State v. Brown

435 N.W.2d 225, 1989 S.D. LEXIS 19, 1989 WL 4718
CourtSouth Dakota Supreme Court
DecidedJanuary 25, 1989
DocketNo. 16064
StatusPublished
Cited by2 cases

This text of 435 N.W.2d 225 (State v. Brown) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brown, 435 N.W.2d 225, 1989 S.D. LEXIS 19, 1989 WL 4718 (S.D. 1989).

Opinions

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES

Defendant Spencer Brown (Brown) was charged with third-degree burglary after [226]*226Louise’s Bar, in Volin, was burglarized in June 1987. After a jury trial in Yankton County, Brown was found guilty and sentenced to seven and one-half years in the State Penitentiary. This appeal followed, in which Brown alleges that the circuit court erred in four respects:

1) Testimony of Deputy James Vlahakis and Randall Flynn, a jailer, concerning prior inconsistent statements of witness Aldon Heckenlaible was improperly admitted;
2) Aldon Heckenlaible’s statement that he and Brown were “going out robbing” was inadmissible hearsay;
3) Evidence was insufficient to support the jury’s verdict; and
4) Brown’s sentence of seven and one-half years in the State Penitentiary constituted cruel and unusual punishment.

We find no error and accordingly affirm.

FACTS

At the time of the Volin burglary, Brown was eighteen years old. He shared an apartment with nineteen-year-old Aldon Heckenlaible, whom he had known for three years. Although Heckenlaible was employed as a dishwasher, the pair was so short of funds that their apartment’s electricity was cut off for “a week or two” at the time of the events in question. On Sunday, June 14, 1987, Brown and Hecken-laible visited the house where Angie Heck-enlaible (Angie), Aldon’s sister, and Carol Martin (Carol), among others, lived. They arrived at 10 a.m. and stayed until somewhere between 9 and 10 p.m., except for a brief absence at approximately 7 p.m. At 2 p.m., Brown asked his younger sister, Marlene Brown, who had also arrived at the house, to give him two dollars for a “pop.” This exchange was observed by both Angie and Carol, although, at trial, Heckenlaible denied that it occurred. After supper, Brown and Heckenlaible left together.

According to both Angie and Carol, Brown and Heckenlaible returned to the house at 3 a.m. on Monday, June 15. Heck-enlaible borrowed a quarter from Angie to buy a pack of cigarettes. Brown and Heckenlaible then left the house. About two hours later, Brown and Heckenlaible arrived at the Fryn’ Pan Restaurant, where Heckenlaible worked, for breakfast. They were flush with money and ordered steak and eggs for breakfast. Their bill, totaling $13.14, was marked “525” by their waitress, as she had given their order to the cook at 5:25 a.m. Brown paid for the meal. The waitress testified that they usually ordered only a roll and coffee, and paid with a dollar bill. The two returned to Angie’s residence at approximately 7:30 a.m.

Later that morning, they purchased a muffler for $28. This muffler was installed in Heckenlaible’s car, at “TMA,” for $74.20, a bill which Brown paid in cash. While the car was worked on, Heckenlaible purchased “a couple” of cassette tapes for $11 each. After recovering Heckenlaible’s car, they drove back to Angie’s home, where they gave a total of $10 to Angie and Carol for the women to rent a video cassette recorder. Heckenlaible apparently provided Carol with $5, and Brown gave Angie $5. At that time, Angie testified that Brown had eight dollar bills remaining in his billfold.

Meanwhile, in Volin, Larry Niekles discovered that the bar he owned and operated had been burglarized that night. The burglar had forced a hole in the back door, removed a security bar, taken $175 to $200 from the cash register, and stolen five packs of Marlboro cigarettes from a stand near the register.

Two days later, on Wednesday, June 17, Carol Martin talked to Brown and Hecken-laible outside her house. She asked them what they were “up to,” and Heckenlaible replied that they were “going out robbing.” Carol mentioned that there was a burglary in Volin, and continued: “If you guys were involved in that, you’re going to, you know, get caught, it is under investigation.” Brown then stated: “We won’t get caught because the best don’t get caught.”

That same day, Sheriff David Hunhoff and Deputy Sheriff James Vlahakis received a tip from Louise Slemp, a co-worker of the mother of either Heckenlaible or Carol Martin (the record unclear on this [227]*227point), to the effect that Heckenlaible and Brown were involved in the Volin burglary. They proceeded to the pair’s apartment. Brown answered the door. When the officers asked to speak to Heckenlaible, Brown informed them that he had gone shopping. The officers began to leave and asked another resident, outside, if he had seen Heckenlaible. The resident replied that Heckenlaible had returned home with shopping bags a few minutes before. They then went back to the apartment, to be greeted by Brown’s shout: “What the [expletive deleted] do you want?” Heckenlai-ble then appeared, and consented to the officers’ request to look in his car. Brown responded to this belligerently, shouting to Heckenlaible that he should refuse. The officers, after looking at the car briefly, went to the Public Safety Center, voluntarily accompanied by Heckenlaible.

After receiving Miranda warnings, Heckenlaible related to the officers that he had driven Brown to Volin on the night in question, and played lookout while Brown burglarized the bar. Heckenlaible signed a similar statement for Deputy Sheriff Vla-hakis the next morning, and he and Brown were charged with third-degree burglary. The signed statement related that he and Brown discussed the matter between themselves in jail and decided to fabricate a story to the effect that Brown was not involved, because Brown would go to prison if he were convicted, due to his bad record. At Brown’s preliminary hearing on June 29, 1987, under oath, Heckenlaible changed his story: He dropped Brown off by “the river,” drove to Volin by himself, burglarized the bar alone, and did not see Brown again until he returned to his apartment before they went to breakfast.

On July 11, Randall Flynn, a jailer, conversed with Heckenlaible and was told that he was afraid that he would go to jail for something he did not do. Heckenlaible also informed Flynn of his fear that Brown’s family would kill him if Brown went to jail because of him. Heckenlaible recanted his prior testimony at Brown’s second preliminary hearing on August 24, 1987, after being offered “use immunity” under SDCL 23A-14-29. He returned to his first story, in which he drove and functioned as lookout for Brown during the burglary.

Under oath, during trial, Heckenlaible reverted to his testimony at Brown’s first preliminary hearing: Brown was not involved. The State, apparently unaware that Heckenlaible had switched stories until he testified that day, impeached him with his earlier sworn testimony from the second preliminary hearing, his written statement to Vlahakis, and his conversation with the jailer, Flynn. Defense counsel, in chambers, agreed with the prosecutor that Heckenlaible’s testimonial tack was a surprise. During trial, the prosecutor asked the trial court for, and received, a declaration that Heckenlaible was a hostile witness.

Aside from impeachment by his own pri- or statements, Heckenlaible’s trial testimony was inconsistent with that of other witnesses.

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Related

State v. Reed
451 N.W.2d 409 (South Dakota Supreme Court, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
435 N.W.2d 225, 1989 S.D. LEXIS 19, 1989 WL 4718, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brown-sd-1989.