State v. Giuliano

• Decision Date: 07 September 1978
• Docket Number: No. 12129,12129
• Citation: 270 N.W.2d 33
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Carmine GIULIANO, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 33

270 N.W.2d 33

STATE of South Dakota, Plaintiff and Respondent, v. Carmine GIULIANO, Defendant and Appellant.

No. 12129.

Supreme Court of South Dakota.

Sept. 7, 1978.

John P. Guhin, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on the brief.

Charles Rick Johnson, Johnson, Johnson & Eklund, Gregory, Theodore Krieger, Sayville, N. Y., for defendant and appellant.

WOLLMAN, Justice.

Appellant was tried on a three-count information. Count I charged the unlawful possession of "more than one ounce of marijuana; and, or less than one ounce of marijuana in a processed form"; Count II charged appellant with aiding and abetting the distribution or dispensing of marijuana; and Count III charged appellant with conspiracy to distribute or dispense a controlled substance. A jury convicted appellant on all three counts. Appellant was sentenced to two years' imprisonment on Count I, to three years and a $1,500 fine on Count II, and to one year on Count III, the sentences to run concurrently. We affirm.

The state's evidence, without the accomplice testimony of Marc Stekloff, established the following facts. On the evening Approximately twenty minutes later, the agents again called the cab company and were picked up by appellant. En route back to the Our Place bar, agent Gromer asked appellant where Stekloff was and informed him that Stekloff had earlier promised them some marijuana. The agents told appellant that they were interested in purchasing some foreign marijuana in pound quantities. Although there was some conflict in the testimony at this point, appellant apparently replied to the effect that he thought Stekloff could possibly furnish this but that they would have to call Stekloff back at the taxi office. Appellant further stated that he thought the price of a pound of marijuana was one hundred seventy-five dollars.

of October 30, 1975, state agent Don Gromer and Sheriff Dan Elston of Bon Homme County went to Vermillion to work on drug cases. From Our Place bar, they called a cab and were picked up by a taxi driven by one Marc Stekloff. They asked Stekloff to drive them to Beede Hall, a university dormitory. On the way they asked Stekloff whether he knew where they could get some marijuana. Stekloff advised the agents that he had a couple of "lids" of home-grown marijuana to sell. The agents expressed little interest in the offer but told Stekloff that they would call him should their Beede Hall contact fail to produce.

After obtaining one hundred fifty dollars from the Clay County Sheriff, agent Gromer returned to Our Place and observed Stekloff seated at the bar. Stekloff asked him whether he was still interested in purchasing the two lids of home-grown marijuana. Agent Gromer then informed Stekloff that he and Elston had discussed with appellant the possibility that Stekloff might sell them a pound of marijuana. Stekloff replied that prior to agreeing to such a purchase he would have to make a telephone call. When he returned from making the call, Stekloff told Gromer that a pound of marijuana was available for him to purchase. As Stekloff and the agents were leaving Our Place, Stekloff remarked that "they" sold marijuana as a business.

The two agents then accompanied Stekloff in his automobile to the trailer that served as the taxi company's office. Stekloff advised appellant that the agents were there to buy the pound. Appellant replied that Stekloff would have to get it out of the car and that the purchase would have to be made in the next trailer. Stekloff made the sale to the agents in his own trailer next door to the taxi office, whereupon the agents arrested him. Appellant was then arrested in the taxi office. A search of appellant's person turned up two sets of keys but no drugs. A search of the taxi office yielded a small quantity of marijuana, and a search of the trunk of Stekloff's car uncovered approximately two pounds of marijuana and .67 ounces of hashish.

Testifying for the state, Stekloff stated that appellant had placed the drugs in the trunk of his car because appellant's own car had recently been burglarized. He further testified that he believed appellant had a key to the trunk of his (Stekloff's) car and that he thought the drugs were owned by appellant and a person known to Stekloff as "Skeeter". Stekloff testified that he and appellant met at Godseye Lounge after appellant had dropped the agents off at Our Place. There, he and appellant discussed selling the agents two bags of marijuana, and when Stekloff returned to the taxi office, appellant bagged up two lids from the cache in the trunk. When Stekloff brought the lids to Our Place, the agents informed him that they were interested only in pound quantities. Upon arriving at the taxi office, Stekloff and appellant again discussed the advisability of the sale to the agents. Stekloff then went to his own trailer, where the sale was made.

