State v. Johnson

• Decision Date: 26 May 1977
• Docket Number: No. 11686,11686
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Lester E. JOHNSON, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 114

254 N.W.2d 114

STATE of South Dakota, Plaintiff and Respondent, v. Lester E. JOHNSON, Defendant and Appellant.

No. 11686.

Supreme Court of South Dakota.

May 26, 1977.

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

Sidney B. Strange, Sioux Falls, for defendant and appellant.

ZASTROW, Justice (on reassignment).

Defendant appeals from the judgment of conviction entered after he was found guilty by a jury on a charge of unlawfully possessing amphetamines. SDCL 39-17-95. We reverse.

Defendant's first contention is that the trial court erred in denying him a hearing on his motion to suppress evidence. Following his arrest on September 20, 1974, defendant retained his present counsel to represent him on the instant charge. When defendant was arraigned in circuit court on November 11, 1974, he was informed that he would have a period of two weeks in which to file any pretrial motions. On February 17, 1975, his attorney made a motion to withdraw as retained counsel. On March 6, 1975, this motion was granted and the same attorney was appointed to represent defendant on the basis of indigency. On April 21, 1975 (after the assignment of the case to a new judge), counsel filed a motion to suppress certain evidence that had been seized at the time of defendant's arrest. The state moved to quash the motion on the ground that it was untimely. In response to a letter of inquiry from the trial court, defendant's attorney replied by letter that he had filed the motion to suppress in his capacity as appointed counsel solely to protect the record, and that had he been acting as appointed counsel at the time of the arraignment he would have filed the motion within the two-week period specified by the trial court. The trial court refused to hold a hearing on the motion and the case went to trial on April 29, 1975. Defendant renewed the motion to suppress during trial, urging the same grounds set forth in his earlier written motion. The trial court denied the motion.

We conclude that the trial court did not err in denying defendant a hearing on his belated motion to suppress.

The sole excuse given to the court for the delayed filing of the motion was the fact of the change in counsel's status from that of retained counsel to that of appointed counsel. During oral argument before this court, defendant's counsel asserted several additional reasons why the motion had not been filed earlier; the record does not reveal that these reasons were presented to the trial court.

It would appear that the original order requiring the defendant present a pretrial motion was in keeping with the National Advisory Commission's Standards and Goals for Courts (NAC, Courts).

"All pretrial motions should be filed within 15 days of the preliminary hearing, the waiver of the preliminary hearing, or apprehension or service of summons following indictment, whichever form the initiation of prosecution has taken in the case. A hearing should be held on such motions within 5 days of the filing of the motions. The court should rule on such motions within 72 hours of the close of the hearing." NAC, Courts, Standard 4.10.

See also South Dakota Criminal Justice Standards and Goals (S.D.S & G), Courts Standard 4.8. However, these standards were established within a time frame requiring a felony trial within sixty days following the preliminary hearing, not, as here, seven months.

The purpose of requiring such motions to be filed within a definite period of time is to allow the courts to schedule, hear, and rule upon these pretrial matters in an orderly fashion, and we are loathe to discourage such practice. However, we do not feel that a limit of two weeks after arraignment to file pretrial motions is reasonable when the trial does not occur until six and one-half months after the arraignment. Likewise, filing a motion to suppress only eight days before trial after a six and one-half month delay does not appear to be a good faith effort on the part of defense counsel to investigate and present such motions for an orderly disposition.

The trial judge should set a date for filing pretrial motions which will give the defendant an adequate amount of time to investigate and prepare for such motions, yet allow the court to hear and determine such motions in an orderly fashion.

"Failure to raise any issue concerning the admissibility of evidence or other matter appropriately raised before trial in accordance with this procedure should preclude a defendant from otherwise raising the issue, unless the defense establishes that the information essential to raising the issue was not reasonably available at the time when this procedure required that the issue be raised." NAC, Courts, Standard 4.10; S.D.S & G, Courts Standard 4.8.

See also ABA Standards, Discovery and Procedure Before Trial, § 5.3(b).

Because this matter must be remanded for a new trial for the reasons hereinafter stated, the trial court will be in a position to schedule and hear, before the retrial, the motion to suppress if presented by the defendant.

