State Of South Dakota v. Harris
| Decision Date | 22 September 2010 |
| Docket Number | No. 25461.,25461. |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Ernest HARRIS, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
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Marty J. Jackley, Attorney General, Andrew J. Knecht, Assistant Attorney General Pierre, SD, Attorneys for plaintiff and appellee.
Mark Kadi, Minnehaha County Office of the Public Advocate, Sioux Falls, SD, Attorney for defendant and appellant.
[¶ 1.] Ernest Harris was convicted of two counts of Distribution of a Controlled Substance in violation of SDCL § 22-42-2. He appeals, arguing that the trial court abused its discretion by admitting audio recordings of the two controlled buys of crack cocaine into evidence and by providing the jury with an aiding and abetting instruction. We affirm the trial court.
[¶ 2.] In June 2008, a confidential informant working with the Sioux Falls Area Drug Task Force arranged to make a controlled buy of crack cocaine from Harris. Detective Thomas Schmitz of the Sioux Falls Police Department was the case agent for the operation and worked directly with the informant. Before the controlled buy, Detective Schmitz equipped the informant with a recording device. On the recording, Detective Schmitz stated the date and time, identified the informant, set forth the operation's purpose, and discussed safety procedures with the informant. Detective Schmitz also gave the informant $120 in bills with pre-recorded serial numbers to buy crack cocaine from Harris. The informant verbally acknowledged receipt of the money.
[¶ 3.] The informant then called Harris to arrange a meeting. The informant and Harris arranged to meet at Harris's room at the Cloud 9 Motel. The informant drove to the motel while Detective Schmitz and other Task Force members followed. Because the informant initially planned to meet Harris at a home near downtown Sioux Falls, she stopped along her route to wait for a surveillance unit to relocate to the Cloud 9 Motel. Upon arriving at the motel, Detective Schmitz and the surveillance unit parked in the vicinity. Additionally, a Task Force member was equipped to listen to and record the conversation in the motel room, but no member of the Task Force was able to see what occurred in the motel room.
[¶ 4.] When the informant arrived at the motel, Harris greeted her and invited her into his motel room. A few minutes later, Harris's daughter, Tara, arrived. The informant handed Harris $120. Harris kept twenty dollars and handed the $100 bill to Tara. According to the informant, Tara gave Harris some crack cocaine wrapped in a napkin, which he then handed to the informant. With the transaction complete, the informant asked Harris permission to return later to make another purchase and left to meet Detective Schmitz at a pre-determined location. At the meeting, the informant gave Detective Schmitz the crack cocaine that she purchased from Harris and related what occurred in the motel room. 1
[¶ 5.] Based on the success of the first controlled buy, Detective Schmitz directed the informant to arrange a second purchase of crack cocaine from Harris. This second transaction was also recorded. He gave the informant another $120 in pre-recorded bills. The informant called Harris, and again they agreed to meet at the Cloud 9 Motel. But when the informant arrived at the motel this second time, Harris informed her that they would meet Tara at a separate location. Harris and the informant drove separate vehicles to the corner of 12th Street and Prairie Avenue near downtown Sioux Falls. The informant met Tara at that location, and the informant drove around the neighborhood while she and Tara exchanged money for crack cocaine. After the informant left Tara with Harris, the informant met Detective Schmitz at a pre-determined location. Again, the informant gave Detective Schmitz the crack cocaine that she purchased and discussed the details of the purchase with him.
[¶ 6.] In October 2008, a Minnehaha County grand jury indicted Harris on two counts of Distribution of a Controlled Substance in violation of SDCL § 22-42-2. The State later filed a Part II Information, alleging that Harris was a habitual offender. The case proceeded to trial in April 2009. The informant and Detective Schmitz both testified at trial, and the State introduced recordings of the controlled buys into evidence during Detective Schmitz's testimony. Additionally, the trial court, over Harris's objection, provided the jury with an aiding and abetting instruction. The jury returned a verdict of guilty on both counts. Harris appeals.
[¶ 7.] 1. Whether the trial court abused its discretion by admitting recordings of the controlled buys of crack cocaine into evidence.
