State v. Winckler

Sometime during the night of May 1, and the early morning hours of May 2,1975, the Coast-to-Coast store in Wagner, South Dakota was burglarized. Several weapons, including rifles and shotguns, were taken from the store, along with some ammunition. At approximately 3:00 a. m. on May 2, the seven defendants, who were armed, broke into the Yankton Sioux Tribe Pork Plant [hereinafter Pork Plant]; they occupied the Pork Plant until 8:30 p. m. that same evening when the seven finally surrendered to authorities.

The authorities had surrounded the Pork Plant at approximately 7:00 a. m. on May 2. During the day several shots, coming from the Pork Plant, were fired at them. After the surrender, the weapons taken from the Coast-to-Coast store were found in the Pork Plant; no other persons were found on the premises.

Defendants were charged with burglary in violation of SDCL 22-32-9, grand larceny in violation of SDCL 22-37-1, and three counts of assault with a dangerous weapon, without intent to kill, in violation of SDCL 22-18-11. The assault charges were dismissed by the trial court prior to trial for want of jurisdiction. Defendants were tried conjointly on the burglary and larceny charges and a jury found them guilty of both charges. Defendants appeal from the *360 judgment of conviction. The state appeals from the order dismissing the three counts of assault with a dangerous weapon. We deal with the state’s appeal first.

A state’s sovereignty over its own territory is plenary and yields only in matters that fall within the constitutional scope of exclusive federal jurisdiction. State v. Smith, 26 Or.App. 49, 552 P.2d 261 (1976). It is well established that crimes committed by Indian people within Indian Country are matters of exclusive federal jurisdiction and state courts therefore have no power over those crimes. Application of DeMarrias, 77 S.D. 294, 91 N.W.2d 480 (1958). 1 See also United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886); White v. Schneckloth, 56 Wash.2d 173, 351 P.2d 919 (1960). While this court has ruled that the Yankton Indian Reservation was disestablished, State v. Williamson, 87 S.D. 512, 211 N.W.2d 182 (1973), trust land is still Indian Country as defined by 18 U.S.C. § 1151. 2 DeCoteau v. District County Court, 87 S.D. 555, 211 N.W.2d 843 (1973), affirmed 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975). It is undisputed that the seven defendants are Indian people; it is also admitted that the Pork Plant is on trust land. Because the alleged shooting originated from trust land, the trial court concluded that any alleged assault occurred in Indian Country and jurisdiction properly lay with the federal government.

However, the fact that an offense originated outside the state’s jurisdiction does not necessarily deprive the state of jurisdiction. A state can exercise jurisdiction to punish any criminal offense committed in whole or in part within that state. 3 People v. Kirby, 42 Mich.App. 97, 201 N.W.2d 355 (1972). State jurisdiction properly lies when acts done outside its jurisdiction are intended to produce and do produce a detrimental effect within that jurisdiction. Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). The law holds that a crime is committed where the criminal act takes effect. Simpson v. State, 92 Ga. 41, 17 S.E. 984 (1893). And this holds true even though the accused is never actually present within the state’s jurisdiction. State v. Brundage, 53 S.D. 257, 220 N.W. 473 (1928). One who puts in force an agency for the commission of a crime is deemed to have accompanied the agency to the point where it takes effect. The state is then justified in punishing the cause of the harm as if he were in fact present at the effect should it ever succeed in getting him within its power. Strassheim v. Daily, 221 U.S. 280, 31 S.Ct. 558, 55 L.Ed. 735 (1911); Rivard v. United States, 375 F.2d 882 (5th Cir.1967); People v. Anonymous, 52 Misc.2d 772, 276 N.Y.S.2d 717 (1965); Simpson v. State, supra. Admittedly the doctrine of constructive presence is a legal fiction, but it is a fiction necessary to the practical administration of criminal justice.

