State v. Christians, s. 14847

• Citation: 381 N.W.2d 214
• Decision Date: 22 November 1985
• Docket Number: Nos. 14847,14848,s. 14847
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Brice E. CHRISTIANS, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 214

381 N.W.2d 214

STATE of South Dakota, Plaintiff and Appellee, v. Brice E. CHRISTIANS, Defendant and Appellant.

Nos. 14847, 14848.

Supreme Court of South Dakota.

Considered on Briefs Nov. 22, 1985.

Decided Jan. 15, 1986.

Grant Gormley, Chief Deputy, Atty. Gen., Frank Geaghan, Asst. Atty. Gen.,Pierre, on brief, Mark V. Meierhenry, Atty. Gen., Pierre, for plaintiff and appellee.

William E. Coester, Milbank, for defendant and appellant.

FOSHEIM, Chief Justice.

Brice E. Christians (Christians) was convicted in November, 1984, of second degree burglary. In December of 1984, he was convicted of escape. Penitentiary sentences of 30 months for burglary and 5 years for escape were imposed to run consecutively. Appeals from both convictions were consolidated. We affirm.

The burglary charge arose from Christians' attempt in late July of 1984 to intimidate a woman who had testified against him in an earlier criminal case for which Christians was incarcerated. Shortly after his release, he compelled the woman to stop her vehicle on a Milbank street because he wanted to "talk." When the woman tried to close the window, Christians broke it. After more "talking" he reached in, put the vehicle in park, took the keys and left. The woman used a second set of keys from her purse to operate the vehicle, whereupon she promptly notified the police. Christians was arrested and charged with second degree burglary. Bail was set at $10,000. A request for bail reduction was denied due to the prior offense and because the woman testified at the preliminary hearing that she was threatened during the course of the burglary.

The escape occurred in mid September while Christians was held in lieu of bail on the burglary charge. A radio dispatcher at the detention center heard a door squeak and saw someone leave. An inspection of the jail revealed that Christians was missing. He was arrested a few days later. Separate trials on the two offenses were held.

I.

Christians first argues that he had insufficient time to prepare for the burglary trial because he did not have the names of the jury panel until three days prior to trial. We disagree.

The initial jury list was ostensibly drawn pursuant to SDCL chapter 16-13. ¹ By approximately June the list was limited to one-hundred persons to serve for the second half of the year. This list was then further reduced, by court order, to sixty and made available to counsel on November 5, 1984. The list of one-hundred, however, was available several months before trial. Consequently, Christians' concern with the jury list can only be that he was obliged to investigate forty potential jurors whose names did not appear on the final list. ²

There were no material statutory violations in the selection of the jury panel. Nebraska Electric Generation & Transmission Coop., Inc. v Markus, 90 S.D. 238, 244, 241 N.W.2d 142, 145-46 (1976). Irregularities must result in such misfeasance or malfeasance as would tend to deprive a person charged with a crime of a substantial right. SDCL 16-13-31; State v. Smith, 57 S.D. 292, 296, 232 N.W. 26, 27 (1930). In claiming irregularity in the selection of the jury panel, Christians has not met his burden of showing prejudice. Markus, 90 S.D. at 245, 241 N.W.2d at 146; Broderson v. Slaughter, 66 S.D. 377, 283 N.W. 470 (1938).

II.

Christians moved for a change of venue. In support of this motion, he cited articles in the local newspaper. One article was headlined "Carried To Court Room On Stretcher, Christians Remains Unresponsive." The news item read in pertinent part:

Another dramatic episode in the case of Brice Christians, 22, jail escapee, took place in Circuit court here yesterday when the youth was carried into the court room on the third floor of the court house on a stretcher. Refusing to eat or drink or show any type of response, Christians was taken to St. Bernard Hospital on Monday....

