State v. Lowther

• Decision Date: 17 February 1989
• Docket Number: No. 15984,15984
• Citation: 434 N.W.2d 747
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Dean A. LOWTHER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 747

434 N.W.2d 747

STATE of South Dakota, Plaintiff and Appellee, v. Dean A. LOWTHER, Defendant and Appellant.

No. 15984.

Supreme Court of South Dakota.

Argued Oct. 13, 1988.

Decided Jan. 11, 1989.

Rehearing Denied Feb. 17, 1989.

Janine Kern Asst. Atty. Gen., Robert Hopper and Michael Hanson, Legal Interns, Roger A. Tellinghuisen, Atty. Gen., on the brief, Pierre, for plaintiff and appellee.

James E. McCulloch, Vermillion, for defendant and appellant.

WUEST, Chief Justice.

Defendant, Dean Lowther, appeals his conviction of second degree arson and burning to defraud an insurer, contrary to SDCL 22-33-2 ¹ and SDCL 22-33-4, ² respectively. We affirm.

On January 1, 1986, fire destroyed defendant's mobile home located in Vermillion, South Dakota. A subsequent investigation by Deputy State Fire Marshall Darrell Fodness (Fodness) and Vermillion Fire Chief Doug Brunick (Brunick) determined the cause of the fire to be a small electric fan. During this investigation, defendant's fire-damaged mobile home was searched, physical evidence was seized, photographs were taken and witness statements were obtained. Defendant cooperated with the investigative efforts by guiding Fodness and Brunick through the premises and by answering all questions. Defendant subsequently notified his insurer of the fire and was compensated for his losses.

Defendant purchased another mobile home in Vermillion shortly thereafter. This mobile home was also destroyed by fire on the morning of December 31, 1986. Brunick suspected arson and promptly notified Fodness and the Vermillion Police Department. On the afternoon of December 31, 1981, Brunick and Detective Al Hoff (Hoff) searched the fire-damaged mobile home for evidence revealing the cause of the fire. They seized carpet and floor samples along with other physical evidence and again took photographs. This search was conducted without a warrant. Defendant was notified of the investigation and arrived at the scene shortly after the search began. He then voluntarily accompanied Hoff to the police station for questioning.

Brunick and Fodness reentered the premises on January 2, 1987. They again seized physical evidence including an electric blanket. This search was also conducted without a warrant.

Defendant was indicted by a Clay County Grand Jury on two counts of first degree arson ³ and two counts of burning to defraud an insurer on January 19, 1987. These charges arose out of the fires which destroyed his two mobile homes. Defendant appeared on this indictment on January 23, 1987.

On May 26, 1987, the parties appeared before the Honorable E.W. Hertz for a hearing on a number of motions. Among defendant's motions granted by the trial court during this hearing were (1) a motion to sever for trial Counts I and II from Counts III and IV ⁴ and (2) a motion to require the state to set forth all independent corroborating evidence of criminal activity before introducing any admissions which may have been made by defendant. The trial court also ruled that evidence of the January fire could be introduced as a prior bad act at the trial for the fire occurring in December, even though the counts relating to the two fires had been severed.

A second motions hearing was held on May 29, 1987. During this hearing, the trial court granted defendant's motion to suppress all evidence obtained as a result of the searches of defendant's two mobile homes. The trial court also suppressed any observations made by Brunick during an examination of the premises with an insurance investigator. At the conclusion of this hearing, the trial court, on its own motion, dismissed the indictment without prejudice because the evidence was insufficient to instruct the jury on first degree arson.

On June 23, 1987, defendant was reindicted on two counts of second degree arson and two counts of burning to defraud an insurer. He was arraigned on June 26, 1987, at which time the trial court was informed that defendant's bond was still posted from the first indictment.

The state and defendant, having refiled all of the motions presented after the first indictment, again appeared before the Honorable E.W. Hertz for a motions hearing on July 29, 1987. The trial court again granted defendant's motion for severance of Counts I and II from Counts III and IV. The trial court also ruled that the state was prohibited from eliciting any admissions against interest made by defendant before introducing all independent corroborating evidence of the fires.

