State v. Krana

• Decision Date: 30 November 1978
• Docket Number: No. 12199,12199
• Citation: 272 N.W.2d 75
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Huie E. KRANA, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 75

272 N.W.2d 75

STATE of South Dakota, Plaintiff and Respondent, v. Huie E. KRANA, Defendant and Appellant.

No. 12199.

Supreme Court of South Dakota.

Argued May 12, 1978.

Decided Nov. 30, 1978.

John P. Guhin, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on the brief.

Joseph M. Butler and Michael M. Hickey of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for defendant and appellant.

RAMYNKE, Circuit Judge.

On April 30, 1973, defendant made a delivery of corn to the Fall River Feed Lot near Hot Springs, South Dakota. Shortly thereafter, employees of the feedlot found a magnet on the scale used to weigh the trucks before and after deliveries were made. The magnet was taken off, shown to the sheriff and marked by him, and then put back on the scale. The scale was rebalanced, and it was determined that if there were no rebalancing that load of feed would register 6,265 pounds more than it weighed. It was also determined that if the magnet were then removed during the reweighing of the empty truck another 6,265 pounds would be added to the weight of the grain sold.

On May 9, 1973, defendant made another delivery of corn to the feed lot with six trucks. During the weighing operation an eyewitness observed defendant remove the magnet from the scale with his right hand. Shortly thereafter, he walked to a darkened portion of the feed lot, and later the magnet was found sticking to a fence exactly where defendant had stood.

A second part of this scheme took place when, under defendant's direction, the driver of the first of the series of trucks drove as far as he could onto the scale. The driver of the following truck then drove his front wheels onto the scale, so that although only one truck was supposedly being weighed there was actually a truck and a half on the scale. This system was followed with each of the six trucks, resulting in a double weighing of the loads.

In addition to these two schemes, on the night of May 9th one of the trucks was maneuvered around so that it actually drove on the scales twice in order to be weighed and sold each time as another load of corn. As a result, there were seven tickets made out to defendant that night, but he had only six trucks actually delivering corn.

Defendant was tried on a charge of conspiracy to obtain money under false pretenses. The trial commenced on August 23, 1976, and a verdict of guilty was rendered against defendant by the jury. A supplemental information charging defendant as a habitual offender was filed on August 23, 1976. A motion for change of venue was granted to defendant and a trial on this second information took place on December 9, 1976, in Beadle County. The jury returned a verdict of guilty on the habitual offender information. Defendant had been sentenced to five years on the original conspiracy to obtain money and property under false pretenses charge, and after his conviction on the habitual criminal information the term of the sentence was raised to ten years and the five-year sentence was revoked.

Under his first assignment of error defendant claims he was denied his constitutional right to a speedy trial. The state filed the information against defendant and six other individuals on June 5, 1973. Defendants were arrested on May 9, 1973, and made their initial appearance before a district county judge on May 11, 1973. Defendant herein was released on bail on May 14, 1973. A preliminary hearing was held before the district county judge on May 15 and 16, 1973. Defendant was bound over to circuit court and arraigned before Judge Thomas Parker at the Fall River County Courthouse on June 5, 1973.

From May 25, 1973, through June 10, 1973, there were motions and affidavits before the court to obtain release of some trucks which the state was attempting to hold as evidence. The trucks were eventually released to the defendants.

On September 24, 1973, defendant filed a demurrer challenging the information, a motion for severance, a motion for continued production of evidence, a bill of particulars and motion for separate jury trial. Briefs were submitted by some of the defendants, and reply briefs were submitted by the state.

Starting on February 26, 1975, the other defendants made motions demanding speedy trial and motions to dismiss under the two-term rule. Neither of these motions was made by defendant Krana, but the cases against all defendants were dismissed without prejudice by Judge Thomas Parker on December 15, 1975, under SDCL 23-34-2, the rule that any case that has been on the calendar for two terms and has not been tried must be dismissed.

