State v. Goodale

Decision Date24 May 1972
Docket NumberNo. 10980,10980
Citation86 S.D. 458,198 N.W.2d 44
PartiesThe STATE of South Dakota, Plaintiff and Respondent, v. Carl GOODALE, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Kean & Kean, Gene Paul Kean, Sioux Falls, for defendant and appellant.

Gordon Mydland, Atty. Gen., C. J. Kelly, Asst. Atty. Gen., Pierre, George Weisensee, State's Atty., Sioux Falls, for plaintiff and respondent.

WINANS, Judge.

The defendant, Carl Goodale, and one Gene Guyton were arrested and conjointly charged with the commission of crimes under three counts:

Count 1, burglary in the third degree;

Count 2, grand larceny; and

Count 3, possession of burglary tools.

They were given a preliminary hearing, were represented by separate counsel and were bound over to the circuit court on each count. Guyton, thereafter electing to plead guilty to the charge of burglary in the third degree, was sentenced to three and one-half years in the penitentiary. Counts 2 and 3 were dismissed as to him. Goodale elected to stand trial and the jury returned a verdict of guilty on all three counts against him. The trial of his case commenced February 9, 1971, the jury received the case for its consideration February 11, 1971 and returned its verdict three hours later. On March 16, 1971 the defendant appeared before the court for sentencing. Before being sentenced, defendant presented sworn evidence for the court to consider in passing sentence. At this same time the defendant made a motion to the court which will be hereinafter referred to and elaborated upon as it is one of the more serious assignments made the basis for defendant's appeal. After this motion and its denial, Goodale was sentenced to seven years in the state penitentiary for the crime of burglary in the third degree, five years in the penitentiary on the grand larceny charge and two years on the charge of possession of burglary tools, all of said sentences to run concurrently. The permissible sentence for burglary in the third degree is imprisonment in the state penitentiary for any term not exceeding 15 years, SDCL 22--32--10; the permissible sentence for grand larceny is imprisonment in the state penitentiary not exceeding 10 years, SDCL 22--37--3; and for possession of burglary tools not exceeding five years, SDCL 22--32--17.

The defendant, by proper assignments of error, presents to this court five questions for decision. The first and third assignments in a sense present somewhat the same or similar problems and will be considered together. In his first assignment the defendant claims the court erred by not allowing the defendant's motion for a new trail upon the ground of prejudicial remarks between witnesses and the members of the jury panel. At the time of the sentencing the defendant asked for permission to address the court and addressing the court said he wished to make a motion for a mistrial 'because a member for the prosecution visited with several members of the jury panel prior to the jury being selected that afternoon of the eighth, I believe it was, and this member also did mention my case.' Upon questioning by the court, defendant named Officer Ideker and his wife as having visited with a person who became the foreman of the jury. The court then inquired as to the nature of the conversation and the defendant replied,

'He said, 'I cannot understand why Mr. Goodale is requesting a jury trial. It's obvious that he's guilty.' Now, that's not verbatim; I can't recall exactly how it was, but that's similar enough.

THE COURT: And when did you first become aware of this?

THE DEFENDANT: The afternoon of the 8th, I believe it was, that the jury was selected. Might I also mention that my attorney, Mr. Rasmussen, had talked to Mr. Ideker on this matter, and he admitted that he had talked with these members of the jury. I think one was a relative of his, and Mr. Mayer, and he did admit it, and I want to also have written into the record today that I mentioned to Mr. Ideker at the time that there was a visit between them, and that he was sitting outside in the Courtroom with the jury panel as they were being selected--he and his wife.'

The court denied defendant's motion whereupon Mr. Rasmussen, the attorney for defendant, made the following statement:

'In that connection, let the record show that so far as any conversations that I may have had with jurors--in the statement of Mr. Goodale's--the notation should be made that I at no time have consulted with Officer Ideker in this regard. I may have consulted with other individuals, but I at no time have discussed this particular matter tith Officer Ideker. May I now proceed with a statement, Your Honor?'

He then proceeded to give reasons for leniency. Regarding this contention of defendant it is noted that by his own admission he became aware of what he claims to have occurred on the afternoon of the 8th when the jury was selected to try the case. From that date until the date of sentencing, neither he nor his attorney informed the court of defendant's claim of any such occurrence. It is also pointed out that in one respect his attorney flatly contradicts client's statement that he, the attorney, had talked to Mr. Ideker on this matter. Officer Ideker testified on behalf of the state in the action. In State v. Roden, 1959, 216 Ore. 369, 339 P.2d 438, where a motion for a mistrial was made 'on the ground that one of the chief witnesses for the State, Mrs. Fowler, was conversing with one of the jurors by the name of Rena Bush last night, she being Juror No. 10 in this case', the Court held:

