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State v. Draskovich

Supreme Court of South Dakota

November 21, 2017

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
EDWARD JAMES DRASKOVICH, Defendant and Appellant.

          Argued October 3, 2017

         APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE SUSAN M. SABERS Judge

          MARTY J. JACKLEY Attorney General JOHN M. STROHMAN Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

          BEAU J. BLOUIN of Minnehaha County Public Defender's Office Sioux Falls, South Dakota Attorneys for defendant and appellant.

          OPINION

          ZINTER, Justice

         [¶1.] Edward Draskovich was convicted of threatening a judicial officer and disorderly conduct as a result of statements he made in the Minnehaha County Courthouse. The circuit court ruled the statements were "true threats" rather than speech protected by the First Amendment. We affirm.

         Facts and Procedural History

         [¶2.] The facts are largely undisputed. Draskovich was convicted in magistrate court of driving under the influence of alcohol, and his pro se appeal to the circuit court was dismissed after he failed to file a brief. On March 7, 2016, he went to the Minnehaha County Courthouse to inquire about a work permit and to collect the bond he had posted. He entered the clerk of courts office and spoke about his bond with accounting clerk April Allenstein. Allenstein had seen Draskovich in the office on prior occasions, and she testified that he was usually "yelling or speaking loudly" because he was often angry about his case. She described him as "angry and frustrated" when he visited on March 7. Allenstein informed Draskovich that she could not return his bond because the order to do so was not yet signed by the judge. Draskovich then went to another counter to ask about a work permit to drive an automobile. Allenstein testified that she did not "think he got a good answer down there either."

         [¶3.] After receiving these unfavorable responses, Draskovich returned to Allenstein and proclaimed: "Now I see why people shoot up courthouses." Draskovich then stepped toward the door, opened it, and said: "Not that I would." Allenstein was "startled and alarmed." She said Draskovich had never made a statement like that before. As soon as Draskovich left the office, Allenstein informed security of the incident.

         [¶4.] Draskovich then went upstairs to the court-administration office to obtain other documents. He spoke with Brittan Anderson. Anderson said Draskovich was "agitated." When she informed Draskovich that he would have to get copies of his documents from the clerk of courts office, Draskovich began to complain that Judge Mark Salter would not give Draskovich his work permit.[1] Anderson attempted to diffuse his anger by informing him that it was not Judge Salter's fault because Draskovich could not receive a work permit by law until he completed treatment. Draskovich then proclaimed, "Well, that deserves 180 pounds of lead between the eyes, " and he left the office. Anderson informed the court administrator of the incident, and security arrived to take her statement. At trial, Anderson testified that she was shocked and surprised by Draskovich's statement. She believed that the statement was directed at Judge Salter. She testified that "no one has ever threatened a judge like that before" and that she had "never heard an actual threat."

         [¶5.] The following day, Detective Adam Zishka called Draskovich to discuss the incidents. Draskovich was still angry and frustrated. With respect to the statement made to Allenstein, Draskovich yelled:

And you wonder why people f***ing come in to these buildings and f***ing go postal and start shooting people . . . because their f***ing dealing with this kind of bull****! That's not f***ing threatening anybody, that's stating the f***ing facts of the world!

Draskovich also conceded that he had made the statement to Anderson, but clarified that what he actually said was: "There's a good cure for that [inability to issue a work permit] and it's 140 grains of lead."

         [¶6.] Draskovich was charged with threatening a judicial officer based on his statement in the court administrator's office. See SDCL 22-11-15. He was also charged with disorderly conduct based on his ...


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