State v. Sorenson

• Decision Date: 13 September 2000
• Docket Number: No. 21186.,21186.
• Citation: 2000 SD 127,617 N.W.2d 146
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Norval M. SORENSON, Defendant and Appellant.
• Court: South Dakota Supreme Court

617 N.W.2d 146

2000 SD 127

STATE of South Dakota, Plaintiff and Appellee, v. Norval M. SORENSON, Defendant and Appellant.

No. 21186.

Supreme Court of South Dakota.

Considered on Briefs May 30, 2000.

Decided September 13, 2000.

Mark Barnett, Attorney General, Sherri Sundem Wald, Assistant Attorney General, Pierre, for plaintiff and appellee.

Ted W. Hinesley, Edgemont, for defendant and appellant.

PER CURIAM

[¶ 1.] Sorenson appeals from a judgment of conviction of simple assault, third offense, claiming that the trial court abused its discretion when it denied his motion to suppress based on violation of a discovery order and that it erred as a matter of law when it refused him credit on his sentence for time he spent at the Human Services Center undergoing psychiatric evaluation. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Sorenson assaulted Steve Gibson in Sorenson's apartment after the two men had been drinking together. Sorenson was charged with simple assault, third offense. Prior to trial, his attorney filed a motion for discovery of the identity of witnesses to the crime and of all relevant facts, including the identity of witnesses who provided exculpatory information to the State. The motion was granted.

[¶ 3.] During noon recess of the trial, Sorensen's attorney observed Robb Charles, a taxi cab driver, outside the courtroom. Charles was later called as a rebuttal witness by the State and testified to giving Sorensen a ride in his taxi on the day of the assault. Sorensen objected on the grounds that Charles' identity as a witness had not been made known prior to trial during discovery. The prosecutor informed the court that his identity and testimony only became known to the State around 11:00 a.m. the morning of trial, approximately three hours before he was called to testify on rebuttal.¹ The objection was overruled and Sorenson was subsequently found guilty.

[¶ 4.] At the sentencing hearing, it was established that Sorenson had been incarcerated 203 days, with 25 of those days spent undergoing psychiatric evaluation at the Human Services Center (HSC). The trial court sentenced him to two years in the state penitentiary and gave him credit for 178 days served, denying his request for credit for the days spent at HSC. Sorenson appeals.

ANALYSIS AND DECISION

[¶ 5.] 1. Whether the trial court abused its discretion in denying Sorenson's motion to suppress Charles' testimony based on State's violation of the discovery order.

[¶ 6.] SDCL 23A-13-17 sets forth the remedies for breach of a discovery obligation. It provides in pertinent part:

If, at any time during the course of a proceeding, it is brought to the attention of a court that a party has failed to comply with an applicable discovery provision, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances.

"Although a trial court's order for the production of evidence must be expeditiously carried out and obeyed, not every failure to produce evidence as ordered is prejudicial error." State v. Oster, 495 N.W.2d 305, 309 (S.D.1993), overruled on other grounds by State v. DeNoyer, 541 N.W.2d 725 (S.D.1995)

; State v. McKee, 314 N.W.2d 866 (S.D.1982). The trial court's choice of remedy or failure to grant a particular remedy is reviewed under an abuse of discretion standard. State v. Hagan, 1999 SD 119, ¶ 19, 600 N.W.2d 561, 566. Evidentiary rulings are presumed correct and will not be reversed unless there is a clear abuse of discretion. Oster, 495 N.W.2d at 309.

[¶ 7.] Sorenson is presumed to have been aware of this evidence and potential witness prior to trial. After assaulting Gibson, and fearing for Gibson's life, Sorenson walked from his apartment to a local convenience store where he called an ambulance for Gibson and a taxi for himself. Sorenson asked Charles to drive through the alley near his apartment with the taxi's lights off, wait while Sorenson crawled in his apartment window to retrieve a few items, and then drive him and another person to a local bar. En route, Charles overheard Sorenson tell his companion that he "had knocked the shit out of" another person in his apartment.

[¶ 8.] While authorities later looked for Sorenson in the bar, Sorenson called Charles to come back and give him and his friend a ride from the bar. Charles arrived but Sorenson and his friend did not come out. While Charles was inside the bar looking for him, Sorenson slid into the backseat of Charles' taxi. Police found him lying on the backseat and he admitted he was hiding from them. He asked police if the victim in his apartment was dead. When told he was badly beaten, Sorenson replied, "Darn right. I am a fourth generation special forces" and referred to himself as a "killing machine." At trial he explained he said these things in a joking manner to keep the "mood light" and did not expect to be arrested for assault.

