State v. O'Brien
| Decision Date | 07 April 1982 |
| Docket Number | No. 13337,13337 |
| Citation | 318 N.W.2d 108 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Brent Jay O'BRIEN, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
LeAnn Larson LaFave, Sp. Asst. Atty. Gen., Winner, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.
John F. Cogley of Morgan, Fuller, Theeler & Cogley, Mitchell, for defendant and appellant.
Defendant, Brent Jay O'Brien, appeals from the judgment of conviction of perjury entered following a jury trial on September 10-11, 1980. We reverse the conviction.
On December 10, 1978, an electric transformer near the Hormel plant at Mitchell, South Dakota, failed to function. Investigation disclosed that the radiator system at the Northwestern Public Service (NWPS) substation had been punctured by rifle shots. In October 1979, Officer Ken Reinesch (Reinesch) questioned Robert Granger, Eugene Morehead, Gene Dog Soldier, and defendant concerning the shooting. During that questioning, defendant stated that he had been with the other individuals on the night in question and that Granger and Dog Soldier had fired at the NWPS transformer. The statement given to Officer Reinesch was not made under oath but was reduced to writing by Officer Reinesch and signed by defendant.
On June 30, 1980, the State proceeded to try Granger on charges arising out of the alleged shooting incident. At that trial, defendant denied that he had been with Granger at the scene of the shooting, claiming instead that he was home in bed. Defendant admitted to making the prior statement to Officer Reinesch, but denied that the statement was true. At the close of the State's presentation, the case against Granger was dismissed. Shortly thereafter, the State charged defendant with having committed perjury during the Granger trial, alleging that he had given perjured statements as to his whereabouts on December 10, 1978.
The State's case against defendant consisted of: defendant's statement given to Officer Reinesch; defendant's testimony given in the Granger trial; and the testimony of Dog Soldier, Morehead, Granger, and Officer Reinesch. The State's key witness was Dog Soldier. Dog Soldier admitted that he had been drunk for a period of time immediately preceding December 10, 1978. He testified that he believed the shooting took place on December 9, 1978, and that he could not remember whether defendant had been present when he and Granger fired at the transformer. Over defendant's objection, Dog Soldier testified that Granger had told him that defendant was with them on the night of the shooting.
On cross-examination, Dog Soldier stated his belief that on December 10, 1978, he was cab driving with a friend, Kelly Straw. The State called Officer Reinesch to rebut this statement by introducing Dog Soldier's October 1979 statement. The substance of that statement corroborated his testimony on direct examination.
After introducing defendant's testimony in the Granger trial, the State called Morehead and Granger. Morehead was given use immunity to testify. He testified that he had not been with defendant and the others near the Hormel plant on December 10, 1978, and that his testimony at Granger's preliminary hearing and his unsworn statement to Detective Reinesch on October 4, 1979, were both false. The transcript of Morehead's testimony at both Granger's preliminary hearing and trial were introduced into evidence. Granger testified that he could not remember being with the others near the Hormel plant. He also denied telling Reinesch that the group had been together at the time of the shooting. The State recalled Officer Reinesch, who testified that Granger told him that he "thought" defendant had been with them on the night in question.
At the conclusion of the State's case, defendant moved for a directed verdict. The trial court denied the motion. At the close of all evidence, defendant sought to have Pattern Jury Instruction 1-17-8 added to those instructions already chosen by the trial court. 1 The State objected to the inclusion of the instruction on the grounds that the jury would be confused as to which statements were substantive evidence and which could be used only for impeachment purposes. The trial court denied defendant's request. No instruction was given relating to prior inconsistent statements.
Is there sufficient evidence upon which the jury could base a verdict of guilty of the offense of perjury? We hold that there was insufficient evidence.
Are defendant's own statements made to Officer Reinesch and his testimony at the Granger trial substantive evidence for the jury's consideration? We hold that they are substantive evidence.
Is the statement by witness Dog Soldier that he believed defendant was present on the night in question because of information he received from Granger admissible hearsay? We hold it is inadmissible hearsay.
Are the prior inconsistent statements made by witnesses Dog Soldier, Granger, and Morehead to Officer Reinesch admissible as substantive evidence in the O'Brien trial, or are they limited to impeachment of their sworn testimony? We hold that the statements are admissible for impeachment purposes only.
Is the pattern jury instruction relating to prior inconsistent statements required in this case? We hold that that pattern jury instruction is required.
The initial issue before this court is whether the State presented sufficient evidence upon which the jury could base a verdict of guilty. In determining the sufficiency of the evidence, the only question for this court is whether or not there is evidence in the record which, if believed by the jury, is sufficient to sustain a verdict of guilty beyond a reasonable doubt. State v. Shank, 88 S.D. 645, 226 N.W.2d 384 (1975). To establish sufficient evidence of perjury, the State must have either two witnesses testifying to the falsity of the accused's statement, or one witness with a strong corroborating circumstance of such character as clearly to turn the scale and overcome the oath of the accused in the legal presumption of his innocence. State v. Pratt, 21 S.D. 305, 112 N.W. 152 (1907). The State asks that we reassess the evidentiary requirements necessary to establish perjury. We decline to do this and adhere to the requirement set forth in State v. Pratt, supra. The question, therefore, is whether the State presented sufficient evidence to establish one witness, plus strong corroborating evidence to overcome the legal presumption of defendant's innocence and his statement under oath. In order to determine whether there is a sufficiency of evidence, it is necessary to review that evidence as it relates to the other issues raised on appeal.
The State offered into evidence defendant's testimony during the Granger trial and his statement made to Officer Reinesch on October 10, 1979. The State contends that these statements were properly admissible against defendant as substantive evidence corroborating Dog Soldier's testimony. We agree. Such evidence has sound corroborative value in determining the guilt of a party. United States v. Davis, 548 F.2d 840 (9th Cir. 1977). Had the State been able to produce one competent witness under the Pratt test, these statements could have served to establish the necessary corroborative evidence upon which a jury could reach a verdict of guilty beyond a reasonable doubt.
The State attempted to establish the one necessary witness required by Pratt through the testimony of Dog Soldier. Dog Soldier's sole basis for placing defendant with the others on the night in question rested on information he had received from Granger. Over defendant's objection, the trial court permitted Dog Soldier to testify concerning this matter.
Defendant argues that Dog Soldier's testimony contained inadmissible hearsay testimony. The State argues that the trial court properly admitted this testimony under the exception set forth in SDCL 19-16 -28. 2 The exception set forth in SDCL 19-16-28 embodies Federal Rule of Evidence 803(24). The purpose of SDCL 19-16-28 is to provide a mechanism for new exceptions to the hearsay rule that do not otherwise fit in the particular class exceptions embodied in SDCL 19-16-5 to 19-16-27. 4 Weinstein's Evidence, p 803(24) at 295 (1979). When asked to admit evidence under this exception, the trial court must insure that all the specific requirements set forth in the rule have been met prior to permitting such evidence to be presented at trial.
Initially, the trial court must determine that the statement has the circumstantial guarantees of trustworthiness "equivalent" to...
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