State v. Charger

• Decision Date: 31 May 2000
• Docket Number: No. 21149.,21149.
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Leon L. CHARGER, Defendant and Appellant,
• Court: South Dakota Supreme Court

611 N.W.2d 221

2000 SD 70

STATE of South Dakota, Plaintiff and Appellee, v. Leon L. CHARGER, Defendant and Appellant,

No. 21149.

Supreme Court of South Dakota.

Considered on Briefs April 24, 2000.

Decided May 31, 2000.

Mark Barnett, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, South Dakota, for plaintiff and appellee.

Timothy J. Rensch, Rapid City, for defendant and appellant.

GILBERTSON, Justice

[¶ 1.] Defendant Leon Charger (Charger) appeals his conviction for witness tampering. We affirm.

FACTS AND PROCEDURE

[¶ 2.] In July of 1998 Charger was charged with sexual contact with Jacqueline Swimmer's (Swimmer) two daughters. Swimmer testified as a witness against Charger in the first criminal trial in February 1999, which resulted in a hung jury. Subsequently, Swimmer was subpoenaed as a witness to testify against Charger a second time during the May 25 and 26, 1999 retrial proceedings. Charger was acquitted by the jury in this second trial. It was during the interim between these two trials that Charger was charged with tampering with a witness, in violation of SDCL 22-11-19(2).

[¶ 3.] On May 7, 1999, Charger met with his cellmate, Leon Norman (Norman), and instructed him to deliver or relay a note to Swimmer. Norman was scheduled to be released later that day. Charger offered Norman five dollars to deliver the message. Charger completed a cash-out request from his jail account, indicating as his reason that a "cousin" of his needed "gas to get home" from jail. Norman is not Charger's cousin. Charger wrote what he believed to be Swimmer's telephone number and a message on a piece of paper for Norman to read to Swimmer.

[¶ 4.] Norman went to the house of an acquaintance, Larry Welder, where he made a telephone call, utilizing the phone number Charger had given him. He reached a woman he thought was Swimmer. Swimmer did not have a telephone, so she frequently used the phone of her sister-in-law, good friend and neighbor, Jacalyn Hagans (Hagans), to receive messages from callers. Thus, the phone number Charger had given Norman was actually Hagans'. When Hagans answered the phone, Norman asked to speak "to Jackie," and when Hagans answered "this is Jackie," Norman stated "I have a message from Leon."

[¶ 5.] Hagans testified that during the phone call, Norman stated:

I have a message from Leon and I said okay. And he said that the State has a file from Behavior Management. And that if you testify in court you'll be arrested. He said that the prosecutor is not a friend of yours, he is a friend of Leon's. He said if you even try to contact the prosecutor, you'll be arrested. If you show up in court, all I have to do is say your name and you'll be arrested. He said that he's protected under the Shield Act, and that meant that any crime that's not pled in one year you can't be prosecuted for it even if it's a sexual abuse. Then I asked him if this was a threat. And he said yeah that's what it sounds like, but I'm having a hard time reading his writing.

Hagans asked the caller to identify himself, and Norman "said he was a friend of Leon's," and that "we were in jail together, I just got out." Hagans testified she immediately concluded that the caller was referring to Leon Charger, and his message was mistakenly being relayed to her, rather than to Swimmer.

[¶ 6.] Hagans testified that because she "thought this was a threat," she "dialed Star 69" on her telephone, so she could identify the origin of the call for law enforcement. She promptly called the police. Officer Jegeris returned her call "right away" and reviewed the situation with her. At approximately 6:30 p.m., Hagans encountered Swimmer in the apartment complex parking lot. Hagans told Swimmer about the phone call she had received, and that she was "scared for [Swimmer]," but that she had contacted the police.

[¶ 7.] Norman was brought back to the Pennington County Jail on May 8, 1999. Charger made a written request to cancel his previous jail "cash-out" payment to Norman the same day Norman was returned to jail. [¶ 8.] Officer Jegeris confirmed with Norman that Norman had indeed used Larry Welder's telephone to place the call to Swimmer at Hagan's residence, and that Charger had offered to pay him five to ten dollars to deliver the telephone message.

[¶ 9.] On June 7, 1999, Charger was accused by information with one count of Tampering With a Witness, in violation of SDCL 22-11-19(2), a Class 4 felony. He was arraigned before the Pennington County Circuit Court, and pled not guilty.

[¶ 10.] Charger was tried before a jury on July 7, 1999. At trial Norman could not recall the exact contents of Charger's handwritten note. However, he did remember Charger's message included the premise "[t]he attorney is not your friend if you don't cooperate with him or her," and that "[Swimmer would] go to jail if she didn't cooperate with the attorney." Norman also indicated "I just read what I could read that was legible writing, and then I just couldn't read his chicken scratching writing." Norman testified he had thrown the note away "in a garbage can up at Amaco." Jegeris was unable to find the note.

