State v. Lamont, 21189.

• Decision Date: 11 July 2001
• Docket Number: No. 21189.,21189.
• Citation: 631 N.W.2d 603,2001 SD 92
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Jerry A. LAMONT, Defendant and Appellant.
• Court: South Dakota Supreme Court

631 N.W.2d 603

2001 SD 92

STATE of South Dakota, Plaintiff and Appellee, v. Jerry A. LAMONT, Defendant and Appellant.

No. 21189.

Supreme Court of South Dakota.

Argued October 24, 2000.

Decided July 11, 2001.

Mark Barnett, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and appellee.

Timothy J. Rensch, Rapid City, SD, Attorney for defendant and appellant.

[¶ 1.] Justice Robert A. Amundson delivers the majority opinion of the Court on Issue 1, which holds that the trial court erred in refusing to admit evidence on the decedent's blood alcohol level.

[¶ 2.] Justice John K. Konenkamp delivers the majority opinion of the Court on Issues 2 and 3, holding the search of Lamont's dwelling was reasonable under the Fourth Amendment and the circuit court did not err when it allowed evidence of a second blood test.

AMUNDSON, Justice, writing for the majority on Issue 1.

[¶ 3.] Jerry Lamont appeals his conviction for vehicular homicide and felony hit and run. We affirm Issues 2 and 3, reverse on Issue 1, and remand for a new trial.

FACTS

[¶ 4.] On May 2, 1999, Ronald Dean Hall was killed while riding his motorcycle in Rapid City, South Dakota. Mr. Hall was discovered lying beside the road by a passer-by shortly before he died. Due to white paint found on the motorcycle, the accident scene indicated that a white vehicle hit the victim. A witness also observed a small white vehicle flee the accident area. Based on the initial accident investigation, the police believed that another vehicle involved ran the stop sign and collided with Hall's motorcycle.

[¶ 5.] While the investigation of the accident scene was proceeding, Officer Rud and Olson were dispatched to the Horseshoe Motel on an unrelated matter. Prior to this, they had received an all-points bulletin regarding the hit-and-run accident. Upon their arrival, Officer Rud noticed a white Ford Escort matching the description of the car described in the all-points bulletin. The Escort had a dented left front quarter-panel, a smashed windshield, blood spots inside the car, and blood on the driver's side door handle.

[¶ 6.] Upon these observations, Officer Rud requested the investigator at the accident to come to the motel with broken parts found at the accident scene. It was determined that these broken parts fit into the damaged area of the Ford Escort. Next, Officer Rud called in the Ford's license plate number, which revealed the owner as Jerry Lamont whose address was the Horseshoe Motel, room # 15.

[¶ 7.] Officer Rud advised his supervisor of their findings and asked to enter room # 15. After receiving such permission, the officers knocked on the door with no response. The officers observed that the door was unlocked and entered the unoccupied premises (first search). After entering, the officers conducted a search of the bedroom, living room, and bathroom, where they noticed blood spots in the bathroom sink and a bloody pair of pants lying on the bedroom floor.

[¶ 8.] Officer Rud relayed the findings of the search to Sergeant Vlieger. Upon his arrival at the police station, Vlieger directed Rud to return to the motel and secure the area while he made arrangements to get a search warrant. Upon returning, the officers noticed that the door was locked and the lights were off. Again, Rud knocked on the motel room door with no answer. Officer Rud called the manager so that he could let them into the room. The manager unlocked the door and Officer Rud gained entrance to the room (second search). Lamont was found therein where he was observed with fresh cuts on his nose and head.

[¶ 9.] Lamont was asked to come to the police station where he was arrested for vehicular homicide, second-degree manslaughter, and hit and run. Upon receiving Miranda warnings, he was instructed to give two blood samples. Per police instruction, each sample was taken with an hour interval between the two tests.

[¶ 10.] Prior to trial, the court ruled that emergency circumstances did not exist,¹ thus this facet of the "exigent circumstances" exception to the warrant requirement did not apply and suppressed all evidence relating to the first search. Despite police not having a warrant to search Lamont's room, the court denied Lamont's motion to suppress the second search of Lamont's dwelling determining the search was justified to "effectuate a custodial interrogation." The court also held Lamont's blood tests were obtained incident to lawful arrest. The court granted the State's motion in limine prohibiting defense counsel from eliciting testimony or commenting on the decedent's apparent blood alcohol level at the time of the accident.

[¶ 11.] Lamont appeals raising three issues:

1) Whether the trial court abused its discretion by granting the State's motion in limine to forbid the defense to question or comment on the decedent's apparent blood alcohol level at the time of the accident.

