State v. Selalla

• Decision Date: 02 January 2008
• Docket Number: No. 24137.,24137.
• Citation: 744 N.W.2d 802,2008 SD 3
• Court: South Dakota Supreme Court
• Parties: STATE of South "Dakota, Plaintiff and Appellee, v. Kevin Javier Ballesillo SELALLA, Defendant and Appellant.

744 N.W.2d 802

2008 SD 3

STATE of South "Dakota, Plaintiff and Appellee, v. Kevin Javier Ballesillo SELALLA, Defendant and Appellant.

No. 24137.

Supreme Court of South Dakota.

Considered on Briefs March 19, 2007.

Decided January 2, 2008.

Lawrence E. Long, Attorney General, Steven R. Blair, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Jeff Larson, Minnehaha County Public, Defender's Office, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

GILBE RTSON, Chief Justice.

[¶ 1.] On July 27, 2005, a complaint was filed in the South Dakota Second Judicial Circuit charging Rodolpho Hernandez with possession of methamphetamine with intent to distribute in violation of SDCL 22-42-2, possession of methamphetamine in violation of SDCL 22-42-5, and false impersonation with intent to deceive law enforcement in violation of SDCL 22-40-1. On August 10, 2005, a Minnehaha County grand jury indicted Kevin Javier Ballesillo Selalla a/k/a Rodolpho Hernandez (Selalla) on all three charges. A jury trial was held on January 3-4, 2006. The jury returned guilty verdicts on all three counts. On May 8, 2006, Selalla was sentenced to 10 years imprisonment for the violation of SDCL 22-42-2. No sentence was imposed for the convictions on the other counts. The trial court's judgment and sentence was filed on May 15, 2006. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On July 26, 2005, at approximately 12:00 p.m., Selalla and a companion checked into Room 215 of the Best Western Empire Towers motel in Sioux Falls, South Dakota. Selalla identified himself in English as Carlos Torres Hernandez from Omaha, Nebraska. On his registration he listed that he was driving a Ford Explorer, license number 295 ALT. The license number actually belonged to another vehicle parked outside the motel.

[¶ 3.] Later that afternoon, Selalla came to the front desk to ask in English if he had received any messages. In the evening, a woman called the front desk from Room 215 to report a suspicious person in the hallway. Not long afterward, a 911 call was placed from the room, but the person making the call hung up. The 911 operator called the front desk to obtain the room number that the call originated from, and then dispatched. Sioux Falls Police Officers Chad Gillen (Gillen) and Eric Kimball (Kimball) to the motel room to conduct a welfare check.

[¶ 4.] Upon arriving at the motel, Gillen and Kimball went to Room 215. The officers heard the sound of running water emanating from inside. They proceeded to knock on the door, but were unable to get anyone to answer. They then went to the front desk to get a key to the room. When they came back they knocked once more, announcing that they were law enforcement officers. This time, a woman wrapped in a towel came to the door.

[¶ 5.] Gillen and Kimball told the woman that a 911 call had originated from the room and that they were there to check on her welfare. Once they entered the room, the officers noticed a large glass water bong in plain view on a bedside table. Gillen retrieved a drug-testing kit from his patrol car. He found that the bong tested positive for methamphetamine. The officers took the bong into evidence and arrested the woman, identifying her as Isabel Garcia Vallejo (Vallejo).

[¶ 6.] After her arrest, Vallejo consented to a search of the room. Inside her purse, Gillen and Kimball found $943 in cash and a "pay/owe" sheet. Hidden in the bed sheets, they found a glass straw, a glass test tube with residue, and a Ziploc bag containing 12 grams of methamphetamine. Various other items of drug paraphernalia were also found about the room. In addition, the officers discovered luggage containing male clothing.

[¶ 7] Vallejo was taken to the Sioux Falls Law Enforcement Center. Before departing the motel the officers obtained a photocopy of the I.D. that Selalla presented at the front desk upon check-in. The door to Room 215 was re-keyed and the front desk clerk was advised to contact the police if Selalla returned to the motel. Law enforcement issued a "be on the lookout" for Selalla and the Ford Explorer.

[¶ 8.] While in custody, Vallejo was interviewed by John Duprey (Duprey), a narcotics detective with the Minnehaha County Sheriffs Department. Vallejo admitted to being a drug dealer and to having sold drugs in Sioux Falls. She also stated that if she were to give a urine sample it would test positive for drugs. Vallejo told Duprey that Selalla was also a drug dealer involved in distribution in Sioux Falls. She provided Duprey with information as to quantity, frequency, and the number of persons to whom Selalla was dealing drugs. Vallejo indicated that she was cooperating with Omaha police on a significant law enforcement matter. In consideration of that and her cooperation with Sioux Falls law enforcement, Vallejo was given back $100 of the money discovered in her purse. She was told to use the money to rent a motel room for the night and to purchase a bus ticket back to Omaha.

