State v. Goodroad, 18467

• Citation: 521 N.W.2d 433
• Decision Date: 07 September 1994
• Docket Number: No. 18467,18467
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. Danny D. GOODROAD, Defendant and Appellee.
• Court: Supreme Court of South Dakota

Page 433

521 N.W.2d 433

STATE of South Dakota, Plaintiff and Appellant, v. Danny D. GOODROAD, Defendant and Appellee.

No. 18467.

Supreme Court of South Dakota.

Argued April 26, 1994.

Decided Sept. 7, 1994.

Mark Barnett, Atty. Gen., Sherri Sundem Wald, Asst. Atty. Gen., Pierre, for plaintiff and appellant.

Robert Van Norman, Rapid City, for defendant and appellee.

MILLER, Chief Justice.

This is an appeal from a circuit court's dismissal of a forgery charge on the grounds of insufficiency of the indictment and prosecutorial delay. We reverse.

STANDARD OF REVIEW

We apply the clearly erroneous standard of review to the trial court's factual determinations. State v. Harris, 494 N.W.2d 619, 622 (S.D.1993); State v. Brings Plenty, 459 N.W.2d 390, 399 (S.D.1990). We will not overturn the trial court unless its findings are against the weight of the evidence. Id. Findings of fact must support the conclusions of law. In re Kindle, 509 N.W.2d 278, 283 (S.D.1993); In re Hughes Cnty. Action No. Juv. 90-3, 452 N.W.2d 128 (S.D.1990).

We review a trial court's conclusions of law de novo. Harris, 494 N.W.2d at 622; State v. Engel, 465 N.W.2d 787, 789 (S.D.1991).

FACTS

In a grand jury indictment dated September 5, 1990, Danny B. Goodroad (Goodroad) was charged with forgery in violation of SDCL 22-39-36. The charges stemmed from the cashing of a $200 forged Western Union money order in a Piggly Wiggly store in Belle Fourche, Butte County, South Dakota on August 2, 1990. By the time a warrant for Goodroad's arrest was issued on September 6, 1990, Goodroad had fled South Dakota.

On October 7, 1990, Goodroad was arrested in Minnesota and charged with forgery of a Western Union money transfer check in Redwood Falls, Minnesota, on August 22, 1990. ¹ While incarcerated in Redwood County, Goodroad was shown, but not given, a copy of the Butte County indictment.

During the time Goodroad was in Minnesota, he was transferred in-state to Pipestone County, McLeod County, and Blue Earth County to face various forgery charges in those counties. He was also committed to the Willmar, Minnesota State Hospital at Willmar for approximately six weeks.

On May 14, 1992, at the Blue Earth County Jail, Goodroad signed a waiver of extradition from Minnesota to Pennington County, South Dakota. On May 17, 1992, he was transported to South Dakota to face criminal charges.

On June 8, 1992, he pled guilty in Pennington County to passing a forged Western Union money order on July 13, 1990. He was sentenced to five years in the South Dakota State Penitentiary and delivered there on June 10, 1992. Pennington County did not notify either Meade or Butte Counties that Goodroad was being transported to the penitentiary.

On December 10, 1992, Butte County filed an arrest warrant with the penitentiary. Goodroad was informed of Butte County's hold against him and, on December 17, 1992, he served a demand invoking his speedy trial rights upon the Butte County Clerk of Courts. On December 28, 1992, he served another demand for a speedy trial on the Presiding Judge of the Eighth Circuit Court, the Butte County State's Attorney, the Warden of the South Dakota Penitentiary and the Butte County Clerk of Courts.

On January 29, 1993, Goodroad was arraigned in Butte County and pled not guilty to the forgery charge and to a Part II Information charging him with being a habitual criminal in violation of SDCL 22-7-8.

During the next five months, Goodroad personally filed a number of motions:

1) A handwritten motion for change of counsel alleging his original counsel in this matter, the Northern Hills Public Defender's Office, had a conflict of interest.

2) A handwritten petition for a writ of mandamus to this Court requesting we order the trial judge to remove the Northern Hills Public Defender's Office and appoint other counsel.

3) A letter to his second counsel demanding the attorney not submit any motions without his approval and signature and stating that: "If you 'anticipate' trouble in doing as I request, or 'anticipate' doing the opposite of what I request in this case, please withdraw as my defense counsel right away."

4) A motion demanding recusal of the judge who had ruled against his motion for change of counsel.

In addition, Goodroad's third counsel filed two motions for continuance; one on April 23, 1993, and another on June 28, 1993. Both motions were granted.

