State v. Chuol

• Decision Date: 18 June 2014
• Docket Number: No. 26752.,26752.
• Citation: 849 N.W.2d 255,2014 S.D. 33
• Court: South Dakota Supreme Court
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. DOAP DENG CHUOL, Defendant and Appellant.

849 N.W.2d 255

2014 S.D. 33

STATE of South Dakota, Plaintiff and Appellee,

v.DOAP DENG CHUOL, Defendant and Appellant.

No. 26752.

Supreme Court of South Dakota.

Considered on Briefs March 24, 2014.

Decided June 18, 2014.

Marty J. Jackley, Attorney General, Bethany L. Erickson, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Molly C. Quinn of Office of the Minnehaha County Public Defender, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

WILBUR, Justice.

[¶ 1.] A jury found Doap Deng Chuol guilty of three counts of distribution of a controlled drug or substance in violation of SDCL 22–42–2 and three counts of possession of a controlled drug or substance in violation of SDCL 22–42–5. Chuol appeals a number of issues, including the circuit court's denial of his motion to suppress the in-court identification, the refusal of his proposed jury instruction regarding cross-racial identification, and the denial of his motion for judgment of acquittal. We affirm.

FACTS AND PROCEDURAL BACKGROUND

[¶ 2.] L.S. started working with the Sioux Falls Police Department as a confidential informant in January or February of 2009, primarily working with Detective Thomas Schmitz. L.S. had performed “controlled buys” ¹ more than 50 times while working with narcotics detectives.

[¶ 3.] In early 2011, L.S. approached Detective Schmitz and informed the detective that she knew someone who sold crack cocaine. L.S. only knew the seller by his nickname, “D.” ²

[¶ 4.] L.S. met D through another drug dealer known by the moniker, “B.K.” B.K. told L.S. that she should contact D to purchase crack cocaine if L.S. could not reach B.K. for a sale. L.S. received D's phone number from B.K.

[¶ 5.] At the motion to suppress hearing, L.S. testified that after meeting D, she gave D a ride to D's apartment at 808 West Bailey Street. She stated that the car ride lasted five to ten minutes.³

[¶ 6.] L.S. and Detective Schmitz arranged three controlled buys from D. The first controlled buy occurred in the afternoon on March 22, 2011. During this buy, L.S. met D in a stairwell in the apartment building at 808 West Bailey Street. D stood four or five steps above L.S. during the transaction, which involved D handing L.S. the drugs and L.S. paying for the drugs with the marked bills provided to her by Detective Schmitz. After the transaction, L.S. gave Detective Schmitz a small baggie of drugs ⁴ and informed him that she had purchased the drugs from D. L.S. described D as a black male, about 20 years old, with “buck” teeth. She noted that his clothing consisted of dark pants, a thermal shirt or t-shirt, and either a black beanie hat or “doo-rag.” When asked by detectives whether D was tall and skinny, L.S. responded “No, not tall. Shorter. About my height.” L.S. testified that she is five foot eight inches tall. The March 22, 2011 purchase was not observed by detectives nor was it video recorded.

[¶ 7.] At the motion hearing, L.S. testified that after the first controlled buy, but prior to the second controlled buy, she spent five to ten minutes with D at B.K.'s apartment. L.S. testified that also during this time, she gave D a ride from an apartment in central Sioux Falls to D's apartment at 808 West Bailey Street. She testified that she spent five to ten minutes in the vehicle with D.

[¶ 8.] L.S. and detectives conducted a second controlled buy from D in the afternoon of May 4, 2011. The buy took place at 808 West Bailey Street, the same location that the first controlled buy had taken place. Prior to the second buy, L.S. was searched, fitted with a recording device, and provided marked bills. Once she arrived at 808 West Bailey Street, L.S. followed D across the street from the apartmentbuilding. Once across the street, D, who was driving a dark blue car,⁵ got out of his car and into L.S.'s car, where the transaction took place. This controlled buy lasted a few minutes.

[¶ 9.] Detective Ryan Qualseth conducted surveillance at 808 West Bailey Street before, during, and after the second controlled buy. Prior to the controlled buy, he observed a blue Lincoln Town Car enter the parking lot. Two black males exited the Town Car and entered the apartment building. Detective Qualseth then observed the driver of the blue Town Car exit the apartment building and approach L.S.'s car. The driver then got into the blue Town Car and exited the parking lot with L.S. following him in her car. After the buy was completed, the blue car returned to the apartment building parking lot and the driver exited the car. Detective Qualseth was able to photograph these events as well as the license plate of the blue Lincoln Town Car. The car was registered to Doap Deng Chuol and the address listed on the registration was 808 West Bailey Street, apartment number eight.

