State v. Condon

• Decision Date: 05 December 2007
• Docket Number: No. 24336.,24336.
• Citation: 742 N.W.2d 861,2007 SD 124
• Parties: STATE of South Dakota, Plaintiff and Appellee v. Karyl Michelle CONDON, Defendant and Appellant.
• Court: South Dakota Supreme Court

742 N.W.2d 861

2007 SD 124

STATE of South Dakota, Plaintiff and Appellee v. Karyl Michelle CONDON, Defendant and Appellant.

No. 24336.

Supreme Court of South Dakota.

Considered on Briefs October 1, 2007.

Decided December 5, 2007.

Rehearing Denied January 4, 2008.

Lawrence E. Long, Attorney General, Steven R. Blair, Assistant Attorney General, Pierre, SD, for plaintiff and appellee.

Mark Kadi, Office of the Public Advocate, Sioux Falls, SD, for defendant and appellant.

GILBERTSON, Chief Justice.

[¶ 1.] On September 2, 2004, Karyl Michelle Condon (Condon) was indicted by a Minnehaha County grand jury on one count of grand theft. A jury trial was held in the South Dakota Second Judicial Circuit on January 24 and 25, 2005, after which Condon was found guilty of the charge.¹ On July 12, 2006, Condon filed a motion for a new trial pursuant to SDCL 15-6-59(a)(4). The trial court heard the motion on July 24 and September 15, 2006. The trial court denied Condon's motion and she was thereafter sentenced to eight years in the penitentiary with one year conditionally suspended. We affirm.

FACTS AND PROCEDURE

[¶ 2.] At around 3:00 p.m. on June 28, 2004, Miguel Comparan (Comparan) was visiting with Adriana Lores (Lores) the cashier at a Mexican grocery store in Sioux Falls, South Dakota, Nikki's La Mexicana (La Mexicana), after completing his shopping. While they were visiting, a young woman, later described by Comparan and Lores as an "American Indian," 5'2" to 5'3", weighing about 200 lbs., came into the store and asked Lores for some "fajita meat." Lores, who was working alone, left the cashier's counter and walked to the meat department in the back of the store with the woman. Comparan then proceeded to leave the store.

[¶ 3.] As Comparan was exiting through the front door, a second woman, who he described as being an "American Indian," "who looked like she was tall" and "a little obese" was about to enter the store.² After leaving the store, Comparan got into his car on the passenger side because a blue Ford Taurus had parked close enough to the driver's side of his car that he could not enter on that side. Comparan had just sat down in his car and was about to check the contents of his grocery bag against his shopping list when he noticed the second Indian woman emerging from the store with a handful of jewelry.³ At Condon's trial, Comparan testified that when he looked at the woman, she pulled the jewelry behind her back and then got into the driver's side of the blue Ford Taurus parked next to him. Comparan stated that he then backed out of his parking space and moved his car in front of the neighboring Subway restaurant.

[¶ 4.] Sensing that something wrong had occurred in the grocery store, Comparan went back to La Mexicana to inquire as much with Lores. When he entered the store, the first woman was paying for her fajita meat and was about to leave. Comparan testified that after that woman left, she got into the blue Ford Taurus on the passenger side and rode away with the woman who had emerged from La Mexicana with the handful of jewelry.

[¶ 5.] Comparan asked Lores if anything was missing from the jewelry case that sat near the front door of the store. The two observed that there was an area in the case that had been cleared of jewelry. Comparan then left La Mexicana to follow the blue Ford Taurus. Within several blocks he lost the vehicle, so he then returned to La Mexicana. Since Lores did not speak much English, Comparan called 911 to report the theft.

[¶ 6.] Sioux Falls Police were dispatched to La Mexicana and Officer Richard Millette (Millette) interviewed Comparan and Lores, taking their descriptions of the two women.⁴ Later that day Comparan spoke to one of La Mexicana's owners, Michelle Reta (Reta). Comparan's description of the thief was consistent with that of Condon, who Reta had barred from the store for issuing bad checks. Reta then advised Millette that she thought Condon might be the thief.⁵

[¶ 7.] On June 29, 2004, Detective Larry Heitkamp (Heitkamp) was assigned to follow up on Millette's preliminary investigation. Based on Millette's report, Heitkamp put together a six-person photo lineup that included a picture of Condon.⁶ On July 2, 2004, Heitkamp interviewed Comparan and showed him the photo lineup. Comparan identified the photo of Condon as matching the person that he saw leaving La Mexicana with the handful of jewelry.

[¶ 8.] Condon was indicted on one count of grand theft in violation of SDCL 22-30A-1 and SDCL 22-30A-17. At Condon's trial on January 24, 2005, the State called Comparan, Lores, Reta and Heitkamp. On January 25, the jury returned a guilty verdict against Condon. Thereafter, she absconded and was not apprehended until June 6, 2006.

