State v. O'Connor

• Citation: 265 N.W.2d 709
• Decision Date: 20 April 1978
• Docket Number: No. 11942,11942
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. John Stephen O'CONNOR, Defendant and Appellant.
• Court: Supreme Court of South Dakota

Page 709

265 N.W.2d 709

STATE of South Dakota, Plaintiff and Respondent, v. John Stephen O'CONNOR, Defendant and Appellant.

No. 11942.

Supreme Court of South Dakota.

April 20, 1978.

Peter H. Lieberman, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on the brief.

Michael A. Lyons, of Doyle & Mahoney, Sioux Falls, for defendant and appellant.

BIEGELMEIER, Retired Justice. ^*

A jury found defendant guilty of burglary in the third degree, a felony, SDCL 22-32-9, as charged in Part I of an Information, Part II of which alleged prior convictions of five felonies and upon conviction of Part I that he be punished in accordance with SDCL 22-7, our habitual criminal statutes. Defendant appeals and raises questions that require a statement of some of the evidence.

The deputy state's attorney made an opening statement of the evidence the state expected to present to prove the charge. The evidence that followed was that about 1:30 a. m. the night of the burglary a number of police units were called by radio to a building which housed offices occupied by Data, Inc.; that the police recognized an auto in the parking lot as one seen in a burglary two weeks prior thereto; there were two sets of tracks in the fresh snow that led from this car up to the locked door of Data; that while there were no lights inside, the officers heard noises therein like metal rubbing on metal. A squad car public address system requested that anyone in the building come out; after no one appeared and the door was unlocked by an officer of Data, the police searched the premises and found two men in separate rooms, one of whom was Walton, the record owner of the auto, and the other the defendant O'Connor, who was discovered while hiding under a curtain. It was further shown that two holes had been cut in the ceiling that night.

Immediately following the deputy state's attorney's opening statement, defendant's trial attorney (who does not represent him on this appeal) told the jury the defendant would waive his right to be silent and would testify that about 1:00 a. m. while riding around in Walton's car he learned Walton had a key to the Data building; there was talk of burglarizing the place; that defendant tried to persuade Walton not to go into the building, but Walton drove up beside it, opened the door with his key and went in; that after a few minutes defendant became nervous, went up to and rapped on the door to try to get him out; that while they were talking he saw a headlight coming so he ducked into the building, locked the door and tried to hide. Defendant did generally so testify, as did Walton. ¹ Defendant further testified he had not been up to the building earlier that evening, though he admitted he had done the damage to the ceiling.

On rebuttal the state produced evidence that a "stakeout" of three officers with binoculars was set up in a building 80 feet away from and with a well-lighted clear view of the Data building; that they kept a watch thereon from 9:00 p. m. until 2:00 a. m., at about 9:15 p. m. they observed defendant drive up to the building, get out of the car, insert a key in the door to the building, pull it open a few inches, close and lock it and drive away; that about 1:30 a. m. the car pulled up and stopped some distance from the building; the lights were shut off; O'Connor and Walton got out of the car simultaneously and walked up to the building; O'Connor unlocked and opened the door and both entered it; that they next saw both men when they were brought handcuffed out of the building.

Point I of defendant's argument is based on an assignment of error that the trial court "erred in allowing the States Attorney to use defendant and appellant's silence at the time of arrest * * * for purposes of impeachment of the defendant and appellant's testimony which use is a violation of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States of America." Complying with our rules ² this assignment first cites pages of the transcript where on cross-examination defendant was asked when "police officers discovered you underneath the curtains there and subsequent to that point, did you ever tell those officers that you were just trying to get Mr. Walton out of there? A. No, I didn't tell them anything." ³ The officer who discovered O'Connor testified that he had him stand up and then handcuffed him; that O'Connor said nothing to him; that he turned him over to another officer who took him to a patrol car and read him his Miranda rights. No objection was made to any of this evidence. Where no objection is made to evidence, the trial court is not called upon to rule thereon and objection cannot be raised the first time on appeal. State v. Buffalo Chief, 83 S.D. 131, 155 N.W.2d 914 (1968); State v. Gayton, 83 S.D. 141, 155 N.W.2d 919 (1968); State v. Halverson, 87 S.D. 110, 203 N.W.2d 421 (1973); see also State v. Thundershield, 83 S.D. 414, 160 N.W.2d 408 (1968). An appeal brings to this court for review only those errors committed by the trial court which appear of record and have been preserved and presented in the manner prescribed by applicable procedural provisions. State v. Williams, 84 S.D. 547, 173 N.W.2d 889 (1970).