“[T]here may be a constructive presence in a State, distinct from a personal presence, by which a crime may be consummated. And if it may be consummated it *361 may be punished by an exercise of jurisdiction; that is, a person committing it may be brought to trial and condemnation. And this must be so if we would fit the laws and their administration to the acts of men and not be led away by mere ‘bookish theorick.’ ” Hyde v. United States, 225 U.S. 347, 362-63, 32 S.Ct. 793, 800, 56 L.Ed. 1114 (1912).

South Dakota deals with this problem by statute. SDCL 23-9-10 provides:

“When the commission of a public offense commenced without this state is consummated within its boundaries, the defendant is liable to punishment therefor in this state, and though he were out of the state at the time of the commission of the offense charged, if he consummated it in this state through the intervention of an innocent or guilty agent or by any other means proceeding directly from himself; and in such case the jurisdiction is in the county in which the offense is consummated.”

The question facing us is whether the crime alleged — assault with a dangerous weapon, without intent to kill — is consummated within the jurisdiction of the state. 4 If the crime is consummated when the trigger is pulled, jurisdiction properly lies with the federal government under 18 U.S.C. § 1153 [assault with a dangerous weapon]. However, if the assault continues beyond the act of firing the weapon, the state may properly exercise jurisdiction.

Defendants were charged in the information as follows: “[Defendants] did commit the public offense of Assault With A Dangerous Weapon Without Intent To Kill (SDCL 22-18-11) in that they * * * committed an assault * * * by shooting * * * with a firearm with intent to injure * * *, but without intent to kill * * *.” Simple assault is an essential criminal element in this allegation. 5 See State v. Grimes, S.D., 237 N.W.2d 900 (1976); People v. Odell, 1 Dak. 197, 46 N.W. 601 (1875). Assault is defined as “any willful and unlawful attempt or offer, with force or violence, to do a corporal hurt to another.” SDCL 22-18-1. Breaking down this definition, we see that an assault may be committed by one of two methods. It may either be an attempt to commit a battery or an offer to commit a battery.

As an offer to commit a battery the assault is completed when the object of the offer is put in fear of the immediate bodily injury under circumstances which would produce fear in the mind of an ordinary man. State v. Mier, 74 S.D. 515, 55 N.W.2d 74 (1952); State v. Wiley, 52 S.D. 110, 216 N.W. 866 (1927). Fear of immediate bodily injury need not be shown in instances where the assault consists of an attempted battery. All that is required under the latter definition is some overt act toward commission of the battery. 1 Wharton’s Criminal Law and Procedure, § 332, at 678 (1957). But see State v. Archer, 22 S.D. 137, 115 N.W. 1075 (1908). We need not decide which definition of assault should apply under these facts, however, because we find that the state would have jurisdiction in either instance.

Viewing the alleged assault as an attempted battery, we find that the crime would be consummated in state jurisdiction. That is the place where the object of the *362 attempted battery is found. In this vein we find the reasoning of the court in Simpson v. State, 92 Ga. 41, 17 S.E. 984 (1893) to be persuasive. There the accused was convicted of shooting at another. At the time of the shooting, the accused was standing in South Carolina and the prosecutor was in a boat situated in waters under the jurisdiction of Georgia. The court held that Georgia had jurisdiction over the offense. “The law deems that a crime is committed in the place where the criminal act takes effect. * * * [Wjhere one puts in force an agency for the commission of crime, he, in legal contemplation, accompanies the same to the point where it becomes effectual.” 17 S.E. at 985. The court concluded that the crime became effectual where the intended victim was located, the place where the bullets hit. The crime is complete when the criminal agent, the bullets, cease to move. That the bullet failed to achieve the desired effect is of no consequence; it nevertheless had an effect in state jurisdiction.

Viewing the alleged assault as an offer to commit a battery, it may not be denied that any fear of bodily harm necessarily occurred in state jurisdiction. That is where the intended victim experienced apprehension because the bullets were landing around him. The crime is consummated where the intended victim is put in fear of immediate bodily harm. State v. Mier, supra.

