State v. Huettl

• Decision Date: 11 December 1985
• Docket Number: Nos. 14669,14678,s. 14669
• Citation: 379 N.W.2d 298
• Parties: STATE of South Dakota, v. Richard D. HUETTL.
• Court: South Dakota Supreme Court

Page 298

379 N.W.2d 298

STATE of South Dakota, v. Richard D. HUETTL.

Nos. 14669, 14678.

Supreme Court of South Dakota.

Argued Feb. 5, 1985.

Decided Dec. 11, 1985.

Jeffrey P. Hallem, Asst. Atty. Gen., Mark V. Meierhenry, Atty. Gen., on brief, Pierre, for plaintiff and appellee.

Drew C. Johnson of Maloney, Kolker, Fritz, Hogan & Johnson, Aberdeen, for defendant and appellant.

MORGAN, Justice.

A jury found Richard D. Huettl (Huettl) guilty of driving while under the influence of alcohol (DWI) in violation of SDCL 32-23-1. Although it was his first offense, the trial judge fined him $300.00 plus costs of $208.68 and sentenced him to sixty days in the Spink County Jail, with forty days conditionally suspended and revoked his driver's license for forty-five days. Huettl appeals from the conviction and the sentence. The State filed a notice of review regarding the trial court's suppression of preliminary breath test (PBT) results. We affirm on all issues.

Huettl was the driver of an automobile stopped by two police officers in Redfield, South Dakota, when they observed his vehicle cross the center line of the road as he proceeded through town. When the officers noted an odor of alcohol on Huettl's breath and observed his difficulty in finding and then extracting his operator's license from his wallet, they asked him to step back to the patrol car. The officer then administered some field sobriety tests in which Huettl did poorly. The officers administered a PBT resulting in a red light, indicating more than .10 blood alcohol content and they arrested him for violation of SDCL 32-23-1. Huettl was requested to and did submit to a blood test. The sample was taken at the hospital, packaged in the standard vial and cardboard container, and mailed to the State Chemical Laboratory (State Lab). The State Lab later notified the Redfield Police Department that the vial containing Huettl's blood was broken and the sample lost in transit to the laboratory in Vermillion.

A preliminary hearing was held, Huettl was arraigned, and an information was filed against him. Huettl then filed a motion to dismiss the information based upon the loss of his blood sample before it was tested. Huettl's motion was denied. At a hearing in chambers immediately prior to trial, Huettl's counsel made a motion and requested both sides to refrain from discussing or mentioning the fact that a PBT was given just prior to Huettl's arrest. The trial court granted the motion. The case was presented to a jury and Huettl was convicted of DWI.

Huettl raises four issues on appeal: (1) Whether the trial court erred in denying his motion for dismissal because the loss of the blood sample violated his rights to due process; (2) whether the evidence sufficiently supports the conviction under SDCL 32-23-1; (3) whether the trial court committed reversible error when it permitted an unendorsed, unsequestered witness to testify for impeachment purposes; and (4) whether the trial court's sentence indicated an abuse of discretion and violated Huettl's right to equal protection. The State filed a notice of review and requested this court to consider whether PBT results are admissible as evidence at trial.

Huettl first claims a Brady v. Maryland violation ¹ of his constitutional right of due process because the blood sample was lost in the mail. In State v. Muetze, 368 N.W.2d 575 (S.D.1985), we examined the Brady doctrine with respect to information the prosecutor had (original investigative notes). We noted that Brady is actually an extension of Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935). Some key language on the reasoning of the Court in Mooney is as follows: "[The requirement of due process] cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured." 294 U.S. at 112, 225 S.Ct. at 342, 79 L.Ed. at 794.

The Brady Court merely extended the Mooney doctrine by saying it applied irrespective of the good faith or bad faith of the prosecution. The Brady Court further reasoned: "That (withholding of exculpatory evidence) casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though ... his action is not 'the result of guile,'...." 373 U.S. at 88, 83 S.Ct. at 1197, 10 L.Ed.2d at 219. In light of the reasoning behind the doctrine as we have detailed, we cannot see any possible violation in this case. The blood sample was lost because the container broke in the process of transmittal by mail. That is clearly not a contrived action on the part of the prosecution. We recognize that we live in an imperfect world and that the United States Postal Service is subject to the same imperfections as ordinary mortals. In this case, the mails did go through; however, somewhere along the line the package was handled in such a manner that the container broke.

