State v. Bullis, 12024
| Decision Date | 22 June 1977 |
| Docket Number | No. 12024,12024 |
| Citation | 255 N.W.2d 290 |
| Parties | STATE of South Dakota, Plaintiff and Respondent, v. Jeffrey Clark BULLIS, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Peter H. Lieberman, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on brief.
Randolph F. Stiles of Hanson, Kaye, Stiles & Kelly, Mitchell, for defendant and appellant.
This is an appeal from a jury conviction of third degree burglary in the Fourth Judicial Circuit. Defendant contends that the trial court erred (1) in not directing a verdict of acquittal or in not granting him a new trial because a one-man showup tainted the objectivity of the state's witnesses, and (2) in allowing the jury to view the getaway automobile without the supervision of a sworn officer pursuant to SDCL 23-44-18. We affirm.
On February 11, 1976, Ruby Leir was having lunch in the apartment of a friend, Mrs. Munroe, who lived in apartment No. 2 on the first floor of building. Mrs. Munroe's apartment faces south and overlooks the parking lot where the offense took place. Mrs. Munroe and Mrs. Leir observed the crime through the window of Mrs. Munroe's apartment, which observation point was 86 feet from the point where the crime was committed. The witnesses observed the crime from its outset and gave their undivided attention to it during the few minutes required to open the victim's automobile and take the articles from it. Immediately after the commission of the crime, Mrs. Leir called the police. In answer to her call, Earl Giedd, a Mitchell policeman, arrived at Mrs. Munroe's apartment at about 1:09 p.m. Mrs. Leir informed Officer Giedd that there were two male subjects one a little taller than the other. The taller one was wearing a blue parka-type jacket with an orange lining and blue trousers. The shorter of the two was wearing light colored trousers, a tan or brown jacket and a blue shirt. Mrs. Leir also told the officer that they were driving a large vehicle which was real dirty and had no license plates on the front of it. In describing the events she had observed, Mrs. Leir stated that she saw two men drive up in a car; that both emerged and went over to the victim's car; that one of the men opened the door with a wire; and the other man took articles from the victim's car and placed them in defendant's car. Both Mrs. Leir and Mrs. Munroe stated that the smaller man placed the items in the back seat of the passenger's side of the automobile by opening the passenger's rear door. There was evidence from the defendant that this particular door was inoperable at the time of the incident. After the shorter man placed the articles in the car, both parties took off at a high rate of speed. Based upon the descriptions given to him at about 1:09 p.m., Officer Giedd stopped defendant Jeffrey Clark Bullis while he was driving his automobile at approximately 3 p.m. that same afternoon. After stopping the vehicle, Officer Giedd requested that the defendant accompany him to the scene of the crime, and the defendant was directed to stand in the same place where the crime took place some two hours earlier. Mrs. Leir then observed defendant from the apartment and positively identified him as one of the men involved in the burglary. At trial, she also made an in-court identification of defendant without objection.
As to the first issue, it should be noted that defendant did not move to suppress the evidence arising from the alleged improper "showup" and did not object to the in-court identification of the defendant by the witnesses at the time of trial. Thus, the issue was never properly preserved at the trial level. This court has rejected the use of plain error in South Dakota, State v. Barr, 1975, S.D., 232 N.W.2d 257, and even the plain error rule would only apply to a situation where an identification was so tainted that the likelihood of misidentification required a reversal in order to give due process...
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State v. O'Connor
...deprivation of due process as would require this court to reverse the conviction in the absence of proper objections, see State v. Bullis, 1977, S.D., 255 N.W.2d 290. The majority opinion follows the ruling of State v. O'Connor, 1972, 86 S.D. 294, 194 N.W.2d 246, that SDCL 22-32-16 is not a......
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State v. Clabaugh
...unless it can be established that the identification had an independent origin or that its admission was harmless error. State v. Bullis, 255 N.W.2d 290 (S.D.1977); State v. Iron Shell, 86 S.D. 100, 191 N.W.2d 803 (1971). In both Bullis and Iron Shell, we recognized an exception to the rule......
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...identification immediately after the commission of an offense. See, e.g., State v. Clabaugh, 346 N.W.2d 448 (S.D.1984); State v. Bullis, 255 N.W.2d 290 (S.D.1977); and State v. Iron Shell, 86 S.D. 100, 191 N.W.2d 803 There is nothing in the record to indicate that the police officers planne......
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State v. Mullins
...evidence had an independent origin or that error in its admission was harmless." 84 S.D. at 368-369, 171 N.W.2d at 743. In State v. Bullis, 1977, S.D., 255 N.W.2d 290, however, no suppression motion was made and no objection to the in-court identification was made, which is also true of the......