State v. Hackney

• Decision Date: 05 January 1978
• Docket Number: No. 12005,12005
• Citation: 261 N.W.2d 419
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. William HACKNEY, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 419

261 N.W.2d 419

STATE of South Dakota, Plaintiff and Respondent, v. William HACKNEY, Defendant and Appellant.

No. 12005.

Supreme Court of South Dakota.

Argued April 27, 1977.

Decided Jan. 5, 1978.

Peter H. Lieberman, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on the brief.

Keith R. Smit and John T. Hughes of Morman, Smit, Shepard & Hughes, Sturgis, for defendant and appellant.

PORTER, Justice.

CASE SUMMARY

This is an appeal from a conviction of second degree manslaughter. Defendant-appellant alleges that he was not under lawful arrest at the time police officers obtained a sample of his blood, that photographs inaccurately depicting the accident scene involved in this case were erroneously admitted in evidence, and that the results of the blood test should not have been admitted because it could not be shown with certainty that it was his blood sample. We conclude that defendant was under lawful arrest at the time the blood sample was taken, and that the photographs and blood sample were admissible. We, therefore, affirm the conviction.

FACTS

At approximately 7:10 p. m. on August 7, 1975, defendant was involved in a motorcycle accident on Highway 385 in Lawrence County, when his motorcycle collided with another motorcycle ridden by Curtis Langel. At 7:15 p. m. David Scherer, jailer and deputy sheriff of Lawrence County, was called to the scene of the accident. He contacted the Deadwood Police Department dispatcher requesting an ambulance and additional police help, picked up the ambulance attendant, and drove to the accident site. They found two motorcycles hooked together on the northbound lane of traffic and observed defendant and Langel, who were injured and lying on the road. Deputy Scherer and Colleen Bachand, the ambulance attendant, began to administer first aid to them. By this time, Larry Schallenkamp, deputy sheriff of Lawrence County, and Richard Hagerty, a South Dakota Highway Patrolman, had arrived to help direct traffic and administer first aid. Defendant had injuries on his face and a broken leg; Deputy Scherer and Hagerty put an air splint on his leg, and a bandage on his face to control the bleeding. Langel did not seem to be improving, so Colleen Bachand and Deputy Scherer took him by ambulance to the hospital in Deadwood. Hagerty remained with defendant until a second ambulance arrived and defendant was then taken to the hospital. Hagerty and Schallenkamp remained at the site and proceeded with their investigation of the accident, clearing the road, making it safe for other travel, locating the point of impact, and taking statements from witnesses. Hagerty received a message that there was another bad accident several miles away, and responded to the call, leaving Schallenkamp in charge of the accident scene. Schallenkamp directed traffic and waited for a wrecker to pick up one of the motorcycles. After the road was cleared for travel, he gave a friend of one of the injured drivers a ride to the hospital. When they arrived at the hospital in Deadwood, Langel and defendant were being placed in an ambulance to be taken to the hospital in Rapid City. Langel died the next morning in Rapid City. Defendant was hospitalized in Rapid City and Hastings, Nebraska, for approximately three months, and went back Defendant and two of his friends testified that he had been drinking in the morning on the day of the accident, but had nothing to drink for the rest of the afternoon. Witnesses to the collision testified that Langel was traveling north into a lefthand curve as defendant entered the curve from the north; defendant could not make the curve, and drifted into the northbound lane of traffic, colliding with Langel. Officer Hagerty and Deputy Scherer both smelled alcohol on defendant at the accident scene, and Hagerty requested that Schallenkamp take blood tests from both Langel and defendant. Blood was drawn from defendant by the medical technologist at the hospital in Deadwood and tests revealed a content of 0.14 percent alcohol by weight, which sample and test results were admitted in evidence at trial.

to work approximately seven months after the accident.

On the evening of the accident the investigating officers found gouge marks in the highway where the motorcycles had collided. They circled the marks on the highway with white chalk and attempted to take measurements. At approximately 9:30 the following morning Schallenkamp and Hagerty returned to the scene to take measurements and photographs, which were admitted in evidence at trial.

Defendant was subsequently tried by jury and convicted of manslaughter in the second degree. This appeal stems from that conviction.

