State v. Traversie
| Decision Date | 11 February 1986 |
| Docket Number | No. 15025,15025 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Richard A. TRAVERSIE, Defendant and Appellant. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Thomas Harmon, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.
Richard Braithwaite, of Braithwaite Law Offices, Sioux Falls, for defendant and appellant.
This is a criminal appeal arising from an Amended Judgment of Conviction which sentenced Richard A. Traversie (Traversie), appellant-defendant herein, to 35 years imprisonment for First-Degree Burglary, Petty Theft, and being an Habitual Offender. We affirm.
On the evening of November 15, 1984, a trailer house was burglarized in Pierre, South Dakota, and a radio-cassette player and tapes were taken. About 9:30 that same evening, this radio-cassette player was seen in Traversie's possession at a drinking party which eventually lasted two days. When the cups were empty--when the party ran dry--Traversie persuaded three of the imbibers to "hock his radio" to obtain more spirits. The radio-cassette player sold for $6.00 which was thereafter exchanged for a pack of cigarettes and a half-gallon of wine.
On December 6, 1984, while in jail on other charges, Traversie was served a Warrant of Arrest for First-Degree Burglary and Petty Theft. A preliminary hearing was conducted on December 11, 1984, and Traversie was bound over for trial. On December 17, 1984, a Part II Information for Habitual Offender was also filed.
A hearing was held on December 21, 1984. At this hearing, Traversie's burglary and petty theft trial was set for March 20, 1985. This date was selected because Traversie had two misdemeanor offenses to be tried to separate jury panels and only two panels had been called for the first two months in 1985. Traversie's burglary and petty theft trial had to therefore wait until March for a new jury panel.
Traversie's burglary and petty theft trial was not held in March because the trial court granted Traversie's motion to appoint a fingerprint expert at county expense. Trial was then set for May 2, 1985. On the day prior to trial, the State, upon oral motion and after a hearing thereon, was granted a two-week continuance. It appears that the resident of the burglarized trailer house and Traversie's girlfriend could not be located whereupon the State requested a continuance so as to locate these witnesses.
A jury found Traversie guilty as charged on May 15, 1985. Thereafter, and based on Traversie's admissions to the Habitual Offender Information, the trial court determined Traversie was an habitual offender and sentenced him to 35 years imprisonment in the South Dakota State Penitentiary and a concurrent term of 10 days in the county jail.
From this Amended Judgment of Conviction, Traversie now appeals alleging a host of errors. We appreciate a 35-year prison sentence is sever and we address each allegation of error seriatim.
TRAVERSIE CONTENDS THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING THE MAY CONTINUANCE. WE HOLD OTHERWISE.
The grant or denial of a continuance is within the sound discretion of the trial court, State v. Barcley, 88 S.D. 584, 589, 225 N.W.2d 875, 878 (1975), and the "ruling thereon will not be reversed by this court, unless there has been a manifest abuse of such discretion." State v. Brandell, 26 S.D. 642, 645, 129 N.W. 242, 243 (1910).
On appeal, Traversie contends that the trial court was without authority to postpone his trial because an affidavit was not filed as required by SDCL 15-11-7, which provides:
An application for continuance on account of the absence of a witness must be supported by the affidavit of the party, his agent, or attorney, stating:
(1) The name and residence of such witness, or if unknown, the efforts made to ascertain the same;
(2) The testimony such witness would give if present, in narrative form or by questions and answers as in a deposition; that the affiant believes such testimony to be true and knows of no other person by whom the same facts may be proven, or if he knows of such other person, then the reasons why the testimony of such witness is necessary;
(3) The reason why the deposition of the witness was not taken;
(4) What efforts have been made to obtain the attendance of the witness or his testimony;
(5) Facts showing ground for belief that the attendance or deposition of such witness may be procured at the next term of the court.
SDCL Title 15, however, is the title covering Civil Procedure. Although in State v. Lohnes, 266 N.W.2d 109, 112 (S.D.1978), this Court intimated, in a criminal setting, that the above-quoted statute "requires that an affidavit be filed to support a motion for continuance on account of the absence of a witness[,]" we have also previously held, in criminal cases, that a motion for a continuance must be supported by affidavit or other showing. See Barcley, 88 S.D. at 590, 225 N.W.2d at 878; State v. O'Connor, 84 S.D. 449, 452, 173 N.W.2d 48, 49 (1969); and State v. Johnson, 76 S.D. 37, 41, 71 N.W.2d 733, 735 (1955).