'We could well dispose of this case on the ground that the motion for a mistrial was not made promptly. It appears that the juror and a witness carried on some conversation as they left the courthouse after court adjourned for the day on March 24, 1958. This conduct was observed by defendant and his counsel. Defendant did not call the matter to the attention of the court the following morning, but without objection allowed the trial to proceed and the issue of his guilt or innocence to be submitted to the jury. It is well settled that a party who learns of the misconduct of a juror during the trial may not keep silent and take advantage of it in the event of an adverse verdict.' (citations omitted)

We also quote with approval the following from Tucker v. Salem Flouring Mills Co., 13 Ore. 28, 7 P. 53:

'A jury trial would be a miserable farce if the jurors were permitted to be tampered with in any manner whatever. Such trials should be kept entirely free from all suspicion that influences of that character had been exercised to any extent. The granting of a new trial, however, in such a case, is a matter addressed to the discretion of a trial judge, and his decision cannot be reviewed by this court unless there has been an abuse of discretion; and we cannot reasonably conclude that there was any such abuse in this case. The circuit judge was in a much better situation than this court is, to determine the question. He understood better the circumstances under which the conversation took place in the presence of the juror, the nature of it, and its effect upon the case.'

In principle, this rule of law is supported by the following cases which recognize that misconduct must be promptly called to the attention of the trial court, and when the appellant waits until either the jury retires, or the jury returns an unfavorable verdict against him, his delay either amounts to a 'waiver' of the claimed error, or is such that an appellate court need not consider such claim of error Powell v. State, 231 Ark. 737, 332 S.W.2d 483; Robinson v. State, Fla.App., 145 So.2d 561; Sundahl v. State, 154 Neb. 550, 48 N.W.2d 689; State v. Shafer, 222 Ore. 230, 351 P.2d 941; State v. Hollingsworth, 2 Ore.App. 186, 465 P.2d 490; North v. Cupp, 89 Ore. 703, 461 P.2d 271; Clinton v. Commonwealth, 204 Va. 275, 130 S.E.2d 437.

Polin v. State, 14 Neb. 540, 16 N.W. 898, 902 involved a first degree murder case and a death sentence. There it was shown that in disobedience of a court order and during trial, three of the jurors separated from the others and engaged in conversation with bystanders. Defendant's counsel knew of it, made no complaint to the court, and trial proceeded. Objection was made in motion for a new trial. The Nebraska Supreme Court held that it came too late. The Court said:

'Parties litigant, even defendants in criminal cases, must deal fairly by the court. They are not permitted to withhold information of matters transpiring in the progress of a trial, whether prejudicial or otherwise, and thus, without objection, permit it to proceed to a conclusion, and then take advantage of them. Generally all objections not jurisdictional as to the subject of the litigation must be made at the first opportunity or they are deemed to be waived. The rule in such cases is that a party shall not be permitted without objection to take the chances of a favorable result, and then, if disappointed, for the first time complain.'

This rule of law was again cited with approval by the Nebraska Supreme Court in Sundahl v. State, 154 Neb. 550, 48 N.W.2d 689, in a murder case where the death penalty was given.

The appellant has cited the case of State v. Brown, 84 S.D. 201, 169 N.W.2d 239, in support of his position. However, State v. Brown and this case are readily distinguishable upon their facts. In Brown the misconduct was immediately brought to the attention of the trial court and a mistrial requested. The request was denied and the alleged misconduct of the jury was again presented by motion for a new trial, supported by several affidavits. In the present case, the alleged misconduct occurred before the trial commenced and either before or while the jury was being impaneled. It was not brought to the attention of the court until over a month later, and even then was made solely on the self-serving declarations of the appellant himself, unsupported by...

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8 cases
  • State v. O'Connor, 11942
    • United States
    • Supreme Court of South Dakota
    • April 20, 1978
    ...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 ......
  • State v. Braun, 14260
    • United States
    • Supreme Court of South Dakota
    • February 16, 1984
    ...different degrees of punishment upon one than is imposed upon all for like offenses is a denial of such right." State v. Goodale, 86 S.D. 458, 466, 198 N.W.2d 44, 48-49 (1972). Appellant was, through the advocacy of the State's Attorney of Spink County, punished differently than other first......
  • State v. Huettl, s. 14669
    • United States
    • Supreme Court of South Dakota
    • December 11, 1985
    ...for like offenses is a denial of [equal protection]." State v. King, 82 S.D. 514, 516, 149 N.W.2d 509, 510 (1967). In State v. Goodale, 86 S.D. 458, 198 N.W.2d 44 (1972), we pointed out that such rule expresses the law with respect to statutes providing different punishments for different c......
  • State v. Kafka, 12246
    • United States
    • Supreme Court of South Dakota
    • April 6, 1978
    ...property to be kept in the enclosures, whereas SDCL 22-32-16 does not. The conclusion of State v. O'Connor, supra; State v. Goodale, 1972, 86 S.D. 458, 198 N.W.2d 44, and State v. Myott, 1976, S.D., 246 N.W.2d 786, is simply To meet the legal test of a "necessarily included offense," first,......
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