State v. Chief Eagle

• Decision Date: 23 May 1985
• Docket Number: No. 14752,14752
• Citation: 377 N.W.2d 141
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Homer Ignatius CHIEF EAGLE, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 141

377 N.W.2d 141

STATE of South Dakota, Plaintiff and Appellee, v. Homer Ignatius CHIEF EAGLE, Defendant and Appellant.

No. 14752.

Supreme Court of South Dakota.

Considered on Briefs May 23, 1985.

Decided Nov. 20, 1985.

John W. Bastian, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Richard F. Rahn of Grieves & Rahn, Winner, for defendant and appellant.

FOSHEIM, Chief Justice.

Defendant was found guilty by a jury of third-degree burglary and was found by the court to be a habitual offender. He appeals from the judgment of conviction entered on these findings. We affirm.

Shortly before going to work at 6:00 p.m., April 25, 1984, Mrs. Jackie Stone parked her automobile, which contained groceries that she had just purchased, in the 100 Block of east Third Street in Winner. She left the car unlocked and the groceries on the front seat.

Upon returning to her automobile after getting off work at 11:00 p.m., Mrs. Stone observed that her car was locked and that an individual, later identified as defendant, was sitting in the back seat eating some of the groceries. Mrs. Stone asked defendant what he was doing in her car, to which defendant replied by waving his hand.

Mrs. Stone called the police. Upon returning to her car, she observed that defendant had left. She observed that the groceries had been scattered throughout the interior of the automobile. She found a glove lying on the seat.

Responding to the call, Winner police officers searched the area and found defendant nearby eating from a can of beans later identified by Mrs. Stone as being of the same brand that she had purchased earlier that day. The officers took defendant to the Winner Police Station. Moments later Mrs. Stone arrived with the glove that she had found in her automobile. Upon observing defendant, Mrs. Stone said, "That's him," to which defendant replied, "I don't know why you are so angry, I got out when I seen you."

The glove found by Mrs. Stone matched a glove found in the possession of defendant at the time he was taken into custody.

I. Ineffective Assistance of Counsel Claim

Defendant contends that his court-appointed trial counsel (who is not counsel on appeal) provided ineffective assistance by failing to object to Mrs. Stone's testimony regarding her identification of defendant on the ground that the pre-trial confrontation at the police station was so impermissibly suggestive as to deny defendant his right to due process of law.

Although normally we prefer that ineffective assistance of counsel claims be presented by way of post-conviction proceedings, see, e.g., State v. Tchida, 347 N.W.2d 338 (S.D.1984), we conclude that we can dispose of defendant's claim on the basis of the record before us.

We analogize the situation in the instant case to those cases in which we have approved on-the-scene 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 (1971).

There is nothing in the record to indicate that the police officers planned the confrontation between Mrs. Stone and defendant at the police station. Rather, it appears that Mrs. Stone went there voluntarily to give to the police the glove that she had discovered in her automobile.

Moreover, the evidence that it was defendant whom Mrs. Stone saw in her automobile is so overwhelming as to negate any suggestion that he was the victim of a misidentification. Defendant in effect admitted that he was the person whom Mrs. Stone had spoken to. He was found in the immediate vicinity of the automobile eating from a can of beans similar to that purchased by Mrs. Stone. The glove found by Mrs. Stone in the automobile was the mate to that found on defendant's person at the time he was taken to the police station.

In the light of these circumstances, we conclude that it is abundantly clear why trial counsel declined to file a pre-trial motion to suppress Mrs. Stone's identification testimony. Trial counsel cannot be faulted for making this decision. Just as counsel has no duty to raise on appeal every issue requested by a defendant, Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), so also counsel need not make pre-trial suppression motions that fail on their face. Here, defendant's identity was really not in issue, and his trial counsel wisely chose not to attempt to make it one.

II. Admission of Prior Convictions

Defendant contends that the trial court erred in admitting evidence of his conviction of two prior felonies.

SDCL 19-14-12 provides that the trial court may admit evidence of prior convictions if it first determines that the probative value of the evidence outweighs its prejudicial effect to the accused. We have held that the record must reveal that the trial court balanced the probative value against the prejudicial effect of such testimony and that the trial court made a finding on the record that the probative value outweighed the prejudice. See, e.g., State v. Ford, 328 N.W.2d 263 (S.D.1982), and cases cited therein.

