State v. Stetter

• Court: South Dakota Supreme Court
• Writing for the Court: SABERS; HENDERSON; MILLER; HENDERSON; MILLER; WUEST; AMUNDSON
• Citation: State v. Stetter, 513 N.W.2d 87 (S.D. 1994)
• Decision Date: 16 February 1994
• Docket Number: No. 17989,17989
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Daniel G. STETTER, Defendant and Appellant.

Page 87

513 N.W.2d 87

STATE of South Dakota, Plaintiff and Appellee, v. Daniel G. STETTER, Defendant and Appellant.

No. 17989.

Supreme Court of South Dakota.

Argued Oct. 5, 1993.

Decided Feb. 16, 1994.

Mark Barnett, Atty. Gen., Ann C. Meyer, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

William A. Delaney, III, Northern Hills Public Defender's Office, Deadwood, for defendant and appellant.

SABERS, Justice.

Defendant Stetter was convicted of manslaughter in the first-degree as a result of a vehicular accident while he was driving under the influence of alcohol. Stetter appeals. We affirm.

Facts

Sandra Baker, her husband Mike, and their youngest daughter Krista, exited the Pizza Hut parking lot on the evening of November 15, 1991, when a vehicle, driven by Stetter, collided with the Baker vehicle. Krista died as a result of the accident. Sandra was thrown out of the car and suffered a broken tibia, an injury to her face requiring fourteen stitches, abrasions, cuts, and bruises. Mike struck his head and face, bruising his neck and suffering a mild concussion.

The State claims Stetter's vehicle was being operated on the wrong side of the road and without headlights. Two samples of Stetter's blood showed alcohol contents of .195 percent and .160 percent.

The jury found Stetter guilty of manslaughter in the first-degree, two counts of aggravated assault, driving with more than .10 percent by weight of alcohol in blood, driving while his license was revoked, failure to maintain financial responsibility, and open container in a motor vehicle.

Stetter appeals, raising these issues:

1. Whether SDCL 22-7-7 required a mandatory life sentence.

2. Whether the denial of Stetter's motion for a mistrial due to prosecutorial misconduct during closing arguments was error.

3. Whether admission of the analysis of Stetter's blood and urine was error.

4. Whether denial of Stetter's proposed jury instruction was error.

5. Whether denial of Stetter's motions for judgment of acquittal was error.

1. Improper Mandatory Life Sentence

Stetter was convicted of manslaughter in the first-degree, a Class 1 Felony. He pled guilty to being a habitual offender, admitting that on July 23, 1980, he was convicted of distribution of marijuana, a Class 6 Felony and on December 2, 1988, he was convicted of driving while under the influence of an alcoholic beverage, third-offense, a Class 6 Felony. ¹ The trial court applied SDCL 22-7-7, changing the Class 1 Felony to a Class B Felony and thereby enhancing Stetter's sentence to mandatory life imprisonment. ² Stetter filed a Motion to Correct an Illegal Sentence. His motion was denied.

Stetter argues that the trial court erred in focusing solely on SDCL 22-7-7 and refusing to consider SDCL ch. 22-7 in pari materia. He claims that the trial court's application of this enhancement statute penalized him for having only two prior felony convictions. According to Stetter, if he would have had three or more prior felonies, one or more of which was for a crime of violence, his sentence could not have been enhanced under SDCL 22-7-8 beyond the sentence for a Class 1 Felony. This would have permitted a maximum sentence of life imprisonment at the discretion of the trial court. In contrast, SDCL 22-7-7 required enhancement to mandatory life imprisonment for only two prior felonies.

The State argues that Stetter was convicted of two prior felonies, not three, and therefore only SDCL 22-7-7 is relevant and applicable. According to the State, the trial court was required to follow 22-7-7 because its terms are clear and unambiguous. SDCL 22-7-7 provides in part:

When a defendant has been convicted of one or two prior felonies under the laws of this state or any other state or the United States, in addition to the principal felony, the sentence for the principal felony shall be enhanced by changing the class of the principal felony to the next class which is more severe.

SDCL 22-7-8.1 provides:

If a defendant has been convicted of three or more felonies in addition to the principal felony and none of the prior felony convictions was for a crime of violence as defined in subdivision (9) of Sec. 22-1-2, the sentence for the principal felony shall be enhanced by two levels. A defendant sentenced under this section is eligible for consideration for parole pursuant to Sec. 24-15-5.

And SDCL 22-7-8 provides:

If a defendant has been convicted of three or more felonies in addition to the principal felony and one or more of the prior felony convictions was for a crime of violence as defined in subdivision (9) of Sec. 22-1-2, the sentence for the principal felony shall be enhanced to the sentence for a Class 1 felony.

