APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT MOODY COUNTY, SOUTH DAKOTA HONORABLE TIM D. TUCKER Judge.
The opinion of the court was delivered by: Konenkamp, Justice
CONSIDERED ON BRIEFS ON OCTOBER 5, 2009
[¶1.] Defendant was arrested for simple assault and jailed. Thereafter, he was held for 18 days without a judicial determination of probable cause, in violation of South Dakota law and the United States Constitution. Defendant moved to dismiss. The circuit court denied his motion, but gave him a presumption at trial that his evidence of self defense, which the State declined to preserve, did exist and would have been beneficial to him. Defendant was found guilty of simple assault. On appeal, we reverse and remand.
[¶2.] Defendant, Steven Carl Larson, was arrested in Moody County on July 24, 2008, and charged with simple assault in violation of SDCL 22-18-1(1), simple assault in violation of SDCL 22-18-1(2), and disorderly conduct in violation of SDCL 22-18-35(1). He was alleged to have assaulted Linette Rainwater in her home on July 24, 2008. Brion Kimball, the Chief of Police for Coleman, South Dakota, investigated the incident. Officer Kimball interviewed Rainwater at her home and took photographs of her injuries. Rainwater told Officer Kimball that defendant came to her home around 8:00 a.m. She and defendant began drinking. Later in the morning they went out to get more alcohol. On returning to Rainwater's house, the two argued. Rainwater could not remember why the argument started. She later testified that defendant came at her while she was sitting on the couch. She tried to keep him off by kicking at him. Defendant grabbed her by the throat and threw her around the room. He struck her on her forehead and face with his fist.
Afterwards, defendant left Rainwater's home. She received eight stitches above her right eye. She also had marks on her neck and a black eye.
[¶3.] Officer Kimball went to defendant's residence. He asked defendant about the argument with Rainwater. Defendant initially denied everything, but then acknowledged that something had occurred. He claimed that Rainwater attacked him as he was trying to leave, jumping on his back. He merely threw her off of him, he said. Defendant tried to show Officer Kimball his injuries, which included a bite mark, redness on his arm, and scratches. Officer Kimball arrested defendant. Defendant asked that his injuries be photographed. Officer Kimball did not photograph defendant's injuries, later testifying that he was not able to.
[¶4.] Officer Kimball prepared a narrative of the investigation, dated July 24, 2008. A "Uniform Complaint/Summons" ticket was issued charging defendant with assault. No arrest warrant was sought or issued. Defendant was transported to the Moody County Sheriff's Office. After being booked, defendant was taken to the Minnehaha County Jail in Sioux Falls. There, defendant again requested that his injuries be documented, specifically asking that photographs be taken. None were taken. Defendant was told to sign up for sick call. He signed up, but received no response to his request. He then made written requests that his injuries be documented. The first, dated July 31, 2008, stated, "Please! I'm on hold from Moody Co. I need picture taken of bite mark/bruise incurred during alleged assault. Need A.S.A.P. before evidence disappears! Thank you." This request was answered on August 1, 2008, with, "Contact your attorney for any evidentiary question or request you may have."
[¶5.] On August 3, 2008, Defendant, a military veteran, submitted another inmate request form, stating, "I have also been deprived of my heart, P.T.S.D. (post traumatic stress disorder) meds, as well as for my hiatal hernia. I have to sick call twice to no avail. Please! I have been incarcerated for 11 days now and I still have never been arraigned, therefore I do not have an attorney to contact. I am 100% permanently and totally disabled. I do not have any money for a surety bond. Contact Moody Co. please and ask them for a PR Bond on my behalf. I have no other recourse open to me. Also, I was never given my rights!" This request was answered on August 4, 2008, with, "You are a Moody County prisoner your bond is $1,000 cash/surety. The medical staff is aware and signed you up for sick call."
[¶6.] Defendant submitted a grievance form, stating, "Moody County needs to be made aware of my inmate request as of 8-4-08. I do not have an attorney because I have been given no arraignment. If you refuse to contact Moody Co. on my behalf, then Minnehaha Co. will also be named in the upcoming lawsuit on violating my constitutional civil rights!" No response was given to this request.
[¶7.] Defendant remained in jail for 18 days. He was provided a form to request court-appointed counsel on August 13, 2008. He first appeared in court on August 18, 2008, and was appointed counsel. After being arraigned, defendant pleaded not guilty. He moved to dismiss the case, alleging that the State deprived him of due process, violated SDCL 23A-4-1, and prejudiced his defense when it failed to timely arraign him and document his injuries. At a hearing on November 18, 2008, defense counsel asked the circuit court to dismiss the charges "on grounds that the State's handling of [defendant] following his arrest violated his rights to due process in several different ways." The motion was denied. But the court ruled that defendant would receive a "presumption at trial that the evidence which the State failed to preserve, if available, would have been favorable to the defendant."
[¶8.] Defendant waived his right to a jury trial, and, in a bench trial, the circuit court found defendant guilty of simple assault under SDCL 22-18-1(2), and acquitted him of the remaining charges. Defendant was sentenced to 60 days in jail with all but 18 days suspended, for which he received credit for time served. Defendant appeals asserting several issues, which we consolidate: whether the circuit court should "have dismissed the action on federal and state constitutional due process grounds" and for violation of SDCL 23A-4-1, which requires that arrested persons be brought before a committing magistrate without unreasonable delay.*fn1 We review de novo alleged constitutional violations. State v. Ball, 2004 SD 9, ¶¶18-19, 675 NW2d 192, 198-99 (citations omitted).
[¶9.] In 1991, the United States Supreme Court declared that individuals arrested without a warrant must have a judicial probable cause determination within 48 hours after the arrest unless a bona fide emergency or other extraordinary circumstance exists. County of Riverside v. ...