State v. Winters, 15354

• Decision Date: 08 July 1987
• Docket Number: No. 15354,15354
• Citation: 414 N.W.2d 1
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Randy WINTERS, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 1

414 N.W.2d 1

STATE of South Dakota, Plaintiff and Appellee, v. Randy WINTERS, Defendant and Appellant.

No. 15354.

Supreme Court of South Dakota.

Argued April 23, 1987.

Decided July 8, 1987.

Robert E. Mayer, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on brief.

Steven L. Jorgensen, Sioux Falls, for defendant and appellant.

MORGAN, Justice.

Defendant Randy Winters (Winters) appeals from his conviction of first-degree rape by the trial court. We affirm.

Winters was tried and convicted of first-degree rape stemming from an incident that occurred at Wall Lake, South Dakota, on August 8, 1985. On the evening of August 8, 1985, the victim attended a party at a house in Sioux Falls, South Dakota. After expressing an interest in obtaining a ride on a Harley-Davidson motorcycle, she was introduced to Winters, who owned such a motorcyle. The victim agreed to go with Winters for a ride and the pair eventually stopped at Wall Lake. Winters and the victim walked down near the lakeshore, sat down and smoked a cigarette, after which, according to the victim, Winters attempted to kiss her. She testified that she resisted Winter's advances but to no avail. The victim subsequently testified that Winters threatened to drown her in the lake unless she submitted to sexual intercourse with him.

After the incident, the victim was presented with the choice between walking back to Sioux Falls or accepting a ride with Winters. She accepted a ride with Winters and was dropped off near the party. At the time she was dropped off, the victim claims that Winters told her to keep quiet or that somebody would come out of the dark and slit her throat. Several witnesses testified that the victim entered the house in an hysterical state and was unable to relate what had occurred for nearly one-half hour. After the victim told of the attack, police officers were called and the victim was interviewed and taken to a local hospital. A swab taken from the victim indicated the presence of seminal fluid which was later matched to the blood characteristics of Winters.

At trial, Winters relied solely on an alibi defense. State originally contended that the offense was committed at 12:45 a.m. on the 9th day of August, 1985, but informed the defense on December 9, 1985, that the offense in fact occurred between 11:45 p.m. and 12:30 a.m. Partially as a result of this disclosure, the trial was continued at Winters' request. Winters does not deny meeting the victim or giving her a ride on his motorcycle. He denies, however, being at Wall Lake and raping the victim.

There is no affirmative showing in the record that Winters was ever arraigned on the charge of first-degree rape. At the outset of the trial, however, the trial court stated:

Mr. Winters, at the time of your arraignment in this matter the Court advised you that you had a right to a speedy, public trial by court or jury. And that in the event that you desired to have a jury trial on this matter before you could be found guilty each of the twelve jurors would have to be convinced beyond a reasonable doubt, that is, the jury verdict must be unanimous. Do you understand those rights.

Winters thereafter indicated that he did understand his rights. A short time later, the court asked Winters' attorney if he was willing to waive the formal reading of the indictment to which the attorney replied that he was. The court then went on to state: "The record may reflect that the defendant has pled not guilty to the Indictment, which places in issue and requires the State to prove each and every essential element of the Indictment beyond a reasonable doubt." These statements by the trial court are the only indication that Winters was arraigned and pled to the charge. In addition, Winters and his attorney both claim that they did not receive a copy of the indictment.

Winters raises four issues on appeal: (1) Did the failure of the state to arraign the defendant constitute grounds for new trial or an arrest of judgment? (2) Did the trial court err in denying defendant's motion for a continuance as to allow him to have a scientific analysis performed by the expert witness appointed by the court? (3) Was the defendant entitled to a new trial based on the fact that defendant's expert witness' findings varied from the State's expert witness? (4) Was the finding of guilty by the court sustained by the evidence inasmuch as the state failed to prove beyond a reasonable doubt that the defendant committed an offense at 12:45 a.m. on August 9, 1985, as stated in their notice of demand for alibi defense?

While we believe that failure to arraign a defendant is a gross oversight, we do not agree with Winters when he contends that it requires automatic reversal. Failure to arraign is not per se a constitutional violation.

Due process of law, this court has held, does not require the state to adopt any particular form of procedure, so long as it appears that the accused has had sufficient notice of the accusation and an adequate opportunity to defend himself in the prosecution.