ISSUES

This appeal presents these issues:

Issue One Was defendant under lawful arrest when Deputy Scherer requested and obtained a sample of his blood?

Issue Two Did the trial court err by admitting photographs of the accident scene, which were taken on the morning following the day of the accident?

Issue Three Did the trial court err by admitting the results of the blood test because it could not be shown with certainty to be defendant's blood sample?

DECISION

ISSUE ONE

We conclude that defendant was under lawful arrest when Deputy Scherer requested and obtained a sample of his blood.

In his brief and at oral argument defendant conceded that the officers had probable cause to arrest him without a warrant, because the officers testified that they smelled alcoholic beverages on his person and there was no doubt that he had been in an accident. See SDCL 32-23-1.1. ¹ The precise issue is whether defendant was legally arrested.

The investigating officers testified that none of them arrested defendant at the scene of the accident. After defendant had been taken to the hospital in Deadwood, Deputy Scherer approached him and asked if he could take a blood sample from him. At the trial Scherer said, "I read Mr. Hackney his Miranda warning, and the State Implied Consent Law, advised him that he was under arrest for DWI, and that we would like to draw blood." The first statement of the implied consent warning given was, "I have arrested you for DWI, a violation of 32-23-1." Defendant consented to the blood test and the sample was taken. At the suppression hearing prior to the trial Deputy Scherer had testified that he had not placed defendant under arrest at the hospital because the arrest warrant was not issued until later and he did not take him into custody; but he stated that he had technically arrested defendant. On cross-examination at trial he clarified his earlier testimony as follows Q In fact isn't it true to say that at the time at the hospital you had no intentions of arresting the defendant?

A No, that's not correct.

Q You mean just shortly before this trial you would tell my associate that you did not arrest him, but that at the hospital you did intend to arrest him?

A I told your associate I did not arrest him, as far as taking him into custody. I explained this to Mr. Hughes. It was my intention, as I've explained previously, to place Mr. Hackney under technical arrest, due to his injuries he was not in a position to be placed in jail.

Q What is a technical arrest, in your opinion?

A In my opinion it's advising someone that they are under arrest.

At the suppression hearing prior to the trial Deputy Scherer also testified that he continued the investigation of the accident after defendant had been moved to the hospital in Rapid City. He said he contacted the hospital the day after defendant was moved to Rapid City and instructed the employees to inform him when defendant was about to be released. He contacted the hospital twice to inquire about defendant's condition and release. On August 11, 1975, he signed a formal complaint charging defendant with second degree manslaughter and a warrant was issued for defendant's arrest. Subsequent to the issuance of the complaint and the warrant, defendant was released from the hospital. Because the hospital failed to inform Deputy Scherer of defendant's release, he was not arrested until he had returned home to Nebraska.

Defendant contends that Deputy Scherer's statement, "I have arrested you for DWI . . . " in the hospital in Deadwood was not sufficient to constitute a lawful arrest. ² He conceded at oral argument that at the time the statement was made he understood what Deputy Scherer said to him and he knew he was not free to go, but contends that the officer did not have the requisite subjective intent to arrest him at that time. SDCL 23-22-9 provides: "When arresting a person without a warrant, a peace officer must inform him of his authority and the cause of the arrest, except when he is in the actual commission of a public offense, or is pursued immediately after an escape." In this case defendant does not contend that he was unaware that Scherer was acting in his official capacity as deputy sheriff, and Scherer clearly informed him that the cause of the arrest was driving while intoxicated. ³ SDCL 23-22-4 provides: "An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer. The defendant is not to be subjected to any more restraint than is necessary for his arrest and detention." Defendant SDC 1960 Supp. 34.1609 (now SDCL §§ 23-22-7 to 23-22-9), requiring an officer making an arrest without a warrant to inform the person being arrested the officer's authority and the cause of arrest, provides no particular ritual to be followed. The rule is satisfied if what is said and done makes clear why the arrest is being made. (Citations omitted) As a general rule, the notice is sufficient when it is such as to inform a reasonable man of the authority and purpose of the one making the arrest, and the reason thereof....