State v. Starnes

• Decision Date: 06 September 1972
• Docket Number: No. 10944,10944
• Citation: 200 N.W.2d 244,86 S.D. 636
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Donald Harrison STARNES, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 244

200 N.W.2d 244

86 S.D. 636

STATE of South Dakota, Plaintiff and Respondent, v. Donald Harrison STARNES, Defendant and Appellant.

No. 10944.

Supreme Court of South Dakota.

Sept. 6, 1972.

Dale L. Morman, Sturgis, for defendant and appellant.

Gordon Mydland, Atty. Gen., Thomas R. Vickerman, Asst. Atty. Gen., Pierre, William H. Coacher, State's Atty., Meade County, Sturgis, for plaintiff and respondent.

WINANS, Judge.

The defendant, Donald Harrison Starnes, was charged with the crime of robbery in the first degree by a preliminary information, dated September 28, 1968, filed in justice court in Sturgis, Meade County, South Dakota by the State's Attorney of that county, charging that the offense took place on September 17, 1968 at Sturgis. The justice of the peace issued a warrant for the arrest of the defendant, dated September 28, 1968. The return of the sheriff, dated March 31, 1970 certifies that he has arrested the defendant and has him 'now before the Court in custody'. On April 3, 1970 the defendant appeared before the judge of the District County Court, Fifteenth District, South Dakota at the Meade County Courthouse. Upon questioning by the court the defendant replied that he had no attorney to represent him, that he wanted one and had no money to employ counsel, and that he had been in the penitentiary 'eighteen months'. Thereafter on July 2, 1970 the preliminary hearing was held, the state being represented by the State's Attorney and the defendant by his appointed attorney, at the conclusion of which the defendant was held to answer in the Circuit Court to the charge of robbery in the first degree. Trial of his action was had October 26 and 27, 1970 in the Circuit Court of the Eighth Judicial Circuit. The defendant was found guilty and was sentenced to be imprisoned in the state penitentiary for a period of ten years, said sentence to commence as of this date and shall run concurrent with sentence defendant is presently serving in the State Penitentiary.

It is the contention of the defendant that he was deprived of his constitutional right to a speedy trial as a result of the delay in bringing him to trial despite his requests for trial and also that the identification procedure of the defendant by the victim of the robbery was unnecessarily suggestive and denied him due process of law. In order to dispose of these assignments it is necessary to set forth and fill in additional details and factual background of the case from the date of the crime to the trial, a period of over two years.

The facts surrounding the commission of the crime appear undisputed. On the evening of September 17, 1968 two men took money and negotiable checks from the person of Donald Zacher, an employee of the Piggly Wiggly store in Sturgis, by threatening him with a hand gun in a well lighted parking lot next to the store. The person whom Zacher identified as the defendant Starnes was close enough to the victim to touch him with his gun, allowing Zacher to get a close inspection of Starnes' face. After the robbery took place, the victim made immediate complaint and thereafter on several occasions was shown a series of photographs from which he identified the robbers.

The defendant, Starnes, and another were charged with first degree robbery and grand larceny following an armed robbery of a grocery store in Beresford, Union County, South Dakota on September 27, 1968 and by an order of court dated October 4, 1968 were transferred from the Union County jail to the state penitentiary at Sioux Falls, South Dakota, for safekeeping and detention. State ex rel. Starnes v. Erickson, 1971, 85 S.D. 489, 186 N.W.2d 502. Defendant was moved from the county jail to the state penitentiary on October 5, 1968 and has remained there except for those periods of time when he was returned to Sturgis for preliminary hearing and again for trial. On or about September 28, 1968 the Meade County Sheriff, accompanied by Donald Zacher, the complaining witness, went to Sioux Falls where the complaining witness identified the defendant Starnes. The identification was made in the Minnehaha County jail where several men, among whom was Starnes, entered a room and were visible to this complaining witness. This, in short, was the identification process at the jail. The victim was able to identify Starnes without any suggestions from law enforcement officials. On November 15, 1968 the Meade County authorities filed a detainer against defendant. It is defendant's contention that he informed John Egger, Meade County Sheriff, at the time of the identification in Minnehaha County that if 'there were to be any charges placed (against him in Meade County,) he would desire and at that time did demand a fast and speedy trial in the matter.' Whether this demand was actually made at that time or not, nowhere in the record is it disputed.

