State v. Flittie

• Decision Date: 18 February 1988
• Docket Number: No. 15736,15736
• Citation: 425 N.W.2d 1
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Roger G. FLITTIE, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 1

425 N.W.2d 1

STATE of South Dakota, Plaintiff and Appellee, v. Roger G. FLITTIE, Defendant and Appellant.

No. 15736.

Supreme Court of South Dakota.

Considered on Briefs Feb. 18, 1988.

Decided June 8, 1988.

Robert Mayer, Asst. Atty. Gen., for plaintiff and appellee, Roger A. Tellinghuisen, Atty. Gen., Pierre, on brief.

Patrick M. Schroeder, Minnehaha County Public Defender, Sioux Falls, for defendant and appellant.

MILLER, Justice.

Roger G. Flittie (defendant) appeals his conviction on grand theft and petty theft charges. We affirm in part, reverse in part and remand for re-sentencing.

ISSUES

Defendant, both through counsel and pro se, raises several issues in this appeal. We hold that the majority of the issues are totally lacking in merit. (Specifically, through his counsel, he claims that (1) the trial court erred in refusing his proposed jury instructions 3, 4, 5 and 7; and (2) his due process rights were violated by charging more than one offense in a single count in the indictment. In his pro se brief, defendant argues that (1) the trial court erred in denying his motion to dismiss the Part II habitual offender information as defective; (2) State failed to meet its burden of proof; (3) the trial court erred in denying a proposed jury instruction to the effect that an essential element of grand theft by receiving stolen property is that he was a dealer of such property; (4) the trial court erred in excluding the testimony of one of his witnesses, Hazel Bonner; and (5) the trial court abused its discretion by allowing defendant's testimony to be impeached by his prior felony convictions.) Those issues are affirmed on the basis of settled law, no abuse of discretion, and clearly sufficient evidence to support the trial court's holdings.

The remaining issues raised by counsel are (1) whether the trial court erred in failing to consider two prior convictions as arising out of the same transaction, and (2) whether the trial court erred in refusing to suppress evidence found in the trunk of a vehicle.

ISSUE I

WHETHER THE TRIAL COURT ERRED IN REFUSING TO CONSIDER DEFENDANT'S CONVICTIONS FOR CONSPIRACY TO COMMIT MURDER AND ACCESSORY AFTER THE FACT TO MURDER AS ARISING OUT OF THE SAME TRANSACTION.

The Part II habitual offender information, under which defendant was sentenced, related to three prior convictions, to-wit: possession of marijuana with intent to distribute (United States District Court); conspiracy to commit murder; and accessory after the fact to murder.

SDCL 22-7-9 states as follows:

A prior conviction may not be considered under either Sec. 22-7-7 or Sec. 22-7-8 unless the defendant was, on such prior conviction, discharged from prison, jail, probation or parole within fifteen years of the date of the commission of the principal offense. In addition, only one prior conviction arising from the same transaction may be considered. (Emphasis added.)

Defendant principally argues that the trial court improperly considered the conspiracy to commit murder and accessory after the fact to murder as separate convictions for the purpose of sentencing. State, quite properly, concedes that the two offenses arose out of the "same transaction."

It is clear from our prior holding in State v. Flittie, 318 N.W.2d 346 (S.D.1982), that the conviction on the conspiracy charge was based on the same post-murder conduct as the accessory after the fact charge. Therefore, the sentence must be reversed and the case remanded for re-sentencing. ¹

ISSUE II

WHETHER THE TRIAL COURT ERRED BY REFUSING TO SUPPRESS EVIDENCE FOUND IN THE TRUNK OF A CAR OPERATED BY DEFENDANT AT THE TIME OF HIS ARREST ON OTHER CHARGES IN ANOTHER COUNTY.

A factual recitation is necessary to put this issue in its proper perspective.

Beginning in July, 1984, defendant met intermittently with one Ron Sweel (Sweel) at Canyon Lake Park in Rapid City, Pennington County, South Dakota. At a September 2, 1984, meeting, defendant told Sweel that he needed a typewriter and Sweel replied that he could have one in a couple days. Plans were then made to meet again at the park on September 4.

On September 3, a breakin occurred at Midwestern Homes in Rapid City, and some of the equipment taken included a Hewlett-Packard computer and several IBM typewriters.

On September 4, defendant purchased an IBM Selectric typewriter from Sweel out of Sweel's pickup at the Canyon Lake parking lot.

