 590 (1978).

In responding to the defendant's argument that the Court should fashion an exclusionary rule prohibiting trial courts from taking into account a defendant's perjury in the sentencing process in order to preclude trial courts from using a defendant's perjury for the impermissible purpose of punishing him for that perjury, the United States Supreme Court replied:

No rule of law, even one garbed in constitutional terms, can prevent improper use of firsthand observations of perjury. The integrity of the judges, and their fidelity to their oaths of office, necessarily provide the only, and in our view adequate, assurance against that.

Grayson, supra, 438 U.S. at 54, 98 S.Ct. at 2617, 57 L.Ed.2d at 592. I would apply the same analysis to the case before us. As the majority opinion points out, there is no evidence in the record to indicate that the trial court imposed the sentence it did to punish appellant for exercising his constitutional rights. Rather than to indulge in a presumption that our trial courts take into account impermissible considerations when imposing sentences, I would credit our trial judges with integrity and with fidelity to their oaths of office.

I have no doubt but that this court would quickly set aside a sentence imposed in violation of the principle that no defendant should be punished for exercising his constitutional rights, including the right to trial by jury, if the record should establish such a claim. This is not such a case, however, and we should not attempt to read the record in such a way as to cast the case in such a posture.

HENDERSON, Justice (dissenting).

Emblazoned on the edifice of this Nation's temple of justice, known as the United States Supreme Court, are these words: "Equal Justice Under Law." This structure is as imposing as the men who have served in it, since the founding of our country, and this phrase is the spirit of all law under our way of life. Upon that phrase, I moor this dissent. Appellant is not claiming cruel and unusual punishment. Nor is he claiming that the sentence shocks the conscience of this Court. He maintains, most forcefully, that the law has not been equally applied to him. The record supports his contention.

"Equal protection of the law requires that the rights of every person must be governed by the same rule of law under similar circumstances and, in the administration of criminal justice, the imposition of different punishments or different degrees of punishment upon one than is imposed upon all for like offenses is a denial of such right."

State v. Goodale, 86 S.D. 458, 466, 198 N.W.2d 44, 48-49 (1972). Appellant was, through the advocacy of the State's Attorney of Spink County, punished differently than other first D.W.I. offenders because he exercised his constitutional right to a jury trial and refused a blood-alcohol test. Everyone is entitled to a jury trial, notwithstanding the appearance of guilt--it is the backbone of our entire judicial criminal system. Every man, woman, and child has the right to put the state on its proof. A jury trial is one of the few exceptions in American jurisprudence where we, in the law, still permit the ordinary citizen to participate in our branch of government. I despise the inroads upon, and abolition of jury trials, as I perceive it, which grow like a cancer and spread across this Nation, and I must...