State v. Abourezk

• Decision Date: 02 December 1983
• Docket Number: No. 13882,13882
• Citation: 339 N.W.2d 780
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. Michael ABOUREZK, Defendant and Appellee.
• Court: South Dakota Supreme Court

Page 780

339 N.W.2d 780

STATE of South Dakota, Plaintiff and Appellant, v. Michael ABOUREZK, Defendant and Appellee.

No. 13882.

Supreme Court of South Dakota.

Argued April 20, 1983.

Decided Nov. 2, 1983.

Rehearing Granted Dec. 2, 1983.

Arthur L. Rusch, Clay County State's Atty., Vermillion, for plaintiff and appellant; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

Charles Rick Johnson of Johnson, Eklund & Davis, Gregory, for defendant and appellee.

HENDERSON, Justice (on reassignment).

ACTION

This is an intermediate appeal stemming from appellee Abourezk's arrest for first-degree possession of marijuana and conspiracy to possess marijuana. During a pretrial hearing, the State attempted to introduce a custodial statement of Gaylen Holy Rock, an unavailable witness. The trial court refused the statement and the State appeals by leave of this Court. We reverse and remand.

FACTS

In the summer of 1981, the Clay County Sheriff's Office was informed of a marijuana field being cultivated near Vermillion, South Dakota, situs of our State University. This information also revealed the description of a vehicle seen near the field, namely a blue Ford pickup with a spotlight on the roof. An investigation by the sheriff's office discovered cultivated marijuana. On August 4, 1981, the day that Holy Rock gave his statement, a deputy sheriff investigated the area. He spotted the blue Ford pickup with a spotlight on the roof and an older model red GMC pickup. He pulled in behind these two vehicles in the area of the field and followed the vehicles towards Vermillion. ¹ This particular deputy sheriff (Kephart) called for assistance and Deputy Sheriff Millage responded. As the four vehicles neared Vermillion, Deputy Sheriff Millage stopped the blue pickup with the spotlight on the roof and found the driver to be appellee Abourezk. Gaylen Holy Rock, appellee Abourezk's brother-in-law, was driving the older red GMC pickup and it was determined that the license plates on this old pickup had been switched from a 1977 Pontiac Grand Prix, which was owned by appellee Abourezk. It was likewise determined that appellee Abourezk owned the old red pickup.

Holy Rock was charged with possession of marijuana. In Holy Rock's prosecution, he testified under oath at length in a proceeding to suppress his statement. He reaffirmed that he had not lied to the officer when he gave his earlier statement. In the suppression hearing, the trial court found beyond a reasonable doubt that Holy Rock was an individual committed to telling the truth and that Holy Rock had opportunities to shade the truth but did not. The trial court further found beyond a reasonable doubt that Holy Rock was informed of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that Holy Rock was asked if he understood them, to which Holy Rock replied that he did. After a pause as to whether he wished to waive his rights and talk about the matter, Holy Rock knowingly, intelligently, and voluntarily gave a written statement. This statement, among other facts, states in part: "Mike Abzorecek [sic] furnishes transportation to the patch" and "Mike Aborezek [sic] contacted Galen [sic] today to go out and weed the patch." These statements obviously tie in with the officer's earlier observations that day.

ISSUE

IN A CRIMINAL ACTION, WHEN AN UNAVAILABLE WITNESS' STATEMENT FITS WITHIN SDCL 19-16-32, AN EXCEPTION TO THE HEARSAY RULE, IS ADDITIONAL EVIDENCE OF THE STATEMENT'S RELIABILITY NECESSARY TO COMPORT WITH THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT AND IF SO, WAS SUCH EVIDENCE PRESENT IN THE CASE AT BAR?

DECISION

Holy Rock, now a fugitive from justice, made his custodial statement under circumstances which indicate that Holy Rock did not misrepresent appellee's complicity in marijuana activities and the cultivation of a marijuana field near our State University.