The next day, September 5, defendant was arrested by officers of the Rapid City Police Department for the offense of driving while under the influence of an alcoholic beverage (DUI). At that time defendant was operating a vehicle owned by and registered to a friend from Sturgis, South Dakota. Following routine procedures of the Rapid City Police Department, Officer Burdick (Burdick) inventoried the contents of the car, including the trunk, prior to having it towed away.

Burdick testified it is standardized departmental procedure that if a vehicle cannot be immediately turned over to someone and cannot be secured, it is inventoried and towed. According to Burdick, this is the routine procedure upon every arrest in which a vehicle must be secured, including all DUI's when the vehicle cannot be secured.

The car that defendant had been operating, in fact, could not be secured by the police because the doors would not lock. During the course of the inventory of the vehicle, Burdick located an IBM Selectric typewriter in the trunk and later discovered that it had been stolen from Midwestern Homes two days earlier. It was therefore seized and stored as evidence at the Rapid City Police Department. Although stolen, defendant was not charged with any offense relating to this typewriter.

On September 24, defendant and Sweel met in a downtown Rapid City parking lot where additional equipment was transferred from Sweel's pickup to the trunk of defendant's rental car. This property was also allegedly stolen from Midwestern Homes. Later, the equipment was transferred from defendant's rental car to his wife's car.

The following day, defendant left for Sioux Falls, South Dakota, in his wife's car (defendant knew that the car had been reported stolen by his wife) with both Sweel and other stolen equipment therein. Later in the day, an officer of the Sioux Falls Police Department saw the car, confirmed that it was reported stolen, and started to follow defendant. A high-speed chase resulted. Eventually, the police found the vehicle parked behind sand piles. Apparently, defendant had driven the car there and removed the equipment from the trunk with the intention of jumping back into the vehicle and later telling Sweel where the machines were located. However, defendant saw headlights, took off running, and was shortly apprehended by the police. The police observed that dust and dirt had been wiped away from the trunk lid area and that some keys remained in the trunk lock. Underneath a blanket located behind the vehicle, they found a typewriter and a Hewlett-Packard computer.

At trial, the typewriter found in the trunk of his friend's car at the time of the DUI arrest in Rapid City was introduced into evidence to show that defendant had knowledge of the stolen character of the other office equipment in his possession. ² The jury convicted defendant of petty theft in the first degree, by receiving stolen property, (i.e., the IBM typewriter) and grand theft by receiving stolen property (i.e., the Hewlett-Packard Computer). Later, after a court trial on the habitual offender information, defendant was found guilty. In subsequent proceedings, including an appeal to this court, the validity of one of defendant's prior convictions was successfully challenged and stricken from the Part II information. State v. Flittie, supra.

Defendant argues that the fact of his possession of the Selectric typewriter, taken from the vehicle in Rapid City, should have been suppressed. ³ We disagree.

a. Probable Cause.

Defendant argues that the Rapid City Police Officers failed to warn him not to drive and thus there was no probable cause for the DUI stop in the first instance. Defendant argues that having no probable cause for the DUI arrest is a basis for suppressing the search. Since this issue is raised for the first time on appeal, we would need not consider it. State v. King, 400 N.W.2d 878 (S.D.1987).

On the merits, however, we find that there was probable cause for the stop. Initially, we note that all that is needed to have probable cause for stopping a vehicle is a reasonable suspicion. Matter of Herrera, 393 N.W.2d 793 (S.D.1986). Here, the facts reveal that prior to defendant being stopped, Officers Burdick and Fox encountered defendant at a fight. Defendant refused to produce identification. At this time, Fox noticed defendant's eyes were bloodshot and red and that there was a strong odor of alcohol upon his breath. The officers observed defendant leave the area and get into the vehicle and drive away. Therefore, the officers had a reasonable suspicion that defendant was operating a motor vehicle while under the influence of alcohol. State v. Michalek, 407 N.W.2d 815 (S.D.1987); State v. Hall, 353 N.W.2d 37 (S.D.1984).

b. Search of Vehicle.

The second part of defendant's argument is that the search of the vehicle (his friend's) was invalid and thus the evidence of the typewriter found in the trunk should have been suppressed. State argues that the search was valid either under the automobile exception or the search incident to arrest exception.

We do not rule on the validity of the search under either exception because the search was an appropriate inventory search, which coincided with the intent of the officer as so specifically expressed in his testimony.

The first significant case in this state specifically dealing with inventory searches of automobiles is State v. Opperman, 89 S.D. 25, 228 N.W.2d 152 (S.D.1975) (Opperman I). In Opperman I, this court dealt with a situation...