Another page of the transcript is cited that relates to the deputy state's attorney's argument to the jury where he commented on defendant's testimony that when Walton unlocked and opened the door, the defendant said he stood outside talking to him and when the lights from the squad cars appeared he jumped inside the building just to get out of sight; this argument was:

"As far as jumping in, why didn't he just stand out and say, 'Hey, my buddy's drunk, and we wound up here. Let's get him out of here. I'm just trying to help him.' That's all he had to do. He wouldn't have been inside the building. We wouldn't have been here today, . . ."

No objection, request for corrective action by the court or motion for new trial was made by defendant. The court in Fanning v. State, 85 S.D. 246, 253, 180 N.W.2d 853, 857 (1970) wrote:

"Misconduct of counsel is ground for a new trial, SDCL 23-50; State v. Brown, 81 S.D. 195, 132 N.W.2d 840; State v. Norman, 72 S.D. 168, 31 N.W.2d 258; State v. Bechtold, 48 S.D. 219, 203 N.W. 511, and in the event of denial of a new trial a direct appeal may be taken from the judgment and the denial may be urged as a reason to reverse the judgment. On direct appeals the courts have held such questions not misconduct sufficient to reverse where defendant did not make a motion for appropriate corrective action, such as a motion for a mistrial or request an admonition by the trial court. * * * Claims such questions are prejudicial must be presented to the trial court and they cannot be first raised on appeal * * *."

See also State v. Goodale, 86 S.D. 458, 198 N.W.2d 44 (1972).

Defendant cites and largely relies on Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, decided June 17, 1976, which was some time after the trial and sentencing of defendant. In Doyle the evidence of defendant's silence at the time of his arrest and after receiving Miranda warnings was admitted over continual objections of defendant so as to save his right to claim error on appeal. With reference to the oral argument of the deputy state's attorney, no objection or request for corrective action having been made, the claimed error is not before us.

Similarly, with respect to defendant's further contention that a fair trial was denied for overzealous prosecution, the record does not show reversible error. ⁴ See State v. Petruzello, S.D., 250 N.W.2d 682 (1977). Even in the event a motion for a new trial is made, the granting or refusing of the motion (SDCL 23-50-2, 23-51-3, 23-51-17 and 23-51-18) for the claimed misconduct rests largely in the discretion of the trial court. See State v. Hanley, 58 S.D. 191, 235 N.W. 516 (1931), and State v. Olson, 83 S.D. 493, 161 N.W.2d 858 (1968), where the court set forth the sound reasons for the decision. Not having properly presented it to the trial court, it cannot be first raised on appeal. Cf. State v. McFall, 75 S.D. 630, 71 N.W.2d 299 (1955).

Defendant's reply brief suggests that by enactment of SDCL 23-51-7.1 the intent of the legislature permits raising the constitutional questions. That section states:

"The issue of the constitutionality of any statute under which the defendant has been convicted may be raised on appeal regardless of whether or not it was first raised in any lower court."

Assuming the legislature has the authority to enact such a statute affecting a rule adopted or a decision by the court, about which we express no opinion, the cited section does not apply to this appeal. Defendant has been convicted of violation of SDCL 22-32-9, the statute covering burglary in the third degree, the constitutionality of which defendant does not challenge.

Defendant claims he was entitled to an instruction submitting to the jury the offense of misdemeanor under SDCL 22-32-16. The court in State v. Vierck, 23 S.D. 166, 120 N.W. 1098 (1909), stated that section 571 of the then Revised Penal Code (now SDCL 22-32-16) was "not one of the degrees of the crime of burglary, but is an entirely independent crime, . . ." 23 S.D. at 173, 120 N.W. at 1101. SDCL 22-32-16 expressly states the offense there defined includes conduct "not amounting to any burglary." This court recently had occasion to discuss this question in State v. O'Connor, 86 S.D. 294, 194 N.W.2d 246 (1972), and State v. Goodale, supra, where it was held not error to refuse such an instruction. We here decline to overrule those opinions.

After the verdict, at a hearing on the disposition of Part II of the Information, the procedure for which is set out in SDCL 22-7, defendant consented to a trial to the court as to the truth of the allegations, and on a stipulation that defendant was the person named in the...