State v. Cochrun

• Decision Date: 12 October 1988
• Docket Number: No. 16003,16003
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Larry COCHRUN, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 370

434 N.W.2d 370

STATE of South Dakota, Plaintiff and Appellee, v. Larry COCHRUN, Defendant and Appellant.

No. 16003.

Supreme Court of South Dakota.

Considered on Briefs Oct. 12, 1988.

Decided Jan. 4, 1989.

Thomas E. Adams, Deputy Public Defender, Northern Hills Public Defender's Office, Deadwood, for defendant and appellant.

R. Shawn Tornow, Asst. Atty. Gen., Pierre, Roger A. Tellinghuisen, Atty. Gen., Pierre, on brief, for plaintiff and appellee.

SABERS, Justice.

Larry Cochrun (Cochrun) appeals his convictions for distribution of marijuana to a minor and delivery of drug paraphernalia. We affirm.

Facts

On December 23, 1986, David Miller (Miller) reported to local police that his step-son, a minor, was in possession of a pipe and marijuana. The minor stated that he obtained the pipe and the marijuana from Cochrun. He told the police that Cochrun sold the marijuana from a container in Cochrun's home in Whitewood, South Dakota.

The police obtained a search warrant for Cochrun's home based on this information and an affidavit from the minor's friend, who was with him at the time of the purchase. The warrant described the items to be seized as marijuana or a green, leafy substance in a Tupperware or glass container. In the search of Cochrun's home, the police found five baggies of marijuana but not the container of marijuana.

Cochrun was indicted for distribution of marijuana to a minor "on or about December 23rd, 1986." He was later indicted for delivery of drug paraphernalia "on or about December 22nd or 23rd, 1986." At trial, the State attempted to prove that the minor obtained the marijuana pipe from Cochrun at approximately 11:30 a.m. on December 22nd. The State's witnesses testified that Cochrun sold marijuana to the minor at approximately 11:30 a.m. on December 23rd. Cochrun asserted an alibi defense through two witnesses who testified that Cochrun was in Spearfish from 11:00 a.m. to 1:00 p.m. on December 23rd.

Originally Cochrun represented himself, but counsel was later appointed from the public defender's office. He waived his right to a jury trial and was tried and convicted by the court on August 21st, 1987. Cochrun appealed pro se, claiming ineffective assistance of counsel. Cochrun's counsel also filed a notice of appeal and then filed a motion to withdraw which was denied. Cochrun's counsel assigned the case to another attorney in the public defender's office for the appeal.

1. Admissibility of marijuana seized in search of Cochrun's

home.

Cochrun asserts that the State originally indicated that the marijuana seized under the search warrant would not be offered as evidence. Cochrun claims that this statement was a binding stipulation or admission upon the State.

Generally, stipulations are required to be in writing, but an oral stipulation made on the record in open court and relied upon by an adversary may be binding upon the party. Aaker v. Aaker, 338 N.W.2d 645 (N.D.1983); 73 Am.Jur.2d Stipulations Sec. 3 (1974). There is no indication that the statement in question was intended as a stipulation by the State. The State indicated, at the preliminary hearing, that there were no charges arising from the seized marijuana, but made no promise or commitment that it might not later amend these charges or attempt to admit the evidence. While Cochrun relied upon this statement, it did not rise to the level of a stipulation because it contained no promise or commitment. Restatement (Second) Contracts Sec. 94 (1979). Further, Cochrun has not shown that his reliance was prejudicial to his case. Cochrun did not dismiss any witnesses, nor is there any indication that Cochrun would have prepared his case differently had he not relied upon the statement. Cochrun had an opportunity to contest, and did contest, the admissibility of the evidence through a motion in limine on the day of trial.

Cochrun claims that the marijuana was inadmissible because it was improperly seized under the search warrant. Cochrun cites the general rule that an item seized under a search warrant must be described with specificity. State v. Wellner, 318 N.W.2d 324 (S.D.1982); State v. Nelson, 84 S.D. 218, 169 N.W.2d 533 (1969). This court has created a "plain view" exception to the rule where a police officer uncovers other evidence of a crime in the course of a warranted search. Wellner, supra; State v. Larkin, 87 S.D. 61, 202 N.W.2d 862 (1972). Wellner set out two requirements to satisfy this exception:

[T]he original search must be directed in good faith toward finding objects described in the search warrant. In addition, the police officer must have probable cause to believe the inadvertently discovered evidence is in fact seizable.

Wellner, supra at 329.

