State v. Stetter

513 N.W.2d 87, 1994 S.D. LEXIS 24, 1994 WL 46936

• Court: South Dakota Supreme Court
• Decided: February 16, 1994
• Docket: 17989
• Status: Published

Opinions

SABERS, Justice.

Defendant Stetter was convicted of manslaughter in the first-degree as a result of a vehicular accident while he was driving under the influence of alcohol. Stetter appeals. We affirm.

Facts

Sandra Baker, her husband Mike, and their youngest daughter Krista, exited the Pizza Hut parking lot on the evening of November 15, 1991, when a vehicle, driven by Stetter, collided with the Baker vehicle. Krista died as a result of the accident. Sandra was thrown out of the car and suffered a broken tibia, an injury to her face requiring fourteen stitches, abrasions, cuts, and bruises. Mike struck his head and face, bruising his neck arid suffering a mild concussion.

The State claims Stetter’s vehicle was being operated on the wrong side of the road and without headlights. Two samples of Stetter’s blood showed alcohol contents of .195 percent and .160 percent.

The jury found Stetter guilty of manslaughter in the first-degree, two counts of aggravated assault, driving with more than .10 percent by weight of alcohol in blood, driving while his license was revoked, failure to maintain financial responsibility, and open container in a motor vehicle.

Stetter appeals, raising these issues:

1. Whether SDCL 22-7-7 required a mandatory life sentence.

2. Whether the denial of Stetter’s motion for a mistrial due to prosecutorial misconduct during closing arguments was error.

3. Whether admission of the analysis of Stetter’s blood and urine was error.

4. Whether denial of Stetter’s proposed jury instruction was error.

5.Whether denial of Stetter’s motions for judgment of acquittal was error.

1. Improper Mandatory Life Sentence

Stetter was convicted of manslaughter in the first-degree, a Class 1 Felony. He pled guilty to being a habitual offender, admitting that on July 23, 1980, he was convicted of distribution of marijuana, a Class 6 Felony and on December 2, 1988, he was convicted of driving while under the influence of an alcoholic beverage, third-offense, a Class 6 Felony.¹ The trial court applied SDCL 22-7-7, changing the Class 1 Felony to a Class B Felony and thereby enhancing Stetter’s sentence to mandatory life imprisonment.² Stetter filed a Motion to Correct an Illegal Sentence. His motion was denied.

Stetter argues that the trial court erred in focusing solely on SDCL 22-7-7 and refusing to consider SDCL ch. 22-7 in pari materia. He claims that the trial court’s application of this enhancement statute penalized him for having only two prior felony convictions. According to Stetter, if he would have had three or more prior felonies, one or more of which was for a crime of violence, his sentence could not have been enhanced under SDCL 22-7-8 beyond the sentence for a Class 1 Felony. This would have permitted a maximum sentence of life imprisonment at the discretion of the trial court. In contrast, SDCL 22-7-7 required enhancement to mandatory life imprisonment for only two prior felonies.

The State argues that Stetter was convicted of two prior felonies, not three, and therefore only SDCL 22-7-7 is relevant and applicable. According to the State, the trial court was required to follow 22-7-7 because its terms are clear and unambiguous. SDCL 22-7-7 provides in part:

When a defendant has been convicted of one or two prior felonies under the laws of this state or any other state or the United States, in addition to the principal felony, the sentence for the principal felony shall be enhanced by changing the class of the principal felony to the next class which is more severe.

SDCL 22-7-8.1 provides:

If a defendant has been convicted of three or more felonies in addition to the principal felony and none of the prior felony convictions was for a crime of violence as defined in subdivision (9) of § 22-1-2, the sentence for the principal felony shall be enhanced by two levels. A defendant sentenced under this section is eligible for consideration for parole pursuant to § 24-15-5.

And SDCL 22-7-8 provides:

If a defendant has been convicted of three or more felonies in addition to the principal felony and one or more of the prior felony convictions was for a crime of violence as defined in subdivision (9) of § 22-1-2, the sentence for the principal felony shall be enhanced to the sentence for a Class 1 felony.

It is evident that the legislature intended to enact a comprehensive enhancement scheme. It is not evident, however, that the scheme is inconsistent. If a defendant has been convicted of one or two prior felonies, his sentence for the principal felony is enhanced one level. SDCL 22-7-7. If a defendant has been convicted of three or more prior felonies, his sentence for the principal felony is enhanced two levels. SDCL 22-7-8.1. If a defendant, however, has been convicted of three or more prior felonies, one or more of which was for a crime of violence, his sentence for the principal felony is enhanced to the sentence for a Class 1 Felony, regardless of the classification of the principal felony. SDCL 22-7-8.

