State v. Watkins, 11462

Decision Date02 May 1975
Docket NumberNo. 11462,11462
Citation89 S.D. 82,228 N.W.2d 635
PartiesSTATE of South Dakota, Plaintiff and Respondent, v. Charles Wesley WATKINS, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Robert J. Burns, Sioux Falls, for defendant and appellant.

Kermit A. Sande, Atty. Gen., Earl Mettler, Asst. Atty. Gen., Pierre, Gene Paul Kean, Minnehaha County, State's Atty., Sioux Falls, for plaintiff and respondent.

WOLLMAN, Justice.

Defendant was charged conjointly with one Jerry Rehfeld with three counts of burglary in the third degree and one count of grand larceny following the theft of coins from three taverns and the tires and wheels from an automobile. Prior to trial, Rehfeld pleaded guilty on the grand larceny charge and was sentenced to a term in the state penitentiary. The other three charges against him were dismissed. Defendant was found guilty by a jury on all four charges and was sentenced to serve concurrent terms in the state penitentiary.

Defendant contends that, (1) the court erred in admitting into evidence a tire iron taken from defendant's automobile by police because the affidavit upon which the search warrant was based was insufficient to support the issuance of the warrant and because the tire iron was not linked to the alleged burglary, (2) the trial court erred in admitting into evidence a certain statement given by Rehfeld to the police shortly after the offenses in question, and (3) there was insufficient evidence to support the verdict because of the absence of any substantial direct testimony, other than the statement of defendant's accomplice, Rehfeld, linking defendant with the crime charged. Because we agree with defendant's contention that the court should not have permitted the state to introduce Rehfeld's prior statement, we must reverse the conviction.

Because the case must be retried, we have examined the record in the light of defendant's contentions (1) and (3) above, and conclude that they are without merit. The police officer who filed the affidavit in support of the search warrant set forth information that had been given to him by fellow officers, by victims of the crimes, and by named third party witnesses. Thus the affidavit was sufficient under the rules announced in State v. Haron, S.D., 220 N.W.2d 829. Because the jury could reasonably infer from the evidence that the tire iron was the instrument used in making entry to the taverns, it was properly admitted. State v. O'Connor, 84 S.D. 415, 172 N.W.2d 724; People v. Bedwell, 181 Colo. 20, 506 P.2d 365; cf. Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706. Likewise, there was sufficient evidence apart from Rehfeld's testimony to satisfy the rule that a conviction cannot be had upon the uncorroborated testimony of an accomplice. SDCL 23--44--10.

We turn to the question regarding the state's use of the statement made by Rehfeld shortly after the date of the alleged crimes. Prior to trial, defendant moved to suppress Rehfeld's statement on the ground that it had been obtained in violation of Rehfeld's constitutional rights. Although apparently no formal order was entered to that effect, the trial court ruled that the state would be permitted to use the statement only for impeachment purposes.

As part of its case in chief, the state called Rehfeld as a witness. After establishing that Rehfeld was an inmate at the state penitentiary and that he had been with defendant during the early morning hours on the date of the alleged offenses, the deputy state's attorney asked Rehfeld a material question concerning one of the burglaries, whereupon Rehfeld refused to answer on the grounds that he might be incriminated. The court then conducted further proceedings out of the hearing of the jury. The deputy state's attorney stated that he would proceed under the provisions of SDCL 23--40--12, which grants immunity from prosecution to a witness who is compelled to testify over his objection that the testimony given might tend to incriminate him. The trial court advised Rehfeld that the state had granted him immunity on the three burglary charges and ordered Rehfeld to testify upon penalty of being held in contempt of court if he refused to do so. Rehfeld indicated that he understood the grant of immunity and the terms of the court's order and then stated that he would not testify because if he did, 'I wouldn't last too long up there,' indicating that he had received threats from some of his fellow inmates at the penitentiary.

