State v. Lohnes
| Decision Date | 23 November 1988 |
| Docket Number | No. 15989,15989 |
| Citation | 432 N.W.2d 77 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Burton LOHNES, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
George E. Grassby of Whiting, Hagg & Hagg, Rapid City, for defendant and appellant.
Richard D. Coit, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on brief.
Burton Lohnes (Lohnes) appeals his conviction and life sentence for first-degree manslaughter.
On November 13, 1980, Perry Mantzoros was shot and killed at the Ranch House Motel in Rapid City. Lohnes, a juvenile at the time, was charged with murder, burglary, and grand theft. He was tried as an adult and convicted of second-degree murder, burglary, and grand theft. This court reversed his second-degree murder conviction because it was based on an inadmissible confession and remanded the case for retrial. See State v. Lohnes, 324 N.W.2d 409 (S.D.1982) (Lohnes I ).
On remand, a plea agreement was reached based on a promise of less than a life sentence. By amended information, the State charged Lohnes with first-degree manslaughter. Lohnes pled guilty to the charge and was sentenced to 347 years by the trial court. In State v. Lohnes, 344 N.W.2d 686 (S.D.1984) (Lohnes II ), this court held that the sentence was improper and remanded the case to permit Lohnes to withdraw his guilty plea.
On the second remand, the trial court granted the State's motion to dismiss its amended information charging first-degree manslaughter. The State then sought to charge Lohnes with the original information alleging first-degree murder. The trial court ruled at a July 17, 1984, hearing that Lohnes could not be charged with first-degree murder since he had been acquitted of that charge at the original trial. The trial court granted Lohnes' motion to dismiss the original information and allowed the State to file a second amended information again charging first-degree manslaughter.
Lohnes was not arraigned on that charge until May 21, 1987, due to delay caused by examinations to determine his competence to stand trial and unrelated criminal proceedings in Minnehaha County. Lohnes entered a plea of not guilty and not guilty by reason of insanity. Lohnes was tried in a bifurcated trial which began August 4, 1987. In the first phase of the trial, the evidence was limited to the issue of Lohnes' guilt. The jury returned a guilty verdict on August 10th. In the second phase, the jury rejected Lohnes' claim of not guilty by reason of insanity.
Lohnes argues that the prosecution against him ceased after the State dismissed the amended information of first-degree manslaughter. He reasons that the original information charging first-degree murder was invalid because of his earlier acquittal on the charge, so he stood uncharged after the State's dismissal of the amended information. As a result, Lohnes claims that the State's filing of the second amended information was an entirely new prosecution. He claims that the failure to file a new complaint or indictment and hold a new preliminary hearing denied the trial court subject matter jurisdiction.
SDCL 23A-44-2 provides that the prosecution of a case ceases after the prosecutor files a dismissal of an indictment, information or complaint. The State made a motion to dismiss the amended information at a hearing, but did not file a dismissal of the information as provided by SDCL 23A-44-2. The statute contemplates that the prosecutor file a written dismissal of the information in order for the prosecution to cease. The State's failure to file a written dismissal prevented the cessation of the prosecution against Lohnes. Thus, the State's second amended information, charging first-degree manslaughter, was a continuation of the same prosecution.
Lohnes also claims the trial court erred in failing to hold a preliminary hearing on the second amended information charging first-degree manslaughter. He claims that the original preliminary hearing was sufficient to establish probable cause for the original murder charge only, as the amended information alleging manslaughter was a new offense.
SDCL 23A-6-19 provides in part:
If trial has not commenced, a prosecuting attorney may amend an information to allege, or to change the allegations regarding, any offense arising out of the same alleged conduct of the defendant that gave rise to any offense alleged in the original information. If the change alleges a new offense, the defendant has the right to a preliminary hearing on the new offense.