Stetter was convicted of a very serious crime — a Class 1 Felony. By virtue of his two prior felony convictions, it was enhanced to a Class B Felony, which provides for mandatory life imprisonment. In view of the classification of the principal felony, this appears to be the intention of the legislature under this statutory scheme.

While the statutes may produce results which appear inconsistent under this particular fact situation, Stetter has not shown that the legislative intent was not followed.

[W]hen a statute is clear and unambiguous it is improper for courts to attempt to go behind the express terms of the provision so as to legislate that which the words of the statute do not themselves provide. See Peterson v. Heitkamp, 442 N.W.2d 219, 221 (N.D.1989); Haider v. Montgomery, 423 N.W.2d 494, 495 (N.D.1988). In other words, the “letter of a clear and unambiguous statute cannot be disregarded under the pretext of pursuing its spirit, because the legislative intent is presumed clear from the face of the statute.” Haider, 423 N.W.2d at 495. See also § 1-02-05, N.D.C.C.

Schaefer v. North Dakota Workers Comp. Bureau, 462 N.W.2d 179, 182 (N.D.1990). See also State v. Fryer, 496 N.W.2d 54, 55 (S.D.1993) (“ ‘This Court will not enlarge a statute beyond its face where the statutory terms are clear and unambiguous in meaning.’ ”). Stetter’s actions and convictions come within SDCL 22-7-7 and he has not shown otherwise.³

2. Prosecutorial Misconduct

Stetter argues that comments made by the prosecutor during closing argument constituted a prejudicial community conscience argument to the jury warranting a mistrial. During closing argument, the prosecutor stated:

He had been drinking all day long. He had a blood alcohol concentration of a .20; twice the legal limit. He didn’t function and he drove his vehicle on the wrong side of the highway; he • was speeding; he didn’t have his lights on, and that’s an act of depravity. It’s inherently dangerous to everyone for him to do that and he killed a six year old girl; he shattered the mother’s leg in several spots; he caused the father to have a concussion, and that’s an act of depravity. I ask you, ask yourself, how do you protect yourself against this type of activity? How can you protect yourself against somebody driving on a highway with their lights off—

At this time, Stetter objected and moved for a mistrial on the ground that the prosecutor had made a community conscience argument to the jury. While the trial court acknowledged that the prosecutor was “getting close to the line where you are approaching a community conscience] argument,” it denied the motion. The trial court admonished the prosecutor “to hold clear of community conscience] argument” stating that it would not hesitate to declare a mistrial if the prosecutor “gets into the area that is prohibited by law[.]” The trial court also admonished the jury “to disregard the last few statements of counsel.” See Anderson v. Johnson, 441 N.W.2d 675, 677 (S.D.1989) (“We do note that upon proper objection by Anderson the trial court admonished the jury to disregard the improvident statements. Under our settled law, we assume the jury accepted the admonition.”). No jury instruction was requested or proposed.

Under the settled law of this state, “no hard, and fast rules exist which state with certainty when prosecutorial misconduct reaches a level of prejudicial error which demands reversal of the conviction and a new trial; each ease must be decided on its own facts. Furthermore, we will not disturb the trial court’s ruling on a motion for a new trial based on misconduct of counsel unless we are convinced there has been a clear abuse of discretion.” State v. Kidd, 286 N.W.2d 120, 121-22 (S.D.1979) (citations omitted).

Community conscience arguments are improper. People v. Potra, 191 Mich.App. 503, 479 N.W.2d 707, 712 (1991) (“Civic duty arguments are generally condemned because they inject issues into the trial that are broader than a defendant’s guilt or innocence and because they encourage the jurors to suspend their own powers of judgment.”). See generally State v. Blaine, 427 N.W.2d 113 (S.D.1988) (“Arguments that invite the jurors to put themselves in the shoes of a victim are generally improper.”).⁴ And while we do not approve of the conduct of the prosecutor,⁵ we do not feel compelled to reverse the conviction in view of the strength of the State’s evidence against Stetter. “No different result is called for in this case where the evidence presented at trial in support of the prosecution similarly upholds the jury verdict.” Kidd, 286 N.W.2d at 122. Additionally, “[t]he trial judge was on the scene, had heard the arguments and had the opportunity to note whether they had any apparent effect on the jury. He apparently [did not] feel that they had and we accede to his judgment lacking any showing on the part of the defense of actual bias or prejudice.” State v. Havens, 264 N.W.2d 918, 923 (S.D.1978). Stetter has failed to show any actual prejudice or bias or a clear abuse of discretion by the trial court. Blaine, 427 N.W.2d at 117-18 (Miller, J., dissenting) (citations omitted).

