State v. Kietzke

• Decision Date: 30 April 1971
• Docket Number: No. 10787,10787
• Citation: 85 S.D. 502,186 N.W.2d 551
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Kenneth Karl KIETZKE, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 551

186 N.W.2d 551

85 S.D. 502

STATE of South Dakota, Plaintiff and Respondent, v. Kenneth Karl KIETZKE, Defendant and Appellant.

No. 10787.

Supreme Court of South Dakota.

April 30, 1971.

Rehearing Denied May 13, 1971.

Gordon Mydland, Atty. Gen., Leonard E. Andera, Asst. Atty. Gen., Pierre, for plaintiff and respondent.

David E. Morrill, Sturgis, for defendant and appellant.

FOSHEIM, Circuit Judge.

Kenneth Kietzke was convicted under separate counts of unlawful possession of a narcotic drug and unlawfully administering a narcotic drug in violation of Section 2, Chapter 94, 1968 South Dakota Session Laws. South Dakota upon enactment of that statute joined the list of states adopting the Uniform Narcotic Drug Act which makes it unlawful for any person to possess or administer any narcotic drug or any preparation containing a narcotic drug except as authorized therein. The term 'narcotic drug' is defined to include 'marihuana' and all extracts and derivatives of the plant Cannabis sativa L. with some exceptions.

The defendant first urges on appeal that the evidence is insufficient to support the verdicts. A summary of the state's version of the evidence reveals that on the evening of March 14, 1969, Kenneth Kietzke traveled from Hot Springs to Lead, South Dakota, with one Danny Burleson. Enroute he told Burleson he either had or was going to get some 'hash' and intended to get 'stoned'. Upon arriving at Lead they went to an apartment which was dark with black lights. There was a mattress on the floor. Burleson identified the cigarette loader found at the apartment as similar to one he had previously seen at the defendant's home and which the defendant either told him or he assumed was used to load marihuana cigarettes. The manager of the apartment house saw strangers leaving and entering the apartment throughout the night. He saw a girl leave the apartment who appeared to be in a trance. He also smelled a peculiar odor. About 5 a.m., March 15, the law officers armed with a search warrant went to the apartment. The defendant and others came out of the apartment into the hall as the officers approached. Upon seeing the police they immediately turned and proceeded back into the apartment. The officers saw something in the defendant's hand and gave chase. They blocked the defendant's efforts to close the door and followed into the apartment. The defendant broke a window and threw something out. Hashish, a marihuana derivative, was found on the ground below the broken window. The search produced several other items of evidence, including more hashish, a cigarette loader and a longstemmed pipe which contained residue of marihuana.

Kirk Leichtnam observed the defendant at the apartment during the night. He saw him take tobacco out of cigarettes and reload them with what looked like tobacco, but which he though was marihuana. Kietzke passed two or three of these cigarettes around to others in the circle. The cigarettes were smoked. Leichtnam also saw some small black cubes resembling charcoal smoked in the pipe. They would put aluminum foil in the pipe, poke holes in the foil, and then insert the cubes. He did not specifically see the defendant smoke the pipe, but recalled the defendant was present when it was smoked. There was group conversation that the substance smoked in the pipe was hashish.

The state's witness, Vic Leveque, testified that he saw a pipe at the party which resembled the one in evidence. A purple substance which looked like cigarette tobacco was put into it. The pipe was then passed around and smoked. He saw the defendant smoke it. There was group conversation that 'dope' or 'stuff' was present. Leveque smoked the pipe for several minutes. It had previously been loaded and burned. It was covered with ashes; however, it didn't resemble burnt tobacco. Leveque said he had never before seen anything like it. It was loose, but was not ground fine like tobacco. It was bigger. After smoking the pipe Leveque felt 'strange' and 'goofy'. It made his throat feel 'raw' and 'biting'. He felt 'light' and 'hallucinated'. This was not the ordinary effect he received from smoking a pipe. There was a plastic sack on the floor containing hashish. He twice saw the defendant inject some of the substance from the sack into a cigarette from which the contents had previously been removed. The defendant smoked some of the cigarettes and laid others on the floor. He gave one to Leveque who smoked it. Leveque felt no effects from the cigarette. However, he was then still under the effects from the pipe. The substance from the sack was also smoked in the pipe. On one occasion the defendant threw a small piece of hashish to Leveque.

