State v. Means

257 N.W.2d 595, 1977 S.D. LEXIS 178

• Court: South Dakota Supreme Court
• Decided: September 9, 1977
• Docket: 11826
• Status: Published

Opinions

DUNN, Chief Justice (on reassignment).

This is a proceeding brought by the state for the revocation of defendant’s bond on appeal.

On April 30, 1974, a disturbance occurred at the Minnehaha County Courthouse in Sioux Falls, South Dakota, during the trial of Robert High Eagle, Sarah Bad Heart Bull and Kenneth Dahl on charges arising out of an alleged riot that had occurred on February 6, 1973, in Custer, South Dakota. As a result of the April 30, 1974 disturbance, defendant was indicted on charges of rioting to obstruct justice, SDCL 22-10^1, and injury to a public building, SDCL 22-34-3.1. These indictments were later dismissed and defendant was charged by information with the crime of “rioting to obstruct.” SDCL 22-10-4.

After an attempt had been made to select a jury, defendant requested trial to the court. Following a lengthy trial, the court on December 15, 1975, announced its oral verdict finding defendant guilty of the crime charged, and on December 31, 1975, the court entered a judgment of conviction and sentenced defendant to a term of four years in the state penitentiary. On that same day, defendant filed a notice of appeal to this court and made a motion to the circuit court for an order admitting him to bail pending appeal. On January 6, 1976, the trial court entered its order admitting defendant to bail on certain conditions, including the following:

“4. That defendant will refrain from participating in any American Indian Movement activities except the following:

(a) Fund raising,

(b) The International Indian Treaty

Organization,

(c) and activities of the American Indian Movement within the courts.

******

8.The bail will be revoked if the defendant is convicted of any criminal charge presently pending against him.

***** *»

The conditions also included the requirement that defendant report to a court service worker in person or by telephone every fifteen days with a detailed account of his itinerary and proposed activities for the following fifteen-day period, and the requirement that at least every sixty days defendant should personally present himself to the court service worker department at Sioux Falls to make such report.

On January 5, 1977, the state filed an application for an order revoking bail, alleging that defendant had violated two of the conditions of the order admitting him to bail. On January 26, 1977, this court remanded the case to the circuit court and directed the trial judge who had tried and sentenced defendant to conduct an eviden-tiary hearing as referee. Following an evi-dentiary hearing, the referee filed his report and findings of fact and conclusions of law. The referee found that defendant had violated the provisions of conditions 4 and 8 of the order admitting defendant to bail. The referee made no recommendation on whether bail should be revoked.

In response to the state’s motion, defendant has filed an application asking that we amend the order admitting him to bail by striking conditions 4 and 8.

We turn, then, to the evidence in support of the referee’s findings.

The referee found, and there is no dispute on this matter, that on January 6, 1976, there was pending against defendant in Morton County, North Dakota, an information charging defendant with aggravated assault and battery. On November 23, 1976, the district court of North Dakota, Sixth Judicial District, granted a motion made by the state of North Dakota to dismiss that felony charge and to allow the filing of an information on the lesser included offense of assault. On that same day, the state’s attorney of Morton County filed an amended information charging defendant with the misdemeanor crime of assault based upon the same incident that gave rise to the original felony charge. Defendant was convicted on his written plea of guilty to the charge contained in the amended information and was sentenced to thirty days in jail and a $100 fine, together with certain restitution. The jail sentence was suspended for a period of eighteen months, the fine was paid, and the restitution made.

On the morning of November 1, 1976, Mr. Kerry Cameron, Roberts County State’s Attorney, received a call from a Mr. John Thomas requesting that a meeting be held with the state’s attorney, the sheriff, and other law enforcement officials. As it developed, the purpose of the meeting was to consider complaints voiced by members of the local Indian population in and around Sisseton following the arrest of six male Indians on charges resulting from an incident that had occurred at a local bowling alley on October 16, 1976. Each of the six had been charged with six counts of attempted murder and one count of riot while armed. Bond had been set in the amount of $10,000 for each of the six defendants.