The defendants are charged with placing in force a criminal agency and are deemed to accompany that agency to the point where it becomes effectual. Simpson v. State, supra. Under either definition, the assault alleged in the information was consummated in state jurisdiction. Therefore, we hold that the State of South Dakota could properly exercise jurisdiction over the alleged violation of SDCL 22-18-11. The order of the trial court dismissing the three counts of assault with a dangerous weapon, without intent to kill, is accordingly reversed and this portion of the matter is remanded for further proceedings not inconsistent with this opinion.

We turn now to the questions raised by the defendants on appeal from their conviction of burglary and grand larceny. It is urged on behalf of four of the defendants that the circuit court had no jurisdiction to try them for these offenses. 6 They argue that their only guilt can be as aiders and abettors. Because these defendants never left trust land, 6 ® they contend that jurisdiction over the aiding and abetting in the state crimes properly lies with the federal government.

Assuming that defendants’ contention that they are guilty only as aiders and abettors is supported by the evidence, an assumption that the state disputes, we find that the circuit court had jurisdiction even though they never physically left Indian Country.

“Only a constructive presence is necessary to sustain a charge against a defendant as an aider or abettor * * * in the commission of a criminal offense. * * * The law is well settled to this effect everywhere. One may be entirely out of the jurisdiction of the court, in another state, in person, and still be constructively present in the jurisdiction where the criminal transaction takes place.” Watson v. State, 158 Tenn. 212, 12 S.W.2d 375, 377 (1928).

Accord State v. Brundage, supra; SDCL 23-9-10. See also Ex Parte Morgan, 86 Cal.App.2d 217, 194 P.2d 800 (1948); Newton v. People, 96 Colo. 246, 41 P.2d 300 (1935); State v. Owen, 119 Or. 15, 244 P. 516 (1926).

One who aids and abets is guilty as a principal. State v. Bonrud, S.D., 246 N.W.2d 790 (1976). He is deemed to accompany the principal to the place where the criminal offense occurred. State v. Brund *363 age, supra; Watson v. State, supra; SDCL 23-9-10. Here, although four defendants never physically left Indian Country, the law holds they were constructively present at the scene of the crime. Therefore, the circuit court had jurisdiction to try them for the offenses alleged in the information.

Defendants next contend that the court was without jurisdiction over them because they were illegally arrested. The record shows that the arrest was made by Captain Bob Long of the Bureau of Indian Affairs. Defendants assert that Captain Long’s arrest authority in Indian Country stems from the 25 Code of Federal Regulations § 11.15. 7 They argue that under this authorization Indian police are not authorized to arrest for state crimes. Alternatively, they claim that state police have no authority to make arrests in Indian Country for state crimes. Although it is not clear from the record exactly on what charge defendants were taken into custody, we will assume that defendants’ contentions are correct and that the arrest was therefore illegal. This presents the court with two problems stemming from the illegality of the arrest.

The first contention is that the weapons seized at the Pork Plant, admittedly seized without a warrant, were taken incident to an unlawful arrest. Therefore, defendants conclude that the weapons should be suppressed. See State v. Glick, 87 S.D. 1, 201 N.W.2d 867 (1972); State v. Thunder Horse, 85 S.D. 76, 177 N.W.2d 19 (1970). However, defendants have no standing to challenge the validity of the search. They were mere trespassers on the premises of a building owned by the Yank-ton Sioux Tribe. Trespassers are without standing to contest the validity of a search of another’s premises. State v. Merrill, 82 S.D. 609, 152 N.W.2d 349 (1967). See also State v. Eppley, 282 N.C. 249, 192 S.E.2d 441 (1972); State v. Coty, Me., 229 A.2d 205, 33 A.L.R.3d 1 (1967). That rule is not altered by the fact that defendants as members of the Yankton Sioux Tribe were also shareholders in the operation of the Pork Plant. The record shows that defendants had no permission to be on the premises. Any standing the corporation may have to object to the warrantless search is not vicariously extended to individual shareholders. Lagow v. United States, 159 F.2d 245 (5th Cir. 1947). As a result defendants are trespassers without any expectation of privacy as to evidence found on the premises of another. United States v. Culver, 224 F.Supp. 419 (D.Md.1963). The trial court did not err in refusing to suppress the evidence.

