State v. Busack

• Decision Date: 11 January 1995
• Docket Number: No. 18705,18705
• Citation: 532 N.W.2d 413
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Charles Henry BUSACK, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 413

532 N.W.2d 413

STATE of South Dakota, Plaintiff and Appellee, v. Charles Henry BUSACK, Defendant and Appellant.

No. 18705.

Supreme Court of South Dakota.

Considered on Briefs Jan. 11, 1995.

Decided May 31, 1995.

Mark Barnett, Atty. Gen., Ann C. Meyer, Asst. Atty. Gen., Pierre, for appellee.

Thomas M. Keller, Sioux Falls, for appellant.

MILLER, Chief Justice.

Charles Henry Busack appeals his conviction on one count of possession of a controlled substance and one count of distribution of a controlled substance. We affirm.

FACTS

In an indictment dated August 16, 1993, the grand jury of Brule County charged Busack with one count of distribution of a controlled substance (methamphetamine) and one count of possession of a controlled substance (methamphetamine). In a later indictment dated November 9, 1993, the same grand jury charged Busack with two additional counts, each alleging possession of a controlled substance (cocaine). State filed a motion for joinder of the indictments. Busack objected to joinder on the grounds that it would essentially allow otherwise inadmissible prior bad acts testimony. The trial court granted State's motion for joinder.

At trial, Darrell Ellis testified that he had illegally purchased methamphetamine with his own money and with money he had received from another man, John Price. Ellis claimed that Price gave him money to help pay for the purchase of methamphetamine. According to Ellis, on the evening of January 2, 1993, Ellis and Price met with Busack in Busack's van, which was parked outside of the D & N One-Stop in Chamberlain, South Dakota. Ellis testified that while in the van he and Busack combined a portion of Ellis' methamphetamine with methamphetamine Busack had in his possession. Ellis stated that Busack cut up the drug and divided it into lines, and that it was snorted by him, Busack and Price.

Price also testified about snorting the methamphetamine with Busack and Ellis on January 2, 1993, in Busack's van. He denied, however, contributing any money toward the purchase of the drug. He stated that the drug had already been laid into lines when he entered the van, and did not otherwise indicate who had supplied the drug.

Joe Hutmacher, a Lyman County Deputy Sheriff, testified that he noted an unusual amount of traffic in the early morning hours of January 3, 1993. (Lyman County is located immediately across the Missouri River from Chamberlain). Hutmacher stated that he observed Busack's brown van parked at the D & N One-Stop shortly after one o'clock that morning. He also stated that he saw Ellis and others driving around the vicinity of the D & N One-Stop about that same time. He observed Ellis stop and visit with Busack and others. He then saw Ellis drive his automobile to a truck stop, where Busack and others had parked their vehicles. Hutmacher was suspicious and informed two state troopers, who were parked in the area, that Busack and the others should be watched. Hutmacher then observed Busack drive his van out of the truck stop parking lot, followed by several other vehicles. The vehicles proceeded east on Interstate 90, followed by the troopers.

State Trooper John Koenig testified that he observed the three or four vehicles leave the truck stop together that morning. According to the trooper, he stopped Ellis because his license plate light was out. During a search of Ellis' person, Koenig discovered what was later proven to be .05 grams of methamphetamine and .04 ounces of marijuana. A state chemist testified that an analysis of a sample of Ellis' urine, taken on January 3, 1993, revealed moderate levels of the drug methamphetamine.

Two witnesses testified as to earlier cocaine use with Busack. Steve Weber testified that he had sold drugs in the Chamberlain area. He stated he had offered Busack cocaine on one occasion in the summer of 1992. According to Weber, Busack immediately snorted this cocaine with Weber in Busack's vehicle in the parking lot of the D & N One-Stop. Also, Ronald Larsen testified that he and Busack snorted cocaine in Larsen's car in the parking lot of the D & N One-Stop on one occasion in November, 1991.

Busack denied taking drugs with Ellis or Price on January 2, 1993. He also denied using cocaine with Weber or Larsen. On cross-examination, Busack's attorney elicited information indicating that Ellis, Price, Weber, and Larsen were all convicted of or facing drug charges and hoped to receive fewer charges or lighter sentences by testifying in Busack's case.

The jury found Busack guilty of possession and distribution of methamphetamine, but not guilty on the two counts of possession of cocaine. Busack appeals.

