State v. Stock, 14386

• Decision Date: 10 September 1984
• Docket Number: No. 14386,14386
• Citation: 361 N.W.2d 280
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Robert STOCK, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 280

361 N.W.2d 280

STATE of South Dakota, Plaintiff and Appellee, v. Robert STOCK, Defendant and Appellant.

No. 14386.

Supreme Court of South Dakota.

Considered on Briefs Sept. 10, 1984.

Decided Jan. 16, 1985.

Richard H. Wendt, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

T.R. Pardy of Mumford, Protsch & Pardy, Howard, for defendant and appellant.

WOLLMAN, Justice.

Defendant appeals from his conviction on a charge of receiving stolen property. SDCL 22-30A-7. We affirm.

On February 4, 1980, a Bobcat skid-steer loader was stolen in Norfolk, Nebraska. On August 31, 1981, Wayne Everson, an agent with the South Dakota Division of Criminal Investigation, together with a special agent of the Federal Bureau of Investigation and the sheriff of Yankton County went to defendant's home in Spencer, South Dakota, with knowledge that defendant had a stolen vehicle on his premises. The three officers discussed with defendant the whereabouts and activities of certain unidentified persons. Defendant in no way indicated to the officers that he had possession of the stolen loader. After leaving defendant's home, the officers traveled the half-block distance to the Spencer Grain Company, where they observed a loader that matched the description of the one that had been stolen in Norfolk. Upon examining the serial number on the loader, the officers determined that it was indeed the one that had been stolen in Norfolk. That same day, August 31, Agent Everson spoke with Richard Kirby, owner of the Spencer Grain Company, and learned that Kirby had given defendant a check in the amount of $2,500.00 on July 2, 1981, in payment for the loader. On September 18, 1981, the owner of the loader came to Spencer from Norfolk and positively identified the machine as his.

On November 5, 1981, defendant pleaded guilty in federal court in Sioux Falls to a federal charge of receiving stolen property, unrelated to the loader in question, and received a five-year sentence. Defendant was incarcerated in a federal correctional institution in Oxford, Wisconsin, from November 26, 1981 to January 18, 1983, at which time he was released to the custody of a half-way house in Sioux Falls.

On December 23, 1982, Agent Everson signed a complaint charging defendant with receiving stolen property. On February 11, 1983, a detainer was issued by the McCook County sheriff, as a result of which defendant was placed in the South Dakota State Penitentiary as a federal boarder pending his anticipated release on parole on May 18, 1983. On February 15, 1983, defendant sent a letter to the circuit court of McCook County in which he set forth, among other things, a request that attorney Michael Luce of Sioux Falls, who had represented defendant in the federal criminal proceedings, be appointed to represent defendant in the McCook County action. Defendant also set forth a request for a speedy trial.

Defendant apparently wrote to attorney Luce on February 16, for on February 18, 1983, attorney Luce wrote to defendant regarding defendant's belief that the McCook County violation had been dismissed as a part of the plea bargain that resulted in defendant's pleading guilty in federal court. Mr. Luce advised defendant that in fact the dismissal of state charges was not part of the plea agreement. He suggested that defendant wait and see what might develop after he was released from the state penitentiary and then attempt to obtain counsel from McCook County.

Although the McCook County sheriff's detainer of February 11, 1983, stated in part that the McCook County state's attorney had set a court date for defendant on February 22, 1983, no hearing in fact was held on that date.

Defendant was arrested by the McCook County sheriff on May 16, 1983, upon defendant's release from federal custody from the South Dakota State Penitentiary. On May 18, 1983, attorney Leroy E. Wegener of Salem was appointed to represent defendant. A preliminary hearing was held on June 10, 1983, at which Agent Everson testified that by September 20, 1981, he had formed an opinion regarding the identity of the person who was responsible for the theft of the loader but that he needed more evidence. He testified that there was an on-going, simultaneous investigation concerning defendant in Yankton County. In response to defense counsel's request for an explanation of the length of time between the cessation of his investigation in McCook County and the date he signed the complaint against defendant, Agent Everson testified:

During this time, there was a multi-state task force investigation going on between the sheriff's offices in South Dakota, the State of Iowa and the F.B.I. We were working multiple cases in regard to stolen property, trafficking inter-county, inter-state. During that time, we recovered in excess of one million four hundred thousand dollars worth of property, and it takes time to figure out which case goes where, and who is responsible for what particular case, because many of these suspects were involved in multiple charge, multiple count investigations.

