Lee v. Delano

466 N.W.2d 842, 1991 S.D. LEXIS 27, 1991 WL 24718

• Court: South Dakota Supreme Court
• Decided: February 27, 1991
• Docket: 16964
• Status: Published

Opinions

SABERS, Justice.

Christopher Charles Lee (Lee) appeals from a judgment quashing his writ of habe-as corpus.

FACTS

In March of 1987 a truck was stolen. The truck was later found at an abandoned farm with its engine, tires and radio removed. The engine was later found in a car owned by Lee. Lee had recently purchased the car without an engine and claimed that he had purchased the engine from a friend. Lee acknowledged that he believed that it was stolen, but denied actually stealing the engine. Lee was indicted for grand theft and resisting arrest on April 23, 1987.

The trial judge denied Lee’s pretrial motions to suppress his statements to the police and evidence concerning his automobile. On May 29, 1987, Lee pled nolo con-tendere on the assumption that he was preserving his right to appeal the rulings on the pretrial motions. On June 23, 1987, Lee was found guilty of grand theft and resisting arrest. The trial judge relied on certain police reports to establish the basis for the plea.

On July 1, 1987, this Court issued its opinion in State v. Cowley, 408 N.W.2d 758 (S.D.1987), which held that a plea of nolo contendere constituted a waiver of any alleged trial errors. On July 13, 1987, Lee moved to withdraw his nolo contendere plea. The trial judge allowed him to withdraw his plea. Lee pled not guilty.

Lee and State stipulated that guilt would be decided by the judge based upon the “police reports.” The trial judge had seen the police reports and was familiar with their contents although they were not formally offered and admitted into evidence. The trial judge, pursuant to the stipulation and without objection, proceeded to act as the fact finder, found Lee guilty and sentenced him to ten years in the penitentiary for grand theft and a concurrent one year sentence for resisting arrest. Lee filed no direct appeal. Lee filed an application for a writ of habeas corpus on April 27, 1989. A hearing was held before Circuit Judge Kean on the application for writ of habeas corpus on September 18, 1989. The police reports were admitted into evidence at the habeas hearing. Judge Kean quashed Lee’s writ of habeas corpus and Lee appeals. We affirm.

DECISION

Lee contends that he was denied due process because the trial court lacked sufficient evidence to determine guilt. Lee’s argument is that there is no record evidence in this case upon which to base his conviction. Lee’s argument is based solely on the fact that although the police reports were stipulated to, they were not formally admitted into evidence.

In determining the sufficiency of the evidence on appeal, our review is limited to determining whether there is evidence in the record which, if believed by the fact finder, will sustain a finding of guilt beyond a reasonable doubt. We must accept the most favorable inferences that can be drawn from the evidence in support of a verdict, (citations omitted).

State v. Hanson, 456 N.W.2d 135, 139 (S.D.1990). See also Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

First, we note that the police records were before the trial court and utilized for determining guilt by the express agreement of State and Lee. In City of Sioux Falls v. Famestad, 71 S.D. 98, 21 N.W.2d 693 (1946), we noted:

Our view is that the settled record should contain all documents which were properly before the trial court for its consideration at the time of the ruling or decision to be reviewed by this court.

Famestad, 71 S.D. at 102, 21 N.W.2d at 695. As in Famestad, the police record was “properly before the trial court for its consideration at the time of the ruling or decision” pursuant to a stipulation by the State and Lee. This is true even though the police records were not formally introduced.

Moreover, in Alexander v. Solem, 383 N.W.2d 486 (S.D.1986), we stated, “that the records in a criminal case are as fully before the court through judicial notice as they would be if introduced into evidence.” Id. at 489 citing Gregory v. State, 325 N.W.2d 297, 299 (S.D.1982). Clearly, because Judge Hurd acknowledged having reviewed the police reports, they were, at some time, part of the criminal record and subject to judicial notice. This remains true even though they were apparently later removed from the court file and returned to the police department.

The police reports were properly before the Court by stipulation of the parties even though they were not formally introduced into evidence. Thus, the trial court had sufficient evidence in the record to sustain the finding of guilt.

Last, Lee contends that the habeas court erred in admitting and considering the police records. At the habeas hearing, State established the trial court record by admitting into evidence the criminal file of the underlying action. The habeas court is authorized to admit such evidence. State v. Aspen, 412 N.W.2d 881, 884 (S.D.1987); Alexander, 383 N.W.2d 486. Lee raised no objections to the admission of the criminal file. The police reports were not included in the criminal file at that time. Transcripts of the hearing concerning the stipulation on the police reports were included in the criminal file. Although the police reports were no longer contained in the trial court records, it was clear that the trial court had considered the police reports. See State v. Dupris, 373 N.W.2d 446 (S.D.1985) (incomplete trial record may be reconstructed on appeal). Using the criminal file and the transcript, State called the habeas court’s attention to the stipulation regarding the police reports. State then offered the police reports as exhibit # 1 in the habeas corpus proceeding. Lee’s counsel stipulated that, if called, Judge Hurd would testify that he recalled the stipulation and that exhibit # 1 was a copy of the police reports he viewed in adjudicating Lee’s guilt. While acknowledging the authenticity of the police reports, Lee still objected to their admissibility. The habeas court admitted the police reports as exhibit # 1. Based on that foundation, the habeas court did not commit error in admitting the police reports into the record of the habeas court proceedings.

We affirm the judgment quashing the writ of habeas corpus. Because we do not reverse Lee’s conviction, we find it unnecessary to address Lee’s argument that the double jeopardy clause would bar retrial.

MILLER, C.J., and MORGAN, Retired J., concur. HENDERSON, J., concurs specially. WUEST, J., dissents. MORGAN, Retired J., participating. HERTZ, Circuit Judge, Acting as a Supreme Court Justice, not participating.