State v. Brech, 10562

• Decision Date: 01 July 1969
• Docket Number: No. 10562,10562
• Citation: 169 N.W.2d 242,84 S.D. 177
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Doyle J. BRECH, Sr., Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 242

169 N.W.2d 242

84 S.D. 177

STATE of South Dakota, Plaintiff and Respondent, v. Doyle J. BRECH, Sr., Defendant and Appellant.

No. 10562.

Supreme Court of South Dakota.

July 1, 1969.

Richard R. Murphy, Bruce, for defendant and appellant.

Frank L. Farrar, Atty. Gen., Walter W. Andre, Asst. Atty. Gen., Pierre, for plaintiff and respondent.

HANSON, Judge.

Defendant appeals from an order denying relief under the Uniform Post-Conviction Act (Chapter 121, Laws of 1966). He is now confined in the State Penitentiary serving a 40 year sentence imposed by the Honorable Walter H. Seacat on the 17th day of April 1964 following a plea of guilty to the crime of Manslaughter in the First Degree. The post-conviction relief sought is to have the sentence vacated or, in the alternative, to allow defendant to withdraw his plea to manslaughter in the first degree and allow a plea of guilty to the crime of manslaughter in the second degree. Defendant asserts his fundamental rights were violated as follows:

I. He was unable to aid in his defense and there was a doubt as to his competency within the range of the rule enunciated in Magenton v. State, 76 S.D. 512, 81 N.W.2d 894;

II. He did not enter a plea of guilty to the crime of manslaughter in the first degree and the court did not elicit one;

III. He received inadequate legal counsel and defense;

IV. The sentencing trial judge abused his discretion in sentencing defendant; and

V. The sentencing trial judge failed to advise defendant of his rights.

For obvious reasons the Honorable Walter H. Seacat disqualified himself in the post-conviction proceedings and the Honorable James R. Bandy was appointed to act in his stead. Judge Bandy proceeded to conduct an extended evidentiary hearing at which defendant attended and testified. The record and transcripts of such hearing contain 388 pages. At the conclusion of the hearing Judge Bandy prepared and filed a 17 page memorandum opinion and entered detailed findings of fact and conclusions of law upon which the order denying relief is based.

The record shows that during the evening of November 7, 1963 defendant shot and killed his 19-year-old daughter Betty, with a 30--30 rifle in the family home in Mitchell. The tragedy took place in the presence of defendant's wife and another daughter. He was arrested and charged with the crime of murder. After arrest defendant retained H. T. Fuller, one of the senior members of the law firm of Morgan & Fuller of Mitchell to represent him. Mr. Fuller is a past president of the South Dakota Bar Association and a most able, competent and experienced trial lawyer.

On December 3, 1963 defendant appeared in person and by his counsel, H. T. Fuller, for arraignment on the charge of murder. The arraignment was conducted by the Honorable Fred J. Nichol, one of the judges of the Fourth Judicial Circuit, who is now a Chief Judge of the United States District Court. Pleas of 'not guilty' and 'not guilty by reason of insanity' were entered. Following such pleas defendant was ordered to be examined by psychiatrists of his own choosing and he was further ordered to be transported to the State Hospital for the Mentally Ill at Yankton for examination by Dr. Lawrence G. Behan, Superintendent of the Hospital and by Dr. Baker, a member of its staff, relative to 'his sanity or insanity, both with reference to the date of the alleged offense, the 7th day of November, 1963, and the current date with respect to his capability to stand trial upon said offense.' He was thereafter examined by two psychiatrists of his own choosing and by members of the staff at the State Hospital.

The record further shows that on April 17, 1964 defendant appeared in person and by his counsel, H. T. Fuller, before the Honorable Walter H. Seacat at which time defendant withdrew his previous pleas of 'not guilty' and 'not guilty by reason of insanity' to the crime of murder and entered a plea of 'guilty' to the included lesser offense of manslaughter in the first degree. He was thereupon sentenced to serve 40 years in the State Penitentiary. All of defendant's alleged violations of constitutional rights relate to this proceeding.