At the time of his jail escape he was scheduled for court appearances in Circuit court here and federal court in Aberdeen. The third degree burglary charge in Circuit court and the federal charge of retaliating against a witness resulted from the same incident. The theft charge resulted when Christians reportedly stopped a car driven by an Ortonville young woman, took the keys from her car and threatened her for witnessing against him....

Shortly before the burglary trial, another news article appeared. It read in pertinent part:

Christians appeared last Tuesday before Bradshaw on the charge of escaping from jail and entered a plea of not guilty. The day for the jury trial on that matter was not set by the judge.

Christians complains in particular that the conclusory remarks in the articles were per se prejudicial to his right to a fair trial by an impartial jury in Grant County in violation of South Dakota Constitution article VI, section 7.

In State v. Brandenburg, 344 N.W.2d 702 (S.D.1984), we reaffirmed the standard applied to a change of venue motion:

A change of venue shall be ordered upon motion if the court is satisfied that there exists, in the county where the prosecution is pending, so great a prejudice against defendant that he cannot obtain a fair and impartial trial in that county. SDCL 23A-17-5. Generally, the law presumes that a defendant can receive a fair and impartial trial in the county in which the offense is committed.... The test is whether there is, in fact, prejudice in the minds of the county residents sufficient to raise a reasonable apprehension that the accused will not receive a fair and impartial trial in that county. The burden of establishing that a fair and impartial trial cannot occur in such county is upon the applicant. Granting or refusing a change of venue involves the discretion of the trial court, and we will reverse that decision only upon a showing of discretion abuse. [Cites omitted.]

Id. at 704. In State v. Wellner, 318 N.W.2d 324 (S.D.1982), we held that when pretrial publicity is primarily factual and not inflammatory in nature, it is not prejudicial. Id. at 331. Unfortunately, the news article here did refer to Christians as a "jail escapee" as though he had been convicted. However, the news media did not specifically express an opinion concerning the guilt or innocence of Christians and Christians makes no claim that the pretrial coverage was otherwise inaccurate. See State v. Reed, 313 N.W.2d 788, 789 (S.D.1981); Wellner, 318 N.W.2d at 331.

In affirming the conviction in Wellner, we also concluded that had the defendant exhausted his peremptory challenges with jurors still on the panel who had indicated a pretrial bias, followed by refusal of a motion to change the place of trial, the decision would have undoubtedly been different. Wellner, 318 N.W.2d at 331. Here, Christians likewise waived his final peremptory challenge and he did not renew his motion for change of venue after the jury was selected.

Accordingly, as in Wellner, we conclude that Christians has failed to meet his burden of showing that a fair and impartial trial could not occur in Grant County and that the trial court abused its discretion in denying a change of venue. Wellner, 318 N.W.2d at 331; Brandenburg, 344 N.W.2d at 704.

III.

Christians argues that the trial court's refusal to reduce his bail was improper because of his established indigency. He contends that he should have been released after the burglary charge on personal recognizance or upon the execution of an unsecured appearance bond under SDCL 23A-43-2, or, in the alternative, conditions to his release should have been imposed, under SDCL 23A-43-3 and -4, rather than a high dollar amount if the court felt that he might pose a danger to a person or the community.

Pecuniary circumstances of the individual should be considered in determining the amount of bail, but are not controlling. Langdeau v. State, 85 S.D. 189, 191, 179 N.W.2d 121, 122 (1970). Many other factors are properly taken into consideration, including the danger that the defendant may pose to any other person or the community. SDCL 23A-43-4. ³ The nature and circumstances of the burglary charge, Christians' criminal record, and the alleged threat made to the victim support the trial court's decision to let bail stand at $10,000. Moreover, Christians' case history and general attitude rendered it questionable whether he would abide by any conditions imposed for release pending trial. Considering the factors present, the bond reduction denial appears entirely justified.

IV.

The next issue we must address is whether the trial court erred in sentencing Christians to consecutive sentences. Under SDCL 22-11A-2, a...