State v. Maves

• Citation: 358 N.W.2d 805
• Decision Date: 03 January 1985
• Docket Number: Nos. 14371-14373,s. 14371-14373
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Gerald Lee MAVES, (# 14371) Defendant and Appellant, and Thomas R. Maves, (# 14372) Defendant and Appellant, and Kathleen R. Maves, (# 14373) Defendant and Appellant.
• Court: Supreme Court of South Dakota

Page 805

358 N.W.2d 805

STATE of South Dakota, Plaintiff and Appellee, v. Gerald Lee MAVES, (# 14371) Defendant and Appellant, and Thomas R. Maves, (# 14372) Defendant and Appellant,

and

Kathleen R. Maves, (# 14373) Defendant and Appellant.

Nos. 14371-14373.

Supreme Court of South Dakota.

Argued May 23, 1984.

Decided Nov. 28, 1984.

Rehearing Denied Jan. 3, 1985.

Mark A. Moreno, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

James E. Kessler, Brookings, for defendant and appellant Gerald Lee Maves.

David R. Gienapp of Arneson, Issenhuth & Gienapp, Madison, for defendants and appellants Thomas R. and Kathleen R. Maves.

WOLLMAN, Justice.

Defendants appeal from their convictions on a charge of perjury. We affirm.

Defendants, who are brothers and sister, were charged by separate informations with having committed perjury on May 21, 1982, during the trial of defendant Gerald Maves on a charge of grand theft.

The information filed against defendant Gerald Maves stated in part:

That Gary Foster a/k/a "Tattoo Gary" a/k/a "Tattoo" was present in the Lantern Lounge in the City of Brookings, South Dakota, on the 27th day of November, 1981, sometime between the hours of 6:00 o'clock p.m. and 8:00 o'clock p.m. and that on the said date and during the said time period in the said location the said Defendant, GERALD LEE MAVES, purchased a gun from the said Gary Foster, a/k/a "Tattoo Gary" a/k/a "Tattoo" and received a receipt for said gun at the time of such purchase[.]

The information filed against defendant Thomas Maves stated in part:

That Gary Foster a/k/a "Tattoo Gary" a/k/a "Tattoo" was present in the Lantern Lounge in the City of Brookings, South Dakota on the 27th day of November, 1981, sometime between the hours of 6:00 o'clock p.m. and 8:00 o'clock p.m.; and that during the said time period at the said location the said Gary Foster a/k/a "Tattoo Gary" a/k/a "Tattoo" offered to sell the said Defendant a gun and that shortly thereafter the said Defendant observed the said Gary Foster a/k/a "Tattoo Gary" a/k/a "Tattoo" talking to Gerald Lee Maves, the brother of the said Defendant at which time the said Gary Foster a/k/a "Tattoo Gary" a/k/a "Tattoo" had a gun out and was showing it to the said Gerald Lee Maves[.]

The information filed against defendant Kathleen Maves stated in part:

That Gary Foster a/k/a "Tattoo Gary" a/k/a "Tattoo" was present in the Lantern Lounge in the City of Brookings, South Dakota, on the 27th day of November, 1981, sometime between the hours of 6:00 o'clock p.m. and 7:00 o'clock p.m.; and that during the said time period at the said location the said Gary Foster a/k/a "Tattoo Gary" a/k/a "Tattoo" had a conversation with Gerald Lee Maves, the brother of the said Defendant and that thereafter and after the said Gary Foster a/k/a "Tattoo Gary" a/k/a "Tattoo" had left the said location, the said Gerald Lee Maves had in his possession at the said location a gun which the said Gerald Lee Maves then told her that he purchased from the said Gary Foster a/k/a "Tattoo Gary" a/k/a "Tattoo"[.]

Each of the informations also stated that the May 19, 1982, trial of the charge against defendant Gerald Maves "concluded with a jury verdict of guilty ...."

The trial court granted the state's motion, made pursuant to SDCL 23A-11-1, that the three informations be joined for purposes of trial. The basis of the trial court's order was that the charges stemmed from the same transaction or judicial proceeding; that the same or similar evidence would be presented on each of the charges; that the defendants would not be prejudiced by joinder; and that it would be in the interests of judicial economy to join the informations for purpose of trial.