Appellant's testimony generally disputed Stekloff's version of the events. Appellant denied owning any marijuana and denied placing any drugs in Stekloff's car. He denied having a key to Stekloff's trunk. Appellant further denied that he had met Stekloff at Godseye Lounge or that he had had anything to do with the sale.

REPUDIATION OF PLEA BARGAIN

On March 31, 1976, appellant and Stekloff entered into a plea bargain with the Clay County State's Attorney. Under that agreement, appellant would plead guilty to one count of aiding and abetting the distribution of a controlled substance and would assist the Division of Criminal Investigation as an unpaid narcotics agent in securing six or eight good drug arrests. In return for this, the state would drop the original four count information against appellant, acquiesce in appellant's request for a suspended imposition of sentence, and fully inform the court of appellant's cooperation as a mitigating circumstance.

By letter of June 11, 1976, the Clay County State's Attorney informed appellant that because he had "completely failed to carry out the plea bargain," the state was repudiating the agreement. Immediately prior to trial, appellant withdrew his guilty plea and was arraigned on the four count information. During the trial, out of the hearing of the jury, appellant introduced evidence that he asserts showed a good faith attempt to perform his part of the bargain.

Appellant contends that the trial court erred in allowing the state to unilaterally repudiate the plea bargain, thereby denying him due process of law under the rule of Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427. The state responds that because appellant failed to demand compliance with the plea bargain before he withdrew his guilty plea and proceeded to trial, the trial court was not called upon to decide whether the state could unilaterally withdraw the bargain. Therefore, the state argues, the issue of under what circumstances specific enforcement, rather than withdrawal of a guilty plea, must be employed to remedy a breached plea agreement is not before this court. See Palermo v. Warden, 2 Cir., 545 F.2d 286.

We conclude that the state's position is well taken. It is a well-established rule that the trial court must have been afforded an opportunity to rule on a point of law by proper motion or objection before we will entertain an argument based on the court's failure to so rule. State v. Gayton, 83 S.D. 141, 155 N.W.2d 919; State v. Kindvall, 86 S.D. 91, 191 N.W.2d 289; State v. Barr, S.D., 232 N.W.2d 257; State v. Miller, S.D., 248 N.W.2d 874. We see no reason to depart from that policy in this case. Santobello, supra, indicates that depending on the circumstances of the case, either specific performance or the opportunity to withdraw a plea will remedy a breached plea bargain. In this case, two months passed between the state's letter of repudiation and the trial, ample time for appellant to have moved the court for relief. Appellant nevertheless chose to withdraw his plea, a choice that went unopposed by the state. Cf. State v. Losieau, S.D., 266 N.W.2d 259. In the absence of a proper motion to compel the enforcement of the plea agreement, appellant will not be heard to complain on appeal that he was prejudiced by being permitted to withdraw his plea.

THE AMENDED INFORMATION

Appellant was initially charged in a four count information. Count I alleged the possession of more than one ounce of marijuana, and Count II alleged the possession of hashish. Following jury selection, but prior to the reading of the information, appellant moved to dismiss Count II on the ground that because no statute specified "hashish" as a controlled substance, Count II alleged no public offense. The trial court granted the motion. In response to the state's motion, the trial court amended Count I to charge appellant with the possession of "more than one ounce of marijuana; and, Or less than one ounce of marijuana in a processed form." (The italicized words constitute the extent of the amendment.)

Appellant first contends that SDCL 23-39-1 is the exclusive method provided in our statutes for amending informations and that since the amendment in question did not come within its terms, the court had no authority to amend. We believe appellant's reliance on SDCL 23-39-1 to be misplaced. That statute refers to amendments framed during trial to conform an information to An amendment to an information is improper only if a defendant suffers prejudice as a result. SDCL 23-1-2. Appellant does not complain of surprise, nor does he contend that the amended information went beyond the evidence presented at the preliminary hearing. See State v. Martin, 85 S.D. 587, 187 N.W.2d 576. Appellant having suffered no prejudice resulting from the amendment, we hold that the trial court did not err in permitting the state to amend the information.

the proof adduced at trial. See e. g., State v. Long, 85 S.D. 431, 185 N.W.2d 472. We...