Huettl argued at great length that there is no question that the evidence was exculpatory, pointing to his testimony and that of his three companions that he had only had three beers all day. ² Then, the first remark counsel makes at oral argument before this court is that he has no argument regarding the probable cause for the arrest of his client. The two arguments are inconsistent. But in our view, for the reason that we first expressed, the materiality and the exculpatory nature of the evidence, if it be so, has no bearing on the issue. Mooney and Brady, supra, simply do not apply. We reject the decision of the Iowa Supreme Court in State v. Brown, 337 N.W.2d 507 (Iowa 1983), and the cases cited therein. Their reliance on Brady, as they suggest, may have gone no deeper into its reasoning than the headnotes.

We point out that our decision on this issue is clearly limited to the rather unusual fact situation presented by this record.

In his second issue, Huettl challenges the sufficiency of the evidence to sustain the conviction. Our view on this issue has been recently stated in State v. Braun, 351 N.W.2d 149, 151 (S.D.1984):

It is well settled that in determining the sufficiency of evidence on appeal, the question presented is whether or not there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt. In making such a determination, this court will accept that evidence, and the most favorable inferences that can be fairly drawn therefrom, which will support the verdict. (citations omitted).

Under this standard of review, the court does not resolve evidentiary conflicts or determine the credibility of witnesses that testify. These functions lie solely with the jury as the ultimate finder of fact. State v. Battest, 295 N.W.2d 739 (S.D.1980). This court will only set aside the jury verdict where the evidence and reasonable inferences flowing from it do not sustain a rational theory of guilt. State v. Wedemann, 339 N.W.2d 112 (S.D.1983).

Huettl's counsel appears to be under a misconception as, throughout his brief, counsel suggests the State was obligated to prove beyond a reasonable doubt that Huettl was too intoxicated to drive; that his blood alcohol content was greater than .10. Counsel thus disregards the legislative change of the statute in order to broaden its coverage. A showing that a person drove or controlled a motor vehicle while under the influence of alcoholic beverage is sufficient to sustain a conviction under SDCL 32-23-1(2). "Under the influence" has been defined as covering not only all well-known " ' ... conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in alcoholic liquor and which tends to deprive him of that clearness of intellect and control of himself which he would otherwise possess.' " State v. Masteller, 86 S.D. 514, 517, 198 N.W.2d 503, 505 (1972).

The statutory presumption that a person with .10 blood alcohol is under the influence is irrelevant under SDCL 32-23-1(2), the statute under which Huettl was charged.

While there was certainly conflicting evidence as to Huettl's condition that night, the testimony of his companions against that of the arresting officers, it would serve no purpose to detail the contradictions. The jury heard all the conflicting testimony and found against Huettl. There clearly was evidence to support the verdict and this court must accept the evidence and inferences to be drawn therefrom which are most favorable to and support the verdict. State v. Moves Camp, 286 N.W.2d 333 (S.D.1979); State v. Mastetler, 272 N.W.2d 833 (S.D.1978).

Huettl's third argument on this appeal is that the trial court committed reversible error when it allowed a State's witness to testify in the course of the State's presentation of its case, over Huettl's objection, that the witness was not endorsed on the information and that the witness was present while the State presented its other evidence despite a court order to sequester all witnesses. The witness in question was Alan Albright (Albright), a Spink County Deputy Sheriff. The record indicates that Albright had interviewed one Howard Vink (Vink) by telephone on the day preceding trial. Vink, at whose farm Huettl and his companions had stopped during the evening preceding the arrest, was alleged to have told Albright that Huettl and the others had drunk beer at his farm. When called as a witness by the State, however, Vink testified that Huettl and his companions did not consume any alcoholic beverages during their visit to his farm. State then sought to call Albright for the purpose of impeaching the testimony of Vink. Albright had not been endorsed on the information as a witness per SDCL 23A-6-10 and he had been present in the courtroom...