State v. Rosales, 13114

Citation302 N.W.2d 804
Decision Date04 March 1981
Docket NumberNo. 13114,13114
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Juan Joe ROSALES, Defendant and Appellant.
CourtSupreme Court of South Dakota

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

Steven D. Rich, Rapid City, for defendant and appellant.

FOSHEIM, Justice.

This appeal is from the judgment of conviction entered upon a jury verdict finding appellant guilty of first-degree burglary. We affirm.

In the early evening hours of November 8, 1979, Jack Mittler returned from work to his basement apartment in the Neva MacKaman residence in Rapid City. While in his apartment, he heard footsteps on the main floor above and, knowing that Mrs. MacKaman was absent on vacation, decided to investigate. He went upstairs where he noticed broken glass by the entrance and observed that a hallway light was turned on. He returned to the basement and called the police.

Officers Christopher Grant and Eugene Bussell of the Rapid City Police Department, who were patrolling the area in separate cruisers, immediately responded to the call. As the officers approached the rear of the MacKaman house, Officer Grant heard the backdoor slam. He then rounded the corner and observed appellant descending the backsteps from the house with a microwave oven in his arms. This oven was later determined to belong to Mrs. MacKaman.

While the officers were handcuffing and searching appellant, Officer Grant observed another man approaching the backdoor from inside the house. Grant pursued and apprehended the second suspect in the living room. That individual was Louis Darlington. Appellant and Darlington were taken into custody and charged with first-degree burglary.

On the day of the scheduled joint jury trial, the co-defendant, Darlington, failed to appear and his attorney was unable to locate him. Appellant moved for a continuance in order to produce the testimony of Darlington. The trial court denied the motion, and the trial proceeded absent the co-defendant.

Appellant contends that the trial court abused its discretion in refusing to grant a continuance. His defense was based primarily upon his purported diminished capacity due to ingestion of alcohol and drugs on the day of the incident. According to appellant's testimony, he consumed a large amount of alcohol on that day and, in addition, he claimed to have taken L.S.D. provided by Darlington. As a result, appellant claims, he blacked out and remembers very little of what occurred that evening. Apparently, Darlington's testimony was intended to support that defense.

A trial may be postponed pursuant to SDCL 15-11-4 "upon good cause shown." * This Court has repeatedly stated that the granting of a continuance is within the sound discretion of the trial court, and its ruling will not be reversed unless there has been a clear abuse of discretion. State v. Hickey, 287 N.W.2d 502 (S.D.1980); State v. Lohnes, 266 N.W.2d 109 (S.D.1978); State v. Pickering, 245 N.W.2d 634 (S.D.1976); State v. Barcley, 88 S.D. 584, 225 N.W.2d 875 (1975).

In denying appellant's motion, the trial court stated:

The reason I'm denying your motion is there's no showing that Mr. Darlington will even take the witness stand to testify and there's no way on behalf of a co-defendant, you could force him to take the witness stand and testify. Whether he testifies or not is a decision that only he can make at trial.

That a co-defendant in a criminal trial may not be compelled to testify is so axiomatic citation of authority is not required. In stating his reason for seeking a continuance, defense counsel said he "anticipate(d)" Darlington would testify with regard to appellant's ingestion of L.S.D. No further showing was made. Appellant himself testified at length and without objection concerning his drug usage on the date of the crime. The proffered testimony would thus have been cumulative, State v. Hickey, supra, and we accordingly conclude that the trial court did not abuse its discretion in refusing to grant a continuance.

Appellant next contends that the trial court erred in giving Instruction No. 21, which reads:

If you believe that any witness has knowingly sworn falsely to any material fact in the case, you may reject all of the testimony of any such witness.

Appellant points out that this "Falsus in Uno, Falsus in Omnibus" instruction is not favored in some jurisdictions and claims that, in this case, it effectively implied to the jury that appellant's testimony was false. The propriety of this instruction has been questioned on numerous occasions, and we have consistently held that, where the veracity of a witness is in question, this instruction should be given. Cox v. General Motors Acceptance Corp., 59 S.D. 588, 241 N.W. 609 (1932); State v. Hall, 59 S.D. 98, 238 N.W. 302 (1931); State v. Hanley, 58 S.D. 191, 235 N.W. 516 (1931); State v. Wilcox, 48 S.D. 289, 204 N.W. 369 (1925); State v. Goodnow, 41 S.D. 391, 170 N.W. 661 (1919). The instruction "applies equally to the testimony of all witnesses in the case." State v. Wilcox, supra, 48 S.D. at 294, 204 N.W. at 371.

Appellant next contends that the prosecutor's remarks during closing argument were prejudicial and denied him a fair trial. The questioned argument stated:

Or you might want to ask yourself, "Why is it that this particular person, who can't remember much of anything, would tell us that there are people who can remember some of these things, for example the drinking, both the drinking of the beer and the drinking of the whiskey?" Didn't we all hear there are other people involved? I heard their names. I guess they're still in town, but all we heard was from the Defendant.

Defense counsel immediately objected; the trial court sustained...

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19 cases
  • State v. Berget
    • United States
    • South Dakota Supreme Court
    • August 13, 2014
    ...to be present, even though it may violate the plain language of the statute, to be harmless error. Id. at 85–86 (citing State v. Rosales, 302 N.W.2d 804, 807 (S.D.1981) ). The circuit court's judgment was affirmed based on this harmless error analysis. Id. at 86. [¶ 53.] Applying a similar ......
  • State v. Dale
    • United States
    • South Dakota Supreme Court
    • March 22, 1989
    ...upon the jury's decision as prejudicial error must. For unless it has such an impact, it is not prejudicial error. State v. Rosales, 302 N.W.2d 804, 807 (S.D.1981). However, prosecutors are reminded that each defendant has the right to a fair trial. State v. Kidd, supra, 286 N.W.2d at 123. ......
  • State v. Shult
    • United States
    • South Dakota Supreme Court
    • October 25, 1985
    ...not testified as appellant had testified. A comment on failure to call witnesses is permissible under South Dakota law. State v. Rosales, 302 N.W.2d 804 (S.D.1981); State v. Winckler, 260 N.W.2d 356 (S.D.1977). Moreover, the trial court instructed the jury that the burden was on the state t......
  • State v. Dace
    • United States
    • South Dakota Supreme Court
    • April 27, 1983
    ...homosexuality. Prejudicial error is that which in all probability must have produced some effect upon the final result. State v. Rosales, 302 N.W.2d 804 (S.D.1981). Any error which does not affect substantial rights is harmless. SDCL 23A-44-14. Appellant next argues that when he took the wi......
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