State v. Brim
| Decision Date | 29 October 1980 |
| Docket Number | No. 12889,12889 |
| Citation | 298 N.W.2d 73 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Thomas Wayne BRIM, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Margaret Crew, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.
E. James Hood of Richards, Hood & Brady, P. C., Spearfish, for defendant and appellant; Thomas E. Brady of Richards, Hood & Brady, P. C., Spearfish, on brief.
Thomas Wayne Brim, appellant, was found guilty by a jury on June 19, 1979, of possession of a controlled substance and possession of a controlled substance with intent to distribute. Appellant was sentenced to serve five years in the state penitentiary on each count and fined $3,000 on each count. Appellant appeals the entire sentence urging the errors discussed below. We affirm.
At approximately 11:00 p. m. on August 11, 1977, appellant and four or five other individuals were observed on the Main Street of Sturgis, South Dakota, by Charles Vollmer, an off-duty deputy sheriff from Hughes County. Deputy Vollmer followed appellant and these individuals until they stopped near a motorcycle which was parked in the street. The motorcycle was a red Honda Gold Wing GL1000 with a black fairing. Appellant was observed by Deputy Vollmer to place his hands down behind the fairing where Deputy Vollmer could not see them. Immediately thereafter, an exchange occurred between appellant and one of his companions, although Vollmer was unable to tell exactly what was changing hands. A Sturgis on-duty reserve policeman, Stan Day, arrived in the area at this time. Officer Day also observed the aforementioned exchange. Appellant was subsequently placed in a Sturgis patrol car by the officers and taken to the Sturgis Police Department. There, appellant was arrested and incarcerated in the Meade County jail at 11:46 p. m.
Prior to placing appellant in the patrol car, Officer Day observed appellant trying to hand an unidentified object to another individual. Appellant replaced the object in his pocket and fidgeted with it as he was being transported to the police department. Officer Day saw appellant drop something on the floor of the patrol car but could not tell what it was. After appellant was taken to the Sturgis Police Station, the aforementioned patrol car was called back into service and did not return to the station until approximately midnight. At this time Officer Day found a cylinder-shaped vial containing a white substance on the back seat of the patrol car.
Wayne O'Connor, an officer with the Sturgis Police Reserve, remained with the aforementioned motorcycle until Officer Day returned at approximately midnight. The motorcycle was then towed to the police station. Sturgis attorney John H. Shepard was at the police station waiting for a friend when the motorcycle was brought in. At the November 14, 1977 hearing to suppress the evidence found in the motorcycle, Attorney Shepard testified that he heard Officer Day make the following statement when the motorcycle was brought into the police station: "We found enough stuff in that bike to get the whole city high." Attorney Shepard testified at Ronald Munoz, a lieutenant with the Sturgis Police Department who was present when the motorcycle was brought into the police station, testified at the suppression hearing that he had heard the statement: "There was enough crap in there to get the whole city of Sturgis high." Lieutenant Munoz was not able to identify who had made the statement.
the suppression hearing and at trial that, while standing next to the motorcycle at the station, he observed the lid ajar on the motorcycle's storage compartment. This storage compartment is built into the gas tank. Attorney Shepard further testified that one of the fairing pockets on the motorcycle was open and that a bandana was hanging out of it.
Appellant testified that after posting bond on August 12, 1977, he went to the Sturgis Fire Station where his motorcycle was being kept and observed uniformed police officers "going through" his motorcycle. At this time the motorcycle was being kept in the "tack room," which is a storage area for large contraband. Appellant testified he also saw three plain-clothes individuals around the motorcycle with articles from the motorcycle's fairing and side pockets laying upon the seat. These observations occurred around 11:00 a. m., according to appellant. A friend of appellant's, Dave Kissel, testified at trial that he also observed people around the motorcycle on two separate occasions during the morning of August 12, 1977. A search warrant was not issued for the motorcycle until the afternoon of August 12, 1977. Pursuant to this warrant, large quantities of controlled substances were removed from the motorcycle during the afternoon of August 12, 1977.
