State v. Shilvock-Havird, SHILVOCK-HAVIR

• Decision Date: 29 July 1991
• Docket Number: A,SHILVOCK-HAVIR,No. 17220,17220
• Parties: STATE of South Dakota, Appellee, v. Laurieppellant.
• Court: South Dakota Supreme Court

Page 773

472 N.W.2d 773

STATE of South Dakota, Appellee, v. Laurie SHILVOCK-HAVIRD, Appellant.

No. 17220.

Supreme Court of South Dakota.

Argued March 18, 1991.

Decided June 26, 1991.

Rehearing Denied July 29, 1991.

Roger A. Tellinghuisen, Atty. Gen., Scott Bogue, Asst. Atty. Gen., Pierre, for appellee; Ethan Schmidt, Pierre, on the brief.

David A. Bradsky, Bradsky & Bradsky, Rapid City, for appellant.

ERICKSON, Circuit Judge.

Laurie Shilvock-Havird (defendant) was convicted of two counts of use of false instrument to obtain public funds (Class 1 misdemeanors); two counts of theft (Class 1 misdemeanors); twenty-eight counts of perjury (Class 5 felonies); one count of attempted theft (Class 5 felony); twenty-six counts of use of false instrument to obtain funds (Class 4 felonies); and twenty-five counts of theft (Class 4 felonies).

FACTS

Defendant was a court reporter, employed by the state and assigned to the magistrates in the Seventh Judicial Circuit. The Department of Legislative Audit conducted an audit of defendant's vouchers for indigent criminal transcripts billed to Pennington, Custer and Fall River counties from November 1986 through February 1989. As a result of that audit, a Pennington County grand jury indicted defendant on eighty-four counts of criminal misconduct.

Defendant's issues on appeal are procedural in nature. Defendant does not appeal any factual issues which form the basis for her convictions.

ISSUE I

WHAT IS THE EFFECT OF A MISTRIAL ON THE COMPUTATION OF THE 180-DAYS WITHIN WHICH PROSECUTORS MUST DISPOSE OF ALL CRIMINAL CASES?

Defendant was arraigned on the indictment on September 6, 1989. The 180-day deadline mandated by SDCL 23A-44-5.1 was March 4, 1990. The first trial commenced on January 8, 1990. It ended five trial days later on January 16, 1990, after the jury informed the trial judge that they were deadlocked.

On January 23, 1990, the trial court, by letter, suggested to counsel a re-trial date of either March 5, 1990, or March 26, 1990. Shortly thereafter, in an unrecorded telephone conference, March 26, 1990 was set as the trial date. The trial was eventually reset and began on May 14, 1990.

The state did not file a motion to extend the 180-day period prior to March 5, 1990, as mandated in State v. Hoffman, 409 N.W.2d 373 (S.D.1987). On March 7, 1990, defendant filed a motion to dismiss, which the state resisted. After a hearing, the trial court specifically found:

(1) None of the cases decided to that point had dealt with a case which had been tried, but, due to a mistrial, was not disposed of in 180-days.

(2) The state brought the case to trial well within the 180-days. But for the jury being unable to reach a verdict on all counts, the case would have been disposed of at that time.

(3) Both parties had at all times been ready, willing and able to dispose of the case.

(4) The trial court was unable to retry a five (5) day trial prior to March 5, 1990, because of [the trial court's] trial schedule.

The trial judge then concluded:

(1) The 180-day rule was adopted to prevent delay, procrastinations, and dilatory tactics.

(2) None of the public policy considerations which support the 180-day rule were present.

(3) [Defendant's] conduct, in which she, through counsel, consented to a March 26, 1990 trial date, waived her right to trial within 180 days.

The 180-day rule in effect at that time required "disposal" of the case by "plea of guilty or nolo contendere, trial or dismissal" within 180 days of the first appearance. SDCL 23A-44-5.1.

Defendant argues that the 180-day rule is absolute and that absent a motion for good cause delay filed by the prosecution prior to the expiration of the 180 days, Hoffman, supra, requires dismissal. The Hoffman motion filing requirement is not absolute. In State v. Tiedeman, 433 N.W.2d 237 (S.D.1988), this court found that in a case where there is an issue of "first impression" before the court, the Hoffman motion filing requirement is not controlling.

Tiedeman dealt with the issue of the effect of a dismissal and subsequent refiling of criminal charges on the running of the 180-day period. In this instance, we deal with the issue of the effect of a mistrial and subsequent re-trial on the running of the 180-day period. SDCL 23A-44-5.1 is silent on this issue. ¹ As in Tiedeman, this is an issue of first impression in this court. Therefore, the motion filing requirement is not dispositive of this issue.