3. Admissibility of Blood and Urine Tests

After arriving at the hospital, Stetter was given the Miranda warnings and the implied consent warning.⁶ After learning that this would be Stetter’s third DUI, the officer informed Stetter that he was required to give a blood sample. Stetter complied. Later, Stetter was asked to give another blood sample, as well as a urine sample. He complied. At the motions hearing, Stetter moved to suppress the results of the blood and urine tests. His motions were denied under the authority of State v. Heinrich, 449 N.W.2d 25 (S.D.1989). Stetter argues that the trial court erred in denying his motion to suppress the results of the tests.

“In making evidentiary rulings, the trial court has broad discretion. [Defendant] must show an abuse of discretion to reverse the trial court’s ruling.” Jacobson, 491 N.W.2d at 458 (citation omitted). The trial court’s findings in connection with a motion to suppress are reviewed under the clearly erroneous standard. State v. Corder, 460 N.W.2d 738, 736 (S.D.1990) (citation omitted).

SDCL 32-23-10 provides in part:

Any person who operates any vehicle in this state is considered to have given his consent to the withdrawal of blood or other bodily substance and chemical analysis of his blood, breath or other bodily substance to determine the amount of alcohol in his blood and to determine the presence of marijuana or any controlled drug or substance.

The person shall be requested by the officer to submit to the withdrawal of blood or other bodily substance for chemical analysis or chemical analysis of his breath and shall be advised by the officer that:

(1) If he refuses to submit to the withdrawal or chemical analysis, no withdrawal or chemical analysis may be required unless he has been arrested for a third, fourth or subsequent violation of § 32-23-1, constituting a felony offense under § 32-23^4 or 32 — 23—4.6[.]

“We have recognized that SDCL 32-23-10 eliminates the right of a third offense DUI suspect to refuse a blood test, under the implied consent law.” Jacobson, 491 N.W.2d at 458 (citation omitted).

Under Heinrich, and Jacobson, to enforce the implied consent law in SDCL 32-23-10, a law enforcement officer must make a preliminary determination as to whether an individual is entitled to the statutory grant of the right to refuse to submit to a blood or urine test. Id. at 459. “An officer can only do that by taking steps prior to administration of a forced blood test to confirm whether an individual has a history of DUI convictions sufficient for forfeiture of his statutory right of refusal.” Id.

Although a review of the motions hearing indicates conflicting testimony as to whether the officer knew that Stetter had two prior DUI convictions as opposed to two prior DUI arrests, the trial court entered a finding of fact that “[s]hortly after the arrest it was determined that i[t] was the Defendant’s third offense DWI in the past five years.” See Jacobson, 491 N.W.2d at 459 (remanding to the trial court for a determination of the factual question of whether the arresting officer had information prior to administration of Defendant’s blood test that the arrest was his third DUI offense). Stetter has failed to demonstrate that this finding is clearly erroneous. Therefore, under the implied consent law, Stetter had no right to refuse the blood or urine tests and they were admissible.

4. Denial of Jury Instruction

Stetter argues that the trial court erred in rejecting his proposed jury instruction. Stetter claims that, by refusing his jury instruction, the trial court failed to instruct the jury on the proper standard of conduct for a defendant to be found guilty of manslaughter in the first-degree and therefore, his motion for a new trial should have been granted.

Stetter, relying upon State v. Seidschlaw, 304 N.W.2d 102 (S.D.1981), argues that manslaughter in the first-degree “requires proof that the use of the automobile was of such a nature that death or serious bodily harm was a probable result.” Id. at 106. According to Stetter, while his proposed jury instruction defined the correct standard of conduct under Seidschlaw, the trial judge merely instructed the jury as to the elements, refusing to instruct the jury on any proper standard of conduct.

Stetter’s proposed jury instruction provided:

In order to convict defendant of Manslaughter in the 1st degree, you must find beyond a reasonable doubt that the defendant’s conduct consisted of driving behavior manifesting -willful and wanton misconduct.

Jury instructions are adequate, if, when considered as a whole, they correctly state the law and inform the jury. State v. Gillespie, 445 N.W.2d 661, 664 (S.D.1989) (citations omitted).

