State v. Herman, 11715
| Citation | 253 N.W.2d 454 |
| Decision Date | 29 April 1977 |
| Docket Number | No. 11715,11715 |
| Parties | STATE of South Dakota, Plaintiff and Respondent, v. Dennis HERMAN, a/k/a Dennis Oleson, Defendant and Appellant. |
| Court | Supreme Court of South Dakota |
William J. Janklow, Atty. Gen., Charles L. Dorothy, Asst. Atty. Gen., Pierre, for plaintiff and respondent.
Charles Poches, Jr., Fort Pierre, for defendant and appellant.
The defendant, Dennis Herman, appeals from his conviction in the Circuit Court of the Sixth Judicial Circuit for the unauthorized distribution of a controlled substance to a narcotics informant. We reverse.
The informant, Richard Carlson, was arrested and charged with possession of marijuana at Howard, South Dakota. Because of his cooperation in reporting drug activities to Miner County law enforcement officials, he was placed on probation following a guilty plea to misdemeanor possession of marijuana.
Under South Dakota Division of Criminal Investigation (D.C.I.) sponsorship, Carlson eventually became a paid narcotics informant for law enforcement agencies in several counties in the state. In November of 1974, he was employed by Hughes County to "investigate" drug activity and attempt to purchase drugs and narcotics from "drug pushers." In this capacity, Carlson admittedly smoked and dispensed small amounts of marijuana to others in order to avoid "blowing his cover."
Carlson unsuccessfully approached the defendant, proposing to purchase marijuana from him on at least two occasions. During the evening of December 17, 1974, Carlson, by chance, encountered the defendant and a girl at a Pierre tavern and inquired of the availability of drugs. According to Carlson, the defendant indicated he had "bags of marijuana" which he would sell at $25 per bag. Carlson and defendant proceeded to defendant's car where the defendant sold one bag of "marijuana" to Carlson.
The defendant presented testimony attempting to establish an alibi defense. He and a girl friend testified that they were at her apartment for a period of time from one hour prior to the alleged sale until three hours thereafter. They further testified that at no time on December 17, 1974, did they have an occasion to see or speak to Carlson, although they admitted being at the tavern earlier in the evening.
The defendant's assignments of error raise three issues: (1) credibility of the informant, (2) sufficiency of evidence, and (3) admissibility of physical evidence.
The defendant alleges that the evidence was insufficient to support the verdict because it rested solely upon the informant whose testimony was unbelievable. The allegation that Carlson's testimony was inconsistent and unworthy of belief does not present a question reviewable by this court. The inconsistencies in the testimony of Carlson were fully presented to the jury by defendant's counsel in his cross-examination and closing argument. It is the function of the jury to resolve conflicts in the evidence and to determine the credibility of witnesses and the weight of their testimony. This court will not interfere with the discretion of the jury to believe or disbelieve witnesses. State v. Weinandt, 1969, 84 S.D. 322, 171 N.W.2d 73; State v. Shank, 1975, S.D., 226 N.W.2d 384.
Carlson's subsequent conviction for perjury in Beadle County (see State v. Kissner, 1977, S.D., 252 N.W.2d 330) did not involve any testimony in this case. Although it does emphasize the inherent difficulties of using "narcotics informants" (see State v. Gerber, 1976, S.D., 241 N.W.2d 720), that conviction raises no question on this appeal. If there is evidence of the use of perjured testimony, it must first be presented to the trial court for a factual finding by a motion for a new trial (SDCL 23-50-2(8)), a motion to remand (SDCL 23-51-15), or a petition for post-conviction review (SDCL 23-52-1(6)). There having been no such proceedings or evidence, there is no issue for this court to decide. See 24 C.J.S. Criminal Law § 1606(14).
The admissibility of the physical evidence creates a different problem.
At the preliminary hearing, Carlson testified that following the purchase of the one bag of "marijuana" from the defendant on December 17, 1974, he retained it in his possession until 6:30 a. m., on December 18, 1974. Sometime thereafter, he delivered it to Herb Hollingsworth, Drug Enforcement Supervisor for the Attorney General. Hollingsworth testified that after receiving the bag from Carlson, he locked it in his desk until he gave it to D.C.I. Special Agent Jerry Baum during the afternoon of December 18, 1974. Agent Baum confirmed that receipt and testified further that he assigned a case number to the bag and mailed it to the State Chemical Laboratory at Vermillion.
Counsel then stipulated to the admission of the following laboratory report in lieu of the oral testimony of Roger Mathison:
"STATE CHEMICAL LABORATORY State's
3-13-75
Jerry Baum, Special Agent, DCI LLS 1
P. O. Box 1237
Pierre, South Dakota Date 2/7/75
Sample Description Material for Marihuana
Submitted by You on 12/20, 1974
Case No. 47700-15 Lab. No. 75-4208 Delivered
by First Class Mail on 12/20/74 A.M.
Tetrahydracannabinol in 0.95 oz. Cannabis.
Analyst Roger Mathison
Herman"
The record of the preliminary hearing shows that although marked, a plastic bag was not identified or admitted as evidence. The state concedes that the bag of material identified as marijuana by the laboratory report was not in fact the bag purchased from the defendant.
At the trial, the state discovered the error and brought forth Exhibit 1, which consisted of two plastic bags, one inside the other. The outer bag had the following information written on tape and paper stickers:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
TABLE
The inner plastic bag contains the following information on a paper sticker:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
The chain of custody testimony changed substantially at the trial. Carlson claimed that he knew the exact time he delivered the bag to Hollingsworth, i. e., 7:10 a. m., on December 18, 1974. Hollingsworth testified that he retained the bag in his possession until 10:30 a. m., on December 19, 1974, when it was delivered to Agent Baum. Baum's testimony changed and he asserted that he had received Exhibit 1 from Hollingsworth on December 19, 1974, and that it was not until December 20, 1974, that he mailed the bag to the state laboratory. The analyst from the state laboratory testified that he received Exhibit 1 in the mail on December 23, 1974. He further testified that he then marked the bag with "lab number 74-28-05."
Based upon the state's attorney's representation that the problem was the court reporter's error in attaching the wrong laboratory report to the preliminary hearing transcript, the trial court admitted Exhibit 1 over the defendant's objection and allowed Mathison to testify that it contained 0.94 ounce of marijuana. The trial court, after an unreported bench conference, refused to allow any cross-examination by defense counsel about the discrepancies concerning the exhibit.
Our discussion of this issue must be prefaced by recognizing that this court must take the record as it is settled in the lower court. Davis & Daniels Co. v. McKillip, 1917, 39 S.D. 544, 165 N.W. 380. The settled record imparts an absolute verity and is the sole evidence of the trial court's proceedings. Boettcher v. Thompson, 1906, 21 S.D. 169, 110 N.W. 108; City of Sioux Falls v. Bohner, 1972, 86 S.D. 527, 199 N.W.2d 499. At no time has the state made any attempt to correct errors, if any, in the settled record or in the preliminary hearing or trial transcripts. The trial court has certified that the settled record is true and correct. SDCL 15-29-13.
The defendant claims that the state failed to establish a sufficient chain of custody of Exhibit 1 for its admission as evidence.
When real evidence is offered, an adequate foundation for admission requires testimony (1) that the object offered is the object which was involved in the incident and (2) that the condition of the object is substantially unchanged. If the object offered possesses characteristics which make it unique or readily identifiable, and if the composition of the object makes it...
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