Garland v. Washington, 232 U.S. 642, 645, 34 S.Ct. 456, 457, 58 L.Ed. 772, 775 (1914). We specifically adopted the Garland test in City of Rapid City v. Albertus, 310 N.W.2d 167 (S.D.1981). We have no doubt that Winters had sufficient notice of the accusation and had an adequate opportunity to defend himself. Although he may not have been arraigned, Winters knew months prior to trial that he was charged with the rape of the victim. On the 26th of November, 1985, State served upon defense counsel a notice of demand for alibi defense. On the 2nd day of December, 1985, State made a motion to withdraw a blood sample from Winters which stated, inter alia, that Winters was indicted for rape in the first-degree and that the alleged incident took place at Wall Lake, South Dakota. Furthermore, a motion hearing was held in this case on the 3rd day of December, 1985. The trial was not conducted until February 19, 1986. A brief review of the trial transcript provides proof that Winters had an adequate opportunity to defend himself. Winters was represented by an experienced criminal trial lawyer and called eleven witnesses in his defense. Once again, we adopt the language of the Garland court. "Tried by this test it cannot for a moment be maintained that the want of formal arraignment deprived the accused of any substantial right, or in any wise changed the course of trial to his disadvantage." Garland, 232 U.S. at 645, 34 S.Ct. at 457, 58 L.Ed. at 775. Furthermore, we concede that failure to arraign is a violation of statute but we have held in a long line of cases that failure to show arraignment and/or plea does not, in and of itself, require reversal. State v. Dale, 66 S.D. 418, 284 N.W. 770 (1939); State v. Ham, 21 S.D. 598, 114 N.W. 713 (1908); State v. Bunker, 7 S.D. 639, 65 N.W. 33 (1895); State v Reddington, 7 S.D. 368, 64 N.W. 170 (1895). The facts in this case do not persuade us to deviate from our established precedent.

Winters' next two issues on appeal can be combined for disposition. We do not believe that Winters was entitled to a continuance nor do we believe that he is entitled to a new trial. We disagree with Winters when he states that the defendant's expert witness' findings varied from the State's expert witness' findings. Winters claims that State's expert witness testified that only fourteen percent of the caucasian population could have contributed the semen sample taken from the victim. This contention is erroneous. State's expert witness actually testified that all of Winters' blood characteristics, including subtype, were shared by only fourteen percent of the caucasian population. However, since Winters and the victim shared a common subtype, State's expert could not and did not state that the semen sample could have come from only fourteen percent of the population. On cross-examination at trial State's expert specifically stated: "I am not saying that the semen donor ... was 14 percent of the population, that's correct." The expert witness on whose affidavit Winters relies specifically stated that he agreed with the test results obtained by State's witness. He did point out that the testimony of State's expert in the motion hearing relating to the fourteen percent figure might have been misleading. Any possible misconception, however, was cleared up by State's expert's later testimony which is quoted above. Furthermore, the trial court specifically addressed this possible misconception in the post-trial motion hearing. The court stated: "What he is saying the finder of fact could have misinterpreted what he is saying at [sic] 14 percent. I didn't misinterpret it. I was the fact-finder.... I understood what the assumption was in getting at the 14 percent."

Winters' final issue on appeal contains little merit. In his brief, he contends "it is the State's burden to prove beyond a reasonable doubt that the Defendant committed the alleged crime at 12:45 a.m. on August 9, 1985 at Wall Lake, South Dakota." (Emphasis added.) He cites no authority in support of this contention. Furthermore, State notified Winters that the time of the offense was actually between 11:30 p.m. and 12:15 a.m. Winters goes on at length in his brief claiming that it was physically impossible for Winters to have been at Wall Lake at 12:45 a.m. taking into account the testimony of the witnesses. In light of State's timely notice of the change of time period, we find no merit in this contention.

We affirm the trial court on all issues.

WUEST, C.J., and SABERS and MILLER, JJ., concur.

HENDERSON, J., dissents.

HENDERSON, Justice (dissenting).

This author has written specially in State v. King, 400 N.W.2d 878, 881 (S.D.1987) (Henderson, J., dissenting) (guilty plea), and Logan v. Solem, 406 N.W.2d 714, 720 (S.D.1987) (Henderson, J., dissenting) (nolo contendere plea), concerning Boykin...