[¶ 9.] Unbeknownst to Gillen and Kimball, Selalla had returned to the motel before they departed Room 215 for the Law Enforcement Center with Vallejo. Identifying himself as "Rodolpho," he again asked in English at the front desk, if he had received any messages. After learning from the front desk clerk that he had none, Selalla proceeded toward the elevator before turning around and telling the clerk that he was leaving to get something to eat.

[¶ 10.] Sometime after leaving the motel for the second time, Selalla called his friend Jackie Jensen (Jensen) to ask if she could pick him up. Selalla told her that he had been in a fight with his girlfriend and that he was upset. Jensen picked him up near the motel and the two drove around while Jensen calmed him down. Eventually, Jensen drove Selalla back to the motel so that he could pick up a change of clothes, as he had decided to stay elsewhere for the night. Upon arriving there, the front desk clerk alerted 911 dispatch to Selalla's return. Officer James Buteyn (Buteyn) was dispatched to the motel sometime after 12:00 a.m. on July 27, 2005.

[¶ 11.] When Buteyn arrived, he made contact with Jensen who was in her car waiting in the motel parking lot for Selalla. Buteyn took Jensen's car keys and told her to wait until Selalla could be brought to her for identification. However, by this time, Selalla had managed to depart the motel on foot. Buteyn and officer Ryan Flogstad (Flogstad), who had responded to Buteyn's earlier call for backup, soon discovered Selalla's Ford Explorer in the parking lot. The officers ran the plate number" on the Explorer, South Dakota 8AE 074, and discovered it was registered to Stacey Lane of Mitchell. Buteyn and Flogstad began searching businesses in the surrounding area for Selalla. Flogstad finally located a Hispanic male matching Selalla's description in the restroom of the Fry'n Pan Restaurant.

[¶ 12.] The individual identified himself as Juan Martinez, but was unable to spell his name. After consenting to a pat down search, Flogstad found him to be carrying $598 and a title to a Ford Explorer signed by Stacey Lane. Flogstad placed the individual under arrest and took him to the motel where Jensen identified him. He was transported to the Minnehaha County Jail and booked under the name Carlos Hernandez. An FBI check of his fingerprints revealed the name Rodolpho Hernandez. Law enforcement ultimately determined that his name was Kevin Ballesillo Selalla.

[¶ 13.] Law enforcement obtained a search warrant for the Ford Explorer. Inside the vehicle they discovered a digital scale containing traces of methamphetamine. Law enforcement also found the original Best Western receipt issued to Carlos Hernandez on July 26, 2005. Selalla was charged and later indicted by a Minnehaha County grand jury for possession of methamphetamine with intent to distribute in violation of SDCL 22-42-2, possession of methamphetamine in violation of SDCL 22-42-5, and false impersonation with intent to deceive law enforcement in violation of SDCL 22-40-1.

[¶ 14.] Although he had conversed with various individuals in English on the day prior to his arrest in Sioux Falls, Selalla claimed he was not fluent in English to the point where he could understand what was going on during the jury trial on the charges pending against him. Prior to the trial, the trial court hired an interpreter to provide simultaneous translation of the proceedings. The Public Defender's Office, which represented Selalla, hired its own Spanish interpreter, at public expense, to aid communication at trial between defense counsel and Selalla. On January 3, 2004, immediately before the trial commenced, the trial court dismissed the interpreter that it had hired for simultaneous translation, noting that Selalla was the only person in the courtroom who needed an interpreter and that the services of one taxpayer financed interpreter were sufficient under the circumstances.

[¶ 15.] After the jury was seated, the trial court handed out the preliminary instructions to the jury stating that it "use[d] the same preliminary instructions in every single trial, [and that] they don't change because the jobs don't change." The court further stated that specific instructions of the law relevant to the instant case would be given at the end of the trial before deliberations began. The trial court went on to point out that state law, nevertheless, required it to read the preliminary instructions to the jury. Without objection from defense counsel, the trial court elected not to have the preliminary instructions translated for Selalla, stating that they could be read to him later.

[¶ 16.] During the defense case-in-chief, Selalla sought to call Duprey to testify to self-inculpatory statements made by Vallejo¹ about dealing drugs and her belief that she would test positive for drug-use if she submitted a urine sample. Selalla also intended to question Duprey...