[¶ 10.] When the second controlled buy was completed, L.S. gave the drugs to Detective Schmitz and stated that she had purchased them from D. The detective then showed L.S. a photograph of Chuol and asked L.S. if she recognized the person in the photograph as D. L.S. responded that she was not sure if the person in the photograph was D. L.S. explained at the motion to suppress hearing that “I didn't want to say I was sure if there was a doubt.” She also explained that D always wore a hat during the controlled buys and the man in the photograph was not wearing a hat.

[¶ 11.] The final controlled buy between L.S. and D occurred in the afternoon of May 26, 2011. Prior to the buy, L.S. was searched, fitted with a recording device, and provided marked bills. L.S. and D met at the same apartment building. When she arrived, L.S. called D and asked him to meet her at her car. D exited the rear door of the apartment building and went to the driver's side window of L.S.'s car. The transaction occurred through L.S.'s car window. Undercover detectives took surveillance photographs of the transaction.

[¶ 12.] Following this exchange, L.S. met with Detective Schmitz and gave him the drugs she purchased from D. L.S. told Detective Schmitz that D was wearing shorts, a shirt, and a hat, but she could not remember the specific colors. Also during this meeting, Detective Schmitz showed L.S. two photographs of Chuol and L.S. told Detective Schmitz that the individual in the photographs looked like D.

[¶ 13.] Chuol was charged by indictment with three counts of distribution of a controlled drug or substance, in violation of SDCL 22–42–2, and three counts of possession of a controlled drug or substance, in violation of SDCL 22–42–5. The State also filed a part II information, which was later amended to reflect an allegation that Chuol had been convicted of a prior felony and was a habitual offender under SDCL 22–7–7.

[¶ 14.] Chuol filed a motion to suppress evidence seeking to exclude L.S.'s identification of him as the suspect in a photo lineup and to exclude L.S.'s subsequent in-court identification. At the motion hearing, Chuol and the State both agreed that the photo lineup was improper. The hearingwas confined to the issue of whether the State met its burden of proof that the in-court identification had an independent origin purging the suggestive taint of the improper photo lineup. Ultimately, the circuit court granted the motion as to the photo lineup and denied the motion as to the in-court identification.

[¶ 15.] A jury trial was held January 29 and 30, 2013. At trial, L.S. was permitted, in accordance with the circuit court's earlier ruling, to identify Chuol in open court. The circuit court also denied Chuol's proposed jury instruction on cross-racial identification and noted that sufficient eyewitness instructions would be given to the jury. Lastly, the circuit court denied Chuol's motion for judgment of acquittal. The jury convicted Chuol of all of the charges.

[¶ 16.] Chuol raises the following issues for our review:

I. Whether the circuit court's admission of an in-court identification stemming from an impermissibly suggestive photo lineup violated Chuol's due process rights.

II. Whether the circuit court erred in refusing Chuol's proposed jury instruction regarding cross-racial identification.

III. Whether the circuit court erred in denying Chuol's motion for judgment of acquittal.

DECISION

[¶ 17.] I. Whether the circuit court's admission of an in-court identification stemming from an impermissibly suggestive photo lineup violated Chuol's due process rights.

[¶ 18.] Chuol argues that the circuit court's denial of his motion to suppress L.S.'s in-court identification violated his due process rights under the Fourteenth Amendment to the United States Constitution and article six, section two of the South Dakota Constitution. He asserts that the in-court identification was irreparably tainted by Detective Schmitz's presentation of the highly suggestive photo lineup. Additionally, Chuol asserts that this issue presents a question of law reviewed de novo. Conversely, the State argues that it was an evidentiary ruling to be reviewed under an abuse of discretion standard.⁶

[¶ 19.] We review the denial of Chuol's motion to suppress based on the alleged violation of a constitutionally protected right as a question of law by applying the de novo standard of review. State v. Ludemann, 2010 S.D. 9, ¶ 14, 778 N.W.2d 618, 622. Additionally, “[w]e review findings of fact under the clearly erroneous standard.” State v. Lamont, 2001 S.D. 92, ¶ 12, 631 N.W.2d 603, 607. Here, the factual findings of the circuit court are not in dispute, and thus, “the application of a legal standard to those [undisputed] facts is a question of law reviewed de novo.” Id.

[¶ 20.] We examine photographic lineups and in-court identifications under a two-part analysis: “(1) Was the lineup impermissibly suggestive, and (2) if so, was the subsequent in-court identification tainted?” State v. Abdo, 518 N.W.2d 223, 225 (S.D.1994). “[E]ven though the photographic lineup may be considered to be...