State v. Holiday

• Decision Date: 08 June 1983
• Docket Number: No. 13755,13755
• Citation: 335 N.W.2d 332
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Reid M. HOLIDAY, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 332

335 N.W.2d 332

STATE of South Dakota, Plaintiff and Appellee, v. Reid M. HOLIDAY, Defendant and Appellant.

No. 13755.

Supreme Court of South Dakota.

Argued Oct. 14, 1982.

Decided June 8, 1983.

Mikal Hanson, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Rodney Freeman, Jr. of Churchill, Manolis & Freeman, Huron, for defendant and appellant.

MORGAN, Justice.

This appeal arises from appellant Reid Holiday's (Holiday) felony convictions for first-degree robbery and committing a felony when armed with a firearm and his subsequent conviction as a habitual offender. We affirm in part, reverse in part and remand with instructions.

Around midnight on April 26, 1979, three men stopped at a farmhouse near Hitchcock, South Dakota. The men tied up and blindfolded the farmer (victim), pistol-whipped him, and demanded money. They left, taking with them money, five or six guns, and a pair of binoculars. About three months later, in July of 1979, Herbert Evans (Evans) called the Sioux Falls Police Department, confessed to participating in the robbery and identified the other two participants. Evans identified Holiday as one of the participants. The sheriff prepared a photographic lineup consisting of eight photographs, including photographs of Holiday and the other robbery participant. Upon showing the victim the photographs, victim identified Holiday but was unable to identify the other participant.

On August 27, 1979, Holiday was served with an arrest warrant containing charges arising from the incident at the farmhouse. At that time Holiday was serving a sentence in the South Dakota State Penitentiary for the conviction of an unrelated crime in Brookings County, South Dakota. As of December 7, 1979, a preliminary hearing had not been held. On that date upon motion of the State, the charges against Holiday were dismissed without prejudice because Evans, the key witness, failed to appear. Twenty-two months later, on October 14, 1981, Holiday was again arrested on charges stemming from the incident at the farmhouse. He was charged with first-degree robbery and committing a felony while armed with a firearm. A preliminary hearing was held on December 9, 1981, even though Evans again did not appear. In January, 1982, Holiday moved for dismissal based on denial of his right to a speedy trial and for suppression of the evidence of the photographic identification procedure. In March, 1982, the court denied such motions and Holiday was found guilty by a jury on these felony charges. Subsequently, the court adjudicated Holiday as a habitual offender and sentenced him to life imprisonment in the penitentiary.

Holiday appeals his conviction on several grounds. He alleges the length of time (834 days) between his initial arrest and the preliminary hearing violates his constitutional due process right to a speedy trial. Holiday also contends the trial court erred in failing to properly dispose of his pretrial motions.

The first question that we must consider is whether Holiday is correct in computing the time of delay of trial from his first arrest on August 27, 1979. We hold that he is not. The United States Supreme Court in United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), held that, although the speedy trial right under the Sixth Amendment attaches when a formal criminal charge is instituted and a criminal prosecution begins, the provision "has no application after the Government, acting in good faith, formally drops charges." 456 U.S. at 7, 102 S.Ct. at 1501, 71 L.Ed.2d at 703 (emphasis supplied). Holiday asserts that the State was not acting in good faith when the charges were dismissed. The ground alleged by the State for postponement of the preliminary hearing scheduled on November 21, 1979, and the dismissal of charges before the preliminary hearing scheduled on December 7, 1979, was the failure of Evans, the accomplice-informant, to appear for testimony. Holiday points out that when the preliminary hearing was eventually held after his second arrest, Evans again failed to appear; but, as Holiday emphasizes, the State proceeded to the hearing with only the testimony of the victim and the Spink County Sheriff. Of course, as the record shows, the State succeeded in having Holiday bound over for trial. Admittedly, the burden of proof on the State at a preliminary hearing is not as heavy as at trial, but we certainly cannot say that an accomplice-informant is not a principal witness, even at a preliminary hearing. Whom the state's attorney considers necessary witnesses is a matter of prosecutorial discretion and we do not care to second-guess the state's attorney in this instance. The ultimate success in binding Holiday over without Evans' testimony is after the fact and is not persuasive evidence of bad faith. ¹

We hold that the period from Holiday's arrest and formal charge in September, 1979, to his re-arrest and formal charge on October 14, 1981, is not includable in the computation under the speedy trial provisions of the United States or South Dakota Constitutions.