[¶ 9.] Discovery statutes exist to eliminate trial by ambush. Oster, 495 N.W.2d at 309. However, Sorenson cannot seriously claim, with this type of extended cab service, that he was unaware of Charles as potentially having information relevant to the crime. Sorenson testified in his own defense regarding the fight and to calling a taxi and being found by the police hiding in the taxi's backseat. He was provided the opportunity to cross-examine Charles.

[¶ 10.] We will not reverse a ruling reviewed under an abuse of discretion standard absent a showing of prejudice. State v. Daniel, 2000 SD 18, ¶ 13, 606 N.W.2d 532, 535. Sorenson must show affirmatively that the State's failure to produce Charles' name as a witness prejudiced the possibility of a fair trial. He has not. The trial court did not abuse its discretion in denying Sorenson's motion to suppress this evidence. [¶ 11.] 2. Whether the trial court's refusal to credit Sorenson's sentence with 25 days spent at the Human Services Center was a mistake of law.

[¶ 12.] Sorenson originally pled not guilty. Less than a month later, he filed a successful motion for a psychiatric evaluation. The trial court ordered that he be evaluated, at public expense, at the Human Services Center to determine his mental competency at the time of the alleged assault and his ability to assist in his defense at trial. Transportation to and from the facility was provided by the sheriff's office at public expense. Sorenson spent 25 days at HSC undergoing this evaluation. He was successful in changing his plea from not guilty to not guilty by reason of insanity. His motion for bifurcating the guilt/innocence phase and the sanity phase of his trial was granted.

[¶ 13.] Sorenson was found guilty by a jury of simple assault, third offense. His sanity trial was held before Judge Kern who determined that the evidence failed to support either a verdict of not guilty or not guilty by reason of insanity. The maximum sentence that could have been imposed was two years and a $2,000 fine. SDCL 22-18-1, 22-6-1(8). The trial court sentenced Sorenson to two years imprisonment and ordered him to pay court costs, attorney's fees, and restitution. Sorenson was credited for time spent in county jail, but the court refused to award credit for the 25 days he was undergoing psychiatric evaluation at HSC. Sorenson claims the trial court erred in not crediting him for this time.

[¶ 14.] Unless there is some constitutional or statutory limitation, sentencing power is discretionary with the trial judge. State v. Anderson, 1996 SD 46, ¶ 30, 546 N.W.2d 395, 402. There is no statutory right in this state to credit for time served while awaiting trial or sentencing and, in the absence of a statute to the contrary, the traditional rule is to deny such credit. See Annotation, Right to Credit for Time Spent in Custody Prior to Trial or Sentence, 77 A.L.R.3d 182, 190 (1997 & Supp. 1999). The rationale is that "the confinement simply does not relate in any way to the subsequent punishment imposed." Id. at 188.

[¶ 15.] However, where incarceration results from a defendant's financial inability and failure to post bond, the traditional rule denying credit for presentence confinement does not apply. "`The Fourteenth Amendment equal protection clause requires that credit be given for all presentence custody which results from indigency.'" State v. Green, 524 N.W.2d 613, 614 (S.D.1994) (quoting Patino v. State, 331 N.W.2d 837, 838 (S.D.1983)); State v. Rederth, 376 N.W.2d 579 (S.D. 1985); State v. Graycek, 335 N.W.2d 572 (S.D.1983); State v. Cody, 323 N.W.2d 863 (S.D.1982).² "The appointment of counsel is sufficient to establish a defendant as indigent prior to sentencing, and such indigency dates from the time the court approves an application for court-appointed counsel. In addition, the inability of defendant to post bail while awaiting trial is also an indication of presentence indigency." Green, 524 N.W.2d at 614 (internal citations omitted).

[¶ 16.] Several jurisdictions have addressed the issue of credit for presentence custody in locations other than jail. By statute, Iowa grants credit for time spent undergoing psychiatric evaluation during presentence custody where the defendant fails to furnish bail or is charged with a nonbailable offense. State v. Capper, 539 N.W.2d 361 (Iowa 1995) (remanding to trial court to modify sentence to include time spent by defendant undergoing mental competency examination). Also by statute, Wisconsin allows credit for presentence custody where the defendant is in "constructive custody" subject to court order while "temporarily outside the institution whether for the purpose of ... medical care." State v. Sevelin, 204 Wis.2d 127, 554 N.W.2d 521 (1996) (recognizing alcoholism as a disease and remanding to trial court to credit defendant for 82 days spent at inpatient substance abuse treatment centers prior to his conviction). Sevel...