State v. Rufener

• Decision Date: 04 March 1987
• Docket Number: No. 15039,15039
• Citation: 401 N.W.2d 740
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Eugene RUFENER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 740

401 N.W.2d 740

STATE of South Dakota, Plaintiff and Appellee, v. Eugene RUFENER, Defendant and Appellant.

No. 15039.

Supreme Court of South Dakota.

Argued on Rehearing Nov. 18, 1986.

Decided March 4, 1987.

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

Thomas K. Wilka of Hagen & Wilka, Sioux Falls, for defendant and appellant.

MORGAN, Justice (on rehearing).

This case comes before us on a petition for rehearing. The original opinion was filed August 13, 1986. State v. Rufener, 392 N.W.2d 424 (S.D.1986) (Rufener I ). We affirm in part, reverse in part, and remand for a new trial.

In his petition for rehearing, Rufener urges three separate contentions. Initially, Rufener claims that this court incorrectly upheld the trial court's refusal of a requested accomplice instruction. Secondly, Rufener contends that this court erroneously upheld the trial court's admission of evidence, specifically the pistol and marijuana found in Rufener's car. Thirdly, Rufener contends this court erroneously upheld the trial court's admission of testimony of Dahl to impeach the testimony of Pierson.

Rufener was indicted by a Minnehaha County Grand Jury and later convicted on three separate counts of distributing one pound or more of marijuana to Roger Persing (Persing). Testimony and evidence offered at trial indicates that Persing would buy the marijuana from Rufener and later resell the marijuana in smaller quantities. Testimony also reveals that Persing assisted Rufener in arranging sales and in packaging the marijuana.

The pistol, a small amount of marijuana, and the marijuana cigarettes, items claimed inadmissible by Rufener as part of his second contention on rehearing, were obtained during a search of his rented vehicle incident to a valid search conducted with a warrant. The trial court admitted this evidence in spite of objections by defendant's counsel. Counsel objected, stating that the evidence was not "relevant to the charges pending against my client."

Nancy Pierson, Rufener's girl friend, was called to testify primarily about two subjects. The prosecution questioned Pierson about setting up a telephone call between Rufener and Persing. Pierson admitted arranging this call, but claimed she knew nothing about its content. The prosecution also inquired whether Pierson had ever spoken with agent Duane Dahl (Dahl) about Rufener's involvement with the transportation, sale, and distribution of marijuana. Pierson admitted talking to Dahl but denied that she had discussed marijuana dealing, whereupon the prosecution produced Dahl on rebuttal. Dahl testified over hearsay objection and related to the jury hearsay statements Pierson allegedly made to Dahl in April of 1983.

Initially, we believe Rufener's first argument on rehearing is without merit. As the majority correctly noted in Rufener I, "[s]ince Persing was no more than a purchaser at the time of the alleged criminal acts, the trial court did not err in finding that Persing and Rufener could not have been charged with the same crime arising from each transaction." 392 N.W.2d at 426. It is important to note that Rufener was charged with distributing marijuana to Persing. It is obvious that Persing could not be charged with distributing marijuana to himself, therefore he was not an accomplice to these acts. State v. Byrum, 399 N.W.2d 334 (S.D.1987); State v. Fox, 313 N.W.2d 38 (S.D.1981); State v. Johnson, 81 S.D. 600, 139 N.W.2d 232 (S.D.1965). We adhere to our holding in Rufener I on this issue.

We next examine the admission of the pistol and marijuana found in Rufener's rented vehicle. In Rufener I, the majority noted that Rufener presented a strong argument on this issue, however, the majority went on to hold that the objection interposed by counsel was inadequate and did not meet the requirements of SDCL 19-9-3(1). ¹ The cases cited by the majority in Rufener I establish that a general objection stated in terms such as "incompetent, irrelevant and immaterial" are too general to preserve the issue for appeal. We note, however, that those cases go on to say that an exception exists to this rule. "The only exception to such rule is where it clearly appears that the objection could not have been obviated had the same been specifically pointed out." Moberg v. Scott, 42 S.D. 372, 377, 175 N.W. 559, 561 (1919). See Flathers v. Wilson & Co., 62 S.D. 548, 255 N.W. 149 (1934).