On June 30, 1993, Goodroad filed a motion to dismiss the Butte County charge on the ground that prosecutorial delay had violated his constitutional right to a speedy trial. Hearings on the motion were held on July 1, 1993, and July 20, 1993. Also on July 1, the State filed a notice of demand for alibi defense. In Goodroad's July 12 response to the alibi demand, he also claimed the indictment was insufficient as it did not include the specific time of the alleged offense.

The trial court dismissed the indictment on July 21, 1993. It held the indictment was insufficient and that Goodroad's constitutional right to a speedy trial had been violated because there was no acceptable reason for prosecutorial delay between the date of the indictment, September 5, 1990, and Butte County's filing of an arrest warrant on December 11, 1992. The trial court also denied the State's motion to reconsider.

State appeals. We reverse.

DECISION

I. THE INDICTMENT WAS SUFFICIENT.

The trial court concluded the indictment did not adequately describe the offense with which Goodroad was charged so as to put him on notice of "that with which he is charged." We disagree.

For an indictment to be sufficient it must first state all the elements of the offense charged and inform the defendant of the charge against him and, second, must enable him to plead acquittal or conviction as a bar to future prosecutions for the same offense. United States v. Bailey, 444 U.S. 394, 414, 100 S.Ct. 624, 636-37, 62 L.Ed.2d 575, 593 (1980); State v. Oster, 495 N.W.2d 305, 307 (S.D.1993); State v. Younger, 453 N.W.2d 834, 840 (S.D.1990); State v. Logue, 372 N.W.2d 151, 155 (S.D.1985). We have consistently held that an indictment is generally sufficient if it employs the language of the statute the defendant is charged with violating. Oster, 495 N.W.2d at 307; Younger, 453 N.W.2d at 840; Logue, 372 N.W.2d at 155.

The grand jury indictment of Goodroad stated:

COUNT I FORGERY:

That on or about the 2nd day of August, 1990, in the County of Butte, State of South Dakota, DANNY D. GOODROAD, did, with intent to defraud, falsely make, complete or alter a written instrument of any kind, or passed such an instrument, in violation of SDCL 22-39-36; and, contrary to the statute in such case made and provided against the peace and dignity of the State of South Dakota.

SDCL 22-39-36 provides:

Any person who, with intent to defraud, falsely makes, completes or alters a written instrument of any kind, or passes such an instrument is guilty of forgery. Forgery is a Class 5 felony.

It is obvious that the indictment echoed the language of the statute; therefore, it apprised Goodroad of each element of the offense and informed him he needed to defend himself against the charge. Goodroad argued, and the trial court ruled, that the indictment was insufficient because it did not describe the particular written instrument which Goodroad was alleged to have forged. We disagree. First, the statute contains no such requirement. Second, during discovery, a copy of the forged Western Union money order was provided to defendant on February 3, 1993, some five months before he alleged the indictment was insufficient. There can be no doubt that at that date Goodroad knew precisely what instrument he was charged with forging and needed to prepare a defense against.

Further, there is no evidence that the indictment was inadequate in some manner which would prevent Goodroad from pleading an acquittal of the conviction as a bar to future prosecutions for the same offense. See State v. Wurtz, 436 N.W.2d 839, 843 (S.D.1989) (holding a defendant need not derive his only protection from double jeopardy from an information, proof beyond an information may be raised); State v. Floody, 481 N.W.2d 242, 247 (S.D.1992). Therefore, the indictment was sufficient on its face.

Moreover, even if we found the indictment had a defect or imperfection, which we do not, substantial rights of the defendant must be prejudiced for the indictment to be insufficient. SDCL 23A-6-14. ² Goodroad presented no evidence that his rights were affected in any manner by the allegedly insufficient indictment.

Thus, the trial court erred as a matter of law in granting Goodroad's motion to dismiss on the ground of insufficiency of the indictment.

II. THE TRIAL COURT ERRED BY DISMISSING THE INDICTMENT ON THE GROUND OF A VIOLATION OF THE RIGHT TO A SPEEDY TRIAL.

The Constitution of the United States provides in part:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed ...

U.S. CONST. Amend. VI.

Similarly, under the South Dakota Constitution, the accused shall have the right "to a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed." S.D. CONST. art. VI, Sec. 7.

We have adopted the four-factor balancing test set forth by the United States Supreme Court to determine whether an accused's right to a speedy trial has been violated. Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 2184, 33 L.Ed.2d 101, 117 (1972); State v. Traversie, 387 N.W.2d 2, 5 (S.D.1986).

The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed.... Though some might express them in different ways, we identify four such factors:

1) length of delay;

2) the reason for the delay,

3) the defendant's assertion of his right; and

4) prejudice to the defendant.

Bark...