Jury Instruction No. 14 provided:

The elements of the offense of manslaughter in the first degree as charged in Count I-B of the Indictment, each of which the state must prove beyond a reasonable doubt, are:

1. That the defendant at the time and place alleged in the indictment, caused the death of Krista Baker.

2. That the killing by the defendant was by means of a dangerous weapon.

3. That the defendant did so without design to effect the death of Krista Baker.

Jury Instruction No. 15 provided:

The words “dangerous weapon” as used in these instructions mean: any firearm, knife or device, material or substance, whether animate or inanimate, which is calculated or designed to inflict death or serious bodily harm, or by the manner in which it is used death or serious bodily harm is a probable result. (Emphasis added).

While Seidschlaw does state that “[t]he driving behavior contemplated in SDCL 22-16-15 can be compared to “wilful and wanton misconduct,’ as defined in the guest statute cases,” 304 N.W.2d at 106 (citation omitted) (emphasis added), this language is dicta. As Stetter himself noted in his brief, Seidschlaw stands for the proposition that “the first-degree manslaughter statute requires proof that the use of the automobile was of such a nature that death or serious bodily harm was a probable result. ” Id. (emphasis added). What Stetter failed to note was that Jury Instruction No. 15 accurately instructed the jury on the Seidschlaw standard of conduct that he argues for in his brief. The fact that the standard of care was included in the definition of “dangerous weapon” is not shown to be error. Stetter has failed to demonstrate that the jury instructions, as a whole, faded to correctly state the law and inform the jury. Gillespie, 445 N.W.2d at 664.

5. Motions for Judgment of Acquittal

Stetter moved for Judgment of Acquittal on all counts of the Indictment throughout the trial. The motions were denied. Stetter argues that the trial court erred in denying his motions because there was insufficient evidence to support his convictions for manslaughter in the first-degree and aggravated assault.

Our standard of review of a denial of a motion for judgment of acquittal is whether the State made out a prima facie case from which the jury could reasonably find the defendant guilty. State v. Blakey, 332 N.W.2d 729, 731 (S.D.1983). “[T]his Court will not resolve conflicts in the evidence, pass on the credibility of the witnesses, or weigh the evidence. These functions lie solely within the province of the jury as ultimate trier of fact. It has long been established by this Court that a jury verdict shall only be set aside where the evidence and the reasonable inferences to be drawn from the evidence do not sustain a rational theory of guilt.” State v. Burtzlaff, 493 N.W.2d 1, 4-5 (S.D.1992) (citations omitted). See also Blakey, 332 N.W.2d at 731. We have reviewed the evidence and conclude that Stetter has failed to demonstrate that the evidence does not sustain a rational theory of guilt.

Affirmed.

HENDERSON, J., concurs with a writing. MILLER, C.J., concurs specially. WUEST and AMUNDSON, JJ., dissent.

1 . Stetter further admitted that on December 2, 1988, he was convicted of driving with .10 percent or more by weight of alcohol in his blood and that on August 10, 1991, he was convicted of driving while under the influence of alcohol.

2 . SDCL 22-6-1 provides in part:

[FJelonies are divided into the following eight classes which are distinguished from each other by the respective maximum penalties here-

inafter set forth which are authorized upon conviction:

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(2) Class B felony: life imprisonment in the state penitentiary. A lesser sentence may not be given for a Class B felony;

(3) Class 1 felony: life imprisonment in the state penitentiary. In addition, a fine of twenty-five thousand dollars may be imposed!.]

3 . We note, as did the trial court, that under SDCL 22-6-1(3), the trial court was statutorily authorized to sentence Stetter to life imprisonment even without the enhancement provision of SDCL 22-7-7.

4 . In Blaine, we reversed the trial court and ordered a new trial because of prosecutorial misconduct which included inferring that unless the defendant was convicted, either the jurors or a small child would suffer death or serious injury. Blaine, 427 N.W.2d at 116.

5 . We reiterate our discussion in Blaine of the duty and obligation of a prosecutor.

The prosecutor has an overriding obligation, which is shared with the court, to see that the defendant receives a fair trial. The burden of ensuring that the defendant receives a fair trial weighs as heavily upon the prosecutor as it does on defense counsel, the court, and the jury.

The prosecutor must refrain from injecting unfounded or prejudicial innuendo into the proceedings, and not appeal to the prejudices of the jury.

427 N.W.2d at 115 (citations omitted).

6 ."Under SDCL 32-23-10, the predicates for admission of the results of a forced blood test are simple. ‘Once an individual has been convicted twice for a violation of SDCL 32-23-1 (DUI), a trooper is only required to inform an arrested person of the warnings outlined in SDCL 32-23-10, and the result of a compulsory blood alcohol test is admissible.'" State v. Jacobson, 491 N.W.2d 455, 458 (S.D.1992) (quoting State v. Heinrich, 449 N.W.2d 25, 27 (S.D.1989)).