State v. Hoover

• Decision Date: 12 December 1975
• Docket Number: No. 11538,11538
• Citation: 236 N.W.2d 635,89 S.D. 608
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Randall Gene HOOVER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 635

236 N.W.2d 635

89 S.D. 608

STATE of South Dakota, Plaintiff and Respondent, v. Randall Gene HOOVER, Defendant and Appellant.

No. 11538.

Supreme Court of South Dakota.

Dec. 12, 1975.

Laurence J. Zastrow, Rapid City, for defendant and appellant.

William J. Janklow, Atty. Gen., R. Greg Bartron and Doyle D. Estes, Asst. Attys. Gen., Pierre, Michael McGreevy, Pennington County Deputy State's Atty., Rapid City, for plaintiff and respondent.

WINANS, Justice.

George Davis, of Rapid City, South Dakota, owns and operates a trucking firm which is a contract carrier for the John Morrell Company of Sioux Falls. On Friday, November 23, 1973, one of his tractor-trailers, driven by Jackson Young, was loaded at Sioux Falls with Morrell meats, sealed and padlocked, and was driven back to the Davis Trucking Company lot in Rapid City. It arrived there about 10:30 that evening at which time Young checked the seals and locks and then secured the padlock on the gate of the six-foot fence which surrounds the company lot. On Sunday morning, November 25, when Davis and two of his employees arrived at the lot they discovered that the trailer had been broken into and a large quantity of meat stolen from it. It was estimated that the amount of missing meat was between 3,000 and 4,000 pounds and was worth in the neighborhood of $5,100. Taken were lunch meats in large red, white and blue boxes with Morrell hearts on the sides, and roasts, sirloins and rib eyes in white boxes without distinctive coloring and markings. Attached to each box was an IBM card indicating the destination of the load and the shipping date.

On Tuesday, November 27, 1973, Deputy Sheriff Dave Bintliff interviewed a Betty Mehrer. Based on the information she provided he obtained search warrants for the residences of Patty Sherman, Norbert Grismer, Darrell Beck, Elizabeth Eslinger, Judy Flater, and Mr. Grismer's business, known as Mr. Mike's Hair Styling. Deputy Bintliff executed the warrant at the home of Judy Flater opposite the Rimrock Shopping Center and there found sizeable quantities of meat in Morrell packaging both in a freezer in the house and in an outdoor shed. This meat was brought to the Pennington County Jail and identified by George Davis as being part of the missing shipment. Photographs of the meat removed from the Flater residence were taken and admitted as state's exhibits #2, 3 and 4. Apparently because of the perishable nature of their contents the actual boxes of the meat taken were not introduced at trial.

Pennington County Deputy Sheriff Pat Burke executed a search warrant at the home of Darrell Beck and there found a large supply of meat shown as state's exhibits #5 and 6 by photograph. There was no indication on the meat packages that they contained Morrell meats. These individual cuts were wrapped only in white freezer paper.

Deputy Sheriff Don Phillips executed search warrants at the home of Norbert Grismer and at his business establishment, Mr. Mike's Hair Styling. The search warrants were later suppressed but Deputy Phillips testified at the trial that he found at the Grismer residence 'several boxes labeled Morrell Meats. We found a deep freeze containing a large amount of meat, some of it had been freshly wrapped. A lot of the meat was--had the Morrell labels on it.' State's exhibit #1, a box of Morrell bologna taken from the Grismer residence, was admitted without objection.

Warrants were issued for Randall Gene Hoover, defendant-appellant in this case, for Dennis Soule and for John Harmon. They were arrested at Oregon, Missouri, December 17, 1973, and returned to South Dakota. Hoover was brought before the Rapid City Municipal Court on a charge of third degree burglary on December 20, 1973, and given appointed counsel. A preliminary hearing was held in that same court on January 17, 1974, jointly with codefendants Soule and Harmon and Appellant was bound over to Circuit Court. On January 30, 1974, he was arraigned before Judge Parker in Circuit Court and entered a plea of not guilty to the charge in the information. Twice subsequently the information was amended and each time he pled not guilty to the amended information. Trial for the appellant was originally scheduled for February 19, 1974, and rescheduled for April 22, 1974, and finally held before Judge Vernon C. Evans at Rapid City on May 20 and 21, 1974. Appellant Hoover's trial was severed from that of codefendants Soule and Harmon. Having deliberated for about an hour and a half, the jury on May 21, 1974, returned a verdict of guilty and on June 14, 1974, Judge Evans sentenced Appellant to eight years in the South Dakota State Penitentiary.