Because the arrest was illegal, defendants next contend that they were illegally brought within the jurisdiction of the State of South Dakota. They conclude that charges should therefore be dismissed. However, we find the rule to be otherwise.

“When a person accused of a crime is found within the territorial jurisdiction wherein he is so charged and is held under process legally issued from a court of that jurisdiction, neither the jurisdiction of the court nor the right to put him on trial for the offense charged is impaired by the manner in which he was brought from another jurisdiction, whether by kidnapping, illegal arrest, abduction, or irregular extradition proceedings.” 4 Wharton’s Criminal Procedures § 1484, at 39-40 (1957).

Accord, Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Ker v. State of Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886); Waits v. McGowan, 516 F.2d 203 (3d Cir. 1975); State v. Johnson, 277 Minn. 230, 152 N.W.2d 768 (1967); Crouse v. State, Wyo., 384 P.2d 321 (1963). Although the rule is not without its critics, United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974), we have adopted it in this state and are not now persuaded to deviate from it. See State v. Thunder *364 shield, S.D., 242 N.W.2d 159 (1976). It is no defense in a criminal prosecution that defendants were illegally brought before the court. The trial court did not err in refusing to dismiss the charges.

Defendants also seek reversal because Judge Kern refused to recuse himself from presiding over the arraignment; affidavits of prejudice had been filed against the judge immediately prior to commencement of the arraignment. Although another judge was present in the court room who could have presided at the arraignment, Judge Kern refused to step down, justifying his refusal by holding that the affidavits were not timely. The recusal provision in effect at the time the affidavits were filed was SDCL 23-28-8: 8

“If the defendant in a criminal action prosecuted in the circuit court by indictment or information shall make affidavit that he cannot have an impartial trial by reason of the bias or prejudice of the presiding judge of the circuit court where the indictment or information is pending, the judge of such court must call some other judge of the circuit court to preside at said trial * * * and do any other act with reference thereto as though he were presiding judge of said circuit court. If said affidavit shall be filed at least twenty days before the term of court at which said case is for trial, the clerk shall forthwith transmit a copy thereof to the presiding judge of the Supreme Court, who shall forthwith designate the judge to try said case.”

Defendants contend that the judge was required to step down by virtue of this statute because he loses all jurisdiction to legally proceed in the criminal action. They rely on State v. Finder, 12 S.D. 423, 81 N.W. 959 (1900) to that end. The difficulty with defendants’ reliance on SDCL 23-28-8 and the cases interpreting its precursors 9 is that the statute has no relation to proceedings under consideration. The statute is aimed at insuring that defendants receive a fair and impartial trial. The fear is that the jurors may be swayed by the bias or prejudice of the judge asked to step down. However, an arraignment contains none of those trappings. 10 We find that SDCL 23-28-8 applied only to the actual trial of the criminal case and did not require the judge to step down in this pretrial proceeding. 11 See State v. Ferguson, 48 S.D. 346, 204 N.W. 652 (1925).

Defendants next claim that it was error to refuse to grant them separate trials. Granting or denial of a motion for separate trial made pursuant to SDCL 23-42-4 is a matter that lies within the sound discretion of the trial court. We will not disturb that exercise of discretion absent a showing of abuse. State v. Bonrud, S.D., 246 N.W.2d 790 (1976). Defendants are required to make a particularized showing as to any possible prejudice resulting from a refusal to sever trials. State v. Strickland, 87 S.D. 522, 211 N.W.2d 575 (1973).