It is generally held under the Uniform Act that the accused must be shown to have been aware of the presence and character of the drug and to have been intentionally and consciously in possession of it. However, the possession need not be exclusive. It may have been shared with others. 25 Am.Jur.2d, Drugs, Narcotics, and Poisons, § 21. See also Annotation 91 A.L.R.2d 818.

With regard to the administering charge, the trial court instructed the jury that 'A person administers a narcotic drug when he causes or procures a person to take some or other substance into his or her person.' No objection was made or exception taken to this instruction, and therefore we cannot consider its accuracy. State v. Poppenga, 76 S.D. 592, 83 N.W.2d 518. However, this should not be read to imply our approval of such definition. State v. Waugh, 80 S.D. 503, 127 N.W.2d 429. The evidentiary chain consisting of both circumstantial and direct evidence so links the defendant with an illegal possession and use of a narcotic drug that there is more than a mere suspicion or possibility of guilt. State v. Wolfe, 61 S.D. 195, 247 N.W. 407. The inference of his guilt may be fairly drawn as to both counts. Rodella v. United States, 9 Cir., 286 F.2d 306. By no reasonable theory could the jury believe the state's evidence and the accused innocent. State v. Nelson, 83 S.D. 655, 165 N.W.2d 55 (reported as State v. Flake in North Western Reporter).

Defendant next urges the court erred in permitting the state's attorney to cross-examine and impeach his witnesses. The state's witness, Kirk Leichtnam, was subpoenaed from the Stockade at Fort Riley and granted immunity. Nevertheless, he once refused to answer and generally gave evasive answers on direct examination. The court found he was a hostile witness. The record reveals Vic Leveque had been intimidated by several persons, including the defendant. There is testimony the defendant was heard to say before the trial: 'It looks like the informer is Leveque and let's get to him.' Leveque also gave evasive answers on direct examination. The state's attorney was permitted to ask these witnesses leading questions and to confront them with their testimony from the preliminary hearing. It is, of course, the established rule that a party cannot cross-examine or impeach his own witnesses. This, however, is not an invariable rule to be adhered to in all cases and under all circumstances. The exception was expressed in State v. Laymon, 40 S.D. 381, 167 N.W. 402:

'Where a witness is unwilling to testify or is hostile to the party calling him to the stand, and it is apparent that he is not telling the truth or is concealing the truth, or where his testimony is contrary to statements, purporting to be facts, made by him before he went upon the stand, or is contrary to what he has led the party placing him upon the stand to believe it would be, then, in order to ascertain the truth, it is within the province of the trial court to permit the party placing such witness upon the stand to cross-examine such witness, or even to impeach him. But what constitutes a proper case for proceeding in this manner is to be determined by the trial court in the exercise of sound judicial discretion, and, unless it appears that such discretion had been abused by the trial court, the course pursued by it will not be disturbed by this court * * *'.

This rule was approved in Nelson v. Chicago, B. & Q. Ry. Co., 47 S.D. 228, 197 N.W. 288, and in State v. Raetz, 53 S.D. 291, 220 N.W. 492. The Raetz opinion reviewed and modified the more restrictive earlier ruling in State v. Callahan, 18 S.D. 145, 99 N.W. 1099. In State v. Lapke, 62 S.D. 187, 252 N.W. 38, we reaffirmed the rule in Laymon with the admonition that when evidence is received of the testimony given at the preliminary hearing the trial court must instruct that such previous testimony does not constitute substantive proof of the matters therein related. Such an instruction was given in this case. As stated in Raetz:

'The state's attorney had a perfect right to expect that the witness would testify substantially as he had testified at such former time. When the witness testified (differently) such testimony was clearly a matter of surprise to the state, and the trial judge * * * (could) recognize that the witness had become hostile to the state, and to treat the examination accordingly.'*

The trial court did not abuse its discretion in this regard.

We next turn to defendant's claim the evidence obtained by the search should have been suppressed because the affidavit did not show probable cause.

The protection afforded by the Constitutions of the United States and this State against unreasonable searches and seizures, U.S. Constitution Amendments, Amend. 4, Constitution of S.D. Art. VI, § 11, has been thoroughly discussed by this court. State v. Cochrane, 84 S.D. 527, 173 N.W.2d 495; State v. Hermandson, 84 S.D. 208, 169 N.W.2d 255; State v. McCreary, 82 S.D. 111, 142 N.W.2d 240; State v. Merrill, 82 S.D. 609, 152 N.W.2d 349. If the evidence was obtained by a search in violation of either constitution it was inadmissible. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; State v. McCreary, supra.

The affidavit of the deputy...