State v. Dowling, 11132

• Decision Date: 26 October 1973
• Docket Number: No. 11132,11132
• Citation: 87 S.D. 532,211 N.W.2d 572
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Charles Dennis DOWLING, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 572

211 N.W.2d 572

87 S.D. 532

STATE of South Dakota, Plaintiff and Respondent, v. Charles Dennis DOWLING, Defendant and Appellant.

No. 11132.

Supreme Court of South Dakota.

Oct. 26, 1973.

John E. Goodrich, Pierre, for defendant and appellant.

Kermit A. Sande, Atty. Gen., Camron Hoseck, Asst. Atty. Gen., Pierre, Mick Grossenberg, State's Atty., Winner, for plaintiff and respondent.

DUNN, Justice.

Appellant was convicted of driving under the influence of intoxicating liquor by a Tripp County jury on November 19, 1971. His appeal presents several assignments of error which will be dealt with in the order of their importance.

The first and the most serious contention of the appellant is that the trial court abused its discretion in denying a continuance of the case until the results of a blood test could be received from Poisonlab, Inc., of Denver, Colorado. Appellant apparently disputed that a sample of blood which was tested by the State Laboratory at Vermillion was in fact his blood, and some 15 days before the case had been set for trial had arranged to have the blood sample taken by the state, and another blood sample of the appellant taken at St. Mary's Hospital in Pierre, forwarded to Poisonlab, Inc. of Denver, Colorado for comparison and identification. Appellant's attorney was notified on November 12th by telegram that these tests could not be completed in time for use at the trial which had been set for November 18, 1971 and appellant requested a continuance until such time as the tests could be completed and returned. This continuance was denied by the trial court.

This court has held that continuance of criminal cases is addressed to the sound discretion of the trial court. State v. Johnson, 76 S.D. 37, 71 N.W.2d 733. An accused is entitled as a matter of right to a reasonable opportunity to secure evidence on his behalf, if it appears that due diligence has failed to procure it, and where a manifest injustice results from denial of the continuance, the trial court's action should be set aside. State v. Wilcox, 21 S.D. 532, 114 N.W. 687. The question of abuse of this discretion is to be decided on the facts of each case. State v. O'Connor, 84 S.D. 449, 17o N.W.2d 48.

A cursory glance at the record might indicate that the trial court did act summarily in denying a motion for continuance in this case, However, the petition for continuance was not buttressed by any affidavit or even contention that would lead the trial court to seriously consider appellant's claim that the blood sample (Ex. 4) was indeed not his blood. It pointed out no irregularity in the taking, identifying, transporting, preserving or analysis of the blood by the State Laboratory. It was simply a flat statement that the appellant disputed the fact that the blood analyzed by the State was his blood.

The results of the blood test were definitely known to appellant and his counsel at the time of the preliminary hearing on September 22nd, as it was mentioned in the transcript, and probably were known to them much earlier as the slip from the State Laboratory (Ex. 3) containing the results of the test was dated August 26th and state's attorneys are generally very generous in advising a defendant or his counsel of a blood test of .31. The appellant was arraigned on October 5th at the opening of the Tripp County term and upon a plea of not guilty the matter was set for trial on November 18th. At neither the preliminary hearing nor at the time of arraignment was a request made for a further blood test. It was not until November 3rd that appellant's counsel met with the state's attorney and made arrangements for the blood to be sent to Poisonlab, Inc., for analysis. The state's attorney wrote on November 5th ordering the state chemist to send the blood to Poisonlab, Inc. and the blood arrived at Poisonlab, Inc. on November 10th, which, in view of the people that had to take action in the matter, was not an unreasonable delay. Poisonlab, Inc. immediately wired back that it could not have the blood analyzed until November 30th or a period of twenty days from the receipt of the blood sample. Accordingly, if the blood sample had been flown to Poisonlab, Inc. on November 3rd (the first date that appellant had made any request for the same) there is no way that the results could have been available for the trial on November 18th. If the appellant really attached the importance to this blood test before trial that he now indicates, he was most dilatory in having the sample sent to Denver. The situation is similar to that indicated in State v. Phillips, 18 S.D. 1, 98 N.W. 171, where a continuance was not garnted in order to procure a witness. The court in that case stated:

'A defendant held to answer at the circuit court for the commission of a crime cannot safely rely on the promises of witnesses to appear at the trial and testify, but he must see that they are subpoenaed, or their evidence taken, when it can properly be done, At the earliest possible date, in order to be in a position to ask for a continuance on account of their absence.'

Considering all of the circumstances of the case, including the failure of the appellant to give any basis for his claim that...