State v. Stuck
| Decision Date | 14 December 1988 |
| Docket Number | No. 15837,15837 |
| Citation | 434 N.W.2d 43 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Jesse E. STUCK, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Robert Mayer, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on the brief.
Rodney Freeman, Jr., of Churchill, Manolis, Freeman & Kludt, Huron, for defendant and appellant.
Defendant Jesse E. Stuck (Stuck) was charged with attempted murder, aggravated assault, and being a habitual offender after a stabbing incident on January 12, 1987. A Beadle County jury pronounced Stuck guilty of aggravated assault, after which a second jury trial was held on the habitual offender charge. The second jury returned a verdict of guilty, and the trial court sentenced Stuck to life imprisonment. Stuck appeals these convictions, alleging twelve trial court errors:
1) The trial court erred in remarking that the sole issue to be considered in the habitual offender proceeding was whether Stuck was the same person convicted of prior felonies;
2) The State was allowed to amend the habitual offender information to his prejudice;
3) The trial court mishandled a prior conviction from the State of Washington;
4) Admission of testimony regarding Stuck's prior convictions at the criminal proceeding and habitual offender proceeding violated his Fifth Amendment rights against self-incrimination;
5) Stuck's request for appointment of a fingerprint expert was improperly denied;
6) Probable cause for Stuck's warrantless arrest and the complaint was lacking;
7) The trial court failed to set reasonable bond and denied Stuck's request for an investigator, compromising his ability to prepare his defense;
8) Stuck was denied access to a witness' statement at the preliminary hearing;
9) The victim's in-court identification of Stuck was inadmissible;
10) Stuck was denied access to the victim's medical records;
11) The prosecution was allowed to present improper rebuttal testimony; and
12) Jury instructions concerning admissions were erroneously submitted to the jury.
After a careful review of the record, we find no prejudicial error and affirm Stuck's convictions.
On December 18, 1986, Stuck was released from the State Penitentiary. His step-brother's girl friend, Theresa Cashin, picked him up in Sioux Falls and took him to her apartment in Huron, where she temporarily permitted him to live.
Three weeks later, on January 12, 1987, Stuck and a friend, Tom Casavan, arrived at the apartment of Larry Anderson seeking money to buy beer. Anderson was acquainted with Casavan, but did not know Stuck. After drinking a beer, Anderson drove Casavan and Stuck to a liquor store, where they purchased a twelve-pack of beer. They proceeded to Cashin's apartment, where others, including Earl Jensen, a friend of Stuck, joined the party. After purchase and consumption of two more twelve-packs of beer, the party again ran out of beer and money. At that point, Anderson drove Stuck, Casavan, and Jensen to the residence of E. Clarke White, a man with whom Anderson once had a homosexual relationship. Casavan and Jensen remained in Anderson's car. Anderson and Stuck went to White's door, and were admitted by White. They remained in White's home for approximately five minutes, during which White was engaged in long-distance telephone conversations.
As to what happened next, the accounts of those present differed radically. White and Anderson maintained that Anderson, after a brief talk with White, started toward the door to leave, and Stuck attacked White with a knife from behind. Stuck testified that White quarreled with Anderson out of jealousy over Anderson's "flaunting" Stuck, and that it was Anderson who stabbed White. After the stabbing, Stuck and Anderson hurriedly left, and White, bleeding profusely from a knife wound in the throat, sought help by telephone.
Police soon arrived at White's home, and he informed them that a stranger in Anderson's company had knifed him. The police ascertained Stuck's identity by information acquired from Anderson and the State Penitentiary. Stuck was arrested several hours later, early in the morning of January 13, 1987, at Cashin's apartment, after he shaved off his beard, disposed of the jeans he had worn at White's home, and acquired a police radio scanner.
WAS THE SAME PERSON WHO HAD BEEN
CONVICTED OF PREVIOUS
At the start of Stuck's habitual offender proceeding, in introductory remarks to the jury, the trial court commented as follows:
The defendant has entered a plea of not guilty to this Information and therefore puts in issue the question of whether or not the defendant is the same person that is described in the alleged Judgment of Convictions and the decision that you people are going to have to make or whoever is sitting on the jury, is whether or not this defendant is in fact the same person that has been convicted of prior felonies, as the State of South Dakota has alleged.