ISSUE I

WHETHER STATE'S WITNESSES AT TRIAL WERE ACCOMPLICES WHO REQUIRED CORROBORATING TESTIMONY, SO THAT THE TRIAL COURT ERRED IN REFUSING ACCOMPLICE INSTRUCTIONS OR IN DENYING DEFENDANT'S MOTION TO DISMISS?

Busack contends that Ellis and Price were accomplices to his alleged crimes. He argues that under SDCL 23A-22-8, as accomplices, evidence corroborating their testimony was required to establish a conviction, and that such corroboration was lacking. He also contends that the trial court erred in refusing to instruct the jury on the definition of accomplice and on the requirement for corroboration of accomplice testimony. In the alternative, Busack argues that the trial court should have dismissed the charges against him due to the absence of evidence corroborating accomplice testimony.

SDCL 23A-22-8 provides: "A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence which tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof."

Whether an individual is an accomplice may be a question of law for the court or a question of fact for the jury, depending on the state of the evidence. State v. Lingwall, 398 N.W.2d 745, 747 (S.D.1986). If the facts as to a witness' alleged participation in the crime are disputed or susceptible to different inferences, the question is one of fact for the jury; otherwise, it is a question of law. See id. at 747. Here, Ellis testified that he combined methamphetamine in his possession with methamphetamine from Busack, and that he, Busack and Price then snorted the drug. Likewise, Price testified to snorting methamphetamine with Busack and Ellis. For purposes of establishing that Ellis and Price were accomplices, Busack does not dispute their testimony or draw different inferences from it. Consequently, the question of whether Ellis and Price were accomplices to Busack was a question of law for the court.

As to the distribution charge, Price and Ellis clearly are not accomplices under settled South Dakota law. " 'An accomplice is one who is liable to prosecution for the identical offense charged against the defendant on trial. To render one an accomplice he must in some manner knowingly and with criminal intent participate, associate or concur with another in the commission of a crime.' " State v. Fox, 313 N.W.2d 38, 40 (S.D.1981) (quoting State v. Johnson, 81 S.D. 600, 606, 139 N.W.2d 232, 236 (1965) (emphasis supplied)). Busack was charged with distributing methamphetamine to Price and Ellis. Neither of these witnesses could be charged with distributing to themselves, therefore they were not accomplices to these acts. See State v. Rufener, 401 N.W.2d 740, 743 (S.D.1987) (holding that witness was not an accomplice in distributing marijuana to himself). Indeed, under facts demonstrating more cooperative activity than is here presented, we have held that purchasers of illegal drugs are not accomplices to the crime of distributing drugs. Id.; State v. Byrum, 399 N.W.2d 334, 336 (S.D.1987); Fox, 313 N.W.2d at 40. Here, rather than purchasing the drug, Ellis and Price claimed to have received methamphetamine from Busack free of charge. There is no legal or policy basis for differentiating between donees and purchasers in this circumstance. Therefore, by accepting the proffered drug from Busack, Ellis and Price did not become accomplices in Busack's alleged crime of distribution of methamphetamine.

Similarly, Ellis and Price were not accomplices to Busack's crime of possession. The independent misconduct of Ellis and Price in sharing and ingesting methamphetamine with Busack does not amount to the kind of participation inherent in the term "accomplice." See Gray v. State, 585 P.2d 357, 359 (Okla.Crim.App.1978). The mere fact that these witnesses engaged in similar misconduct is not enough to render them accomplices. Fox, 313 N.W.2d at 40 (citing Gray, 585 P.2d at 359) ("A witness is not an accomplice to a defendant simply because his distinct acts happen to constitute a like offense.").

In deciding a witness' accomplice status, cases from other jurisdictions have emphasized whether the alleged accomplice became involved before or after the defendant gained possession of the controlled substance and whether the alleged accomplice's possession can be considered separate and distinct. In State v. Godsey, 202 Mont. 100, 656 P.2d 811 (1982), a police officer arrested the defendant after the officer observed a baggie of what later turned out to be marijuana in the front seat of defendant's unoccupied automobile. The defendant denied ownership or control of the marijuana. The defendant was charged with possession of a dangerous drug and sale of a dangerous drug. At trial, testimony by a prosecution witness supported the inference that the marijuana belonged to the defendant. The witness testified that he had noticed the marijuana in the defendant's vehicle, defendant observed his interest, and defendant told him he could "roll a joint" if he so desired. The witness did so. On appeal, defendant argued that the witness was an accomplice and his testimony required corroboration. The Montana Supreme Court ruled that the...