State v. Feyereisen, 14035

Citation345 N.W.2d 58
Decision Date07 March 1984
Docket NumberNo. 14035,14035
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Gordon James FEYEREISEN, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Douglas E. Kludt, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Yvette Hall War Bonnet, Dakota Plains Legal Services Mission, for defendant and appellant.

DUNN, Justice.

This is an appeal from a judgment of conviction on two counts of distribution of a controlled substance pursuant to SDCL 22-42-2. We affirm.

Richard Lauck (Lauck) was an undercover drug investigator in Winner, South Dakota, from July 15, 1981 to August 15, 1981. During that time, he frequented the Pizza Pub, a business located at the end of Winner's main street. On July 24, 1981, while at the Pizza Pub, Lauck asked bartender Larry Ziegler (Ziegler) where he could "score" some acid (LSD). Ziegler spoke to a third person in the Pizza Pub about the request and this person told Ziegler the price for a "hit" of acid. Ziegler related this to Lauck, who gave $20 to Ziegler. Ziegler took the money to the third person, who went into a bathroom and then returned to Ziegler and handed him the drugs. Ziegler passed the drugs on to Lauck. Although Lauck did not know the third person in the Pizza Pub, at trial he was able to give a description of the person which matched appellant Gordon James Feyereisen's appearance. Lauck also testified that he overheard other persons in the Pizza Pub refer to the third person as "Gordy" and "Feyereisen." At trial Ziegler testified that the third person was indeed appellant.

On July 29, 1981, Lauck was in the Pizza Pub and again asked Ziegler if he could get more "hits" of acid. Essentially, the same procedure occurred as on July 24: Ziegler went to the third person, who supplied the drugs to Ziegler; Ziegler then passed them on to Lauck. Again Lauck did not know the third person, but he was able to identify him as the same individual who was involved in the July 24 drug sale.

Appellant was charged with two counts of distribution of a controlled substance, and a jury trial was held on August 23 and 24, 1982. The jury returned guilty verdicts on both counts and appellant was sentenced to two years in the South Dakota State Penitentiary on each count.

Appellant raises two interrelated issues on appeal. His first contention is that the trial court erred in allowing Lauck to testify that Lauck overheard persons in the Pizza Pub refer to the third person in the drug transaction as "Gordy" and "Feyereisen." Appellant claims that these overheard utterances are hearsay and do not qualify under any of the hearsay exceptions. Second, appellant maintains that, absent the hearsay testimony, there was insufficient evidence produced by the State to corroborate accomplice Ziegler's testimony.

We disagree with appellant's contention that Lauck's testimony as to the overheard utterances is inadmissible hearsay. Although this court has never dealt with the question, there is substantial authority that evidence of a name by which a person is known is not within the rule excluding hearsay evidence. People v. Hunt, 120 Mich.App. 736, 327 N.W.2d 547 (1982); State v. Valentine, 506 S.W.2d 406 (Mo.1974); State v. Shields, 619 S.W.2d 937 (Mo.App.1981); State v. Douglas, 573 S.W.2d 79 (Mo.App.1978); State v. Barnett, 41 N.C.App. 171, 254 S.E.2d 199 (1979); 2 Wigmore, Evidence Sec. 667a (Chadbourn rev. 1979). We find this authority to be persuasive; therefore, the trial court properly admitted Lauck's testimony.

We turn next to appellant's claim that there was insufficient evidence to corroborate accomplice Ziegler's testimony. Ziegler unequivocally declared at trial that the third person in the drug transaction, the supplier of the LSD, was appellant.

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.

It is well settled that the testimony of an accomplice need not be corroborated by evidence sufficient to sustain a conviction. The evidence need...

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