State v. Fox

• Decision Date: 02 December 1981
• Docket Number: No. 13322,13322
• Citation: 313 N.W.2d 38
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. William Robert FOX, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 38

313 N.W.2d 38

STATE of South Dakota, Plaintiff and Appellee, v. William Robert FOX, Defendant and Appellant.

No. 13322.

Supreme Court of South Dakota.

Argued Oct. 1, 1981.

Decided Dec. 2, 1981.

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

William H. Coacher, Sturgis, for defendant and appellant; Thomas L. Trimble of Sieler, Sieler, Trimble & Crawford, Rapid City, on brief.

HENDERSON, Justice.

ACTION

This is an appeal by William Robert Fox (appellant) from a judgment based on a jury verdict finding him guilty of possession and distribution of marijuana and distribution of a controlled substance, namely cocaine. Appellant contends that several crucial evidentiary and procedural errors were committed by the court below. We disagree and affirm.

FACTS

The facts of this case revolve around a drug investigation conducted by authorities involving a paid informant. This informant was requested by law enforcement officials to purchase illegal drugs from Donald W. Becker. On at least two separate occasions, the informant approached Becker in an attempt to purchase drugs. Becker in turn contacted appellant who supplied him with the drugs which were subsequently sold to the informant. The transactions between appellant and Becker, however, did not occur in the immediate presence of the informant. Becker testified at appellant's trial pursuant to a plea bargain.

Several months subsequent to appellant's arrest, the informant was interviewed by officials of the South Dakota Division of Criminal Investigation. This was apparently prompted by certain problems arising from the informant's conduct while he was working for the State. A tape was made of this interview. Attorneys for both the prosecution and the defense did not learn of this tape until the day of the trial. The contents of the tape revealed, among other things, that the informant had on occasion stolen money from the State and "skimmed" a portion of the drugs he purchased in connection with his position as an informer.

ISSUE ONE

Appellant contends that the State knowingly elicited tainted and false testimony from the informant, thus depriving him of a fair trial. We do not agree. Basically, appellant is urging that the informant's testimony was not credible. It is the function of the jury to determine the credibility of witnesses. State v. Masteller, 272 N.W.2d 833 (S.D.1978); State v. Herman, 253 N.W.2d 454 (S.D.1977); State v. Minkel, 89 S.D. 144, 230 N.W.2d 233 (1975); State v. Shank, 88 S.D. 645, 226 N.W.2d 384 (1975). Due to the nature of the tape's contents, the trial court permitted defense counsel to extensively cross-examine the informant regarding his credibility. Further, the trial court correctly instructed the jury on witness credibility and impeachment. With these considerations in mind, we hold that the testimony of the informant was properly admitted into evidence.

ISSUE TWO

It is also contended that appellant was denied due process because the aforementioned This Court stated in State v. Moves Camp, 286 N.W.2d 333, 339 (S.D.1979):

tape was not made known to him until immediately prior to trial. Essentially, appellant is maintaining that the State withheld evidence. The prosecuting attorney learned of the tape's existence at the same time as appellant, although the trial court knew of the tape approximately one month before trial.

It is important to note our statement in State v. Sahlie, 277 N.W.2d 591 (S.D.1979), that the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), requiring disclosure of material and exculpatory material applies only to situations where the defense discovers after trial that the prosecution had material information that remained undisclosed during the trial. We do not equate late disclosure with suppression, especially where, as here the trial record indicates that defense counsel made use of the information at trial.

See State v. Reiman, 284 N.W.2d 860 (S.D.1979). Although informed of the tape the day of trial, appellant's trial counsel was allowed to listen to the tape in its entirety before the trial actually commenced. Indeed, the contents of the tape became the basis of appellant's extensive cross-examination of the informant. Moreover, there is no indication that appellant requested a continuance after being informed of the tape. Thus, we hold that appellant was not denied a constitutionally fair trial by the late disclosure of the tape.

ISSUE THREE

Appellant maintains that the testimony of Becker, an alleged accomplice, was not corroborated; hence, the conviction cannot stand. ^* Under these facts, we find that corroboration is unnecessary since Becker was not an accomplice to appellant's crimes. "An accomplice is one who is liable to prosecution for the identical offense charged against the defendant on trial. To render one an accomplice he must in some manner knowingly and with criminal intent participate, associate or concur with another in the commission of a crime." State v. Johnson, 81 S.D. 600, 606, 139 N.W.2d 232, 236 (1965). In State v. Phillips, 18 S.D. 1, 5-6, 98 N.W. 171, 173 (1904), this Court defined an accomplice as: "(O)ne who knowingly, voluntarily, and with common intent with the principal offender, unites in the commission of the crime." See also State v. Shields, 81 S.D. 184, 132 N.W.2d 384 (1965); State v. Power, 74 S.D. 498, 54 N.W.2d 565 (1952); State v. Douglas, 70 S.D. 203, 16 N.W.2d 489 (1944). Here, as a result of the transactions between himself, appellant and the informant, Becker pled guilty to one count of distribution of a controlled substance (cocaine).

It has been generally held that a purchaser of illegal drugs is not an accomplice to the crime of selling drugs. Lujan v. Nevada, 85 Nev. 16, 449 P.2d 244 (1969); State v. Anderson, 172 N.W.2d 597 (N.D.1969); State v. Nasholm, 2 Or.App. 385, 467 P.2d 647 (1979); State v. Warnock, 7 Wash.App. 621, 501 P.2d 625 (1972); 23 C.J.S., Criminal Law, § 798(20) (1961).

Under the facts of the case at bar, however, Becker was not only a purchaser of drugs, but also a seller. Becker's status still does not constitute that of an accomplice for, as stated in Gray v. State, 585 P.2d 357, 359 (Okla.Cr.1978):

A witness is not an accomplice to a defendant simply because his distinct acts happen to constitute a like offense. Rather, it is necessary that a charge against that witness could have arisen from the same occurrence as the crime for which the defendant was tried.

The court in Gray rejected the argument that a witness who purchased illegal drugs from the defendant was an accomplice to the defendant's crime of possession with intent to distribute merely because the purchaser

had stated that he planned to resell the drugs. In the instant case, the facts clearly demonstrate that the crimes of Becker and appellant involved separate and distinct acts. There is nothing in the record to indicate that appellant knew Becker would resell the drugs to the informant. We hold that Becker was not an accomplice to appellant's crime and, as such, no corroboration is necessary to sustain the conviction.

ISSUE FOUR

Appellant urges that the trial court erroneously submitted Instruction # 20 to the jury, which states:

As to Count III of the Information it is not necessary that the State prove that (appellant) knew the identity of the person to whom Donald Becker intended to transfer the cocaine.

Count III of the Information states in pertinent part (emphasis added):

(Appellant) did commit the public offense of distribution of a controlled substance, cocaine, to an adult, Michael Thomas, in that he did with the intent of facilitating the commission of a crime, aid Donald Becker in transferring cocaine to another, Michael Thomas.

The emphasized portions of Count III were added by the trial court at appellant's request during arraignment for the purpose of preparing an alibi defense. Jury Instruction # 26 states:

The essential elements of the offense of distribution of a controlled substance, namely, cocaine as charged in the Information, each of which the...