In response to defendant's renewed suppression motions, the state called Brunick and Fodness to testify regarding the searches conducted after both fires. The state also called an insurance investigator to testify regarding the investigation of the December fire. After considering all the evidence and testimony, the trial court again granted defendant's motion to suppress the evidence obtained pursuant to the searches conducted after the December fire. The trial court, however, denied defendant's motion to suppress the evidence obtained after the January fire. In so doing, the trial court rejected defendant's contention that this issue had been finally determined at the previous motions hearings. Defendant's motion to suppress evidence seized pursuant to a search warrant issued on May 30, 1987, was also denied. This evidence was obtained from the mobile home damaged by the December fire.

Defendant also filed a motion to dismiss for violation of SDCL 23A-44-5.1, ⁵ the so- called 180-day rule. The trial court denied this motion, reasoning that the indictment of second degree arson constituted a new charge against defendant. Therefore, a new 180-day period began upon his first appearance on June 26, 1987.

Defendant was convicted on Counts I and II of the indictment (December fire). He was sentenced to five years imprisonment in the state penitentiary for second degree arson and two and one-half years imprisonment for burning to defraud an insurer, said sentences to run concurrently.

On this appeal, defendant raises six issues: (1) whether the trial court properly denied his motion to dismiss for violation of SDCL 23A-44-5.1; (2) whether the trial court properly relitigated facts and issues during the motions hearing on July 29, 1987, after the same facts and issues had been considered at motions hearings on May 26 and May 29, 1987; (3) whether it was proper for the trial court to sever for trial Counts I and II from Counts III and IV and yet allow evidence regarding the severed counts to be used at trial as evidence of other acts; (4) whether defendant's extrajudicial statements relevant to the January fire were properly admitted by the trial court; (5) whether the trail court erred in denying defendant's motion to suppress evidence seized after the January fire; and (6) whether the search warrant issued on May 30, 1987, was valid.

In his first contention, defendant claims that the 180-day period prescribed by SDCL 23A-44-5.1 began to run from the date of his first appearance before the honorable trial judge on the first indictment. He further contends that this period was not tolled by the trial court's dismissal of the indictment and that it continued to run from May 29, 1987, through June 23, 1987, even though no charges were pending. Defendant concludes that since the 180-day period expired before the prosecution disposed of his case, his conviction for second degree arson and burning to defraud an insurer must be reversed and he must be discharged with respect to those crimes. We disagree.

This court recently adopted a two-part test for determining when the 180-day period begins to run in a situation where an initial indictment has been dismissed and the defendant is subsequently reindicted. See State v. Tiedeman, 433 N.W.2d 237 (S.D.1988). Under this two-part test, the 180-day period begins to run anew upon reindictment if (1) the earlier indictment was properly dismissed by a competent judicial officer and (2) the record does not reveal evidence of a prosecutorial attempt to circumvent the 180-day rule. Id. (citing Commonwealth v. Davies, 342 Pa.Super. 318, 492 A.2d 1139, 1141-42 (1985)). See also State v. Fisher, 351 N.W.2d 798 (Iowa 1984); State v. Jackson, 645 S.W.2d 725 (Mo.App.1982); State v. Mills, 307 N.C. 504, 299 S.E.2d 203 (1983); State v. Stephans, 52 Ohio App.2d 361, 370 N.E.2d 759 (1977); Commonwealth v. Whiting, 509 Pa. 20, 500 A.2d 806 (1985); Commonwealth v. Simms, 509 Pa. 11, 500 A.2d 801 (1985). " '[P]roper dismissal' includes a dismissal for failure to make out a prima facie case at a preliminary hearing." Tiedeman, 433 N.W.2d at 239. Prosecutorial circumvention of the 180-day rule is most frequently evidenced by the expedient entering of a nolle prosequi ⁶ on the original indictment against the defendant and subsequently reindicting him on the same charges. Stephans, 370 N.E.2d at 766. Where the prosecution is voluntarily terminated and the record shows an attempt to manipulate the requirements of the 180-day rule, the time period will be computed from the date the defendant appeared before a judicial officer on the original indictment. Whiting, 500 A.2d at 808.

In the present case, the trial court, on its own motion, properly dismissed the initial indictment for lack of sufficient evidence to establish a prima facie case of first degree arson. Nothing in the record indicates that the state sought to have this indictment dismissed and then reindicted defendant merely to avoid the sanctions of SDCL 23A-44-5.1. In fact, defendant was reindicted and ultimately convicted on charges that differed from those set forth in the original indictment. During the period between the original indictment and the reindictment, defendant was neither incarcerated nor threatened with criminal prosecution. We therefore hold that the indictment against defendant ceased to have legal effect upon its dismissal by the trial court. The calculation of the 180-day...