As a result of the telephone conversation, a meeting was set for 1:30 that afternoon at the city hall. Mr. Cameron and the local law enforcement officials arrived at the meeting room between 1:15 and 1:30. At about 1:45 they heard the sound of a drum and observed a group of from between 40 to 60 Indian people, about half of whom were children, coming down the street carrying a banner that bore the words “American Indian Movement.” Some 18 to 20 members of the group came into the meeting room and the rest stayed on the sidewalk in front of the city hall building beating the drum and singing some songs. Among the persons who came into the meeting room were John Thomas, Greg Zephier, Bill Means, and defendant. They made it clear to everyone' in the room that they represented the American Indian Movement. A discussion then followed between these individuals and Mr. Cameron. In Mr. Cameron’s words, “ * * it was a very orderly meeting and some demands were made by — mainly by Russell and Bill Means.” These demands included a request that the bond be reduced for the six individuals who had been charged in connection with the incident at the bowling alley. The group also requested a more complete investigation of telephone threats that had been made that the Roberts County jail, where six men were being held, would be bombed. A request was also made that an investigation be made to insure that the families of the six jailed individuals would not be in jeopardy or be threatened in any way. Finally, the group requested that a community forum be set up so that some of the townspeople, presumably members of the local Indian population, could air their dissatisfactions with the way in which law enforcement was being handled in Roberts County.

At one point during the discussion Bill Means alluded to the fact that an individual by the name of Bursheim was supposed to be coming to Sisseton to run Bill Means and his companions out of town, but that, in Bill Means’ words,

“I want to make it clear that the reason we are leaving is we are going to survival school in Minneapolis and we are supposed to be down there today. And we aren’t being run out of town. AIM isn’t run out by anybody, out of any town.”

Nearly all of the meeting, which lasted approximately an hour and a half, was taken up by a dialogue between Mr. Cameron and defendant, whom Mr. Cameron took to be the chairman or leader of the group. Defendant made numerous references to the American Indian Movement during the course of the meeting.

Mr. Cameron testified that there was no discussion of the fund raising activities of the American Indian Movement and no discussion about the International Treaty Organization. He also testified that defendant was under no charges during the time that he was in Sisseton on November 1, 1976, and that the meeting did not involve in any manner a court proceeding.

On cross-examination, Mr. Cameron acknowledged that the meeting with defendant and his colleagues was peaceful and that he had observed no violations of the law on the part of the individuals who had met with him. He volunteered the statement that “I thought it (the meeting) was rather useful, in fact.” Mr. Cameron acknowledged that it had been made clear to him early in the meeting that the presence of defendant and the other Indian people was entirely peaceful and that nothing had occurred during the course of the meeting to indicate that any of the objectives announced by them were other than peaceful.

Defendant testified that he and John Thomas had arrived in Sioux Falls on the night of October 30, 1976, from a lecture trip in the state of Washington, and that he had intended to join a caravan of teachers and students from an Indian survival school that was enroute to Minneapolis — St. Paul for a conference. On October 31st, defendant met with members of the caravan and went with them to the state penitentiary to meet with the Indian inmates there and with penitentiary officials. On the afternoon of October 31st, defendant traveled to Sisseton with his brother Bill, John Thomas and other individuals who were accompanying the survival school caravan. Although defendant testified that he had no idea at the time he went to Sisseton that he would be meeting with local law enforcement officials, a court service officer testified on rebuttal that defendant had called his office from Seattle, Washington, on October 28, 1976, with information about defendant’s proposed itinerary for the following days. After speaking with defendant, the court service worker prepared a typed report setting forth the substance of the conversation. The report stated in part that on October 31, 1976, defendant would be in Sioux Falls for a demonstration at the state penitentiary and that on November 1, 1976, defendant would be in Sisseton, South Dakota “ * * * to participate in a demonstration for a cause of Improper Incarceration in (sic) Indians.”

Although defendant attempted to establish that his meeting with the law enforcement officials in Sisseton was not held in connection with the American Indian Movement, we conclude that the record supports the referee’s finding that the demonstration and the meeting in Sisseton on November 1, 1976, were activities of the American Indian Movement not within the courts and were not connected with the International Indian Treaty Organization.

Our decision on whether to revoke defendant’s bail on appeal is governed by SDCL 23-51-14, which provides in part that:

“When a defendant has been admitted to bail on appeal from a judgment of conviction, he may be remanded to custody as follows:

* * * # # i)t

(2) When, on application by the state to the Supreme Court, the court is satisfied that the defendant should not be at large pending determination of the appeal, such application to be made on such notice to the defendant as the court directs.”

We turn first to the question whether defendant’s plea of guilty to the misdemeanor charge in Morton County, North Dakota, is sufficient reason to revoke his bail on appeal. The referee concluded that because the crime of assault was included within the crime of aggravated assault under the rule set forth in Stats v. Parks, 84 S.D. 510, 149 N.W. 161, the misdemeanor charge of assault was pending against defendant on January 6, 1976, and that therefore defendant’s conviction following his guilty plea on that charge constituted a violation of condition 8 in the order admitting defendant to bail.