It is obvious from the record that the defendant did make repeated demands for a speedy trial or a dismissal of the charges against him after the filing of the detainer and it is also equally obvious that he was available for prosecution, being all of that time confined in the penitentiary at Sioux Falls. It appears that on August 11, 1969 the defendant in longhand composed an affidavit and motion for dismissal of complaint which was venued in the justice court of the city of Sturgis, in which he stated that at all times since October 5, 1968 he had been in the confines of the state penitentiary and that he was then serving a sentence of eight years and he asked for a dismissal of the charges pending against him in Meade County, giving as his reason that he was being denied his constitutional right to a speedy trial. He complained of the delays of correspondence between himself and the state's attorney and of the lapse of time of 316 days from September 28, 1968 to August 11, 1969 and he asked for a dismissal of the complaint based on such delay. His affidavit was to the effect that he mailed true and correct copies thereof to the justice of the peace before whom the complaint had been filed and to the state's attorney of Meade County, all on August 11, 1969. The files disclose a letter dated August 14, 1969 from the state's attorney to the defendant stating as follows: 'This is to acknowledge receipt of the petition and the matter will be taken up with the Justice of the Peace * * * early next week and you will be advised as to the deposition (disposition) of this matter. It may well be that the charges may be dismissed and a new complaint issued.' On or about the 29th day of January, 1970 the defendant composed what he denominated an 'Application for writ of prohibition'. This was venued in the Circuit Court of the Eighth Judicial Circuit. In this application, among other things he asked the court to prohibit the officials of the state of South Dakota from prosecuting him on the charge pending in Meade County. He referred to his prior motion to dismiss the complaint made on August 11, 1969 in which he had called attention to the 316 days which had elapsed since the filing of the complaint and then called attention to the additional 138 days which 'have elapsed since filing said motion, and again no legal action has been taken nor reason for not proceeding has been given'. He also with said application for said writ of prohibition filed a proverty affidavit. This application was denied by the court by an order dated and filed February 19, 1970, the order reciting among other things, 'It appearing that said States Attorney and Justice of the Peace are not acting without or in excess of the authority conferred by law upon them, it is hereby ORDERED that the plaintiff's petition for issuance of a writ of prohibition be denied.'

The defendant in his own handwriting petitioned the circuit court for a rehearing in which he stated among other things that he had a right to a speedy trial and the officials had a duty to bring him to trial without delay and not having done so, his defense had been impaired and that because of the long delay he could not have a fair trial. This motion for rehearing was denied on March 11, 1970. On March 30, 1970 the state's attorney requested an order of the court authorizing the Meade County Sheriff to take temporary custody of the defendant from the state penitentiary and to return him to the jurisdiction of Meade County 'to answer the charges of First Degree Robbery which have been laid against the defendant'. The order was made, the defendant was brought back and the proceedings had which we have heretofore set forth.

At the commencement of the trial the defendant's attorney asked for dismissal of the charges based upon delay, a violation of the defendant's constitutional right, and further for a violation of his statutory rights, mainly SDCL 23--34--2. At the conclusion of the state's case the motion was renewed with the further reason given 'that a material witness herein, namely, one Douglas Brewer, who could have provided to this defendant an alibi is now deceased,' and also that there were errors based upon the identification.

There can be no doubt that every accused, including this defendant, is entitled to a speedy and public trial. The Constitution of the United States, Article 6, provides in part as follows:

'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed * * *.'

Article 14 of the United States Constitution provides in part:

'* * * nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.'

In Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1, the Supreme Court of the United States held that by virtue of the Fourteenth Amendment the Sixth Amendment right to a speedy trial is enforceable against the...