On the following day, December 16, 1975, a complaint was again filed charging defendant and six others with the same offense. Defendant was not arrested until March 4, 1976, and he was again released on bail on March 11, 1976. A preliminary hearing was set for April 24, 1976, at which time defendant and his counsel appeared and waived the preliminary hearing. On May 10, 1976, defendant filed a motion demanding dismissal for failure to provide a speedy trial. This motion was denied by Circuit Judge Frank Henderson, to whom the trial had now been assigned. The trial was set for July 19, 1976. On July 15, 1976, defendant requested and was granted a continuance because he was at that time being convicted of two offenses in federal court. The trial was then set for August 23, 1976, and commenced on that date.

On September 8, 1976, defendant moved for a change of venue on the habitual criminal information. This motion was granted on November 12, 1976. On November 1, 1976, the state moved to amend its information. This motion was also granted on November 12, 1976. The final trial commenced on December 9, 1976, and defendant was found guilty by a Beadle County jury on the habitual criminal information.

From the date of the first arrest, May 9, 1973, until the commencement of defendant's trial on August 23, 1976, there was a lapse of over 39 months. Accordingly, we will address first the question whether defendant was denied his constitutional right to a speedy trial. In State v. Starnes, 1972, 86 S.D. 636, 200 N.W.2d 244, this court applied the four-factor balancing test of Barker v. Wingo, 1972, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. These four factors are: (1) length of delay, (2) reason for delay, (3) defendant's assertion of his rights, and (4) prejudice to defendant.

Applying the first test, we have already noted that a delay of over 39 months took place between defendant's arrest and trial. As the court pointed out in State v. Black Feather, 1976, S.D., 249 N.W.2d 261, where the delay was 33 months, certainly this delay is long enough to serve as a "triggering mechanism," requiring inquiry into other factors.

The second factor, reason for the delay, involves many issues. A myriad of motions were made by the defense requiring arguments, briefs and judicial decisions; the only cause which does not appear from the actual history of the case but which has been pointed out by the state is the fact that the case was originally commenced before Judge Parker, who was suffering from a heart condition and was incapacitated for long periods of time. Moreover, Judge Parker was then assigned extra administrative duties as Presiding Judge under the unified court system and was unable to provide an earlier date for the trial because of the extra load of duties placed on him. When the case was finally assigned to another judge it proceeded expeditiously. As stated by this court in State v. Runge, 1975, S.D., 233 N.W.2d 321, 323, "Admittedly, heavy court schedules and negligence are ultimately the responsibility of the government, but they should not weigh so heavily against the government as would a deliberate attempt to delay and hamper the accused's defense." In United States v. Ewell, 1966, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627, 630, the Court said:

However, in large measure because of the many procedural safeguards provided an accused, the ordinary procedures for criminal prosecution are designed to move at a deliberate pace. A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself.

In summary, then, nothing in the record shows any action on the part of the state to delay this trial. Many motions were made by defendant, all of which required answers by the prosecution and time for the court to consider. Only once was a continuance requested after the matter was set for trial, and that request was made by defendant.

The third factor cannot be weighed in defendant's favor. He never demanded a speedy trial. It is noteworthy that demands for speedy trial and motions to dismiss for failure to comply with the two-term rule were made by every defendant in the case except Krana. Copies of these motions were sent to defendant's attorney but defendant made no motion of any kind relating to speedy trial rights, which would lead us to believe he did not indeed wish a speedy trial. He was out on bail, having been in custody only a few days, and he had secured the return of the trucks for his use even though the state had tried to hold them as evidence. Defendant's own affairs, which included two convictions in federal court, caused him to request a continuance on one occasion after the trial had been set for an earlier date.

The fourth factor for consideration is whether the delay caused prejudice to defendant. The United States Supreme Court in Moore v. Arizona, 1973, 414 U.S. 25, 94 S.Ct. 188, 28 L.Ed.2d 183, held that it was error to require an affirmative demonstration of prejudice on the part of the defendant. In analyzing the record in the instant case in light of Moore, we find that defendant was not subjected to lengthy pretrial incarceration. He was at liberty and was carrying out his business as a trucker for all...