" 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." SDCL 19-12-1 (Rule 401). "Evidence which is not relevant is not admissible." SDCL 19-12-2 (Rule 402). While we have some doubts as to the admissibility of the marijuana taken from Rufener's car, we do not believe that the simple relevancy objection was sufficient to preserve that issue for appeal. We are, however, convinced that the .357 Magnum pistol introduced into evidence, paraded before the jury, and admitted as substantive evidence, did not have any tendency to make the existence of any fact that is of consequence to the determination of whether Rufener distributed marijuana more probable or less probable than it would be without the pistol. The objection to the admission of the pistol interposed by counsel on the grounds of relevancy was correct under SDCL 19-12-2.

In addition, we believe that even if the objection was not proper under SDCL 19-12-2, it was sufficient under SDCL 19-9-3(1). We believe the grounds for the objection were clearly apparent to the trial judge, since the admission of the handgun was also obviously improper bad acts evidence under SDCL 19-12-5. Prior to determining whether the evidence is admissible as "bad act" evidence, the trial court must determine its relevancy. State v. Pedde, 334 N.W.2d 41 (S.D.1983). Furthermore, even if the objection would have been improper under any of the foregoing authorities, we hold that the objection to at least the admissibility of the pistol could not have been obviated, thus the rule of Moberg, Flathers, and SDCL 19-9-3 is not applicable. We find no proper evidentiary purpose for the pistol in the case at hand.

Finally, we address the issue of the admissibility of Dahl's statements impeaching the testimony of Pierson. In Rufener I, we reiterated a four-point test to be satisfied before prior inconsistent statements may be used for impeachment at trial. These four requirements were set out in United States v. Rogers, 549 F.2d 490 (8th Cir.1976) and adopted by this court in State v. Gage, 302 N.W.2d 793 (S.D.1981). While this four-point test may arguably have been met by the prosecution in the case at hand, we note that Gage added another requirement when the witness "was called by the State only to serve as a 'strawman' for the introduction of inadmissible hearsay...." Gage, 302 N.W.2d at 799.

In Gage, we specifically recognized and adopted the rule of United States v. Morlang, 531 F.2d 183, 190 (4th Cir.1975) which states: "Despite the fact that impeachment of one's own witness may be permitted, this does not go so far as to permit the use of the rule as a subterfuge to get to the jury evidence otherwise inadmissible."

Rule 607 of the Federal Rules of Evidence provides: 'The credibility of a witness may be attacked by any party, including the party calling him.' But it would be an abuse of the rule, in a criminal case, for the prosecution to call a witness that it knew would not give useful evidence, just so it could introduce hearsay evidence against the defendant in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence--or, if it didn't miss it, would ignore it. The purpose would not be to impeach the witness but to put in hearsay as substantive evidence against the defendant, which Rule 607 does not contemplate or authorize. We thus agree that 'impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible.' United States v. Morlang, 531 F.2d 183, 190 (4th Cir.1975). Although Morlang was decided before the Federal Rules of Evidence became effective, the limitation that we have quoted on the prosecutor's rights under Rule 607 has been accepted in all circuits that have considered the issue.

United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984). See United States v. Hogan, 763 F.2d 697 (5th Cir.1985); United States v. Faye, 668 F.2d 375 (8th Cir.1981); United States v. DeLillo, 620 F.2d 939 (2d Cir.1980); United States v. Rogers, 549 F.2d 490 (8th Cir.1976), cert. denied, 431 U.S. 918, 97 S.Ct. 2182, 53 L.Ed.2d 229 (1977). See also United States v. MacDonald, 688 F.2d 224, 123 (4th Cir.1982), cert. denied, 459 U.S. 1103, 103 S.Ct. 726, 74 L.Ed.2d 951 (1983).

Some courts believe the Morlang rule is a limitation grafted on Rule 607 (SDCL 19-14-8) ² while other authorities apply the Morlang rule under Rule 403 (SDCL 19-12-3). ³ In Gage, we applied the Morlang rule as a limitation to SDCL 19-14-8 (Rule 607). In addition, as we stated in Gage: "Such 'back dooring' of hearsay is not indicative of fair trial tactics, and the trial court in this case should have sustained defense counsel's objection to the testimony on the basis that it was hearsay." Gage, 302 N.W.2d at 799. An objection based on inadmissible hearsay was also interposed in this case.

While we are not prepared to say that impeachment testimony of this nature should never be allowed, we believe the trial court must exercise extreme caution when the impeaching evidence goes beyond simply proving that the witness was incredible and begins to persuade by illegitimate means.

It is also important to evaluate the curative effect of the limiting instruction given the jury by the trial court. Just before the impeachment...