State v. Reiman, s. 12451

• Court: Supreme Court of South Dakota
• Citation: 284 N.W.2d 860
• Docket Number: 12461,Nos. 12451,s. 12451
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Harold Frederick REIMAN, Robert G. Graham, Jeffery G. Onstott, Alan N. Elliott, Defendants and Appellants. to 12463.
• Decision Date: 31 October 1979

Page 860

284 N.W.2d 860

STATE of South Dakota, Plaintiff and Respondent, v. Harold Frederick REIMAN, Robert G. Graham, Jeffery G.

Onstott, Alan N. Elliott, Defendants and Appellants.

Nos. 12451, 12461 to 12463.

Supreme Court of South Dakota.

Argued May 16, 1979.

Decided Oct. 31, 1979.

Margaret Crew, Asst. Atty. Gen., Pierre, for plaintiff and respondent; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

John R. Kabeiseman of Brady, Kabeiseman, Reade, Abbott & Johnson, Yankton, for defendant and appellant Reiman.

Steven M. Johnson of Brady, Kabeiseman, Reade, Abbott & Johnson, Yankton, for defendant and appellant Graham.

William J. Klimisch of Goetz, Hirsch, Haar & Klimisch, Yankton, for defendant and appellant Onstott.

John T. Porter of Doyle, Beirle & Porter, Yankton, for defendant and appellant Elliott.

FOSHEIM, Justice.

All four defendants were charged, tried and convicted of rape and kidnapping. Motions for new trials were denied. All defendants appeal from the judgments entered. They raise numerous assignments of error which will be grouped for discussion. We affirm the rape convictions of all defendants and the kidnapping convictions of defendants Reiman and Graham. We reverse the kidnapping convictions of defendants Onstott and Elliott.

According to the state's evidence, on August 22, 1977, the complaining witness and two other young women smoked marijuana and drank beer before driving to Fordyce, Nebraska for dinner. They returned to Yankton and went to the Cock-a-Too Bar. The prosecutrix remained at the bar later than her companions, and departed shortly after midnight. Upon leaving, she saw a vacant van with an open side door parked in front of the bar. She testified that a man behind her made a comment and she was then shoved inside the van through the open side door. She asked to be released. Two other men then occupied the front seat of the van and one of them drove it away. The man who pushed her into the van had her pinned with his arms. When she attempted to get out the door, he grabbed her by the hair. The evidence indicates that the driver was the defendant Reiman and the front seat passenger was the defendant Graham. The man in the back was not identified and was indicted by the grand jury as "John Doe." The van was driven into a building with open doors. The driver and passenger got out of the van and "John Doe" then began to molest the victim and pulled her from the vehicle. She fought with him. At John Doe's request, defendant Elliott and another unidentified man came to his assistance. Her assailants, including defendant Onstott, forced the victim upon a mattress with a sheet on it, removed her clothing, and for over four hours forced her to have oral and vaginal sex. During the assault, the victim was struck numerous times. At one point, she managed to get away and ran toward a light which she said was in a bathroom. The bathroom had a mirror with red designs on it similar to the state's exhibit which was removed from the paint shop of defendant Reiman where the assault was alleged to have occurred. She testified that all of the defendants raped her that night. After the assault ended, she was released within a few blocks of her residence.

The complaining witness was examined by her doctor on the day of the assault. She told him she had been raped by six men after being forced into a van. It was the impression of the doctor that she had been raped, due to her physical and emotional condition. She was upset, trembling and afraid. There were bruises on her legs, arms, back, and face. Her sexual organs were swollen and tender. There was a fluid in the vagina which, in the doctor's opinion, was semen. The doctor, based upon his findings, concluded that more than one man had been involved.

Later on August 23, 1977, the prosecutrix visited the Yankton County Sheriff's Office and gave descriptions of four of her assailants. Defendants denied the charges; they all, however, admitted their presence at the Cock-a-Too Bar on the evening of August 22, and at the Outasite Paint Shop during the early morning hours of August 23. The paint shop where the rape allegedly was committed was operated by defendant Reiman. We will first review the challenged pretrial procedures.