Accordingly, we consider whether the period from October 14, 1981, when Holiday was formally charged anew, and March 10, 1982, when he was tried, violates his speedy trial rights. In State v. Starnes, 86 S.D. 636, 200 N.W.2d 244 (1972), this court considered the right to speedy trial under the federal constitution. Although the opinion was somewhat divergent on the application thereof, it was the unanimous conclusion of this court that the four-factor balancing test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), was applicable. Again, in State v. Black Feather, 249 N.W.2d 261 (S.D.1976), this court applied the four-factor balancing test of Barker, supra, to our state constitutional provision, noting the absence of any legislative provision defining speedy trial thereunder.

The four factors as delineated in Barker, supra, are: (1) length of delay; (2) reason for delay; (3) assertion of right; and (4) prejudice to the accused. The United States Supreme Court said in Barker: "The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial there is no necessity for inquiry into the other factors that go into the balance." 407 U.S. at 530, 92 S.Ct. at 2192. 33 L.Ed.2d at 117. In Starnes, supra, the length of delay resulting in dismissal was twenty-five months. In State v. Black Feather, supra, the delay was thirty-three months and resulted in dismissal. In State v. Pickering, 87 S.D. 331, 207 N.W.2d 511 (1973), a delay of four months was not sufficient to require reversal. Here, Holiday claims a delay of five months requires dismissal of the charges.

We hold that Holiday's delay of only five months is not presumptively prejudicial, thus inquiry into the other factors is not necessary. Holiday's right to speedy trial under the federal and state constitutions was not violated.

Holiday next argues that the State brazenly violated SDCL 23A-4-3, ² which establishes the maximum time within which a preliminary hearing shall be scheduled. Holiday claims that this violation gives rise to a claim of deprivation of due process and equal protection rights under the federal and state constitutions.

The right to a preliminary hearing is in itself a statutory, not a constitutional, right. State v. Reggio, 84 S.D. 687, 176 N.W.2d 62 (1970). SDCL 23A-4-3 is the State's counterpart of Rule 5 of the Federal Rules of Criminal Procedure (FRCRP). A review of the history of Rule 5(b) FRCRP, the time limitation provision, reveals the provision is traced to 18 U.S.C.A. Sec. 3060, wherein such time limitation, ten days if in detention and twenty days otherwise, was first enacted. Subsection (e) of that enactment provides, in essence, that upon failure to accord an accused a preliminary hearing within the limitations fixed by (b), the accused "shall be discharged from custody, or the requirement of bail or any other condition of release, without prejudice, however, to the institution of further criminal proceedings against him upon the charge upon which he was arrested." This is, in effect, precisely what happened after Evans had failed to appear for the December 7, 1979, preliminary hearing. In our opinion, the state's attorney and the trial court were correct in dismissing the charge without prejudice.

Viewing now the circumstances following October 14, 1981, the date of Holiday's second arrest, we again find no error. The time period from the first appearance on October 14, 1981, to the date of the preliminary hearing scheduled for November 16, 1981, fell well within the statutory limit. Again, the illusive witness failed to appear and the State moved for a postponement to December 2, 1981. Holiday repeats his argument that the postponement was not supported by good cause because the State eventually proceeded to preliminary hearing and secured his binding over without Evans' testimony. We find this argument against prosecutorial discretion no more persuasive in this regard than we did as to good faith in dismissing the charges on December 7, 1979, hereinabove discussed with respect to speedy trial.

Having determined that there is no statutory basis for error, we next turn to Holiday's argument that the alleged violations infringed upon his constitutional rights of due process under the Fifth and Fourteenth Amendments of the United States Constitution and Article VI, Secs. 2 and 18 of the South Dakota Constitution. In State v. Lufkins, 309 N.W.2d 331 (S.D.1981), we stated: "To warrant a reversal or dismissal of the case, appellant must show he was prejudiced by the delay in obtaining a preliminary hearing." Id. at 335. No reference was made to constitutional authority, although the issue was framed as a due-process question. We did cite to State v. Warner, 86 N.M. 219, 521 P.2d 1168 (197...