Defendant-Appellant Hoover presents us with nine issues of possible error by the trial court. While we acknowledge that two issues raised have at least the appearance of error we nevertheless affirm the decision of the court below because of the harmless nature of that error. Defendants are not assured a perfect trial but each must be afforded a fair trial and we are convinced that Defendant Hoover in this case was afforded the fair trial to which he was entitled.

Hoover first charges that the trial court erred in overruling his motion to strike the name of witness Norbert Grismer which was endorsed upon the amended information after it was filed only three days in advance of the re-rescheduled trial. On May 15, 1974, Deputy State's Attorney McGreevy had filed with the Court a motion to endorse on the information the name of Norbert Grismer as a witness. Defendant's counsel objected and a hearing was held on May 17. The prosecutor promised Defendant's counsel a copy of Grismer's written statement to be taken later that day and the Court advised the prosecutor to tell Grismer to make himself available for an interview with defense counsel. The Court then allowed the endorsing of Grismer's name as a witness. Over the weekend Grismer refused to discuss his testimony with defense counsel. The promised copy of his written statement was not forthcoming either. At the start of the trial on May 20 the trial court refused to grant Defendant's motion to strike Grismer from the information and he proceeded to testify for the State against Defendant. It has continually been our holding with regard to the endorsing of additional witnesses upon an information that '(t)he ruling on such motions is largely within the discretion of the trial court, and unless an abuse of the court's discretion or bad faith of the state's attorney results in substantial prejudice to defendant, the ruling is not erroneous or grounds for reversal.' State v. Burke, 1972, 86 S.D. 737, 201 N.W.2d 234. In this case no bad faith upon the part of the state's attorney's office is shown. Defendant's counsel had been informed at the hearing on the motion to endorse that Grismer would testify that he bought meat from the defendant. This was the substance of Grismer's very brief testimony. Defendant could have moved for a continuance to prepare better for Grismer's testimony and he could have remade his motion to strike the testimony if he could have shown prejudice, as Judge Evans noted when he denied the motion to strike the endorsement, but he chose to do neither. Defendant was sufficiently apprised of the identity of the state's witness and of the content of his testimony and we cannot say that he was substantially prejudiced in any way by the late endorsement. His objection, therefore, fails.

Defense counsel next points out that SDCL 23--42--6 in directing the order of a jury trial says in part that

'* * * the trial must proceed in the following order:

'(1) If the indictment or information is for a felony, the clerk or state's attorney must read it and state the plea of the defendant to the jury. In all other cases this formality may be dispensed with.'

The trial of Appellant did not conform exactly to this section of the statute and he proposes this slight deviation as reversible error. After the selection of the jury, the state's attorney was directed to read the information to the defendant and the jury. When the information had been read the following interchange took place:

'BY THE COURT: And did you wish to state the defendant's plea?

BY MR. CARRELL (Defendant's appointed counsel): What's that Your Honor?

BY THE COURT: Did you wish to state what the defendant's plea was to this information?

BY MR. CARRELL: And to that information the defendant entered a plea of not guilty Your Honor.'

The case of Territory v. King, 1889, 6 Dak. 131, 50 N.W. 623, was an instance of the complete failure of the state to have the indictment and plea read to the jury in accordance with Code Crim.Proc.Dak. § 343 which is virtually the same as the above-cited SDCL 23--42--6(1). There the Court held that

'(t)he failure of the district attorney to formally read the indictment and state the plea to the jury after they were sworn was not error, as the record shows that the jury were sufficiently informed of the nature of the charge against the plaintiff in error, and also of his plea,--the character of his defense.'

In King it 'appeared that the prosecuting attorney, in impaneling the jury, stated to each member thereof the nature and circumstances of the offense charged, the name of defendant, and the person on whom the assault was made; that, after the jury had been impaneled and sworn, he stated to them in substance the allegations of the indictment, and that defendant had entered a plea of not guilty thereto.' In the case at bar it is evident from the record that the state's attorney read the information to the jury and that in his opening statement the prosecuting attorney said: 'The information that was just read, as you know, to that information the defendant has pled not guilty.' We are of the opinion that this issue falls squarely within the holding of Territory v. King, supra, and that no prejudicial error was committed in the Court's invitation to defense co...