Stuck claims that the trial court's remarks were prejudicial error because Stuck also disputed whether a Washington conviction would have been a felony under South Dakota law. Stuck relies on SDCL 22-7-7, which provides, in pertinent part, that "determination of whether a prior offense is a felony for purposes of this chapter shall be determined by whether it is a felony under the laws of this state or under the laws of the United States at the time of conviction of such prior offense." Stuck also asserts that the trial court was in error for instructing the jury when it did. We disagree with both contentions.
It is clear from the record that the trial court's remarks were not jury instructions but general introductory statements. Stuck's assertion that the trial court's comments constituted improper jury instructions is therefore without merit. See State v. Krana, 272 N.W.2d 75, 82 (S.D.1978).
As to the substance of the remarks, we note the following language from State v. Moves Camp, 376 N.W.2d 567, 570 (S.D.1985):
The sole issue in habitual offender cases is whether the defendant "is the same person as alleged in the habitual criminal information[,]" i.e., whether the defendant is the same person who was convicted of committing prior felonies. SDCL 22-7-12.
See also State v. Garritsen, 421 N.W.2d 499 (S.D.1988). The trial court's remarks, by telling the jury that identity was the sole issue they faced, were substantively correct. The question of whether a foreign offense would be a felony if committed within this state is "a question of legislative categorization; it is not a question of fact for the jury, but a matter of law predetermined by the legislature and applied by the judiciary." Griffin v. State, 275 Ind. 107, 118, 415 N.E.2d 60, 66 (1981). See also People v. Sullivan, 113 Cal.App.2d 510, 248 P.2d 520 (1952); State v. Thornton, 24 Wash.App. 881, 604 P.2d 1004 (1979). The applicability of the Washington conviction was a question for the court, not the jury. Stuck demonstrated no error, and no prejudice to his defense, on this issue.
During the habitual offender proceeding, at the close of the State's presentation of evidence, Stuck made a motion for a directed verdict of acquittal based on a three-day discrepancy of dates on the habitual offender information (conviction on May 16, 1982) and the Washington Judgment of Conviction (conviction entered on May 19, 1982). The trial court allowed the State to amend the information. Stuck now argues that a different offense was thereby added to the information, the jury was left to speculate as to when the Washington conviction took place, and a presumption could have arisen that there were two convictions in May 1982, not one. We affirm the trial court on this issue.
SDCL 23A-6-19 permits amendment of an information during trial "at any time before a verdict or finding is made, if no additional or different offense is charged and substantial rights of the defendant are not thereby prejudiced." Stuck addressed the Washington conviction in his testimony at both trials. He was not misled or unable to formulate a defense. Correction of typographical errors regarding dates at habitual offender proceedings is, at worst, harmless error, absent a showing of prejudice. Starks v. State, 517 N.E.2d 46 (Ind.1987) ("December 19, 1979" changed to "December 19, 1975"). On this record, where the jury was provided with the corrected information and Stuck was identified by both fingerprint evidence and his own testimony at both trials, we find no prejudice under SDCL 23A-6-19.
Stuck next challenges the use of his Washington conviction for second-degree theft to enhance his sentence. He alleges that the court never took notice of the statutes under which he was convicted, and did not determine whether the Washington crime would have been a felony in South Dakota. This claim is largely based on the assertion that there was insufficient proof that the photocopied statutes provided by the state were in effect at the time of conviction.
Examining the record, we affirm the trial court on this issue. The court compared the photocopied Washington statutes and the relevant court documents to the corresponding South Dakota statutes and concluded that their minimal elements were substantially similar, under the rule of State v. Clothier, 391 N.W.2d 197 (S.D.1986). In Clothier, this Court rejected sentence enhancement using an Oklahoma conviction because the equivalent South Dakota law had a narrower "intent" requirement. Id. at 198-99. This problem does not arise here because the Washington statute is narrower than the South Dakota statute. The Washington information specified that...
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