State v. Guthrie, No. 22311.

• Court: Supreme Court of South Dakota
• Writing for the Court: GILBERTSON, Chief Justice.
• Citation: 2002 SD 138,654 N.W.2d 201
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. William Boyd GUTHRIE, Defendant and Appellant.
• Docket Number: No. 22311.
• Decision Date: 20 November 2002

654 N.W.2d 201
2002 SD 138

STATE of South Dakota, Plaintiff and Appellee,
v.
William Boyd GUTHRIE, Defendant and Appellant

No. 22311.

Supreme Court of South Dakota.

Considered on Briefs October 8, 2002.

Decided November 20, 2002.

654 N.W.2d 202

Michael R. Moore, Beadle County State's Attorney, Huron, SD, for plaintiff and appellee

Philip R. Parent of Arneson, Issenhuth & Gienapp, Madison, SD, for defendant and appellant.

GILBERTSON, Chief Justice.

[¶ 1.] This appeal arises from a remand hearing in which the circuit court determined the sanctions levied against attorney Philip R. Parent for violating a discovery order to be reasonable. We reduce the amount of the sanction from $8,866 to $5,500.

654 N.W.2d 203

FACTS AND PROCEDURE

[¶ 2.] On January 21, 2000, William Boyd Guthrie was convicted of first-degree murder for the killing of his wife. State v. Guthrie, 2001 SD 61, ¶ 28, 627 N.W.2d 401, 413 (Guthrie I). During the course of the trial and after the State had rested its case-in-chief, defense counsel, Philip Parent, for the first time, disclosed his intent to introduce a purported suicide note into evidence. In order to authenticate this note, Parent also sought to call an expert to the stand. Although the trial court allowed the introduction of the note and the testimony of the expert, it reserved a ruling on whether Parent's actions violated the pre-trial discovery order¹ and whether the State should be awarded terms.

[¶ 3.] After the trial, the State filed a Motion for Terms, requesting that Parent be ordered to pay for part of the cost of recalling the State's expert witness, Judd Robbins, who lived in Nevada, to refute the alleged suicide note. After a hearing, the circuit court found that Parent had violated the discovery order, granted the State's motion, and ordered Parent to pay $8,866. Parent appealed that decision and we remanded the case back to the circuit court to determine the reasonableness of the sanctions. State v. Guthrie, 2001 SD 89, ¶ 17, 631 N.W.2d 190, 196 (Guthrie II). Because the trial court had not conducted a factored analysis for determining reasonableness, we instructed the circuit court to consider the following factors in the remand hearing: 1) reasonable hours expended multiplied by a reasonable fee; 2) the severity of the sanction weighted against the equities of the parties, including ability to pay; 3) availability of less drastic sanctions which would prevent future abuses; and 4) other factors including the offending party's history and degree of bad faith contributing to the violation. Id. ¶ 12, 631 N.W.2d at 195 (citing White v. General Motors Corp., Inc., 908 F.2d 675, 684-86 (10th Cir.1990); Chittenden & Eastman Co. v. Smith, 286 N.W.2d 314, 316-17 (S.D.1979)).

[¶ 4.] The remand hearing was held on November 5, 2001. After considering all of the evidence, the circuit court judge concluded that the sanctions were not unreasonable. Parent appeals this decision, and raises the following issue:

Whether the trial court erred in determining that the monetary sanction of $8,866 was reasonable.

STANDARD OF REVIEW

[¶ 5.] "[T]he trial court's choice of remedy or failure to grant a particular remedy is reviewed under an abuse of discretion standard." State v. Hagan, 1999 SD 119, ¶ 19, 600 N.W.2d 561, 566 (citing State v. Hofman, 1997 SD 51, ¶ 17, 562 N.W.2d 898, 903). Pursuant to an abuse of discretion standard of review, factual determinations are subject to a clearly erroneous standard. City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25 (citing New Era Mining Co. v. Dakota Placers, Inc., 1999 SD 153, ¶ 7, 603 N.W.2d 202, 204) (citing Rabenberg v. Rigney, 1999 SD 71, ¶ 4, 597 N.W.2d 424, 425 (citing In re Estate of O'Keefe, 1998 SD 92, ¶ 7, 583 N.W.2d 138, 139)). "Clear error is shown only when, after a review of all the evidence, `we are left with a definite and firm conviction that a mistake has been made.'" Id. "The trial court's findings of fact are presumed correct and we defer to those findings unless the evidence clearly preponderates against them." Lewis v.

654 N.W.2d 204

Moorhead, 522 N.W.2d 1, 3 (citing Cuka v. Jamesville Hutterian Mut. Soc., 294 N.W.2d 419, 421 (S.D.1980)). Conclusions of law are reviewed under a de novo standard, giving no deference to the circuit court's conclusions of law. Sherburn v. Patterson Farms, Inc., 1999 SD 47, ¶ 4, 593 N.W.2d 414, 416 (citing City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771)

ANALYSIS AND DECISION

[¶ 6.] Whether the trial court erred in determining that the monetary sanction of $8,866 was reasonable.

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