The referee was fully justified under the evidence in finding that a violation of condition 8 had occurred. However, in view of the plea bargaining involved and the lenient sentence that resulted, we would be loath to revoke defendant’s bail on this finding alone, at least without a further hearing as to the actual facts of the North Dakota case and the reasons for the plea bargain.

Accordingly, we turn to defendant’s violation of condition 4 of the bail order which we consider to be the most important grounds for the application for revocation of bail. Again, the finding of the referee that there had been a violation of condition 4 is fully justified by the record.

Defendant contends, however, that the prohibition against his participation in activities of the American Indian Movement constitutes an unconstitutional infringement of his First Amendment rights of free speech and free association, relying principally upon the case of Sobell v. Reed, D.C.N.Y., 327 F.Supp. 1294.

We think that the proper rule was expressed by the Court of Appeals for the Second Circuit in the case of Birzon v. King, 469 F.2d 1241:

“Alternatively, appellant argues that condition no. 11 violates Satz’s first amendment freedom of association. We regard this argument as frivolous. It has been properly held that the Government can infringe the first amendment rights of prisoners so long as the restrictions are reasonably and necessarily related to the advancement of some justifiable purpose of imprisonment. See Sobell v. Reed, 327 F.Supp. 1294, 1303 (S.D.N.Y.1971), and eases there cited. On that basis, no one has questioned the Government’s power totally to deprive a convicted person of his freedom of association. By the same token, when a convict is conditionally released on parole, the Government retains a substantial interest in insuring that its rehabilitative goal is not frustrated and that the public is protected from further criminal acts by the parolee. Although a parolee should enjoy greater freedom in many respects than a prisoner, we see no reason why the Government may not impose restrictions on the rights of the parolee that are reasonably and necessarily related to the interests that the Government retains after his conditional release. The restriction here involved is reasonably and necessarily related to the Government’s legitimate interests in the parolee’s activities and thus does not violate the first amendment.” 469 F.2d at 1243.

In a case that involved a condition of probation that prohibited the defendant from making public statements designed to urge or encourage others to violate the tax law, the Court of Appeals for the Tenth Circuit stated:

“We infer also from the record presented that the court was seeking to prohibit extensive campaigning on the part of the defendant against the laws in question, and we do not agree that such a condition is invalid, for the defendant cannot be allowed to continue all of his old ways while on release from custody on probation; to allow him to do so undermines the probation system itself and makes a mockery of the law. It is also clear that the court has the power to restrict the probationer’s association with groups that would palpably encourage him to repeat his criminal conduct.” (citations omitted) Porth v. Templar, 10 Cir., 453 F.2d 330, 334.

As the Court of Appeals for the Eighth Circuit has noted, “Parole is an act of grace and reasonable conditions may be imposed in connection therewith.” Forester v. California Adult Authority, 8 Cir., 510 F.2d 58, 61.

In Malone v. United States, 9 Cir., 502 F.2d 554, the defendant challenged the conditions of probation that prohibited him from participating in any American-Irish Republican Movement, from belonging to any Irish organization, cultural or otherwise, from belonging to or participating in any Irish-Catholic organizations or groups, from visiting any Irish pubs, and from accepting any employment that directly or indirectly would associate him with any Irish organization or movement. In concluding that these conditions of probation were not too vague and were reasonably related to the goals of probation and the accomplishments of public order and safety and that they did not constitute an abuse of the trial court’s discretion, the court cited Birzon v. King and Porth v. Templar, supra, in stating that,

“The courts strive to protect freedom of speech, religion and racial equality, but freedom of association may be restricted if reasonably necessary to accomplish the essential needs of the state and public order.” (citation omitted) 502 F.2d at 556.

In upholding the discretion of a sentencing court to impose restitution as a condition of probation, the California Supreme Court recognized that,

“The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof. (Pen. Code, § 1203 et seq.) A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .’ (People v. Dominguez (1967) 256 Cal.App.2d 623, 627, 64 Cal.Rptr. 290, 293.) Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.” (footnote omitted) People v. Lent, 15 Cal.3d 481, 124 Cal.Rptr. 905, 908, 541 P.2d 545, 548.