In reviewing the findings of the trial court concerning reasons for "good cause delay," the clearly erroneous standard of review applies. State v. Kerkhove, 423 N.W.2d 160 (S.D.1988). All of the trial court's findings, except on the issue of waiver, are clearly supported by the evidence in this case. The failure to "dispose" of the case within 180 days was not caused by procrastination or dilatory tactics, but rather the inability of a jury to come to an ultimate decision. Then a combination of factors, including the trial court's schedule of other trials and the complexity of the case, which required at least a five-day time span for re-trial, caused the second trial to be postponed beyond the 180 days.

This was a complex case involving over two hundred exhibits and thirty witnesses. All parties knew the first trial took five days to complete. Under these circumstances, the 117-day delay between the mistrial and re-trial was reasonable and for good cause.

Additionally, the trial court found that defendant waived the 180-day requirement. The grounds were that in an unrecorded, and therefore, non-reviewable telephone conference with defense counsel, the court and the prosecution, the parties agreed upon a March 26, 1990, trial date. This matter is further complicated by the fact that the defense had informed the court that it was intending to file a motion for change of venue. That motion was apparently abandoned because the defense could not choose the county to be substituted. For a time, this caused the trial court to tentatively reserve time and court space in at least two separate counties pending the filing of this motion.

There is nothing to indicate that the defendant was a party to, or was aware of the unrecorded discussion concerning trial dates. Additionally, the record does not indicate that the 180-day rule was ever discussed or considered prior to the filing of the motion to dismiss on March 7, 1990. As in State v. Black Feather, 266 N.W.2d 563 (S.D.1978), any delay "caused by actions of counsel taken without the concurrence of the defendant" cannot be considered as a waiver by the defendant. Therefore, this record does not support the finding of a waiver of the 180-day rule.

While there was not a valid waiver of the 180-day rule, in light of all the other facts and circumstances, the delay between mistrial and re-trial was reasonable and for good cause. Therefore, the trial court is affirmed on this issue.

ISSUES II and III

IS PERJURY, AS SET FORTH IN SDCL 4-9-4, A SPECIFIC INTENT CRIME?

IS THE CRIME OF "USE OF FALSE INSTRUMENT TO OBTAIN PUBLIC FUNDS," SDCL 4-9-5, A SPECIFIC INTENT CRIME?

Defendant was charged with violations of SDCL 4-9-4 "Declaration in lieu of verification or oath--False statement as perjury," and SDCL 4-9-5, "False instrument to obtain public funds as theft." Defendant contends these are specific intent crimes. The trial court found otherwise, and instructed the jury that they were general intent crimes.

Whether or not a crime is a "general intent" or "specific intent" crime depends upon its legislative enactment. "The legislature may forbid the doing of an act without regard to the intent or knowledge of the doer." State v. Nagel, 279 N.W.2d 911, 915 (S.D.1979); State v. Rash, 294 N.W.2d 416, 418 (S.D.1980). Additionally, the legislature may make a crime a specific intent crime under one set of circumstances, and a general intent crime under a different set of circumstances. United States v. Lardieri, 497 F.2d 317 (1974), on rehearing, 506 F.2d 319 (3rd Cir.1974); United States v. Stassi, 443 F.Supp. 661 (D.C.N.J.1977).

(a) SDCL 4-9-4 (Perjury). SDCL 4-9-4 states in pertinent part:

Whenever any law of this state requires a claim or account against the state, or any of its political subdivisions ... to be verified or sworn to ... prior to presentation or payment, it shall be sufficient compliance with such law if the claimant ... shall sign a statement printed or written thereon in the following form: "I declare and affirm under the penalties of perjury that this claim has been examined by me, and to the best of my knowledge and belief, is in all things true and correct." Any person who shall sign a claim or account bearing the statement written or printed thereon as provided for in this section, knowing the same to be false or untrue, in whole or in part, shall be guilty of perjury. (emphasis provided).

Defendant argues that SDCL 4-9-4 must be read in conjunction with SDCL 22-29-1, the general perjury statute, and that the phrase "intentionally and contrary to such oath" found in SDCL 22-29-1 makes perjury a specific intent crime.

Defendant was not charged under SDCL 22-29-1. Nothing in SDCL 4-9-4 indicates that it was the legislature's intent that it must be read in conjunction with SDCL 22-29-1. SDCL 4-9-4 sets forth a separate and distinct method of committing perjury.

This court over the past several years has repeatedly analyzed the specific intent/general intent dichotomy. The use of the terms "intentionally" or "knowingly" merely designate that the culpability required is something more than negligence or recklessness. State v. Balint, 426 N.W.2d 316 (S.D.1988); State v. Huber, 356 N.W.2d 468 (S.D.1984); State v. Barrientos, III, 444 N.W.2d 374 (S.D.1989); State v. Bailey, 464 N.W.2d 626 (S.D.1991).

SDCL 4-9-4 merely requires that the defendant know of the falsity of the statement. It does not require a mental state beyond that. For example, there is no...