State v. Luna, 11897
Citation | 264 N.W.2d 485 |
Decision Date | 29 March 1978 |
Docket Number | No. 11897,11897 |
Parties | STATE of South Dakota, Plaintiff and Respondent, v. Robert G. LUNA, Defendant and Appellant. |
Court | Supreme Court of South Dakota |
John P. Guhin, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on the brief.
Ralph C. Hoggatt, Deadwood, for defendant and appellant.
The defendant was charged and convicted of driving while under the influence of an alcoholic beverage (DWI) and manslaughter, second degree.
The undisputed facts show that on Sunday, June 22, 1975, the defendant's car while traveling south of Belle Fourche veered onto the right shoulder of the road and slowed down. Then suddenly the car went into a power slide and cut across all four lanes of the highway running into a 1973 Dodge Colt automobile. Both cars went into the ditch at the east side of the road and ended up approximately forty to fifty feet apart. The driver of the other vehicle died as a result of the injuries sustained in the collision.
At the time of the accident defendant admitted that he was intoxicated. However, he claimed that his wife was driving the car and he was napping in the front seat. He testified that after the accident happened, his wife was unconscious and he tried unsuccessfully to get the driver's door opened and to pull his wife from the car. Finally, noticing the decedent's car on fire, defendant and another bystander attempted to pull decedent from his car.
Defendant's story was disputed by other witnesses at the scene of the accident. Whereas none of the witnesses actually saw the defendant drive the car, they testified that they saw him behind the wheel and/or getting out of the driver's side of his car when they arrived on the scene.
There was testimony that the defendant's wife admitted on three different occasions that she was driving the car. However, she was allowed to leave the jurisdiction of the court and was not present to testify ant the trial. Also, one witness alluded to the fact that the mechanical difficulties were the reasons for the car veering across the highway in that, while observing the defendant's car immediately prior to the accident, he noticed the hood pop up and white smoke come from the engine.
The jury found the defendant guilty as charged of manslaughter. The trial judge thereupon directed the foreman to also sign a verdict guilty of DWI. We affirm.
The first issue of the many raised by the defendant that we choose to address is the invoking of the physician-patient privilege by a physician witness when asked by the defendant regarding the injuries for which he treated defendant's wife. The record is very cloudy as to the purpose of the question. We can only surmise that it was intended to support the defense claim that she was driving by showing injuries consistent with that. The state's attorney injected the question of physician-patient privilege and the trial court acquiesced, although he did state that he would permit the witness to testify as to what he saw, but not as to any communications from his patient nor any treatment afforded her. Thereupon the witness demonstrated his reluctance to testify without a release from Mrs. Luna. Part of these proceedings were held outside the presence of the jury and part were even off the record; so, while we might surmise the purport of the question, we have nothing before us by way of an offer of proof to show what the proposed testimony would develop. Without an offer of proof this court cannot find reversible error. In State v. Murray, 49 S.D. 429, 433, 207 N.W. 454, 455 (1926) this court held:
As the materiality of the evidence sought to be elicited is not apparent from the question itself and there was no offer of proof, the exclusion of the evidence does not constitute reversible error.
The physician-patient privilege is a statutory privilege and by the terms of the statute SDCL 19-2-3 1 extends only to civil cases, therefore, although the trial court was in error in his ruling, the defense counsel 2 did not preserve his records sufficiently to demonstrate that it was reversible error.
The next issue we address is the sufficiency of the evidence to sustain the verdict of second-degree manslaughter. The defendant moved for a new trial based on the insufficiency of the evidence. However, there is no mention in the record of any action taken by the court or for what reasons. We can only surmise that it was denied.
It is the general rule in this state that the trial court has a broad discretion in granting a new trial because of insufficiency of the evidence. Allen v. McLain, 74 S.D. 646, 58 N.W.2d 232 (1953). The trial court's discretion then will only be reviewed in case of manifest abuse. Anderson v. Lale, 88 S.D. 111, 216 N.W.2d 152 (1974).
Under SDCL 22-16-21 in order to sustain a guilty verdict of second-degree manslaughter there must be evidence to show that the defendant was under the influence of intoxicating liquor, was driving a motor vehicle and did so in a negligent manner. With the exception of defendant admitting that he was intoxicated at the time of the accident, the other two elements were proven solely by circumstantial evidence.
In our review of this issue we observe that the jury was properly instructed as to the consideration and inferences to be drawn from circumstantial evidence when the court instructed them that:
To warrant a conviction for crime on circumstantial evidence alone, the circumstances taken together should be of a conclusive nature, and pointing to a moral certainty that the accused committed the offense charged. Such facts and circumstances must be shown as are consistent with each other, and consistent with the guilt of the party charged, and such as cannot by any reasonable theory be true and the party charged be innocent. So in this case if all the facts and circumstances shown can be reasonably accounted for upon any theory consistent with the innocence of the defendant, the jury should acquit the defendant. 3
we are not thereby required to thrust aside the jury verdict as a decision on the fact arrived at under the proper instruction and jump in the jury box ourselves so to speak, but rather as the Supreme Court of North Dakota stated:
State v. Allen, 237 N.W.2d 154, 161 (N.D.1975).
Also in State v. Eickmeier, 187 Neb. 491, 191 N.W.2d 815 (1971) the court said that when the jury has considered the circumstantial evidence inconsistent with any reasonable hypothesis of innocence and returns the verdict of guilty, the verdict on appeal may not, as a matter of law, be set aside for insufficiency of the evidence if the evidence sustains some rational theory of guilt.
The two theories relied upon by the defendant were that the defendant was not driving the car, but if he was found driving the car, mechanical failure caused the car to swerve across four lanes of highway and not his own negligence. The defendant placed most of his emphasis on the first theory, even though nobody actually saw the defendant driving, one witness saw him get out of the car on the driver's side and other witnesses saw him behind the steering wheel after the accident. This evidence, which must have been believed by the jury, is totally inconsistent with the defendant's explanation and therefore not consistent with the innocence of the defendant pertaining to his main defense.
The alternative theory, entirely inconsistent with the principal theory, was that mechanical failure not negligence or intoxication caused the collision. The state's only eyewitness who actually saw the collision described the actions of the defendant's car prior thereto. He stated that as he was approaching Hay Creek bridge from the south the defendant was approaching it from the north. He testified that he noticed "that the car seemed to be having trouble, * * * that there was white smoke coming from the brakes or the radiator, * * * like the engine or the radiator, but it could have been from the front tires possibly" and then "on the second look it appeared that either the hood popped up or something obstructed the car because it started to go off the road to the right or west hand side." At that time the defendant's car was just leaving the bridge and the witness was directly parallel to him. He stated that the car started to slow down so that he did not pay any attention, but the next thing he caught out of the rear view mirror was the car going across all four lanes, straight across east and hitting the other car and going off the road. He described the movement of the car as seen in his rear view mirror as going across the road either speeding up or hitting his brakes and gas at the same time and cutting straight across all four lanes in...
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