It is true, of course, that these cases concerned conditions imposed upon those on probation or parole, whereas defendant is free on bond pending appeal. For the purpose of considering defendant’s challenge to the validity of condition 4 of the bail order, however, we do not believe that the distinction between his status and that of one on parole or probation is significant enough to warrant any distinction in considering the validity of the conditions of the bail order. Having been convicted, defendant is no longer clothed with the presumption of innocence. The burden is upon him to demonstrate that his conviction should be set aside. Bail on appeal from a judgment imposing a penitentiary sentence is not a matter of right but is to be granted only when the ends of justice demand that the defendant be admitted to bail. SDCL 23-51-13. So long as the court to which an application for bail is presented affords the applicant appropriate due process in considering the merits of the application, the court retains broad discretion in considering the factors that militate in favor of and against granting bail in any given case. United States ex rel. Bad Heart Bull v. Parkinson, D.C.S.D., 385 F.Supp. 1265. See also State v. Olson, 82 S.D. 605, 152 N.W.2d 176.

The circumstances under which the trial court imposed condition 4 must be considered when weighing the reasonableness of that condition. The trial court had just found defendant guilty of a serious felony charge following a lengthy trial during which defendant’s participation in the disturbance that occurred at the Minnehaha County Courthouse on April 30, 1974, must have been fully developed by the evidence. Moreover, the trial court would have had to be in complete isolation not to have known that defendant was present at the Custer County Courthouse when the disturbance occurred there in February of 1973. Additionally, the trial court must have been aware of the charges that were pending against defendant in North Dakota on the date that the order admitting defendant to bail was entered. Whether fortuitous or planned, defendant had been directly involved in a number of violent incidents in connection with the activities of the American Indian Movement. To what extent defendant was responsible for any of these incidents we have not yet determined, because his appeal from the conviction in the instant case has not yet been submitted to us. We do know, however, from the transcript and exhibits contained in the settled record in the appeal that is presently before us in the Bad Heart Bull and High Eagle case alluded to above (Nos. 11531 and 11573), that defendant was present in the Custer County Courthouse immediately pri- or to the disturbance that occurred there. Moreover, it is a matter of record that defendant stood trial on charges arising out of the Wounded Knee occupation. See United States v. Banks, D.C.S.D., 383 F.Supp. 368; 383 F.Supp. 389; United States v. Means, 8 Cir., 513 F.2d 1329. We say this not to prejudge defendant’s guilt or innocence in the instant case, but to recognize that the trial court had a rational basis upon which to impose as a condition of bond on appeal a prohibition against defendant’s participation in any American Indian Movement activities except fund raising and activities within the courts. Thus we find no infringement of defendant’s rights to freedom of association, speech and travel under condition 4.

SDCL 23-51-14 expressly empowers this, court to remand defendant to custody pending determination of his appeal. We do so for the following reasons:

(1) Defendant violated a reasonable restriction lawfully imposed upon him as a condition of his release on bail,

(2) His violation was not through inadvertence or mistake. Instead, he planned in advance to participate and voluntarily assumed a prominent role during the Sisseton activity, and

(3) The prohibited activity on several former occasions at other places in this state led to violent confrontations between American Indian Movement members and law enforcement personnel. Defendant’s conviction, here on appeal, arose out of one such occasion. Defendant could not know in advance whether the Sisseton activity involved here would end peaceably, or in a breach of the peace. His deliberate participation must be viewed as a willingness on his part to assume that risk. Although fortuitous, the fact that no violence occurred should not be accepted as an after-the-fact justification for defendant’s prior intentional breach of the bail order.

We need not speculate here as to whether we would have found an abuse of discretion in admitting defendant to bail. Defendant has no absolute right to bail pending appeal under SDCL 23-51-13. Most likely, the action of the trial judge in either granting or denying bail under these circumstances would have been upheld.

We are now, however, a significant step beyond the question of the initial grant of bail after conviction. Today we must consider whether defendant should continue free on bail even though he violated a bail condition we may reasonably see as having been crucial to his release, directly related as it was to the nature of the activity out of which came his conviction below of the felony of “rioting to obstruct.” An appellant who, while free on bail pending appeal from a judgment imposing a penitentiary sentence for a crime of violence, knowingly violates a material condition of the bail has by his own act taken upon himself a difficult burden of persuasion in a proceeding under SDCL 28-51-14. Because defendant here is an intelligent, mature adult, his deliberate violation weighs against a conclusion that the breach should be seen as insubstantial and as unlikely to be repeated.

Accordingly, we hold that defendant’s application for an amendment of the order admitting him to bail is denied, and we further hold that the state’s motion for revocation of bail be panted and an order entered revoking defendant’s bail and remanding him to custody.

PORTER, J., and HOYT *, Circuit Judge, concur. WOLLMAN and MORGAN, JJ., concur in part and dissent in part.