Defendants attempt to demonstrate prejudice by claiming that exculpatory testimony of eodefendants would have been available to them had a severance been granted. In reaching our conclusion on whether the deprivation of an opportunity to use the exculpatory testimony of a codefendant amounts to prejudice resulting in denial of a fair trial, we find the guidelines established by the court in Byrd v. Wainwright, 428 F.2d 1017 (5th Cir. 1970) most helpful.

1) “There is no duty to sever merely because potentially exculpatory testimo *365 ny of a codefendant exists. The defendant-movant must desire to use it.” 428 F.2d at 1020.

2) “It must be shown that the testimony would be exculpatory in effect. * * The movant must make a clear show- ' ing of what the codefendant would testify to.” 428 F.2d at 1020 (citations omitted).

3) “A third inquiry may be into the likelihood that the codefendant will be willing to testify if the defendant is tried separately. * * * The court is not required to sever where the possibility of the codefendant’s testifying is merely colorable or there is no showing that it is anything more than a gleam of possibility in the defendant’s eye.” 428 F.2d at 1021-22.

The record reflects defendants’ desire to use the potentially exculpatory testimony of their codefendants. • Assuming that the stated record constitutes a “clear showing” that such testimony would be exculpatory in effect, defendants have wholly failed to show that any of the codefendants would be likely to testify should severance be granted. 12

“ ‘The mere assertion that a eodefendant might be willing to exculpate a defendant is purely speculative. The absence of substantial proof that a codefendant would be willing to testify for the defendant at a later date is, in itself, grounds for denying a motion for severance.’ * * * ” State v. Erickson, N.D., 231 N.W.2d 758, 763 (1976) (citations omitted).

Accord United States v. Wilson, 500 F.2d 715 (5th Cir. 1974).

Defendants Weddell and Mike Weston assign error to the court’s refusal to grant them separate trials because their appointed counsel were members of the same law firm. This state of affairs was brought to the court’s attention at the arraignment conducted on July 18, 1975. At that time the judge asked both defendants if they had been advised of the potential conflict. They indicated that they were so advised and that they wished to have counsel continue to represent them. It was not until the state had presented its case that the defendants asserted that there was a conflict which prejudiced their respective defenses.

For purposes of this discussion we treat the question of two appointed counsel from the same firm representing codefendants the same as we would representation of codefendant by a single attorney. To sustain their burden in seeking reversal, defendants must show prejudice attributable to an actual conflict of interest arising in this case which impaired the effective assistance of appointed counsel. State v. Goode, 84 S.D. 369, 171 N.W.2d 733 (1969). There has been no showing of an actual conflict arising from the dual representation in this case. What defendants really complain of is the problem they face with regard to using the testimony of codefend-ants. This problem exists regardless of who represented the various defendants. The simple truth is that defendants chose not to testify or present a defense and refused to give their attorneys permission to seek a severance. There is no evidence *366 that they were forced to this course because two attorneys from the same law firm represented codefendants. The trial court did not err in refusing to grant severance.

Defendants moved for a directed verdict at the end of the state’s case. The trial court allowed the question of their guilt to go to the jury based on the inference or presumption that is said to arise when one is found in possession of recently stolen property. Defendants do not dispute the inference; they contend it has no application here because the state has failed to establish the fact of possession upon which the inference is based.

“It has long been the rule in this state that possession of recently stolen property is, in itself, a circumstance from which guilt may be presumed. * * * The fact of such possession alone, if unexplained by the facts and circumstances brought out at trial, is a sufficient circumstance upon which to rest a verdict of guilty, if it convinces the jury of the defendant’s guilt beyond a reasonable doubt.” State v. Larkin, 87 S.D. 61, 202 N.W.2d 862, 865 (1972) (citations omitted).