Upon returning to the witness stand and being asked whether anyone was with him at the time he committed the offense which gave rise to the charge of grand larceny against him, Rehfeld again refused to answer on the ground that he might be incriminated. After being reminded by the court that he had been granted immunity and being ordered by the court to testify, Rehfeld testified that he didn't know for sure who was with him. The state then showed Rehfeld a copy of the statement. Rehfeld acknowledged that his signature was on the document and that after reading the statement he could recall that the coins had been taken from the three taverns described in the information. Upon being asked whether anyone was with him when he went into one of the taverns to take the coins out of the vending machines, Rehfeld asked the court what would happen if he refused to answer the question. After being advised by the court that he would be held in contempt and would be sentenced, Rehfeld answered, 'Yes, somebody was with me. I don't know who. I ate some acid that night, quite a bit of it. I don't even know how I did it, but I did it.' Rehfeld was again shown his statement and was asked whether his answers to the questions propounded by the police were based on his recollection of what had happened on the date of the alleged offenses. Although Rehfeld at first stated that the statement was an accurate recollection of what had happened, he then went on to testify that he would now give different answers to some of the questions 'because some of it is false--in this statement.' He then attempted to qualify some of the answers he had given to the police in the statement, which answers on their face implicated defendant in all four of the alleged offenses. The state then offered the statement in evidence as a document showing past recollection recorded, and not as a matter of impeachment. On cross-examination, Rehfeld further attempted to qualify the statement in such a manner as to eliminate any damaging references to defendant.

The state argues that the statement was properly admitted under the theory that it represented past recollection recorded, citing Maupin v. Mobridge State Bank, 38 S.D. 331, 161 N.W. 332.

The law with respect to the use of records of past recollection has been summarized as follows:

'As the rule permitting the introduction of past recollection recorded developed, it required that four elements be met: (1) the witness must have had first-hand knowledge of the event, (2) the written statement must be an original memorandum made at or near the time of the event and while the witness had a clear and accurate memory of it, (3) the witness must lack a present recollection of the event, and (4) the witness must vouch for the accuracy of the written memorandum.' (footnote omitted) McCormick on Evidence, 2d Ed., § 299, p. 712.

See also 3 Wigmore on Evidence (Chadbourn rev. 1970) §§ 734--755. Assuming for the purpose of argument that the statement otherwise met the test of admissibility as past recollection recorded, we conclude that it was not properly admissible under that doctrine because of Rehfeld's equivocation regarding the truth and accuracy of his answers to the police as recorded in the statement. As was pointed out in...

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  • People v. Teicher
    • United States
    • United States State Supreme Court (New York)
    • June 2, 1977
    ...110, 325 A.2d 714 (Super.Ct.N.J.1974); People v. Hill, 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1 (Sup.Ct.Cal.1974); State v. Watkins, 228 N.W.2d 635 (Sup.Ct.S.Dak.1975); State v. O'Bryan, 96 Idaho 548, 531 P.2d 1193 (Sup.Ct.Ida.1975); State v. Bluain, 315 So.2d 749 (Sup.Ct.La.1975); Stat......
  • State v. No Heart, s. 14151
    • United States
    • Supreme Court of South Dakota
    • July 11, 1984
    ...of the officer's testimony. This theory was not presented to the trial court and is not preserved for appeal. State v. Watkins, 89 S.D. 82, 228 N.W.2d 635 (1975). FOSHEIM, C.J., and WOLLMAN and DUNN, JJ., HENDERSON, J., dissents. HENDERSON, Justice (dissenting). PREJUDICIAL JOINDER The busi......
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    • United States
    • Supreme Court of South Dakota
    • May 2, 1975
  • Watkins v. Solem, CIV 76-4112.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • August 19, 1977
    ...counts of burglary in the third degree and grand larceny. That conviction was reversed by the South Dakota Supreme Court. State v. Watkins, S.D., 228 N.W.2d 635 (1975). At the time of the July 11th sentencing, a retrial of that matter was scheduled for later in that week. In addition, petit......
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