State v. Dale

• Decision Date: 22 March 1989
• Docket Number: No. 16057,16057
• Citation: 439 N.W.2d 98
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Byron C. DALE, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 98

439 N.W.2d 98

STATE of South Dakota, Plaintiff and Appellee, v. Byron C. DALE, Defendant and Appellant.

No. 16057.

Supreme Court of South Dakota.

Argued Oct. 11, 1988.

Decided March 22, 1989.

Randolph J. Seiler of Seiler & Cain, Mobridge, for defendant and appellant.

Wade Hubbard, Asst. Atty. Gen., Pierre, Curtis W. Hanks, Corson County State's Atty., McIntosh, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on the brief.

KEAN, Circuit Judge.

Byron Dale (Byron), appeals from a judgment of conviction from a jury verdict which found him guilty of grand theft by deception and attempted grand theft by deception. This appeal raises twenty issues. Defense counsel prepared and argued issues I to X. The final ten issues, all dealing with the federal monetary system, were prepared and presented by the defendant pro se. We affirm the judgment.

In his quest to have his views on the federal monetary system aired in the courts, self-proclaimed money expert Byron joined with several other individuals in founding the Commercial Trust (trust) of South Dakota. The trust did not deal in United States currency and had no affiliation with any federal agency and members placed "credit" into the trust. This credit was then used to build other credit. Byron was the secretary/treasurer of the trust which was located at his home.

The trust printed some credibly prepared documents by which officers could authorize "credit" to be used. In theory this "credit" could be used to purchase goods, service, products or whatever. According to Byron, if the individual accepted the document in exchange for something, the document could be sent to the trust which would issue a "bill of exchange." Presumably this bill of exchange could be used to obtain federal reserve notes.

As often occurs, fate and opportunity became helping hands to the future of Byron's plans. Byron's neighbor, Gorman Peterson (Peterson), had been ranching next to Byron for almost twenty years. The farm-ranch credit problems of the mid-1980's caught up with Peterson. As he had reached his credit limits, Peterson and the bank, his main creditor, were planning to conduct a public auction at Peterson's ranch to liquidate debts. The auction was set for May 2, 1986. Irwin and Margaret Salzer (Salzer) were hired as auctioneers.

On the morning of the auction, four men met at Byron's farm house. The meeting had been called by Byron to aid him in promoting his ideas on the monetary system. These men were: Byron; Ron Craig (Craig), a Baptist Minister from North Dakota; Lloyd Dale (Lloyd), defendant's brother from Lemmon, South Dakota; and Alfonse Friese (Friese), a seventy-one year old retired farmer. The agreed purpose of the meeting, according to Byron's own words, was to bid "on some property so I could address the money issue." The scheme devised was outwardly simple. Craig, Friese and Lloyd were to proceed to the auction sale, secure bidder's numbers, and bid on items offered at Peterson's farm auction. Byron went to the auction, but made no bids. The trio was specifically directed to buy "big ticket" items to create attention at the auction.

The bidders were very successful and made numerous high bids. After the sale Lloyd and his companions loaded the smaller items into a pickup and took them to Byron's ranch. No one returned to the auction site. Later that day Salzer called Byron's ranch and requested that someone come to the Peterson ranch to pay for and pick up the items purchased by Lloyd, Craig and Friese.

Byron and Lloyd left Byron's ranch and returned to the Peterson's ranch. Upon their arrival Lloyd went into a mobile home used as the auction office. A list of sale items was presented by Salzer. Lloyd produced an item which had the appearance of a check book. Lloyd filled in one of the documents which was contained in this check book and which had previously been signed by Byron. One of the blanks filled in on the document was the sales sum of $7,630.75 representing Lloyd's bids. Lloyd removed the document, folded it and placed it on the table. He then departed, got into Byron's truck and left the Peterson ranch. When Salzer looked at the document, he realized it was not a check.

The following day, Salzer and Tom Peterson, Gorman's son, went to Byron's ranch to find Lloyd. They met Byron, who, when told of the nature of their presence, stated that they were really looking for him. The document given by Lloyd the prior day was discussed. Byron told them just to deposit the item in the Dewey County Bank. He also told them that in a few days he would pay for the items bid on by Craig and Friese.

