State v. Webb
| Decision Date | 17 March 1977 |
| Docket Number | No. 11953,11953 |
| Citation | 251 N.W.2d 687 |
| Parties | STATE of South Dakota, Plaintiff and Respondent, v. Steve WEBB, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Peter H. Lieberman, Asst. Atty. Gen., for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on the brief.
Robert A. Warder of Gunderson, Farrar, Aldrich, Warder, DeMersseman & Johnson, Rapid City, for defendant and appellant.
Defendant was charged with unlawful distribution of a controlled substance on November 1, 1975, and November 4, 1975, in two separate indictments which were consolidated for trial.
The state's case was dependent upon an informer's testimony, since it was he who claimed to have made two separate purchases of a controlled drug from the defendant. The defendant did not testify, but did submit alibi testimony on the first purchase claimed by the state to have been made on November 1, 1975.
During recross-examination of one of defendant's alibi witnesses, the state's attorney asked the following question:
"Are you then aware of the fact that Steve Webb is awaiting sentencing on a forgery charge in Rapid City?"
Defense counsel immediately objected, and, outside the presence of the jury, moved for a directed verdict, or in the alternative, that the trial court declare a mistrial on the ground that the question propounded by the state's attorney was so prejudicial to the defendant's case that a fair trial on the real issues was no longer possible.
The trial court denied the motion for a directed verdict, but reserved its ruling on the motion for a mistrial, and, in fact, did not rule on the mistrial motion until several weeks after the trial had been concluded. The motion for a mistrial was then denied, and represents one of the three claimed errors presented by this appeal. Because of the view that we take on defendant's first assigned error, we need not address ourselves to the other two.
The defendant contends that the trial court erroneously denied his motion for a directed verdict of acquittal and/or a mistrial for the reason that the question by the state's attorney was highly prejudicial and deprived the defendant of his constitutional right to a fair trial before an impartial jury. We agree, and accordingly must reverse the decision of the trial court.
The state concedes that the character of the defendant had not been placed in issue at that time or at any other time during the trial of said matter. It further concedes that it was in fact error to ask the question, but contends such error was harmless in the light of the evidence presented.
The state reminds us that SDCL 23-1-2, commonly referred to as the "harmless error" statute, provides for just such contingencies as those with which we are here confronted. The statute declares:
In State v. Ballard, 1948, 72 S.D. 293, 33 N.W.2d 339, we held that the Supreme Court is expressly directed by this section to disregard error which does not affect the substantial rights of the defendant. And in State v. Reddington, 1963, 80 S.D. 390, 125 N.W.2d 58, we said:
"(A) new trial should not be granted unless it is reasonably clear that the substantial rights of the defendant have been so violated that he did not receive a fair trial." 80 S.D. at 397, 125 N.W.2d at 62.
And further, it was there said:
"There is no definite rule by which to measure prejudicial error and each case must be decided on its own facts." 80 S.D. at 396, 125 N.W.2d at 62.
We are firmly persuaded that, given the context in which this question was asked, a substantial right of the defendant was violated in this case and that he was denied the fair and impartial trial to which he was constitutionally entitled.
There is nothing in the alibi testimony of the witness, Louie Suliveres, or any other of defendant's witnesses, which would make the question relevant to the issues at hand. The state admits that the defendant never placed his character in issue, and, further, that the question cannot be justified as an attempt to show motive, intent or a common scheme. It follows, then, that the only real purpose of the question was to impugn the integrity and credibility of the defendant's alibi witnesses and to instill in the minds of the jurors the belief that the defendant was unworthy of acquittal.
Similar remarks by state's attorneys in other cases have been held by this court to be reversible error, even where the objection has been...
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McCafferty v. Solem
...before, this Court has previously announced a rule on fundamental fairness which bears mentioning instanter. It is found in State v. Webb, 251 N.W.2d 687 (S.D.1977). Therein, we held that the harmless error rule (this issue briefed by both parties in the case before us) ought never be used ......
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State v. Dale
...may hide behind the harmless error rule for to do so would merely justify the unfairness that occurred during the trial. State v. Webb, 251 N.W.2d 687 (S.D.1977). But, it must be shown that the statements were so detrimental to a defendant's right to a fair trial. In this regard the strengt......
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State v. Davis
...caution that the harmless error rule should never be used to justify unfairness at trial. Remacle, 386 N.W.2d at 42 (citing State v. Webb, 251 N.W.2d 687 (S.D.1977)). MILLER, Justice (concurring in I generally concur in the result of the majority opinion and specifically concur in the dispo......
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State v. Blue Thunder
...of proof. As we have acknowledged before, "the harmless error rule ought never be used to justify unfairness at trial." State v. Webb, 251 N.W.2d 687 (S.D.1977). "Egregious" is not the standard. Recently, the United States Supreme Court agreed to review a state court's determination that co......