After the jury was empaneled, the state's attorney read the separate informations, as required by SDCL 23A-24-2(1). Following The state introduced evidence that tended to establish that at approximately 7:30 p.m., November 27, 1981, Gerald Maves entered Bill's Sport Shop in Brookings and that shortly after he left the store the employees discovered that a pistol was missing from a display case near which Maves had been standing while he was in the store. The trial court instructed the jury that this testimony should be considered only as against Gerald Maves.

the opening statement by the state's attorney, an opening statement was made by Kathleen Maves' attorney. The attorneys for Gerald and Thomas Maves reserved making their opening statements. After the first witness for the state had been sworn and asked to state his name, counsel for defendants moved that the charges be dismissed because of the fact that the jury had been informed through the reading of the informations that the earlier trial against Gerald Maves had resulted in his being found guilty. The trial court denied the motion and later instructed the jury that the outcome of the earlier trial was totally irrelevant, should not create any presumption or permit any inference of guilt in the current trial, and should be totally disregarded.

The state introduced from a Brookings police officer that at approximately 9:00 p.m., November 27, 1981, Gerald Maves, in the presence of Kathleen Maves, showed him a handgun of the same make and model as that which had been discovered missing earlier that evening at Bill's Sport Shop and told the officer that he, Gerald, had recently obtained it. The trial court instructed the jury that it should not consider this testimony as against Thomas Maves.

The state then introduced the testimony of Arlo and Alyce Preheim, Mark Helgerson, and Gary and Rebecca Foster concerning Gary Foster's whereabouts on the afternoon and evening of November 27, 1981.

Arlo Preheim, who lives on a farm near Freeman, testified that Gary Foster had lived at the Preheim farm with Arlo and his wife, Alyce, from September until late December of 1981. Arlo testified that Gary Foster and his then finance, Becky Hauge, who was also living with the Preheims during the period in question, were with the Preheims all day on November 26, 1981, Thanksgiving Day, and the following day, which was Alyce Preheim's birthday. Arlo testified that he and Gary were together all day on November 27 and that in the evening of that day he and his wife, together with Gary and Rebecca and Mark Helgerson went to Lesterville, which is approximately thirty miles southwest of Freeman, and then to Lindy, Nebraska, which is approximately twenty to twenty-five miles from Yankton, South Dakota, where they remained until they returned to the Preheim farm between 3:30-4:00 a.m. on November 28, 1981.

Alyce Preheim's testimony corroborated Arlo's in all material respects, as did Mark Helgerson's and Rebecca Hauge Foster (who had married Gary Foster in March of 1983).

Gary Foster himself testified that he recalled being present at the Preheim farm on November 27 and celebrating Alyce Preheim's birthday by going to some bars with Alyce and Arlo and Becky. In testimony that at the most charitable can only be described as evasive, Gary testified that he did not know whether he had been in Brookings on November 27 and that he did not remember whether or not he had sold a handgun to Gerald Maves on that day.

The state was permitted to read relevant portions of the testimony that defendants had given at the May 1982 trial of Gerald Maves. Although Kathleen Maves objected to the reading of Gerald and Thomas Maves' testimony and Thomas Maves objected to the reading of any of Gerald and Kathleen Maves' testimony, the trial court ruled that the testimony was not prejudicial to the objecting defendants and overruled the objections.

Although the defendants have raised, individually and collectively, a number of issues, we will deal only with those that we consider to have arguable merit.

Defendants contend that the trial court erred in granting the state's motion for joinder of the informations, claiming that they were prejudiced by the introduction of evidence that was admissible only as to one or more of them but not to all. We disagree.

Defendants have no absolute right to be tried separately, and the decision whether there should be separate trials is a matter left to the discretion of the trial court, a decision on which will be reversed only upon a showing of an abuse of discretion. State v. Iron Shell, 336 N.W.2d 372 (S.D.1983); State v. Reiman, 284 N.W.2d 860 (S.D.1979); State v. Bonrud, 246 N.W.2d 790 (S.D.1976). We find no such abuse of discretion here. The trial court made a considered decision, as revealed by the reasons set forth in its order granting the motion for joinder, that all of the relevant considerations bearing upon the issues weighed in favor of a joint trial.

Although in the instant case the trial court was faced with a decision whether to join separately charged defendants, we think that the same considerations that bear upon a trial court's decision whether to grant a motion to sever trials is equally applicable in the instant case. As we recently held, inasmuch as a motion to sever trials is addressed to the trial court's discretion, a clear showing of prejudice and abuse of discretion is required to justify reversal based upon a denial of a motion for severance. Likewise, a defendant must demonstrate affirmatively that the joint trial prejudiced the possibility of a fair trial rather than merely showing that he may have had a better chance for acquittal in a separate trial. State v. No Heart, 353 N.W.2d 43 (S.D.1984).

With respect to defendants' claim that they were prejudiced by the evidence that was admissible only as against one or more of them, we have held that the admission of evidence against only one of several defendants does not on its own create sufficient prejudice to justify reversal when proper limiting instructions are given to the jury. State v. No Heart, supra; State v. Reiman, supra; State v. Bonrud, supra. In the case...