2) Whether the trial court erred by upholding the second search of Lamont's dwelling.

3) Whether a second blood draw performed by the police was reasonable under the fourth amendment.

STANDARD OF REVIEW

[¶ 12.] Our review of a motion to suppress based on an alleged violation of a constitutionally protected right is a question of law examined de novo. See State v. Hirning, 1999 SD 53, ¶ 9, 592 N.W.2d 600, 603

; Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996) (standard of review for questions under the Fourth Amendment); United States v. Khan, 993 F.2d 1368, 1375 (9thCir.1993). We review findings of fact under the clearly erroneous standard. See State v. Almond, 511 N.W.2d 572, 573-74 (S.D.1994). Once the facts have been determined, however, the application of a legal standard to those facts is a question of law reviewed de novo. Spenner v. City of Sioux Falls, 1998 SD 56, ¶ 13, 580 N.W.2d 606, 610. Whether police had a "lawful basis to conduct a warrantless search is reviewed as a question of law." State v. Sleep, 1999 SD 19, ¶ 6, 590 N.W.2d 235, 237 (citing State v. Krebs, 504 N.W.2d 580, 585 (S.D.1993) (citation omitted)). Thus, on the issue of whether an exception to the warrant requirement applies is reviewed de novo.

DECISION

Issue 1. Decedent's Blood Alcohol Level

[¶ 13.] Prior to trial, the State argued that the decedent's blood alcohol level was irrelevant to Lamont's criminal culpability and sought an order to prohibit defense counsel from any mention of it. The trial court granted the State's motion in limine. In its attempt to prove that Lamont failed to stop at a stop sign, the State put forth evidence that the reaction time for an average person was 1.6 seconds. At trial, the defense wanted to controvert the State's expert on perception reaction time of the general motoring public. The defense asked the State's accident reconstructionist whether his figures would be accurate if the victim was legally drunk. For this, defense counsel was fined for violating the terms of the motion in limine. On appeal, Lamont argues that the excessive speed and intoxication of the decedent was relevant to the issue of proximate cause.

[¶ 14.] One method traditionally taken by the defense is to attack the elements of the offense charged. Generally, the defense does this by putting on evidence that creates a reasonable doubt as to whether a particular element was satisfied. In question is the element of proximate cause. The jury instruction for vehicular homicide, in pertinent part, reads as follows: The state must prove beyond a reasonable doubt:

1. That the defendant at the time and place alleged in the Information operated or drove a motor vehicle in a negligent manner.

2. That the defendant at the time and place was under the influence of an alcoholic beverage.

3. That the negligent operation or driving was a proximate cause of the death of Ronald Hall.

4. That the defendant did so without a design to effect the death of Ronald Hall.

This instruction reflects a correct statement of law. State v. Two Bulls, 1996 SD 53, ¶ 14, 547 N.W.2d 764, 766. The State claims that our holding in Two Bulls, however, precludes the defense from raising a defense based on contributory negligence.

[¶ 15.] In Two Bulls, the victim was a passenger in the vehicle rather than a driver. Moreover, Two Bulls was not under the influence, nor did the prosecution open the door by proffering expert testimony as to causation. The thrust of the State's argument is that the defense should not be able to use the decedent's blood alcohol level in any way because the decedent's contributory negligence is irrelevant. The issue at hand, however, is whether the defense should be allowed to put on a defense that includes the use of the decedent's blood alcohol level where decedent was operating the other vehicle involved in the accident as to show that it constitutes an "independent intervening cause" and the "proximate cause of the death." See Two Bulls, supra, at ¶ 13 (citing State v. Rotella, 196 Neb. 741, 246 N.W.2d 74, 76 (1976)). Our decision in Two Bulls does not preclude Lamont from offering evidence in support of his defense.

[¶ 16.] When a defendant is denied the ability to respond to the State's case against him, he is deprived of "his fundamental constitutional right to a fair opportunity to present a defense." Crane v. Kentucky, 476 U.S. 683, 687, 106 S.Ct. 2142, 2145, 90 L.Ed.2d 636 (1986). We cited in State v. Iron Necklace, 430 N.W.2d 66, 75 (S.D.1988), notions of fundamental fairness require "that criminal defendants be afforded a meaningful opportunity to present a complete defense." See also California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984). It is only fair that a defendant in a criminal trial be allowed to present his theory of the case.

[¶ 17.] Although Lamont argues on appeal that the decedent's blood alcohol level is relevant to his defense in challenging proximate cause, his...