Agent Everson also testified that he had received information from other counties after September 20, 1981, that indirectly involved the McCook County case against defendant.

On July 15, 1983, defendant moved to dismiss the information on the grounds that he had been denied due process of law, his right to a speedy trial, his right to equal protection of law, his right to have a concurrent sentence imposed upon him while incarcerated in the federal correctional institution, and his rights under the Interstate Agreement on Detainers (IAD). SDCL ch. 23-24A. This motion was denied on July 21, 1983, and a jury trial was held on July 26, 1983, resulting in a verdict of guilty. ^*

Defendant raises two issues on appeal: (1) Whether the delay between the time the state's investigation was completed and the time the complaint was signed denied defendant his right to due process of law; and (2) whether the state's delay and tactics from the time of signing and filing the complaint until the time of trial denied defendant his right to a speedy trial and to equal protection under the law. We answer both questions in the negative.

In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the United States Supreme Court held that the right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution arises only after the filing of a formal indictment or information or the arrest of a defendant. Accordingly, the delay between the commission of an offense and the filing of a charging document or the arrest of a defendant implicates no Sixth Amendment speedy trial right. The Court went on to acknowledge, however, that statutes of limitations governing the initiation of formal proceedings against the defendant do not fully define a defendant's rights with respect to the events occurring prior to the filing of an indictment or information. The Court pointed out that the government had conceded that the due process clause of the Fifth Amendment would require dismissal of the indictment if it were shown that the pre-indictment delay had caused substantial prejudice to the defendant's rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the defendant. In view of the fact that the record before it did not reveal actual prejudice to the conduct of the defense nor a showing that the government had intentionally delayed to gain some tactical advantage over or to harass the defendants in that case, the Court held that the thirty-eight month delay between the end of the criminal scheme and the date the defendants were indicted was not sufficient reason to justify the dismissal of the indictment prior to trial.

In United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), the Court expanded upon the pronouncement set forth in Marion. The Court rejected the defendant's argument that the due process clause bars prosecution whenever a defendant suffers prejudice as a result of pre-indictment delay, pointing out that Marion clearly stands for the proposition that "proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused." 431 U.S. at 790, 97 S.Ct. at 2048-49, 52 L.Ed.2d at 759.

The Court rejected the argument that prosecutors are under a duty to file charges as soon as probable cause exists but before they are satisfied that they will be able to establish the defendant's guilt beyond reasonable doubt. Likewise, the Court rejected the argument that the prosecution is constitutionally required to file charges promptly upon assembling sufficient evidence to prove guilt beyond a reasonable doubt. The Court pointed out that such a rule

would cause numerous problems in those cases in which a criminal transaction involves more than one person or more than one illegal act. In some instances, an immediate arrest or indictment would impair the prosecutor's ability to continue his investigation, thereby preventing society from bringing lawbreakers to justice. In other cases, the prosecutor would be able to obtain additional indictments despite an early prosecution, but the necessary result would be multiple trials involving a single set of facts. Such trials place needless burdens on defendants, law enforcement officials, and courts.

431 U.S. at 793, 97 S.Ct. at 2050, 52 L.Ed.2d at 761. Such a rule would also have the effect of pressuring prosecutors into resolving doubtful cases in favor of early, and perhaps unwarranted, prosecutions, and in certain cases would prevent the prosecution from giving full consideration to the desirability of not prosecuting. Id.

Holding that there is no clear constitutional command in the due process...