Defendants argue that guilt beyond a reasonable doubt cannot be established where the inference of guilt is itself based upon an inference, that of possession. Because no one actually saw defendants in possession of the stolen weapons and because there were no identifiable fingerprints on those weapons, defendants conclude that possession can only be inferred and the trial judge should have kept the question of guilt from the jury; basing an inference upon an inference allows the jury to speculate as to defendants’ guilt.

The burden is upon the state to establish every element of the crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). This includes proof of possession. “The possession that will activate the inference of guilt may be established by circumstantial evidence.” United States v. Johnson, 140 U.S.App.D.C. 54, 433 F.2d 1160, 1165 (1970). Admittedly this allows the jury to infer possession; however, not all double inferences are constitutionally infirm. We find the inference is of sufficient strength to avoid the spectre of speculation through the double inference. The evidence of possession is that the defendants broke into the Pork Plant, all carrying weapons. The number of weapons stolen corresponds approximately to the number of people the evidence showed in the Plant. They were the only persons found in the Pork Plant when they surrendered to authorities. The stolen weapons were immediately thereafter found in the Pork Plant which was held by defendants throughout one whole day. Although circumstantial, the evidence of possession is of comparable persuasiveness to any direct evidence short of defendants being caught with the weapons in their hands. Davis v. State, Alaska, 499 P.2d 1025 (1972), reversed on other grounds, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). It was of sufficient strength to permit the jury to find possession by the defendants beyond a reasonable doubt.

Defendants insist that others had opportunity to bring those weapons into the Pork Plant. The evidence shows their takeover was in the early morning hours of May 2. The Plant was not sealed off until approximately 7:00 a. m.; defendants contend therefore that equal access by others prevents their possession from being exclusive. We are not persuaded by arguments of mythical intervenors. Proof of possession is a circumstance which should be left to the jury. State v. Lewis, Iowa, 242 N.W.2d 711 (1976). Although there is no showing that defendants had exclusive possession between the time of the burglary until the Pork Plant was sealed off, we find that this is simply a factor going to the weight of the evidence. State v. Ponthier, 92 Idaho 704, 449 P.2d 364 (1969). The circumstances justify a jury conclusion that possession was exclusive. The trial court did not err in refusing to direct the verdict.

We find the evidence sufficient to, support the verdict.

*367 “The rule that circumstantial evidence must be of such a character as to be inconsistent with any reasonable hypothesis of innocence is one for the guidance of the jury in considering circumstantial evidence in a criminal case. * * * It does not mean that defendants may escape conviction merely by presenting a set of facts for their defense which is not inconsistent with the state’s evidence.” State v. Shank, S.D., 226 N.W.2d 384 (1975).

The circumstantial evidence if believed by the jury is sufficient to sustain a finding of guilt beyond a reasonable doubt.

Defendants next urged that a variety of remarks made throughout the course of the trial were so prejudicial that a reversal was warranted based on any of the allegedly prejudicial remarks. First is the reference made to the possibility of an alibi defense. The prosecutor in his opening statement told the jury that “all the defendants have filed notice they intend to rely upon alibi witnesses.” An objection immediately followed that this was completely irrelevant and improper as an opening statement. The trial court agreed and instructed the jury to completely disregard the remarks concerning any alibi. No request for mistrial was made. Any error arising from this comment was corrected by the trial court’s instruction, to which the defendants neither objected nor requested further supplementation. State v. Gayton, 83 S.D. 141, 155 N.W.2d 919 (1968); see also People v. Tunstill, 54 Mich.App. 254, 220 N.W.2d 703 (1974).

In his opening statement, the prosecutor alluded to statements made by one of the defendants to the effect that the defendants were the only ones in the building. This statement had not been supplied to the defense during pretrial discovery, and there had been no showing of “volun-tariness” or compliance with Miranda. The statement was objected to and the trial court admonished the jury that the prosecutor’s statements were not evidence and ordered them to disregard his remarks. Out of the hear