It is urged that the trial court erred in failing to proceed with scheduled and demanded preliminary hearings concerning complaints which were filed against all four defendants. Defendants Reiman, Onstott, and Elliott were arrested with separate warrants on complaints signed by the sheriff of Yankton County. These complaints, dated September 1, 1977, charged defendants with the crimes of rape and kidnapping. On September 2, 1977, defendant Graham was arrested pursuant to a warrant based on a complaint which also charged the crimes of rape and kidnapping. All four defendants appeared before a law-trained magistrate, and September 6, 1977, was set as the time for a preliminary hearing for all four defendants on all charges. On September 3, without notice to defendants or their appointed legal counsel, the state convened a grand jury for the purpose of investigating this alleged criminal activity. The grand jury returned separate indictments against all four defendants, charging each with the crimes of rape and kidnapping. On September 6, 1977, the defendants appeared by counsel for the scheduled preliminary hearings, but none were held. On September 12, 1977, a circuit judge granted motions made by defendants Graham and Onstott to quash the grand jury indictments dated September 3, 1977. The judge further ordered that defendants Graham and Onstott be present before the law-trained magistrate on September 13, 1977, for purposes of setting a date for a preliminary hearing on the original complaints. On September 13, 1977, defendants Graham and Reiman filed applications for writs of habeas corpus. Prior to the hearing on the writs, all four defendants were served with warrants of arrest and complaints alleging the same crimes of rape and kidnapping. The circuit judge granted the writs of habeas corpus up to the point of the arrest of such defendants on the second set of warrants and complaints. This, in effect, kept defendants in custody on the warrants dated September 13, 1977. Preliminary hearings for all four defendants concerning these complaints were scheduled for September 15, 1977, at 4:30 p. m. On September 14, 1977, a new grand jury was assembled and returned a joint indictment charging all four defendants and "John Doe" each with the crimes of rape and kidnapping. On September 15, 1977, the second set of arrest warrants and complaints against defendants Reiman, Graham, and Onstott was dismissed and the preliminary hearing scheduled for that day before the law-trained magistrate (the second preliminary hearing scheduled) was cancelled. Defendants remained in custody and went to trial on the second grand jury indictments.

South Dakota law provides that criminal actions may be commenced by indictment, information, and complaint. ¹ The defendants complain that scheduled preliminary hearings were not held. While a defendant cannot be held on an information in this state unless there has been a preliminary hearing or the defendant has waived such a hearing, SDCL 23-36-1, ² there is no similar requirement concerning indicted defendants. Once the grand jury has found probable cause, a preliminary hearing is not required. State v. Serl, 269 N.W.2d 785 (S.D.1978); 21 Am.Jur.2d Criminal Law § 442 (1965). The indictments here rendered defendants' requests for a preliminary hearing moot and were not violative of due process or equal protection rights. State v. Mastrian, 285 Minn. 51, 58, 171 N.W.2d 695, 701 (1969) Cert. denied, 397 U.S. 1049, 90 S.Ct. 1381, 25 L.Ed.2d 662 (1970). See also, State v. Franklin, 163 N.W.2d 437 (Iowa 1968).

Pursuant to SDCL 23-42-4, the defendants were prosecuted jointly. ³ They contend the trial court erred in refusing to grant them separate trials. They claim the appearance of the four defendants with their attorneys all gathered around two counsel tables impressed upon the jury that the guilt of one meant the guilt of all. Whether to grant separate trials is a determination that lies within the discretion of the trial court, and we will not disturb the trial court's decision absent a showing of abuse of discretion. State v. Bonrud, 246 N.W.2d 790 (S.D.1976).

Appellants' argument would apply to any joint prosecution and require for the sake of appearance that each defendant jointly charged with participating in any group crime must on demand be tried separately. Since all defendants charged with a felony must be present at the trial ⁴ and will likely have counsel, an appearance of togetherness is perhaps unavoidable in any joint prosecution. Primarily for reasons of economy of time in judicial administration, the general rule has evolved that persons jointly indicted should be tried together, and this is particularly applicable where, as here, one crime may be proved against two or more defendants from the same evidence. United States v. Shuford, 454 F.2d 772 (4th Cir. 1971). Notwithstanding the need for efficiency, a joint trial is inappropriate if it sacrifices a defendant's right to a fair trial. Baker v. United States, 329 F.2d 786 (10th Cir. 1964), Cert. denied, 379 U.S. 853, 85 S.Ct. 101, 13 L.Ed.2d 56 (1964). A separate trial should be granted where co-defendants have made serious statements implicating other co-defendants and the possibility plainly exists that such statements will be introduced as evidence in the trial. Such conditions may force a defendant in many cases to take the stand unwillingly to defend himself against such statements. Baniszewski v. State, 256 Ind. 1, 261 N.E.2d 359 (1970). A severance is also obligatory where one defendant's case rests heavily on the exculpatory testimony of a co-defendant who, though willing to give such testimony, fears that by...