State v. Shape, s. 18125

• Citation: 517 N.W.2d 650
• Decision Date: 08 June 1994
• Docket Number: Nos. 18125,18126,s. 18125
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Raymond J. SHAPE, and Dan C. Rindal, Defendants and Appellants.
• Court: Supreme Court of South Dakota

Page 650

517 N.W.2d 650

STATE of South Dakota, Plaintiff and Appellee, v. Raymond J. SHAPE, and Dan C. Rindal, Defendants and Appellants.

Nos. 18125, 18126.

Supreme Court of South Dakota.

Argued Oct. 6, 1993.

Decided June 8, 1994.

Mark Barnett, Atty. Gen., Thomas J. Welk, Sp. Asst. Atty. Gen., Sioux Falls, Robert Mayer, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Robert Chavis, Yankton, for defendant and appellant Shape.

Rodney C. Leholz, Rapid City, Frank B. Morrison, Jr., Kalispel, MT, for defendant and appellant Rindal.

McKEEVER, Circuit Judge.

This is an intermediate appeal from a denial of several pre-trial motions. Specifically the defendants appeal from rulings of the circuit court denying motions for: (1) appointment of co-counsel, (2) relief from prejudicial joinder of offenses, (3) relief from prejudicial joinder of defendants, (4) a continuance, (5) allowing a Montana attorney, Frank Morrison, to represent Rindal as local counsel, (6) a bill of particulars, and (7) certification of certain defense witnesses. We reverse in part and remand.

FACTS

Raymond J. Shape and Dan C. Rindal (Defendants) were jointly indicted by a Yankton County grand jury on November 27, 1991. Shape was indicted on one count of conspiracy to commit theft by deception, one count of grand theft by deception, one count of embezzlement, and two counts of perjury. Rindal was jointly indicted on the charges of conspiracy to commit theft by deception and grand theft by deception.

These charges arose from dealings between Defendants and Louis Dreyfus Corporation (LDC), a Connecticut corporation. LDC's goal was to purchase cattle, feed them, and then sell the livestock for a profit. Some refer to this as engaging in managed price risk or applying a price hedging program. LDC accomplished this by utilizing associates to manage hundreds of thousands of head of cattle placed at various locations throughout the United States.

Rindal, a Montana rancher, became interested in this arrangement and approached Seckler, Inc. (Seckler), an associate of LDC in March of 1987. After some negotiation, Rindal, LDC and Seckler agreed to place 4,000 head of cattle on Rindal's Montana ranch. Based on an informal agreement between Rindal and Shape, a South Dakota farmer and rancher, Shape helped manage some of the LDC cattle for Rindal. After further negotiations, Shape was allowed to purchase 300-400 head of the 4,000 cattle placed in Montana.

In July of 1987, Rindal stated that he and Shape had purchased a ranch in Avon, South Dakota. The parties agreed that the Avon ranch, coupled with the Montana ranch, provided an ideal situation for cow-calf operations. Rindal then agreed to a riskier feeding arrangement whereby he would guarantee bottom-line profit. Eventually, Rindal, with the assistance of Shape, was attempting to manage between 20,000 and 30,000 head of cattle in four states. ¹

Cattle were delivered to the Avon ranch, and then placed at various locations in Yankton County, Bon Homme County, and northern Nebraska. Shape and his family operated these locations, but Defendants worked together. According to Defendants' arrangement, Shape purchased the cattle and placed them at the various locations, reporting these purchases to Rindal. Rindal then relayed this information to Seckler who forwarded it to LDC. LDC, in turn, reimbursed Shape and Rindal for the cattle they purchased. LDC also reimbursed Rindal for the costs of feeding the cattle. Between March of 1987 and April of 1989, hundreds of cattle transactions occurred. LDC and Seckler created a file folder for each transaction.

During the latter portion of 1988, Seckler claimed that cattle were missing from the South Dakota herd. Seckler demanded that Rindal either make a cash payment or offset receivables in the amount of approximately $696,000, convey 1060 head of cattle, or feed certain LDC cattle at his own expense. Rindal complied claiming that he believed that he would be credited for his payment when the "error" was found. In March of 1989, LDC and Seckler alleged that 4,000 head of cattle were missing while under the control of Rindal and Shape. Rindal, Seckler and LDC terminated their business agreement in April of 1989.