SDCL Title 23A is the title containing provisions governing Criminal Procedure. SDCL 23A-44-1 provides:
An application to a court for an order shall be by motion. A motion other than one made during a trial or hearing shall be in writing unless the court permits it to be made orally. It shall state the grounds upon which it is made and shall set forth the relief or order sought. It may be supported by an affidavit. (Emphasis supplied.)
SDCL 23A-44-11 provides:
We interpret these Criminal Procedure statutes as permitting trial courts to consider oral motions for continuances. Although it would be preferable that such motions be accompanied by appropriate affidavits, we cannot permit the Civil Procedure mandate of SDCL 15-11-7 to shackle our trial courts in criminal cases to consider only those motions supported by affidavit. Additionally, we note that with the adoption of SDCL ch. 23A-44 on July 1, 1978, the precedent of Lohnes, as relevant and asserted herein, was statutorily overruled. Again, however, we express that it is better practice to accompany these motions with affidavits.
The oral motion for continuance, due to the absence of a witness, met the criteria outlined in Barcley. Therefore, we conclude the trial court did not abuse its discretion.
TRAVERSIE'S CONTENTION OF A DENIAL TO A SPEEDY PUBLIC TRIAL IS UNTENABLE.
Four factors must be considered in determining if the right to a speedy trial has been violated. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117 (1972). The first factor is the length of the delay. In this case, 154 days transpired between Traversie's first appearance before the trial court and his actual trial. We do not believe the record substantiates an unreasonable delay. *
The second factor is the reason for delay. This factor, however, does not support a speedy trial violation. Because Traversie was standing trial before the first two 1985 jury panels, his burglary and petty theft trial had to wait until the third 1985 jury panel was called in March. In March, however, Traversie was permitted to obtain a fingerprint expert at county expense. Selection of an expert and preparation for trial required time. Finally, just before the first May trial date, the State was unable to procure two witnesses. It thereupon sought a short continuance so as to obtain their presence at trial. Under these circumstances, we hold there was no unreasonable delay.
We next consider if Traversie asserted his right to a speedy trial. This he repeatedly did and therefore he is not remiss in failing to advance his cause. The fourth factor is the prejudice, if any, to Traversie. There is no prejudice to Traversie's interests revealed by this record. His defense was not impaired and his freedom not restricted as he was at all times incarcerated on other charges. Therefore, we reject Traversie's speedy trial assertions.
ADELIA GOODBIRD'S WRITTEN HEARSAY STATEMENT WAS NOT PROPERLY ADMITTED. AS IT WAS CUMULATIVE EVIDENCE, WE HOLD ITS ADMISSION WAS NOT PREJUDICIAL ERROR.
During the initial police investigation, Adelia Goodbird, Traversie's alleged girlfriend, made a written statement which read:
I saw the radio last night at Julia Hawk's place about 9:30. Rick gave it to me. I left it at Julia's and I went to work. When I came back it was gone. Me and Rick were listening to it this morning. The Rick I'm [referring] to is Rick Traversie.
On May 1, 1985, during the hearing on the State's Motion for a Continuance, the State requested that if the resident of the burglarized trailer was unavailable for trial, his statements be allowed at trial under the residual hearsay exception in SDCL 19-16-35. In addition, at this hearing, the State recited that it was having difficulty finding Adelia Goodbird, but that it would be willing to proceed without her testimony.
At trial, Goodbird's written statement was admitted over objection and on appeal, Traversie contends the admission of this statement was erroneous because it lacked sufficient indicia of reliability. He further maintains the notice requirements of SDCL 19-16-35 were not met. We agree with Traversie's contention regarding failure to provide notice.
SDCL 19-16-35 provides:
A statement not specifically covered by any of Secs. 19-16-30 to 19-16-34, inclusive, but having equivalent circumstantial guarantees of trustworthiness, is not excluded by Sec. 19-16-4 if the declarant is unavailable as a witness and if the court determines that
(1) the statement is offered as evidence of a material fact;
(2) the statement is more probative on the point for which it is offered than any...
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