We find no violation of defendant's fundamental rights. This is convincingly, accurately, and fully reflected in the following portion of the Honorable James R. Bandy's memorandum opinion which we approve and adopt:

'The Commissioners on Uniform Laws consider the Post-Conviction statute to be in the nature of a civil proceeding and it is indicated in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745 (9 L.Ed.2d 770), that the burden is upon the petitioner to establish his claims. The language used in Townsend, of course, refers to habeas corpus but since the purpose of the proceeding and the rights to be ascertained are the same, it would seem entirely applicable. It was therein written:

'State prisoners are entitled to relief on federal habeas corpus only upon proving that their detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution.'

In Magenton v. State (supra) our Court construed and applied SDC 34.2002, saying:

'Under this code section it is not necessary that the accused be actually insane to be entitled to a hearing on the issue of his present sanity. He must be accorded that protection if the facts are sufficient to raise only a doubt as to his sanity. The doubt referred to is one that must arise in the mind of the trial judge, rather than in the mind of some other person. * * * It must be a real doubt arising from facts and circumstances of a substantial character. * * *

'In applying this statute the test of the accused's sanity is not the right and wrong rule above referred to. That concerns sanity in the sense of criminal responsibility for an act. We are here concerned with sanity for the purpose of present triability. Sanity in this regard is determined by appraising the present ability of the accused to so understand the nature and purpose of the proceedings taken against him as to be able to conduct his own defense in a rational manner. * * * The statute does not say how this matter is to be brought to the attention of the court, but that omission is unimportant. It may be done on formal application or where no application is made, it may be done by the court on its own motion. And if the trial judge has any real doubt as to the sanity of the accused it is his duty to order the inquiry, even though not requested. * * * However, because the court knows, or has reason to believe, that the accused is claiming that he was insane at the time the offense was committed does not of itself make necessary an inquiry into his present sanity. * * *

'Whether a trial court on its own initiative should order such inquiry is a matter addressed to its sound judicial discretion, and its decision will not be disturbed in the absence of an abuse of that discretion. * * * The accused has the burden in this regard, * * * and a strong showing is required to establish an abuse thereof. * * * Ordinarily sanity is presumed and where it is urged that the trial court had, or should have had, a doubt as to the present sanity of the accused, the court's failure to order the inquiry on its own motion is aided by that presumption.'

In Magenton the Supreme Court of South Dakota assumed, '* * * the trial court had examined the conclusions of the expert witnesses above set out and the psychologist report.' It also wrote: 'We have carefully studied these documents.' All of the foregoing related to the product of the examinations had pursuant to the provisions of SDC 36.0109.

Unlike the situation in Magenton, Judge Nichol had expressly ordered the experts '* * * to examine the said defendant relative to his sanity or insanity, both with reference to the date of the alleged offense, the 7th day of November, 1963, and the current date with respect to his capability to stand trial upon said offense;' These reports were before the sentencing Trial Judge on April 17, 1964, and I can think of no better authority for the consideration of such reports by the sentencing trial judge than our own Supreme Court. These reports clearly show the capacity of Doyle Brech, Sr. to stand trial at the date of their making. Nothing to show subsequent deterioration appears.

Additionally, the defendant had, in open court (albeit through his counsel, but in the defendant's presence) withdrawn his prior plea of not guilty by reason of insanity.

Paraphrasing the language used in Magenton:

'At all stages (of) the trial the accused was represented by counsel. Not until the institution of this proceeding on (January 4, 1967) was it suggested to any court that there was a doubt as to the sanity of the accused at the time of trial.'

This Court recognizes that the precise question considered in Magenton was as to whether the sentencing Trial Judge erred in not holding a sanity hearing in accordance with SDC 34.2002. The petition herein does not attack in that manner. It asserts and claims.

'That at all times from November 7, 1963, through the date of sentencing, on or about the 17th day of April, 1964, Petitioner, was and remained unable to cooperate or aid in his own defense, and, further, that on the date of the sentencing, he was unable to do anything, was unable to comprehend, unable to answer, understand, communicate; * * *'

The testimony of August Breach shows that, at least a month prior to the actual sentencing the Petitioner was advised that the Trial Judge thought 40 years would be a fair sentence on a plea of guilty to the lesser charge of Manslaughter in the First Degree and that the Petitioner 'didn't think it was right'. Again, the testimony of August Brech supplemented by the testimony of Leona Bartling to establish the presence of the Petitioner, shows that Doyle Breach, Sr. knew on April 17th, 1964 that he was expected to enter a plea of Guilty to a charge of...