Defendant also contends that the trial court erred in ordering that defendant's witnesses, as well as the state's, be sequestered pending their testimony. This order came in response to the deputy state's attorney's request that defendant's witnesses be sequestered because she anticipated that several of the witnesses might be juveniles whose testimony might contain discrepancies.

The purpose of sequestering witnesses, of course, is to avoid the coloring of a witnesses' testimony by that which the witness has heard from the witnesses that have preceded him. Spencer v. State, Fla., 133 So.2d 729. Whether witnesses should be sequestered is a matter that is within the sound discretion of the trial court. See, e.g., State v. Olek, 288 Minn. 235, 179 N.W.2d 320; State v. Bautista, 193 Neb. 476, 227 N.W.2d 835; Fletcher v. State, 68 Wis.2d 381, 228 N.W.2d 708. We conclude that the trial court did not abuse its discretion in ordering that all witnesses be sequestered.

Defendant contends that the trial court erred by refusing to instruct the jury that the state was obligated to prove that the five tablets allegedly in defendant's possession contained a quantity of amphetamine sufficient to have a potential for abuse.

SDCL 39-17-62 provides that:

"Any material, compound, mixture, or preparation is included in Schedule III which contains any quantity of the following substances having a potential for abuse associated with a stimulant effect on the central nervous system:

(1) Amphetamine, its salts, optical isomers, and salts of its optical isomers.

* * *."tam

Although the state has favored us with no authority on this question, there are a number of decisions holding that the phrase "having a potential for abuse associated with a stimulant effect on the central nervous system," used in statutes similar to SDCL 39-17-62, modifies the word "substances" appearing immediately preceding the quoted phrase, thus making it unnecessary for the state to prove that the quantity of amphetamine contained in the substance in question was sufficient to create a potential for abuse associated with a stimulant effect on the central nervous system. See, e.g., United States v. Nickles, 5 Cir., 509 F.2d 810; United States v. Levin, 8 Cir., 443 F.2d 1101, cert. den. 404 U.S. 944, 92 S.Ct. 297, 30 L.Ed.2d 260; State v. Collinsworth, 96 Idaho 910, 539 P.2d 263; People v. Busby, 56 Mich.App. 389, 224 N.W.2d 322; State v. Jefferson, Mo., 391 S.W.2d 885; State v. Jennings, 195 Neb. 434, 238 N.W.2d 477; State v. Allesi, N.D., 216 N.W.2d 805. This is the logical reading of the statute, and we adopt the reasoning of those decisions which have so held. Accordingly, the trial court did not err in refusing to give the requested instruction.

The defendant took the stand to testify in his own behalf. That testimony related only to the events of the evening of his arrest and no evidence of his good character was presented (see State v. Petruzello, 1977, S.D., 250 N.W.2d 682). Defendant's counsel had moved for a protective order to prevent the state from questioning the defendant concerning a prior drug offense in which he had been arrested, charged and entered a plea of guilty to a charge of possession of amphetamines. Pursuant to SDCL 39-17-113, ¹ no judgment of guilt was entered and defendant was placed upon probation on March 1, 1974.

The state at the trial contended that the defendant's plea of guilty and the withholding of judgment and order of probation was proper impeachment, either as a prior felony conviction or as prior misconduct.

The trial court's ruling was as follows:

"THE COURT: * * * It will be the Order of the Court that the States Attorney will be restricted from inquiring of the defendant on cross-examination as to any prior conviction or adjudication of guilt; but, that the States Attorney will not be precluded from asking the defendant whether or not he has made any admissions concerning any prior drug offenses and will not be allowed to go into the details, only whether or not any admissions have been made. * * * There is no judgment of conviction. The accused does not stand convicted.

"MR. STRANGE: * * * What are you going to let her ask him?

"THE COURT: Whether or not he made an admission of any prior offenses and that's all; but, not whether he had been convicted or any details.

"MRS. ULRICH: I can ask him then not whether he entered a plea of guilty or can I ask that?

"THE COURT: No. * * * I'll stand by my original Order. We will back up one notch from that, whether or not he made an admission to a charge of a drug-related offense."

The question put to the defendant was as follows:

"Q Mr. Johnson, didn't you admit to having amphetamines in your possession in February of 1974?

"A Yes."

It is evident from the discussion set out above that the question asked by ...