In the month that followed, LDC retained various investigators to attempt to locate the alleged missing cattle. One group of investigators, Quigley Powers & Associates (Quigley Powers) of Pierre, South Dakota, retained other investigators in five states to assist their attempt to locate the missing cattle. The Quigley Powers investigation encompassed approximately a one month time period and produced a file comprised of at least five 3-inch thick notebooks. In the meantime, Rindal launched a civil suit against LDC and Seckler in federal court in Montana. In that suit, Rindal sought millions of dollars in damages alleging that LDC and Seckler devised a scheme to fraudulently obtain money and services from Rindal.

Shortly after Rindal launched the civil suit, LDC and Seckler began cooperating with the State of South Dakota to initiate criminal charges against Defendants. The South Dakota Division of Criminal Investigation (DCI) instituted its own investigation into the matter. DCI utilized seven of their own agents and one Colorado agent to interview witnesses in several states. The DCI investigation resulted in a lengthy report containing several thousand pages of LDC documents. The result of these investigations were the indictments of Defendants by the grand jury. ² A special assistant attorney general has been appointed to assist the prosecution of the case.

Discovery in this case has been a lengthy, difficult process. The sheer volume of materials is overwhelming. A significant time commitment is required to absorb the information contained in thousands of pages of documents. Furthermore, documents and potential witnesses are located in several states. Over 100 potential witnesses have been identified. The volume and location of discovery materials has presented special difficulties for Shape's counsel because he is a solo practitioner.

The existence of the civil suit has also complicated the discovery process. Defendants' counsel experienced additional difficulties obtaining the Quigley Powers materials because LDC counsel claimed that those materials are work-product for the civil suit. It has been difficult for all parties to effectively exchange discovery materials and the result has been a protracted, frustrating discovery process.

A motion hearing took place on August 20, 1992. At that hearing, counsel for Shape argued for the appointment of co-counsel. Counsel desired such appointment due to his own health concerns, the sheer magnitude of the case, and other personal concerns. This motion was denied. Another hearing was conducted on October 26, 1992, to consider Defendant's motions for a continuance, for relief from prejudicial joinder of offenses, for relief from prejudicial joinder of defendants, and for a bill of particulars. These motions were also denied. This Court granted an intermediate appeal from the order of the trial court denying the motions. Discovery continued, and on November 16, 1992, another motion hearing was held on motions to dismiss, to compel deposition, to produce, to certify material witnesses, and for a continuance. Nineteen witnesses residing out of state were certified for the defense, but the balance of Defendants' motions were denied. This intermediate appeal followed.

DECISION

I. APPOINTMENT OF CO-COUNSEL

Defendants are entitled to a fair trial. A component of a fair trial is effective assistance of counsel. State v. McBride, 296 N.W.2d 551, 553 (S.D.1980). The South Dakota Constitution guarantees that an accused has a right to the assistance of counsel. S.D. Const. art. VI, Sec. 7. Appointment of counsel is reviewed under the abuse of discretion standard. Miller v. State, 344 N.W.2d 78, 83 (S.D.1984). "We will reverse the [trial] court's decision only in the event of an abuse of discretion." State v. Bartlett, 411 N.W.2d 411, 413 (S.D.1987). "An abuse of discretion refers to a discretion exercised to an end or purpose not justified by and clearly against reason and evidence." State v. Pfaff, 456 N.W.2d 558, at 561 (S.D.1990).

Although the trial court appointed counsel to defend Shape, the resources of counsel for Shape are limited. The discovery process alone involves examining and analyzing thousands of pages of documents located in several states. Counsel for Shape has admitted to this Court, both in his brief and at oral argument, that the sheer volume of this case is more than he can handle as a solo practitioner. Handling this complex case for Shape jeopardizes this attorney's practice, but more importantly draws into question whether Shape will receive effective assistance of counsel.

Given the complexities involved in this case, the enormous amount of material to be reviewed, and the vast disparity between the meager resources of counsel for Shape as opposed to the limitless resources employed by the state, the trial court's denial of Shape's motion for appointment of co-counsel was an abuse of discretion under the state of this record. We therefore reverse the decision of the trial court which denied appointment of co-counsel for Shape and remand to the trial court with directions to appoint co-counsel for Shape.

II. SEVERANCE OF OFFENSES

We now examine whether the perjury charges should be separated from the conspiracy, theft by deception and embezzlement charges (theft-related charges). ³ This Court must determine whether the charges were properly joined under SDCL 23A-6-23. If none of the tests allowing joinder under SDCL 23A-6-23 are met, SDCL 23A-11-2 provides relief from prejudicial joinder by allowing severance of the offenses. State v. Dixon, 419 N.W.2d 699, 702 (S.D.1988). If the charges are properly joined, then the party opposing joinder of the offenses must establish...