At the suppression hearing, Officer Day testified that he did not, nor did he observe anyone else, search the compartments of the motorcycle prior to the issuance of the search warrant. Lieutenant Munoz testified at the suppression hearing that during the late night early morning hours of August 11, 1977, when he was on duty at the police station, he saw no one attempt to open any of the compartments on the motorcycle. Lieutenant Munoz had possession of the only key to the tack room until 6:00 a. m., August 12, 1977, when it was turned over to Meade County Sheriff John Egger. Sheriff Egger kept the key with him until the search warrant was issued. He testified at the suppression hearing that he had no knowledge of any search of the motorcycle before the search warrant was issued. Meade County Deputy Sheriff Joe Plambeck testified at the suppression hearing that when the search pursuant to the warrant was conducted, the compartments of the motorcycle had to be unlocked. Deputy Plambeck was present during the search of the motorcycle. Meade County Deputy Sheriff Terry Rose also testified at the suppression hearing that the compartments on the motorcycle were intact when the search of the motorcycle commenced.
On December 20, 1978, the court below denied appellant's motion to suppress evidence consisting of controlled substances removed from the motorcycle on August 12, 1977. The court further ruled that appellant was the owner of the motorcycle and that at no time were any warrantless searches made of said motorcycle.
Did the trial court err in finding that no illegal searches were made of appellant's motorcycle? We hold that it did not.
Was it prejudicial error for drugs, which were eventually denied admittance into evidence, to be placed on the state's attorney's table in full view of the jury during a portion of the trial? We hold that it was not.
Were the statutory provisions under which appellant was convicted in effect on the date of the offense? We hold that they were.
Were the trial court's verdict forms and instructions confusing to the jury and was it necessary to define certain words which reflected elements of the offense? We hold that they were not confusing and it was not necessary to define certain words with specificity.
Was it prejudicial error when the state failed to produce appellant's motorcycle pursuant to an order by the trial court requiring production? Under the facts, we hold that it was not.
Was appellant denied his Sixth Amendment right to confront the witnesses against him because of the failure of a subpoenaed witness to testify at trial when a stipulation existed permitting testimony to be read into the record? We hold that he was not.
Appellant contends that an illegal warrantless search was made of his motorcycle which resulted in the unlawful seizure of controlled substances. Subsequent to an evidentiary suppression hearing, the trial court factually found that, aside from the search made pursuant to the warrant, no other searches of the motorcycle occurred. "A trial court's findings of fact will not be set aside unless they are clearly erroneous, are against a clear preponderance of the evidence, or are not supported by credible evidence." State v. Spoonemore, 287 N.W.2d 109, 110 (S.D.1980). SDCL 15-6-52(a) states that "(f)indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Under the clearly erroneous standard, this Court's function is not to decide factual issues de novo, but rather to determine whether we are definitely convinced that a mistake has been committed. Cunningham v. Yankton Clinic, P.A., 262 N.W.2d 508 (S.D.1978).
Under this standard, the finding by the trial court is not clearly erroneous. There was ample evidence at the suppression hearing for the trial court to base its decision that no illegal search was made of appellant's motorcycle. We are not blind to the fact that a sharp conflict exists between testimony of the state's witnesses and appellant's witnesses. However, the trial court's exposure to the conduct, temperament, and demeanor of all the witnesses involved increases the inherent reliability of its decision. "It is emphatically not an appropriate function of this Court in a criminal case to 'resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence.' " State v. Minkel, 89 S.D. 144, 147, 230 N.W.2d 233, 235 (1975); citing State v. Snell, 177 Neb. 396, 398, 128 N.W.2d 823, 826 (1964). The trial court simply chose to believe the witnesses testifying for the state and not those testifying for appellant. Upon a review of the record, we cannot say that a finding of fact resulting from that belief was clearly erroneous.
Appellant maintains that it was prejudicial error for the trial court to allow several state's exhibits to be placed on the state's counsel table, in full view of the jury, before they were...
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