State v. Ager, 15669

• Decision Date: 31 August 1987
• Docket Number: No. 15669,15669
• Citation: 416 N.W.2d 871
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Mac Earl AGER, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 871

416 N.W.2d 871

STATE of South Dakota, Plaintiff and Appellee, v. Mac Earl AGER, Defendant and Appellant.

No. 15669.

Supreme Court of South Dakota.

Considered on Briefs Aug. 31, 1987.

Decided Dec. 16, 1987.

Clair B. Ledbetter, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on brief.

Cynthia A. Howard, Deadwood, for defendant and appellant.

MORGAN, Justice.

Defendant, Mac Earl Ager (Ager), appeals from his conviction of attempted first-degree murder. Ager was sentenced to twenty-five years in the South Dakota Penitentiary. We affirm.

On May 10, 1984, Wayne Mayer (Mayer) was shot twice with a 30-30 caliber rifle at approximately 5:15 a.m. At the grand jury hearing and at the trial, Mayer testified that Ager threatened to "lay out in the weeds and blow me away" if he ever determined that Mayer was the person responsible for the arson to a piece of his equipment back in 1977. Two witnesses testified at trial that Mayer had told them about Ager's threat prior to the shooting incident. A cigarette butt was recovered from the scene which proved to have been smoked by a person with O Secretor blood. Ager voluntarily supplied a saliva sample to the Sheriff's Department, which tested as being an O Secretor blood type. State also requested the trial court issue a search warrant for withdrawal of a blood sample from Ager for purposes of testing for Secretor type. The warrant was granted over Ager's resistance and the testing positively verified that Ager's blood type was O Secretor.

Ager first contends that the prior consistent statements, testified to by Lorrie Olson (Olson) and Scott Turo (Turo), were erroneously admitted into evidence because they were vague (the time the statements were made was not definite) and indefinite (not consistent with Mayer's in-court testimony). Prior consistent statements are admissible into evidence under SDCL 19-16-2, which provides in pertinent part:

A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is

....

(2) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive[.]

This is a verbatim adoption of Federal Rules of Evidence, 801(d)(1)(B). The test for admission of prior consistent statements was first laid out in State v. Thompson, 379 N.W.2d 295 (S.D.1985), as adopted from United States v. Quinto, 582 F.2d 224 (2d Cir.1978). This three-part test was applied in State v. Carlson, 392 N.W.2d 89 (S.D.1986):

'Before a prior consistent statement will qualify as nonhearsay under the rule, the proponent must demonstrate three things. First, he must show the prior consistent statement is consistent with the witness' in-court testimony. Second, he must establish that the statement is being used to rebut an express or implied charge against the witness of recent fabrication or improper motive or influence. Finally, the proponent must demonstrate that the prior consistent statement was made prior to the time the proposed motive to falsify arose.'

Id. at 91. As we have stated previously, the rationale for excluding prior consistent statements is that they are irrelevant unless the witness' credibility has been attacked. Thompson, supra.

Initially, we note that on appeal Ager does not deny that in his defense at trial he attempted to impeach the witnesses by implying recent fabrication. Rather, Ager rests his claim only on the first and third prongs of the test (consistency and timing). Consistency of prior consistent statements does not require a verbatim recitation of the witness' testimony. What the test does require is that the prior consistent statement be compatible with, and not contradictory to, the witness' testimony. ¹ 1] Upon an examination of the record, we cannot say that either statement by witnesses Olson and Turo was contradictory to that of the witness, and both statements were placed in time prior to the date of the shooting incident. ² Therefore, the trial court was well within its discretion in admitting this evidence.

Ager next contends that the State should not have been allowed to rehabilitate Mayer with his grand jury testimony because it was not given at a time predating any reason to fabricate. Judge Weinstein, in his treatise on federal rules, points out:

Substantive use under Rule 801(d)(1)(B) is limited to situations where high probative value is most likely.... Evidence which counteracts the suggestion that the witness change his story in response to some threat or scheme or bribe by showing that his story was the same prior to the external pressure is highly relevant in shedding light on the witness' credibility. Evidence which merely shows that the witness said the same thing on other occasions when his motive was the same does not have much probative force 'for the simple reason that mere repetition does not imply veracity.'

4 J. Weinstein & M. Burger, Weinstein's Evidence 801-150-151.

We adopted this view in State v. Carlson, supra. Although the trial court was in error in allowing Mayer to read from his grand jury testimony because it was given after the shooting incident, leading to the conclusion that Mayer may then have had a motive to fabricate, we hold that such error was harmless. The weapon and the cigarette butt were both tied to Ager and there were two other witnesses who testified to the prior consistent statement. The worst that can be said of the grand jury testimony is that it was cumulative.

Ager's final complaint is that the trial court erred in granting the search warrant for a blood sample. The argument is that the intrusion into Ager's privacy is unreasonable because there was no need for the evidence it would supply. That the State already had a saliva sample, which indicated that Ager was an O Secretor, cannot be denied.

Under the Fourth Amendment to the United States Constitution and Article VI, Sec. 11 of the South Dakota Constitution, individuals have a right to be secure in their persons against unreasonable searches and seizures. The language of the South Dakota Constitution tracks almost verbatim that of the Fourth Amendment.

The question of the propriety of bodily intrusions in the light of the Fourth Amendment was considered by the United States Supreme Court in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). The Court there stated that "the Fourth Amendment's proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner." Id. 86 S.Ct. at 1834. The Court summarized the issue as whether the test was justified and whether the procedures employed were reasonable. The answer was yes, the test was justified (in that case without a warrant) in a DWI arrest and, yes, the extraction of blood samples was reasonable because it was a highly effective means of determining the degree to which a person is under the influence of alcohol.

In Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1984), a case involving a surgical...