On the following Monday, Byron sent a similar document by certified mail to Peterson and Salzer to cover the Craig and Friese auction items. This document contained a figure of $37,050.00 for items bid. Salzer attempted to clear these documents through the Dewey County Bank. The president of the bank, Thomas Schirber (Schirber) did not think the documents to be checks. He called the Federal Reserve System and learned that the numbers on the bottom of Byron's instruments were not normal routing numbers. He also called the State Banking Commission and learned that the Commercial Trust was not a registered financial institution in South Dakota. Neither Peterson nor Salzer received payment on Byron's documents.

When pressed for payment, Byron continually insisted that the documents were good and that Salzer should run them through his bank. Byron also declined to return those items taken from the auction. Rather boldly, Byron even drove to Peterson's ranch and tried to take the remaining items Lloyd, Craig and Friese had bid upon. Tom Peterson told Byron he could have the items when he gave him real money.

Throughout this time Byron expected to be sued by Gorman Peterson. He then planned to use the courts to correct the monetary system. Instead Byron was indicted for grand theft and attempted grand theft. He was convicted by a Lawrence County jury on both counts. This appeal ensued.

I.

Prior to trial, the state sought to restrict Byron's use of the trial as his own political forum on the monetary issue and filed a motion in limine asking:

[F]or an Order instructing each defendant ¹ to refrain during the trial of the above-captioned case, from asking questions, making statements, referring to, or in any way introducing evidence attacking the monetary system of the United States, or the powers of the United States Congress to declare what shall be legal tender for all debts.

The motion to preclude the evidence was granted by the trial court. This issue and several others which touch it revolve around the matter of relevancy ² and the trial court's decision to limit preparation for and presentation of a legal defense. In this regard we do not believe the trial court erred.

In State v. McNamara, 325 N.W.2d 288 (S.D.1982), the defendant was charged with grand theft of livestock from his place of employment at a feedlot. After the state's rebuttal evidence, the defendant attempted to call four witnesses to testify concerning the memory of the rebuttal witnesses. The request was denied. In writing for the Supreme Court, Chief Justice Dunn wrote:

Questions as to the relevance of proffered testimony, such as that available from appellant's witness, are committed to the discretion of the trial court and are not grounds for reversal or a new trial unless abuse is clearly demonstrated. Weiby v. Wente, 264 N.W.2d 624 (Minn.1978). Opinions of others as to the lot manager's memory were immaterial to the question of guilt or innocence of grand theft of livestock. Appellant had ample opportunity to cross-examine the lot manager's memory and additional testimony on the subject was not crucial to appellant's case. Thus, we reaffirm our view that the question of whether evidence is immaterial, conjectural or remote must be left to the practical judgment of the trial court and rests largely in its discretion. Drier v. Perfection, Inc., 259 N.W.2d 496 (S.D.1977). (emphasis added).

325 N.W.2d at 291.

More recently in State v. Grooms, 399 N.W.2d 358 (S.D.1987), a case involving grand theft, this court continued to hold that "Relevance is a precursor to the admittance of any evidence,...." Id. at 361. In Grooms the preclusion of evidence was applied to the defendant's attempt at "unfettered cross-examination" of a key state witness. The defendant sought to elicit testimony concerning the witness' alleged abuse of the defendant's children. While recognizing the right to confront witnesses and to cross examine and impeach them, this court also held:

A trial court's discretion may be exercised at the expense of excluding relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury...." SDCL 19-12-3.

399 N.W.2d at 362. See also, State v. Olson, 408 N.W.2d 748 (S.D.1987); State v. Stavig, 416 N.W.2d 39 (S.D.1987); State v. McDowell, 391 N.W.2d 661 (S.D.1986); and Sabag v. Continental South Dakota, 374 N.W.2d 349 (S.D.1985). See generally, Weinstein, Evidence (1988), Vol. 1, pp. 403-1 to 403-82.

Turning then to the nature of the evidence Byron sought to introduce at trial, i.e., a challenge to the United States monetary system, we need to determine whether it was a defense which the jury could properly consider in a criminal case.

In United States v. Rifen, 577 F.2d 1111 (8th Cir.1978), the defendant sought to introduce evidence as to his beliefs on certain aspects of the Federal Reserve System and art. I, Sec. 10 of the United States Constitution which discusses legal tender. In declaring that these issues were not allowable, the Court of Appeals wrote:

No such evidence was necessary. Congress has declared federal reserve notes legal tender, 31 U.S.C. Sec. 392, and federal reserve notes are taxable dollars. See United States v. Daly, 481 F.2d 28 (8th Cir.), cert....