The record reveals that the trial court made a careful analysis of the probative value-prejudicial effect issue and then made a finding that the probative value outweighed the prejudicial effect of the proffered evidence. Given this careful treatment by the trial court, we conclude that there was no abuse of discretion in admitting the evidence, for as we held in State v. King, 346 N.W.2d 750, 752 (S.D.1984), "[A]s long as there is some consideration of the matter and an indication, on the record, that some weighing of factors occurred, no abuse of discretion will be found."

III. Admission of Evidence Regarding Prior Criminal Acts

Over defense counsel's objection, a Winner police officer was permitted to testify that on May 1, 1983, she had observed defendant get out of a pickup truck on the 100 Block of east Third Street in Winner. As he walked away from the pickup, defendant tossed several hand tools to the ground. When stopped by the officer, defendant had in his hand a flashlight belonging to the owner of the pickup truck.

The state offered this testimony on the ground that it was proper impeachment of defendant's denial on cross-examination that he had ever been in a vehicle other than his own on the 100 Block of Third Street. We conclude that the trial court erred in admitting the testimony for this purpose. SDCL 19-14-10 provides in part: "Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Secs. 19-14-12 to 19-14-16, inclusive, may not be proved by extrinsic evidence." We have held that SDCL 19-14-10 excludes extrinsic evidence of specific acts. State v. Tribitt, 327 N.W.2d 132 (S.D.1982), and cases cited therein.

Nor do we believe that the state's evidence of specific prior acts was proper impeachment of defendant's statements made in response to proper cross-examination reasonably suggested by defendant's direct examination. See United States v. LeAmous, 754 F.2d 795 (8th Cir.1985).

Our review of the evidence persuades us that the error in admitting this evidence was harmless. Defendant contended throughout trial that he was so intoxicated at the time of the offense that he could not have possessed the intent to commit a crime at the time he entered and remained in Mrs. Stone's automobile. The trial court properly instructed the jury on the effect of voluntary intoxication on a defendant's ability to form the intent necessary to commit a crime. Given the totality of the evidence, we are satisfied that absent the erroneously admitted evidence concerning defendant's prior offense, it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty. See, e.g., High Elk v. State, 344 N.W.2d 497 (S.D.1984), and cases cited therein.

The judgment of conviction is affirmed.

MORGAN, J., and WUEST, Circuit Judge, acting as a Supreme Court Justice, concur.

HENDERSON, J., dissents.

HERTZ, Circuit Judge, acting as a Supreme Court Justice, not participating.

HENDERSON, Justice (dissenting).

In State v. Tribitt, 327 N.W.2d 132, 134-35 (S.D.1982), we unanimously held:

Ample authority exists holding that FRE 608(b), the federal counterpart to SDCL 19-14-10, excludes extrinsic evidence of specific acts. United States v. Powers, 622 F.2d 317, 324 (8th Cir.1980), cert. denied, 449 U.S. 837, 101 S.Ct. 112, 66 L.Ed.2d 44 (1980); United States v. Werbrouck, 589 F.2d 273, 277-78 (7th Cir.1978), cert. denied, 440 U.S. 962, 99 S.Ct. 1507, 59 L.Ed.2d 776 (1978).

In this case, before the jury, the Deputy State's Attorney repeatedly asked questions such as: "In that regard have you ever entered a structure with the purpose of committing a theft or--." Objection sustained. The Deputy State's Attorney then immediately followed it with such a question as: "And in that regard I would ask you have you ever entered a vehicle with the purpose of committing a theft in Winner?" Answer came in (this was all under cross-examination of defendant): "No." An objection by defense counsel was sustained. Continuing with this type of floundering and prejudicial cross-examination, the Deputy State's Attorney asked: "Mr. Chief Eagle, have you ever been involved in some matters that might constitute dishonesty with the Winner Police Department or the Sheriff's Office?" Again, an objection by the defense was sustained. These questions are obviously driving against the force of the federal rule, the state statute, the federal decisions, and our 1982 Supreme Court decision.

The Deputy State's Attorney, however, despite the trial court's previous rulings, continued to attempt, by unlawful means, to put Chief Eagle in a bad light before the jury. The Deputy State's Attorney stumbled on and attempted to lay a...