It is evident that the legislature intended to enact a comprehensive enhancement scheme. It is not evident, however, that the scheme is inconsistent. If a defendant has been convicted of one or two prior felonies, his sentence for the principal felony is enhanced one level. SDCL 22-7-7. If a defendant has been convicted of three or more prior felonies, his sentence for the principal felony is enhanced two levels. SDCL 22-7-8.1. If a defendant, however, has been convicted of three or more prior felonies, one or more of which was for a crime of violence, his sentence for the principal felony is enhanced to the sentence for a Class 1 Felony, regardless of the classification of the principal felony. SDCL 22-7-8.

Stetter was convicted of a very serious crime--a Class 1 Felony. By virtue of his two prior felony convictions, it was enhanced to a Class B Felony, which provides for mandatory life imprisonment. In view of the classification of the principal felony, this appears to be the intention of the legislature under this statutory scheme.

While the statutes may produce results which appear inconsistent under this particular fact situation, Stetter has not shown that the legislative intent was not followed.

[W]hen a statute is clear and unambiguous it is improper for courts to attempt to go behind the express terms of the provision so as to legislate that which the words of the statute do not themselves provide. See Peterson v. Heitkamp, 442 N.W.2d 219, 221 (N.D.1989); Haider v. Montgomery, 423 N.W.2d 494, 495 (N.D.1988). In other words, the "letter of a clear and unambiguous statute cannot be disregarded under the pretext of pursuing its spirit, because the legislative intent is presumed clear from the face of the statute." Haider, 423 N.W.2d at 495. See also Sec. 1-02-05, N.D.C.C.

Schaefer v. North Dakota Workers Comp. Bureau, 462 N.W.2d 179, 182 (N.D.1990). See also State v. Fryer, 496 N.W.2d 54, 55 (S.D.1993) (" 'This Court will not enlarge a statute beyond its face where the statutory terms are clear and unambiguous in meaning.' "). Stetter's actions and convictions come within SDCL 22-7-7 and he has not shown otherwise. ³

2. Prosecutorial Misconduct

Stetter argues that comments made by the prosecutor during closing argument constituted a prejudicial community conscience argument to the jury warranting a mistrial. During closing argument, the prosecutor stated:

He had been drinking all day long. He had a blood alcohol concentration of a .20; twice the legal limit. He didn't function and he drove his vehicle on the wrong side of the highway; he was speeding; he didn't have his lights on, and that's an act of depravity. It's inherently dangerous to everyone for him to do that and he killed a six year old girl; he shattered the mother's leg in several spots; he caused the father to have a concussion, and that's an act of depravity. I ask you, ask yourself, how do you protect yourself against this type of activity? How can you protect yourself against somebody driving on a highway with their lights off--

At this time, Stetter objected and moved for a mistrial on the ground that the prosecutor had made a community conscience argument to the jury. While the trial court acknowledged that the prosecutor was "getting close to the line where you are approaching a community consci[ence] argument," it denied the motion. The trial court admonished the prosecutor "to hold clear of community consci[ence] argument" stating that it would not hesitate to declare a mistrial if the prosecutor "gets into the area that is prohibited by law[.]" The trial court also admonished the jury "to disregard the last few statements of counsel." See Anderson v. Johnson, 441 N.W.2d 675, 677 (S.D.1989) ("We do note that upon proper objection by Anderson the trial court admonished the jury to disregard the improvident statements. Under our settled law, we assume the jury accepted the admonition."). No jury instruction was requested or proposed.

Under the settled law of this state, "no hard and fast rules exist which state with certainty when prosecutorial misconduct reaches a level of prejudicial error which demands reversal of the conviction and a new trial; each case must be decided on its own facts. Furthermore, we will not disturb the trial court's ruling on a motion for a new trial based on misconduct of counsel unless we are convinced there has been a clear abuse of discretion." State v. Kidd, 286 N.W.2d 120, 121-22 (S.D.1979) (citations omitted).

Community conscience arguments are improper. People v. Potra, 191 Mich.App. 503, 479 N.W.2d 707, 712 (1991) ("Civic duty arguments are generally condemned because they inject issues into the trial that are broader than a defendant's guilt or innocence and because they encourage the jurors to suspend their own powers of judgment."). See generally State v. Blaine, 427 N.W.2d 113 (S.D.1988) ("Arguments that invite the jurors to put themselves in the shoes of a victim are generally improper."). ⁴ And while we do not approve of the conduct of the prosecutor, ⁵ we do not feel compelled to reverse the conviction in view of the strength of the State's evidence against Stetter. "No different result is called for in this case where the evidence presented at trial in...