[¶ 9.] While in custody at the Minnehaha County Jail awaiting sentencing, Condon allegedly was informed by fellow inmates that Latasha Rodriquez (Rodriquez) was the person responsible for the jewelry theft at La Mexicana on June 28, 2004.⁷ On June 12, 2006, Condon informed defense counsel that fellow inmate Gaylina Jandreau (Jandreau) told her that she had been outside La Mexicana at the time of the June 28, 2004 jewelry theft and that she had observed Rodriquez, a person that Jandreau claimed had an appearance similar to Condon's, leaving the store with jewelry in hand. Condon asked Jandreau to write out her account of the theft and Jandreau allegedly complied.

[¶ 10.] A second inmate, Wendy Yanacheak (Yanacheak) allegedly had mistaken Condon for Rodriquez at the county jail. Yanacheak conveyed to Condon that she had a friend, Cameron, who had a daughter named Monica who was a friend and roommate of Rodriquez's. Yanacheak claimed to have been present when Monica offered Cameron a piece of jewelry and that Cameron had refused the jewelry because she thought it may have been acquired illegally.

[¶ 11.] Based on this new information, Condon filed a motion for a new trial on July 12, 2006. The trial court heard the motion on July 24, 2006. Yanacheak was present and testified at the hearing. Condon attempted to produce Jandreau, but she did not appear. Alternatively, Condon offered Jandreau's handwritten statement as evidence of her account. Supporting its decision with oral findings and conclusions, the trial court refused to allow the statement, but granted Condon a continuance until September 12, 2006, to produce Jandreau. Meanwhile, Rodriquez appeared at the July 24 hearing and testified that while she did visit Sioux Falls for a two-week period in July 2004, she otherwise had not been in Sioux Falls until she moved there on December 18, 2005. She further testified that she did not meet Monica until that time and that she had never given Monica any jewelry.

[¶ 12.] The trial court granted a second continuance until September 15, 2006, but Condon was still unable to produce Jandreau. When the court reconvened at that time, Condon's motion for a new trial was denied and an oral sentence was pronounced. The trial court entered its judgment and sentence on November 1, 2006, and on November 27, entered findings of fact and conclusions of law in connection with its denial of Condon's motion for a new trial.

[¶ 13.] Condon appeals raising the following issues:

1. Whether the trial court erred in noting for the record testifying witnesses' in-court identifications of Condon.

2. Whether the trial court erred when it allowed the State to question Comparan as to Condon's nationality and his ability to differentiate between persons of American Indian and Mexican descent.

3. Whether the trial court abused its discretion at the motions hearing by refusing Condon's proffer of a handwritten statement as an exception to the statutory hearsay rule.

4. Whether the trial court abused its discretion by

denying Condon's motion for a new trial pursuant to SDCL 15-6-59(a)(4).

STANDARD OF REVIEW

[¶ 14.] This Court applies the de novo standard when reviewing appeals that assert an infringement of a constitutional right. State v. Asmussen, 2006 SD 37, ¶ 11, 713 N.W.2d 580, 586 (citing State v. Dillon, 2001 SD 97, ¶ 12, 632 N.W.2d 37, 43 (citing State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488)). The trial courts evidentiary rulings are presumed correct and will not be overturned absent an abuse of discretion. An abuse of discretion refers to a discretion exercised to an end or purpose not justified by and clearly against reason and evidence. Id. ¶ 13 (citations and quotations omitted).

[¶ 15.] We apply the abuse of discretion standard to the trial court's determination of whether to admit hearsay evidence. Matter of R.S.S., 474 N.W.2d 743, 749 (S.D.1991). While we review the trial courts findings of fact under the clearly erroneous standard, we give no deference to its conclusions of law and thereby apply the de novo standard. State v. Runge, 2006 SD 111, ¶ 9, 725 N.W.2d 589, 592 (citations omitted). Having not observed witness testimony, we defer to the trial courts assessment on the credibility of witnesses. State v. Piper, 2006 SD 1, ¶ 84, 709 N.W.2d 783, 815 (citing State v. Burtzlaff, 493 N.W.2d 1, 4-5 (S.D.1992)). Abuse of discretion is also the standard applied when reviewing whether the trial court should have granted a motion for a new trial. State v. Crawford, 2007 SD 20, ¶ 14, 729 N.W.2d 346, 349 (citing State v. Perovich, 2001 SD 96, ¶ 11, 632 N.W.2d 12, 15).

ANALYSIS AND DECISION

[¶ 16.] 1. Whether the trial court erred in noting for the record testifying witnesses' in-court identifications of Condon.

[¶ 17.] At Condon's trial on January 24, 2005, the State asked Comparan if the woman that he saw coming out of La Mexicana with the jewelry in hand was present in the courtroom. Comparan answered "[y]es" and when asked where she was seated and what she was wearing, he stated that she "[i]s in front of us [wearing] red." Thereafter, the State asked the trial court for "the record [to] reflect that [the] witness ... identified...