There is no showing that the authorities failed to proceed in good faith under the warrant. The warrant allowed the officers to search Cochrun's entire home and did not limit the search to particular rooms. In the course of the search, the officers came across the marijuana on top of a potting bucket in the bathroom. This was seizable as it was inadvertent and in plain view.

Cochrun also claims the marijuana was not relevant to the charge of selling to a minor. Cochrun cites no authority for this assertion. SDCL 19-12-1 provides that relevant evidence makes "the existence of any fact that is of consequence to the determination of the action more probable ... than it would be without the evidence." The five baggies, each containing approximately one-half ounce of marijuana tend to corroborate the charge that Cochrun was distributing marijuana. The State could and should have charged Cochrun with possession and offered the marijuana on that charge if they wanted it in evidence. However, we cannot say that the trial court erred in admitting the marijuana in view of its corroborative value and Cochrun's failure to cite any authority questioning its relevance. The trial court found that the probative value outweighed the danger of unfair prejudice to Cochrun under SDCL 19-12-3. Unlike the gun in State v. Rufener, 401 N.W.2d 740 (S.D.1987), this evidence was relevant and this determination was within the sound discretion of the trial court. State v. Grooms, 399 N.W.2d 358 (S.D.1987); State v. Cross, 390 N.W.2d 564 (S.D.1986).

2. Notice of specific time of offense.

An indictment must be sufficient to apprise the defendant with reasonable certainty of the accusation against him. State v. Bingen, 326 N.W.2d 99 (S.D.1982). However, an information or indictment need not state the precise time at which an offense was committed, unless time is a material element of the offense or there is prejudice to the defendant. State v. Swallow, 350 N.W.2d 606 (S.D.1984). Although time is not a material element of these offenses, Cochrun claims the "on or about" language in the indictment prejudiced his alibi defense.

We have approved the "on or about" language in an indictment where the defendant asserted an alibi defense. State v. Nelson, 310 N.W.2d 777 (S.D.1981) approved a jury instruction which stated:

The Information charges that the offense was committed 'on or about' a certain date and time. The proof need not establish with certainty the exact date or time of the offense alleged. It is sufficient if the evidence establishes beyond a reasonable doubt that the offense was committed on a date or time reasonably near the date or time alleged in the Information.

Nelson, supra at 779. The Nelson court held that such an instruction is valid if the jury is not misled. The state's proof in Nelson showed that the offense could have occurred on one of two days. The court asserted that the defendant needed an alibi for the entire period the crime could have occurred, as "Alibi evidence must show that the accused could not have committed the alleged crime, because at the time of its commission he was at a place other than where such offense was committed." Nelson, supra at 779-80 (citing State v. Reiman, 284 N.W.2d 860, 871 (S.D.1979)). The Nelson court held that the "on or about" language in the indictment provided sufficient notice to prepare an alibi defense.

The "on or about" language in this indictment was sufficient to apprise Cochrun of the approximate time of the crime to enable him to prepare his alibi defense. The State attempted to show that the crime of distribution of marijuana occurred at 11:30 a.m. on December 23rd. The trial court found that there was sufficient evidence that the crime occurred on the morning of December 23rd, and even though Cochrun was in Spearfish at 11:30 a.m. on that day, he did not have an alibi for the entire morning. There was sufficient evidence to support these findings. Therefore, the State's proof showed beyond a reasonable doubt that the crime occurred on the morning of December 23rd, despite the alibi.

3. Withdrawal of trial counsel for appeal.

Cochrun claims that his counsel should have been permitted to withdraw from representing him on appeal upon Cochrun's claim of ineffective assistance of trial counsel. ^* He claims this denial prejudiced his ability to assert the issue on appeal.

Ineffective assistance of counsel claims are not ordinarily considered on direct appeal, but should be brought through post-conviction relief. State v. Aliberti, 401 N.W.2d 729 (S.D.1987); State v. Anderson, 387 N.W.2d 544 (S.D.1986); State v. Hammond, 357 N.W.2d 278 (S.D.1984). This court has created an exception where the representation was so "ineffective and counsel's representation so casual that the trial record evidences a manifest usurpation of appellant's constitutional rights[.]" State v. Phipps, 318 N.W.2d 128, 131 (S.D.1982); Aliberti, supra. The ineffective assistance claim must rise to the level of plain error on direct appeal. Aliberti, supra. An examination of the record does not reveal a sufficient ineffective assistance of counsel claim. Cochrun's dissatisfaction with his court-appointed counsel is, without more, insufficient to...