[¶ 11.] Charger testified on his own behalf. Charger testified that he had been involved with Swimmer "on and off for five years." He also alleged the note had been meant for both Swimmer and Robert Swimmer, her brother, and that Robert was "the root of the problem" from which the sexual contact charges had arisen. Charger claimed that Robert had sexually molested Swimmer, which caused her to file false criminal charges against Charger for sexual contact with her two daughters.

[¶ 12.] Charger's account of the contents of the note was different than Hagans'. He claimed the note stated:

I want to warn you the prosecutor isn't anybody's friend. If I get on the stand and he asks me about your sex abuse, who sexually abused you, Jackie, I'll tell him it was your brother Robert. He's one root to this whole problem. You filed false allegations against me. I just wanted to tell you that though.

[¶ 13.] During Hagans' direct testimony at trial, Charger objected to her perceptions and descriptions of Norman's May 7, 1999 telephone call. Charger claimed Hagans' testimony violated the hearsay rule. The circuit court denied his objection, concluding Hagans' testimony concerning the contents of Norman's threatening phone call on behalf of Charger constituted verbal acts, not hearsay.

[¶ 14.] Charger also proposed four jury instructions at the close of the evidence. Specifically, Charger claimed that since Norman had phoned the wrong "Jackie," his proposed jury instructions 3 and 4 were required to explain that "attempt" is a lesser included offense of the completed crime of witness tampering. Charger also argued proposed jury instructions 1 and 2 were necessary to advise the jury about his "free speech rights." The circuit court rejected all four of Charger's proposed jury instructions.¹

[¶ 15.] Charger was convicted of one count of Tampering With a Witness (SDCL 22-11-19(2)). Subsequently, Charger filed a Motion for New Trial. The circuit court conducted a hearing on this post-trial motion, at which Charger argued his proposed "attempt" instructions should have been given at trial. The circuit court denied this motion. On August 9, 1999, the circuit court sentenced Charger to serve four years in the state penitentiary, giving him credit for 75 days already served in the county jail.

[¶ 16.] Charger now appeals his conviction, raising the following issues for our consideration:

1. Whether Hagans' testimony concerning Norman's telephone call on behalf of Charger constituted inadmissible hearsay. 2. Whether the circuit court erred when it refused to instruct the jury on attempted witness tampering.

STANDARD OF REVIEW

[¶ 17.] The circuit court has broad discretion in making evidentiary rulings. State v. Knecht, 1997 SD 53, ¶ 14, 563 N.W.2d 413, 419. We recently stated our standard of review for a circuit court's evidentiary rulings in State v. Smith:

Evidentiary rulings made by the trial court are presumed correct and are reviewed under an abuse of discretion standard. State v. Oster, 495 N.W.2d 305, 309 (S.D.1993). The test is not whether we would have made the same ruling, but whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion. State v. Rufener, 392 N.W.2d 424, 426 (S.D.1986).

Veeder v. Kennedy, 1999 SD 23, ¶ 41, 589 N.W.2d 610, 619 (citing State v. Goodroad, 1997 SD 46, ¶ 9, 563 N.W.2d 126, 129).

1999 SD 83, ¶ 13, 599 N.W.2d 344, 348

.

[¶ 18.] Our standard of review of the circuit court's refusal to give a requested instruction is well settled. This Court stated in State v. Tapio, 459 N.W.2d 406, 408-09, (S.D.1990):

Where a request has been made to charge the jury on a lesser-included offense, the duty of the trial judge is determined by the evidence. If evidence has been presented which would support a conviction of a lesser charge, refusal to give the requested instruction would be reversible error.... There must be sufficient evidence, however, when read in the light most favorable to the defendant, which would justify a jury in concluding that the greater offense was not committed and that a lesser offense was, in fact, committed. (emphasis in original.)

[State v. Scholten, 445 N.W.2d 30, 32 (S.D.1989]) (citing State v. Rich, 417 N.W.2d 868 (S.D.1988)). See also [State v. Gregg, 405 N.W.2d 49 (S.D.1987) ]; State v. Woods, 374 N.W.2d 92 (S.D. 1985). "A trial court is not required to instruct on matters that find no support in the evidence...." State v. Wilson, 297 N.W.2d 477, 482 (S.D.1980); State v. Kafka, 264 N.W.2d 702, 703 (S.D.1978).

459 N.W.2d 406, 408-09 (S.D.1990).

ANALYSIS AND DECISION

[¶ 19.] 1. Whether Hagans' testimony concerning Norman's telephone call on behalf of Charger constituted inadmissible hearsay.

[¶ 20.] Charger argues the...