This court has upheld a trial court's ruling to permit the state to amend an information without a new preliminary hearing. State v. Remacle, 386 N.W.2d 38 (S.D.1986); State v. Roden, 380 N.W.2d 669 (S.D.1986). However, these cases did not involve any change in the actual offense charged. The question here is whether a lesser-included offense is a "new offense" under the statute. State v. Forbes, 203 Neb. 349, 278 N.W.2d 615 (1979), held that a preliminary hearing is unnecessary where an amended information charges a substantially similar offense, such as a lesser-included offense. The Forbes court stated:
[I]f a defendant is accorded a preliminary hearing and thereafter an amended information is filed charging a crime that includes some of the elements of the original crime charged without the addition of any element irrelevant to that original charge, no new preliminary hearing is necessary.
Id. 278 N.W.2d at 618. Although the Forbes court was construing a different statute, this is a proper interpretation of the language in SDCL 23A-6-19.
The murder and manslaughter charges both required proof that Lohnes unlawfully killed another with a firearm. The probable cause for those elements was established at the original preliminary hearing. Intent is the only element which differs in the two crimes. The murder charge required intent, while the manslaughter charge did not. Lohnes was charged with manslaughter under SDCL 22-16-15(3), which only requires a killing by means of a dangerous weapon. Since these elements were established at the original preliminary hearing, there were no additional elements to be established for the manslaughter charge in the second amended information, and a new preliminary hearing was unnecessary.
Lohnes challenges the validity of the original preliminary hearing to establish probable cause. He claims that it was improperly based on a confession subsequently ruled inadmissible in Lohnes I.
In State v. Reggio, 84 S.D. 687, 176 N.W.2d 62 (1970), this court indicated that a probable cause determination at a preliminary hearing, based solely on illegally obtained evidence, would render the charge invalid. However, the Reggio court went on to assert that if there is other evidence to establish probable cause the charge will be upheld. Reggio, supra, 176 N.W.2d at 64. Probable cause is established where there is sufficient evidence to justify further inquiry by a trial. State v. Heisinger, 252 N.W.2d 899 (S.D.1977); State v. Brown, 84 S.D. 201, 169 N.W.2d 239 (1969). Excluding Lohnes' inadmissible confession, the other evidence at the preliminary hearing was sufficient to establish probable cause for a trial.
Lohnes informally requested Judge Davis to disqualify himself under SDCL 15-12-21.1. This request was denied. Lohnes then filed an affidavit of prejudice with the presiding judge of the circuit which was also denied. Lohnes also made a motion for Judge Davis to disqualify himself pursuant to SDCL 15-12-37.
Lohnes claims that the filing of an affidavit of prejudice requires that the judge assigned to the case be replaced by another judge. The State responds that Lohnes waived his right to request and demand a change of judge under SDCL 15-12-24, by submitting to the jurisdiction of Judge Davis in the two prior proceedings.
In State v. Alexander, 313 N.W.2d 33 (S.D.1981), the defendant was charged by indictment with four counts relating to controlled substances. The first trial ended in a mistrial and the State amended its indictment which realleged count I of the original indictment, but amended counts II through IV to allege different charges. On defendant's request for a change of judge, the court reasoned that the amended charges created new proceedings for purposes of SDCL 15-12-24, and stated:
Considering that new charges were alleged by the amendments of counts II, III and IV, appellant was facing completely new charges with different defenses available. He was entitled to disqualify Judge McMurchie, as he had not waived this right under SDCL 15-12-24 under those specific charges. (emphasis added).
Id. at 36. Despite the quoted language, the court concluded that defendant would have waived his right to change of judge if he had been retried under the original indictment and held that since count I of both indictments were identical any error was harmless.
Unlike Alexander, Lohnes was charged with the identical offense in both amended informations. Further, Lohnes was charged under the original complaint, so it was a continuation of the same prosecution. He pled guilty to the first amended information in Judge Davis' court. In Lohnes II, we remanded to permit Lohnes to withdraw his plea of guilty to manslaughter. On remand, the State charged Lohnes with the identical crime of manslaughter. Where a remanded matter is a continuation of the original proceeding, rather than a new one, the judge may not be changed by way of affidavit. Matter of Est. Certain Terr. Elec. Boundaries, 318 N.W.2d 118 (S.D.1982). Lohnes waived his right to disqualify Judge Davis under SDCL 15-12-24 by previously pleading guilty to manslaughter in his court.
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