[¶ 8.] At trial, Harris objected to the introduction of the recordings of the controlled buys into evidence on three grounds: lack of foundation as to identification, hearsay, and violation of his Sixth Amendment right to confrontation. The trial court overruled Harris's objections and admitted the recordings. A trial court's evidentiary rulings are presumed to be correct and are reviewed under the abuse of discretion standard. State v. Boston, 2003 S.D. 71, ¶ 14, 665 N.W.2d 100, 105 (citing State v. Goodroad, 1997 S.D. 46, ¶ 9, 563 N.W.2d 126, 129). If error is found, it must be prejudicial before this Court will overturn the trial court's evidentiary ruling. Id. (citing State ex rel. Dep't of Transp. v. Spiry, 1996 S.D. 14, ¶ 11, 543 N.W.2d 260, 263).
[¶ 9.] Harris first argues that the State did not properly identify the voice on the recordings as Harris. Authentication or identification is a “condition precedent to admissibility” and “is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” SDCL § 19-17-1(a) (Rule 901(a)). Because the issue in this case is the identification of Harris's voice on the recordings, we turn to SDCL § 19-17-1(5) (Rule 901(b)(5)). That statute provides that “[i]dentification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker[ ]” is a proper method of authentication or identification. SDCL § 19-17-1(5) (Rule 901(b)(5)).
[¶ 10.] The State offered the recordings of the controlled buys into evidence during Detective Schmitz's testimony:
Because Detective Schmitz identified the voice on the recordings as Harris, the State laid proper foundation for the recordings. 2 Thus, the trial court did not abuse its discretion by overruling Harris's foundation objection.
[¶ 11.] Harris next argues that the statements on the recordings constitute inadmissible hearsay. Essentially, the recordings of the controlled buys have three parts. Each recording begins with a “preamble,” in which Detective Schmitz states the date and time, identifies the informant, sets forth the operation's purpose, and discusses safety procedures with the informant. During the “preamble,” the informant also verbally acknowledges receipt of the pre-recorded bills. The bulk of each recording is conversations between Harris, Tara, and the informant occurring before, during, and after the controlled buy. Finally, at the end of each recording, the informant meets with Detective Schmitz to discuss the details of the controlled buy. Because the recordings contain statements from several individuals offered at trial for different purposes, we separately analyze each individual's statements on the recordings.
[¶ 12.] We first turn to Harris's recorded statements. “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” SDCL § 19-16-1(3) (Rule 801(c)). Hearsay is generally inadmissible. SDCL § 19-16-4 (Rule 802). But “[a] statement is not hearsay if it is offered against a party and is [ ] his own statement, in either his individual or a representative capacity[.]” SDCL § 19-16-3(1) (Rule 801(d)(2)(A)). Harris's statements on the recordings are admissions by a party opponent under SDCL § 19-16-3(1) (Rule 801(d)(2)(A)) and therefore are not inadmissible hearsay.
[¶ 13.] We turn then to the recorded statements Tara and the informant made during the controlled buys. Harris's argument that these statements constitute inadmissible hearsay overlooks this Court's well-established “verbal acts” rule:
Not all out-of-court statements are hearsay. The hearsay rule only prohibits admission of evidence of out-of-court statements offered to prove the truth of the out-of-court declaration.... Utterances made contemporaneously with or immediately preparatory to an act which is material to the litigation that tends to explain, illustrate, or show the object or motive of an equivocal act and which are offered irrespective of the truth of any assertion they contain, are not hearsay and are admissible.
State v. Charger, 2000 S.D. 70, ¶ 26, 611 N.W.2d 221, 226-27 (quoting State v. Kelley, 953 S.W.2d 73, 85 (Mo.App.1997) (citing State v. Copeland, 928 S.W.2d 828, 848 (Mo.1996))). For example:
Testimony concerning telephone calls made to or received at a particular location has been held admissible frequently in prosecutions for bookmaking and other gambling activities, where such testimony is offered not to establish the truth of what was said...
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