Hearsay is defined in SDCL 19-16-1(3) as: " '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 19-16-4 provides: "Hearsay is not admissible except as provided by law or by chapters 19-9 to 19-18, inclusive, or by other rules prescribed by the Supreme Court." SDCL 19-16-32, an exception to the hearsay rule, reads: ²

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true, is not excluded by Sec. 19-16-4 if the declarant is unavailable as a witness. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Since cross-examination is not available for a custodial SDCL 19-16-32 declaration, in order to comport with the Confrontation Clause ³ and thus pass Constitutional muster, "indicia of reliability" must be shown. Guidelines for these indicia of reliability are set forth in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), ⁴ and are, in summary: (1) the declaration contains assertions of past fact; (2) the declarant had presumed knowledge of the identity and role of the participants in the crime; (3) the declarant's recollection was not faulty; and (4) the declarant was not misrepresenting appellant's involvement in the crime. It is the fourth test that is at issue herein.

Holy Rock's declarations contained assertions of past facts. Indeed, they were facts which transpired that very day. Obviously, Holy Rock had more than presumed knowledge of identity and the role of the participants in the crime; he was an actual participant with appellee Abourezk. Simply put, Holy Rock's declarations of the participation of him and appellee Abourezk were not excludable hearsay. The expression of the facts which had just transpired could not possibly have come from a stale or faulty recollection.

Holy Rock was a brother-in-law of appellee Abourezk and was closely associated with him. Therefore, it was less likely that Holy Rock should misrepresent the truth of the day or purposely lie to incriminate appellee Abourezk. In Holy Rock's statement, he admitted "helping out with the raising of the marijuana plants" for approximately $6.00 per hour. Appellee Abourezk's wife (Holy Rock's sister) buys Holy Rock's groceries. Holy Rock indicated in his statement: "The food is the pay rather than cash." Holy Rock also indicated that the patch is south of a farm appellee Abourezk once lived on. It is highly improbable that Holy Rock would make false statements to implicate his own sister.

Appellee Abourezk, immediately after Holy Rock was taken to the sheriff's office, sought and obtained legal counsel for Holy Rock. Unknown to Holy Rock, this counselor had called the sheriff's office to talk to Holy Rock. The deputy apparently had Holy Rock answer the telephone call but legal counsel had hung up. Shortly thereafter, this counselor arrived at the sheriff's office. Either by reading the record, or by argument before this Court, there is no doubt that appellee Abourezk arranged to have this counselor contact and represent Holy Rock forthwith.

All of the circumstances surrounding Holy Rock's statement were delved into in great detail at the suppression hearing in Holy Rock's case. This indicates collaboration and concert on the day in question, and when taken with all of the other circumstances, makes it highly improbable that Holy Rock would have falsely incriminated appellee Abourezk at the sheriff's office for they had just been together, and were brothers-in-law. In Holy Rock's statement, he depicted himself as an employee of appellee Abourezk. The ownership of the vehicles bears out such a relationship, for Holy Rock was driving appellee Abourezk's vehicle which reflected license plates belonging to another vehicle owned by appellee.

Therefore, under the four criteria of Dutton, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213, Holy Rock's statement was reliable and was admissible under SDCL 19-16-32. It was error to exclude it as it was an admission against penal interest and there is no doubt that Holy Rock is unavailable under SDCL 19-16-29, he being a fugitive from justice.

Reversed and remanded.

FOSHEIM, C.J., and WOLLMAN, J., concur.

DUNN and MORGAN, JJ., dissent.

DUNN, Justice (dissenting).

This is the first time within my recollection that this court has permitted the admission into evidence of an unsworn statement of a so-called accomplice in an effort to convict a defendant. This is particularly distasteful when the "accomplice" is a young Indian lad who has been scared half to death by the police officers in an effort to find some evidence against Abourezk. Holy Rock's fear is shown by his testimony that the deputy told him he was up to his neck in trouble and had better start digging his way out. Of even more importance is Holy Rock's statement at the suppression hearing that "he's [Abourezk] got nothing to do with it." Since even the majority opinion recognizes that Holy Rock was "an individual committed to telling the truth," Holy Rock's statement at the hearing, which contradicts the written statement, should cause the reliability of the unsworn written statement to be seriously questioned.

A trip to the Indian reservation would produce Holy Rock. Instead, armed with this unsworn statement implicating the defendant, the law officers brand the lad as a "fugitive from justice" without any real effort to locate him. While a few calls may have been made, the State has not instituted any formal legal proceedings with the Oglala Tribe or its courts to apprehend, locate, or extradite Holy Rock. The State...